Jill Karofsky, who won election to the Wisconsin Supreme Court on April 7 of this year, will be sworn in while running an ultramarathon race on Saturday. She plans to stop at mile 35 of a 100-mile race for a socially-distanced ceremony over which Justice Rebecca F. Dallet will preside.
Karofsky defeated incumbent Daniel Kelly with 55.2% of the vote to Kelly’s 44.7% in April’s nonpartisan election. Although the race was officially nonpartisan, Kelly has been a member of the court’s conservative majority and received support from conservative groups. Karofsky said she would join the court’s liberal minority and received support from liberal groups.
Of the seven justices on the state supreme court prior to Karofsky’s swearing-in, five justices were elected in nonpartisan elections and two, including Kelly, were appointed by Republican governor Scott Walker. Karofsky’s win reduced the size of the court’s conservative majority to 4-3, meaning that the 2023 election will determine control of the court, assuming no justices leave the bench early. A Kelly win would have prevented control of the court from changing until the 2026 election at the earliest.
Appellate judge David Bridges (R), who sat in Place 1 on the Texas Fifth District Court of Appeals, was killed on July 25 when an individual driving under the influence of alcohol hit Bridges as he was driving on the freeway. Bridges had served on the court since 1996.
Bridges was running for re-election to his seat on the court and advanced unopposed from the Republican primary on March 3. He was to face Democratic candidate Craig Smith, a judge of the Texas 192nd District Court, in the general election on November 3. Because of the timing of Bridges’ death, Republican Party committee officials from his district will nominate a replacement candidate to appear on the general election ballot. They have until August 24 to submit the nomination.
The Texas Fifth Court of Appeals is one of 14 intermediate appellate courts in Texas. Judges run in partisan elections to serve six-year terms on the court. Of the 12 judges currently sitting on the court, eight are affiliated with the Democratic Party and four are affiliated with the Republican Party.
Texas Supreme Court Justice Paul Green is retiring on August 31, 2020. Green joined the court in 2005 after winning election to the position on November 2, 2004. Before that, he served for 10 years as a justice on the Texas Fourth District Court of Appeals, taking the bench after being elected in 1994. He also worked in private practice. Green received his B.A. in business administration from the University of Texas at Austin in 1974. In 1977, he earned his J.D. from Saint Mary’s University School of Law.
In the event of a midterm vacancy, Texas Supreme Court justices are chosen by gubernatorial appointment with confirmation by the state Senate. The appointee serves until the next general election, in which he or she must compete in a partisan election to serve for the remainder of the unexpired term. Green’s replacement will be Gov. Greg Abbott’s (R) fourth nominee to the nine-member supreme court.
Texas is one of two states (along with Oklahoma) with two courts of last resort. Founded in 1836, the Texas Supreme Court is the state’s court of last resort for civil matters. Founded in 1876, the Texas Court of Criminal Appeals is the state’s court of last resort for criminal matters. Both courts have nine judgeships each.
In addition to Justice Green, the Texas Supreme Court currently includes the following justices:
• Nathan Hecht – Elected in 1988
• Eva Guzman – Appointed by Gov. Rick Perry (R) in 2009
• Debra Lehrmann – Appointed by Gov. Perry in 2010
• Jeffrey S. Boyd – Appointed by Gov. Perry in 2012
• John Devine – Elected in 2012
• Jimmy Blacklock – Appointed by Gov. Greg Abbott (R) in 2018
• Jane Bland – Appointed by Gov. Abbott in 2019
• Brett Busby – Appointed by Gov. Abbott in 2019
In 2020, there have been 19 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Twelve vacancies are in states where a Democratic governor appoints the replacement. Six are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.
On July 24, 2020, the filing deadline passed to run for state executive and judicial offices in Louisiana. Candidates filed for the following offices:
Louisiana Public Service Commission (two seats)
Louisiana Supreme Court (two seats)
Louisiana Circuit Courts of Appeal (13 seats)
The primary is scheduled for November 3, and the general election will be held on December 5. Louisiana is under a divided government and does not have a state government trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.
On July 20, Connecticut Gov. Ned Lamont (D) appointed appellate judge Christine E. Keller to the state supreme court. If confirmed by the Connecticut General Assembly, Keller will fill the vacancy created when former justice Richard Palmer reached the mandatory retirement age of 70 in May 2020.
Keller has served on the Connecticut Court of Appeals since 2013 and previously served on the Connecticut Superior Court beginning in 1993. She is Lamont’s first appointee to the state supreme court. All six of the current justices on the seven-seat court were appointed by Governor Dan Malloy (D) during his tenure.
Nine of the 11 state supreme court vacancies that have occurred so far this year have been filled. 19 vacancies total set to occur this year have been announced.
Massachusetts Supreme Judicial Court Justice Barbara Lenk is retiring on August 17, 2020. Lenk reached the court’s mandatory retirement age of 70 years old.
On April 4, 2011, Governor Patrick nominated Lenk for a seat on the Massachusetts Supreme Judicial Court. She was confirmed by the Governor’s Council on May 4, 2011. Lenk was the first openly gay justice on the court. She previously served as a Massachusetts Superior Court judge from 1993 to 1995, and as a Massachusetts Appeals Court judge from 1995 to 2011.
Justice Lenk earned a bachelor’s degree from Fordham University in 1972 and a Ph.D. in political philosophy from Yale University in 1978. She earned a J.D. from Harvard Law School in 1979.
The seven justices of the Massachusetts Supreme Judicial Court are appointed by the governor and approved by the governor’s council. The Governor’s Council, also referred to as the Executive Council, is a governmental body that is constitutionally authorized to approve judicial appointments. The council consists of eight members who are elected every two years from each of the eight council districts. Massachusetts Supreme Judicial Court justices hold tenured appointments until they reach 70 years old, the age of mandatory retirement.
Founded in 1692, the Massachusetts Supreme Judicial Court is the state’s court of last resort. The court is the oldest continuously functioning appellate court in the Western Hemisphere. Originally called the Superior Court of Judicature, it was established in 1692. The court was renamed the Massachusetts Supreme Judicial Court by the Massachusetts Constitution of 1780.
The current chief of the court is Ralph D. Gants, who was appointed to the court by Gov. Deval Patrick (D) in 2009. He was nominated by Gov. Patrick to serve as the chief justice of the court in 2014. The remaining five justices of the court are:
• Frank M. Gaziano – Appointed by Gov. Charlie Baker (R) in 2016
• David A. Lowy – Appointed by Gov. Baker (R) in 2016
• Kimberly S. Budd – Appointed by Gov. Baker (R) in 2016
• Elspeth Cypher – Appointed by Gov. Baker (R) in 2017
• Scott Kafker – Appointed by Gov. Baker (R) in 2017
In 2020, there have been 18 supreme court vacancies in 15 of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Twelve vacancies are in states where a Democratic governor appoints the replacement. Five are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.
Arizona Supreme Court Justices Robert Brutinel, Andrew W. Gould, and John Lopez IV are all standing for retention election on November 3, 2020. Lopez and Gould were both appointed by current Arizona Governor Doug Ducey (R), while Brutinel was appointed by former Governor Jan Brewer (R).
Currently, all seven judges on the court were appointed by a Republican governor: five appointed by Ducey and two by Brewer.
Each of Arizona’s seven justices is appointed by the governor from a list of names compiled by the Arizona Commission on Appellate Court Appointments. The commission is chaired by the Arizona Supreme Court Chief Justice and has four vacancies as of April.
A newly appointed justice’s term is at least two years, after which the justice must stand in a retention election. Subsequent terms last six years. Since 2008 across the country, state supreme court justices facing retention elections have won 98% of the time. In Arizona, no justices have lost a retention election in this time frame.
The Wisconsin Supreme Court on July 9 upheld the constitutionality of the majority of the legislation passed by state lawmakers during the 2018 extraordinary legislative session, with the exception of certain provisions concerning guidance documents.
The legislation brought major changes to administrative processes, including eliminating judicial deference to state agencies, abolishing sue-and-settle practices, and setting new standards for agencies’ regulatory guidance documents.
A group of Wisconsin unions led by the Service Employees International Union (SEIU) filed suit, claiming that the legislation violated the separation of powers by increasing legislative authority over executive branch actions. The plaintiffs brought a facial challenge—meaning they claimed that the legislation violated the separation of powers in all of its applications. The Wisconsin Supreme Court disagreed, ruling that the legislation (with the exception of certain provisions concerning guidance documents) could be applied lawfully in some cases and that the facial challenge should have been dismissed by the lower court.
The court ruled that certain provisions regarding guidance documents violated the separation of powers because, according to the court, the legislative branch does not have the authority to dictate the manner in which the executive branch carries out its power to execute the law. “We conclude that when the legislature prohibited the executive branch from communicating with the public through the issuance of guidance documents without first going through a preclearance process and including legislatively-mandated content,” wrote Justice Daniel Kelly in the opinion, “it invaded the executive branch’s exclusive province to ‘take care that the laws be faithfully executed.'” Kelly’s opinion clarified, however, that “a guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license.”
Three other lawsuits have challenged the extraordinary session legislation. A state lawsuit sought to void the legislation on the grounds that state lawmakers unconstitutionally convened the extraordinary session, but the Wisconsin Supreme Court held in June 2019 that the Wisconsin Constitution grants legislators the authority to convene meetings. A pending federal lawsuit seeks to overturn changes to early voting procedures that were included in the legislative package. Lastly, another pending federal lawsuit argues that the legislation violates the U.S. Constitution’s Guarantee Clause, which guarantees every state the right to a republican form of government.
In retention elections, voters are asked whether an incumbent should remain in office for another term. The incumbent does not face an opponent and is removed from the position if a majority vote against retention.
State supreme court justices facing retention elections experienced better chances of being re-elected than their incumbent counterparts in other kinds of elections. Since 2008, 155 state supreme court justices have faced retention elections. Incumbent justices won 152 (98%) of these elections. In that same time period, incumbent justices in non-retention elections have faced 196 elections. The incumbent justices won 176 (90%) of these elections. Incumbent justices in all types of election experienced a 93% win rate.
In this time period, Iowa is the only state that has held retention elections in which justices were not retained. Iowa supreme court justices Marsha K. Ternus, Michael J. Streit and David Baker lost their retention elections in 2010. This followed their participation in a decision to remove the state ban on same-sex marriage. The three justices ruled in favor of removing the ban in the 2009 case Varnum v. Brien, resulting in campaigning against their retention by groups opposed to the legalization of same-sex marriage.
Ternus was appointed by Republican Governor Terry Branstad while Baker and Streit were appointed by Democratic governors. They were replaced by Bruce Zager, Thomas Waterman, and Edward Mansfield, all three of whom were appointed by Republican governor Terry Branstad in 2011. Zager’s seat was filled in 2018 by Susan Christensen, who was appointed by Republican Governor Susan Reynolds.
On July 9, 2020, the Virginia State Supreme Court issued a ruling that affirmed the State Corporation Commission’s denial of Walmart’s petition to seek an alternative energy supplier to the state utility. Justice Arthur Kelsey penned the unanimous opinion of the court.
In December 2017 Walmart sought permission to buy its electricity from a non-state utility. Walmart lied on two provisions of the state utility code. Walmart first relied on the provision which grants that any customer who uses more than five megawatts may choose to exit the utility’s customer pool. Second, Walmart relied on the provision which says that a customer with multiple sites in Virginia that collectively use more than five megawatts of electricity may combine those loads and buy energy from a non-utility. The two prior provisions are governed by a provision which reads “approval of such petition is consistent with the public interest.”
After Walmart’s 2017 petition to purchase electricity outside of the state’s utility, the State Corporation Commission held a notice and comment period followed by a public evidentiary hearing.
According to the hearing records, the examiner made factual findings, including that Walmart’s petitions “would likely increase the monthly bills of remaining, non-shopping customers. VEPCO customers using 1,000 kilowatts of electricity per month would see a total increase of $0.13 in their monthly bills, and similar customers of APCO would see a total monthly increase of $0.05.” The hearing examiner concluded that “The question for the Commission is not whether the impact of granting Walmart’s Petitions is de minimis, but rather is whether granting Walmart’s Petitions will adversely affect the remaining retail customers . . . in a manner contrary to the public interest.” The commission claimed that granting Walmart’s petition would be a breach of the provision of state contracting code which asks them only to grant contracts “consistent with the public interest.”
The question that the state supreme court was asked to decide is whether or not a regulatory commission may define “the public interest” in granting petitions for exclusion from purchasing electricity from public utilities.
Walmart argued that “The public interest cannot be offended… if the adverse effect is simply recasting the marginal-cost savings enjoyed by the benefitted party into higher marginal costs to remaining customers or lost revenue to the incumbent utility.”
Justice Kelsey wrote that “Walmart’s argument is a tightly constructed syllogism, and it might be persuasive if subsection (A)(4)(a) were the only relevant statutory language informing us of the General Assembly’s intent. But it is not. Subsection (A)(4)(a) is immediately followed by subsection (A)(4)(b)’s general reference to the ‘public interest,’ and both subsections are preceded by the highly permissive ‘may’ language governing the ultimate scope of the Commission’s discretion.” Justice Kelsey went on to write “We are not tempted to repurpose ‘may’ as a polite form of ‘shall.’”
Walmart’s 140 stores across the state of Virginia will continue to purchase power from the Virginia Electric & Power Co. Walmart’s representatives have not spoken on the decision of the state supreme court.