TagState courts

First 2022 state supreme court vacancy announced

Wyoming State Supreme Court Justice Michael K. Davis is retiring on Jan. 16, 2022, upon reaching the state court’s mandatory retirement age of 70 years. The vacancy created by Davis’ retirement is the first state supreme court vacancy to be announced for 2022. Davis’ replacement will be Governor Mark Gordon’s (R) first nominee to the five-member supreme court.

Under Wyoming law, justices of the Wyoming Supreme Court are selected through the assisted appointment method. When a vacancy occurs, the governor appoints a replacement from a list of three names provided by a nominating commission. Newly appointed judges serve for at least one year, after which they must stand for retention in the next general election. If retained, a judge will finish the remainder of his or her predecessor’s unexpired term. Subsequent terms last eight years.

Davis first became a member of the Wyoming Supreme Court when he was appointed by Gov. Matt Mead (R) on Aug. 30, 2012, to succeed Michael Golden. Davis previously served as a judge on the First District Court in Laramie County, Wyoming. From 1980 to 2008, he was a partner at Yonkee and Toner. He has also been a judicial fellow of the American College of Trial Lawyers.

Following Davis’ retirement, the Wyoming Supreme Court will include the following members:

  1. Lynne Boomgaarden, appointed by Gov. Matt Mead (R) in 2017
  2. Kate M. Fox, appointed by Mead (R) in 2013
  3. Keith G. Kautz, appointed by Mead (R) in 2015
  4. Kari Gray, appointed by Mead (R) in 2018

In 2021, there have been 16 court vacancies in 14 of the 29 states where replacement justices are appointed instead of elected, as of Sept. 8. The vacancies have been caused by retirements.

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Seven new judges join the Virginia Court of Appeals

Seven new judges joined the Virginia Court of Appeals on Sept. 1. The Virginia General Assembly elected eight judges to the court on Aug. 10, 2021. The eighth judge, Dominique Callins, will take office on Nov. 1, 2021, following the retirement of Judge William Petty. 

Established in 1985, the Virginia Court of Appeals was originally made up of 11 judges, but the passage of Senate Bill 1261 in March 2021 increased the number of judges to 17. The bill also expanded the “jurisdiction of the Court of Appeals of Virginia by providing for an appeal of right in every civil case.” Apart from the increase in judges, the bill has a delayed effective date of Jan. 1, 2022. 

The following seven people joined the court on Sept. 1. Their terms end on Aug. 31, 2029:

  1. Doris Henderson Causey 
  2. Vernida Chaney
  3. Frank Friedman
  4. Junius P. Fulton III
  5. Lisa Lorish 
  6. Daniel E. Ortiz
  7. Stuart Raphael

Virginia is one of two states to use legislative elections to select judges. The legislative election method of judicial selection is a process by which state legislators choose judges to serve on a court. This method is unique among selection types in that neither the governor (via appointment powers) nor the public (via direct elections) has a role in this selection process. South Carolina is the other state to use this method.  

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Oregon Supreme Court justice to retire at year’s end

Oregon Supreme Court Justice Lynn Nakamoto is retiring on Dec. 31, 2021. Nakamoto’s replacement will be Governor Kate Brown’s (D) sixth nominee to the seven-member supreme court.

Under Oregon law, midterm vacancies on the state supreme court are filled via gubernatorial appointment. Appointed judges serve until the next general election more than 60 days after they were appointed, at which point they must run for election in order to remain in office.

Justice Nakamoto joined the Oregon Supreme Court in 2016. She was appointed to the court by Brown. Upon her appointment, Nakamoto became the first Asian Pacific American on the state supreme court.

Before serving on the state supreme court, Nakamoto served as a judge on the Oregon Court of Appeals. She was appointed to that court by Governor Ted Kulongoski (D) in December 2010. Upon her appointment to the court, Nakamoto became the first Asian Pacific American from Oregon to serve on any state or federal appellate court. 

Following Nakamoto’s retirement, the Oregon Supreme Court will include the following members:

Founded in 1859, the Oregon Supreme Court is the state’s court of last resort and has seven judgeships. The current chief of the court is Martha Walters.

In 2021, there have been 15 court vacancies in 13 of the 29 states where replacement justices are appointed instead of elected. The vacancies have been caused by retirements.

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Oklahoma Gov. Stitt appoints state supreme court justice

Oklahoma Gov. Kevin Stitt (R) appointed Dana Kuehn to the Oklahoma Supreme Court on July 26. The appointment filled a vacancy on the court caused by former Justice Tom Colbert’s retirement on Feb. 1. Kuehn is Stitt’s third nominee to the nine-member supreme court.

Under Oklahoma law, state supreme court justices are selected by the governor with help from a nominating commission. The nominating commission puts forward a list of three names from which the governor chooses the appointee. The appointed judge serves an initial term of at least one year before standing for retention in the next general election.

Before her appointment to the supreme court, Kuehn served as a judge on the Oklahoma Court of Criminal Appeals. She was appointed to that seat in 2017. From 2006 to 2017, Kuehn was a Tulsa County associate district judge. Prior to becoming a judge, she worked as a Tulsa County district attorney and as an attorney in private practice with Steidley & Neal, PLLC. Kuehn earned a B.A. in political science from Oklahoma State University and a J.D. from the University of Tulsa College of Law.

With her appointment to the supreme court, Kuehn became the first woman to serve on both of Oklahoma’s high courts.

In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. To date, 12 of those vacancies have been filled.

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Missouri Supreme Court upholds Medicaid expansion amendment

On July 22, the Missouri Supreme Court unanimously ruled that a constitutional amendment enacting Medicaid expansion was constitutional. The decision reversed a lower court’s ruling that found the amendment approved by voters last August to be unconstitutional because it did not include a revenue source for the state to pay for the Medicaid expansion. The Supreme Court ruled that the amendment “does not remove the General Assembly’s discretion in appropriating money to MO HealthNet,” and therefore, “the circuit court erred in declaring article IV, section 36(c) constitutionally invalid.”

The Supreme Court concluded that the Department of Social Services and Missouri HealthNet, who are responsible for the administration of Medicaid in Missouri, are required to use the funds appropriated by the legislature on all eligible recipients under the adopted amendment. The amendment, which was approved by a margin of 53.27% to 46.73%, expanded Medicaid eligibility in Missouri to adults that are 19 years of age or older and younger than 65 whose income is 138% of the federal poverty level or below under the Affordable Care Act.

Stephanie Doyle, Melinda Hille, and Autumn Stultz—three individuals who qualify for Medicaid under the expanded eligibility—filed the lawsuit in Cole County Circuit Court. On June 23, Cole County Circuit Judge Jon Beetem ruled that the amendment was unconstitutional because it did not include a way for the state to pay for the Medicaid expansion. He wrote, “If the court allows them to spend other state revenues by initiative such action would deprive the General Assembly of its constitutional right to appropriate revenues in all other non-initiative circumstances.”

Amy Blouin of the Missouri Budget Project said, “As a result of the Supreme Court’s ruling, Missourians across the state will finally be able to realize the health and economic benefits of Medicaid expansion. State after state has shown that in addition to providing insurance to those eligible, expansion is a fiscal and economic boon to state economies and budgets.”

Senate Appropriations Committee Chairman Dan Hegeman (R), who opposed the amendment, said, “The legal gymnastics employed by the court to get their desired political outcome sets a dangerous precedent and greatly diminishes the power of Missourians’ elected representatives.”

Since the Supreme Court has upheld Medicaid expansion, the state must file paperwork with the federal Centers for Medicare and Medicaid Services to set up the enrollment process for newly eligible individuals. Governor Mike Parson (R) previously withdrew the state’s paperwork in May after the state legislature passed the state’s budget without expanding funding for Medicaid.

The amendment faced legal challenges before the vote last August. In May 2020, two separate lawsuits were filed against Missouri Secretary of State Jay Ashcroft (R) challenging the constitutionality of the citizen-initiated ballot measure by Americans for Prosperity-Missouri and United for Missouri. Both lawsuits argued that the initiative was unconstitutional because it appropriated state funds without creating a new source of revenue. In June 2020, Cole County Circuit Judge Daniel Green ruled in favor of the initiative keeping it on the ballot. Judge Green argued that the ballot measure does not require the state legislature to appropriate money for Medicaid expansion, and therefore, it does not need to provide a funding source. Missouri Western District Court of Appeals upheld Judge Green’s decision to keep the initiative on the August ballot after United for Missouri and Americans for Prosperity-Missouri appealed the decision.

Missouri joins 38 states and Washington, D.C., in expanding Medicaid under the Affordable Care Act.



Governor Brian Kemp appoints new state supreme court justice, public service commissioner

Governor Brian Kemp (R) appointed Verda Colvin to the Georgia Supreme Court and Fitz Johnson to the Georgia Public Service Commission on July 20 and 21, respectively. Colvin will fill the vacancy left by Justice Harold Melton, who retired on July 1 of this year, while Johnson will take former Commissioner Chuck Eaton’s position. Governor Kemp appointed Eaton to the Fulton County Superior Court on July 20. 

Founded in 1845, the Georgia Supreme Court is the state’s court of last resort and has nine judgeships. The current chief of the court is David Nahmias. As of July 2021, Republican governors appointed seven judges (eight once Colvin is sworn in) on the court and one was initially selected in a nonpartisan election. Judges are selected using the nonpartisan election of judges system. They serve six-year terms. When an interim vacancy occurs, the seat is filled using the assisted appointment method of judicial selection with the governor picking the interim justice from a slate provided by the Georgia Judicial Nominating Commission. 

The Georgia Public Service Commission is a quasi-executive, quasi-legislative state body responsible for regulating Georgia’s public utilities: electric, gas, telecommunications, and transportation firms. The commission is composed of five popularly elected members who serve staggered, six-year terms. If a vacancy occurs, the governor appoints a replacement to serve until the next general election. According to The Atlanta Journal-Constitution, Johnson must win election in November 2022 to serve the remainder of Eaton’s term, which expires in 2024.

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Gov. Brian Kemp fills vacancy on Georgia Supreme Court

Georgia GovernorBrian Kemp (R) appointed Verda Colvin to theGeorgia Supreme Court on July 20. Colvin was Kemp’s third nominee to the nine-member court.

Colvin succeededHarold Melton, who retired on July 1. Chief Justice Melton joined the Georgia Supreme Court in 2005. He was appointed to the court by Gov. Sonny Perdue (R).

Prior to her appointment to the state supreme court, Colvin served as a judge of the Georgia Court of Appeals. Kemp appointed her to that court on March 27, 2020. Colvin was previously a judge with the Macon Circuit of the 3rd Superior Court District of Georgia. She was appointed to that court by Gov. Nathan Deal (R) on March 24, 2014. Prior to becoming a superior court judge, she was an attorney in the U.S. Attorney’s Office.

In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. The vacancies have been caused by retirements. To date, 11 of the vacancies have been filled.

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New Mexico governor appoints Briana Zamora to fill vacancy on state supreme court

New Mexico Gov. Michelle Lujan Grisham (D) appointed Briana Zamora to the New Mexico Supreme Court on July 16. The appointment filled a vacancy on the court caused by former Justice Barbara J. Vigil’s retirement on June 30. Zamora is Gov. Lujan Grisham’s fourth nominee to the five-member supreme court.

Under New Mexico law, midterm state supreme court vacancies are filled through assisted gubernatorial appointments, where the governor selects a nominee based on recommendations from a judicial nominating commission. Appointees serve until the next general election, in which they must participate in a partisan election to remain on the bench for the remainder of the unexpired term.

Briana Zamora previously served as a judge on the New Mexico Court of Appeals from 2018 until her appointment to the state supreme court. She served as a district court judge from 2013 to 2018 and as a metro court judge from 2009 to 2013. Prior to becoming a judge, Zamora worked as an attorney in private practice, as an assistant state attorney general, and as an assistant district attorney. She earned an undergraduate degree in government and psychology from New Mexico State University and a J.D., with honors, from the University of New Mexico School of Law.

In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. To date, 10 of those 14 vacancies have been filled.

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Wisconsin Supreme Court affirms agency authority to regulate state water resources

The Wisconsin Supreme Court on July 8 issued decisions in two environmental cases that had pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity has the authority to regulate water pollution and irrigation practices. In both cases, the court held 4-2 that the DNR is authorized to restrict permits in order to protect the state’s water resources.

The pair of cases, both initiated by Clean Wisconsin Inc. and Pleasant Lake Management District, centered on Wisconsin Act 21—a 2011 law that limits state agency authority by prohibiting state agencies from taking actions not specifically authorized by the state legislature.

The first case concerned an administrative law judge’s (ALJ) order that the DNR limit the size of a dairy herd causing nearby groundwater contamination. The DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s directive, arguing that Act 21 prohibited the agency from carrying out the order.

A Dane County Circuit Court judge in 2016 affirmed the DNR’s authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR under Governor Tony Evers (D) changed its position and had since claimed regulatory authority in the case.

The Wisconsin Supreme Court upheld the circuit court’s decision. Writing for the majority, Justice Jill Karofsky stated, “we conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with [Act 21].”

In the second case, challengers sued the DNR seeking stricter enforcement of regulations regarding large-scale water withdrawals for irrigation. Challengers claimed that the agency failed to consider the cumulative negative impact on water levels in nearby lakes and streams when it issued permits for nine high-capacity wells. As in the previous case, the DNR argued that Act 21 prevented the agency from considering the cumulative impact of the new wells. 

The Wisconsin Supreme Court again affirmed the circuit court’s decision in the case, holding that the DNR erroneously claimed that it lacked regulatory authority. Writing for the majority, Justice Rebecca Dallet stated, “The DNR’s authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute.”

Chief Justice Annette Ziegler joined Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky in both majority opinions. Justice Brian Hagedorn did not participate in the case.

Justices Rebecca Bradley and Patience Roggensack dissented, arguing in part: “Elevating its environmental policy preferences over the legislature’s prerogative to reclaim its constitutional authority, the majority distorts the plain language of [Act 21] to achieve its own ends.” 

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Governors appoint new supreme court justices in two states

Alaska and Arizona have new state supreme court justices after appointments from their respective governors. Alaska Gov. Mike Dunleavy (R) appointed Jennifer Stuart Henderson to the Alaska Supreme Court on July 7, and Arizona Gov. Doug Ducey (R) appointed Kathryn Hackett King to the Arizona Supreme Court on July 8.

Alaska

A seat on the Alaska Supreme Court became vacant when former Chief Justice Joel Bolger retired on June 30, 2021. Gov. Dunleavy selected Jennifer Stuart Henderson for the seat from a list of three finalists forwarded by the Alaska Judicial Council (AJC). Henderson is Gov. Dunleavy’s second nominee to the five-member supreme court.

On July 1, Dunleavy asked the AJC to reconsider its list of nominees and put forward a new slate to fill the vacancy. However, under the council’s bylaws, it may not reconsider nominees that have been sent to the governor except in specific circumstances. Ultimately, Dunleavy appointed Henderson from the original slate of three names put forward by the AJC.

Prior to her appointment to the supreme court, Henderson served as a judge on the Alaska superior court. She was appointed to the superior court in 2012 by former Alaska Gov. Sean Parnell (R). Her career experience also includes working as an assistant district attorney in Anchorage and as an attorney in private practice with the law firm of Farley & Graves. After law school, she served as a clerk for former Alaska Supreme Court Justice Warren Matthews. Henderson earned a J.D. from Yale Law School.

Arizona

A seat on the Arizona Supreme Court became vacant when former Justice Andrew W. Gould retired on April 1, 2021. Gov. Ducey selected Kathryn Hackett King for the seat from a slate of nominees put forward by the Arizona Commission on Appellate Court Appointments. King is Gov. Ducey’s sixth nominee to the seven-member supreme court.

Before her appointment to the supreme court, King was a partner at the law firm of BurnsBarton PLC. She also served as a member of the Arizona Board of Regents. From 2015 to 2017, King served as the deputy general counsel to Gov. Ducey. She previously practiced law at Snell & Wilmer LLP. After graduation from law school, King clerked for former Arizona Supreme Court Justice Michael D. Ryan from 2007 to 2008. She is the fifth woman in Arizona history to serve on the state supreme court.

King earned a B.A. in political science from Duke University and a J.D. from the University of Arizona James E. Rogers College of Law.

In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. To date, nine of those 14 vacancies have been filled.

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