TagState courts

Gov. Sununu (R) to nominate Attorney General Gordon MacDonald to New Hampshire Supreme Court

On January 6, 2021, Gov. Chris Sununu (R) announced that he will renominate Attorney General Gordan MacDonald (R) to the New Hampshire State Supreme Court. 

In New Hampshire, the governor makes nominations to the state supreme court and those nominees are then subject to the approval of the Executive Council. In order for the nominee to become a justice on the court, a majority of the members of the council must vote to approve them. 

Sununu appointed MacDonald to the State Supreme Court in 2019, but the Executive Council rejected MacDonald’s nomination. Councilman Andru Volinksy (D) stated, “Mr. MacDonald has worked for and supported highly partisan politicians with shockingly extreme views.” After MacDonald was rejected, Sununu left the seat vacant throughout 2020. Sununu said, “If someone of Gordon MacDonald’s character and background is going to be dragged through the mud like this, why would I dare do it to anybody else?”

The first time Sununu nominated MacDonald, there were three Democrats and two Republicans on the Executive Council. In November 2020, every seat on the Executive Council was up for election. The balance on the Executive Council is now one Democrat and four Republicans. 

In our Ballotpedia Courts: State Partisanship study, we analyzed the partisan data on each state supreme court in the country. In our study, we found that two justices on the court have Republican affiliations, one justice on the court has Democratic affiliations, and one justice on the court has an indeterminate party affiliation. If the Executive Council approves MacDonald, a majority of the justices on the court will have Republican party affiliations.

Additional Reading:

New Hampshire Executive Council election, 2020

Ballotpedia Courts: State Partisanship



Pennsylvania Commonwealth Court rules that 2019 Marsy’s Law ballot measure violated state constitution

Judge gavel on desk

On January 7, 2021, the Pennsylvania Commonwealth Court ruled that a ballot measure for Marsy’s Law, a type of crime victims’ rights amendment, violated the Pennsylvania Constitution. Pennsylvanians voted 74% to 26% in favor of Marsy’s Law at the election on November 5, 2019. Results were never certified, however, according to a court order.

The 3-2 appellate court decision stated that the proposal violated the separate-vote requirement for constitutional amendments. According to the Pennsylvania Constitution, “When two or more amendments shall be submitted they shall be voted upon separately.” Judge Ellen Ceisler (D) wrote the majority’s opinion, which ruled that Marsy’s Law would impact separate rights and provisions of the state constitution.

Judge Patricia McCullough (R), who agreed with the majority’s decision but wrote a separate opinion, stated that the measure contained “laudable and salutary provisions” but “simply embraces too many disparate matters to effectively convey its import to voters within the 75 words mandated by statute.”

Judge Mary Hannah Leavitt (R) dissented, stating that Marsy’s Law created constitutional rights for crime victims without changing existing provisions of the state constitution. Judge Leavitt wrote, “The judgment the court enters today deprives the people of this power on the strength of no more than speculation.”

Jennifer Riley, director of the organization Marsy’s Law for Pennsylvania, responded to the Commonwealth Court’s decision, saying, “We are prepared to continue advocating for victims and to bring an appeal to the Supreme Court to ensure that the votes of Pennsylvanians are counted and that the voices of the victims are protected.”

In Pennsylvania, constitutional amendments need to be passed by the state Legislature during two successive legislative sessions. In 2018, both chambers unanimously passed the amendment. In 2019, the state Senate unanimously passed the amendment, and 190 of 202 state representatives voted for it. Gov. Tom Wolf (D) supported the ballot measure, as did the Pennsylvania District Attorneys Association and U.S. Reps. Fred Keller (R) and Scott Perry (R).

Opponents included the ACLU of Pennsylvania, League of Women Voters of Pennsylvania, and Pennsylvania Association of Criminal Defense Lawyers. Marsy’s Law for Pennsylvania raised $6.65 million from the Marsy’s Law for All Foundation to campaign for the measure.

Marsy’s Law ballot measures faced similar lawsuits in state courts in Kentucky and Montana. The amendment was struck down in Montana for violating the state’s separate-vote requirement on constitutional amendments. In Kentucky, after it was struck down for reasons related to ballot language, the state Legislature placed it on the ballot again in 2020. The 2020 version, which was approved, included the full text of the measure on the ballot.

As of January 2021, 12 states had Marsy’s Law amendments. Voters in two additional states—Pennsylvania and Montana—voted in favor of Marsy’s Law amendments, but they were overturned or blocked. Henry Nicholas, the co-founder of Broadcom Corp., started campaigning for Marsy’s Law to increase the rights and privileges of victims in state constitutions. Marsy’s Law is named after Nicholas’ sister, Marsy Nicholas, who was murdered in 1983.

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Summary of Nov. 3 state appeals court elections — Democrats win seats in Texas, Republicans gain in North Carolina

Democrats won eight of the 24 seats up this year in Texas’ intermediate appellate courts, all of which were held by Republican judges heading into the election. Republicans made gains in North Carolina, winning all five intermediate appellate court seats up this year, four of which were held by Democratic or Democratic-aligned justices.

The Republican Party had greater partisan risk in this year’s Texas intermediate appellate court elections, defending all 24 seats up. Democratic challengers defeated six Republican incumbents and won two open seats. Republicans won 11 uncontested races. In the 2018 elections, Democratic challengers defeated 19 Republican incumbents. Forty-five seats were up that year.

Democrats had the greater partisan risk in North Carolina this year. The five intermediate appellate court seats up included one held by a Republican, two held by Democrats, and two held by judges who were appointed by a Democratic governor but have not stood for partisan election. Republicans won all five races, defeating both Democratic incumbents and winning both open seats held by appointed judges.

Thirty states held intermediate appellate court elections in 2020. Six states held partisan general elections, 11 states held nonpartisan general elections, and 15 states held retention elections (this figure includes two states that held both partisan and retention elections). There were 201 seats up for election out of 976 seats on intermediate appellate courts nationwide.

Intermediate appellate courts serve as an intermediate step between the trial courts and the courts of last resort in a state. Their jurisdiction varies from state to state.

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New Mexico Supreme Court Justice Nakamura retires

New Mexico Supreme Court Justice Judith Nakamura retired on Dec. 1, 2020. She originally planned to retire on Aug. 1 but postponed her retirement date in June. 

Governor Susana Martinez (R) appointed Nakamura to the court in November 2015. Prior to her appointment, Nakamura was a judge on the New Mexico Second Judicial District Court and the Bernalillo County Metropolitan Court. She received an undergraduate degree from the University of New Mexico and a J.D. from the University of New Mexico School of Law.

Under New Mexico law, state supreme court vacancies are filled through assisted gubernatorial appointment, where the governor selects a nominee based on recommendations from a judicial nominating commission. On Nov. 19, the judicial nominating commission recommended four candidates to the governor, two of which have served as District Court judges and two as Court of Appeals judges. Nakamura’s replacement will be Governor Michelle Lujan Grisham’s (D) third nominee to the five-member supreme court. The new appointee will stand for partisan election in November 2022.

As of Dec. 2, two justices of the New Mexico Supreme Court were elected in partisan elections as Democrats, two were appointed by Lujan Grisham, and one seat was vacant.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, while 21 were caused by retirements.

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Ballotpedia publishes state court partisanship study

Each state has at least one supreme court, or court of last resort. Oklahoma and Texas each have two such courts, one for civil appeals and one for criminal appeals. Ballotpedia Courts: State Partisanship—a culmination of eight months of research and compilation of raw data—supplies Partisan Confidence Scores for 341 active state supreme court justices on all 52 courts of last resort. 

We gathered a variety of data on each justice and, based on that data, placed each justice into one of five categories indicating our confidence in their affiliations with either the Democratic or Republican Parties.

These categories are Strong Democratic ConfidenceMild Democratic ConfidenceIndeterminate ConfidenceMild Republican Confidence, and Strong Republican Confidence

The study does not specifically describe the partisan affiliation of judges. We call our scores Confidence Scores because we believe they provide insight into the degree of confidence we have in each justice’s political leanings because of their previous partisan activity.

Here are some of the key findings from the study:

  1. Of the 341 justices studied, we assigned Republican scores to 178 (52.2%), Democratic scores to 114 (33.4%), and Indeterminate scores to 49 (14.4%). 
  2. Twenty-seven states (54%) have a majority of justices with Republican scores. Fifteen state supreme courts (30%) have a majority of justices with Democratic scores. Eight state supreme courts (16%) do not have a majority of justices with Democratic scores or Republican scores. 
  3. 39.9% of the population live in a state which has a majority of justices with Democratic scores on the court. 51.1% of citizens live in a state which has a majority of justices with Republican scores on the court. 9% of citizens live in a state with a split court, or a court with a majority of justices with indeterminate partisan leanings. 

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New York Court of Appeals Justice Eugene Fahey announces retirement

On November 10, 2020, State of New York Court of Appeals Justice Eugene Fahey announced his retirement from the court, scheduled for December 31, 2021, when he reaches the court’s mandatory retirement age of 70 years old.

Justice Fahey joined the State of New York Court of Appeals in 2015. He was appointed to the court by Gov. Andrew Cuomo (D).

Before serving on the state supreme court, Fahey served on the New York Supreme Court, Appellate Division from December 22, 2006, until 2015. He served on the court’s Criminal Division in 2005. Fahey was elected to the State Supreme Court in 1996, where he also presided over cases in Erie County and the 8th Judicial District. He served on the court until 2005. Fahey was elected to the Buffalo City Court in 1994 and served until 1996. He served as a law clerk to Judge Edgar C. NeMoyer in the New York Court of Claims before entering private practice in 1985, where he served as house counsel for Kemper Insurance Company until 1993. Fahey served on the Buffalo Common Council from 1978 to 1983 and again from 1988 to 1994.

Fahey earned a bachelor’s degree in political science from the State University of New York at Buffalo, cum laude, in 1974. He earned a J.D. in 1984 and a master’s degree in European history in 1998.

The seven justices of the New York Court of Appeals serve 14-year terms. They are appointed by the governor from a list of candidates provided by a judicial nominating commission, pending confirmation from the New York Senate.

The current chief justice of the court is Janet DiFiore, who was appointed by Gov. Cuomo in 2015. 

The remaining four active justices of the court are:

• Jenny Rivera – Appointed by Gov. Cuomo in 2013

• Michael Garcia – Appointed by Gov. Cuomo in 2016

• Rowan Wilson – Appointed by Gov. Cuomo in 2017

• Paul Feinman – Appointed by Gov. Cuomo in 2017

Associate Justice Leslie Stein is also scheduled to retire from the court in 2021, on June 4. At the time of the announcement, no reason was given for Stein’s retirement.

As of November 16, 2020, there are four supreme court vacancies scheduled to occur in 2021 in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were triggered by retirements.

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Justice on New York’s highest court schedules retirement

On November 3, 2020, State of New York Court of Appeals Justice Leslie Stein announced her retirement from the court, scheduled for June 4, 2021. At the time of the announcement, no reason for Stein’s retirement was given.

Justice Stein joined the State of New York Court of Appeals in 2015. She was appointed to the court by Gov. Andrew Cuomo (D).

Before serving on the state supreme court, Stein was a judge with the New York Supreme Court, Appellate Division (Third Department) from 2008 to 2015. From 2001 to 2008, she served as a judge with the New York Supreme Court 3rd Judicial District. During that time, she served as an administrative judge of the Rensselaer County Integrated Domestic Violence Part from 2006 to 2008 and as the chair of the 3rd Judicial District Gender Fairness Committee from 2001 to 2005. Stein served as a city court judge with the Albany City Court from 1997 to 2001. She also served as an acting family court judge in 2001. From 1983 to 1997, Stein worked as a private practice lawyer. In 1981, Stein worked as a confidential law clerk for the Schenectady County Family Court.

Stein earned an undergraduate degree from Macalester College in 1978. She earned a J.D. from the Albany Law School in 1981.

The seven justices of the New York Court of Appeals serve 14-year terms. They are appointed by the governor from a list of candidates provided by a judicial nominating commission, pending confirmation from the New York Senate. The New York Court of Appeals is the state’s court of last resort.

The current chief justice of the court is Janet DiFiore, who was appointed by Gov. Cuomo in 2015. 

The remaining five active justices of the court are:

  • Jenny Rivera – Appointed by Gov. Cuomo in 2013
  • Eugene Fahey – Appointed by Gov. Cuomo in 2015
  • Michael Garcia – Appointed by Gov. Cuomo in 2016
  • Rowan Wilson – Appointed by Gov. Cuomo in 2017
  • Paul Feinman – Appointed by Gov. Cuomo in 2017

As of November 9, 2020, there are three supreme court vacancies scheduled to occur in 2021 in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements.

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Illinois Supreme Court decides case allowing suspended police officers to seek backpay

On October 22, 2020, the Illinois Supreme Court decided Goral v. Dart, a case on police officers’ right to due process to claim backpay. 

The case concerned a decision regarding the legitimacy of Cook County Sheriff Tom Dart’s Merit Board. The Illinois Supreme Court upheld an appellate court’s decision which determined that officers suspended without pay could sue the sheriff’s office over the legitimacy of the merit board’s determination that those officers would be suspended without pay. The decision allows the officers to resume their case in circuit court where they may seek repayment for lost wages during their suspensions.

Justice P. Scott Neville (D) wrote the majority opinion in the case and was joined by Justices Thomas Kilbride (D) and Lloyd Karmeier (R) as well as Chief Justice Anne M. Burke (D). Justice Michael J. Burke (R) dissented, with opinion, joined by Justices Rita Garman (R) and Mary Jane Theis (D).

Attorneys Chris Cooper and Cass Casper, attorneys for the suspended police officers, said “Today Tom Dart is being told in crystal clear language that the officers are entitled to due process and entitled to their backpay.”

Sheriff’s office spokesman Matthew Walberg said, “Today’s Illinois Supreme Court decision is a catastrophic blow to law enforcement accountability… The decision rewards employees who engaged in criminal, unethical and despicable conduct at the expense of Illinois taxpayers.”

The election on November 3, 2020, will decide three seats on the Illinois Supreme Court:

  • District 1: Justices Neville is up for election. He was appointed by the Illinois Supreme Court to fill a vacancy on the court. Illinois is the only state in the country that allows the state supreme court to choose who fills a vacant seat on the court. 
  • District 3: Justice Kilbride faces a yes-no retention election to keep his seat on the state supreme court. 
  • District 5: Justice Karmeier’s seat is also up for election. Karmeier announced his retirement on December 6, 2019. 

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California governor appoints Jenkins as first nominee to state supreme court

California Gov. Gavin Newsom (D) appointed Martin Jenkins to the California Supreme Court on October 5, 2020. Pending confirmation by the state Commission on Judicial Appointments, Jenkins will succeed Justice Ming Chin, who retired on August 31, 2020. Jenkins is Newsom’s first nominee to the seven-member supreme court.

Under California law, state supreme court justices are recommended by the Commission on Judicial Nominee Evaluation to the governor. The governor then selects the new justice, who must be confirmed by the state Commission on Judicial Appointments.

Jenkins was an associate judge on the California First District Court of Appeal, Division Three, from 2008 to 2019. He was appointed by Gov. Arnold Schwarzenegger (R). He stepped down in 2019 after Gov. Newsom appointed Jenkins as judicial appointments secretary.

From 1997 to 2008, Jenkins was a judge on the U.S. District Court for the Northern District of California. President Bill Clinton (D) nominated Jenkins on July 24, 1997, to a seat vacated by Eugene Lynch. The U.S. Senate confirmed Jenkins on November 9, 1997, and he received commission on November 12. Jenkins served on the Northern District of California until his resignation on April 3, 2008.

Jenkins earned his A.A. from the City College of San Francisco in 1973, his B.A. from Santa Clara University (formerly the University of Santa Clara) in 1976, and his J.D. from the University of San Francisco School of Law in 1980.

A press release from Gov. Newsom’s office said Jenkins “would be the first openly gay California Supreme Court justice and only the third African American man ever to serve on the state’s highest court. It has been 29 years since an African American man has served on the California Supreme Court.”

The California Supreme Court is the state’s court of last resort. As of October 2020, four judges on the court were appointed by Democratic governors and two judges were appointed by Republican governors.

In 2020, there have been 21 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 20 vacancies were caused by retirements.

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Finalists for open Hawaii Supreme Court seat announced September 29, Gov. Ige to make selection by October 29

Hawaii’s judicial nominating commission published its list of four nominees for a state supreme court vacancy on September 29, 2020. The nominees are Judge Todd Eddins, David Forman, Judge Darolyn Lendio Heim, and Benjamin Lowenthal. Gov. David Ige (D) will appoint one of the four to the state supreme court with consent from the state Senate. Ige has 30 days to select his nominee after receiving the list.

The vacancy occurred when Justice Richard W. Pollack reached the mandatory retirement age of 70 years and retired on June 30, 2020. Pollack joined the court in 2012. His replacement will be the first nomination Gov. Ige makes to the five-member state supreme court. The most recent appointment to the court was made in 2014 by Ige’s predecessor, Gov. Neil Abercrombie (D).

In Hawaii, state supreme court justices are chosen through the assisted appointment method. Under this appointment method, Hawaii’s judicial nominating committee recommends four to six potential nominees to the governor, who chooses a nominee from the list. The governor’s nominee requires confirmation from the Hawaii State Senate. Justices serve 10-year terms. If they wish to serve additional terms, they must stand for retention before the state judicial nominating commission. 

Twenty-two states and the District of Columbia use the assisted appointment method for their courts of last resort. Seven states use gubernatorial or legislative appointments, 15 use nonpartisan elections, and six use partisan elections.

As of October 1, 2020, 21 state supreme court seats had been vacated in 2020, 10 vacancies had been filled, and 11 remained vacant.

Additional reading:
Assisted appointment (judicial selection)
Hawaii Supreme Court
Hawaii Judicial Selection Commission



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