TagState courts

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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Judge blocks $3,000 limit on contributions to Florida initiative campaigns during signature gathering

On July 1, U.S. District Judge Allen Winsor issued a preliminary injunction blocking the enforcement of Florida Senate Bill 1890. SB 1890 was designed to set $3,000 limits on campaign contributions to committees in support of or opposition to ballot initiatives during signature gathering. The bill was designed to lift the contribution limits after a measure is put on the ballot. It would have taken effect on July 1 without the injunction.

Winsor wrote that the state “bears the burden of justifying restrictions on political expression by advancing at least ‘a significantly important interest’ that is ‘closely drawn to avoid unnecessary abridgment of associational freedoms.’ […] Binding decisions from the U.S. Supreme Court and the 5th Circuit (Court of Appeals) applied those principles and concluded that the First Amendment forbids limitations like those SB 1890 imposes.”

Florida House Speaker Chris Sprowls (R) responded to the ruling, “The citizen initiative system was designed to be a mechanism for grassroots expression not a shortcut for billionaires to bypass the political process. SB 1890 contained limited and narrowly tailored measures to protect the integrity of the signature-gathering process.”

The Senate passed the bill 23-17 on April 14. Twenty-three Republicans were in favor, and 16 Democrats and one Republican were opposed. The House passed it 75-40 on April 26. All 75 voting Republicans were in favor, and all 40 voting Democrats were opposed. Gov. Ron DeSantis (R) signed the bill on May 7.

On May 8, the ACLU of Florida along with three initiative petition campaigns filed the lawsuit seeking a preliminary injunction. The lawsuit cited previous rulings that overturned limitations on campaign contributions for ballot measure committees, including Citizens Against Rent Control v. City of Berkeley (1981), First National Bank of Boston v. Bellotti (1978), and Buckley v. Valeo (1976). The U.S. Supreme Court has ruled in previous cases that political contributions constitute freedom of speech and cannot be limited without a compelling state interest, such as to prevent corruption and bribery. The court has also ruled that “referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.”

In Florida, initiative proponents must collect signatures equal to 8% of votes cast at the previous presidential election. The requirement to put an initiative on the 2022 ballot is 891,589 valid signatures. Florida also has a signature distribution requirement, which requires that signatures equaling at least 8% of the district-wide vote in the last presidential election be collected from at least half (14) of the state’s 27 congressional districts. Signatures remain valid until February 1 of even-numbered years and must be verified by February 1 of the targeted general election year.

In 2020, four initiatives qualified for the ballot in Florida. The petition drives to put those measures on the ballot cost an average of $6.7 million each, ranging from $4 million to $8.8 million. From 2016 through 2020, the average total cost of an initiative petition drive that successfully qualified an initiative for the ballot in Florida was $5.1 million. Nationwide, the average total cost of a successful initiative petition drive was $2.1 million in 2020. It was $1.2 million in 2018. In Florida, the petition drives that put the four initiatives that were on the ballot in 2020 were each funded by one donor or entities that were all associated.

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Texas Supreme Court justice resigns, creates midterm vacancy

Texas Supreme Court Justice Eva Guzman retired from her seat on the state’s highest court effective Friday, June 11. Her resignation letter to Texas Gov. Greg Abbott (R) did not provide a reason for her departure. Guzman’s replacement will be Gov. Abbott’s fifth nominee to the nine-member supreme court.

Under Texas law, in the event of a midterm vacancy, the governor appoints a replacement. The Texas State Senate must then confirm the nominee. Appointees serve until the next general election, in which he or she must participate in a partisan election to remain on the bench for the remainder of the unexpired term.

Guzman joined the Texas Supreme Court in 2009. She was appointed by former Gov. Rick Perry (R).

Guzman was the first Hispanic woman appointed to the state’s highest court. Upon winning election to the seat in 2010, she became the first Hispanic woman elected to statewide office in Texas. Prior to her appointment to the supreme court, Guzman served as a district judge for Texas’ 309th District Court and as an appellate judge for Texas’ Fourteenth Court of Appeals. She practiced law as a litigator in Houston before becoming a judge. Guzman earned a bachelor’s degree from the University of Houston, a J.D. from the South Texas College of Law, and an LL.M. from Duke University School of Law.

Following Guzman’s retirement, the Texas Supreme Court includes the following members:

• Nathan Hecht, appointed by Perry in 2013

• Jimmy Blacklock, appointed by Abbott in 2018

• Debra Lehrmann, appointed by Perry in 2010

• John Devine, elected in 2012

• Rebeca Huddle, appointed by Abbott in 2020

• Jane Bland, appointed by Abbott in 2019

• Jeffrey S. Boyd, appointed by Perry in 2012

• Brett Busby, appointed by Abbott in 2019

All current members of the court identify as Republicans.

In 2021, there have been 13 supreme court vacancies in 11 of the 29 states where replacement justices are appointed instead of elected. The vacancies have been caused by retirements.

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Texas Supreme Court Justice Eva Guzman resigns

Texas Supreme Court Justice Eva Guzman resigned on June 11, 2021. Guzman’s replacement will be Gov. Greg Abbott’s (R) fifth nominee to the nine-member supreme court. At the time of Guzman’s resignation, all nine judges on the court identified with the Republican party. 

Guzman was appointed to the court by Gov. Rick Perry (R) in 2009. She was elected to a full term in 2010, becoming the first Latina woman elected to statewide office in Texas. Guzman was re-elected in 2016, defeating Democrat Savannah Robinson, 56% to 39%.

Before she was appointed to the state supreme court, Guzman served as a district judge for Texas’ 309th District Court and as an appellate judge for Texas’ Fourteenth Court of Appeals.

The Texas Supreme Court is the state’s court of last resort for civil matters and has nine judgeships. Under Texas law, in the event of a midterm vacancy, the governor appoints a replacement. The appointment is subject to confirmation from the Texas State Senate. Once confirmed, the judge will serve until the next general election, at which point they must run in a partisan election to remain on the bench for the rest of the unexpired term.

In 2021, there have been 13 supreme court vacancies in 11 of the 29 states where replacement justices are appointed instead of elected.

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Stanfill confirmed as Maine supreme court’s chief justice

The Maine State Senate confirmed Valerie Stanfill as the chief justice of Maine’s highest court on June 3. Gov. Janet Mills (D) appointed Stanfill to the Maine Supreme Judicial Court on May 10 to fill a vacancy created when former Chief Justice Leigh Saufley retired in April 2020. The Maine State Senate was required to confirm Stanfill’s appointment.

Stanfill previously served on the Maine Superior Court from February 2020 until her confirmation to the supreme court. She served on the Maine District Court from January 2007 to February 2020. Stanfill’s career experience before becoming a judge included working as an acting director with the Cumberland Legal Aid Clinic, a visiting clinical professor of law with the University of Maine School of Law, and an attorney in private practice.

Stanfill earned a bachelor’s degree from Bryn Mawr College and a J.D., magna cum laude, from the University of Maine School of Law.

Stanfill joins six other justices on the seven-member court:

• Catherine Connors – appointed by Gov. Janet Mills (D) in 2020

• Ellen Gorman – appointed by Gov. John Baldacci (D) in 2007

• Andrew Horton – appointed by Gov. Mills in 2020

• Thomas Humphrey – appointed by Gov. Paul LePage (R) in 2015

• Joseph Jabar – appointed by Gov. Baldacci in 2009

• Andrew Mead – appointed by Gov. Baldacci in 2007

In 2020, there were 23 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. So far in 2021, there have been 11 supreme court vacancies in nine of those 29 states.

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Missouri governor appoints Robin Ransom to state supreme court

Missouri Gov. Mike Parson (R) appointed Robin Ransom to the Missouri Supreme Court on May 24. Ransom was appointed to fill the vacancy left by Laura Denvir Stith, who retired on March 8. Ransom is Parson’s first appointee to the state’s highest court.

Under Missouri law, the Missouri Appellate Judicial Commission selects supreme court judges according to the Missouri Plan. When a seat on the court becomes vacant, the commission submits three names to the governor to determine the replacement. If the governor fails to nominate a replacement from the list, the responsibility goes to the commission.

Ransom has served as a judge of the Missouri Court of Appeals Eastern District since her appointment to that court by Gov. Parson in January 2019. Ransom previously served as a circuit court judge for the 22nd Circuit Court in Missouri. Governor Matt Blunt (R) appointed her to the position on Sept. 11, 2008, and she was retained by voters in 2010 and 2016. Ransom earned a B.A. in political science and sociology from Rutgers University’s Douglass College in 1988 and a J.D. from the University of Missouri-Columbia School of Law in 1991.

In 2021, there have been 11 supreme court vacancies in nine of the 29 states where replacement justices are appointed instead of elected. The vacancies have all been caused by retirements.

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Pennsylvania statewide election passed

The statewide primary for Pennsylvania was held on May 18. Candidates competed to advance to the general election scheduled for Nov. 2. Four state legislative special general elections were also on the ballot.

Candidates ran in elections for the following offices: 

  • Four state legislative special elections
    • State Senate Districts 22 and 48 and state House Districts 59 and 60. One Democratic candidate won election in Senate District 22. The other three seats were won by Republican candidates. No seats were flipped.
  • Pennsylvania Supreme Court (one seat)
    • Democrat Maria McLaughlin was unopposed and advanced to the general election. She faces Republican Kevin Brobson, who defeated two challengers in the primary. Justice Thomas Saylor (R) was not able to file for retention due to Pennsylvania’s mandatory retirement age.
  • Pennsylvania Superior Court (one seat)
    • Democrat Timika Lane advanced after defeating two challengers in the primary. Republican Megan Sullivan advanced unopposed.
  • Pennsylvania Commonwealth Court (two seats)
    • Democrat Lori A. Dumas was one of two projected winners in the Democratic primary. Democratic candidates Amanda Green-Hawkins and David Spurgeon were too close to call for the second seat as of May 20. Republicans Andrew Crompton and Stacy Wallace advanced to the general election without opposition.

Ballotpedia also covered local elections in the following areas: 

  • Harrisburg
  • Philadelphia
  • Pittsburgh
  • Allegheny County
  • Pittsburgh Public Schools

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Annette Ziegler becomes chief justice of the Wisconsin Supreme Court

Annette Ziegler became chief justice of the Wisconsin Supreme Court on May 1, beginning a two-year term in that role. Ziegler succeeds Patience Roggensack, who had served as chief justice since April 2015.

Ziegler was first elected to the court in 2007. She previously served as a Washington County Circuit Court judge, becoming the first female judge in that county.

Justices on the Wisconsin Supreme Court are officially nonpartisan. Ballotpedia’s State Court Partisanship Study identifies Ziegler as a mild Republican.

Until 2015, the justice with the longest continuous service on the Wisconsin Supreme Court served as the chief justice, unless that justice declined (in which case the role passed to the next senior justice of the court). Voters passed a state constitutional amendment in April of that year that changed the selection method to a vote by current justices. 

Chief justices in Wisconsin and 22 other states are selected by chamber vote. Fourteen (14) states select chief justices by appointment, seven by popular vote, and six by seniority.

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The Florida Supreme Court blocks marijuana legalization initiative from 2022 ballot

On April 22, 2021, the Florida Supreme Court ruled 5-2 that a marijuana legalization initiative backed by Make It Legal Florida could not appear on the 2022 ballot. The court wrote, “A constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law. And a ballot summary suggesting otherwise is affirmatively misleading.” Justices Jorge Labarga and Alan Lawson dissented. Lawson said, “Because the ballot summary in this case complies with the constitutional and statutory requirements by which we are to judge ballot summaries, I would apply our precedent and approve this measure for placement on the ballot.”

The measure would have added a section to the Florida Constitution that legalized the personal possession, use, and purchase of 2.5 ounces of marijuana and allowed Medical Marijuana Treatment Centers to sell marijuana for personal use to adults 21 years or older.

Make It Legal Florida filed the initiative in September 2019 targeting the 2020 ballot. Proponents submitted 76,632 valid signatures on November 19, 2019, thereby qualifying for a ballot language review by the Florida Supreme Court. On January 13, 2020, Make it Legal Florida announced that it would attempt to qualify the measure for the 2022 ballot rather than the 2020 ballot.

To place a constitutional amendment on the ballot, proponents must collect signatures equal to 8% of the total number of votes cast in the last presidential election. In 2020, this number was 766,200, with 76,632 required for a ballot language review. Based on the 2020 elections, the requirements increased to 891,589, with 89,159 required for a ballot language review. Signatures must be verified by February 1, 2022, to qualify for the November 2022 ballot.

Make it Legal Florida had submitted 556,049 valid signatures according to the Division Elections Website as of April 22, 2021.

Fourteen initiative campaigns are actively circulating targeting the 2022 ballot according to the Division of Elections website as of April 22, 2021. No campaigns besides the marijuana legalization initiative had yet collected enough signatures to qualify for a ballot language review.

On April 8, 2020, Florida Governor Ron DeSantis (R) signed Senate Bill 1794, which, among other things, required the Florida Supreme Court to review whether a proposed amendment is “facially invalid under the United States Constitution” in addition to existing requirements for reviewing the ballot title and reviewing the initiative for compliance with the state’s single-subject rule. Florida Attorney General Ashley Moody (R), the Florida House and Senate, and the Florida Chamber of Commerce filed briefs with the state supreme court arguing that the marijuana legalization measure is invalid because it violates federal law. The Florida Supreme Court, however, declined to rule on the issue of whether the measure is valid under the US Constitution under SB 1794 because it blocked the measure based on the ballot summary.

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