TagState courts

West Virginia enacts law creating intermediate appellate court

Governor Jim Justice (R) signed SB 275 into law on April 9 which provides guidelines for creating the West Virginia Intermediate Court of Appeals, effective June 30, 2021. Previously, West Virginia’s state courts included a state supreme court of appeals and trial courts with both general and limited jurisdiction.

According to Metro News, a 2009 judicial reform panel recommended the creation of an intermediate court. West Virginia is one of nine states without an intermediate appellate court, and the supreme court of appeals serves as the only appellate court.

As outlined in SB 275, the court will consist of three judges elected to 10-year terms. The first three judges will be appointed, with the first judicial election being held in 2024. These elections will be nonpartisan.

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Spring elections held in Wisconsin

The statewide nonpartisan general election for Wisconsin was held on April 6. The primary was held on February 16, and the filing deadline to run passed on January 5. Candidates ran in elections for special elections in the Wisconsin State Legislature, three judgeships on the Wisconsin Court of Appeals, and in municipal and school board elections.

Wisconsin State Legislature

• State Senate District 13: John Jagler (R) defeated four candidates to win the special election, winning 51.2% of the total (37,385) reported votes. The seat became vacant after incumbent officeholder Scott Fitzgerald (R) was elected to the U.S. House to represent Wisconsin’s 5th Congressional District on Nov. 3. Fitzgerald vacated his seat on Jan. 1.

• State Assembly District 89: Elijah Behnke (R) defeated challenger Karl Jaeger (D) to win the special election. Behnke received 60.3% of the total (8,413) votes, while Jaeger received 39.7% of the votes. The seat became vacant on Dec. 2, after John Nygren (R) resigned his seat to work in the private sector.

Wisconsin Court of Appeals

• In District 1, Judge Maxine A. White won re-election unopposed.

• In District 2, Judge Jeffrey Davis was defeated by challenger Shelley Grogan.

• In District 3, newcomer Greg Gill Jr. defeated Rick Cveykus.

Ballotpedia also covered local elections in the following areas:

• Dane County and Milwaukee County

• The cities of Madison and Milwaukee

• DeForest Area School District

• Madison Metropolitan School District

• McFarland School District

• Middleton-Cross Plains School District

• Milwaukee Public Schools

• Sun Prairie Area School District

• Verona Area School District

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Maryland voters will decide whether to rename the Maryland Court of Appeals and the Maryland Court of Special Appeals in 2022

On April 6, the Maryland State Legislature referred a constitutional amendment to the November 2022 ballot that would rename the Maryland Court of Appeals to the Supreme Court of Maryland and the Maryland Court of Special Appeals to the Appellate Court of Maryland. It would also change the name of a Judge of the Court of Appeals to a Justice of the Supreme Court of Maryland and the name of the Chief Judge of the Court of Appeals to the Chief Justice of the Supreme Court of Maryland. The measure would also amend the gendered language to be gender-neutral in the articles of the Maryland Constitution that would be amended.

In a hearing on the bill, Chief Judge of the Court of Appeals Mary Ellen Barbera said, “There is confusion from beyond the borders of our state as lawyers, law students and litigants research, contact and even file papers with the wrong court. That same confusion persists among Marylanders.”

To put a legislatively referred constitutional amendment before voters, a 60% vote is required in both the Maryland State Senate and the Maryland House of Representatives.

This amendment was introduced as House Bill 885 (HB 885) on January 29, 2021, by Delegate Ron Watson (D). It was approved in the state House by a vote of 125-10 on March 21, 2021. On April 6, 2021, the Maryland State Senate approved the amendment by a vote of 40-7.

The Maryland Court of Appeals is the state’s court of last resort and has seven judgeships. The Maryland Court of Special Appeals is the intermediate appellate court in Maryland. Judges are appointed to serve 10-year terms with confirmation from the Maryland State Senate. The seven judges of the Maryland Court of Appeals are appointed by the governor from a list submitted by a judicial nominating commission and are subject to state Senate confirmation. After serving for at least one year, judges must stand in yes-no retention elections to determine whether they will remain on the court. Maryland has a mandatory retirement age for all judges of 70 years.

From 1996 through 2020, 33 of 36 (92%) statewide measures in Maryland were approved, and three of 36 (8%) were defeated.

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Arizona Supreme Court Justice Andrew Gould retires

Andrew Gould retired as an associate justice of the Arizona Supreme Court on April 1. He had announced that he would retire from the court on March 12.

Governor Doug Ducey (R) appointed Gould to the state supreme court on Nov. 28, 2016, after a new bill expanded the court from five justices to seven. Gould won a retention election in 2020, receiving 68.1% of the vote. His current term would have expired in January 2027.

Ducey will appoint a replacement justice to the state supreme court to fill this vacancy. Newly-appointed judges must stand for retention to remain on the court during the next general election after they serve at least two years on the bench.

The Arizona Supreme Court is the state’s court of last resort. Republican governors appointed all seven judges on the court. Governor Ducey appointed five, and former Gov. Janice Kay Brewer (R) appointed two.

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New York Court of Appeals justice retires, creating midterm vacancy

On March 23, 2021, State of New York Court of Appeals Justice Paul Feinman retired from the court, citing health concerns. 

Justice Feinman joined the State of New York Court of Appeals in 2017. He was appointed to the court by Gov. Andrew Cuomo (D). Feinman was the first openly gay judge confirmed to serve on the state’s highest court.

Before serving on the state supreme court, Feinman was a judge with the New York County Supreme Court, Civil Term in the 1st Judicial District from 2008 to 2017. He was also appointed to the New York Supreme Court, Appellate Division, First Department in 2012. From 1996 to 1997 and again in 2001 to 2003, Feinman served as a judge with the New York City Civil Court. From 1997 to 2000, he served as a judge with the New York City Criminal Courts.

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 other 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

• Leslie Stein – Appointed by Gov. Cuomo in 2015

Justice Leslie Stein is scheduled to retire from the court on June 4, 2021, and Justice Eugene Fahey has scheduled his retirement for December 31, 2021.

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 been caused by retirements. 

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In four states, no state or federal officials have tested positive for COVID-19

Between the start of the coronavirus pandemic and March 18, 2021, no elected or appointed state or federal officials announced positive COVID-19 test results in four states—Delaware, Maryland, Oregon, and Vermont. In the 46 other states, Ballotpedia has identified at least one COVID-19 positive state or federal official within our coverage scope. State and federal officials include members of Congress, state legislators, and state executive officeholders.

The first COVID-19 positive state officials identified by Ballotpedia were New York state Reps. Helene Weinstein (D) and Charles Barron (D), who announced positive test results on March 14, 2020. The first members of Congress to test positive were Reps. Ben McAdams (D-Utah) and Mario Diaz-Balart (R-Fl.), who made their announcements March 18.

Since then, Ballotpedia has identified 215 candidates and officials diagnosed with COVID-19 at the state level, and 69 candidates and officials with COVID-19 at the federal level.

The state with the highest number of publicly identified COVID-19 state and federal officials is Pennsylvania, where two U.S. House members, the governor, and 17 members of the state legislature have tested positive since March 2020.

To read more about federal, state, and local officials and candidates affected by COVID-19, click the link below.

Michigan Court of Claims invalidates absentee/mail-in ballot rule as improperly established

On March 9, 2021, Michigan Court of Claims Judge Christopher Murray invalidated an absentee/mail-in ballot rule instituted by Secretary of State Jocelyn Benson (D) in the run-up to the November 3, 2020, general election. Murray held that Benson’s rule, which directed local clerks to presume validity when verifying signatures on absentee/mail-in ballot applications and return envelopes, had been issued in violation of the Administrative Procedures Act (APA).

Benson’s guidance, issued on October 6, 2020, directed local clerks to treat signatures as valid if there are “any redeeming qualities in the application or return envelope signature as compared to the signature on file.” “Redeeming qualities” are described as including, but not being limited to, “similar distinctive flourishes” and “more matching features than non-matching features.” Allegan County Clerk Robert Genetski and the Republican Party of Michigan filed suit against Benson, alleging that her guidance violated the state’s election laws and the Administrative Procedures Act. The plaintiffs asked that the court strike down the guidance as unlawful and enjoin its enforcement in future elections.

Murray sided with the plaintiffs, finding that Benson’s guidance was in fact a rule “that should have been promulgated in accordance with the APA. And absent compliance with the APA, the ‘rule’ is invalid.” Under the Administrative Procedures Act, a state agency is required to follow formal rulemaking procedures (e.g., when establishing policies that “do not merely interpret or explain the statute of rules from which the agency derives its authority,” but rather “establish the substantive standards implementing the program.”)

It is unclear whether the state will appeal Murray’s decision.

Background: Last year, 39 states, including Michigan, modified their administrative and/or statutory election procedures ahead of the general election. These modifications (and, in some cases, the lack thereof) triggered a wave of litigation activity. In the run-up to the general election, there were at least 425 lawsuits, and subsequent appeals, filed, 242 of which dealt primarily with absentee/mail-in voting procedures. Although courts issued orders in most of these cases before November 3, 2020, they did not necessarily make final rulings on the questions of law presented in those cases. Murray’s ruling is an example of a post-2020 court action addressing the ultimate legality of policies implemented in 2020. Although a ruling like this one will not have an effect on the 2020 election, it will bear on the conduct of future elections.

Other recent examples of noteworthy post-2020 court actions include the following:

• Virginia: On January 13, 2021, Judge William Eldridge signed a consent decree between the parties in Reed v. Virginia Department of Elections. One of the conditions of the agreement was that the Virginia Department of Elections rescind an administrative rule, which was in place during the 2020 election cycle, that allowed for absentee/mail-in ballots returned with illegible postmarks to be counted, provided that the ballots were signed on or before Election Day.

• Arizona: Earlier this month, Maricopa County Superior Court Judge John Hannah ordered the Republican Party of Arizona to pay the Office of the Arizona Secretary of State $18,238 in legal fees, finding that the party had acted “in bad faith” in filing a lawsuit last year to postpone certification of the state’s election results. An attorney for the Arizona GOP said the party would appeal Hannah’s order.

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New Jersey Supreme Court justice schedules retirement

New Jersey Supreme Court Justice Jaynee LaVecchia scheduled her retirement for August 31, 2021. LaVecchia’s replacement will be Governor Phil Murphy’s (D) second nominee to the seven-member supreme court.

Under New Jersey law, when a vacancy occurs, justices of the New Jersey Supreme Court are nominated by the governor. One week after the public notice is issued by the governor, the nominees must be confirmed by the New Jersey State Senate. Newly appointed judges serve for seven years, after which they may be reappointed to serve until age 70, the mandatory retirement age.

Justice LaVecchia joined the New Jersey Supreme Court in 2000. She was appointed to the court by Governor Christine Todd Whitman (R).

Before serving on the state supreme court, LaVecchia served as the New Jersey Commissioner of Banking and Insurance from August 24, 1998, until the time of her judicial appointment. She served as a Law Division Director with the Department of Law and Public Safety from 1994 to 1998. She served as a director and as a chief administrative law judge for the Office of Administrative Law from 1989 to 1994. She also served as an assistant counsel and as a deputy chief counsel with the Office of Counsel to Gov. Thomas Kean (R).

Following LaVecchia’s retirement, the New Jersey Supreme Court will include the following members:

Chief Justice Stuart Rabner, appointed by Gov. Jon Corzine (D) in 2007

Justice Fabiana Pierre-Louis, appointed by Gov. Phil Murphy (D) in 2020

Justice Barry Albin, appointed by Gov. James McGreevey (D) in 2002

Justice Anne Patterson, appointed by Gov. Chris Christie (R) in 2010

Justice Faustino J. Fernandez-Vina, appointed by Gov. Chris Christie (R) in 2013

Justice Lee A. Solomon, appointed by Gov. Chris Christie (R) in 2014

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

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Former N.H. Attorney General Gordon MacDonald sworn in as chief justice of state Supreme Court

Former Attorney General Gordon MacDonald was sworn in to the New Hampshire Supreme Court on March 4. He was nominated by Gov. Chris Sununu (R) on Jan. 7 to succeed Robert Lynn, and the New Hampshire Executive Council voted 4-1 to confirm his nomination on Jan. 22. All four Republican members of the executive council voted to confirm. The only vote against confirmation was from Cinde Warmington (D).

The New Hampshire Executive Council is a five-member state executive board that oversees the state budget and approves gubernatorial appointments. Following the 2020 elections, the executive council switched from Democratic to Republican control. 

Gov. Sununu previously nominated MacDonald to succeed Robert Lynn as chief justice in June 2019, when the executive council was still under Democratic control. However, the council voted 3-2 along party lines to reject MacDonald’s nomination.

Robert Lynn was the chief justice of the Supreme Court from Feb. 6, 2018, until his retirement on Aug. 23, 2019. His seat on the court remained vacant until MacDonald joined the court.

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Georgia Supreme Court chief justice announces 2021 retirement

Georgia Supreme Court Chief Justice Harold Melton scheduled his retirement from the bench for July 1, 2021. Melton said he would begin his post-retirement planning following this announcement. Melton’s replacement will be Governor Brian Kemp’s (R) third nominee to the nine-member supreme court.

Under Georgia law when an interim vacancy occurs, the seat is filled using the assisted appointment method of judicial selection. The governor selects the interim justice from a slate of candidates provided by the Georgia Judicial Nominating Commission. The commission recommends at least five candidates to the governor unless fewer than five applicants are found to be qualified. There is no requirement that the governor appoint a candidate from the nominating commission’s list.

Chief Justice Melton joined the Georgia Supreme Court in 2005. He was appointed to the court by Governor Sonny Perdue (R).

Before serving on the state supreme court, Melton began his legal career in the Georgia Department of Law. He went on to serve as a section leader with the Consumer Interests Division. He also served as executive counsel to Gov. Perdue.

Following Melton’s retirement, the Georgia Supreme Court will include the following members:

• Michael P. Boggs: appointed by Gov. Nathan Deal (R) in 2017

• David Nahmias: appointed by Gov. Sonny Perdue (R) in 2009

• Nels Peterson: appointed by Gov. Nathan Deal (R) in 2016

• Charlie Bethel: appointed by Gov. Nathan Deal (R) in 2018

• John Ellington: elected in 2018

• Carla W. McMillian: appointed by Gov. Brian Kemp (R) in 2020

• Sarah Warren: appointed by Gov. Nathan Deal (R) in 2018

• Shawn LaGrua: appointed by Gov. Brian Kemp (R) in 2020

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

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