TagState courts

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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Idaho Supreme Court justice announces retirement

Idaho Supreme Court Justice Roger Burdick is retiring on June 30, 2021. He was appointed to this position in 2003 by Republican Gov. Dirk Kempthorne and retained by voters in 2004, 2010 and 2016. His current term would have expired in January 2023. Burdick’s replacement will be Republican Governor Brad Little’s first appointment to the supreme court. 

Under Idaho law, the Idaho Judicial Council selects supreme court justices to fill vacancies. When a seat on the court becomes vacant, the commission submits two to four names to the governor to determine the replacement. The justice selected by the governor will complete Justice Burdick’s term which ends in January 2023. A nonpartisan election to elect a justice for the next six-year term will be held in May 2022.

Following Burdick’s retirement, the Idaho Supreme Court will include the following members:

G. Richard Bevan – appointed by Gov. Butch Otter (R) in 2017.

Gregory W. Moeller – appointed by Gov. Butch Otter (R) in 2018.

Robyn Brody – elected in 2016 to an open seat on the court.

John R. Stegner – appointed by Gov. Butch Otter (R) in 2018.

Before Burdick’s retirement, a Republican governor appointed four justices to fill vacancies on the court and one justice was elected. The state of Idaho holds nonpartisan elections for seats on the supreme court. 

In 2020, the Idaho Supreme Court ruled unanimously in 91.5% of the cases they heard. Justices dissented in 12 of the 140 cases heard by the court and ruled unanimously in the other 128.

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SEIU asks California Supreme Court to declare Proposition 22 unconstitutional

The Service Employees International Union (SEIU) and four app-based drivers sued the state government in the California Supreme Court on January 12, 2021. The SEIU is seeking to have Proposition 22 declared unconstitutional and unenforceable.

Proposition 22 was approved at the election on November 3, 2020, with 58.6% of the vote. The ballot initiative defined app-based transportation (rideshare) and delivery drivers as independent contractors and not employees or agents. The ballot measure overrode Assembly Bill 5 (AB 5), signed in September 2019, on the question of whether app-based drivers are employees or independent contractors.

In October 2020, the California First District Court of Appeal ruled that Lyft and Uber were misclassifying their drivers as contractors but gave the companies 30 days to implement changes unless Proposition 22 was approved.

DoorDash, InstaCart, Lyft, Postmates, and Uber funded the campaign Yes on Proposition 22, which received $203.0 million in contributions. Opponents of Proposition 22 received $19.7 million, and the top-five donors were labor unions, including the SEIU Local 721, SEIU Local 1021, and SEIU-UHW West. With $225.0 million between supporters and opponents, Proposition 22 was the most expensive ballot measure in California history, surpassing the next closest measure by $70.5 million. 

Following the announcement of litigation against Proposition 22, Bob Schoonover, president of SEIU California, said, “Prop. 22 doesn’t just fail our state rideshare drivers, it fails the basic test of following our state constitution. The law as written by Uber and Lyft denies drivers rights under the law in California and makes it nearly impossible for lawmakers to fix these problems.” Kathy Fairbanks, a spokesperson for Yes on Proposition 22, provided a statement from an app-based driver, which said, “Meritless lawsuits that seek to undermine the clear democratic will of the people do not stand up to scrutiny in the courts.”

Petitioners argued that Proposition 22 violates Section 4 of Article XIV of the California Constitution, which “grants to the Legislature ‘plenary power, unlimited by any provision of this Constitution’ to establish and enforce a complete system of workers’ compensation.” Proposition 22, according to the petitioners, removed app-based drivers from the state’s system of workers’ compensation and therefore limited the legislature’s constitutional power to extend workers’ compensation benefits to app-based drivers. Petitioners also argued that Proposition 22 violated the single-subject rule for initiatives and included a definition of the word ‘amendment’ that is too expansive and “impermissibly usurped this Court’s authority to ‘say what the law is’ by determining what constitutes an ‘amendment'”, and “impermissibly invaded the Legislature’s broad authority to legislate in areas not substantively addressed by the initiative.”

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State supreme court vacancies in 2021

So far in 2021, there have been two new state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies have both been caused by retirements. 

In Colorado, Chief Justice Nathan Coats retired on January 1, when he reached the mandatory retirement age of 72. Colorado Governor Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter is Polis’ first nominee to the seven-member supreme court. In South Dakota, Chief Justice David Gilbertson retired in early January, when he reached the mandatory retirement age of 70 years old. South Dakota Gov. Kristi Noem (R) appointed Scott P. Myren to the South Dakota Supreme Court on October 28, 2020.

Currently, Maine is the only appointment state which had a vacancy in 2020 which has yet to be filled.

Three more states will see vacancies from retirement on their state supreme courts in 2021:

• Joel Bolger, June 30, 2021, Alaska

• Leslie Stein, June 4, 2021, New York

• Eugene Fahey, December 31, 2021, New York

In Alaska, the vacancy will be filled by Republican Governor Mike Dunleavy. Both of the vacancies on the New York Supreme Court will be filled by Democratic Governor Andrew Cuomo.

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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.

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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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