TagState courts

Death of Massachusetts chief justice creates second vacancy on state supreme court

Image of the John Adams Courthouse in Massachusetts

Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants died while in office on September 14, 2020, causing a second vacancy in the state’s court of last resort. The other vacancy will occur on December 1, 2020, when Supreme Judicial Court Justice Barbara Lenk is scheduled to retire from the court, one day prior to reaching the court’s mandatory retirement age of 70 years old.

Chief Justice Gants was appointed to the Massachusetts Supreme Judicial Court by Governor Deval Patrick (D) in 2008 to replace retired Justice John Greaney. Gants assumed office on January 29, 2009. On April 17, 2014, Justice Gants was nominated by Gov. Patrick to serve as the chief justice of the court, effective following Chief Justice Roderick Ireland’s retirement on July 25, 2014. Gants’ term was scheduled to expire in 2024.

Chief Justice Gants earned a bachelor’s degree from Harvard College in 1976. He earned a diploma in criminology at Cambridge University in England. He earned a J.D. from Harvard Law School in 1980. Gants served as a note editor with the Harvard Law Review.

The seven justices of the Massachusetts Supreme Judicial Court are appointed by the governor and approved by the governor’s council. The Governor’s Council, also referred to as the Executive Council, is a governmental body that is constitutionally authorized to approve judicial appointments. The council consists of eight members who are elected every two years from each of the eight council districts. Massachusetts Supreme Judicial Court justices hold tenured appointments until they reach 70 years old, the age of mandatory retirement.

Founded in 1692, the Massachusetts Supreme Judicial Court is the state’s court of last resort and has seven judgeships. The court is the oldest continuously functioning appellate court in the Western Hemisphere. Originally called the Superior Court of Judicature, it was established in 1692. The court was renamed the Massachusetts Supreme Judicial Court by the Massachusetts Constitution of 1780.

Following Gants’ death, the Massachusetts Supreme Judicial Court included the following members:
• Barbara Lenk – Appointed by Gov. Deval Patrick (D) in 2011
• Frank M. Gaziano – Appointed by Gov. Charlie Baker (R) in 2016
• David A. Lowy – Appointed by Gov. Baker (R) in 2016
• Kimberly S. Budd – Appointed by Gov. Baker (R) in 2016
• Elspeth Cypher – Appointed by Gov. Baker (R) in 2017

• Scott Kafker – Appointed by Gov. Baker (R) in 2017

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. Twelve vacancies are in states where a Democratic governor appoints the replacement. Eight are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.

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Arizona judge declines to rule on constitutional challenge to agency adjudication process

Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.

McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.

Mr. B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.

Gerlach declined to rule on the constitutional challenges raised by Mr. B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”

Mr. B. plans to appeal the decision.

“The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”

Read more about the case in the September 2019 edition of Checks and Balances: The Checks and Balances Letter: September 2019

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Three Maryland Court of Appeals justices seek retention in November

Maryland Court of Appeals Justices Brynja McDivitt Booth, Jonathan Biran, and Mary Ellen Barbera are all seeking retention on November 3, 2020. Booth and Biran were appointed by Gov. Larry Hogan (R) while Barbera was appointed by Gov. Martin O’Malley (D).

Currently, three of the seven justices on the court were appointed by a Democratic governor while four were appointed by a Republican governor.

The governor appoints the seven justices of the appellate court with the assistance of a judicial nominating commission. The Maryland Appellate Courts Judicial Nominating Commission is made up of 17 members, all appointed by the governor. Five of these members are first nominated by the Maryland State Bar Association. After the governor appoints a justice, the Maryland Senate must then confirm the appointment.

New justices must face a retention election during the next general election after they serve at least one year on the bench. Justices then stand for retention every ten years with a mandatory retirement age of 70. Since 2008, justices facing retention elections have won 98% of the time. In Maryland, there has not been a single justice that lost retention during this same time frame.

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Florida Supreme Court nullifies appointment, orders governor to select new nominee

Five members of the Florida Supreme Court unanimously ruled against the appointment of Renatha Francis. Justice John Couriel recused himself. The court ordered Gov. Ron DeSantis (R) to select a new nominee from a list of seven recommended by a judicial nominating commission.

Gov. Ron DeSantis (R) had appointed Francis to the state supreme court on May 26, 2020, to succeed Robert Luck. In July, State Rep. Geraldine Thompson (D-District 44) filed a lawsuit challenging the appointment. Thompson argued Francis was unqualified because she had not been a member of the Florida Bar for the amount of time (10 years) required under the Florida Constitution. Francis will reach the 10-year membership requirement on September 24, 2020.

The court held that Francis was not eligible because she did not meet the eligibility requirements under the state constitution. It also held the governor violated the 60-day deadline for filling state supreme court vacancies provided by the state constitution. “The Governor has not satisfied his legal obligation to fill the vacancy by making a constitutionally valid appointment. … The Governor has not complied with the constitution’s clear commands,” the court wrote. DeSantis has until September 14, 2020, to select a replacement.

The Florida Supreme Court is the state’s court of last resort. Justices are chosen through a process of assisted appointment whereby a judicial nominating commission screens potential judicial candidates and submits a list of nominees to the governor. The governor must appoint a judge from this list. Newly appointed judges serve for at least one year, after which they appear in a yes-no retention election held during the next general election. If retained, judges serve six-year terms.

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Two Colorado Supreme Court justices seek retention in November

Colorado Supreme Court Justices Melissa Hart and Carlos Armando Samour Jr. are standing for retention election on November 3, 2020. Both justices were appointed by Gov. John Hickenlooper (D).

Currently, six of the seven justices on the court were appointed by a Democratic governor. Of those, five were appointed by Hickenlooper.

• Brian Boatright Appointed by Gov. John Hickenlooper (D) in 2011
• Nathan Coats Appointed by Gov. Bill Owens (R) in 2000
• Richard Gabriel Appointed by Gov. John Hickenlooper (D) in 2015
• Melissa Hart Appointed by Gov. John Hickenlooper (D) in 2017
• William W. Hood Appointed by Gov. John Hickenlooper (D) in 2014
• Monica Márquez Appointed by Gov. Bill Ritter (D) in 2010

• Carlos Armando Samour Jr. Appointed by Gov. John Hickenlooper (D) in 2018

The governor appoints justices to the court from a shortlist of two or three names assembled by the Colorado Judicial Nominating Convention. The convention is composed of 15 voting members. Eight are non-lawyers appointed by the governor and seven are lawyers jointly appointed by the governor, attorney general, and chief justice. No more than half the members of the committee plus one may belong to the same political party.

New justices must face a retention election during the next general election after they serve at least two years on the bench. Justices then stand for retention every ten years. Since 2008, justices facing retention elections have won 98% of the time. In Colorado, there has not been a single justice that lost retention during this same time frame.

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One Utah Supreme Court justice seeks retention in November

Utah Supreme Court Justice John A. Pearce is standing for retention election on November 3, 2020. Pearce was appointed by former Utah Governor Gary Herbert (R).

Herbert appointed four of the five justices currently sitting on the court. Gov. Michael Leavitt (R) appointed the other.

The governor of Utah appoints the five justices of the supreme court with the assistance of the Utah Judicial Nominating Commission. The governor has majority control over membership on the seven-member judicial nominating commission. The governor appoints six of these members, no less than two and no more than four of whom may be lawyers. Two of the lawyer members must be appointed from a list of nominees submitted by the Utah State Bar. The Utah Supreme Court Chief Justice appoints the final member of the commission, who does not vote.

New justices must face a retention election during the next general election after they serve at least three years on the bench. Justices then stand for retention every ten years. Since 2008, justices facing retention elections have won 98% of the time. In Utah, there has not been a single justice that lost retention during this same time frame.

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Fabiana Pierre-Louis confirmed to state Supreme Court by New Jersey Senate

On August 26, 2020, Justice Walter Timpone announced that he planned to retire early from the New Jersey Supreme Court if supreme court nominee Fabiana Pierre-Louis was confirmed by the Senate before September. On August 27, 2020, the New Jersey Senate voted 39-0 to approve Pierre-Louis.

Pierre-Louis is Governor Phil Murphy’s (D) first nominee to the supreme court. Because Justice Timpone will reach the age of 70 this year, he must retire due to a provision in the state’s constitution.

In the case of a vacancy on the court, the governor is tasked with selecting a nominee who is then confirmed by the Senate Judiciary Committee, followed by a confirmation by the entire Senate.

The state of New Jersey mandates partisan balance on the court. Justice Timpone was nominated as a Democrat, so Gov. Murphy had to nominate a Democrat to the court according to state law. Justice Timpone was appointed by Gov. Chris Christie (R).

Pierre-Louis is a first generation American and her parents are Haitian immigrants. Gov. Murphy stated, “I am honored to have put her name forward, and to see someone with a different set of life experiences and perspectives on our Supreme Court, a judicial body where New Jerseyans from all walks of life turn for justice.”

After Gov. Murphy announced her nomination, Pierre-Louis stated, “Many years ago, my parents came to the United States from Haiti with not much more than the clothes on their backs and the American dream in their hearts… I think they have achieved that dream beyond measure because my life is certainly not representative of the traditional trajectory of someone who would one day be nominated to the Supreme Court of New Jersey.”

Pierre-Louis was a prosecutor in the U.S. Attorney’s Office for the District of New Jersey. She was also a law clerk for state Supreme Court Justice John Wallace Jr.

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Two Wyoming Supreme Court justices seek retention in November

Wyoming Supreme Court Justices Lynne Boomgaarden and Kari Gray are standing for retention election on November 3, 2020. Both Boomgaarden and Gray were appointed by former Wyoming Governor Matt Mead (R).

Mead appointed all five of the justices currently on the court.

The governor appoints the five justices of the Wyoming Supreme Court with the assistance of a judicial nominating commission where neither the governor nor the Wyoming State Bar Association has majority control. The Wyoming Judicial Nominating Commission is made up of seven members: three lawyers (elected from the active membership of the Wyoming State Bar), three non-lawyer members (appointed by the governor), and is chaired by the chief justice of the supreme court.

New justices must face a retention election during the next general election after they serve at least one year on the bench. Justices then stand for retention every eight years. Since 2008, justices facing retention elections have won 98% of the time. In Wyoming, there has not been a single justice that lost retention during this same time frame.

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Uber and Lyft to continue rideshare operations in California ahead of Proposition 22 vote

California residents still have access to Uber and Lyft.

On August 20, the California First District Court of Appeal stayed a superior court judge’s decision, effectively allowing rideshare companies Uber and Lyft to continue operating in the state ahead of a vote on Proposition 22 on November 3. Prop 22 would define app-based drivers as independent contractors rather than classifying them as employees.

Here’s a timeline of how we got here:

  • December 3, 2018: AB 5, which would codify a three-factor test to decide a worker’s status as an independent contractor, was introduced in the California legislature.
  • August 30, 2019: DoorDash, Lyft, and Uber each contributed $30 million into campaign accounts to fund a ballot initiative campaign should the legislature pass AB 5 without compromising with the companies.
  • September 18, 2019: Gov. Gavin Newsom (D) signed AB 5 without an exemption for app-based drivers and employers.
  • October 29, 2019: DoorDash, Lyft, and Uber filed the ballot initiative, which became known as Proposition 22.
    • The ballot measure, which was certified on May 22, 2020, would override AB 5 for app-based drivers. Prop 22 would also enact labor and wage policies that are specific to app-based drivers and companies.
  • January 1, 2020: AB 5 went into effect.
    • Uber and Lyft did not change how their workers are classified. Tony West, the chief legal officer for Uber, said, “Because we continue to believe drivers are properly classified as independent, and because we’ll continue to be responsive to what the vast majority of drivers tell us they want most—flexibility—drivers will not be automatically reclassified as employees. … We expect we will continue to respond to claims of misclassification in arbitration and in court as necessary, just as we do now.”
  • May 5, 2020: California Attorney General Xavier Becerra, Los Angeles City Attorney Mike Feuer, San Diego City Attorney Mara Elliott, and San Francisco City Attorney Dennis Herrera sued Uber and Lyft, alleging the firms were in violation of AB 5 for considering their workers to be independent contractors.
  • August 10, 2020: Superior Court Judge Ethan Schulman granted an injunction in favor of Becerra and the city attorneys.
    • Schulman wrote, “Defendants’ [Uber and Lyft] position cannot survive even cursory examination. … To state the obvious, drivers are central, not tangential, to Uber and Lyft’s entire ride-hailing business.” Schulman stayed his injunction until August 20. Both Uber and Lyft appealed the decision to the California First District Court of Appeal.
    • Lawyers for Uber and Lyft said that their companies could suspend rideshare operations in the state unless the judge’s injunction was stayed.
  • August 20, 2020: The California First District Court of Appeal temporarily blocked Schulman’s ruling. Instead, the Court of Appeal gave Uber and Lyft until August 25 to file written consents to expedited procedures. Uber and Lyft have until September 4 to file opening briefs, as well as sworn statements from their CEOs confirming that the companies have developed AB 5 implementation plans should Proposition 22 be rejected and the courts uphold the injunction.
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Colorado Supreme Court Chief Justice to retire in January 2021

Colorado Supreme Court Chief Justice Nathan Coats is retiring in January 2021, when he reaches the mandatory retirement age of 72.

Coats joined the court in 2000 after being appointed by Gov. Bill Owens (R). Before that, he was an appellate deputy district attorney for the Colorado 2nd Judicial District from 1986 to 2000. He was the deputy attorney general from 1983 to 1986 and the assistant attorney general in the appellate section of the Colorado attorney general’s office. Coats obtained his undergraduate degree in economics from the University of Colorado in 1971. In 1977 he earned his J.D. from the University of Colorado Law School.

Under Colorado law, state supreme court justices are selected by the governor with help from a 15-member nominating commission. The commission provides a list of three candidates to the governor, who must choose from that list. Initial terms last at least two years, after which justices must stand for retention in a yes-no election. Subsequent terms last 10 years. Coats’ replacement will be Governor Jared Polis’ (D) first nominee to the seven-member supreme court.

The chief justice of the supreme court is selected by peer vote. Beginning in January 2021, the chief justice will serve for a set term on a rotating basis. As of 2020, the chief justice serves indefinitely as long as he or she has the support of his or her peers.

In addition to Chief Justice Coats, the Colorado Supreme Court currently includes the following justices:
• Monica Márquez – Appointed by Gov. Bill Ritter (D) in 2010
• Brian Boatright – Appointed by Gov. John Hickenlooper (D) in 2011
• William W. Hood – Appointed by Gov. Hickenlooper in 2013
• Richard Gabriel – Appointed by Gov. Hickenlooper in 2015
• Melissa Hart – Appointed by Gov. Hickenlooper in 2017

• Carlos Armando Samour Jr. – Appointed by Gov. Hickenlooper in 2018

In 2021, there will be two supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies are due to retirements. One vacancy—South Dakota—is in a state where a Republican governor appoints the replacement. The other vacancy—Colorado—is in a state where a Democratic governor appoints the replacement.

In 2020, there have been 19 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Twelve vacancies are in states where a Democratic governor appoints the replacement. Six are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.