On Oct. 7, New Jersey Supreme Court Chief Justice Stuart Rabner named Philip Carchman as the tiebreaker member of the Legislative Reapportionment Commission. Carchman is a former state appellate court judge of the New Jersey Superior Court.
In July, Rabner requested tiebreaker proposals from the Democratic and Republican members of the commission, saying: “If there is a match, I would be favorably inclined to appoint the individual.” The members submitted lists of candidates in August, but no names matched between the lists. Carchman did not appear on either party’s list of recommended candidates.
The New Jersey Supreme Court also selected the tiebreaker for the Congressional Redistricting Commission. A majority of the court voted to select John Wallace, a retired New Jersey Supreme Court justice, to act as a tiebreaker after the commission members were unable to agree on a candidate.
The state constitution gives the chief justice authority to choose an 11th member of the commission to break a tie in the event that the commission cannot reach agreement on state legislative district maps. The redistricting process will officially begin in New Jersey on Oct. 23. Legislative redistricting maps must be approved by March 1, 2022.
Tennessee Supreme Court Justice Cornelia Clark passed away from cancer on Sept. 24. Her death created one vacancy on the five-member supreme court. Clark’s replacement will be Gov. Bill Lee’s (R) first nominee to the court.
Under Tennessee law, midterm vacancies on the supreme court are filled via gubernatorial appointment with legislative approval. The appointed justice must stand for retention in the next general election to remain on the bench. Upon winning the retention election, the justice serves a full eight-year term.
Clark was appointed to the Tennessee Supreme Court in 2005 by Gov. Phil Bredesen (D). She was subsequently elected to full eight-year terms in 2006 and 2014. In 2010, she became the second woman in Tennessee history to serve as chief justice of the court. She served in that role until 2012.
Before her appointment to the supreme court, Clark’s career experience included working as the director of the Tennessee Administrative Office of the Courts, as a circuit court judge in the 21st Judicial District, and as an attorney in private practice with Farris, Warfield & Kanaday (now Stites & Harbison).
Clark earned a bachelor’s degree from Vanderbilt University in 1971, a master’s degree from Harvard University in 1972, and a J.D. from Vanderbilt University School of Law in 1979.
Following Clark’s death, the Tennessee Supreme Court includes the following members:
Jeff Bivins, appointed by Gov. Bill Haslam (R) in 2014
Holly Kirby, appointed by Haslam in 2013
Sharon Lee, appointed by Bredesen in 2008
Roger A. Page, appointed by Haslam in 2016
In 2021, there have been 17 supreme court vacancies in 15 of the 29 states where replacement justices are appointed instead of elected. Sixteen of the vacancies have been caused by retirements, and one vacancy was caused by a justice’s death.
The most common reasons for a vacancy on a state supreme court include reaching the mandatory retirement age, retiring before the end of a term, death, or appointment to another office. The process for filling vacancies on state supreme courts varies among states. In most states, the governor appointments a replacement justice, either outright or with assistance from a nominating commission. There are five primary methods used:
Eighteen states fill vacancies on the state supreme court through direct gubernatorial appointment.
Twenty-eight states fill vacancies through a gubernatorial appointment with assistance from a nominating commission.
Two states (South Carolina and Virginia) fill vacancies through legislative appointments.
In Illinois, the state supreme court nominates a replacement justice.
In Louisiana, voters elect a replacement in a special election.
The methods that courts use to fill vacancies do not necessarily line up with how they regularly select judges. For example, only one state uses elections to fill vacancies, while 20 states use them to regularly select judges.
Wyoming State Supreme Court Justice Michael K. Davis is retiring on Jan. 16, 2022, upon reaching the state court’s mandatory retirement age of 70 years. The vacancy created by Davis’ retirement is the first state supreme court vacancy to be announced for 2022. Davis’ replacement will be Governor Mark Gordon’s (R) first nominee to the five-member supreme court.
Under Wyoming law, justices of the Wyoming Supreme Court are selected through the assisted appointment method. When a vacancy occurs, the governor appoints a replacement from a list of three names provided by a nominating commission. Newly appointed judges serve for at least one year, after which they must stand for retention in the next general election. If retained, a judge will finish the remainder of his or her predecessor’s unexpired term. Subsequent terms last eight years.
Davis first became a member of the Wyoming Supreme Court when he was appointed by Gov. Matt Mead (R) on Aug. 30, 2012, to succeed Michael Golden. Davis previously served as a judge on the First District Court in Laramie County, Wyoming. From 1980 to 2008, he was a partner at Yonkee and Toner. He has also been a judicial fellow of the American College of Trial Lawyers.
Following Davis’ retirement, the Wyoming Supreme Court will include the following members:
Lynne Boomgaarden, appointed by Gov. Matt Mead (R) in 2017
Kate M. Fox, appointed by Mead (R) in 2013
Keith G. Kautz, appointed by Mead (R) in 2015
Kari Gray, appointed by Mead (R) in 2018
In 2021, there have been 16 court vacancies in 14 of the 29 states where replacement justices are appointed instead of elected, as of Sept. 8. The vacancies have been caused by retirements.
Maryland Court of Appeals Chief Justice Mary Ellen Barbera is retiring on Sept. 10, upon reaching the state court’s mandatory retirement age of 70 years. Governor Larry Hogan (R) appointed Steven Gould to succeed Barbera on the court on Sept. 3. Gould was Hogan’s fifth nominee to the seven-member supreme court.
Gould is a judge of the Maryland Court of Special Appeals. Gould was appointed to the court by Hogan in 2019. Prior to becoming an appellate judge, Gould was a founding partner of Brown Gould Kiely, LLP.
Under Maryland law, midterm vacancies on the state supreme court are filled via the assisted appointment method. The Maryland Judicial Nominating Commission screens candidates and submits a shortlist to the governor. The governor then appoints a judge from the list. The appointee must be confirmed by the Maryland State Senate. After serving for one year, judges must stand for retention in the next general election if they wish to remain on the court. If retained, a judge is elected to a full 10-year term.
Chief Justice Barbera joined the court in 2008 following an appointment by Governor Martin O’Malley (D). Before serving on the state supreme court, Barbera served as a judge on the Maryland Court of Special Appeals. She served as a law clerk for Court of Special Appeals Judge Robert Karwacki in 1984. In 1985, she became an assistant attorney general. From 1989 to 1998, Barbera worked for the Office of the Attorney General as the deputy chief of the Criminal Appeals Division. Barbera then served as legal counsel to the governor’s office from 1998 until her appointment to the Court of Special Appeals.
Following Barbera’s retirement, the Maryland Court of Appeals will include the following members:
Seven applicants are vying for an open seat on the Texas Supreme Court as of Aug. 18. The applicants are seeking to fill a vacancy on the court created when former Justice Eva Guzman stepped down on June 11 to run for Texas attorney general.
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’s replacement will be Gov. Greg Abbott’s (R) fifth nominee to the nine-member supreme court.
The seven applicants are:
Judge Josh Burgess
Judge April Farris
Attorney Harston Dustin “Dusty” Fillmore III
Attorney and former Judge Ysmael D. Fonseca Jr.
Arbitrator and former Judge Michael Massengale
Judge Ken Wise
Attorney and former Judge Alicia Franklin York
As of this writing, Abbott had not released a timeline for filling the vacant seat.
In 2021, there have been 15 supreme court vacancies in 13 of the 29 states where replacement justices are appointed instead of elected. To date, 12 of those 15 vacancies have been filled.
Under Oregon law, midterm vacancies on the state supreme court are filled via gubernatorial appointment. Appointed judges serve until the next general election more than 60 days after they were appointed, at which point they must run for election in order to remain in office.
Justice Nakamoto joined the Oregon Supreme Court in 2016. She was appointed to the court by Brown. Upon her appointment, Nakamoto became the first Asian Pacific American on the state supreme court.
Before serving on the state supreme court, Nakamoto served as a judge on the Oregon Court of Appeals. She was appointed to that court by Governor Ted Kulongoski (D) in December 2010. Upon her appointment to the court, Nakamoto became the first Asian Pacific American from Oregon to serve on any state or federal appellate court.
Following Nakamoto’s retirement, the Oregon Supreme Court will include the following members:
The Colorado Supreme Court modified its schedule for reviewing congressional and state legislative redistricting plans on July 26. This prompted the state’s congressional redistricting commission to adjust its own deadlines for submitting a final plan to the court for review.
The court’s July 26 order requires the congressional commission and all other interested parties to submit briefs “seven days after [the commission] … submits a final [congressional] plan and relevant accompanying materials to the supreme court for review, but in any event no later than Oct. 8.” The court will issue a ruling on the plan by Nov. 1. On Aug. 2, the congressional commission voted to adjust its own deadlines accordingly. It will approve a final plan by Sept. 28 and submit that plan to the court by Oct. 1. The commission’s original deadline for adopting a final congressional plan was Sept. 1.
The congressional redistricting commission originally petitioned the court to extend the deadline for submitting a final plan to Oct. 28. In response to the court’s July 26 order, Commissioner Bill Leone said, “We asked for a schedule, and they gave us a slightly different schedule — it’s not as much as we asked for, but it’s more than we have.”
For the state legislative district plan, the court set Oct. 22 as the briefing deadline. The court will issue a ruling on the plan by Nov. 15. The state legislative redistricting commission has not yet determined whether it will extend its original Sept. 15 deadline for submitting a final plan to the court for review.
Two states have enacted state legislative district plans: Illinois and Oklahoma.
In one additional state (Colorado), redistricting authorities have released drafts of proposed congressional and state legislative district plans.
Oklahoma Gov. Kevin Stitt (R) appointed Dana Kuehn to the Oklahoma Supreme Court on July 26. The appointment filled a vacancy on the court caused by former Justice Tom Colbert’s retirement on Feb. 1. Kuehn is Stitt’s third nominee to the nine-member supreme court.
Under Oklahoma law, state supreme court justices are selected by the governor with help from a nominating commission. The nominating commission puts forward a list of three names from which the governor chooses the appointee. The appointed judge serves an initial term of at least one year before standing for retention in the next general election.
Before her appointment to the supreme court, Kuehn served as a judge on the Oklahoma Court of Criminal Appeals. She was appointed to that seat in 2017. From 2006 to 2017, Kuehn was a Tulsa County associate district judge. Prior to becoming a judge, she worked as a Tulsa County district attorney and as an attorney in private practice with Steidley & Neal, PLLC. Kuehn earned a B.A. in political science from Oklahoma State University and a J.D. from the University of Tulsa College of Law.
With her appointment to the supreme court, Kuehn became the first woman to serve on both of Oklahoma’s high courts.
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, 12 of those vacancies have been filled.
On July 22, the Missouri Supreme Court unanimously ruled that a constitutional amendment enacting Medicaid expansion was constitutional. The decision reversed a lower court’s ruling that found the amendment approved by voters last August to be unconstitutional because it did not include a revenue source for the state to pay for the Medicaid expansion. The Supreme Court ruled that the amendment “does not remove the General Assembly’s discretion in appropriating money to MO HealthNet,” and therefore, “the circuit court erred in declaring article IV, section 36(c) constitutionally invalid.”
The Supreme Court concluded that the Department of Social Services and Missouri HealthNet, who are responsible for the administration of Medicaid in Missouri, are required to use the funds appropriated by the legislature on all eligible recipients under the adopted amendment. The amendment, which was approved by a margin of 53.27% to 46.73%, expanded Medicaid eligibility in Missouri to adults that are 19 years of age or older and younger than 65 whose income is 138% of the federal poverty level or below under the Affordable Care Act.
Stephanie Doyle, Melinda Hille, and Autumn Stultz—three individuals who qualify for Medicaid under the expanded eligibility—filed the lawsuit in Cole County Circuit Court. On June 23, Cole County Circuit Judge Jon Beetem ruled that the amendment was unconstitutional because it did not include a way for the state to pay for the Medicaid expansion. He wrote, “If the court allows them to spend other state revenues by initiative such action would deprive the General Assembly of its constitutional right to appropriate revenues in all other non-initiative circumstances.”
Amy Blouin of the Missouri Budget Project said, “As a result of the Supreme Court’s ruling, Missourians across the state will finally be able to realize the health and economic benefits of Medicaid expansion. State after state has shown that in addition to providing insurance to those eligible, expansion is a fiscal and economic boon to state economies and budgets.”
Senate Appropriations Committee Chairman Dan Hegeman (R), who opposed the amendment, said, “The legal gymnastics employed by the court to get their desired political outcome sets a dangerous precedent and greatly diminishes the power of Missourians’ elected representatives.”
Since the Supreme Court has upheld Medicaid expansion, the state must file paperwork with the federal Centers for Medicare and Medicaid Services to set up the enrollment process for newly eligible individuals. Governor Mike Parson (R) previously withdrew the state’s paperwork in May after the state legislature passed the state’s budget without expanding funding for Medicaid.
The amendment faced legal challenges before the vote last August. In May 2020, two separate lawsuits were filed against Missouri Secretary of State Jay Ashcroft (R) challenging the constitutionality of the citizen-initiated ballot measure by Americans for Prosperity-Missouri and United for Missouri. Both lawsuits argued that the initiative was unconstitutional because it appropriated state funds without creating a new source of revenue. In June 2020, Cole County Circuit Judge Daniel Green ruled in favor of the initiative keeping it on the ballot. Judge Green argued that the ballot measure does not require the state legislature to appropriate money for Medicaid expansion, and therefore, it does not need to provide a funding source. Missouri Western District Court of Appeals upheld Judge Green’s decision to keep the initiative on the August ballot after United for Missouri and Americans for Prosperity-Missouri appealed the decision.
Missouri joins 38 states and Washington, D.C., in expanding Medicaid under the Affordable Care Act.