HB2139.DOC

SECTION 1. The legislature finds that according to a December 2013 article for the National Center for State Courts, the 1970s and 1980s marked the rise of merit selection for judges. Merit selection is a commission-based appointment where a nominating commission screens applicants and selects the most highly qualified candidates for a judicial vacancy. An elected official, usually the governor, appoints one of the recommended candidates. Most merit selection plans include the use of a retention election after the selected judge has served for a specified period. However, there has been a trend in the last decade to eliminate the merit selection of judges or alter its components.

This recent trend of moving away from the merit selection includes adopting a quasi-federal system where the executive appoints, one or both houses of the legislature confirm, and the judges are subject to retention elections thereafter. This type of system was adopted for the Kansas Court of Appeals in 2013. In 2014, the voters of Tennessee voted to adopt the Tennessee Plan, a quasi-federal system, for the Tennessee Supreme Court, Court of Appeals, and Court of Criminal Appeals. Furthermore, there have been efforts in other states to alter the merit selection system's three key components:

(1) The candidates for judicial office are screened by a nominating commission;

(2) Select candidates are then submitted to the appointing authority who must choose one candidate amongst them; and

(3) The appointee is subject only to retention elections for subsequent terms.

Lastly, happening simultaneously with moving away from merit selection has been, to a lesser degree, movement toward a merit or nonpartisan selection method in some states. A somewhat related push involves an effort to end partisan elections and move toward nonpartisan elections.

Hawaii has a variation of the judicial merit selection plan that includes a nominating committee, but does not require retention elections for subsequent judicial terms. Pursuant to the Hawaii State Constitution, vacancies in the office of the chief justice, supreme court, intermediate appellate court, and circuit courts are appointed by the governor and vacancies in the district courts are appointed by the chief justice, with the consent of the senate, from a list of nominees compiled by the judicial selection commission. The term of office for justices and judges of the supreme court, intermediate appellate court, and circuit courts are ten years while the term of office for district court judges are provided by law for a term of six years. Justices and judges are required to petition the judicial selection commission to be retained in office. If the commission determines that the justice or judge should be retained, the commission is authorized to renew the justice's or judge's term. Consent from the senate is not required for a judicial term renewal.

The purpose of this Act is to propose an amendment to article VI of the Constitution of the State of Hawaii to reflect the growing trend of eliminating or altering the judicial merit selection system by requiring justices and judges to be elected to serve six-year terms and be subject to the consent of the senate for subsequent judicial terms, authorizing the governor and chief justice to make interim appointments for vacancies in the offices of the chief justice, supreme court, intermediate appellate court, and circuit courts, or district courts, respectively, and repealing the judicial selection commission.

SECTION 2. Article VI, section 3, of the Constitution of the State of Hawaii is amended to read as follows:

"[~~APPOINTMENT~~] ELECTION OF JUSTICES AND JUDGES

Section 3. [The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.

The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment. If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent. The chief justice shall appoint per diem district court judges as provided by law.

The judicial selection commission shall disclose to the public the list of nominees for each vacancy concurrently with the presentation of each list to the governor or the chief justice, as applicable.] The justices and judges shall be elected by the qualified voters of this State at a general election as provided by law.

In the case of a vacancy in the office of the chief justice, supreme court, intermediate appellate court or circuit courts occurring no later than six months immediately preceding the next general election, the governor shall fill the vacancy with an interim appointee within thirty days of the date of vacancy. The interim appointment term for the office of the chief justice, supreme court, intermediate appellate court and circuit courts shall expire on the date of the next general election. In the case of a vacancy in the district courts occurring no later than six months immediately preceding the next general election, the chief justice shall fill the vacancy with an interim appointee within thirty days of the date of vacancy. The interim appointment term for the district courts shall expire on the date of the next general election. The chief justice shall appoint per diem district court judges as provided by law.

QUALIFICATIONS FOR [~~APPOINTMENT~~] ELECTION

Justices and judges shall be residents and citizens of the State and of the United States, and licensed to practice law by the supreme court. A justice of the supreme court, a judge of the intermediate appellate court and a judge of the circuit court shall have been so licensed for a period of not less than ten years preceding nomination. A judge of the district court shall have been so licensed for a period of not less than five years preceding nomination.

No justice or judge shall, during the term of office, engage in the practice of law, or run for or hold any other office or position of profit under the United States, the State or its political subdivisions.

TENURE; RETIREMENT

The term of office of justices and judges of the supreme court, intermediate appellate court and circuit courts shall be [~~ten~~] six years. Judges of district courts shall hold office for [~~the~~] periods [~~as provided by law.~~] of six years. At least six months prior to the expiration of a justice's or judge's term of office, every justice and judge shall petition the [~~judicial selection commission~~] senate to be retained in office or shall inform the [~~commission~~] senate of an intention to retire. The senate shall hold a public hearing and vote to consent or not consent to retention of each petitioning justice or judge. If the [~~judicial selection commission~~] senate determines that the justice or judge should be retained in office, the [~~commission~~] senate shall renew the term of office of the justice or judge for the period provided by this section [~~or by law~~].

Justices and judges shall be retired upon attaining the age of seventy years. They shall be included in any retirement law of the State."

SECTION 3. Article VI, section 4, of the Constitution of the State of Hawaii is repealed.

["~~JUDICIAL SELECTION COMMISSION~~

~~Section 4.~~ There shall be a judicial selection commission that shall consist of nine members. The governor shall appoint two members to the commission. No more than one of the two members shall be a licensed attorney. The president of the senate and the speaker of the house of representatives shall each respectively appoint two members to the commission. The chief justice of the supreme court shall appoint one member to the commission. Members in good standing of the bar of the State shall elect two of their number to the commission in an election conducted by the supreme court or its delegate. No more than four members of the commission shall be licensed attorneys. At all times, at least one member of the commission shall be a resident of a county other than the City and County of Honolulu.

The commission shall be selected and shall operate in a wholly nonpartisan manner. After the initial formation of the commission, elections and appointments to the commission shall be for staggered terms of six years each. Notwithstanding the foregoing, no member of the commission shall serve for more than six years on the commission.

Each member of the judicial selection commission shall be a resident of the State and a citizen of the United States. No member shall run for or hold any other elected office under the United States, the State or its political subdivisions. No member shall take an active part in political management or in political campaigns. No member shall be eligible for appointment to the judicial office of the State so long as the person is a member of the judicial commission and for a period of three years thereafter.

~~No act of the judicial selection commission shall be valid except by concurrence of the majority of its voting members.~~

The judicial selection commission shall select one of its members to serve as chairperson. The commission shall adopt rules which shall have the force and effect of law. The deliberations of the commission shall be confidential.

The legislature shall provide for the staff and operating expenses of the judicial selection commission in a separate budget. No member of the judicial selection commission shall receive any compensation for commission services, but shall be allowed necessary expenses for travel, board and lodging incurred in the performance of commission duties.

~~The judicial selection commission shall be attached to the judiciary branch of the state government for purposes of administration.~~"]

SECTION 4. The question to be printed on the ballot shall be as follows:

"Shall all justices and judges be elected to serve six-year terms and be subject to the consent of the senate for subsequent judicial terms, the governor and chief justice be authorized to make interim appointments for vacancies in the offices of the chief justice, supreme court, intermediate appellate court, and circuit courts, or district courts, respectively, and the judicial selection commission be repealed?"

SECTION 5. Constitutional material to be repealed is bracketed and stricken. New constitutional material is underscored.

SECTION 6. This amendment shall take effect upon compliance with article XVII, section 3, of the Constitution of the State of Hawaii; provided that ratification shall take effect upon the general election of 2018.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2139
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII