View source for The Promoting “Merit” in Merit Selection Act Exposed

'''The Promoting "Merit" in Merit Selection Act''' was adopted by ALEC's [https://www.sourcewatch.org/index.php/ALEC_Civil_Justice_Task_Force Civil Justice Task Force] and approved by the ALEC Board of Directors in October 2011. Language removed from the draft bill is indicated with <strike>strikethrough text</strike>, additions are given in '''bold'''.

==ALEC Bill Text==

<strike>Model Legislation</strike>

Section 1. {Selection of Members, Size, Composition and Administration of the Appellate Judicial Commission}

(A) The legislature hereby establishes a <strike>Commission to nominate</strike> '''Judicial Nominating Commission (hereafter the “Commission”) for the purpose of filling vacancies to the'''appellate judicial '''courts by nominating''' candidates for appointment by the governor.

(B) The Commission shall be comprised of 15 <strike>members, two-thirds of them non-lawyers. The chief justice of the state supreme court shall also be a member, and shall serve as chair of the Commission. The chief justice shall have a vote only to break a tie. Members other than the chief justice shall serve staggered four year terms.</strike> '''members appointed by the governor with the advice and consent of the senate.'''

:'''(1) Ten members of the Commission shall not be admitted to practice law in the courts of this state or of any other state.'''

:'''(2) Five members of the Commission shall be admitted to practice law in the courts of this state.'''

::'''[OPTION 1] (a) Each member of the Commission appointed under Section 1(B)(2) shall first be selected by the executive board of the state bar from a list of no fewer than three nominees submitted to the executive board by the governor.  If the executive board of the state bar does not select one of the nominees submitted by the governor within 60 days of the date of nomination, then the governor may appoint any one of the nominees. All nominations shall be made public.'''

::'''[OPTION 2] (a) The lawyer members shall be nominated by the executive board of the state bar and presented to the governor for appointment. If a nominee is not appointed by the governor, the executive board of the state bar shall make another nomination. All nominations shall be made public.'''

<strike>(C) The lawyer members shall be appointed by the governor with the advice and consent of the senate.</strike>

<strike>:(1) The lawyer members shall be nominated by the executive board of the state bar and presented to the governor for appointment. If a nominee fails of appointment, the executive board of the state bar shall make another nomination. All nominations shall be made public.</strike>

<strike>:(2) No more than half plus one of the lawyer members shall be from the same political party.</strike>

<strike>(D) The non-lawyer members shall be appointed by the governor with the advice and consent of the senate.</strike>

:(<strike>1</strike> '''3''') The governor shall <strike>convene a sizable non-attorney committee (e.g., nine-member) to accept and solicit candidates for non-lawyer appointments to the Commission, review their qualifications, and advance the names of all applicants with the committee’s recommendations to the governor for appointment. These recommendations shall be made public. The committee and the governor shall</strike> seek to effect geographic and demographic diversity in the membership of the Commission.

<strike>:(2) No more than half of the non-lawyer members shall be from the same political party.</strike>

'''(C) The terms of office of members of the Commission shall be as follows:'''

:'''(1) Six members of the Commission appointed under Section 1(B)(1) and three members of the Commission appointed under Section 1(B)(2) shall serve staggered three-year terms.'''

:'''(2) Four members of the Commission appointed under Section 1(B)(1) and two members of the Commission appointed under Section 1(B)(2) shall serve concurrently with the appointing governor. They shall be appointed to the commission by the governor within 30 days after the first day of January next succeeding each gubernatorial election and shall serve until the qualification of the governor at the next gubernatorial election, and until their successors are duly appointed and confirmed by the senate.'''

:'''(3) The terms of office of present members of the Commission shall expire upon the effective date of this legislation and their successors shall be appointed in accordance with the terms of this Section.'''

'''(D) Commission Chair'''

:'''[OPTION 1] The Commission shall elect one member to serve as Chair for a term of one year.'''

:'''[OPTION 2] The chief justice of the state supreme court shall also be a member, and shall serve as chair of the Commission.  The chief justice shall have a vote only to break a tie.'''

(<strike>D</strike> '''E''') Vacancies and appointments to serve on the Commission shall be widely publicized.</strike> 

<strike>(E) All resources necessary to carrying out the Commission’s official duties shall be provided, including: staff, equipment and materials, and orientation and continuing education of members.</strike>

'''(F) All resources necessary to carrying out the Commission’s official duties shall be provided, including: staff, equipment and materials, and orientation and continuing education of members.''' 

<u>Section 2. {Code of Conduct for Commissioners}</u>

(A) The Commission shall be governed by written ethical and procedural rules approved by the senate and signed by the governor.

(B) Each commissioner shall be required to take an oath affirming his or her commitment to abide by the written ethical and procedural rules governing the Commission.

(C) Each commissioner shall disclose to the Commission all material current or past personal and business relationships with an applicant about whom they propose to deliberate or on whom they intend to vote. Commissioners shall refrain from participating in any deliberations or votes concerning any applicant who is their current business or law partner and any applicant whom a commissioner believes he or she is incapable of considering impartially.

(D) The Commission shall <strike>only act</strike> '''act only''' upon the existence of a quorum of more than half of the lawyer members and more than half of the non-lawyer members.

(E) Having transmitted to the governor the names of applicants the Commission is nominating, commissioners shall refrain from influencing or attempting to influence, either directly or indirectly, the decision of the governor.

<u>Section 3. {Education of Commissioners}</u>

(A) Each new commissioner shall participate in a formal orientation with guidelines that are approved by the state senate and signed by the governor.

(B) Every two years, the commissioners shall participate in a continuing education program in which the Commission’s mission, code of conduct, and policies are thoroughly reviewed.

<u>Section 4. {Qualifications of Candidates for Appellate Judgeships}</u>

(A) An appellate judicial candidate’s merit shall be the primary criterion for consideration. The Commission shall consider a candidate’s experience, integrity, professional competence, judicial temperament and overall service to the law. The Commission shall consider geographic and demographic diversity desirable.

(B) Each appellate judicial candidate must conform to the state’s residency and bar membership requirements.

(C) The Commission shall publicize the criteria for judicial selection.

(D) The Commission shall nominate no fewer than three candidates to the governor for each judicial vacancy. <strike>If only three candidates are nominated, no more than two may be of the same political party. If more than three candidates are nominated, no more than sixty percent may be of the same political party.</strike>

(E) If requested to do so by the governor, the Commission shall nominate <strike>a second set</strike> '''further sets''' of no fewer than three candidates for a judicial vacancy.

<u>Section 5. {Transparency and Public Participation}</u>

(A) All applications for an appellate judicial vacancy shall be posted on the respective court’s website.

(B) Whenever an appellate judicial vacancy arises, the Commission shall hold no fewer than two public meetings to consider applicants for such vacancy. The Commission shall invite public comment about applicants at the beginning of each hearing.

(C) All information provided to the Commission by applicants or third parties shall be made public as appropriate.

(D) All hearings by the Commission shall be open to the public; however, the Commission may move from a public session to a private executive session to promote open and frank discussion provided that two-thirds of the participating commissioners vote in favor of such action.

<u>Section 6. {Presentation and Selection of Candidates}</u>

(A) The Commission shall submit <strike>its</strike> nominations to the governor no later than 60 days after the occurrence of an appellate judicial vacancy.

(B) The governor shall <strike>with</strike> '''seek''' the advice and consent of the senate <strike>appoint</strike> '''to the appointment of''' one of the nominees of the Commission. If the senate fails to consent to the appointment of a nominee the governor proposes, the governor may propose another nominee for appointment. 

:'''(1)''' If the <strike>governor</strike> '''senate''' fails to <strike>obtain within sixty days of the Commission’s last nomination the consent of the senate to the appointment of any of the nominees whom the governor has proposed, the governor shall again ask the Commission to nominate a set of no fewer than three candidates for the vacancy and the chief justice shall appoint a judge of the next highest of the state’s courts to serve in the vacancy until the senate shall consent to a nominee of the governor.</strike> '''consent to the appointment of a nominee the governor proposes, the governor may propose another nominee for appointment from the existing Commission nominees or request a new set of no fewer than three candidates as provided in Section 4(E).'''