Merit Selection of California Judges
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MERIT SELECTION OF CALIFORNIA JUDGES
March 2, 1999
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Introduction
In 1993, the Judicial Council of California commissioned a survey of California lawyers and judges to determine how to attract and keep highly qualified judges. (Report on Significance of Various Incentives and Disincentives of Judicial Service, prepared by Hildebrandt, Inc. for the Select Committee on Judicial Retirement, Judicial Council of California (March 5, 1993), at 1-2 (hereinafter Incentives and Disincentives).) Overall, the survey found that the selection/election process was among the three greatest disincentives to becoming a judge, along with salary and loss of privacy. (Id. at 18; Supplemental Survey of Attorneys, prepared by Hildebrandt, Inc. for the Select Committee on Judicial Retirement, Judicial Council of California (April 21, 1993), at 10.) The survey found a negative mystique surrounding the selection process, a perception that "who you know" rather than ability is the basis for judicial selection, a concern that the current process does not actively seek the most qualified lawyers but instead Aaccepts whoever comes through the political process," and, finally, that the cost of running for a seat is prohibitive to many prospective candidates. (Incentives and Disincentives, supra note 1, at 19.)
This paper looks at California's judicial selection history and examines alternatives to the current system.
History of Judicial Selection
In the original American colonies, the king had absolute control over the appointment and removal of judges. (Jona Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. Miami L. Rev. 1, 4 (1994).) After the American Revolution, the original thirteen states and the federal government retained various versions of appointment as the method for selecting judges. (Brief of Amicus Curiae American Judicature Society, DeLaney v. Thompson, 1998 WL 397363 (Tenn.App. July 16, 1998) (No. 01A01-9806-CH-00304), rev'd 1998 WL 887031 (Tenn. Dec. 21, 1998), reh'g denied (Jan. 19, 1999); Goldschmidt supra note 4, at 5.) With the emergence of populism during the era of Andrew Jackson, president from 1829 to 1837, many new states established partisan elections to select some or all of their judges. (Id.; Goldschmidt, supra note 4, at 5.) When California entered the Union in 1850, it followed the trend and established partisan elections as its method for selecting judges. (Malcolm Smith, The California Method of Selecting Judges, 3 Stan.L.Rev. 571 (1951).)
However, early in the 20th Century, widespread dissatisfaction in the United States with the political judiciary led to proposals for alternative methods of selecting judges. (Norman Krivosha, In Celebration of the 50th Anniversary of Merit Selection, 74 Judicature 128, 128-29,(1990).) During that period, the notion of merit selection was born. (Id. at 129-30.)
Merit Selection of Judges
In the merit selection process, a nonpartisan nominating commission evaluates applicants for judicial office, then sends a short list of candidates to the appointing authority (for example, the governor), who is required to select from the list. (Goldschmidt, supra note 4, at 2.) The process is called "merit selection" because the nominating commission chooses applicants on the basis of their qualifications and not on the basis of political and social connections. (Merit Selection: The Best Way to Choose the Best Judges, American Judicature Society (visited Feb. 3, 1999) <www.ajs.org>.)
Presently, thirty-four states use merit selection to choose at least some of their judges. (Brief of Amicus Curiae, supra note 5.) The American Judicature Society (AJS) reported in July 1998 that fifteen states plus the District of Columbia use merit selection for all terms of all courts. (Alaska, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Nebraska, New Mexico, Rhode Island, South Carolina, Utah, Vermont and Wyoming. Brief of Amicus Curiae, supra note 5.) In addition, AJS noted that nine states use merit selection for some of their courts, (Arizona, Florida, Indiana, Kansas, Missouri, New York, Oklahoma, South Dakota, Tennessee. Id. n.20.) and that ten other states use merit selection only to fill mid-term vacancies in some or all courts. (Alabama, Georgia, Idaho, Kentucky, Minnesota, Montana, Nevada, North Dakota, West Virginia, and Wisconsin. Id. n.21.)
Merit selection plans have been established by executive order, constitutional amendment or statute, depending upon each state's jurisprudence. (Brief of Amicus Curiae, supra note 5; Goldschmidt, supra note 4, at 19-20.) Plan structures vary widely among the states. (Id.) In addition to the nominating commission, one common component of merit selection plans is a retention election where judges, after serving for some time period, appear on an uncontested ballot for the voters to determine whether the judge will be retained in office on the basis of his/her record. (Brief of Amicus Curiae, supra note 5.) Of the nineteen states that hold judicial retention elections, only three do not employ merit selection to choose judges at all. (Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah and Wyoming. Judicial Selection in the States, American Judicature Society (rev. Mar. 17, 1998).) California is one of those three. (The other two states are Illinois and Pennsylvania. Id.)
It is notable that California already has the retention election component of a merit selection plan in place for justices of the Supreme Court and Courts of Appeal (Cal. Const. art. VI, '16.) because, in the early 1930s, California almost became the first state to adopt merit selection of judges. (Krivosha, supra note 8, at 130.)
California's Merit Selection Efforts
Until 1934, all judges in California were selected by popular election. (Smith, supra note 7, at 572.) In 1933, the legislature adopted Assembly Constitutional Amendment No. 98. (Id. at 578.) The Amendment provided for the Governor to appoint or nominate Superior Court judges from two or three candidates nominated by a board composed of the Chief Justice, a presiding justice of the Court of Appeal and a member of the State Senate from the county where the judge would sit. (California Ballot Pamphlet, prepared for Nov. 6, 1934 General Election, at 28-30.) The Amendment established retention elections for Superior Court judges, who would serve six-year terms and be subject to constitutional removal and recall provisions. (Id.) As a result of an amendment in the Assembly, the procedure would apply only to Los Angeles County. (Smith, supra note 7, at 578; Id. at 28.) The Amendment was placed on the November 1934 general election ballot as Proposition No. 14. (Cal. Ballot Pamphlet, supra note 25, at 28.)
However, a competing amendment was placed on the same ballot by initiative. (Smith, supra note 7, at 584, 586.) Part of a four-amendment "curb crime" program, (Id. at 586.) Proposition No. 3 called for appointment or nomination of Supreme Court and Court of Appeal justices by the Governor; confirmation by a Commission on Qualifications composed of the Chief Justice, a presiding justice of the Court of Appeal and the Attorney General; and unopposed retention elections. (Cal. Ballot Pamphlet, supra note 25, at 6-7.) Constitutional removal and recall provisions were made applicable. (Id.) The amendment did not mandate this procedure for Superior Court judges, but instead permitted counties to decide for themselves between an elective or appointive system for selecting Superior Court judges. (Id.) The notable difference was that Prop. 14 called for a nominating board, while Prop. 3 established a confirmation board.
Prop. 14 lost, Prop. 3 won. (Smith, supra note 7, at 586.) None of the counties ever adopted the measure for their Superior Court judges, but the procedure has been employed for selection, confirmation and retention of Supreme Court and Court of Appeal judges ever since. (Id. at 587; Cal. Const. art. VI, '7, 16.)
In 1968, Governor Ronald Reagan, supported by the Judicial Council and the State Bar, proposed the California Merit Plan for Judicial Selection. (California Merit Plan for Judicial Selection, 43 Cal.St.B.J. 154, 158 (1968) (hereinafter 1968 Cal. Merit Plan).) Introduced in the legislature as Senate Constitutional Amendment No. 2 (SCA 2), the plan called for six appointment commissions to nominate judges to the trial and appellate courts. (Id. at 187-88.) The appropriate commission would submit three names to the governor for each judicial vacancy (or five names for Superior Court vacancies in large counties). (Id. at 189-190.) The governor would be required to make the appointment or nomination from among the names submitted. (Id. at 190.) The plan made no change in judicial election procedures. (Id. at 155.) SCA 2 was adopted in the Senate after amendment, but died in the Assembly Rules Committee. (Senate Final Histories, California Legislature, 1968 Regular Session and 1968 First Extraordinary Session, at 329 (1968).)
California's Current Judicial Selection System
Authority for California's current judicial selection process is found in the Constitution, the Government Code and the Elections Code. (See, e.g., Cal. Const. art. VI; Cal. Elec. Code '9083; Cal. Gov't. Code '12011.5, 71145, 71180.) When a vacancy occurs in the Supreme Court or the Courts of Appeal, the governor nominates a candidate for the next election or appoints a candidate to fill an interim vacancy. (Cal. Const. Art. VI, '16, cl. (d).) The only selection criteria imposed by law for judges is that they must have been members of the state bar for ten years before selection to the Superior, Appellate or Supreme Courts, or for five years before selection to Municipal Courts. (Cal. Const. Art. VI, '15.) Governors informally have established judicial selection advisory boards in counties to screen judicial candidates (John McDonald, Judges Face Few Opponents at the Polls, Orange County (Cal.) Register, May 10, 1998, at A14.) or have obtained recommendations of candidates screened by county bar associations. (Daniel M. Weintraub & Jenifer Warren, The Road to the Bench, Los Angeles Times, July 10, 1988, at Metro 2; Mark de la Vina, Taking a Seat on the Bench, Orange County (Cal.) Register, Oct. 6, 1988, at 3.)
Before the Governor appoints or nominates a judge, the name is submitted to the State Bar for evaluation of the individual's qualifications. (Cal. Gov't. Code '12011.5.) The "Judicial Nominees Evaluation Commission," comprised of attorneys and public members, reports its evaluation to the Governor in confidence. (Id.; Cal. Elec. Code '9083.) After reviewing the report, the Governor officially appoints or nominates the candidate. (Cal. Gov't Code '12011.5(k).) Qualifications of candidates for Supreme Court or Court of Appeal are subject to public comment before confirmation or rejection by the Commission on Judicial Appointments. (Cal. Elec. Code '9083.) The Commission on Judicial Appointments consists of the Chief Justice, the Attorney General and a presiding justice of the Court of Appeal. (Cal. Const. Art. VI, '7; Cal. Elec. Code '9083.)
After confirmation, the judge is sworn into office to serve until the next gubernatorial election, when the judge runs unopposed in a nonpartisan retention election where voters decide whether to retain him or her for the balance of the judicial term. (Cal. Const. Art. VI, '16, cl. (a); Cal. Elec. Code '9083.) Supreme Court and Court of Appeal justices serve twelve-year terms. (Id.)
Although voters in each county may make the selection system for Supreme Court and Appellate justices applicable to Superior Court judges, (Cal. Const. Art. VI, '16, cl. (d).) no California county has done so. (Smith, supra note 7, at 587.) Instead, Superior Court judges (and Municipal Court judges where Municipal Courts still exist) are elected in nonpartisan (Cal. Const. art. II, '6, cl. (a).) general elections (Cal. Const. Art. VI, '16, cl. (b)(1)&(2); Cal. Gov't. Code '71180.) for six-year terms. (Id. at '16, cl. (c); Cal. Gov't. Code '71145.) The Governor fills vacancies to unexpired Superior and Municipal Court terms by temporary appointment; (Cal. Const. art. VI, '16, cl. (c); Cal. Gov't. Code '71180(a).) however, the appointment is not subject to confirmation by the Commission on Judicial Appointments. (Cal. Const. art. VI, '16, cl. (d).) Virtually all Municipal and Superior Court judicial seats in California are filled initially by interim gubernatorial appointments. (John McDonald, supra note 45.) If the incumbents are unopposed in the election, their names do not appear on the ballot. (Cal. Elec. Code '8203.)
Alternatives to California's Current System
The most viable option to ensure that high quality judicial
candidates initially are chosen on the basis of their experience
and ability is a merit selection procedure. (One alternative
suggestion is that judges be specially trained in school to
become judges and never practice law. However, that idea has
been criticized on the theory that judges would form a bureaucracy
that would lose touch with the citizens. 1968 Cal. Merit Plan,
supra note 36, at 175.
Other judicial selection methods include partisan elections,
which California discarded years ago, gubernatorial appointment
with Senate confirmation, and direct legislative appointment.
California's current method is unique. Goldschmidt, supra
note 4, at 13.) The procedure may have various components,
including one or more judicial nominating commissions and
methods to review judges for retention. (Model Judicial Selection
Provisions, American Judicature Society, at vii-viii (rev.
1994), [hereinafter Model Provisions].)
Retention mechanisms recommended by AJS include retention elections or retention by decision of the judicial nominating commission. (Id. at 6.) Sixteen merit selection states have retention elections. (Alaska, Arizona, Colorado, Florida, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, South Dakota, Tennessee, Utah and Wyoming. Judicial Selection in the States, supra note 19.) Other retention methods used by merit selection states include reappointment by the governor with legislative confirmation (Connecticut, Delaware, New York), reappointment/retention by the legislature (South Carolina, Vermont), reappointment by judicial selection commission (Hawaii), life tenure (Rhode Island) and tenure to age 70 (Massachusetts). (Judicial Selection in the States, supra note 19.)
Judicial Nominating Commissions
Judicial nominating commission(s) recommend a short list of candidates to the appointing authority, who must select from the list. (Model Provisions, supra note 64, at 1.) In California, the Governor is constitutionally designated the appointing authority for judges. (Cal. Const. Art. VI, '16, cl. (d).) The commission would be required to recommend a specific number, between two and five, of candidates to the Governor. (Model Provisions, supra note 64, at 1.) The total number of finalists for each position might depend upon the level of court (for example, more candidates for higher court vacancies) or upon the population of the jurisdiction served by the court (for example, more candidates might be recommended for Superior Courts in counties with populations above one million than for vacancies in smaller counties). It is recommended that the number of names submitted to the governor is sufficiently low so that the commission nominates only the most highly qualified candidates. (Id.)
To be effective, several judicial nominating commissions would be established within the state. The original 1968 California proposal called for one statewide commission to nominate appellate judges and for one commission in each of the then-five appellate districts to nominate Superior and Municipal Court judges. (1968 Cal. Merit Plan, supra note 36, at 158.) A similar procedure could be followed now for the six appellate districts or the 18 appellate divisions within the districts; or, commissions to nominate Municipal and Superior Court judges could be established with jurisdiction over specific geographical areas (for example, part or all of one county, or several counties, based on number of judges within each area). The number of commissions in other states ranges from one (Alaska, Connecticut, Hawaii, Massachusetts, Oklahoma, Tennessee, Vermont and Wyoming. Judicial Merit Selection: Current Status September 1995, American Judicature Society (1995), table 1.) to 114 (including one for each of 99 counties in Iowa). (Id.)
Judicial nominating commissions generally consist of both lawyer and non-lawyer members and may be chaired by a judge. (Goldschmidt, supra note 4, at 21.) AJS recommends a seven-member panel which may be chaired by a judge, with attorney members appointed by a bar association and lay members appointed by the governor. (Model Provisions, supra note 64, at 2-3.)
The original 1968 California plan called for the appellate appointment commission to consist of six members, including the Chief Justice as chair, one judge, two non-lawyers named by the governor and two lawyers named by the state bar. (1968 Cal. Merit Plan, supra note 36, at 170.) The trial court appointment commissions were to consist of six members, including one court of appeal judge as chair, one judge and two non-lawyers appointed by the governor and two lawyers named by the state bar. (Id.) In addition, each commission would have had a local judge named by the governor and a local lawyer named by the commission as non-voting advisers. (Id.)
As noted above, California governors informally have established judicial selection advisory boards in counties to screen judicial candidates (John McDonald, supra note 45.) or have obtained recommendations of candidates screened by county bar associations. (Weintraub & Warren, supra note 46; de la Vina, supra note 46.) Governor Gray Davis asks applicants for trial and appellate judge to sign a release allowing the Governor's office to give their applications to "the judicial evaluation committee of the local bar association (if that association is providing such assistance to the Governor's Office) and other committees and/or individuals who have been asked by the Governor to assist him in the evaluation of applicants for judicial appointment," in addition to the State Bar's Judicial Nominees Evaluation Commission. (Authorization and Release, Applications for Appellate Court and Trial Court Appointments, Office of Governor Gray Davis (visited Feb. 25, 1999) <www.ca.gov/s/governor>.) Therefore, an Executive Order or a Constitutional Amendment that establishes judicial selection nominating commissions merely would institutionalize procedures that already exist on an informal basis.
Nationwide, the size of commissions varies from five to twenty-four.
(Judicial Merit Selection: Current Status, supra note 73.)
Their compositions vary, as do the methods of appointing members
and the length of commissioners' terms. (Goldschmidt, supra
note 4, at 21.)
AJS suggests four- or six-year terms for commissioners. (Model
Provisions, supra note 64, at 2-3.) The original 1968 California
plan called for four-year overlapping terms, "so that
no one governor during any one term could name even half the
members to a commission." (1968 Cal. Merit Plan, supra
note 36, at 170-71.) Commissioners' terms in other states
range from one to six years. (Goldschmidt, supra note 4, at
21.)
Retention Options
California already has nonpartisan retention elections for justices of the Supreme Court and Courts of Appeal, who serve twelve-year terms. (Cal. Const. Art. VI, '16, cl. (a); Cal. Elec. Code '9083.) If Superior Court and Municipal Court judges are to be appointed under a merit selection system, they also could run unopposed in nonpartisan retention elections. Sufficient concerns may be raised by the prospect of one-third of Los Angeles County's 238 Superior Court judges (plus 89 Los Angeles Municipal Court judges) appearing on a ballot every two years, for example, that it may be reasonable to increase the terms of Superior and Municipal Court judges to twelve-year staggered terms so that a smaller crowd appears on the ballot each election. Alternatively, each judge could run in a retention election once after the initial merit appointment, then remain in office unless impeached, (Cal. Const. Art. IV, '18.) removed by the Supreme Court for cause, (Cal. Const. Art. VI, '18.) or recalled. (Cal. Const. Art. II, '14.)
The original 1968 California proposal did not seek to change the existing judicial election process; rather, it focused solely on the method of appointment. (1968 Cal. Merit Plan, supra note 36, at 178.) The defeated 1934 proposal sought to establish retention elections for meritoriously selected Superior Court judges in Los Angeles County. (Cal. Ballot Pamphlet, supra note 25, at 28-30.)
An alternative method for retaining judges is to empower the judicial nominating commission to determine whether meritoriously appointed judges should be retained. (Model Provisions, supra note 64, at 6.) Given that California already has retention elections for Supreme Court and Court of Appeal justices, the retention-by-commission alternative proposed by AJS may be a less attractive option to anyone wishing to work as closely within the existing framework as possible. However, a commission may be a viable option for retention of trial court judges, particularly where a large number of judges would appear on the ballot.
Evaluation for Retention
AJS proposes that the judicial nominating commission or other evaluating committee rate judges who are eligible for retention and publicize the evaluation well in advance of the election. (Id.) In case of retention-by-commission, the evaluating committee would provide evaluations to the commission. (Id. at 7.) Five states utilize judicial performance evaluations in conjunction with retention elections, (Alaska, Arizona, Colorado, Tennessee and Utah. Brief of Amicus Curiae, supra note 5.) while some other states use performance evaluations prior to reappointment or other non-elective means of retention. (For example, Connecticut, Delaware, Hawaii and New York. Id. n.35.) While evaluation mechanisms differ in the five states with retention elections, AJS reports that their common elements are (1) public involvement in the evaluation process and (2) dissemination of the result to the voting public. (Brief of Amicus Curiae, supra note 5.)
Methods of Implementation
California could implement a merit selection plan by Constitutional Amendment or by Executive Order of the Governor. It is unlikely that a statute seeking to establish merit selection on its own could survive a constitutional challenge.
Merit Selection by Constitutional Amendment
California's Constitution currently provides for the governor to nominate or appoint judges to the Supreme Court and Courts of Appeal, subject to confirmation by the Commission on Judicial Appointments. (Cal. Const. Art. VI, '16, cl. (d).) It also provides for the Governor to make interim appointments of judges to the Superior Courts when vacancies occur. (Cal. Const. Art. VI, '16, cl. (c).) With the exception of requiring membership in the State Bar for a specified number of years, (Cal. Const. Art. VI, '15.) the Constitution enumerates no qualifications for judges of the Supreme, Appellate and Superior courts. The Constitution gives the Legislature authority to prescribe qualifications for Municipal Court judges. (Cal. Const. Art. VI, '5, cl. (c).)
A statute requiring the Governor to choose judges from a merit selection list might be construed to provide a qualification for the office of judge, similar to a statutorily-mandated residency requirement, that the Legislature may not have Constitutional authority to prescribe. In July 1995, the California Attorney General issued an opinion that Government Code Section 69502, which requires that Superior Court judges reside in the county of the court they serve, was "unenforceable as constituting an invalid attempt on the part of the Legislature to add qualifications for the office of superior court judge not found in the Constitution." (78 Ops.Cal.Atty.Gen. 204 (1995).) After reviewing pertinent case law, (Wallace v. Superior Court, 141 Cal.App.2d 771 (3d Dist. 1956); People v. Chessman, 52 Cal.2d 467 (1959).) the Attorney General reasoned that the constitutional qualifications found in Article VI, Section 15, pertaining to eligibility based on length of state bar membership or incumbency, were exclusive, and that additions or alterations to those qualifications were beyond the power of the Legislature. (78 Ops.Cal.Atty.Gen. 204 (1995).) Similar to the residency requirement, a statutorily-imposed qualification that makes judicial candidates eligible for appointment or nomination only if their names appear on the short list presented to the Governor by a judicial nominating commission might be unconstitutional.
In addition, the Constitution now gives the governor virtually unrestricted power to select whomever he chooses to serve on the bench. (Cal. Const. Art. VI, '16.) If the Legislature were to restrict that power by establishing a merit selection plan by statute, the Legislature might be impermissibly exercising powers reserved to the Executive. (Cal. Const. Art. III, '3.) Such mandatory selection from a list is distinguishable from the statutory requirement that the Governor submit names of nominees to the State Bar for evaluation, because the Governor is not required to defer to the State Bar's rating of a candidate. (Cal. Gov't. Code '12011.5(g)&(l).)
In the original 1968 California proposal, the judicial nominating commission would have been established by Constitutional amendment, (1968 Cal. Merit Plan, supra note 36, at 186-91.) with implementing legislation in the Government Code. (Id. at 191-92.) In 1934, the defeated Prop. 14 also would have established the nominating commission by Constitutional Amendment. (Smith, supra note 7, at 577-78.) Constitutional Amendment probably would be the most efficient mechanism to establish a merit selection plan, particularly if such additional components as retention elections for trial court judges or retention evaluations were to be implemented at the same time.
Merit Selection by Executive Order
As an alternative to Constitutional Amendment, the Governor by Executive Order could establish a judicial nominating commission for merit selection of all judges of the Supreme Court and the Courts of Appeal and of interim appointees to the Superior and Municipal Courts. Although the Constitution gives the Legislature authority to establish qualifications for Municipal Court judges, (Cal. Const. Art. VI, '5, cl. (b).) the Legislature has vested authority in the Governor to fill interim vacancies in the Municipal Courts. (Cal. Gov't. Code '71180.) The Governor can establish selection procedures for making these judicial appointments by Executive Order, since Governors traditionally have established their own selection procedures in a less formal fashion. (McDonald, supra note 45; Weintraub & Warren, supra note 46; de la Vina, supra note 46.)
The California Attorney General has found that the Governor is authorized to issue directives, in the form of executive orders, to subordinate executive officers concerning enforcement of the law: (63 Ops.Cal.Atty.Gen. 583 (1980).)
An executive order . . . is a formal written directive of the Governor which by interpretation, or the specification of detail, directs and guides subordinate officers in the enforcement of a particular law. (Citation omitted.) Such an order, however, need not be predicated upon some express statutory provision, but may properly be employed to effectuate a right, duty or obligation which emanates or may be implied from the Constitution . . . .(Id.)
The Attorney General reaffirmed that analysis of the scope of Executive Orders in 1992. (75 Ops.Cal.Atty.Gen. 263 (1992).) Therefore, to the extent that the nomination or appointment power is granted to the Governor by the Constitution or statute, it appears that he would have the authority to issue an Executive Order directing how that duty is to be carried out.
Under the current Constitutional scheme, the Governor's Executive Order could not extend to candidates who run in an open election for Municipal and Superior Court judge; (Cal. Const. Art. VI, '16.) however, virtually all vacancies in the trial courts are filled by interim appointment. (McDonald, supra note 45.) Although the Governor could establish a merit selection plan through Executive Order, he would not be able to establish retention elections for trial judges or a retention evaluation process in that manner.
Retention Elections for Trial Court Judges
The California Constitution already provides for retention elections for Supreme Court and Court of Appeal judges. (Cal. Const. Art. VI, '16.) However, it also provides for direct election of Superior and Municipal Court judges unless the voters in each county elect to apply the appellate selection and retention system to Superior Court judges. (Id.) Because no county has chosen to apply the appellate system to its Superior Court judges, either elections to decide the issue would have to be held in each county (Id.) or the Constitution would have to be amended, with voter approval, (Cal. Const. Art. XVIII, '4.) to mandate appointment and retention elections for Superior Court judges.
Even if a successful election were held in each county to extend the appellate selection and retention system to Superior Court judges, a proposal to establish the same procedure for Municipal Court judges would have to be considered separately because "the Constitution is silent [on this issue] regarding municipal court judges." (Cathey v. Weissburd, 202 Cal.App.3d 982, 986 (2d Dist. 1988).) The Constitution merely requires that Municipal Court judges be elected at general elections; (Cal. Const. art. VI, '16, cl. (b)(2).) therefore, an amendment would be necessary to change that procedure. Since it is necessary to amend the Constitution to switch to retention elections for Municipal Court judges, a Constitutional Amendment likely would be the most efficient method to establish retention elections for both Superior and Municipal Court judges.
Other Retention Options
Were a retention commission to be established, the Constitutional provisions pertaining to judicial elections would have to be amended. Should an evaluating committee be desirable, it most efficiently would be established as a component of the retention mechanism.
Conclusion
To attract and keep the most highly qualified judges, California's unique judicial selection system can be improved by an approach grounded in California history -- by adding a merit selection system for all judges, accompanied by an appropriate retention mechanism.