Alabama Legislative Year in Review: Study business courts; merit selection for some judges; new retirement plan for judges and clerks elected/appointed after 2016

Law

HB 232 Increases small claims jurisdiction to $6,000.

SB 70 Expands merit selection system for filling interim judicial vacancies in Shelby County to include Probate Court. Requires approval by Shelby County voters. To appear on November 2016 ballot in Shelby County only.

SB 411 Establishes new retirement plans, known as Judges’ and Clerks’ Plan, for justices, judges, and circuit clerks first elected or appointed to their respective positions on or after November 8, 2016. Provides plan to operate under the Judicial Retirement Fund.

Adopted

SJR 50 Creates Business Litigation and Complex Litigation Study Committee to study possible creation of business courts/divisions.

SR 95 Requests Supreme Court advisory opinion on SB 453 regarding lotteries and gaming.

2015 efforts to changing civil jurisdiction thresholds: Nevada and Washington enact

Last year around this time I noted a trend towards increasing civil jurisdiction thresholds for some limited jurisdiction courts.

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result.

This year saw 5 efforts to raise these limits, including 2 states where changes were enacted.

Maryland: District Courts have exclusive original civil jurisdiction in specified civil cases up to $30,000 (Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 4-401). The threshold was $25,000 but was increased in 2007 (HB 1109). No other efforts to increase the threshold were made in the past decade until 2015. HB 461 would have increased the jurisdiction of the District Court to $50,000 while HB 719 would have raised the jurisdiction to $50,000 but only for first-party motor vehicle insurance benefits for uninsured motorist coverage. Both bills were withdrawn by their respective authors.

Nevada: Nevada’s Justice Courts had jurisdiction in civil cases up to $10,000 since a 2003 law (AB 100) increased the threshold from $7,500 (Nev. Rev. Stat. Ann. § 4.370(1)(a)). Since then there have been no efforts to change the provisions until 2015. AB 66 as enacted now increases that threshold from $10,000 to $15,000 effective January 1, 2017.

South Carolina: Magistrate Court is effectively the state’s small claims court, with a concurrent jurisdiction with the Circuit Court up to only $7,500 (S.C. Code Ann. § 22-3-10). Nearly a dozen efforts had been made in the past decade and 2015 was no exception. SB 53 would have increased the jurisdiction to $10,000 and required mediation for cases below $5,000. SB 325 would have simply provided an increase from $7,500 to $10,000. Neither bill advanced out of committee.

New York: There are five types of limited jurisdiction courts with civil jurisdiction, each with its own threshold:

  • $25,000 for NYC Civil Court and County Courts (NY CLS NYC Civil Ct Act § 201 & NY CLS Jud § 190(1))
  • $15,000 for City and District Courts (NY CLS UCCA § 202 & NY CLS UDCA § 201)
  • $3,000 for Town and Village Courts (NY CLSUJCA § 201(a))

AB 1935 would have raised the jurisdiction of the Town and Village Courts to $5,000. As all prior efforts introduced in the last decade, it never advanced out of committee.

Washington: The state’s District Courts had civil jurisdiction in cases up to $75,000 (Rev. Code Wash. (ARCW) § 3.66.020). The threshold had previously been $50,000, but that was increased in 2008 (HB 2557). A prior effort to increase to $75,000 had previously died in committee without a hearing (SB 5322 of 2005). This year saw two efforts in increase the limit, with one reaching enactment.

  • SB 5125 raises the limit from $75,000 to $100,000. It met with unanimous approval in House and Senate committees and on the floors of each chamber and was signed into law by the governor with an effective date of July 24, 2015.
  • HB 1248 would have raised the limit from $75,000 to $100,000 but also adjusted the threshold for mandatory arbitration from $15,000 to $75,000 in the Senate amended version. The bill was approved 78-19 in the House and was approved as amended by the Senate Law & Justice Committee but died on the Senate floor.

Oregon: New law makes it specific crime to (falsely) yell “fire” in a courthouse

As I noted when this bill was first introduced last spring

It’s a somewhat tired and shopworn statement derived from a U.S. Supreme Court decision (Schenck v. U.S.) that while the First Amendment assures freedom of speech “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” A new bill introduced in Oregon would make it clear the “falsely shouting fire and causing a panic” won’t be accepted in a courthouse any more than it is in a theater.

One version of that bill (SB 919) was signed into law in June with an effective date of January 1, 2016. The law amends the state’s existing first degree disorderly conduct statute (ORS 166.023) that makes it a crime to falsely shout fire in a school to include court facilities and all public buildings (new language in bold)

A person commits the crime of disorderly conduct in the first degree if, with intent to cause public inconvenience, annoyance or alarm, or knowingly creating a risk thereof, the person initiates or circulates a report… Stating that the hazardous substance, fire, explosion, catastrophe or other emergency is located in or upon a court facility or a public building, as those terms are defined in ORS 166.360.

First degree disorderly conduct is punishable as a Class A misdemeanor for a first offense and a Class C felony if previously convicted under the same statute.

Delaware: Legislature gives first-round approval to constitutional amendment adding member to judicial disciplinary body

Delaware’s legislature last month gave its approval to a plan to expand the state’s judicial disciplinary board (Court of the Judiciary). Since its creation in 1969 the Court on the Judiciary has been made up of all five members of the Supreme Court plus the heads of four the state’s main trial courts (Chancellor for the Chancery Court, President Judge of the Superior Court, Chief Judge of the Family Court, and Chief Judge of the Court of Common Pleas). Under HB 112 as unanimously approved by the House and Senate the Chief Magistrate of the Justice of the Peace Court would be added to the Court of the Judiciary.

HB 112 must be re-introduced and re-approved by the 2016/2017 legislature before becoming part of the Delaware Constitution (there is no voter approval required).

Call for Submissions: Trends in State Courts

Submissions for the 2016 Trends in State Courts are now being accepted. Trends is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically. Please email abstracts of no more than 500 words by October 15, 2015 to Deborah Smith at dsmith@ncsc.org Abstracts received after this date are welcome and will be considered for inclusion in our monthly online edition. Visit the Trends in State Courts website at www.ncsc.org/trends.

Alabama: commission to reallocate judgeships reintroduced in special session; Senate approves quickly but stalls out in House

A plan discussed here to create a special commission in Alabama to reallocate judgeships that failed in the regular session of that state’s legislature was re-introduced in a special session held this week. While the plan was quickly approved by the Senate it was once again killed in the House. With the prospects of a second special session this fall some version of the plan is likely to come back up again.

SB 33 of the First Special Session, like SB 230 of the regular session, would have created a Judicial Resources Allocation Commission made up of 11 people

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 3 attorneys picked by the state bar’s president

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 4 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit
  4. Any other information the commission deems relevant

That review and ranking list would be submitted to the legislature and the governor. The Commission would, however, be able to act without a specific law to change the judgeships. Where a vacancy occurred due to death, resignation, mandatory retirement, or similar case the Commission could unilaterally move the vacancy. The move would be limited in two ways

  1. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the ranking list
  2. Every county is entitled to at least one District Judge

This 2015 version differs markedly as compared to the 2014 version in that the Commission would be able to move the judgeship alone; the prior version as amended would have required approval by the state’s supreme court.

SB 33B was approved by the full Senate on August 5 and made it through the House committees. It died on the House floor when the special session adjourned Tuesday.

Review of 2015 efforts to change, alter, or end merit selection/commission based judicial appointment systems

The last several years have seen numerous efforts to modify or simply abolish merit selection/commission-based judicial appointive systems and 2015 was no exception. In these systems , a commission provides a list of names to an executive, or in the case of South Carolina the legislature, from which the appointing authority must select (as opposed to some states where the commission’s list is a recommendation only).

Much of the effort in 2015 focused on either a) reducing the percentage of lawyer-appointed members of the nomination commissions and/or b) requiring judges appointed under such systems receive super-majority support in subsequent yes/no retention elections. While major changes failed to pass in 2015, they do indicate where legislative activity will likely be focused in this area in 2016.

Alaska

In a repeat of efforts first started in 2014, legislators pressed to give more control to the governor and legislature over the state’s Judicial Council which serves as the judicial nominating commission for the state. Under SJR 3 the Council would have been expanded from 7 members to 10 by the addition of 3 new non-attorney members appointed by the governor. Moreover, all Council members would have been required to be confirmed by the legislature (currently the attorney-elected councilmembers and chief justice are not required to be confirmed into their council positions). Facing heavy opposition SJR 3 was approved by the Senate State Affairs Committee on March 25 but proceeded no further.

Arizona

Two constitutional amendments to modify the commission system (which applies to appellate judges and general jurisdiction judges in the state’s largest counties) were filed this year. HCR 2002 would have required judges facing retention elections receive at least a 60% “yes” vote. HCR 2006 would have allowed the state’s legislature to remove from office on a 2/3rds vote judges appointed under such a system without the need to prove an impeachable offense. Both bills died in committee.

Colorado

No changes offered.

Connecticut

No changes offered.

Florida

For the first session in nearly a decade there were no bills introduced to change the state’s judicial selection system, this after a loss in 2014 of a plan to allow governors to “prospectively appoint” to fill judicial vacancies that had not occurred yet.

Hawaii

SB 615 would have modified the Senate-confirmation portion of the state’s commission-based judicial selection system. Under the state’s constitution the governor (or chief justice for some lower courts) has 30 days to select from the list of names provided by the judicial selection commission. The Senate then has 30 days to confirm the appointee otherwise the person is confirmed by default. In 2012 several judicial appointments were made at or near the deadline and in one case without giving written notification to the Senate until a week later.

SB 615 would have specified that the Senate was to receive written notice concurrently with the appointment and that the 30 day clock for the Senate to confirm started only “on the senate’s receipt of the written notice”.

SB 615 was approved by the full Senate on March 10 but the House Judiciary Committee made several amendments to clarify some of the technical language regarding notification. The House amended version ultimately died in the House Finance Committee at session’s end.

Indiana

Indiana saw three separate efforts to change judicial selection in 2013. SJR 8 and SJR 9 sought to end commission-based selection for judges, allowing the governor to appoint anyone to the Supreme Court and Court of Appeals subject to Senate confirmation. Both constitutional amendments would have also repealed any judicial canons that prohibited a judge from speaking in their campaigns or making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Finally, judges appointed under this system would have been required to receive a supermajority of “yes” votes to be retained in office: 67% under SJR 8 and 60% under SJR 9.

SJR 15 took a different tack on the issue of judicial selection. The constitutional amendment would have reduced the number of attorney-designated seats on the state’s merit selection commission and required Senate confirmation. In a unique proposal not found in any other state, the bill would have ended elections for subsequent terms, instead requiring a judge receive a 60% yes vote not of the general public but of the House of Representatives.

Neither SJR 8, SJR 9, nor SJR 15 proceeded out of committee.

Iowa

No changes offered.

Kansas

Having abolished the merit selection/commission-based judicial appointive system for the Court of Appeals in 2013 by statute, the state’s legislature urged on by the state’s governor debated numerous statutory and constitutional changes to the way the state’s Supreme Court is chosen, most focused on ending the state’s merit selection/commission based system.

  • HCR 5004: Direct partisan election of all appellate judges. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5005: Allow Governor to appoint to Supreme Court or Court of Appeals subject to Senate confirmation. As is currently the case for the Court of Appeals by statute there would be a default-confirmation provision; if the Senate fails to vote on a candidate within a certain number of days (depending on if in session or out of session) the candidate is automatically confirmed. Judges would remain subject to yes/no retention elections. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5006: Same as 5005, but judges would serve for life and not be subject to retention or other election.
  • HCR 5009: Require judges receive 67% “yes” vote in retention elections.
  • HCR 5012: Allow Governor to appoint to Supreme Court or Court of Appeals, but only from a list provided by the House of Representatives. The person appointed would be subject to Senate confirmation.
  • HCR 5013: Changes membership of Supreme Court nominating commission: 4 chosen by bar members, 5 chosen by governor, 6 chosen by legislative leaders.
  • HCR 5015: Keeps nominating commission, but gives governor power to name 5 out 9 members. Requires any name submitted to governor be approved by 2/3rds of commission.

In addition to the above SB 197 would have made statutory changes with respect to these commissions, placing them under the state’s Open Meetings Act. The records of attorneys who voted in elections to place attorney-members on the commissions would be subject to the state’s Open Records Act as well.

Missouri

No changes offered.

Nebraska

No changes offered.

Oklahoma

Angry at several recent decisions of the state’s Supreme Court which had resulted an impeachment effort in 2014, both the House and Senate debated either changing or ending the commission-system currently in place.

Two constitutional amendments were offered: HJR 1006 would have targeted just the Supreme Court (and not the other appellate courts), effectively replicating the system in place in Michigan and Ohio. There political parties nominate or hold primaries for judicial candidates who then appear without party labels on the November ballot. HJR 1006 would also have provided that the Governor was to name the Chief Justice from among the justices of the Supreme Court and remove the Chief Justice from that office at will. SJR 32 would have allowed the governor to appoint anyone to the appellate courts subject to Senate confirmation. The existing judicial nominating commission would remain, but as an advisory body to review the appointee prior to Senate confirmation as either “qualified” or “not qualified”. Retention elections would have remained in place for subsequent terms. Neither HJR 1006 nor SJR 32 proceeded out of committee.

Several statutory efforts were undertaken to change the composition of the judicial nominating commission. HB 2214 and SB 795 would have vacated all 6 currently serving attorney-selected members of the commission. The House bill would have refilled the positions with 6 attorneys, 2 each for the Lt. Governor, the Attorney General, and the state bar. The Senate version provided 3 selections each for the Speaker of the House and President Pro Tempore of the Senate. Neither proceeded out of committee.

Rhode Island

In a repeat of a practice that has been renewed annually for almost a decade, HB 6307 would have allowed governors to fill vacancies in judicial office not only based on the contemporary list provided by the judicial nominating commission but from any list submitted by the commission in the previous 5 years. The existing statutory authorization for the 5-year look back provision lapsed as of July 31, 2015. While the House passed HB 6307 prior to the deadline (June 18), the bill remains locked in the Senate Judiciary Committee.

South Carolina

South Carolina’s legislature electes the judges of the state’s higher courts and has for the last several years used a merit selection commission to obtain a list of names for consideration. Presently the commission submit a list of the three best qualified candidates, however HB 3979 and SB 247 would have required the commission release the names of all qualified candidates. That plan was approved by the House on April 29 and remains pending in the Senate Judiciary Committee into the 2016 session. Other bills focused on giving the governor a role in the selection process.

  • HB 3123: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 111: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 180: Commission sends governor list of names, governor picks 3 names, commission reviews 3 names, legislature then picks from 3.
  • SB 242: Commission members to be selected by governor, not legislature.

South Dakota

No changes offered.

Utah

In 2008 Utah’s Justice Courts were brought into the state commission-based judicial selection system. At that time the statute required the nominating commission submit at least two names to the local appointing authority to fill a judicial vacancy. SB 141 included among its various amendments to a variety of statutes a provision that the commission must now submit at least three names. It was signed into law March 23.

Wyoming

No changes offered.

 

New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

I noted back in March the litany of bills that would allow for expanded carrying of firearms into courthouses, and in some cases directly into courtrooms. Since then there’s been a great deal of activity.

In late July North Carolina’s governor signed into law a bill (HB 562) that would allow for prosecutors to carry guns not just into courthouses but directly into courtrooms. Moreover, the no-guns-courthouses policy (specifically that “portion of the building used for court purposes while the building is being used for court purposes.”) already in place no longer applies to administrative law judges or employees of the Department of Public Safety.

At the same time North Carolina was debating expanding guns-in-courthouses, Oregon was moving to restrict. SB 385, as introduced, originally added justice courts and municipal courts to the definition of “court facility” in which firearms and other weapons are prohibited except in specified circumstances. As enacted SB 385 still expands the restriction, allowing municipal court and justice of the peace court judges to ban weapons but only to those portions of the “local court facility” used by the court during the hours in which the court operates. Moreover, in buildings where there are multiple types of court (circuit, municipal, justice of the peace, etc.) the presiding judge of Circuit Court can enforce a ban that cannot be contradicted by an order of the lower court’s judges.

A review of 2015 legislation regarding guns in courts is below the fold.

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