Alaska Senate State Affairs committee approves plan to give governor control over Judicial Council/merit selection

Yesterday the Alaska Senate State Affairs approved SJR 3, a constitutional amendment to give the governor control over the state’s Judicial Council which serves as both the merit selection commission and the judicial performance evaluation commission which issues its recommendations prior to retention elections.

Presently the Council is made up of 7 members

  • 3 lawyers picked by bar
  • 3 nonlawyers picked by governor and confirmed by legislature
  • 1 chief justice as chair who votes to break ties

SJR 3 would give the governor a 6:3 advantage on members and require the lawyers picked by the bar be subject to legislative confirmation.

Similar plans died last year for failure to meet the 2/3rds majority required in the House and Senate, however it is possible this year that if all members of the Senate Majority Caucus approve the plan in the Senate (13 GOP Senators + 2 Democrats) that it will at least clear that chamber.

Kansas: legislators want to spell out impeachment threat against Supreme Court (and only the Supreme Court) possibly for K-12 funding decisions that “usurp” the legislature

The ongoing tensions between the Kansas judiciary and legislature over K-12 education funding is leading to some hint at impeachment for the court.

SB 297 was filed yesterday in the Senate Judiciary Committee. While the Kansas constitution grants the power of impeachment for all state officials (Art. II, Sec. 27 & Art. III, Sec. 15), this particular bill targets the Supreme Court specifically and seems to allude to the possible impeachment if they find the state’s K-12 funding is insufficient.

Currently, the state constitution (Art. II, Sec. 28) limits impeachment to “treason, bribery, or other high crimes and misdemeanors.” The listed causes for impeachment in SB 297 include the items in Art. II, Sec. 28 but also now include

  • attempting to usurp the power of the legislative or executive branch of government
  • attempting to subvert fundamental laws and introduce arbitrary power
  • commission of treason
  • commission of bribery
  • commission of other indictable criminal offenses
  • commission of a breach of the public trust
  • commission of a breach of judicial ethics
  • failure to perform adequately the duties of office
  • exhibiting wanton or reckless judicial conduct
  • exhibiting personal misbehavior or misconduct
  • failure to adequately supervise subordinate employees

SB 297 is pending before the Senate Judiciary Committee.

Four states debate redrawing judicial districts/circuits: should it be a question of caseload? Population? Who should be on the commissions?

This year marks a dramatic uptick in the number of states that are examining the possibility of redrawing their judicial circuits/districts. How states plan on doing this and whether the districts should be redrawn focused on population or court workload are key questions at play.

Kentucky

Section 110 (appellate) and Sections 112 (trial) of the Kentucky constitution contend with the issue of judicial districts. In particular redrawing trial districts puts the Supreme Court into the mix.

The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name “Judicial Circuits,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts.

SB 49 adds to this by directing the Supreme Court submit a “suggested plan of correction” for circuit/district lines or the reallocation of judgeships. Interestingly, the plan calls for the use of two different criteria to be used

  • Appellate districts: “population only”
  • Trial districts/circuits: “populations or caseloads”

Moreover, SB 49 retains the policy that the General Assembly ultimately makes the decision to draw the lines; this a marked difference as compared to a 2013 constitutional amendment (HB 391) that would have let the Chief Justice redraw the lines as workload required.

SB 49 was approved 31-1-1 in the Senate and approved by the House State Government Committee; it is currently pending on the House floor.

Montana

HB 430 creates a judicial redistricting commission to recommend changes to district lines for the 2017 legislature. The commission would be made up of 7 members

  • 1 House or Senate member chosen jointly by majority leaders
  • 1 House or Senate member chosen jointly by minority leaders
  • 2 District Court Judges chosen by Chief Justice
  • 1 District Court Clerk chosen by clerk’s association
  • 1 County Commissioner chosen by counties association
  • 1 member of bar chosen by Bar President

In addition to a catchall provision, the commission would examine judicial redistricting using 6 factors

  1. population of the judicial districts
  2. judicial district’s weighted caseload as determined by judicial workload studies
  3. relative proportions of civil, criminal, juvenile, and family law cases
  4. extent to which special masters, alternative dispute resolution techniques, and other measures have been used
  5. distances in highway miles between county seats in existing judicial districts and any judicial districts that may be proposed by the commission
  6. impact on counties of any changes proposed in the judicial districts

HB 430 was narrowly approved by the full Montana House on a 51-49 vote on 2nd Reading on March 23. It was ultimately approved by the full House on a 54-46 vote yesterday (March 24) and is awaiting transmission to the Senate.

North Carolina

SB 226 directs the Legislative Research Commission (made up entirely of legislators) to study the state’s current trial court districts. The criteria do not mention population, instead focus on three others

  • improve the efficiency of the court system
  • provide for improved administration
  • better balance the caseloads in the various districts

SB 226 is currently in the Senate Rules Committee.

Tennessee

HB 144 was to be a bill about efiling in Tennessee courts. As amended in its entirety yesterday (March 24) it now creates a new way for Tennessee to redraw its judicial district lines. Amendment 1 to HB 144 directs the creation of a task force to recommend new judicial district lines and a joint House/Senate committee to review the proposal.

The Advisory Task Force to Review the Composition of Tennessee’s Current Judicial Districts would be made up of 13 members chosen by the House Speaker (6), Senate Speaker (6), and a joint appointment (1). The members would have to consist of

  • 3 current trial court judges, one from each grand division in the state
  • 3 current district attorneys, one from each grand division in the state
  • 3 current public defenders, one from each grand division in the state
  • 4 other members to be determined by speakers

There is no direction regarding the criteria for the new lines, other than

  • reasonable and timely access to Tennessee’s circuit, chancery, and criminal courts
  • promote the efficient utilization of publicly-funded resources allocated for the courts

The Task Force would make its report to a new Joint Legislative Committee on Judicial Redistricting made up of 5 House and 5 Senate members. The Joint Legislative Committee would remain a permanent feature in law being reconstituted every 8 years; the Advisory Task Force would have to be reenacted each time.

HB 114 as amended was approved yesterday (March 24) by the House Civil Justice Committee and referred to the House Finance, Ways & Means Committee.

Hawaii House resolutions call for judiciary’s website to be rewritten to include Hawaiian language; task force includes few members from judiciary

Hawaii’s State Constitution declares in part that “English and Hawaiian shall be the official languages of Hawaii.” In response, a member of the Hawaii House has introduced both a simple (HR 152) and concurrent (HCR 217) resolution calling on the judiciary to consider a redesign of the branch’s website to include material in Hawaiian. Both resolutions are set for hearings tomorrow (March 25) before the House Ocean, Marine Resources, & Hawaiian Affairs Committee.

Specifically the resolutions call for a special task force to prepare a report in the next year on the subject of converting materials on the judiciary’s website to Hawaiian. Interestingly the 12 member task force would be made up of only 2 members from judiciary. The task force’s specific assignments would be:

  1. Conduct a feasibility study to examine the scope and cost of implementing Hawaiian language resources on the Judiciary’s public website, as well as legal forms and documents
  2. Develop a plan to ensure that updated information contained on the Judiciary’s public website contains the accurate, appropriate, and authentic Hawaiian language version of all documents
  3. Identify the resources necessary to effectuate the purpose of this measure, such as manaleo, native Hawaiian speakers, who can provide services to timely ensure all information on the website is appropriately updated into the Hawaiian language, information technology software, and the cost of services and software
  4. Conduct any other business deemed necessary to carry out the purpose of this measure

Carrying guns into courthouses: Arkansas moving legislation, Texas debating, North Dakota rejected

Continuing a trend that’s been moving nationally over the last several years, efforts have been pressed in this legislative session to expand those people who are allowed to carry weapons into courthouses.

Arkansas

Current law (Arkansas Code § 5-73-306(5) & (6)) puts forth a general ban on concealed handgun permit holders carrying a firearm into a courthouse (5) or courtroom (6). Last week the Arkansas Senate Judiciary Committee approved SB 159, a plan to allow allows any county employee with a concealed carry permit to bring their gun into the courthouse that contains their primary place of employment. More than just the courthouse, the person would be permitted to carry into

Any courthouse, courthouse annex or other building owned, leased, or regularly used by a county for conducting court proceedings or housing a county office

The Arkansas Senate could vote on this proposal as early as today.

Meanwhile the Arkansas House approved earlier in March a more limited bill (HB 1626) that allows elected officials with a concealed carry permit to carry into courthouses. That bill was approved March 12 on an 80-4 vote.

North Dakota

Current law (62.1-02-05) makes it a crime to possess a firearm at a “public gathering” which includes courthouses and other “publicly owned or operated buildings.” HB 1157 as introduced would have permitted any elected official with a concealed weapons license to carry into such “publicly owned or operated buildings” with their weapon.

The House Judiciary Committee approved a modified version: the ban on handgun carrying would still apply but only in areas designated and made a “secured court facility”

“Secured court facility” means a building or portion of a building in which court proceedings occur and in which access is not permitted unless an individual passes through equipment that detects weapons and is staffed by armed security personnel.

The language is very similar to a Kansas law enacted a few years ago that used the term “adequate security” instead of “secured court facility.” The only way a court would be able to prohibit carrying weapons into a courthouse area was if there was the resources to provide for scanners and armed security. The amended bill was rejected by the House Judiciary Committee 5-8 but advanced to the full House, where it was rejected on a narrow 45-47 vote in February.

Texas

Texas Penal Code Sec. 46.03(a)(3) provides

A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a)…on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.

Two bills on this subject, one of which is set for a hearing tomorrow, would provide exemptions to this restriction and allow county employees or officials to carry into the courthouses. Texas HB 2241 would allow a “county officer” or “county employee” to possess a firearm in a courthouse. The county officer would need to have a concealed handgun permit; a county employee would need both a permit and the permission from both the local governing body and the county officer who supervises the employee.

An alternative bill (HB 3007) would be limited to county and court clerks only that possess a concealed handgun permit. No additional permissions would be required.

Week ahead: changing judicial selection in Alaska and Texas; Texas “Chancery” courts; increasing NC mandatory judicial retirement age; Tennessee court e-filing task force

March 23
March 24

North Carolina House Pensions and Retirement Committee

HB 50 Allows judges to serve until the *end of the year* they reach 72 (currently may serve until *end of the month*).

Tennessee House Civil Justice Committee

HB 144 Establishes advisory task forces to study and report recommendations on electronic filing in state courts and the appointment of counsel for indigent defendants

Tennessee Senate Judiciary Committee

SB 41 Establishes advisory task forces to study and report recommendations on electronic filing in state courts and the appointment of counsel for indigent defendants.

SB 649 Establishes advisory task forces to study and report recommendations on electronic filing in state courts and the appointment of counsel for indigent defendants.

Texas House Business & Industry Committee

HB 1603 Creates chancery court and the court of chancery appeals to hear certain complex civil cases.

Texas House Judiciary & Civil Jurisprudence Committee

HB 25 Ends straight-party voting for judicial offices.

March 25

Tennessee House Civil Justice Committee, Civil Justice Subcommittee

HB 1306 Requires any meeting of supreme court justices where voting for a candidate for the office of attorney general and reporter occurs to be subject to the open meetings law

Washington Senate Ways & Means Committee

SB 5449 Creates a tax division of the court of appeals.

March 26

Alaska Senate State Affairs Committee

SJR 3 (Constitutional Amendment) Expands Judicial Council from 7 to 10. Provides governor to name majority of council members (6 out of 10). Requires all members of Council be confirmed by legislature. Provides quorum of 7 to take any action.

March 27

Nevada bill eliminates elections for District Court judges; lets lower chamber of legislature pick all future judges

This session has seen two efforts to outright end judicial elections (partisan, nonpartisan, or yes/no retention) and provide instead for reappointment/reconfirmation: Oregon appellate judges (discussed here) and Maryland trial judges (discussed here). There is now a third such push in Nevada that focuses on trial judges, but in a unique fashion.

First, some background.

Nevada’s District Court is the state’s general jurisdiction court. The state’s constitution requires the judges of that court be elected for full 6 year terms (Art. 6, Sec. 5) and a separate state law makes those elections nonpartisan (NRS 293.195). Interim vacancies are filled by the Governor through a Commission on Judicial Selection that submits a list of three names for selection (Art. 6, Sec. 15).

AJR 9, as introduced, modifies the Commission on Judicial Selection system to apply to full and interim terms of the District Court. First, it extends the District Court judge’s term in office to 8 years. Second, it eliminates the Governor’s role entirely. Third, when any vacancy occurs the Commission would submit a list of names to the legislature’s lower chamber (Assembly) for selection. Given that the legislature does not meet in even-numbered years, the Assembly would have the power to convene itself out-of-session to handle the judicial appointments. Fourth, when judges completed their 8 year terms, they would not have to face voters; instead they would be required to resubmit their names to the Commission for review. The judges would not be guaranteed to be among the three names submitted by the Commission to the Assembly and the Assembly would not be required to automatically reappoint them.

AJR 9 has been assigned to the Assembly Committee on Legislative Operations and Elections.