Colorado: House amended bill still allows trial judges to rule on their own disqualification motions, but allows for interlocutory appeal

A plan to require trial judges civil cases refer a motion to disqualify to another judge for determination has been heavily amended.

HB 1132 as introduced gave judge who was the subject of such a disqualification motion two options:

  1. grant the motion (and have the chief judge assign a new judge) or
  2. certify the motion to the chief judge of the court for the chief judge to make the determination. If the targeted judge is the chief judge of the court, the chief judge must certify the motion to a chief judge of an “adjoining, like jurisdiction.”

HB 1132 as amended and approved by the House provides that the trial judge will continue to determine, and even reject, such a disqualification motion and must do so within 63 days in a signed, written order.

  1. If granted, the case is reassigned
  2. If denied, a petition for review of the motion to disqualify may be filed in a higher court as an interlocutory appeal (County Court to District Court, District Court to Court of Appeals). Such a petition “must be expedited on the reviewing court’s docket.”

HB 1132 as amended was approved 64-1 in the house on April 20 and is set for a hearing in the Senate Judiciary Committee on May 1.

North Carolina: Governor vetoes attempt to shrink Court of Appeals from 15 judges down to 12; “attempt by a political party to stack the Court of Appeals”, “unconstitutional”

North Carolina’s governor has vetoed an effort by the legislature to reduce that state’s intermediate appellate court (Court of Appeals) from 15 judges down to 12.

The veto message reads in operative part

Fewer judges will increase the court’s workload and delay the people’s access to timely appears and decisions. The bill is an attempt by a political party to stack the Court of Appeals. Additionally, I believe the legislation is unconstitutional.”

As I noted here, opponents claim the bill is a political move by the Republican controlled legislature to avoid giving the Democratic governor the power to fill interim vacancies set to occur as several members of the court are forced into mandatory retirement in the next few years. Proponents argue that that Court of Appeals’ caseload has dropped thus there isn’t the need for as many judges. They also note provisions in the bill that shift some cases directly to the Supreme Court.

The bill now goes back to the House which has scheduled an override vote for April 26.

Bans on court use of sharia/international law: Montana governor vetoes state’s version; claims bill is really “Sharia law ban” and would “open a dark chapter in our state’s history”

Montana’s governor has vetoed that state’s bill that would ban state court use of foreign or international law. Governor Steve Bullock’s veto message for SB 97 cites four main reasons.

  1. Despite protests that SB 97 was not driven by anti-Muslim sentiment, Bullock found the bill was driven by “Sharia law bans” tried in other states.
  2. Foreign law has infused the American legal system for centuries and in particular Montana’s legal system. The Governor here cites an 1871 law that “the common law of England, so far it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, is the rule of decision in all the courts of this state.” That law remains on the books as 1-1-109 MCA.
  3. The law itself is so broad that it would effectively make void and unenforceable almost all contracts that rely on a foreign legal system.
  4. There is no need for the bill since the U.S. and Montana constitutions already protect Montana residents, ” protections that our courts are sworn to uphold.”

The veto message concludes that with a “nation-wide surge in hate crimes” the bill “would open a dark chapter in our state’s history.”


Maine: bill ends state’s judicial compensation commission and merges with other salary commission; Connecticut went in opposite direction in 2012

Since 1995 Maine has had a Judicial Compensation Commission  the makes non-binding recommendations to the legislature regarding judicial salary, benefits and retirement. Now a bill has been introduced to end the Commission and transfer its powers to an existing commission.

Currently the Maine State Compensation Commission makes recommendations for salaries for legislators and top executive branch officials (Attorney General, the Secretary of State, the Treasurer of State and the State Auditor). Under HP 1006 the Judicial Compensation Commission would end; the State Compensation Commission would make recommendations for judicial salaries plus recommendations for the salary of the state’s governors.

The Maine bill is effectively the opposite of what occurred in Connecticut in 2012 where that state’s legislature created a stand-alone judicial compensation commission and pulled judicial salary issues out of the existing Compensation Commission for Elected State Officers and Judges.

HP 1006 has been filed in the Joint Committee on State and Local Government.

Delaware: final approval on constitutional amendment to give governor & senate more time to consider judicial nominees, allow for prospective appointment

A constitutional amendment discussed here and here to give Delaware’s governor and senate more time to consider judicial nominations cleared its final hurdle. With 39-0 House approval, the constitutional amendment will now go into effect (Delaware doesn’t require voter approval of constitutional amendments).

Currently, the constitution provides the governor makes nominations and the Senate confirms for the state’s top courts (all but Alderman’s). Since 1977 every governor has used an advisory Judicial Nominating Commission. The governor and senate, however, are on a timetable:

  • The governor must submit a name to the Senate within 60 days after the occurrence of a vacancy.
  • The Senate, if in session, takes up the name. If not in session, the Governor must within 60 days convene the Senate to take up the nomination.
  • If an incumbent judge remains in office, they can holdover up to 60 days after the expiration of their term.

SB 25 of 2017 would effectively extend these deadlines and allow for prospective appointments if a vacancy is set to occur; the current constitution is silent on the matter.

  • The governor could submit a name to the Senate “from 30 days before to 90 days after” the vacancy happens.
  • The Senate could also be called back into session “from 30 days before to 90 days after” the vacancy happens.
  • Incumbent judges could holdover in office up to 90 days.

The constitutional amendment (then called SB 275 of 2016) was approved unanimously by both chambers last year.

Colorado: Senate committee advances bill repealing 2015 law linking legislative salaries to judicial salaries; executive salaries would still be linked

A 2015 law that links the salaries of Colorado’s state legislators and top executive officials to judicial salaries could be heading for a partial repeal.

SB 288 of 2015, discussed here, made the link for both legislators and top executive branch officials (Governor, Lt. Governor, Attorney General, Secretary of State, and State Treasurer). Legislators received an amount equal to 25% of the total annual salary paid to the judges of the county court in a Class B county.

SB 288 of 2017 effectively decouples the salaries for legislators. 25% of current salaries for county court in a Class B county would serve as the base-point for legislative salaries starting in 2019. Thereafter, there would be inflation adjustments to the legislative salaries starting in 2025.

SB 288 was approved by the Senate Appropriations Committee and floor amended earlier this week. It is currently on the Senate’s April 17 floor calendar.

Montana: Legislature declares new ABA model rule being considered by state’s supreme court banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Legislature has declared “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state. Senate Joint Resolution 15 was approved by the full House earlier this week, having cleared the Senate in February.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power.”