Georgia: Why the state’s unique constitutional provision allows supreme court expansion without voter approval

I noted a few weeks ago plans being developed by Georgia’s governor to expand the state’s Supreme Court from 7 to 9 members. One of the interesting aspects of this is that Georgia is one of 26 states in which the legislature could change the composition of the state’s court of last resort without having to go to voters. However, as discussed below, its language is unique from any other state.

A near majority of states (24) provide in the state’s constitution a specific number of justices/judges. For example Arkansas provides their supreme court is to be made up of “seven Justices, one of whom shall serve as Chief Justice.” Changes would require a constitutional amendment.

Beyond this things get more complex. 2 states (Alaska and South Dakota) have a minimum number of judges, but with anti-court-packing provisions: the legislature can expand the court only if the court itself asks to be expanded. (South Dakota: “Upon request by the Supreme Court the Legislature may increase the number of justices to seven.”)

The remaining 24 states give the legislature power to set the number of seats with more or less freedom in terms of numbers.

  • 8 state constitutions provide no numbers as to the composition of the court, leaving it entirely to the legislature to set the number.
  • 8 other states provide a minimum with no maximum number of seats on the court. For example the Arizona Supreme Court must be made up of “not less than five justices. The number of justices may be increased or decreased by law, but the court shall at all times be constituted of at least five justices.” However note that in some cases there are court-packing restrictions which limit the number of seats that can be expanded at any one time (Iowa) or that require super-majorities in two separate legislative sessions (Virginia).
  • 7 states provide for a minimum and a maximum. Indiana’s Supreme Court is made up of a “Chief Justice of the State and not less than four nor more than eight associate justices”
  • 1 State (Georgia) has a maximum with no minimum (“not more than nine Justices.”)

Details of for each state below the fold.

Continue reading

Michigan: Bills to pay for state’s e-court program pass Senate committee; civil fees would go up $5-$25 for next 5 years

A group of bills to pay for and implement Michigan’s e-courts program cleared the Senate Judiciary Committee yesterday. SB 531, SB 532, and SB 533 together would

  • Create a temporary (5 years) e-filing fee on all civil cases: $25 for Supreme Court, Court of Appeals, Court of Claims, Circuit Court, and Probate Court; $20/$10/$5 for District Court (depending on type and amount of civil claim)
  • Government entities would not be required to pay the fees. The fee could be waived due to indigence/inability to pay
  • Courts or court funding units already charging an electronic filing fee can continue to do so until December 2016
  • All fees generated to go to state Judicial Electronic Filing Fund under the control of the Supreme Court
  • Allows local courts to apply to the State Court Administrative Office to access and use money from the Fund
  • Allows Supreme Court to select a qualified vendor for the electronic filing system based on competitive bidding
  • Allows local courts to accept automated payments and for the clerk to charge for any fee associated (merchant transaction fee or 3% of the automated payment, whichever was less)

One committee amendment is of note. Amendment 1 of SB 533 would prohibit courts from charging a fee to retrieve and inspect a document on site, including a document that was filed electronically, but would be allowed to charge a fee to copy a document.

All three bills are now pending on the Senate floor.

New Jersey Legislative Year in Review: false liens on judges and court staff


AB 2481 Creates penalties for filing of false liens/documents against judges, clerks, and other officials. Allows clerks to decline to accept such documents.

SB 2995 Expands counties that may create a central municipal court in lieu of multiple municipal courts throughout county.

New Hampshire Legislative Year in Review: judiciary’s annual weighted caseload study


SB 14 Modifies composition of Judicial Council to reflect renamed/consolidated courts. Repeals a limitation on compensation for counsel for indigent defendants.

SB 65 Adds judicial branch employee member to the deferred compensation commission.

SB 90 Changes to the preparation process for the judicial branch budget.

SB 258 Changes the timing of determination of weighted case units for the purpose of calculating the judicial branch operating budget request and judicial salaries from October to July.

Nevada Legislative Year in Review: compensation commission for judges & other officials

Constitutional Amendment

AJR 10 Creates Citizens’ Commission on Salaries for Certain Elected Officers to set salaries for Supreme Court, Court of Appeals, District Courts, and other state and local officials. All seven members to be appointed to the commission by the governor. Must be re-approved by 2017/2018 legislature before being sent to ballot.


AB 66 Requires justice of the peace in township over 100,000 within a county with a population over 100,000 be an attorney. Increases civil jurisdiction of justice courts to $15,000 (all civil claims) and $10,000 (small claims).

AB 68 Expands Commission on Judicial Discipline’s power to include a person who is a former justice, judge, justice of the peace or other officer of the Judicial Branch who presides over judicial proceedings if the conduct at issue occurred while the person was serving in any such position. Requires that any complaint or action filed in connection with any proceeding of the Commission be filed in the Supreme Court. Requires the Supreme Court to appoint two justices of the peace and two municipal judges to sit on the Commission for formal, public proceedings against a justice of the peace or a municipal judge, respectively. Requires that the existence of a proceeding of the Commission remain confidential prior to determination that a reasonable probability of grounds for disciplinary action against a judge exists and the special counsel files a formal statement of charges. (Currently only the proceedings themselves are confidential). Revises information Commission is required to disclose if a witness is prosecuted for perjury committed during the course of a proceeding before the Commission. Requires any minutes of Commission sessions remain confidential.

AB 69 Revises provisions governing the recycling of paper and paper products by courts; revises provisions governing the duties of court clerks and justices of the peace in relation to the fees charged by those officials; revises provisions governing the collection and reporting of certain statistical information; changes the term “county clerk” to “clerk of the court” in certain statutes; removes provisions requiring courts provide the Court Administrator certain orders relating to bail forfeitures; repeals provisions governing an offer of judgment; repeals the requirement that the Nevada Supreme Court decide an appeal from judgment imposing the death penalty within a certain period; repeals provisions governing the selection of panels of jurors by boards of county commissioners; revises various other provisions relating to court administration.

AB 160 Provides that justice courts and municipal courts may be held outside their township/precinct/city under specific circumstances.

AB 435 Creates 11th Judicial District.

SB 5 Provides unopposed District Judges need not have their names placed on ballots.

SB 69 Modifies Judicial Retirement Plan. Allows retired judge to come back into service as senior judge within 90 days of retirement (currently must wait 6 months). Changes minimum age requirement for retired members to return as senior judges to a requirement that they (1) be receiving a benefit that is not actuarially reduced; or (2) a benefit that is actuarially reduced but the judge or justice has reached the required age at which they could have retired with a benefit that was not actuarially reduced. Also authorizes a retired justice or judge who is a member of the Public Employees’ Retirement System and who accepts employment as a senior judge to continue to receive allowances under the system for the duration of that employment.

SB 197 Prohibits filing false liens/encumbrances on judges or other public official.


Nebraska Legislative Year in Review: changes to judicial salaries & retirement benefits


LB 15 Requires the Supreme Court to provide standards and provide and change duties for and compensation of guardians ad litem.

LB 194 Creates Supreme Court Attorney Services Cash Fund for regulation of practice of law in state.

LB 301 Allows for court opinions and the Nebraska Reports to be released and published electronically.

LB 468 Changes benefit and contribution provisions relating to judges retirement system.

LB 663 Increases judicial salaries.

Montana Legislative Year in Review: judicial redistricting commission; financial disclosures for judges


HB 366 Allows a Justice of the Peace or Clerk of District Court to be paid up to an additional $2,000 per year in addition to their base salaries.

HB 430 Creates judicial redistricting commission to recommend changes to district lines for 2017 legislature.

HB 461 Allows justice court judges to receive additional compensation for longevity in addition to their base salary.

SB 15 Clarifies retired judges or justices may handle all phases of a case if called for service.

SB 72 Repeals law prohibiting political party endorsement of judicial candidates.

SB 89 Requires Supreme Court justices and district court judges to file financial reports.


SB 235 Provides governor may not alter judicial branch budget proposals but must direct them to legislature unchanged.

Pennsylvania: plan to create special appellate program for businesses approved in committee; no other state has such a system

While trial-level business or commercial litigation divisions are in place in various states, Pennsylvania may become the first in the nation to create a special appellate division for such cases.

A version of a plan I discussed here last April to create a special division of Pennsylvania’s Superior Court (on of two appellate courts in the state) to handle business cases was approved by the House Judiciary Committee earlier this week.

HB 323 as introduced would have created a Commerce Division of the Superior Court made up of 2 Superior Court Judges and 3 Senior Superior Court Judges appointed by the President Judge of the Superior Court to hear business cases.

As amended the Superior Court would simply be authorized to use existing funds for a “commerce court program” with no reference to the use of current or senior Superior Court judges. The program would be limited to cases involving

(1)  The internal affairs, governance, dissolution, liquidation, rights or obligations between or among owners and liability or indemnity of managers of business corporations, partnerships, limited partnerships, limited liability partnerships, professional associations, business trusts, joint ventures or other business enterprises, including any actions involving the interpretation of the rights or obligations under the organic law, articles of incorporation, by-laws or agreements governing these enterprises.
(2) Disputes between or among two or more business enterprises relating to a transaction, business relationship or a contract.

HB 323 also authorizes the creation of trial-level “commerce court” divisions within each Court of Common Pleas Judicial District to handle similar cases. Such divisions already exist but only in limited districts.

HB 323 as amended is now pending before the full House.

Missouri Legislative Year in Review: revisions to municipal court statutes


SB 5 Modifies Municipal Court system. Creates minimum standards for municipal governance and creates a remedy process for citizens who believe the minimum standards are not being met. Requires the presiding judge of the circuit court in which each municipal division is located to notify the clerk of the Supreme Court of the name and address of the municipal division by September 1, 2016. Requires the presiding judge of the circuit court in which each municipal division is located to notify the clerk of the Supreme Court if a municipality elects to abolish the municipal division. Requires the Missouri Supreme Court to develop rules regarding conflict of interest for any prosecutor, defense attorney, or judge that has a pending case before the municipal division of any circuit court. Create conditions for the prosecution of minor traffic violations including. Allows for a request for an income tax refund setoff for unpaid court costs, fines, fees, or other sums ordered by a municipal court in excess of twenty-five dollars. Replaces the restrictions on annual general operating revenue. Requires the limit on annual general operating revenue from traffic fines to be reduced from 30% to 20% effective January 1, 2016. St. Louis County and municipalities within that county are restricted to 12.5% of annual general operating revenue from traffic fines. Requires all counties, cities, towns, and villages to submit an addendum with their annual financial report to the State Auditor with an accounting of annual general operating revenue, total revenues from fines, bond forfeitures, and court costs for traffic violations, and the percent of annual general operating revenue from traffic violations. Requires all counties, cities, towns, and villages to submit an addendum signed by its municipal judge certifying substantial compliance with certain municipal court procedures. Provides that any county, city, town, or village failing to timely file or remit excess revenues from traffic fines shall not receive any amount of moneys to which the county, city, town, or village would otherwise be entitled to receive from local sales tax revenues or county sales tax pool revenues. Require an election automatically be held upon the question of disincorporation for any county, city, town, or village which has failed to remit excess revenues. Upon the affirmative vote of sixty percent of those persons voting on the question, the county governing body is required to disincorporate the city, town, or village.

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.