North Carolina: House bill overhauls state’s magistrate judge system

A bill filed in the North Carolina House earlier this week would overhaul the way the state’s magistrate judges operate. HB 126 as filed

  1. Directs the Administrative Office of the Courts to develop a code of conduct for all magistrates by July 1, 2018.
  2. Gives chief district court judges the authority to discipline magistrates including a letter of caution, a written reprimand, or up to a 10-day suspension without pay.
  3. Allows magistrates to be assigned to temporary duty in another county; current law only allows for such a move “during an emergency.”
  4. Requires chief district court judges of each county to appoint a chief magistrate.

HB 126 has been filed in the House Judiciary III Committee.


Arkansas: House committee amends Senate plan to make Supreme Court rules subject to legislature; system similar to one in place in other states

The Arkansas House Judiciary Committee last night voted on its plan to change the way rules adopted by the Arkansas Supreme Court for pleading, practice, and procedure are handled. Currently the state’s constitution vests exclusively authority in this area with the court.

SJR 8, as approved by the senate, would make three key changes

  1. any rules adopted by the Arkansas Supreme Court would not become effective until approved by 3/5ths of the legislature
  2. the legislature could by 3/5ths majority amend or repeal any rule
  3. the legislature could by 3/5ths majority create a rule

The House Judiciary Committee version, however, effectively drops the first provision requiring legislative approval and keeps the other two.

By a three-fifths vote of each house, the General Assembly may enact laws: (A) Amending or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court; and (B) Adopting on its own initiative a rule of pleading, practice, or procedure.

That super-majority provision is similar to ones in place in 4 other states, but each handles it differently.

  1. Alaska’s constitution provides the supreme court the power to make and promulgate rules governing the administration of all courts as well as governing practice and procedure in civil and criminal cases. “These rules may be changed by the legislature by two-thirds vote of the members elected to each house.”
  2. Florida’s constitution gives the supreme court the power to adopt rules for the practice and procedure in all courts. The legislature has the ability to repeal such a rule by general law enacted by two-thirds vote of the membership of each house of the legislature.
  3. South Carolina has two provisions in this area. The first provides the supreme court “shall make rules governing the administration of all the courts of the State. Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts.” The second provides rules created by the supreme court “shall become effective ninety calendar days after submission [to the General Assembly’s Judiciary Committees] unless disapproved by concurrent resolution of the General Assembly, with the concurrence of three-fifths of the members of each House present and voting.”
  4. Utah’s constitution gives that state’s supreme court the power to “adopt rules of procedure and evidence to be used in the courts of the state.”  However, with respect to Rules of Procedure and Evidence, the legislature may make amendments upon a vote of two-thirds of all members of both houses of the Legislature.

Oklahoma: plan to expand who can carry concealed handguns into courthouses passes committee, bill similar to one enacted in Arkansas in 2015

A bill to allow Oklahoma elected officials to carry firearms into the courthouses of the county they serve in cleared the House Public Safety Committee last week.

HB 1104 as amended provides an elected official with a handgun license may carry a concealed handgun when acting in the performance of their duties within the courthouses of the county in which he or she was elected.

A committee amendment was added to make clear that this did not permit courtroom carry (“The provisions of this paragraph shall not allow the elected county official to carry the handgun into a courtroom.”)

The Oklahoma bill is similar to one enacted in Arkansas in 2015 (SB 159 discussed here and here) although the Arkansas version was broader, allowing not only county elected officials but county employees to courthouse-carry as well. The Arkansas law appears not to have impacted the existing statutes that banned courtroom carry.

HB 1104 is now on the House floor.


Iowa: raft of legislation attempts to curtail or end merit/commission selection of judges in state; give governor total control of voting commissioners, make lawyers nonvoting advisory members or simply remove them

I mentioned a few weeks ago an effort to remove all bar-selected members of Iowa’s judicial selection commissions. Now the latest efforts have come forward with a focus on ending merit/commission selection or allowing the governor total control over the process.

As a reminder, Iowa’s merit/commission system for judicial selection is based on 3 nominating commissions: a State Nominating Commission for appellate courts, various District Nominating Commissions for District Court judges, and County Magistrate Appointing Commissions for district associate judges, associate juvenile or probate judges, and magistrates. All have the same basic structure as set out (at least for the State and District commission) in the state’s constitution (Art. V, Sec. 16) but subject to statutory changes (“unless otherwise provided by law” as Art. V, Sec. 16 puts it).

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

HJR 6: end the commissions outright, move to quasi-federal system

HJR 6 as filed covers a litany of issues related to the Court of Appeals (currently a creature/creation by statute). It also, perhaps most critically, simply ends the state’s commission/merit selection system and replaces it with a quasi-federal one. Governors would nominate individuals subject to senate confirmation for Supreme Court, Court of Appeals, and District Court vacancies. It does keep the constitutional provision for yes/no retention elections.

SF 263: remove all the lawyers

Identical to HF 173 which I discussed here, it would simply remove all attorney-selected members of all 3 nominating commissions and replace them with individuals elected by the district/county affected.

SF 327: reduce lawyers to 1 nonvoting/advisory member, give governor total control of voting commissioners

With proponents arguing that lawyers have too much sway over the non-attorney members of the commissions, SF 327 reduces the number of lawyer-selected members on the State Nominating Commission and the District Nominating Commissions to 1 non-voting advisory member and gives the governor total control over the voting members.

Currently, the 17-member State Nominating Commission looks like

  • 8 members of the bar “elected by the resident members of the bar” of the state
  • 8 non-lawyers appointed by the governor subject to senate confirmation
  • 1 voting justice of the supreme court (other than the chief justice) as chair

SF 327 would completely revamp this and give the governor total control over the voting commissioners


  • 1 non-voting advisory member elected by the bar; sitting bar members would be converted to non-voting advisory members and phased out
  • 16 voting members (4 per congressional district) appointed by the governor subject to senate confirmation
  • 1 non-voting justice of the supreme court (other than the chief justice) as chair; the justice could vote only to break a tie




Connecticut: bill increases penalties for threatening judges, magistrates, and referees; 2016 version approved in committee

A bill to increase penalties for threatening judges and judicial officials first introduced in 2016 has been refiled for the 2017 and is set for a hearing next week

HB 5742 of 2017 amends the state’s existing statute against threats which provides, generally, threatening in the first degree is a class D felony and threatening in the second degree is a class A misdemeanor.

Under HB 5742 this would be elevated each one level to a class C felony or class D felony, respectively where the threat is made against “a family support magistrate, a family support referee, judge trial referee or a judge of any court, either elected or appointed, and the threat is related to the magistrate’s, referee’s or judge’s official duties.”

HB 5742 appears to be similar if not identical to HB 5495 of 2016 as amended/committee substituted. That version was approved by the Joint Committee on Judiciary 40-1 but failed to advance.

Florida: Senate now has its own constitutional amendment to allow legislature to override “activist judges” by 2/3rds vote

I mentioned last month the proposal in the Florida House that would allow the legislature to override state court decisions by a 2/3rds vote. Now the Senate has its own version.

HJR 121 and the identical SJR 1098 filed earlier this week provide

Any law, resolution, or other legislative act declared void by the supreme court, district court of appeal, circuit court, or county court of this state may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the legislature pursuant to a resolution adopted by a two-thirds vote of each house within five years after the date that the ruling becomes final. Such resolution is exempt from section 8 of this article and shall take effect immediately upon passage.

The House proponent has posted on own website that the rationale for the proposal, and a similar one urging Congress to enact a federal 2/3rds override plan, is to “curtail the tendency of activist judges to manipulate the law to suit their political views and agendas.”

SJR 1098 has been filed but not yet assigned to a committee.

West Virginia: bill ends plurality wins for state’s supreme court & requires runoffs for top 2 candidates; other judicial races would not be affected

West Virginia’s current voting system for the state’s courts are both nonpartisan (as of 2015) and plurality-win. This meant that in the 2016 contest for the state’s Supreme Court of Appeals the victor (Beth Walker) defeated incumbent Brent Benjamin with only 39.62% of the vote in a 5-way race.

HB 2635 as filed would prohibit such a win in the future, at least for the state’s top court. Instead, if no candidate received a majority of votes, the top 2 candidates would face off in a runoff within 30 days.

Interestingly, this would not apply to the state’s other judicial races. For example in 2016 the Circuit Court District 10, Division 4 seat was won with only 25.49% of the vote in a 10-way race while Circuit Court District 15, Division 1 was won with only 32.67% in a 6-way race. Similar races occurred for the state’s Family Court (37.34% for District 16, Division 1 & 39.11% for District 24, Division 2, both 3-way races).

HB 1635 has been filed in the House Judiciary Committee.