Like most states, Indiana had for decades allowed non-attorneys to serve as judges in at least some courts, previously in the (now disbanded) Justice of the Peace courts and most recently in Town and City Courts. However, the Indiana legislature earlier this month approved, and the state’s governor has now signed, what is the beginning of the end of non-attorney judges in the state.
Under current law adopted in 1998 (IC 33-35-5-7) only judges in 10 towns and cities must be an attorney. Under HB 1110 all new Town and City judges elected in the future must be an attorney. As has occurred when similar efforts were made in other states such as Georgia Municipal Courts in 2011 there is a grandparent clause: all non-attorney Town and City judges currently in office can remain and even be re-elected, but those who follow must be lawyers.
An Oklahoma bill discussed here and here to eliminate the decade’s old practice of linking salaries for executive branch officials to that of judges was vetoed by that state’s governor and promptly overridden by a unanimous Senate.
Under SB 549 the salaries of executive branch officials would have been set at specified amounts (e.g. “The Governor shall receive a salary of One Hundred Forty-seven Thousand Dollars ($147,000.00)) rather than linked (“The Governor shall receive a salary equal to the salary received by the Chief Justice of the Oklahoma Supreme Court…”) Additional increases would come from a new Board on Executive Compensation.
In her May 8 veto message Governor Mary Fallin objected to the practice of specifying salaries in statute.
Recent compensation reform initiatives have discarded the practice of codifying state employee salaries for good reason: fixing salary in statute tends to calcify salaries without regard to such pertinent considerations as inflation; the current fiscal health of the state; and most importantly, each particular employee’s performance.
The veto on SB 549 was sent back to the Senate where it was promptly overridden on May 15on a 36-0 vote. The override now goes to the House which had previously approved the bill 91-1.
Yesterday a Kansas House/Senate conference committee agreed on a plan to tie the judiciary’s entire funding package to its eventual decision in a case currently pending in the state’s trial courts.
As previously discussed here, here, and here, this process started in 2014 when HB 2338 as amended gave $2 million to the state’s judiciary for FY 2015 but with a “non-severability” provision: the funds would only come available on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power. Article 3 of the Kansas Constitution gives the Supreme Court, “general administrative authority over all courts in this state.”
Rather than just ending the 2014 $2 million supplemental, this year’s plan as approved by the conference committee yesterday would completely de-fund the judiciary if the courts rule against any provision in HB 2338, in particular the provision currently contested in a lawsuit filed in February transferring the ability to name chief judges from the Supreme Court down to the District Courts and Court of Appeals.
Local news reports indicate that because the bill is coming out of a conference committee there will be no opportunity to amend out the non-severability provision, meaning legislators will have to vote yes or no on the entire appropriations bill unchanged.
In a repeat of what occurred in 2005 and 2011, Minnesota’s government may be facing a shutdown. When those shutdowns occurred, the state’s judiciary ordered “essential services” to remain funded. However as in 2011 members of the legislature anticipating court-ordered “essential” spending are moving to prevent the courts from issuing such orders.
Prior to the 2011 shutdown the legislature considered preempting any court orders by stripping the courts of jurisdiction to hear any “essential services” cases “except for funding for public safety” (HB 1753 of 2011). Now the same language has made its way into SB 2146 of 2015. Taking this court stripping effort an additional step further is SB 2144 of 2015 which would prevent state courts from ordering any funding whatsoever.
Both bills are currently pending in the Senate State & Local Government Committee.
Colorado and Oklahoma’s legislatures have now taken entirely different directions in how to handle salaries for executive branch elected officials with Oklahoma moving to repeal its system of linking such salaries to judges and Colorado’s legislature voting in essentially the exact same plan.
The Colorado bill (SB 288) raced through the legislature in a single week when according to media reports dissenting House members were removed from the Appropriations committee. Under the plan the Colorado governor’s salary would equal 66% of that of the annual salary paid to the state’s Chief Justice. Other officials would have similar ties
- Governor = 66% of annual salary of Chief Justice of the Supreme Court
- Lt. Governor = 58% of annual salary of a County Court Judge in a Class B County
- Attorney General = 60% of annual salary Chief Judge of the Court of Appeals
- Secretary of State = 58% of annual salary of a County Court Judge in a Class B County
- State Treasurer = 58% of annual salary of a County Court Judge in a Class B County
Moreover, the Colorado plan goes even farther than Oklahoma’s and links the legislature’s salaries to that of judges as well
- Member of General Assembly = 25% of annual salary of a County Court Judge in a Class B County
SB 288 was introduced April 30, cleared the Senate on May 5 and the House on May 6.
The exact day Colorado’s SB 288 was introduced, Oklahoma’s Senate was giving final approval to a plan to repeal a similar linkage system. Oklahoma SB 549 as amended by the House was approved by the full Senate on a 36-0 vote on April 30. If signed by the governor it would end a decade’s long practice of linking executive salaries to that of judicial officials
- Governor = salary of Chief Justice of the Oklahoma Supreme Court
- Lt. Governor = salary of associate District Court Judge of county with population between 10,000 and 30,000
- Attorney General = salary of Presiding Judge of the Court of Civil Appeals
- Superintendent of Public Instruction = salary of District Judge
- Corporation Commissioners = salary of associate District Court Judge of county with population over 30,000
- State Treasurer = salary of associate District Court Judge of county with population over 30,000
- State Auditor and Inspector = salary of associate District Court Judge of county with population over 30,000
- State Insurance Commissioner = salary of associate District Court Judge of county with population over 30,000
- Commissioner of Labor = District Court Special Judge
Because of the linkages the Oklahoma legislature had refused to grant judicial salary increases for years, voting against changes proposed by the state’s Board on Judicial Compensation. Because of the linkages last year saw only Oklahoma District (general jurisdiction court) judges getting an increase (and thanks to the linkages local district attorneys as well), resulting in trial judges making more than appellate judges whose salaries were tied to the Governor, Attorney General, and other state-level officials. That topsy-turvy situation was discussed here. The new Oklahoma plan would delink the salaries and create a special commission to recommend executive salary levels.
UPDATE: The non-severability provision is still alive as HB 2005 as amended by the Senate. HB 2365 deals with funding for the judiciary as approved by a House committee, but the main bill at issue remains HB 2005 which remains alive as of this afternoon (May 5). Story edited below to reflect new info.
This year’s plans to cut the funding for Kansas courts if they strike down certain laws
appear to have fizzled, but the question of cuts to last year’s budget for declaring laws unconstitutional remain remains active in at least one bill to fund the state’s courts.
As detailed here and here, this process started in 2014 with HB 2338 as amended. The bill gave $2 million to the state’s judiciary for FY 2015 but with a “non-severability” provision: the funds would only come available on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power.
The provisions of this act are not severable. If any provision of this act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision.
A lawsuit was filed in February 2015 challenged the constitutionality of HB 2338 in light of a state constitutional provision that “The supreme court shall have general administrative authority over all courts in this state.” That lawsuit is pending a copy is located here.
A new plan was set in motion in 2015 (discussed here) to tie yet another round of funding for the courts to the 2014 legislation as well: if the courts upheld the pending lawsuit and found the 2014 law unconstitutional both it and any funding from the 2015 bill (HB 2005 as amended by the Senate) would be void.
The provisions of this act are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.
A House committee met last week and officially reported out today a plan (HB 2365): the courts could get funds
and the non-severability provision has been removed under this bill. The main funding bill for the Senate side remains HB 2005 as amended and it keeps the non-severability language.
Following a national trend, a plan to create special 3-judge trial court panels at the request of the Texas Attorney General, a practice critics have called “forum shopping” and “judge shopping”, cleared the state senate yesterday. SB 455 as introduced allowed for the creation of such panels at the request of the Attorney General to hear any cases
- (mandatory) involving school financing cases
- (mandatory) involving apportionment of election districts
- (at chief justice’s discretion) that “could significantly impact the finances of the State”
- (at chief justice’s discretion) that “could significantly alter the operations of important statewide policies or programs”; or
- (at chief justice’s discretion) that “is otherwise of exceptional statewide importance such that the case should not be decided by a single district judge”
As approved by the Senate, however, only the first two items (school financing & reapportionment) could serve as the basis for a special three-judge panel. All three judges are to be picked by the state’s Chief Justice as follows
(1) the district judge of the judicial district to which the original case was assigned;
(2) one district judge of a judicial district other than a judicial district in the same county as the judicial district to which the original case was assigned; and
(3) one justice of a court of appeals other than:
(a) the court of appeals in the court of appeals district in which the original case was assigned; or
(b) a court of appeals district in which the district judge appointed under Subdivision (2) sits
Appeals from this special 3-judge panel would go directly to the Supreme Court.
Meanwhile the House version (HB 1091) which keeps all 5 items was approved by the House Judiciary & Civil Jurisprudence Committee on April and remain in the House Calendars committee.