Arkansas: will legislature in 2015 try a repeat of 2013 efforts to strip Supreme Court of rulemaking power in civil cases?

Efforts originally started in 2013 to strip the Arkansas Supreme Court of its rulemaking power are once again making their way into the 2015 legislative session after having skipped over the 2014 budget-only session.

SJR 1, prefiled for 2015 and authored by the lead sponsor of the main 2013 bill, is a “placeholder” bill with no text but a subtitle and description that parallels the 2013 bill.


The purpose of this joint resolution is to propose an amendment to the Arkansas Constitution concerning civil claims and court procedures

First, some background. Arkansas in November 2000 rewrote their state’s judiciary article (Amendment 80) and in so doing placed in the hands of the state’s supreme court the power to

prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution. (Amendment 80, Section 3)

That exclusive vesting in the court of the power to set such rules, practices, and procedures was cited by the state’s supreme court in 2013 when it struck down a 2003 tort reform law (news reports here).

In 2013, legislative angst at the supreme court’s decision lead to the introduction of a series of constitutional amendments that would have removed the supreme court’s rulemaking power outright, made it subject to legislative approval/disapproval, or limited it in the area of civil litigation/evidence (my coverage of those efforts discussed here and here).

One interesting element was a draft plan circulated in the House at the time to could have tied merit selection for appellate judges to the supreme court’s losing its rule making power (discussed here). Due to a provision in Amendment 80 the change to a merit selection system would require only a legislative vote and would not require voter approval.

The Arkansas Supreme Court, meanwhile, appointed a special task force to examine the issue in August 2013 (order) in response to the efforts

The extended debate in the recent session of the Arkansas General Assembly over both the substance of court rules and changes to this court’s constitutional power and authority to promulgate those rules, coupled with the debate surrounding recent cases involving issues of damages and liability in civil litigation, has revealed the need for review and/or revision of some sections of the Arkansas Rules of Civil Procedure.


Texas: bill would overturn recent Court of Criminal Appeals decision, require courts notify AG when law struck as unconstitutional

I mentioned in March that the Texas legislature had in 2011 enacted a law that would have required the state’s courts notify the AG when a law was struck down as unconstitutional and given 45 days notice before such a judgement was entered (Government Code 402.010(a) and (b)).

That law itself was struck down by the Texas Court of Criminal Appeals (the court of last resort for criminal matters in the state) in March as unconstitutional. In particular the court noted its displeasure at efforts to determine when a judgement could or could not be entered. (“Thus, the 45-day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.“)

Last week, however, an effort was made to put the provision back in place. SJR 8 of 2015 is a constitutional amendment that would, in effect, specifically authorize the legislature to enact, or reenact, Government Code 402.010

Article V Sec. 32. Notwithstanding Section 1, Article II, [the state constitution’s separation of powers provision] the legislature may:

(1) require a court to provide notice to the attorney general of a challenge to the constitutionality of a statute of this state; and

(2) prescribe a reasonable period after the provision of that notice during which the court may not enter a judgment holding the statute unconstitutional.

SJR 8 has been prefiled for the 2015 session.

Texas: Bill would mandate state supreme court & court of appeals render decisions in civil cases within certain deadlines; prohibit justices from sitting on bench until deadlines met

Earlier this year Kansas’ legislature set deadlines for that state’s supreme court to render decisions, in 2015 it appears Texas may attempt to do something similar.

Under SB 64 of 2015 as prefiled the state’s Supreme Court in handling civil cases (the state’s other court of last resort, Court of Criminal Appeals, handles criminal) would be required to grant or deny petitions for review within effectively 300 days of filing (there would be 90 and 180 deadlines based on whether a response was filed and/or briefing occurred). Oral argument would have to occur within 120 days of the final merits brief, and a decision would have to come down 90 days after oral argument. SB 64 also mandates a decision on a case once accepted/petition for review granted be decided within the same term the petition was granted.

The enforcement mechanisms for failure to meet the deadlines would compel the supreme court to name and identify individual justices who were not meeting the deadlines/writing opinions. The enforcement would include

  1. Prohibiting a justice from sitting on bench for oral arguments
  2. Reassigning opinions away from the non-compliant justice
  3. Prohibiting a justice from participating in any way with additional cases
  4. Referring a justice to state’s Commission on Judicial Conduct

Similar provisions would also apply to the state’s Court of Appeals, although interestingly those judges would not be subject to item #4, reference to the state’s Commission on Judicial Conduct. However, if the Court of Appeals itself is out of compliance, the court’s budget would be cut and the judges would not accrue retirement service credits.

SB 64 has been prefiled and not yet assigned to a committee.

Tennessee: Amendment 2 having been approved, implementing legislation prefiled for 2015; specifies how legislature will operate to confirm

With approval last week of Amendment 2 in Tennessee, the state’s constitution now provides appellate judges are to be appointed by the governor, confirmed by the House and Senate, and subject to retention election. The day after the election, a bill to providing implementing language (SB 1) was prefiled for 2015.

One interesting note is the use of a joint judicial confirmation committee in lieu of two separate House and Senate committees when it comes  to confirmation. This is consistent with the practice in the other two states that require dual-chamber confirmation Connecticut (Joint Judiciary) and Maine (Joint Standing Committee on Judiciary). The committee will be split evenly with 7 House members and 7 Senate. It will take a majority of BOTH chamber’s representatives (i.e. 4 House, 4 Senate) in order to confirm; it won’t be possible for example to get an 8-vote majority with 7 Senators and 1 House member. A tie vote on the part of one chamber is deemed a recommendation for rejection. After the committee hearing(s) a joint resolution would be filed in the House and Senate reflecting the vote(s) in committee.

The legislation also reconfirms the use of Tennessee’s unique “retain/replace” language; as I noted previously most other states use some version of “retain: yes/no” and no other state uses “retain/replace”.


Illinois becomes sixth U.S. legislature in 2014 to consider bill for drug testing judges; this version includes testing for alcohol as well

Last week Illinois became the sixth U.S. legislature (five states + 1 territory) to consider a bill to mandate drug testing judges. Under HB 6313 of 2014 a person may not serve as a judge, or return to service as a judge after testing positive, until they first provide a “clean” drug and alcohol test (“a blood alcohol concentration of less than .02″). For judges currently serving, that means a drug/alcohol test once a year. For those judges who tested positive, it means a mandatory substance abuse program plus drug/alcohol testing 9 times a year for 3 years after returning to service.

The other states/territories considering similar bills this year were Tennessee (discussed here), Mississippi (discussed here), Pennsylvania and Missouri (discussed here jointly) and the Northern Mariana Islands where the bill was passed but vetoed.

HB 6313 has been sent to the House Rules Committee.

Election 2014 losers: efforts to change or modify judicial retirement ages 1-for-8 in the last decade

Of the three losing ballot items affecting the courts last night, two were directly related to judicial retirement ages.

Hawaii: third rejection in 8 years

Hawaii Amendment 3, an effort to increase the mandatory judicial retirement age from 70 to 80, was defeated with only 22% of the yes vote, one of the most lopsided loses of any election last night. This is on top of losses in 2006 (eliminate the mandatory retirement age) and in 2012 (keep the mandatory retirement age, let chief justice call judges back for 3 months at a time) discussed and detailed here.

Louisiana: 1 for 3 in last two decades; only victory in an off year election

Louisiana Amendment 5 would have eliminated outright the state’s currently mandatory judicial retirement age (end of term in which a judge reaches 70). This is the third attempt to change the retirement age since 1995 when Amendment 2 of that year (increase age from 70 to 75) was defeated with only 38% of the vote. The next attempt at a change was in 2003. Rather than changing the retire-at-70 provision that had been in the state constitution, Amendment 15 of 2003 adopted the current practice of letting judges finish out the term in which they reach 70. That change was approved with 53.35 of the vote

Nationwide: Efforts to change or modify judicial retirement ages 1-for-8 in the last decade

Since 2004, there have been eight attempts to extend, modify, or alter the mandatory retirement ages for judges and, aside from Texas in 2007, they have all failed.

Details below the fold.

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Election 2014 winners and what they (could) mean for 2015 legislation

A look at the winners in last night’s election may help in predicting what will come out of the 2015 legislative sessions

Alabama Amendment 1 bans state courts from using international or foreign law. This is the 10th such ban in states, however the total number of efforts and their advancement in committee in the 2013 and 2014 sessions have diminished. It is unclear even if any similar bans are introduced whether they’ll make it out of committee in 2015.

Alabama Shelby County Local Amendment 1 requires the Judge of the Probate Court for the county must be an attorney. While similar bills have been proposed to require particular counties or all the judges in a state be attorneys (most states allow for at least some non-attorney judges) they often come to the problem that in many more rural counties there simply aren’t enough attorneys in the county to allow for such a requirement to work.

Arkansas Issue 3 provides (among other things) for the creation of salary commission to determine judicial and other salaries in the state. This commission stands alone among all others in the nation in that its determinations are not only binding (i.e. there is no need for additional legislative approval) they are unable to be overridden by the legislature as well. When similar proposals were introduced in Connecticut and New York, the legislatures balked at giving complete control over elected officials salaries without the legislature itself somehow being involved in either implementation/appropriation or even simply allowing them to override.

Hawaii Amendment 1 requires the state’s judicial selection commission release the names submitted to the governor or chief justice (for District Court seats) for selection to judicial office. Of the 18 states with such systems, now only 3 keep those names a secret after submission: Connecticut, South Dakota, and Vermont. It is unclear whether there will be any effort in these three states to move in Hawaii’s direction.

Nevada Question 1 authorizes the creation of intermediate appellate court (court of appeals). The implementing legislation has already previously been approved so the court will come into existence come January 1, 2015. The focus now turns to the 9 states without an intermediate appellate court, in particular West Virginia whose legislature has debated the creation of such a court for the better part of two decades.

New Mexico Amendment 3 now allows the legislature to set the deadline for judges to file paperwork seeking reelection as something other than the date for primary candidates. As I noted, New Mexico was the only state that required judges seeking retention to file so long prior to the date of election. Since this doesn’t apply to any other state, it isn’t clear this will have any impact in 2015.

Oregon Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions. Several other states have similar items, and there was a similar but not identical effort in Iowa several years ago (HB 2482 of 2010), but it isn’t clear if this approval will have an impact.

Tennessee Amendment 2 creates an appoint-confirm-retention election method for state’s appellate judges. This, coupled with a similar move away from merit selection/commission based appointments for the Kansas Court of Appeals in 2013 and pressure in other states to end these systems in favor of giving governors and legislators some/more/complete power with respect to judicial appointments is almost certain to reappear in the coming years.