Add Wyoming to the list of states trying to tie executive/legislative salaries to judicial salaries; Oklahoma abandoned the practice

First it was Colorado. Then Indiana. Now Wyoming joins a growing number of states attempting to statutorily tie executive and/or legislative salaries to those of the judiciary.

HB 175 as filed makes two linkages

  • Governor = Supreme Court Justice
  • Secretary of State, State Auditor, State Treasurer, Superintendent of Public Instruction = Circuit Court judge (note: in Wyoming the Circuit Court is a limited jurisdiction court)

It should be noted that Oklahoma had a similar linkage system it abandoned in the same year (and effectively the same week) Colorado adopted its version.

HB 175 was filed in the House but not yet assigned to a committee.



Florida: “Judicial Accountability” bills filed, would force judges off of criminal cases if racial disparity in sentencing found

Two bills were filed in the Florida legislature yesterday that would measure the sentences judges hand down in criminal cases and possibly force judges off of such cases if the racial and other disparities are too great. The bills appear to be in response to reporting done by the Sarasota Herald-Tribune which collected sentencing data on all judges in the state and claimed racial disparities in sentencing practices.

Under HB 255 and SB 382 the legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) would be required to collect data on all criminal sentences handed down from 2013-2017 (House) or “the previous 5 calendar years” (Senate). Data would include:

(a) The judge who presided over each trial.
(b) The judge who presided over the sentencing phase.
(c) The circuit in which, and the specific location of the court at which, each case was heard.
(d) Each offense for which the defendant was convicted or entered a plea of nolo contendere.
(e) The range of possible sentences for each offense.
(f) The sentence imposed for each offense, including, but not limited to, any fines or jail, prison, probation, or other imposed terms.
(g) Demographic information about the defendant, including, but not limited to:

1. Age.
2. Sex.
3. Race.
4. Income.
5. Prior criminal history.

If OPPAGA’s analysis found evidence of disparity in sentencing by a judge with regard to any demographic group, the judge would be could be disqualified from any case involving a member of that demographic group, pursuant to s. 38.10.

Additionally, OPPAGA’s judge-by-judge reports would be delivered to the individual judge as well as the Governor, Chief Justice, and Legislative leaders.

Both bills have been filed but not yet assigned to a committee.

Arizona: citing state’s “sovereign authority”, bill bans state courts from being “commandeered” into upholding federal court rulings; only defeated by 1 vote in 2016

Last year Arizona state senators defeated by a single vote a plan to prohibit state courts from enforcing or upholding federal court rulings as “commandeering” the state’s judges. The plan was approved by the Arizona House 31-27 but rejected 14-15 and then again on reconsideration 15-15 by the Senate (discussed here). The plan has now been refiled in the House with a hearing later today.

HB 2097 of 2017 would provide that “the sovereign authority ” of Arizona allows the legislature to call a halt to any “commandeering” “action” by the federal government. “Action” includes “A ruling issued by a court of the United States.” Moreover, the ruling by the courts of the United States would only be allowed to be enforced or upheld by Arizona courts if “affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States” or via a bill passed and enacted by the state’s legislature & governor.

HB 2097 has a hearing before the House Federalism, Property Rights and Public Policy committee today.

North Dakota: Newly elected House member proposes (literal) military takeover of Judicial Conduct Commission

A bill filed yesterday by a newly elected member of North Dakota’s House would provide for the state’s military to take over the North Dakota Judicial Conduct Commission.

Currently the 7-member commission is made up of 2 District Court judges chosen by their fellow judges, 1 lawyer picked by the state bar’s board of governors, and 4 citizens who aren’t judges, retired judges, or lawyers picked by the governor.

Under HB 1313 the commission would instead be made up of 7 active or retired members of the military chosen by the state’s Adjutant General who serves as the commander of the state’s National Guard.

HB 1313 has been forwarded to the House Judiciary Committee.

Indiana: bill would curtail state supreme court’s power to adopt rules; require court submit proposed rules for legislative review and approval

A bill recently introduced into the Indiana Senate would require rules adopted by the Indiana Supreme Court be stayed until it reviews and possibly subject to approval by the legislature.

SB 406 of 2017 requires the supreme court submit a nonemergency rule and any economic impact statement to the Office of Fiscal Management and Analysis of the Legislative Services Agency to estimate the fiscal impact on state and local government.

If the fiscal impact of the rule is greater than $300,000 the rule would be further subject to a newly created Administrative Rules Review Committee made up of 12 members of the legislature.

Finally, if the impact was greater than $300,000, the Supreme Court’s rule would not take effect unless authorized by a bill enacted by the general assembly.

SB 406 has been sent to the Senate Judiciary Committee.

Washington: “Balance of Powers Restoration Act” introduced, statute would let legislature overturn state appellate courts by simple majority vote

I mentioned a few days ago the constitutional amendment in Florida to allow that state’s legislature to overturn state court decisions striking down state laws by two-thirds vote of the legislature.

Washington State’s legislature is attempting to go one step beyond Florida and enact by statute a provision to allow the legislature to overturn that state’s appellate courts by a simple majority vote.

HB 1072 of 2017, the “Balance of Powers Restoration Act” dedicates several paragraphs toward critiquing judicial review and finds the executive and legislative branches are, in effect, not obligated to follow court decisions striking down laws as unconstitutional.

Instead of judicial review, HB 1072 would set up a three prong process to declare that

The legislature determines, declares, and affirms that …… (the act designated by bill number and chapter number as indicated in the session laws, whether codified or uncodified) as enacted is constitutional, the opinion of the judiciary notwithstanding.

  1. If the Washington Supreme Court or Court of Appeals finds any legislative act violates the state constitution, the House and Senate are to meet in special session (if out of session) or take the case up (if in session or at start of next session).
  2. If the House and Senate both vote by a simple majority to affirm the constitutionality of the legislative act, “the legislative determination is effective immediately, and the legislative act under consideration is binding on all persons affected by it from the effective date of the act, notwithstanding the opinion of the judiciary, but the decision of the case remains binding on the parties to it.”
  3. The legislature’s vote itself would be subject to a popular referendum that could override the legislature (i.e. uphold the court’s decision) by simple majority vote.

HB 1072 has been filed in the House Judiciary Committee.

After 20+ years of trying, New Hampshire legislature again to take up mandatory jury nullification instruction

The latest in the 20+ years of efforts (detailed here) by New Hampshire legislators to require judges give jury nullification instructions are up for a House Judiciary Committee hearing next week. As I noted last year when this came up, current law adopted in 2012 (HB 146) provides

In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Many legislators became angry when the state’s supreme court ruled in 2014 this law did not require a specific jury nullification instruction by judges (State v. Paul (167 N.H. 39))

This year’s bill (HB 133 of 2017) is effectively a repeat of a 2016 bill (HB 1270) approved on a 9-8 vote in the House Judiciary and by the full House 184-145 before being killed in the Senate. HB 133 of 2017 would require judges use the following exact language in instructing criminal jurors

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 133 is set for its House Judiciary Committee hearing on January 19.