I mentioned back in January that several states were putting forth their own version of a new Indiana law that would put the state’s top judges into the middle of possible future U.S. constitutional convention fights, including authorizing the arrest of delegates that failed to abide by the wishes of their respective state legislatures. The Florida and Georgia legislatures have in the intervening weeks moved their versions of this law through at least part of the legislative process with Florida opting to remove judges from their version but Georgia keeping theirs.
The Indiana law provided that the state’s top three appellate judges would serve as an “advisory body” to any convention delegate as to whether or not the delegate was remaining faithful to the will of the legislature. That “advisory body” of judges would also be a quasi-grand jury authorizing the criminal prosecution of a delegate who failed to remain faithful.
Florida has two versions: HB 609 and SB 1008. HB 609 originally put the state’s chief justice as the head of that state’s advisory body. The author deliberately amended out the presence of the chief justice in committee after it was pointed that having a judge on such a body likely violated the separation of powers provisions of the Florida Constitution that “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” (Amendment #3, see video here at 9:55) SB 1008, however, still has the chief justice.
Georgia HB 930 however retains the presence on this “advisory body” of not only the Georgia Chief Justice, but the Chief Judge of the Court of Appeals of Georgia, and the chief judge of the Superior Court of Fulton County. This three judge panel would then refer any delegate to the Attorney General for prosecution. It is not clear if this, too would run afoul of any similar provision of the Georgia constitution regarding separation of powers.