Recent legislative efforts to eliminate, or create, bifurcated criminal and civil appellate courts

The recent impeachment efforts against Oklahoma’s Supreme Court justices for intervening in a criminal case normally handled by the state’s other “top court” (Court of Criminal Appeals) drew attention to the almost unique situation found in that state of having two courts of last resort (COLRs) split between civil and criminal. Only one other state (Texas) has a similar configuration for their COLR(s) but there have been efforts to eliminate the criminal-court in both states. Conversely there have been efforts to create such courts, often wrapped up in legislative anger at the state’s existing Supreme Court for its rulings.

As mentioned two states (Oklahoma and Texas) divided their courts of last resort (COLRs) into two entirely separate courts. At the intermediate appellate court level (IACs) two states are divided: Alabama has a Court of Civil Appeals and a Court of Criminal Appeals; Tennessee simply calls them Court of Appeals and Court of Criminal Appeals.

Alabama

The division between the two courts occurred in 1969 when the existing Court of Appeals was abolished and two new courts created: Court of Civil Appeals and Court of Criminal Appeals. The three judges of the existing Court of Appeals were transferred to the Criminal Appeals bench. In 1973 Constitutional Amendment 328 rewrote the entire judiciary article and made the two courts constitutionally based, rather than statutorily. There have been no efforts to amend the constitution in the last 20 years so as to eliminate or consolidate the courts.

Florida

As discussed at length on this blog in 2011 an effort was made to try and bifurcate the Florida Supreme Court into either two divisions of one court or two separate courts (depending on the interpretation of the bill language). HJR 7111 came out of anger by the House Speaker that several constitutional amendments he had wanted to put on the ballot were struck by the Florida Supreme Court for violating the state’s constitutional process for putting such measures before the voters. The House plan would have put the most senior justices of the existing Supreme Court onto the Supreme Court of Criminal Appeals; perhaps coincidentally the most senior justices were the only justices appointed by Democratic governor(s). The plan was roundly condemned as court packing and the Senate balked at the proposal, instead amending the court-splitting provisions out of the final HJR 7111 (which went on to be defeated almost 2-1 in the November 2012 elections anyway).

Kansas

Similar to Florida, Kansas’ legislators were frustrated with several rulings made by the state’s supreme court, especially those requiring more K-12 funding. When efforts to end merit selection for the Supreme Court failed because they couldn’t get a 2/3rds majority in the House, some House members introduced a bill (HB 2416) to split the existing intermediate appellate court (Court of Appeals) in two. Another bill simultaneously filed would have reduced the mandatory judicial retirement age of judges in order to force the justices off the bench faster. House Democrat Minority Leader Paul Davis told the Wichita Eagle: “Trying to mess with their retirement age and creating new courts are just simply an effort to try to bully the Supreme Court. But there’s just no place for that.” HB 2416 ultimately was never taken up in the 2013/2014 session.

Oklahoma

Oklahoma has maintained a bifurcated system since the state’s 1907 constitutional convention. There has been a single attempt in the last 20 years to merge the two courts. SJR 83 of 2012 would have abolished the constitutional references to the Court of Criminal Appeals. This was part of a package of bills, including SJR 84 of 2012 which would have stripped the newly combined Supreme Court of the power to strike down any law as unconstitutional, instead allowing an “Ad Hoc Court of Constitutional Review” created by the legislature itself to determine whether its laws were constitutional.

Tennessee

Tennessee created its bifurcated intermediate appellate court system in 1967. Rather than splitting or abolishing the existing court (as Alabama did) the Tennessee legislature created a brand new court and transferred criminal jurisdiction to it. Both the Court of (civil) Appeals and the Court of Criminal Appeals remain creations of statute; the Tennessee constitution saying only that “The judicial power of this state shall be vested in one Supreme Court and in such Circuit, Chancery and other Inferior Courts as the Legislature shall from time to time…” There appears to have been no legislative interest in the last 20 years in merging the two courts, nor does there appear to have been an effort to put the courts into the state constitution.

Texas

In 2012 I discussed the (at least) 20 years of efforts to get rid of the Texas Court of Criminal Appeals and outlined its history here. I’m repeating that post below.

The history of why Texas wound its way into this situation is complex (the Texas State Historical Association has an overview) and has prompted one justice of the state’s Supreme Court to declare in a recent dissenting opinion “We Have Arrived Here through Historical Happenstance”. The introduction last month of HJR 36 of 2013 to eliminate the Court of Criminal Appeals represents the fourth such legislative effort to merge the courts, or eliminate the Court of Criminal Appeals, in the last 20 years.

1993: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

The 1993 effort (HJR 97 / SJR 39) went nowhere in House, but was at least the subject of a hearing before the Senate Jurisprudence Committee 4/6/1993.

1999: Merge the Court of Criminal Appeals into Supreme Court; change judicial selection; create judicial term limits

A 1999 proposal (HJR 96) would have effectively merged the two courts, creating a mega-court consisting of 15 justices (Chief Justice + 14), 8 of whom would form a quorum generally. The proposal would have required the concurrence of eight justices to decide a case, authorized the court to sit in panels of at least five justices, and required the court to sit en banc during proceedings involving capital punishment, rehearings of cases on granted motions, and other cases as required by law.

Perhaps even more intriguing about the 1999 proposal was the method of selection for the 15 member court.

  • 7 would be elected by district in partisan elections for their initial terms and yes/no retention elections thereafter
  • 7 would be appointed by district by the governor
  • The chief justice would be appointed by the governor but could not be from the same district has the immediate past chief justice

Finally, HJR 96 would have imposed judicial term limits of 20 years (terms would remain at 6 years).

HJR 96 got a hearing before the House Judicial Affairs Committee on April 26, 1999 and proceeded no further.

2003: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 67 and SJR 40 of 2003, as well as HJR 5A of the First 2003 Special Session, picked up where their 1993 counterparts left off and met substantively the same fate: none received a committee hearing.

2011/2013:  Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 35 of 2011 and HJR 36 of 2013, both introduced by the same House member, repeat almost verbatim the original 1993 proposal(s). Neither the 2011 version nor the 2013 version received so much as a committee hearing