Florida: bills targeting appellate courts clear House Judiciary Committee, heading to full House for vote

Two bills targeting Florida’s appellate courts have cleared the House Judiciary Committee and are now heading for a vote of the full House.

HJR 1, which was approved 11-8 and discussed here, limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. Proponents complained the state’s retention election system was “broken” because no appellate judge had ever lost a race and that therefore term limits were required.

As previously noted, no state puts term limits on its appellate judges and only New Mexico does so in one limited-instance at the trial level (part-time Probate Court judges).

HB 301 approved 12-6 and discussed here requires the Florida Supreme Court to provide a “detailed explanation” to the governor and legislature when a case goes longer than 180 days from oral argument to decision. A similar law was enacted in Kansas in 2014 as a section 4 of HB 2446. That law set time limits of 120 days (trial courts) or 180 days (appellate court) for decisions. Section 4 of HB 2446 was struck down as an unconstitutional infringement on the separation of powers a year later (State v. Buser).


North Carolina: bill to return trial court contests to partisan races clears committee; other states moving in opposite direction

The North Carolina House Elections Committee earlier today approved HB 100, a bill to return the state’s trial court (Superior & District) races to partisan. Media reports here. The bill follows laws enacted in the last 2 years to make appellate races (Supreme Court and Court of Appeals) partisan.

As I noted when this issue came up in 2015, the trend in other states has been away from partisan races and towards nonpartisan ones. As recently as 24 hours ago a New Mexico constitutional amendment to move that state from partisan to nonpartisan judicial races cleared a key committee (discussed here).

  • 2015: West Virginia ended partisan elections for all courts via statute discussed here
  • 2000: Arkansas voters approved Amendment 80, a rewrite of the state’s Judiciary Article, which included nonpartisan elections for all judges.
  • 1994: Mississippi’s legislature enacted the Nonpartisan Judicial Elections Act, moving all judicial races (except Justice of the Peace Court) to nonpartisan.


New Mexico: plan to end partisan judicial elections for top courts clears key Senate committee

The plan to end partisan judicial elections for New Mexico’s top courts (discussed here) cleared the Senate Rules Committee yesterday on a 10-1 vote.

SJR 10 as amended would amend the state constitution’s requirement that races for the New Mexico’s top courts (Supreme, Court of Appeals, District, and Metropolitan) be partisan and replace with the word nonpartisan.

SJR 10 now goes to the Senate Judiciary Committee.


Idaho: “Magistrate shuffle” bill killed in committee; plan would remove guarantee that every county has at least 1 Magistrate’s Division judge

A plan that could have removed the guarantee that every Idaho county have at least 1 magistrate judge and that would have allowed sitting magistrates to be “shuffled” to other counties was killed in committee yesterday.

In Idaho, the Magistrate’s Division serves as the state’s court of limited jurisdiction.

SB 1104 as filed had three main elements

  1. Removed the guarantee that “there shall be at least one (1) resident magistrate judge appointed in each county.”
  2. Removed the power of the district magistrates commission to decide the number and location of magistrate judges and made their role advisory
  3. Allowed the supreme court to move a magistrate judgeship (when a vacancy) or sitting magistrate judge within the same judicial district, but only in counties with less than 0.4% of the state’s population (9 counties). Such a move would have been based on population and caseload.

Media reports indicate the bill faced strong opposition from more rural counties that have seen increasing caseloads but no increase in the number of magistrates.

Senior District Judge Barry Wood presented the bill on behalf of the judicial branch.

“The court believed that it was appropriate to bring this policy question back to the attention of the Idaho Legislature,” Wood said. “Specifically, whether the Legislature wanted to continue funding new positions, or to allow the court to relocate a handful of these judgeships from the least populated counties to where the need was most significant.”

New Mexico: Hearing today on ending partisan elections for state’s top courts

New Mexico uses a unique system of judicial selection for the state’s top courts (Supreme, Court of Appeals, District, and Metropolitan) that includes partisan elections. Under a proposal set for a hearing today in the Senate Rules Committee, the partisan portion would change to nonpartisan.

New Mexico uses a three-step process for these 4 courts under its constitution (Art. VI, Sec. 33)

  1. For initial terms all judicial vacancies are filled by the governor from a list of candidates recommended by a judicial nominating commission.
  2. The political parties then conduct primaries to pick candidates to face off at the next general election. The governor’s appointee is not guaranteed to win that primary.
  3. Whoever wins the partisan general election can obtain additional terms through yes/no retention elections, but there they must obtain at least a 57% yes vote (the original 1988 constitutional provision made it a simple majority; a 1994 amendment raised it).

SJR 10 as introduced would change the second step and require it be a nonpartisan contest.

Each justice of the supreme court, judge of the court of appeals, district judge or metropolitan court judge shall have been elected to that position in a partisan nonpartisan election process as provided by law prior to being eligible for a nonpartisan retention election.

A separate provision would ensure that any judge in office on January 1 after the constitutional amendment was approved would not be impacted by this change.

If a majority of the Senate and House approve the amendment, it would go on to the ballot in 2018.

Arizona: Statewide Court Security Fund clears Senate 27-2, money would be used to bring all courthouses up to Supreme Court’s minimum standards

The Arizona Senate last week approved SB 1161 to create a Statewide Court Security Fund to be administered by the Administrative Office of the Courts. Under the bill the money would be dedicated to “assistance, training and grants to courts to meet minimum standards of courthouse security that are adopted by the supreme court.

Funding would come from an apparently 2% increase on all court fees.

SB 116 has been sent to the House but not yet assigned to a committee.

Montana: Senate hearing on plan to declare new ABA model rule banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Senate Judiciary committee is set to hold a hearing tomorrow on Senate Joint Resolution 15 to declare “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

While rules of procedure are “subject to disapproval by the legislature”, the rules governing bar admission and conduct aren’t. That is not stopping members of the Montana Senate from trying.

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power,”