Years ago, I noted the North Carolina/West Virginia paradox. As West Virginia moved to expand its public financing of judicial races (court of last resort at least), North Carolina moved to end their program. West Virginia moved to end partisan judicial races at almost the same moment North Carolina moved to bring their judicial races back to partisan.
The above dynamic is playing out in the 2019 legislative sessions in a host of states: one state moving one way on judicial selection, while a nearby (and sometimes neighboring) state considers going the other way.
Partisan to Nonpartisan
New Mexico SJR 12 would end partisan races for Supreme Court, Court of Appeals, District Court, and Metropolitan Court. A similar plan was introduced as SJR 10 of 2017 (discussed here). The 2017 effort was approved in the Senate Rules Committee but proceed no further.
Mississippi HB 1490 addresses a quirk in Mississippi law. The state has previously ended partisan judicial elections for all courts except the state’s lowest (justice court). HB 1490 would switch these elections to partisan and provide that judges elected to these courts would be considered legally “part-time” judges and eligible to continue to practice law.
South Carolina HB 3034 would require nonpartisan elections in probate courts. Interesting, South Carolina’s probate court judges are the only judges in the state subject to voters. Most (Supreme Court, Court of Appeals, Circuit, and Family) are chosen by the legislature. Magistrates Court judges are appointed by the governor with legislative confirmation. Municipal Court judges are appointed by local government.
Nonpartisan to Partisan
Kentucky HB 123 would amend the state’s constitution to require partisan elections for judges in the state. The move seems, at least in part, prompted by a recent decision of the state’s supreme court striking down the governor’s and legislature’s pension reform plan as unconstitutional.
South Dakota SJR 3 would end nonpartisan elections for all judges.
While a great deal of focus is on judicial races, another key judiciary-related office is that of Clerk of Court. While there have been several attempts in states to make these races nonpartisan over the years, none have succeeded. Nevertheless, the topic is up for debate this year in the following states:
Mississippi SB 2374 would convert several county offices to nonpartisan including Chancery Clerk and Circuit Clerk.
Nebraska LB 72, LB 144, and LB 211 would allow for some of all county officers, including clerks of court, to be elected on a nonpartisan basis. The bills differ in how that change would occur: LB 72 and LB 211 would simply convert these elections to nonpartisan directly. HB 144 would require voters to approve such a change on a county-by-county basis.
South Carolina HB 3032 would end the practice of electing on a partisan basis the Clerk of Common Pleas who serves ex officio as the clerk for all courts of record in a county (unless specified by another statute).
A constitutional amendment filed in the Arizona House would restrict the rulemaking authority of that state’s supreme court.
Currently the state’s constitution gives the supreme court the
Power to make rules relative to all procedural matters in any court
HCR 2006 as filed would amend this to read
Power to make rules relative to all procedural matters in any court.
Additionally, HCR 2006 would add language to the constitution that seems to target the supreme court.
The supreme court may not infringe on the authority of the legislature or the people to enact otherwise constitutional substantive, procedural and evidentiary laws or to carry out any other matter under the constitution. The authority to enact substantive, procedural and evidentiary laws is not a power inherent in the judiciary but is a legislative power inherent in the legislature and the people.
HCR 2006 is not yet assigned to a committee.
An effort to increase security at courthouses and other public buildings in Illinois has been filed in the state’s legislature.
HB 191 as filed would, among other things, require all Illinois sheriffs to provide a walk-through metal detector at each point of entry into the courthouse. All members of the public would be subject to search, however “employees of the county or individuals who display proper credentials” would be exempt. The Department of State Police would make grants to counties/courthouses to pay for the detectors.
The bill includes similar entrance screening requirements for schools, institutions of higher learning, and hospitals.
HB 191 has been filed in the House Rules Committee.
A member of the Montana House has introduced legislation to address the issue of independent expenditures in that state’s judicial elections. Under HB 157 as filed judges would not be able to sit on cases where a party, party’s employee, or attorney has made “aggregate contribution[s]” to the judge’s campaign that exceed the contribution limit set for individuals under state law.
“Aggregate contribution” includes both contributions made directly to a judicial candidate’s campaign PLUS “contributions made independently to or through a person or political committee when the contribution can be shown to benefit the election of the judicial candidate.”
It was independent expenditures in a West Virginia Supreme Court race that was at issue in the U.S. Supreme Court case of Caperton v. Massey. There, the U.S. Supreme Court held that the independent contributions required a justice of the West Virginia court recuse.
HB 157 has been filed in the House State Administration Committee.
Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now voters will decide on a 7th: Business Court.
HR 993 would amend the state’s constitution to create a Business Court. The plan, as amended, would still allow Superior Courts to create their own business court divisions.
Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor. Moreover, unlike any other state, confirmation would be done not by a single chamber (e.g. Senate) or both legislative chambers (as in Connecticut and Tennessee) but by the House Judiciary Committee and the Senate Judiciary Committee.
A hearing was held earlier this week on a series of bills filed to address diversity in the Rhode Island judiciary. Video of the hearing before the House Judiciary Committee is here, starts at around 56:30 and ends at around 85:00. During testimony the author of the bills asserted that of Rhode Island’s 85 judges, few are “of color” and that the Judicial Nominating Commission had demonstrated bias in the past against persons of color. Moreover, the lead sponsor accuses some judges in Rhode Island of using their robes “as a lynching opportunity for people of color and poor people.”
The bills were (in order)
HB 7532 Requires that the judicial selection commission be composed of at least three members of color.
HB 7648 Provides any trial court seat currently filled by a “person of color” can only be filled in the future by another “person of color.”
HB 7649 Requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.
HB 7908 Requires the judicial nominating commission to consider a nominee’s unique background and field of practice rather than emphasizing trial and courtroom experience in selecting new members of the judiciary.
The House Judiciary committee recommended the measures be held for further study.
A bill to increase funding for Kansas public schools that passed the House will not move in the Senate until both chambers approved a bill to strip to Kansas judiciary of jurisdiction to hear K-12 funding disputes.
First, some background.
As mentioned on this blog over the years the Kansas Supreme Court has issued several decisions finding the legislature’s system and amounts for public education were unconstitutional under a provision that
The legislature shall make suitable provision for finance of the educational interests of the state.
Dozens of constitutional amendments detailed here have been filed over the last decade to strip the Kansas courts of jurisdiction to hear cases under this provision and to allow the legislature to set whatever funding levels and funding sources it wished.
The Kansas Supreme Court has given the legislature until April 30 to come up with a constitutional funding formula.
The House, in response, today passed HB 2445 to provide additional funding.
Senate leadership, however, has announced no funding bill will be taken up in the Senate until a constitutional amendment (HCR 5029 or something similar) is approved by the House and Senate and sent to voters. Moreover, local media reports if the amendment fails to pass the House, Senate leaders will simply not take up the funding bill at all.
That amendment would amend the constitution to read
As all political power is inherent in the people, the legislature shall make determine suitable provision for finance of the educational interests of the state. The determination of the total amount of funding that constitutes suitable provision for finance of the educational interests of the state is exclusively a legislative power, and shall be made as provided by law. Such power is committed to the legislature under article 2 of this constitution and shall be shown due respect by the other branches of government. No court, or other tribunal, established by this constitution or otherwise by law shall alter, amend, repeal or otherwise abrogate such power, nor shall such power be exercised by, either directly or indirectly, by any such court or other tribunal.
A plan to impeach members of the Pennsylvania Supreme Court for their decision in a gerrymandering case discussed here has now become official.
Justices David N. Wecht, Debra McCloskey Todd, Christine Donohue, and Kevin M. Dougherty are all officially charged with misbehavior in office for their opinion in League of Women Voters of PA, et. al. v. The Commonwealth of PA, et. al., No. 159 MM 2017. The U.S. Supreme yesterday declined to take up a challenge in the case.
HR 766 (David N. Wecht)
HR 767 (Debra McCloskey Todd)
HR 768 (Christine Donohue)
HR 769 (Kevin M. Dougherty)
UPDATE: The main author of the resolutions was quoted by The Hill as saying
“This is basically 7th grade civics class all over again, the separation of powers and the authority of the legislature,” Dush told The Hill. “The courts basically are there to interpret when there’s conflict in the law, and they don’t have any sovereignty.”
I mentioned that West Virginia is unique among all states in that the judiciary’s budget request to the legislature cannot be reduced. The West Virginia House and Senate, after disagreeing on specific language, have now sent to voters a plan to put the legislature in charge of the judiciary’s budget (news here and here)
The current constitutional language provides
The Legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased
SJR 3 as made its way through committee looked like this
shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein: Provided, That no item relating to the judiciary shall be decreased, Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state
In the end, however, the version approved provides percentages beyond which the legislature may not cut. Gone is anything about protecting the budget from legislative actions based on “a particular ruling, order, or decision of a court of this state.”
That the Legislature
shall may not decrease the total general revenue appropriations to the judiciary in the budget bill to an amount that is less than 85 percent of the amount of the total general revenue appropriations to the judiciary in the most recently enacted budget without a separate vote of the Legislature approved by a two-thirds vote of the members elected to each house, determined by yeas and nays and entered on the journals.
SJR 3 goes to voters in November.
The Mississippi Legislature has unanimously advanced to the governor a bill to expand the power of the state’s Chief Justice to appoint “special judges” to help clear up case backlogs.
State law already allows the Chief Justice, with the consent of a majority of the Supreme Court, to make such appointments for the Court of Appeals, Chancery Court, or Circuit Court. Now the Chief Justice could name such temporary special judges to County Courts.
Additionally, rather than simply appointing the temporary judge to a court, the Chief Justice could give the temporary judge particular assignments (“The Chief Justice, in his discretion, may appoint the special judge to hear particular cases, a particular type of case, or a particular portion of the court’s docket.”)