Unable to change merit selection for Supreme Court, Iowa legislators look to end it for Court of Appeals

I mentioned last week a statutory effort to end merit selection for the Kansas Court of Appeals. I noted at the time that these intermediate appellate courts, because they are often created by statute, are also able to have their selection methods changed by statute alone (vs. a constitutional amendment).This week, it is Iowa, likely in partial response to anger and angst over the state’s supreme court ruling in favor of same sex marriage several years ago.

The Iowa Constitution guarantees merit selection for that court (and the lower, District Court), and efforts have been introduced to end that system (HJR 12 and SJR 13). Such efforts would require two consecutive legislatures to approve it (majority vote only), plus approval at the ballot box. Thus, a change in the system would take years and a great deal of effort. The Court of Appeals, because it relies on a mere statute (Iowa Code 46.12 and 46.14A) can have its selection system changed in a matter of weeks during a single legislative session.

Enter HB 429 of 2011 which would end merit selection for the court and replace it with gubernatorial nomination and senate confirmation. Like the Kansas proposal, it would not do away with retention elections, however.

The bill is currently pending before the House Judiciary Committee.

Issue 5:9 is out with a focus on Stripping Rule Making Power of Supreme Courts

Issue 5:9 (February 25) is here.

  • Focus Trend: Stripping Rule Making Power of Supreme Courts
  • Iowa moves to strip its supreme court of jurisdiction over same-sex marriage cases
  • A Missouri bill would prohibit its courts from using “non-originalist” or “living, breathing document” interpretations of laws and constitutions
  • Arizona and New Mexico’s Houses move to increase the requirements for magistrates and judges
  • Illinois House members are asking the state’s Auditor General to audit the Judges Retirement System
  • Despite passage by the full Senate, the Mississippi House rejects a judicial salary increase
  • Washington’s Senate rejects a constitutional amendment to allow for a reduction in judicial salaries
  • Merit Selection: Arizona’s Senate advances bills to modify it, Kansas’ House votes to end it for the Court of Appeals, and Maryland’s House rejects efforts to bring it in for the state’s Circuit Courts
  • California’s Assembly considers a bill of rights for trial courts
  • West Virginia might just get an intermediate appellate court after all
  • Idaho and Tennessee bills would make it easier to carry guns in courthouses

Judicial impeachment efforts advance in New Hampshire and New Jersey

The last few weeks have been particularly active in the area of judicial impeachment.

In New Jersey, SR 105 expressed the sense of Senate that in the event the General Assembly does not proceed with impeachment Justice Roberto Rivera-Soto that he should resign as Justice of the New Jersey Supreme Court. The criticism of Justice Rivera-Soto arises from controversy over a vacancy on the state’s supreme court. It began in May 2010 when, for the first time, the Governor declined to automatically reappoint a supreme court justice back to the court (Justice John E. Wallace Jr.), instead nominating Anne Patterson. The Senate President has declined to have a confirmation hearing on Patterson, resulting in a vacancy on the high court.

Chief Justice Stuart Rabner temporarily elevated a trial court judge into the vacancy, an act Justice Rivera-Soto decried in at least two December 2010 opinions as unconstitutional. Justice Rivera-Soto filed a separate opinion in Lula M. Henry v. New Jersey Department of Human Services “abstaining and expressing his view that the Constitution allows the assignment of a Superior Court judge to serve on the Supreme Court only when necessary to constitute a quorum and stating that he will continue to abstain from all decisions of the Court for so long as it remains unconstitutionally constituted.”

Less than a month later on January 12, 2011 in Hopewell Valley Citizens’ Group, Inc. v. Berwind Prop. Group Dev. Co., L.P. Justice Rivera-Soto modified his position: “This process [blanket abstention from all decisions of the Court] has revealed a previously unconsidered, but nevertheless reasoned and measured alternative approach, one that minimizes the jurisprudential uproar a blanket abstention might create but that also maintains the intellectual and constitutional integrity that undergirds my earlier abstaining opinion… I will cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case.”

The result was SR 105

It is the sense of the Senate that the actions of Justice Roberto Rivera-Soto are prejudicial to the administration of justice and constitute a serious violation of the public trust. It is also the sense of the Senate that the actions of Justice Rivera-Soto may constitute grounds for impeachment for misdemeanor committed during his continuance in office. It is further the sense of the Senate that in the event the Assembly does not consider Articles of Impeachment, Justice Roberto Rivera-Soto must resign his seat as Justice of the Supreme Court of the State of New Jersey.

The resolution passed on February 17 on a 21-3-16 vote. All the Senate Republicans declined to vote on the resolution.

In New Hampshire, the House Judiciary Committee advanced a bill to start an impeachment investigation of Marital Master Philip Cross. I detailed HR 7 in a prior blog post here and some of the history and prior attempts to have the Martial Master and other judges/judicial officers removed from office last year. The efforts against Martial Master Cross derive from what the Concord Monitor described as a “witch hunt” lead by “men angry about the outcome of their divorce cases.” According to the New Hampshire Bar Association e-Bulletin, the House Judiciary committee on March 1 voted 10-5 to proceed with the investigation of not only Cross but, according to the text of HR 7, “and/or any justice of the New Hampshire superior court.”

Indiana: Floor amendment to unrelated bill would require courts provide bulk data

Courts have been contending with how to handle bulk data requests for years. Recently, however, efforts in Arizona and other states have sought to bypass the courts and mandate the disbursement by legislative act. The most recent example is in Indiana.

SB 561, as introduced, dealt with corrections and sentencing. A floor amendment, added on February 21 however, requires the division of state court administration to implement a standard program for disseminating bulk court case information for a reasonable fee. Moreover, the bill requires an executive branch agency (the Indiana Office of Technology) annually certify that case management systems operated or funded by the division of state court administration comply with this program.

Finally, while the amendment allows for the charging of “a reasonable fee” it defines “reasonable” as “not [to] exceed the direct cost of operating the export program and delivering data to the recipient plus a prorated fee to recoup the direct costs of developing the export program. In any one (1) year, the aggregate prorated fees charged under this subdivision may not exceed five percent (5%) of the direct costs of developing the export program.”

The bill, as amended, was approved by the full Senate 2/22/11 and is currently in the House awaiting committee assignment.

Cross-posted to Court Technology Bulletin.

New Idaho law allows the Supreme Court to enter into certain contracts for collection services for debts owed to courts

With state courts struggling to stay open, many states are trying to recover costs and debts owed. As noted yesterday, Pennsylvania and other states have allowed for use of private collection agencies. Idaho’s governor last week signed a bill last week that expanded the Idaho judiciary’s ability to recover such debts using private companies.

Since 2000 (Idaho Code § 19-4708) state law has authorized clerks of the district court, with the approval of the administrative district judge, to enter into contracts with collection services for the collection of debts owed to the courts in criminal cases, including fines, court costs, fees, and restitution to victims of crimes.

HB 67 enables the Supreme Court to enter into contracts with collection services for the collection of these debts on a statewide basis. Proponents argue this will provide an option for collecting these debts that may be more efficient and effective.

The new law goes into effect July 1.

MD: Bills would require Administrative Office of the Courts keep central registry of when spouses refuse to testify against spouses in domestic violence cases

For decades, Maryland law has required that the invocation of spousal privilege in domestic violence cases be especially noted and recorded by the court clerk (Md. Courts and Judicial Proceedings 9-106)

(b) Record of assertion; expungement.-

(1) If the spouse of a person on trial for assault in any degree in which the spouse was a victim is sworn to testify at the trial and refuses to testify on the basis of the provisions of this section, the clerk of the court shall make and maintain a record of that refusal, including the name of the spouse refusing to testify.
(2) When an expungement order is presented to the clerk of the court in a case involving a charge of assault in any degree, the clerk shall check the record to determine whether the defendant’s spouse refused to testify on the basis of the provisions of this section.
(3) If the record shows such refusal, the clerk shall make and maintain a separate record of the refusal, including the defendant’s name, the spouse’s name, the case file number, a copy of the charging document, and the date of the trial in which the spouse refused to testify.
(4) The separate record specified under paragraph (3) of this subsection:

(i) Is not subject to expungement under Title 10, Subtitle 1 of the Criminal Procedure Article; and
(ii) Shall be available only to the court, a State’s Attorney’s office, and an attorney for the defendant.

Two Maryland bills (HB 1169 and SB 919) would require the record of refusal be sent to the Administrative Office of the Courts to maintain a central registry. Access to the individual record would be limited to the court, a State’s Attorney’s office, an attorney for the defendant, the spouse, and the defendant. Access to statistical data from the registry would be limited to “an organization that conducts research or provides services related to domestic violence…for research, evaluation, and statistical analysis…[and]…may not contain any unique identifying information, including names, record numbers, or case file numbers.”

HB 1169 is set for a House Judiciary Committee hearing on 3/17. No word yet on any hearings for the Senate version.

PA: Making it easier for private collection agencies to collect on debts owed to the court

Several judicial systems, at the state or local level, make use of private collection agencies to recover civil or criminal fees, fines, and costs owed the court. Pennsylvania is one such state and has, at least since 1996, a provision allowing for such private collection agencies to recover the debt owed in criminal cases (42 Pa.C.S. § 9730.1). However, the same 1996 act put limitations on collections:

(c) LIMITATIONS ON PRIVATE COLLECTION AGENCIES.– For the purposes of this section, a private collection agency shall cease its efforts designed to collect fines, costs and restitution and so inform the court or the county commissioners upon the occurrence of any of the following:
(1) the private collection agency considers the amount owing noncollectible;
(2) a period of 180 days has elapsed since referral of the amount owing to the private collection agency and there has been no response by the defendant or collection of moneys; or
(3) upon demand of a judge of the court of common pleas having jurisdiction over the defendant.

HB 61 of 2011, however would extend the 180 day period to 48 months, making it easier for the debts to be collected. That time expansion was approved earlier today by the House Judiciary Committee on a 23-0 vote.