MA: Effort to remove by bill of address 4 justices of Supreme Judicial Court introduced

Last week a Massachusetts Representative introduced, at the request of a constituent, HB 2172 a “bill of address” for the removal of Supreme Judicial Court Chief Justice Roderick L. Ireland and justices Francis X. Spina, Judith A. Cowin, and Robert J. Cordy.

There is no specific reasoning for the effort to remove these four justices in particular. The last such effort in Massachusetts occurred in 2004 and 2005 where bills of address were introduced against the justices that ruled in favor of same-sex marriage (Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)). However, justices Cordy and Spina had dissents in those cases, while (then associate justice) Ireland and Cowin voted in favor.

Under the Massachusetts constitution, removal by bill of address requires only a majority of both the House and Senate, followed by the approval of the Governor and Governor’s Council. Where impeachment would require accusations of “misconduct and mal-administration”, bills of address do not require such findings.

The bill is currently pending before the Joint Committee on the Judiciary.

FL House Speaker wants to expand Supreme Court: Court packing plan, or merely a “reform”?

News reports coming out of Florida indicate there is an attempt underway to expand the state’s supreme court. House Speaker Dean Cannon announced earlier today he wants to increase the size of the Florida Supreme Court from seven to 10 members and divide the 10 member court into two, 5 -member panels (one civil, one criminal). Cannon denies this is a court packing effort, claiming instead he wants to “reform” the court.

The only two states that even approximate this proposal are Oklahoma and Texas, however these two states have entirely separate courts to handle civil (Supreme Court) and criminal (Court of Criminal Appeals) cases.

The Tallahassee Democrat noted that Speaker Cannon was irate last year when the state’s Supreme Court struck from the ballot several legislatively introduced initiatives. In his first speech as Speaker-designate in November 2010, Cannon went out of his way to attack the court’s decisions.

This wouldn’t be the first time a Florida Supreme Court decision prompted a legislative effort to increase the size of the court. In 2007, Florida state senator Bill Posey introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. (Bush v. Holmes, 919 So.2d 392 (Fla. 2006)) When SB 408 became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.

For a 2010 review of efforts to tinker with the size of the state supreme courts, read Issue 4:14 of Gavel to Gavel here. For the recent effort to increase the Arizona Supreme Court (without asking or talking with the state’s Chief Justice first), read this blog post.

Update: 3/7/11 @ 3:23 According to a Twitter feed coming out of the press conference where Cannon made these announcements, Senate President Mike Haridopolos says House Speaker Cannon idea on FL Supreme Court will be given fair consideration. (h/t Gary Fineout)

Florida considers a “Judicial Opinion Communications Act”

It is one thing to have a state appellate court strike down a statute as unconstitutional. It is quite another to send a copy of the order striking down the law straight to the legislature. However, this is precisely what some members of the legislature are asking for.

HB 87 (and its Senate counterpart, SB 996) would require the state supreme court or district courts of appeal to send a copy of any decision that

  1. declares a Florida statute, regulation, or government practice unconstitutional
  2. recommends any statutory or regulatory changes to the current law, or
  3. identifies drafting issues

to the Governor, the President of the Senate, and the Speaker of the House of Representatives within 30 days of the decision. The three officers would have 30 days to acknowledge receipt and “may state in the acknowledgment any and all action to be taken in response to the opinion.”

The House bill is set for a hearing before the Judiciary Committee’s Civil Justice subcommittee on March 8.

Rhode Island: Civil unions bill would exempt judicial officers who object from solemnizing such unions

The press for gay marriage and/or civil unions throughout the states has been an ongoing effort for years. While several states have such partnerships through judicial determination, others have done so via statutes adopted by state legislatures. Rhode Island is currently considering a bill to create “domestic unions” (SB 376). Including in the bill are provisions similar to  those adopted in other states that would protect religious organizations from being forced to solemnize such unions, provide services related to such solemnization, or recognize such unions.

Similar though not identical provisions also exempt “individuals and small businesses” based on their “sincerely held religious beliefs”, however the provision has two exceptions. The individual or small business must provide goods or services to the union if a party to the union “is unable to obtain any similar good or services elsewhere without substantial hardship.” The second portion, however, is judiciary specific:

[The exemption for individuals and small businesses] shall not apply if…In the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize domestic unions shall be required to do so if that act would violate the judicial officer’s sincerely held religious beliefs.

Existing Rhode Island law (15-3-5) lists the officials empowered to join persons in marriage as including:

  • every justice of the supreme court, superior court, family court, workers’ compensation court, district court or traffic tribunal
  • the clerk of the supreme court
  • every clerk or general chief clerk of a superior court, family court, district court, or traffic tribunal
  • magistrates, special or general magistrates of the superior court, family court, traffic tribunal or district court
  • administrative clerks of the district court
  • administrators of the workers’ compensation court
  • every former justice or judge and former administrator of the above courts
  • every former chief clerk of the district court
  • every former clerk or general chief clerk of a superior court
  • judges of the United States appointed pursuant to Article III of the United States Constitution
  • bankruptcy judges appointed pursuant to Article I of the United States Constitution
  • United States magistrate judges appointed pursuant to federal law
  • every justice and every former justice of the municipal courts of the cities and towns
  • former justices of the police court of the town of Johnston
  • every probate judge
  • every former probate judge

SB 376 is currently pending before the Senate Judiciary Committee which will have a hearing on the bill March 10.

Maine: One sentence bill directs judicial branch to upgrade its computer system

Typically legislation related to a state judiciary’s computer system(s) are parts of budget bills or sections of other non-appropriations bills related to the judiciary. Maine’s HB 644 of 2011, however, may go on record as the single shortest and most direct piece of legislation on the matter ever.

Below is the sum total of the bill (formatting in original):

Resolve, To Streamline the Judicial Process in Maine’s Courts

Sec. 1. Judicial Department to upgrade its computer system. Resolved: That the Judicial Department shall design and implement a plan to upgrade its computer system to ensure access by Maine citizens and attorneys to electronic filing and scheduling online.

The bill’s summary is almost as long as the bill itself:

This resolve directs the Judicial Department to design and implement a plan to upgrade its computer system to ensure access by Maine citizens and attorneys to electronic filing and scheduling online.

The bill has yet to be assigned to a committee, but presumably it would be sent to the Joint Committee on the Judiciary. Interesting note: Maine is one of three states (Connecticut and Massachusetts are the others) that rely primarily on joint judiciary committees.

Cross-posted to Court Technology Bulletin.

Arkansas’ unique constitutional trigger allowing for Court of Appeals merit selection may be, er, triggered

With the recent efforts in Kansas and Iowa, one might get the impression all state legislators have it out for merit selection for intermediate appellate courts. Not in the case of at least some members of the Arkansas legislature.

In 2000, the state adopted Amendment 80 which effectively restructured the entire state’s judiciary, consolidated many of the smaller local courts into a new district court, etc. Section 18 specifically and explicitly maintained the existing nonpartisan election system, but with a “trigger” provision. Instead of changing the nonpartisan election system via another constitutional amendment, the legislature (with or without the governor, it is not clear) can simply pass a bill sending the issue to the voters. Of course, given that the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, it is not clear this is any harder than a flat-out constitutional amendment would be.

(A) Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office. Provided, however, the General Assembly may refer the issue of merit selection of members of the Supreme Court and the Court of Appeals to a vote of the people at any general election. If the voters approve a merit selection system, the General Assembly shall enact laws to create a judicial nominating commission for the purpose of nominating candidates for merit selection to the Supreme Court and Court of Appeals.

(B) Vacancies in these offices shall be filled by appointment of the Governor, unless the voters provide otherwise in a system of merit selection.

SB 744 of 2011 would trigger the merit selection provision for the Court of Appeals only, leaving the Supreme Court with nonpartisan races. Because Amendment 80 leaves the composition and details of the judicial nominating commissions to the legislature to figure out after approval, the ballot language is spartan:


[ ] FOR authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals
[ ] AGAINST authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals

The only question I have is whether such a separate treatment is permitted. Amendment 80 uses the phrase “Supreme Court and the Court of Appeals” at each opportunity. Will opponents make the argument that it is a joint proposition (i.e. that you can have merit for neither or both)? Anyone familiar with Arkansas jurisprudence care to chime in?

The bill is currently pending in the Senate Committee on the Judiciary.