Issue 5:7 is out

Issue 5:7 (February 11) is here and features:

  • New format and reader survey results
  • Small claims increases moving in California, Hawaii, Kentucky, Maryland, Montana, and Utah
  • Wyoming’s chief justice may soon have the power to call back into service retired circuit court judges
  • Systemic changes to judicial retirement systems, including closing the systems to new members, proposed or advance in Arizona, Georgia, Indiana, Maryland, Montana, New Jersey, North Dakota, and South Carolina
  • Nonpartisan elections: North Carolina considers getting rid of them, while Missouri considers adopting them
  • Tennessee bill to require judges/justices get at least 75% in retention elections is withdrawn
  • Bills in Missouri, Nevada, and Virginia would reset some or all of the state’s judicial districts/circuits
  • Court security bills introduced or advance in Pennsylvania, Nevada, New Mexico, and New York

Just who exactly gets to administer the oath of office to a judge? Maryland and Arkansas grapple with the question.

It may sound relatively mundane, but in many states judges of various courts may only be sworn into office by specific office holders. The issue came to a head in Maryland recently. In November 2010, state voters approved a constitutional amendment requiring Orphan’s Court judges in Baltimore City be attorneys. At the same election, Baltimore City residents voted into office as an Orphan’s Court judge non-attorney Laudette Ramona Moore Baker. The state’s governor did not issue her a commission and the circuit clerk, who under existing Maryland law administers the oath personally or through a designated deputy, declined to swear her in.

Enter HB 410 of 2011, which would expand the list of those who could administer a judicial swearing in to include “any officer whose office is established in the Maryland Constitution”. The bill is set for a hearing on February 23 before the House Health and Government Operations Committee.

At the same time, Arkansas is also recodifying who gets to swear in judicial and other elected officials via SB 156. Current law provides Supreme Court, Court of Appeals, Circuit Court, and District Court judges have a choice of taking their oath before

  1. the Governor
  2. a Supreme Court Justice
  3. a Circuit Court Judge
  4. the clerk of the county court or
  5. the clerk of the circuit court.

SB 156 keeps these 5 but adds judges of the Court of Appeals to the list. SB 156 was approved by the full Senate February 14 and is currently pending in the House State Agencies and Government Affairs Committee where it had a hearing earlier today (February 16).

Examining state legislatures’ judiciary committees: Lawyer-Legislators make up about 50% of committees

While Gavel to Gavel the publication has been and is dedicated to providing information on legislation affecting the courts, the purpose of this blog has always been to provide additional analysis and context to that legislation. Starting today, I’ll be examining a major portion of that context: the state legislatures’ judiciary committees.

For at least two decades there has been a general bemoaning of the decrease in the number and percentage of lawyer-legislators in the state houses. As early as the 1990s they were referred to by the National Law Journal as a “dying breed“. One big reason: possible ethics conflicts between clients and legislation, a subject currently being debated in New York (h/t Albany Times-Union).

Additionally, there is the dearth in legislative pay (especially vs. what the lawyer could be making in his or her practice in the time spent in legislative service) and the increasing time pressure put on legislators even in states with nominally “part-time” legislatures.

While the National Association of Bar Executives has done research into the number and percentage of lawyer-legislators in the entire legislature, legislation lives and dies in committee before it ever reaches the full chamber(s). In January 2011, I examined the 1360 committee members in 108 committees and found that 49% (670/1360) are lawyers (defined as having a public biographical statement indicating lawyer or attorney as occupation or graduation from a law school). (note: updated 2/21/11 to reflect Louisiana House Judiciary committee numbers change)

Contrast this against the 74% lawyer-legislators in both the 2011 U.S. House Committee on the Judiciary (29/39) and U.S. Senate Committee on the Judiciary (14/19).

Over the next several weeks, I’ll be examining the partisan composition of these committees as compared to their respective chamber(s) and what these two elements (separately and combined) might mean for legislation affecting the courts.

Continue reading Examining state legislatures’ judiciary committees: Lawyer-Legislators make up about 50% of committees

Missouri State of the Judiciary: “we continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity.”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

The annual Missouri State of the Judiciary address was, under HCR 2 of 2011, suppose to have been delivered on February 2 of this year. However, a snow storm forced the legislature to suspend operations: the House never met and the Senate had a pro forma session.

The speech by Chief Justice William Ray Price, Jr., himself a former state legislator, (update: when the Chief Justice referred to having “served here for nearly 18 years”, the “here” meant was the Supreme Court, not the legislature) was ultimately delivered on February 9 to joint legislative session (HCR 24 directed a joint session for that date).

Highlights of the Chief Justice’s speech (full text here) included:

I never have seen a more challenging time for our state. Regardless of political philosophy, one thing is clear. Significant cuts have been made and will be made to Missouri’s budget. To the extent necessary and possible, the courts have shared and will continue to share in spending reductions without complaint.

There are two specific concerns I want to talk with you about. I spoke about them last year, and they are still the two most important issues that we face together for the future of Missouri. One calls for action; one does not.

First, we continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity. The result is a state that is not as safe as we want it to be and a waste of taxpayer dollars….Punishment is a necessary part of our criminal justice system. But our real goal for nonviolent offenders is to teach them their lesson so they can become productive law-abiding members of our society. The goal is not to lock them into a life of crime, to make them permanent wards of the state on an installment program of incarceration after incarceration, at $16,400 per year.
Drug courts are one of the best examples of tough, effective, local alternatives to prisons. Depending on the study, between 60 and 80 percent of people in prison are there for drug-related crimes or have drug or alcohol issues…With your help, we have expanded drug courts and DWI courts across Missouri. Unfortunately, they are still underfunded by half. We barely have scratched the surface with family drug courts and reentry courts.
From a moral, a fiscal and a law-and-order perspective, drug courts, DWI courts, juvenile diversion programs, veterans courts, reentry courts and community supervision strategies are better investments of taxpayer money, for their target populations, than prisons.

The second major issue that I want to talk with you about is a fair and impartial judiciary.
It is not easy finding justice. Justice is not a physical thing that you can touch or hold or measure. Often it is shaped by the eye of the beholder and, often, relative to the beholder’s particular point of view. What seems just to one may seem unjust to another. A good judge must have the courage to accept that not all people will see justice as he or she does. Sometimes, a good judge must have the courage to risk the anger of the majority, to protect the rights of the individual ? rights that we prize and that are guaranteed by our national and state constitutions.
Our job is different than yours. You serve the majority. You make broad policy decisions that apply to everyone. You make campaign promises and are expected to uphold them…Our job is more limited. We rule individual case by individual case. Whether it is a case for a business fighting for its economic life, a crippled plaintiff who no longer can support himself or his family, parents fighting for the custody of a loved child, or a person accused of a crime with his liberty or life at stake, we rule individual case by individual case, with each individual having only that one chance for justice. In every case, someone loses. Fairness, impartiality and a level playing field, not subject to outside influence or manipulation, not dependent on a preexisting promise, are the absolute necessity.
With this in mind, we need to talk about the Missouri Plan for selecting judges. The plan was adopted by the people of Missouri by initiative petition in 1940. It was in response to the Pendergast political machine’s attempt to control the Supreme Court of Missouri. It was a plan established by the people to protect their courts from political manipulation and control…The brilliance of the Missouri Plan is that it balances the need for legal ability, everyday common sense and responsibility to the people, in a way that preserves the integrity and the fairness and the impartiality of the judge.
The worst alternative is direct elections of judges. The reason is simple. Money. The amount of money involved in conducting statewide races will destroy the public’s perception, and perhaps the actual integrity, of our judicial system….Another suggestion is to adopt a plan modeled after the federal system. That, too, is problematic. Federal judges have life tenure; they are not subject to retention votes.
In the past two years, the Court has taken great strides to increase the transparency of the Missouri Plan to make it more open to the people. Last year, we amended the rules to release the names of the applicants. This year, we amended the rules to open the interview process to the public, to release the final vote for the panel of nominees and to encourage nominations directly from the public.

Justice is sacred but fragile. It belongs to the people, not to either political party, not to any special interest. A system of justice is necessary to support our economy and to preserve our individual rights and freedoms. A system of justice can exist only so long as the people have trust and confidence that it is fair and impartial. Any proposed change to the Missouri Plan should be considered only with the greatest care and caution. I am afraid that it is more likely that any change will bring more harm than good.

NM State of the Judiciary: “Furlough closures of backlogged courts don’t save a dime for the taxpayer or for the government.”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

New Mexico Chief Justice  Charles W. Daniels delivered his State of the Judiciary address to a joint session of the New Mexico Legislature on January 27. Interestingly, unlike in most states, the Governor of the state was in attendance for the speech.

Highlights of the Chief Justice’s speech (full text here) included:

Sometimes we refer to ourselves as independent branches of government, and in a lot of ways, that’s true… But we can’t forget that the three branches are also dependent on each other. We have to work together to provide the government the people need, the government they created in the constitution. The biggest example of the dependence of the judicial branch is that we’re dependent on the other two branches for the resources we need to sustain the system of justice required by the constitution.

To keep the flame of justice burning, we have to come to you for the necessary fuel.

We’ve been working hard to cut costs wherever we can do it without violating our obligations to the law and to the people of New Mexico. Senator John Arthur Smith [Senate Finance Committee Chair -ed.] went out of his way to publicly recognize our cost-cutting efforts when the [Legislative Finance Committee] released its budget recommendations a couple of weeks ago, and we thank him for that.

After this financial crisis became obvious, we started meeting to deal with it on both a statewide and a local level. We realized that the immediate challenge was to keep the justice system functioning right now, but at the same time we had to plan for the future, to provide better services and to do it with the least cost…To survive in the short term, we’ve had to make hard and sometimes painful cost-cutting decisions…But we’ve found the courts can’t really save enough money by cutting costs in equipment and supplies. Providing justice is a personnel-intensive kind of work. Between 90 and 95% of each court’s budget is in personnel.

We’ve tried to avoid the superficial solution of sending workers home without pay, a practice that is euphemistically called furloughs, because we need them at work. Without people at work, the courts have to close. That violates the state’s constitutional obligation to keep the doors of justice open. Spacing it out a few hours here and a few hours there is just violating the constitution on the installment plan.

But the practical reality is this: Furlough closures of backlogged courts don’t save a dime for the taxpayer or for the government. It’s not like a furlough closure of a museum or a park or a tourist train, where you can actually save money by cutting services to the public on a given day. The work of busy courts just gets even more backed up and still takes the same resources, the same employee time, the same expense to process. That murder trial or DWI sentencing or custody hearing or even the paperwork processing doesn’t go away. It’s a case of pay me now or pay me later.

So we’ve had to cut back on important programs to keep the doors open to do the work the constitution requires us to do. Let me give you one example, our DWI and Drug and other problem-solving courts…These cuts may help us survive within our court budgets, but they don’t really save money for the taxpayers who pay the bills. You can see in black and white how cuts in the DWI and drug courts increase costs for prisons and jails and law enforcement and public defenders and [New Mexico Children, Youth and Families Department] and other tax-funded agencies.

On the bright side, in addition to keeping our doors open, we’ve found ways to increase revenue to the state through credit card use, collection agencies to go after wrongdoers who won’t pay, and new warrant enforcement approaches….We’re brainstorming every possible way to operate a constitutional justice system better and faster and more economically, and we’re willing to give up old familiar ways to do it. We’ve been expanding the use of videoconferencing for such things as meetings, arraignments, and other proceedings. We’re installing and training our people in a new kind of statewide case management system where information is being completely computerized instead of being buried in paper court files and where it can be accessed instantly from the judge’s bench and other locations. We’re now setting up remote electronic filing, so you can file documents or get them remotely 24 hours a day without having to go stand in line at the court and so court staff won’t have to spend so much time handling the papers. In fact, if someone wants to come to the court and file a paper document, we scan it and put it into the electronic system and don’t have to deal with the paper any more. Anyone who wants a paper copy can just print it off.

With their input, we’ve created our own ad hoc Judicial Reengineering Commission, similar to the Legislature’s Government Restructuring Task Force that studied other parts of government. The Commission has representation from the judiciary, the Senate, the House, lawyers with civil and criminal and prosecution experience, and even from the business community. We’ve invited the Governor to name a member.

It’s going to take a lot of serious thought and a lot of hard work, but I’m confident that we’ll work together in the interests of the people of New Mexico. And I’m convinced that we will all do whatever it takes to make sure the flame of justice never dies.

NH: Legislator seeks to declare void state supreme court decisions from the 1800s

It is relatively common for state legislatures to, effectively, overturn court decisions which relate to statutory interpretation by either changing the wording of the statute or repealing it outright. This even extends to efforts to overturn state supreme court interpretations of the state constitution by adopting state constitutional amendments.

What is uncommon is New Hampshire’s attempts to achieve the same effect by targeting certain decisions and retroactively declaring them void.

For example, HCR 17 of 2011 declares the 1868 case of Copp v. Henniker (55 NH 179) and the opinions which subsequently relied upon Copp “void and of no force.” In Copp, the state’s supreme court (then known as the Superior Court of Judicature), referencing a similar Wisconsin case (Meade v. Walker 17 Wis. 189 (1863)) held that the state constitutional right to a trial by jury applied if that was the case when the state constitution was ratified. The reference to the Wisconsin case is specifically criticized by HCR 17. The concurrent resolution ends with a two part declaration that the opinion in Copp “is repugnant to the Constitution of New Hampshire” and that “the opinions which subsequently rely upon Copp versus Henniker to deny the right to trial by jury in new types of civil cases are utterly void and of no force.”

HCR 18 declares an even older case (Merrill v. Sherburne, 1 NH 199 (1819)) void as well. There, Merrill (as executor for the estate of a man named Ward) had lost at trial and on appeal a probate case against Ward’s heirs that would have granted Merill the entire estate. In 1817 Merrill petitioned the legislature for another trial and the legislature adopted a special law for him to that effect later in the year. The heirs moved to quash the proceedings. The state’s Superior Court of Judicature did quash, citing the U.S. Constitution, “The Spirit of Laws” by Montesquieu, several of the Federal Papers, Thomas Jefferson’s “Virginia Papers”, and similar documents. Specifically, the court held that the state legislature had exceeded its constitutional authority and, in effect, exercised judicial powers.

HCR 18, on the other hand, declares the listed documents were deliberately edited to mislead readers. Moreover, referencing a state constitutional provision that “the Legislature shall assemble for the redress of public grievances and for making such laws as the public good may require”, the resolution declares Merrill and subsequent decisions relying on it “repugnant to the Constitution of New Hampshire…utterly void and of no force.”

The author’s writings on the subject of these cases can be read more fully here.