Plan to shrink Montana Supreme Court: designed to force the court into tort reform and out of redistricting lawsuits?

The effort to shrink the Montana Supreme Court from 7 members to 5, first discussed here, was heard in the Montana House Judiciary Committee today (audio and video here).

According to a fiscal note prepared on HB 245 the reduction would mean “a caseload increase of approximately 40% per justice. The time to disposition of Supreme Court cases would increase dramatically and cases may not be resolved timely.”

The author of HB 245, Rep. Derek Skees, told the House Judiciary Committee his intent in introducing the bill was to shrink government and save money. As for the caseload increase, Skees implied that while other Montana residents were having to do “more with less”, the Supreme Court had not and that the justices could “easily” handle the workload and achieve the guarantee of “speedy justice” in the state constitution. Skees also made clear his desire to obtain tort reform through the reduction of the size of the Supreme Court.

All of us want tort reform, well maybe not all of us.  I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.

Skees concluded his testimony with his desire to reduce the entire Supreme Court’s budget by 40%.

Rick Breckenridge of the Lake County Republican Party spoke in favor of the bill, noting to Republican members of the committee that:

We have redistricting and we need a tightened down Supreme Court in order to achieve that. So take control of the reins of the Supreme Court, show them who is in charge, and remember that with redistricting, how we (Republicans) have been treated by the Supreme Court in the past.

Opponents included the State Bar President Joe Sullivan who noted the massive slowdown that would result in the adjudication of both civil and criminal cases and impacting the economy. The State Bar opposes the bill “because it denies the citizens of Montana timely and swift access to their justice system.” Additionally, the chief prosecutor in the state Attorney-General’s office spoke out against the bill noting that, with lack of an intermediate appellate court, Montana’s 7 member Supreme Court was helpful for speedy deliberation of cases.

The chair of the committee noted a former justice of the Supreme Court resigned due to the already crushing burden on the court’s workload.

No vote was taken on the bill.

Kentucky joins Maryland in considering an end to its Judges’ Retirement system

I noted earlier this month that Maryland is considering closing the door to any future entrants for its Judges’ Retirement System. Kentucky, which has been in session since January 4, has moved swiftly to do the same. SB 2 of 2011 closes the state’s Judicial Retirement Plan to new members effective July 1, 2012. The bill allows those in the Judicial Retirement Plan with less than 5 years of service to transfer their membership and account balance to the newly-created Public Employees Retirement System, a 401(k)-style retirement plan (as opposed to the current defined benefit system, h/t Courier-Journal). All future judges would have no choice put to join the new System. The bill went from introduced to committee approved in the first three days of session (January 4-7) and is currently on the Senate floor.

Washington State of the Judiciary Address

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

Pursuant to HCR 4401 of 2011 Washington State Chief Justice Barbara Madsen was invited to give the State of the Judiciary before a Joint Session of the legislature Wednesday (coincidentally, at the exact same time as the Indiana State of the Judiciary address).

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

State of the judiciary

One of the hallmarks of a democracy is a right of access to courts. It is really the fact that a country has a democracy that drives the need for courts. Democracies rely on the rule of law and the protection of individual liberties…The true meaning of the judicial branch can be seen every day as a thousand pictures making up a larger mosaic– with millions of life stories of our neighbors who use the courts.
On this level, I can report that the state of Washington’s judiciary remains strong—but stretched thin.

Ensuring quality justice

A central area of focus for the [Board for Judicial Administration] is maintaining fair and impartial courts throughout our state—staffed by well trained, professional judges.
In Washington State, we have a long history of nonpartisan election of judges. Yet, curiously, in some of our municipal courts—the so-called people’s courts—we give the city executive or legislative branches the exclusive right to decide who to appoint as a judge—and how long to keep them.
We will be asking the Legislature again this year to assure that judges from all levels of court are elected by, and accountable to, the people they serve. Fair and impartial courts—free from undue influence and control by the legislative and executive branches—are a fundamental part of our democracy.

Eliminating bias

Another major initiative of the judiciary—is working to eliminate bias in our courts…Our courts have spent enormous energy addressing bias and meaningful access to justice—but we recognize the need to reassess our progress. Shortly after becoming Chief Justice, I convened the Supreme Court Commissions, Boards and Task Forces Assessment Work Group to take a hard look at existing efforts and make recommendations for modernizing and strengthening the justice system’s ability to ensure fair treatment for all.


The core of what brings our hundreds of courts together every day is the Judicial Information System (JIS). Essentially, JIS equals justice—without JIS calendars the courts do not operate, money from traffic fines and fees are not collected and delivered to the state, and judges do not have access to criminal history information. Imagine for a moment serving as a judge and needing to make a critical bail decision without knowing the criminal history of the defendant standing before you. That is what the judiciary would face without the assistance of JIS.

Leadership in fiscal crisis

Historically this state has imposed a disproportionate responsibility for meeting essential law and justice responsibilities, including funding for courts—at the local level. In fact, Washington continues its unfortunate ranking of last in the nation—50th out of 50 states for its percentage of state funding for the courts, prosecution and criminal indigent defense…Injustices are occurring and public safety is being jeopardized as this continues.
With that in mind, the Board for Judicial Administration will seek legislation to extend the sunset provision on the filing fee surcharges added in 2009. The judicial system is a core function of government and, as such, should be funded with general fund revenues and not user fees.

Partnering in this crisis

For the past several months, all agencies of the judicial branch, in cooperation with the Governor’s Office, have reduced expenses and cut costs by more than $4.3 million, in addition to cuts in the previous two legislative sessions totaling more than $17.7 million between our state’s Administrative Office of the Courts, the Supreme Court, Court of Appeals, State Law Library, Office of Public Defense and Office of Civil Legal Aid.

Compassion in time of need

Finally, let me say that it is important to note that in times of economic turmoil and distress, we are working hard not to abandon our state’s most vulnerable residents—children in foster care, victims of domestic violence, senior citizens, the poor and others vulnerable to crime…I am tremendously proud of the work of the Washington State Office of Public Defense (OPD), which is working to improve the standards of public defense in trial, juvenile, and appellate courts….Similarly, the Office of Civil Legal Aid, is our state’s lifeline for civil equal justice. When there is nowhere else to turn, civil legal aid steps in…This need, given our current fiscal crisis has increased tremendously.


In closing, on behalf of the dedicated judges of Washington State, I would like to reinforce our commitment to the rule of law in our democracy. Your judges will steadfastly continue their efforts to ensure the promise of equal justice for all Washington citizens…In large part, the cornerstone of this commitment rests upon adequate and stable funding for the trial courts and we pledge to stay the course in achieving this long-term goal.

Issue 5:2 is out with a Focus on Threats/Intimidation of Judges and Court Staff

Issue 5:2 (January 7) is here.

Gavel to Gavel this week features:

-Focus: Threats/Intimidation of Judges and Court Staff
-Indiana considers expansion of concurrent jurisdiction its trial courts & ending non-attorney judges
-Kentucky joins Maryland in considering closing its Judicial Retirement Plan to new members
-A Virginia state senator proposes paying for judicial salary increases with a special $50 fee on most civil filing fees

South Dakota State of the Judiciary – CSI South Dakota?!?

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

Through an unnumbered report adopted by both the House and Senate, the South Dakota legislature met in joint session on Wednesday for the purposes of hearing the State of the Judiciary Address of Chief Justice David Gilbertson.

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

Technology Overhaul

We need our judges and employees to be able to maintain adequate contact with each other, our central judicial administration in Pierre, and other state agencies. Some software programs we currently use date from the early 1980’s and can no longer reliably be maintained. At the end of the implementation period in 2015, all UJS programs should be up-to-date and electronic filing a reality.

Cameras in Trial Courts

The Supreme Court has the matter under active consideration using the committee’s report and public input as a guide.


The issue of governmental services provided to those not fluent in English is one of intense discussion across our nation. The courts are constitutionally mandated to allow an accused to present an adequate defense to a criminal charge. How do you defend what you cannot understand?

Drug Courts

Our efforts to promote the breaking of the cycle of addiction and criminal activity continue…We are very pleased with the positive results the programs are achieving.

Court Protection of Seniors

This issue is quickly becoming a national priority and South Dakota should definitely become more aggressive in its protection of its senior citizens. This is a problem the judiciary as well as others need to address. There have been, however, no substantive moves to do so.

The Vanishing Attorney in Rural Areas

Despite this unemployment, the availability of attorneys in rural and reservation areas continues to decline. We face the very real possibility of whole sections of this state being without access to legal services.

Access to the Courts by the Underprivileged

We have an increasing number of our citizens who cannot afford to hire an attorney even if one is available in their area. Yet these citizens need and deserve access to our courts. We have worked with the Access to Justice Program of the State Bar to encourage attorneys to provide free legal services to those who need them.

Juvenile Concerns

While juvenile probation increased in 2008–2009 in this state by 20% and adult probation by 14%, funds were not available to increase the number of qualified court services officers to supervise them.

Courthouse Security and Improvements

Another area of concern is a lack of security at many of our courthouses. While several have adequate security, many others do not.

CSI: South Dakota

Increasingly trials involve the use of scientific principles. It is popularized in the media by television shows such as “CSI: Miami.” Those of us in the judiciary, who avoided as many science classes as possible while completing our education, are now faced with the task of determining what evidence and witnesses are qualified to assist a jury by testifying on scientific methods.

The UJS Budget

Returning to the economic situation for a moment, last year the UJS assisted state government in balancing its budget by cutting the UJS budget…We have obligations which must be met no matter what the fiscal climate. We are mandated to promptly provide hearings after arrest and speedy trials to those who stand accused of crimes. The same demand for prompt hearings also applies to civil proceedings such as domestic protection orders…I do come today offering some judicial bargains. We have proven that drug courts save taxpayers money over other alternatives while getting long term goals accomplished. Drug courts in this nation have a success rate of approximately 75%…Perhaps one of the biggest bargains in state government is probation. Probation for first time offenders costs $3.00 per day compared to the cost of incarceration which is $63.69 per day.

Sometimes in the pile of balance sheets and income projections I fear we lose track of the bottom line. To me it is not a dollar figure but the effect of that dollar figure. If the Unified Judicial System were to sustain substantial financial cuts, those cuts do not simply go away. The costs are merely transferred to others including law enforcement, schools, counties, cities, the Departments of Social Services and Corrections, the churches, and the private sector.

Indiana’s Chief Justice gives his twenty-fourth State of the Judiciary address

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

Pursuant to HCR 1 of 2011 Chief Justice Randall Shepard presented the Indiana State of the Judiciary earlier today to a joint session of the legislature, his twenty-fourth such speech. As noted in HCR 1, Chief Justice Shepard’s address is one of the only State of the Judiciary speeches in the nation to be constitutionally based (Art. 7, Sec 3.)

The Chief Justice shall have prepared and submit to the General Assembly regular reports on the condition of the courts and such other reports as may be requested.

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

The Mortgage Foreclosure Crisis

The first is a genuine crisis on which all three branches of Indiana government have worked:  mass foreclosures.  Foreclosure filings were even higher last year than in 2009.  While Indiana may no longer be near the top of the national list, that’s little comfort to the 43,000 new families facing loss of their homes. You recently passed legislation giving every homeowner the right to a settlement conference and the chance to negotiate for a modified loan.

The Indiana Foreclosure Prevention Network led by Lieutenant Governor Skillman, the lenders, Attorney General Zoeller, the Housing and Community Development Authority, and our Division of State Court Administration have been perfecting techniques to maximize the possibility of success.  We now use these techniques in counties that have 60 percent of the foreclosures and we’ll cover the rest of the state by year’s end.  We do it all without any claim on the state’s General Fund because you’ve authorized a user’s fee on foreclosure case.s

The Smartest Sentencing Possible

Are we capable of devising a new, more reliable tool to help sort out who needs to go to prison and who probably does not?  The answer’s been yes, and last Monday a new generation risk assessment became mandatory in every criminal court and delinquency court.  We have trained and tested 2300 probation and corrections officers, drug and alcohol staff, and judges in using it.

Tackling Technology

If there’s a field where Indiana’s courts have proven themselves capable of identifying an opportunity or a problem, devising a plan to address it and executing on the plan, it is technology.

You’ll know that at your direction, every county now uses a system built by our Judicial Technology and Automation Committee (called “JTAC”) to notify law enforcement immediately when a court enters a protective order on behalf of victims of domestic violence… At your direction, JTAC has created an electronic system for notifying law enforcement when someone is adjudicated mentally ill.  Last week alone, names of 39 people adjudicated mentally ill were transmitted through the FBI so that police and gun dealers could do their part in keeping firearms out of the hands of the mentally ill. We collaborated with the Department of Revenue to build a system for transmitting tax warrants directly to local courts…All of these achievements are the result of collaboration between the judiciary and agencies like the Indiana Office of Technology, the BMV, the Department of Revenue, the Criminal Justice Institute, DCS and the State Police.  None of these could have been accomplished by the judiciary alone or by anybody else alone.

Does this matter to citizens?  If you build it, they will come. Rather than driving to the courthouse or hanging on the phone, our constituents were seeking court information this morning at the rate of more than 3400 an hour.  I’m proud that Indiana’s courts are creating a 21st Century system.

Plain English Jury Instructions

People come to the courthouse by the tens of thousands to make possible that jewel of the Bill of Rights, trial by jury.  During those trials, lawyers and judges explain the law that applies to the case jurors are being asked to decide.  Too often, we have talked to jurors about this in legalese. Committed to doing better, the Indiana Judges Association began work on what we decided to call “Plain English Jury Instructions.”  The drafting committee, led by Judges John Pera of Lake County and Carl Heldt of Evansville, and an English teacher, spent three years revising the traditional instructions. The new instructions were issued during the fall.

How Good is What We’re Doing?

In short, Indiana’s judiciary is one that keeps its feet planted firmly on Hoosier soil while keeping its eyes on the horizon.  They are men and women of high ambition who are capable of confronting a problem, devising a plan, and executing on the plan.

Why Does This Matter?

Whether we can build a better system of justice matters first and foremost to the individual citizens who come to court as part of the two million cases we hear every year.  Our first duty is give them a full and fair hearing. But whether we run a respectable court system also matters for people who have never seen the inside of a courtroom because a reliable court system is part and parcel of a decent government and a crucial element of a healthy and productive economy