Despite being under threat of impeachment, Iowa Chief Justice gives State of the Judiciary

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

Despite active efforts by members of the Iowa House impeach him, Chief Justice Mark Cady presented the State of the Judiciary earlier today to a joint convention of the legislature pursuant to a resolution (HCR 3 of 2011) passed by both chambers. HCR 3 noted that the Chief Justice’s report is statutorily based. Iowa Code 602.1207 provides:

The chief justice shall communicate the condition of the judicial branch by message to each general assembly, and may recommend matters the chief justice deems appropriate.

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

The story of our ability to deliver justice to Iowans over the decades—the story of our people—shows our job will be done regardless of the cards we are dealt. But, there is no doubt our mission, more and more, is becoming harder and harder to achieve. I too fear, as Kim Glock does, that the deep cuts in our resources are beginning to cause damage to our system of justice. Let me explain beginning with what I observe to be a decline in access to justice.

Access to Justice
Iowans cannot have the hope of justice without having access to justice. The grim reality is that more and more Iowans with legal problems are forced to wait too long for their day in court. These problems are troublesome to litigants and shake people’s confidence in our government. These problems result from a decade of fiscal austerity coupled with Iowans’ growing demands for court services…Today, Iowa’s court system operates with a smaller workforce than it had in 1987. In contrast, over the same period, the total number of legal actions brought by Iowans and Iowa businesses has nearly doubled. In short, Iowa’s courts are overrun with work, and Iowans are paying the price with reduced access to justice.

EDMS and Civil Justice Reform
We are testing a system for electronic filing and retrieval of documents. This system, which we call EDMS, expands access to justice beyond the courthouse walls. It enables litigants, lawyers, and others to file and access court records online, at anytime, night and day. It saves Iowans the cost and inconvenience of traveling to the courthouse to conduct their business. It gives judges access to records as soon as they are filed. If everything goes as planned and we have sufficient resources to move ahead, we should have EDMS fully implemented in five or six years.

Reasons to Bolster Court Funding
The recession has placed additional demands on our courts. In the past three years, mortgage foreclosure cases filed in Iowa have increased 17%, debt collection cases have increased 15%, child-in-need-of-assistance cases have increased 23%, and adult civil commitment cases have increased 19%. These legal actions may have a life-altering effect on the Iowans involved. This is not the time to give them ration cards for justice…We appreciate the continued need for all of government, including the judicial branch, to “share the pain.” However, the courts are already stretched painfully thin. I hope we can all agree that Iowans deserve more access to justice than they have now. Our fiscal year 2012 budget request reflects a modest three-year plan to improve Iowans’ access to justice. We ask you to give it serious consideration.

When the Iowa Supreme Court decided the Varnum v. Brien case on April 3, 2009, we understood it would receive great attention and be subject to much scrutiny. We worked hard to author a written decision to fully explain our reasoning to all Iowans, and we understand how Iowans could reach differing opinions about this decision…First, I hope to help us move forward by addressing the concerns some Iowans have about our system for selecting judges.

Merit Selection Fosters Fair and Impartial Courts

Importantly, the Iowa Constitution requires that all commission members be chosen “without regard to political affiliation.” Likewise, the law specifically requires the commissioners to choose nominees “without regard to political affiliation.”

Don Decker, a Ft. Dodge businessman and long-time Republican, who served on the state judicial nominating commission in the mid-1990s, recently told me that, when it came to selecting a slate of nominees for a judicial position, he “rooted for the home team” but always voted for the most qualified applicants regardless of their party affiliation. This honest assessment captures the reason our process has worked so well for so long.

Building Public Confidence in Commissions: Enhancements
In addition to opening interviews to the public, we recommend that the state and district nominating commissions: adopt uniform rules of procedure, adopt a code of ethics, and adopt procedures for the release of more information to the public.

Principle #1: Courts Serve the People by Serving the Rule of Law
The will of the people followed by courts is the will expressed in our law as constrained by the written principles in the constitution. If this were any other way, “why have a constitution?”…Chief Justice William Rehnquist called the independence that allows judges to serve the law “the crown jewel of our system of justice.” I hope we can go forward with the same understanding.

Principle #2: Upholding the Constitution is the Most Important Role of Courts
Upholding the constitution is the most important function of courts. The duty of courts to review the constitutionality of laws is known as judicial review and is one of our most basic responsibilities.

In 1849, the Iowa Supreme Court issued its first decision that protected the constitutional rights of an Iowan by invalidating a statute enacted by the legislature. In this case, the court stated it was “a settled principle” in this country that courts have the power, “as a matter of right and duty, to declare every act of the legislature made in violation of the constitution, or any provision of it, null and void.” This is the very duty the court exercised in the Varnum decision.

As far back as 1883, the Iowa Supreme Court made it clear that even unpopular rulings could not simply be suspended in time to await any future legislative action. In its decision, the court said that, if courts could be coerced by popular majorities to disregard the constitution any point in time, “constitutions would become mere ropes of sand and there would be an end of . . . constitutional freedom.”

Promoting Understanding about the Work of Courts
Lastly, it is my hope that we can move forward with a shared commitment for a greater understanding of our courts and their important role in maintaining our democracy. This understanding can best be achieved by making our courts even more transparent.

Up until a year ago, the [Iowa Courts] website also provided a video cast of supreme court proceedings, but this procedure was a victim of the budget cuts. Nevertheless, we can do more to open the work of the courts to the people. So today I’m pleased to announce the Iowa Supreme Court plans to hold some of its oral arguments in communities across Iowa. This will allow interested citizens an opportunity to watch the court proceedings, and the proceedings can be used as a teaching tool for our youth.

Conclusion: Let Us Go Forward with a New Understanding
So, let us go forward with a new understanding—a new understanding of the courts and a new understanding of the direction that will lead to a better and brighter future, for all Iowans…So, let me end by asking all branches of government, and all people, to go forward, together, to transform the promise given to us into our proud legacy. The story that is not yet told is our story. Let us go forward to write our untold story with a greater understanding of ourselves, and all Iowans.

FL: ConAmend to strip S.C. of rule making power on death penalty cases withdrawn

The Florida Supreme Court’s power to set rules of practice and procedure are among the broadest in the nation, as well as among the hardest to be overridden by the legislature. The Judiciary Article of the state constitution holds:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought…Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Two newly elected members of Florida’s House, however, attempted to transfer the rule making power as to death penalty cases directly to the legislature. HJR 73 of 2011 (as filed on December 16, 2010) would have added a section to the Legislative Article that read:

Notwithstanding any other provision of this constitution, the Legislature by general law shall adopt rules governing time limits, procedures, and processes relating to all death penalty cases and related proceedings in all courts.

The state bar’s Board of Governors on December 10 adopted a legislative position against any effort to alter the Supreme Court’s rule making power:

Opposes amendment of Article V, Section 2(a) of the Florida Constitution that would alter the Supreme Court’s authority to adopt rules for practice and procedure in all courts, or that would change the manner by which such rules may be repealed by the Legislature.

On December 30, precisely two weeks after the Constitutional Amendment was proposed, it was withdrawn by its sponsors.

Montana is considering shrinking its Supreme Court

The last several years have seen numerous efforts to change the size of state supreme courts. Some had the air of court packing efforts, while others (such as Michigan in 2008) were expressly for the purpose of removing justices that some parties were dissatisfied with. The attempted changes were the focus of Issue 4:14 last year.

This year Montana House member Derek Skees has already requested a draft bill (D. 1609) which would reduce that state’s Supreme court from 7 to 5 justices by removing seats number 5 and 6 (Seats are designated chief justice, 1, 2, 3, 4, 5 and 6). Those seats, currently held by Justices James Nelson and Brian Morris, were created in 1979 and are up for reelection 2012.

The bill remains (as of the writing) in draft form only.

Week Ahead: 1-10-11

Legislatures Coming Into Session

Indiana 1/10/2011
Idaho 1/10/2011
Kansas 1/10/2011
Arizona 1/10/2011
Arkansas 1/10/2011
Georgia 1/10/2011
Iowa 1/10/2011
Oregon 1/10/2011
Washington 1/10/2011
Delaware 1/11/2011
South Carolina 1/11/2011
South Dakota 1/11/2011
Tennessee 1/11/2011
Texas 1/11/2011
Wisconsin 1/11/2011
Wyoming 1/11/2011
Colorado 1/12/2011
Illinois 1/12/2011
Maryland 1/12/2011
Michigan 1/12/2011
New Jersey 1/12/2011
Virginia 1/12/2011
West Virginia 1/12/2011

IA: Judicial overhaul bill, vetoed in 2010, resubmitted in 2011

With ongoing efforts in Iowa to  impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature

In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:

  • Filling vacancies – Grants authority to the chief justice to delay the nomination of a supreme court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons up to one year. Grants authority to delay nomination for magistrates with certain limits.
  • Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the supreme court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the supreme court.
  • Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.
  • Residence – Requires district associate judge reside *in the judicial election district* in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.

Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:

  1. a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
  2. the sections allowing the Chief Justice to delay the appointment of judges for up to one year.

In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however  the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.

  • Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)

It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone

North Dakota State of the Judiciary

Chief Justice Gerald W. VandeWalle gave his State of the Judiciary to a joint session of the North Dakota legislature earlier today. (Update: No formal resolution appears to have been adopted, instead a motion was made on the floors to convene in joint session for the speech. See the respective House and Senate journals). The text of the speech is here. Here are some highlights:

The North Dakota Constitution requires the Governor to “present information on the condition of the state, together with any recommended legislation, to every regular and special session of the legislative assembly.” N.D. Const. art. V, § 7. By contrast, the Chief Justice appears before the Assembly to present the state of the Judiciary by invitation of the Legislative Assembly. I perhaps should not tell you this, but it may surprise you to learn that delivering a State of the Judiciary message is not a privilege all of my colleagues in other states share. I do not take this privilege for granted and I recognize your already heavy schedule. The invitation to speak to you today is indicative of the spirit of cooperation and respect that our three branches of government in our state share. I thank you for that.

For the Judicial Branch, the State of the Judiciary is an opportunity to pose to the Legislature and the Executive the operations and goals of the Judiciary and the opportunity for you to examine those goals and operations. But that is but a small part of the interbranch relationship. For example, during the year we have the benefit of the wisdom and advice of legislators and executive branch representatives on court committees. The advice and input we receive from representatives of the other branches are invaluable to our policy-making decisions. In turn, several judicial branch officials serve on and advise legislative and executive branch committees; and issues arise within the other two branches of government that require the attention, consideration and cooperation of the Judicial Branch to resolve.

I take a few minutes now to update you on these projects and to touch upon some other areas of concern.

Task Force To Study Racial and Ethnic Bias in the Courts

Mediation Pilot Program

Parenting Coordinator Program

Problem Solving Courts

Study Resolution on Elder Issues

Supreme Court Facilities

Cost-Sharing for District Court Space

Case Management System