South Dakota: Initiated Constitutional Amendment would require judges recuse for campaign contributions; new State Government Accountability Board would have power over judges

A proposed South Dakota constitutional amendment, currently circulating for signatures, could require the state’s judges to recuse in cases involving campaign contributors.

In 2016 voters in the state passed IM 22, amending state statutes related to campaign finance and lobbying laws. While approved by voters, the legislature effectively rewrote and overturned the measure during its 2017 session.

In June proponents of IM returned with a new proposal, this time a constitutional amendment, that includes some of IM 22’s provisions and several new ones, including one focused on judges.

Under Section 11 of the proposed constitutional amendment

A judge shall avoid the appearance of bias, and shall disqualify himself or herself in any proceeding in which monetary or in-kind support related to the judge’s election or retention creates an appearance of bias to a reasonable person.

Circuit judges in South Dakota are subject to non-partisan elections, while South Dakota Supreme Court judges are appointed via a merit/commission based system and subject to yes/no retention elections.

In addition the legislatively created State Government Accountability Board would be replaced with a new board of the same name with the power to investigate both legislators and judges, including the power to adopt rules of ethics that would be binding on judges and to investigate judges for violations of those ethics or existing ethics/corruptions statutes. Moreover, the Board would have the power to impose sanctions on judges.

The initiative requires 27,741 signatures to be gathered and submitted to the secretary of state by November 2017 to appear on the November 2018 ballot.

New Mexico: constitutional amendment to give legislature more discretion to set appellate jurisdiction of courts by statute heading to ballot in 2018

A constitutional amendment discussed here to give the New Mexico legislature more discretion in setting the appellate jurisdiction of the state’s courts in general, and the District Court in particular, is heading to the 2018 ballot.

Currently the state’s constitution has three particular provisions when it comes to appeals

  1. District Court cases involving sentences of death or life imprisonment go directly to the state’s Supreme Court (Art. 6, Sec. 2).
  2. The District Courts themselves have “appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts.” (Art. 6, Sec. 13)
  3. Finally, the constitution provides “Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.” (Art. 6, Sec. 27)

SJR 1 as approved by the House addresses items 2 and 3.

  1. The provision for death/life imprisonment cases going directly to the Supreme Court would remain. The Senate wanted remove the direct-to-the-Supreme-Court provision but the House struck that change.
  2. District Courts would not have appellate jurisdiction over “all” cases originating in inferior courts and tribunals in their respective district.
  3. The provision that probate/inferior court appeals go “to the district courts, and in all such appeals, trial shall be had de novo” would be struck.

SJR 1 now goes to the ballot in November 2018.

Arkansas: plan to allow legislature to amend, repeal, or create rules of court heading to voters in November 2018

The Arkansas Senate gave final approval yesterday on a constitutional amendment to give the legislature broad control over rules adopted by the Arkansas Supreme Court for pleading, practice, and procedure are handled. SJR 8 as it will appear on the November 2018 ballot also includes a tort reform package that would limit some attorney’s fees and punitive damages in lawsuits.

Currently the state’s constitution gives the state’s supreme court the power to

prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.

That power was cited by the Arkansas Supreme Court in striking down an earlier tort reform package.

SJR 8 would make two key changes

  1. the legislature could by 3/5ths majority amend or repeal any rule
  2. the legislature could by 3/5ths majority create a rule on its own initiative

The original Senate version also included a third provision that would have required the legislature approve by 3/5ths vote any rule adopted by the Supreme Court before it went into effect. The House stripped that language out.

SJR 8 now goes to the voters in November 2018.