Georgia: New statewide Business Court with unique judicial selection system to appear on November 2018 ballot; Superior Courts could still create business divisions

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now voters will decide on a 7th: Business Court.

HR 993 would amend the state’s constitution to create a Business Court. The plan, as amended, would still allow Superior Courts to create their own business court divisions.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor. Moreover, unlike any other state, confirmation would be done not by a single chamber (e.g. Senate) or both legislative chambers (as in Connecticut and Tennessee) but by the House Judiciary Committee and the Senate Judiciary Committee.

Kansas: Senate leaders appear to stop bill to increase funding for public schools until constitutional amendment to strip courts of K-12 funding decisions is passed

A bill to increase funding for Kansas public schools that passed the House will not move in the Senate until both chambers approved a bill to strip to Kansas judiciary of jurisdiction to hear K-12 funding disputes.

First, some background.

As mentioned on this blog over the years the Kansas Supreme Court has issued several decisions finding the legislature’s system and amounts for public education were unconstitutional under a provision that

The legislature shall make suitable provision for finance of the educational interests of the state.

Dozens of constitutional amendments detailed here have been filed over the last decade to strip the Kansas courts of jurisdiction to hear cases under this provision and to allow the legislature to set whatever funding levels and funding sources it wished.

The Kansas Supreme Court has given the legislature until April 30 to come up with a constitutional funding formula.

The House, in response, today passed HB 2445 to provide additional funding.

Senate leadership, however, has announced no funding bill will be taken up in the Senate until a constitutional amendment (HCR 5029 or something similar) is approved by the House and Senate and sent to voters. Moreover, local media reports if the amendment fails to pass the House, Senate leaders will simply not take up the funding bill at all.

That amendment would amend the constitution to read

As all political power is inherent in the people, the legislature shall make determine suitable provision for finance of the educational interests of the state. The determination of the total amount of funding that constitutes suitable provision for finance of the educational interests of the state is exclusively a legislative power, and shall be made as provided by law. Such power is committed to the legislature under article 2 of this constitution and shall be shown due respect by the other branches of government. No court, or other tribunal, established by this constitution or otherwise by law shall alter, amend, repeal or otherwise abrogate such power, nor shall such power be exercised by, either directly or indirectly, by any such court or other tribunal.

Florida: Senate bill would make several changes to judiciary; court security, civil jurisdiction limits, Supreme Court justice remote chambers; bill may require 2/3rds majority

A bill approved last week by the Florida Senate Judiciary Committee and set for a full Senate vote soon effectively merges several bills into one with potential major ramifications for the courts.

SB 1396 as it presently reads includes

  • A new section of law regarding the role and responsibility of sheriffs to provide court security and the authority of chief judges in this area. The language appears to be similar if not identical to portions of HB 7089 discussed here.
  • Increases the civil jurisdiction for the state’s County Courts from $15,000 to $50,000 effective 2020.
  • Authorizes a Supreme Court justice who resides outside of Tallahassee to maintain his or her headquarters in a district court of appeal courthouse, a county courthouse, or other appropriate facility in the justice’s district and be reimbursed for travel and subsistence while in Tallahassee.
  • The addition of judges to certain Circuits

This last item may prove a sticking point. Under the state’s constitution the supreme court “certifies” the number of judges needed in each Circuit Court or County Court. If the legislature wants to alter the supreme court’s numbers up or down, it must have “a finding of two-thirds of the membership of both houses of the legislature.”

Iowa: Senate approves 26-24 bill to require supermajority of state Supreme Court (5/7) to declare laws unconstitutional

A plan discussed here to require the Iowa Supreme Court have a 5/7 supermajority to declare laws unconstitutional cleared the Senate yesterday.

News reports quote the lead author of SF 2282 as claiming the proposal is not targeting the current court but that “It’s just too much power to give to four judges to make fundamental changes in our law.” Proponents also liken it to a legislature overriding a governor’s veto by 2/3rds, however that provision in the is found in the Iowa constitution, not a statute.

As noted before, there are two states with similar supermajority requirements (Nebraska and North Dakota) but those are due to constitutional provisions, not statutes.

SF 2153 now goes to the House.

Oklahoma: Constitutional amendment to abolish Court of Criminal Appeals passes House Rules Committee

There are two states that have two separate courts of last resort: Oklahoma and Texas. Both have a court of last resort for civil matters (Supreme Court) and one for criminal (Court of Criminal Appeals). Texas has debated and attempted for 20 years to merge their courts, now Oklahoma appears to be trying to do the same.

HJR 1051 as filed and approved by the House Rules Committee yesterday would abolish the Court of Criminal Appeals within one year of approval by voters. All “duties, powers, cases, records, property, and personnel” EXCEPT judges would transfer to the Supreme Court. It appears the judges of the Court of Criminal Appeals would simply have their existing offices and terms ended.

The last and only time in recent history an effort like this was attempted in 2012 (discussed here).

There has been a single attempt in the last 20 years to merge the two courts. SJR 83 of 2012 would have abolished the constitutional references to the Court of Criminal Appeals. This was part of a package of bills, including SJR 84 of 2012 which would have stripped the newly combined Supreme Court of the power to strike down any law as unconstitutional, instead allowing an “Ad Hoc Court of Constitutional Review” created by the legislature itself to determine whether its laws were constitutional.


Wyoming: SJR 4 clears committee, would limit judiciary’s power in K-12 finance suits; courts could declare legislature violated constitution but could not order any action to generate revenue to pay for schools

As discussed here, a constitutional amendment to strip state courts of power in K-12 funding lawsuits have not advanced out of the Senate Education Committee.

SJR 4 contains three key sections.

  1. The legislature alone is to decide funding levels and to “rationally determine” what those levels are.
  2. The legislature alone is to equitably allocate funding among the school districts in order to have adequate, thorough and efficient schools.
  3. The judiciary may declare a system of public school funding in violation of the constitution, but cannot order the legislature to take any action to generate revenue, through taxation or otherwise in order to fulfill its duties to fully fund the public school system.

Florida: What is the Constitution Revision Commission looking at regarding the judiciary?

Although not technically a legislative entity, Florida’s Constitutional Revision Commission is, like the legislature, allowed to submit constitutional amendments onto the ballot affecting the courts. While there were 103 CRC proposals, these have been narrowed to Proposals Under Active Consideration as of today. Those affecting the courts include

      • Proposal 6: Requires any state court or administrative law judge to interpret a state statute or rule de novo, independent of an agency’s interpretation, in any litigation proceedings between a private party and an administrative agency.
      • Proposal 39: Among other things, prohibits a justice or judge from personally representing another person for compensation before the legislative, executive, or judicial branches of state government, other than practicing law before a judicial tribunal, for a period of six years following vacation of office.
      • Proposal 41: Allows judges to serve until age 75. Currently judges must retire at 70, but can serve out their current term if they already served at least 1/2 of it when they hit 70.
      • Proposal 47: Provides a person must be a member of a U.S. state or territory for 10 years to be eligible for a trial court judgeship (Circuit or County Courts).
      • Proposal 55: Requires the legislature to provide funding sufficient to offset the Clerks costs in providing services in criminal and other court cases in which the parties do not pay fees and costs.

Gone are any proposals regarding changes to judicial selection.


Wyoming: Efforts to strip state courts of jurisdiction to hear K-12 funding lawsuits reintroduced; courts could declare funding system unconstitutional but could not order more funding

Last year the Wyoming Senate approved a constitutional amendment that would have prohibited courts from hearing K-12 funding lawsuits brought under the state constitution’s clause that the legislature is to “create and maintain a thorough and efficient system of public schools.” In 2018 several constitutional amendments were filed in this area, with one advancing to committee.

SJR 4 as filed was allowed to be introduced (normally, sessions in even number years are limited to budget issues only, but the House or Senate can vote to allow other items in). The constitutional amendment contains three key sections.

  1. The legislature alone is to decide funding levels and to “rationally determine” what those levels are
  2. The legislature alone is to equitably allocate funding among the school districts in order to have adequate, thorough and efficient schools
  3. The judiciary may declare a system of public school funding in violation of the constitution, but cannot order the legislature to take any action to generate revenue, through taxation or otherwise in order to fulfill its duties to fully fund the public school system.

SJR 4 is similar to HJR 9, which failed to advance to committee. I simply declared no court could order/require imposition of any tax or tax increase, nor require any other provision of funding for schools beyond what the legislature approved.

Iowa: Bills would require supermajority of state Supreme Court (5/7) to declare laws unconstitutional; similar provisions in Nebraska and North Dakota

Iowa’s Constitution provides that “the supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe…

Citing this provision, members of the Iowa legislature want to impose a supermajority requirement on the Iowa Supreme Court for at least some of its decisions.

HF 2106 and SF 2153  provide no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five 5 justices of the supreme court of Iowa. The court is made up currently of 7 justices.

There are two state courts of last resort that require supermajorities to strike down laws, but both are because of a constitutional provision, not a mere statute.

North Dakota Supreme Court (4/5): “The supreme court shall consist of five justices…A majority of the supreme court shall be necessary to constitute a quorum or to pronounce a decision, provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide…” (Art. VI, § 2, 4)

Nebraska Supreme Court (5/7): “The Supreme Court shall consist of seven judges…No legislative act shall be held unconstitutional except by the concurrence of five judges.” (Art. V, § 2)

Hawaii: bills in House/Senate would change state supreme court’s jurisdiction back to old “deflector” system; force Supreme Court to decide some cases in 15 days

Hawaii’s Supreme Court and Intermediate Court of Appeals had, for decades, operated using a “deflector” system: appeals were filed with the Supreme Court which then either kept the case or “deflected” it down to the Intermediate Court of Appeals. The system ended in 2006 and now appeals can be filed directly with the Intermediate Court of Appeals, but some legislators want a return to the old system and add a 15 day deadline for others.

HB 2191 / SB 3040 effectively repeal the 2006 changes and re-establish the deflector system.

HB 2194 / SB 3019 would add to the Supreme Court’s docket as well. The bills provide that a court of inferior jurisdiction may certify to the Hawaii Supreme Court a question or proposition of law on which the court of inferior jurisdiction seeks instruction for the proper decision of a remanded case. Finally they require the Supreme Court to answer the question within 15 calendar days.