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.

Washington: modified version of 2015 bill to create Tax Court refiled, this time with a constitutional amendment

A 2015 plan to create a Tax Court in Washington (discussed here) composed of sitting Court of Appeals judges was hobbled with concerns that the state’s constitution didn’t give the legislature the power to create such a court. Now the 2017 version of the plan is back, this time with a constitutional amendment and some changes.

SJR 8209 amends the state’s judiciary article to authorize the creation of a Tax Court and spells out in general its jurisdiction. It provides that decisions of the Tax Court would go directly to the state supreme court. Finally, it provides that the number, election, terms, and compensation of Tax Court judges would be left to the legislature.

SB 5866 fleshes out SJR 8209’s provisions and appears to be similar to the 2015 plan. It abolishes the existing State Board of Tax Appeals in favor of the new Tax Court.

The Court would be made up of two “departments”.

  • The Main Department would consist of 3 judges who may individually or as a panel hear tax appeals. All decisions of the Main Department would have to be rendered within 6 months of submission, although the court could extend this for good cause an additional 3 months.

Unlike the 2015 plan, which called for using Court of Appeals judges, the 2017 plan would have the 3 judges elected to the Court in their own right to 6 year terms. It appears the judges would be elected by Court of Appeals district.

The judges would have to have “at least five years’ experience as an attorney practicing in Washington state and local tax law.” A similar provision created some controversy in 2015 when it was questioned who would determine whether a person met this requirement.

  • The Commissioner Department would be for “cost-effective and informal” reviews and would include a voluntary mediation system. Commissioners would be appointed by the judges of the Main Department.

A hearing on the implementing legislation (SB 5866) is set for tomorrow (March 14) in the Senate Law & Justice Committee. A hearing on both the bill and constitutional amendment are set for March 16.

North Carolina: in last 24 hours House has advanced major changes to state’s judiciary; return to partisan trial court races now going to governor

The North Carolina House in the last 24 hours has adopted major changes to the state’s judiciary, already sending some to the governor’s desk.

HB 100 as amended by the Senate would return races for Superior and District Courts to partisan races. The legislature in a late 2016 special session had already returned that state’s appellate races back to partisan ones. The House, having agreed to a Senate amendment, will now send HB 100 to the governor. It is unclear what the reaction will be, since the governor was the lead author of the bill making Superior Court races nonpartisan in the first place.

HB 239 approved by the full House a few hours ago is a plan to reduce the state’s Court of Appeals from 15 judges down to 12. No judges would be forced out of office, instead when a seat becomes vacant for whatever reason “the seat is abolished.” It has been sent to the Senate.

HB 240 as discussed here removes the governor’s power to fill interim vacancies in District Court and transfers that power to the legislature itself. An amendment to have the Chief Judge of the District Court or Chief Justice (if there was no Chief Judge) make the pick instead was defeated. It has been ordered engrossed and will likely go to the Senate shortly.

HB 241 as discussed here removes the power of North Carolina governors to name Special Superior Court Judges (SSCJs) and transfers that power to the legislature itself. It has been sent to the Senate.

 

Adding to Texas’ unique court structure and organization: brand new Chancery trial and appellate court system re-introduced; Governor would select judges

A plan first introduced in 2015 and discussed here to create a Chancery Court system in Texas has been reintroduced to hear business cases. As I noted at the time, Texas already has one of the largest number of court types in the United States with 6 trial court types (Constitutional County, Statutory County, Statutory Probate, District, Justice of the Peace, and Municipal), 14 separate Courts of Appeal, including a unique two-courts-in-one-county (the 1st and 14th Court of Appeals both serve Houston) and two courts of last resort (civil: Supreme; criminal: Court of Criminal Appeals).

The latest iteration of the plan, introduced this year as HB 2594 would add not only a new trial court (Chancery made up of 7 judges) but a new intermediate appellate court (Court of Chancery Appeals made up of 7 judges). The Chancery Court would have concurrent jurisdiction with the state’s District Courts over 10 specified complex civil litigation actions or proceedings. The Court of Chancery Appeals would operate as effectively a specialized 15th intermediate appellate court for business cases only, something no other state has.

No state has a trial court whose sole purpose is to hear business or complex litigation cases. Even Delaware’s Chancery Court hears cases other the business ones such as disputes involving the purchase and sale of land and questions of title to real estate. Much more common is for the creation of special divisions of existing courts. For example, Delaware’s Superior Court makes use of a Complex Commercial Litigation Division.

Making things more unique is the method of judicial selection. Judges of both courts would not be subject to elections but instead chosen solely by the Governor from a list provided by a Chancery Court Nominations Advisory Council to which the Governor would name all the members. The Governor’s hand-picked Commission would have to provide 5 names for each court vacancy, however the Governor could ask for another 5 for a total of 10 names. Judges of the Court of Chancery Appeals would have to be existing Justices of a Court of Appeals. Judges so chosen would be subject to Senate confirmation.

There is also a fail-safe: in case this particular manner of judicial selection is found unconstitutional the court(s) would be staffed by sitting or retired justices who are appointed by the Supreme Court.

HB 2594 has been filed in the House but not yet assigned to a committee.

Texas: bill similar to Arizona “anti-commandeering” legislation would ban state appellate courts from enforcing federal court orders

A version of the Arizona bill that would ban state courts from enforcing federal court decisions has now been filed in the Texas House.

HB 2808 as filed amends Government Code Chapter 2113 by creating a new Subchapter F to prohibit a “state agency” from using any money in enforcing any “federal action.”

Under Gov. Code Ch. 2113 “state agency” includes “the supreme court, the court of criminal appeals, another entity in the judicial branch of state government with statewide authority, or a court of appeals.”

Moreover, HB 2808 specifically defines “federal action” to include “order of a federal court.”

Enforcement of the federal court order could only occur if permitted by the Texas legislature via the General Appropriations Act or some other state law.

HB 2808 has been filed but not yet assigned to a committee.

Missouri becomes 3rd state this year to consider bills to prohibit state courts from enforcing/recognizing federal laws or court decisions

I mentioned the proposals in Arizona and Idaho that would prohibit state court judges from enforcing federal laws or federal court decisions. The latest such effort has now been filed in Missouri.

HJR 41 of 2017 appears to be identical to HJR 62 of 2016 originally discussed here.

The constitutional amendment is directed broadly to any “federal law.” The state legislature could send to the ballot, or the general public could via referendum, any “federal law” for a vote as to its constitutionality. If approved by voters, the “federal law” would be valid. If not, “the courts of this state shall be stripped of jurisdiction to enforce such a particular federal law…”

HJR 41 has been filed but not yet assigned to a committee.

Wyoming: Effort to strip state courts of jurisdiction to hear K-12 funding lawsuits killed in House; Senate had approved 26-4.

A plan to strip Wyoming state courts of the power to hear lawsuits involving state constitutional provisions related to K-12 funding has been rejected in a House committee.

SJR 9 had cleared the Senate on a 26-4 vote earlier this month (as discussed here) and would have amended the state’s constitution to specify that “the legislature determines” the “necessary” level of funding and taxation for the schools. It also would have expressly prohibited courts from ordering funding changes.

No court shall order, enjoin or otherwise require the imposition of any tax or tax increase, nor require any other provision of funding beyond those means and amounts prescribed by law to carry into effect the provisions of this section.

The constitutional amendment was then sent to the House Education committee which yesterday voted 9-0 against.