Florida: Senate now has its own constitutional amendment to allow legislature to override “activist judges” by 2/3rds vote

I mentioned last month the proposal in the Florida House that would allow the legislature to override state court decisions by a 2/3rds vote. Now the Senate has its own version.

HJR 121 and the identical SJR 1098 filed earlier this week provide

Any law, resolution, or other legislative act declared void by the supreme court, district court of appeal, circuit court, or county court of this state may be deemed active and operational, notwithstanding the court’s ruling, if agreed to by the legislature pursuant to a resolution adopted by a two-thirds vote of each house within five years after the date that the ruling becomes final. Such resolution is exempt from section 8 of this article and shall take effect immediately upon passage.

The House proponent has posted on own website that the rationale for the proposal, and a similar one urging Congress to enact a federal 2/3rds override plan, is to “curtail the tendency of activist judges to manipulate the law to suit their political views and agendas.”

SJR 1098 has been filed but not yet assigned to a committee.

Oklahoma: House Resolution directs state Supreme Court to not “interfere” with state’s abortion laws

A resolution filed in the Oklahoma House earlier this week directs the state’s judiciary in general and the state’s Supreme Court in particular to not “interfere” with the state’s abortion laws.

HR 1004 as introduced starts by rejecting the U.S. Supreme Court cases dealing with abortion, citing specifically Roe v. Wade and Planned Parenthood v. Casey. It then calls on state public officials, including judges and justices specifically, to “exercise their authority as appropriate in their respective jurisdictions to stop the murder of innocent unborn children by abortion.”

The next paragraph, however, is specifically directed at state judges.

THAT Oklahoma judges and specifically justices of the Oklahoma Supreme Court are directed not to interfere with this Legislature’ s right to clarify Oklahoma criminal law regarding abortion per Section 36 of Article V of the Oklahoma Constitution.

That particular section of the state’s constitution deals with the legislature’s power.

The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.

The resolution appears to target two decisions by the Oklahoma Supreme Court from late 2016:

  • In October 2016, the Oklahoma Supreme Court struck down a 2015 law (SB 642 of 2015) that dealt with restrictions on abortions (parental consent for minors, tissue preservation, inspection of clinics, and legal liability of abortion providers). That decision was 9-0.
  • In December 2016 the court again ruled 9-0 that a law requiring doctors at abortion clinics to have hospital admitting privileges (SB 1848 of 2014) was also unconstitutional.

Mississippi: House approves plan to let Chief Justice pick trial judge to hear challenges to state laws

The Mississippi House earlier this week approved a plan discussed here to have constitutional challenges to state laws heard by a Circuit Court judge handpicked by the state’s Chief Justice.

HB 805 as passed 78-44 provides when there is a lawsuit “challenging the lawfulness or constitutionality of any state law, order, rule or regulation” the case would not be assigned to the Circuit Judge(s) in that county or in the capital (Hinds County) if the suit was filed there.

Instead, the case would be filed with the Supreme Court and the Chief Justice shall “designate and notify a [Circuit Court] judge to hear and determine the matters at issue.”

News reports for the 2015 version of this bill indicated this is an effort to bypass judges in Hinds County, where the capital is located.

The bill now goes to the Senate.

Wyoming: Senate approves constitutional amendment to strip courts of power to hear challenges to K-12 education funding

A plan to strip the Wyoming courts of the power to hear cases involving K-12 education funding has cleared the Senate. The plan comes amid anticipation the state will have to cut funding for schools in possible violation of a series of state supreme court decisions (the Campbell cases) issued since 1995 that held such cuts would violate Art. 7, Sec. 9 of the state constitution regarding school funding.

The legislature shall make such further provision by taxation or otherwise, as with the income arising from the general school fund will create and maintain a thorough and efficient system of public schools, adequate to the proper instruction of all youth of the state, between the ages of six and twenty-one years, free of charge…

SJR 9 was approved on 26-4 vote by the Senate last week (media coverage here). It would amend Art. 7, Sec. 9 by providing the legislature alone is to determine the necessary levels of funding (new language in bold)

The legislature shall make such further provision by taxation or otherwise, as the legislature determines necessary together with the income arising from the general school fund will to create and maintain a thorough and efficient system of public schools…

In addition the constitution would be amended to add the following language:

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.

SJR 9 now goes to the House where it must receive at least 2/3rds support before being sent to voters.

First Arizona, now Idaho wants to ban state court judges from enforcing federal court decisions; state AG indicates bill violates Supremacy Clause

I mentioned earlier this week a plan approved in the Arizona House that, citing the state’s “sovereign authority”, would ban Arizona state courts from being “commandeered” into enforcing federal court rulings. Now it appears Idaho may attempt a similar move, despite a letter from the state’s Attorney General against the bill.

HB 65 of 2017 would provide that the legislature had the power to “invalidate” “federal court or U.S. supreme court decisions” as “not constitutional compared to the original intent of the United States constitution.” If a bill declaring a U.S. Supreme Court or other federal court decisions was enacted by the Idaho legislature, Idaho state judges would be prohibited from enforcing or acknowledging the decision (“Such…court cases shall not be recognized by the State of Idaho and are null and void and of no effect in this state.”)

Moreover, the bill specifically targets the state’s judges to not enforce federal court decisions/cases in subsection 3.

(3) No judge of an Idaho state court shall issue any order to levy or execute on the property of any Idaho citizen to collect any amounts assessed against such citizen for failure to comply with any provision of the laws, regulations or court cases referenced in subsection (1) of this section.

It appears an early draft of HB 65 (called DRMPN482) was submitted to the Idaho Attorney General for his opinion. The AG’s office responded in a letter noting that the bill as drafted likely violated the U.S. Constitution, in particular

Subsection (3) of proposed section 67-515 would directly contradict [the Supremacy Clause] of the United States Constitution by ordering judges not to be bound by the laws and case decisions of the Federal Government

HB 65 has been filed in the House State Affairs committee.

New Mexico: Senate Rules committee approves constitutional amendment to allow more appeals directly to Court of Appeals

An amendment to the New Mexico constitution to allow the legislature to help set appellate jurisdiction in the state’s judiciary has cleared its first legislative hurdle.

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)

The problem: these provisions were written into the state’s 1910 constitution prior to the creation (by statute) of the state’s Court of Appeals in 1965, thus they didn’t anticipate that court and its potential use for appellate review.

SJR 1 as substituted by the Senate Rules Committee last week addresses each of these 3 sections with an eye towards shifting appeals away from the Supreme and District courts and to the Court of Appeals.

  1. The provision for death/life imprisonment cases going directly to the supreme court would be stricken.
  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 Senate Judiciary Committee.

 

Mississippi: House committee approves plan to let Chief Justice pick judge to hear challenges to state laws; part of larger national trend to get lawsuits out of state capitals

Like legislatures in other states such as North Carolina and Texas, Mississippi has attempted in recent years to move challenges to the constitutionality of state laws out of the courts that sit in the state’s capital and instead allow for the state’s chief justice to select the judge(s) to hear such cases. The most recent efforts in this area just cleared the House Judiciary A committee this week.

Under HB 805 as introduced when there is a lawsuit “challenging the lawfulness or constitutionality of any state law, order, rule or regulation” the case would not be assigned to the Circuit Judge(s) in that county. Instead, the case would be filed with the Supreme Court and the Chief Justice shall “designate and notify a [Circuit Court] judge to hear and determine the matters at issue.”

News reports for the 2015 bill indicated this is an effort to bypass judges in Hinds County, where the capital is located.

This isn’t the first time this plan was submitted. HB 710 of 2015 was approved by the full House 70-48 and was discussed here but died in the Senate Judiciary A Committee. HB 719 of 2016 never even came out of the House committee.