Omnibus bills affecting the courts week: 2011

With the notable exception of budget/appropriations bills, most legislation affecting the courts are handled in single subject bills that affect only selection or court jurisdiction or salary, etc. Several states have in the recent past, however, consolidated numerous other bills into one omnibus bill that affects a variety of aspects of the judiciary. This year is no exception, with such bills be introduced in at least 4 states. This week I’ll be looking at each one individually and the various and sundry elements in each.

Florida Senate Judiciary Committee approves several bills that would change judicial discipline, judicial rulemaking

The Florida Senate Judiciary Committee approved several bills yesterday that could reshape the state’s judiciary. What may prove more notable in the long run, however, are the bills that were not taken up or that were temporarily shelved.

Judicial Discipline

Article V, Section 12 of the Florida constitution spells out in great detail the process of judicial discipline via the state’s Judicial Qualifications Commission. Specifically, Paragraph 4 provides

Until formal charges against a justice or judge are filed by the investigative panel with the clerk of the supreme court of Florida all proceedings by or before the commission shall be confidential; provided, however, upon a finding of probable cause and the filing by the investigative panel with said clerk of such formal charges against a justice or judge such charges and all further proceedings before the commission shall be public.

SJR 1704 of 2011, approved on a 6-1 vote yesterday by the Senate Judiciary Committee, would substantially revise Paragraph 4. Complaints against judges would still be made public when the investigative panel files formal charges, but such complaints would also be made public after 1) a determination that formal charges will not be filed, or 2) the entry of a stipulation or other settlement agreement before the investigative panel determines whether to file formal charges. Moreover, the commission would be required to notify the Speaker of the Florida House of all complaints received or initiated, all investigations conducted, and all complaints dismissed, settled, or otherwise concluded.

Judicial Rulemaking

The same committee approved on a 5-2 vote a constitutional amendment to make it easier for the legislature to override the rules of practice and procedure set by the state’s Supreme Court. The current constitutional provisions provide “Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.” SJR 2084 would drop the threshold from two-thirds to three-fifths (67% vs. 60%) and prohibit the supreme court from readopting the rule for three years after repeal.

Bills not taken up may be telling

Other bills related to judicial elections and other efforts to alter the state’s judiciary were not taken up. According to the Orlando Sentinel, senators of both parties are expressing hesitation over proposals made by Republican House Speaker Dean Cannon that would give the executive and legislative branches more power over the judiciary in general and the supreme court in particular (efforts described here and here), including a proposal to allow the Attorney General to select members of the state’s judicial nominating commissions currently chosen by the state’s bar (SPB 7222).

1851 Florida law requiring clerk of court live within 2 miles of county seat likely to be repealed, possibly ending 150+ year national judicial tradition

In one of the first legislative acts after Florida became a state, the 1851 Legislature enacted what is now Florida Statute 28.08, providing “The clerk of the circuit court, or a deputy, shall reside at the county seat or within 2 miles thereof.” As a legislative analysis done by the Florida House noted, the original act required compliance within 3 months of election to the office of clerk and allowed the court to fine the clerk between $100 and $500 for noncompliance. Per the legislative analysis done when the House Judiciary Committee took a look at the law on March 10, no one was precisely sure why the law was originally enacted.

Such provisions were rare but not unheard of at the time; Alabama, Missouri, Nevada, and New York judges, plus Arizona and Washington commissioners (judicial hearing officers appointed by a court’s judges), were required to reside at the county seat. California Superior Court judges were allowed some space; they could live within 3 miles of the county seat.

Into this history comes Florida’s HB 4067, which ends what is perhaps the last statutory obligation for a local court officer/employee to live in or a specified distance near a county seat (Arizona commissioners still must live at the county seat by default, but have had the option at least since 1955 of living elsewhere in the county with the approval of the appointing judge/judges).

The House Judiciary committee took less than 2 minutes (see minutes 16:00-18:00 here) to approve the repeal. Just as swiftly as the House Judiciary Committee, the full House approved the repeal unanimously on March 24 (see minutes 2:16:30-2:18:30 here). HB 4067 is currently pending in the Florida Senate without a committee assignment.

Pennsylvania’s House (again) considers impeaching Court of Common Pleas Judge Willis W. Berry, Jr.

I noted last year a push in the Pennsylvania House to impeach Pennsylvania Court of Common Pleas Judge Willis W. Berry, Jr.

Pennsylvania Court of Common Pleas Judge Willis W. Berry, Jr.  has served in that office in 1996 and had, prior too taking office, purchased over a dozen properties in Philadelphia. The properties were in poor condition and the judge was cited over 70 times. According to the state’s Court of Judicial Discipline, Judge Berry made use of his office and judicial secretary for a decade to “assist him in the day-to-day operations concerning his properties.” The Court of Judicial Discipline suspended him for four months without pay and he was encouraged to resign by the Philadelphia Bar. Instead, Berry returned to work on January 4 [2010].

HR 603 appoints a sub-committee of the House Judiciary Committee to investigate Judge Berry’s actions and determine whether they rise to the level of an impeachable offense.

HR 603 of 2010 never even reached the hearing stage. Many of the same sponsors have reintroduced the resolution again as HR 124 of 2011.

This latest resolution is currently pending before the House Judiciary Committee.

MA bills: Failure to fly U.S. & commonwealth flags in courtroom due process violation

Welcome Volokh readers!

Many states have requirements that U.S. and state flags be used in courthouses and/or courtrooms. Several Massachusetts bills, however, would in effect void any proceeding that did not include such flags.

Chapter 220, Section 1 of the Massachusetts General Laws provides “The flag of the United States and the flag of the commonwealth shall be displayed in every court of justice of the commonwealth while court is in session. The flags shall be of suitable dimensions.”

The matter has actually been litigated involving a case where a courtroom’s flag was borrowed by another court and was returned to the courtroom before the morning session was over. On appeal, the party sought a mistrial, which was denied. (Zabin v. Picciotto, 2008 Mass. App. LEXIS 1135).

HB 1325 and SB 643 of 2011 would both declare “Failure to adhere to the provisions of this section [i.e. display the flags] shall constitute a violation of due process.” The bills are identical to ones filed in the 2009/2010 session (HB 1475 and SB 1562).

The 2011 bills are currently pending in the Joint Committee on the Judiciary.

Update: Fixed a typo or two…

On 242-105 vote, New Hampshire House votes to investigate impeaching Marital Master Phillip Cross “and/or any justice of the New Hampshire Superior Court”

I mentioned in the last several weeks the efforts over the course of the last several years to remove New Hampshire judges and marital masters, either by bill of address or impeachment, for their decisions (see here and here).

The latest such effort, HR 7, while specifying by name Marital Master Phillip Cross also allows the House Judiciary Committee to investigate “Cross and/or any justice of the New Hampshire superior court.” Testimony given in the House Judiciary Committee hearings by Judge Edwin W. Kelly, the Administrative Judge in charge of the Family Division, indicated that the sole basis for the investigation was for decisions Cross made in contentious divorce and custody cases.

The House today voted on a 242-105 vote to in fact direct the House Judiciary Committee to conduct such an investigation of the martial master and/or justices and “report to the house of representatives such resolutions, articles of impeachment, or other recommendations as it deems proper.”

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)