Michigan: Senate unanimously approves bills requiring state court administrative office certify all veterans, drug, DWI, and mental health courts

A set of bills previously discussed here, that require Michigan judges/courts that want to operate special problem solving dockets be certified by the state court administrator’s office has cleared that state’s Senate (news report here).

SB 435 (drug courts), SB 436 (DWI/sobriety courts), SB 437 (mental health courts), and SB 438 (veterans courts) provide that existing or new problem solving courts/dockets must be certified (“The state court administrative office shall establish the procedure for certification.”) or will be shut down starting January 1, 2018.

The bills are “tie-barred”, meaning for one to pass, they must all pass.

The bills have now been assigned to the House Law and Justice Committee.

Florida: 2017 bill passed by Senate to levy civil fines and remove from office judges who try to stop the carrying of guns into courthouses already prefiled for 2018

Earlier this year I mentioned Florida SB 616. Under the 2017 bill the firearm permit holders would have been allowed to carry guns into courthouses, or at least those portions not directly used by the courts (such as courtrooms and chambers). Judges who attempted to prohibit courthouse carry were threatened with civil fines and removal from office by the Governor. It was approved by the Senate but went nowhere in the House.

Now, SB 616 of 2017 has been refiled as SB 134 of 2018. It again threatens judges with civil fines and removal from office if they attempt to issue an administrative order stopping courthouse carry or altering the definition of “courthouse” to be broader than the limited-space definition provided in SB 134 (emphasis added).

A local ordinance, administrative rule, administrative order, or regulation that is in conflict with the definition of the term “courthouse” in this subsection or the rights set forth under subparagraph (12)(a)4. is preempted to the Legislature under s. 790.33. The person, justice, judge, county, agency, municipality, district, or other entity that enacts or causes to be enforced a local ordinance, administrative rule, administrative order, or regulation that is preempted is subject to the penalties set forth in s. 790.33, including, but not limited to, civil fines and removal from office by the Governor.

SB 134 has not yet been assigned to a committee.

Maryland: Senate committee debated whether parties in a civil case should be automatically given continuances, without judicial approval, if the parties agree

A plan introduced earlier this year in the Maryland Senate could have effectively stripped judges in civil cases of the ability to deny many continuances.

SB 250, as introduced, provided that if all parties to a civil proceeding agreed to a continuance “a court shall continue” the proceeding.

Current law provides a continuance may be granted. And Maryland’s top court in December 2016 adopted a rule (Rule 16-804) regarding continuances.

SB 250 came up for a hearing in the Senate Judicial Proceedings Committee February 2 where the author indicated lawyers were complaining of judges not granting continuances. The state’s top judge (Chief Judge Mary Ellen Barbera) testified in committee against the bill, indicating her concern the detrimental impact on the courts and the court’s ability to set and arrange calendaring.

SB 250 failed to advance out of committee.

Montana: Legislature declares new ABA model rule being considered by state’s supreme court banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Legislature has declared “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state. Senate Joint Resolution 15 was approved by the full House earlier this week, having cleared the Senate in February.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power.”

 

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.

Arkansas: House committee amends Senate plan to make Supreme Court rules subject to legislature; system similar to one in place in other states

The Arkansas House Judiciary Committee last night voted on its plan to change the way rules adopted by the Arkansas Supreme Court for pleading, practice, and procedure are handled. Currently the state’s constitution vests exclusively authority in this area with the court.

SJR 8, as approved by the senate, would make three key changes

  1. any rules adopted by the Arkansas Supreme Court would not become effective until approved by 3/5ths of the legislature
  2. the legislature could by 3/5ths majority amend or repeal any rule
  3. the legislature could by 3/5ths majority create a rule

The House Judiciary Committee version, however, effectively drops the first provision requiring legislative approval and keeps the other two.

By a three-fifths vote of each house, the General Assembly may enact laws: (A) Amending or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court; and (B) Adopting on its own initiative a rule of pleading, practice, or procedure.

That super-majority provision is similar to ones in place in 4 other states, but each handles it differently.

  1. Alaska’s constitution provides the supreme court the power to make and promulgate rules governing the administration of all courts as well as governing practice and procedure in civil and criminal cases. “These rules may be changed by the legislature by two-thirds vote of the members elected to each house.”
  2. Florida’s constitution gives the supreme court the power to adopt rules for the practice and procedure in all courts. The legislature has the ability to repeal such a rule by general law enacted by two-thirds vote of the membership of each house of the legislature.
  3. South Carolina has two provisions in this area. The first provides the supreme court “shall make rules governing the administration of all the courts of the State. Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts.” The second provides rules created by the supreme court “shall become effective ninety calendar days after submission [to the General Assembly’s Judiciary Committees] unless disapproved by concurrent resolution of the General Assembly, with the concurrence of three-fifths of the members of each House present and voting.”
  4. Utah’s constitution gives that state’s supreme court the power to “adopt rules of procedure and evidence to be used in the courts of the state.”  However, with respect to Rules of Procedure and Evidence, the legislature may make amendments upon a vote of two-thirds of all members of both houses of the Legislature.

Montana: Senate hearing on plan to declare new ABA model rule banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Senate Judiciary committee is set to hold a hearing tomorrow on Senate Joint Resolution 15 to declare “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

While rules of procedure are “subject to disapproval by the legislature”, the rules governing bar admission and conduct aren’t. That is not stopping members of the Montana Senate from trying.

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power,”