MN bill would require monthly reviews of trial judges’ clearance & compliance with 90-days-to-disposition requirement

Many states have statutorily imposed deadlines for judges to render their decisions under penalty of some sort of punishment or withholding of salary. Minnesota is no exception. Minnesota Statutes 546.27 provides

all questions of fact and law, and all motions and matters submitted to a judge for a decision in trial and appellate matters, shall be disposed of and the decision filed with the court administrator within 90 days after such submission, unless sickness or casualty shall prevent, or the time be extended by written consent of the parties. No part of the salary of any judge shall be paid unless the voucher therefor be accompanied by a certificate of the judge that there has been full compliance with the requirements of this section.

Also under 546.27, the 90 day rule is reduced to a 15 day rule in certain cases.

The state’s Board of Judicial Standards is required to review annually a judge’s compliance with the 90 day rule and is to be notified on a continuing basis if a judge has exceeded the deadlines. The board shall then notify the commissioner of management and budget, who would then stop paying the judge. The board may decline to issue such a notification if they find “a judge has compelling reasons for noncompliance.”

HB 1298 of 2011, however, would change this system into a more step-progressive approach:

  • The Board of Judicial Standards would review judge’s compliance monthly, not annually
  • References to notifying the commissioner of management and budget are removed
  • A first infraction would result in notification to the chief judge of the judicial district
  • A second infraction within 5 years would result in the chief judge and the judge who committed the infraction developing a written plan with the judge to remedy the current non-compliance and avoid future ones. A failure to comply with the plan would be sent to the Board by the chief judge.
  • A third infraction within 5 years of the first would result in the Board taking immediate action without referral to the chief judge (the chief judge would be notified).

The bill is currently pending in the House Judiciary Policy and Finance Committee.

Florida House Judiciary Committee to take up nine bills that would reshape the state’s judicial branch

I’ve noted several bills that have been pressed by Florida’s House Speaker and their prior hearing dates, including March 17 (see here), along with delays on the Senate side on their versions (see here). Tomorrow, April 7 may prove a fateful day for such efforts. Among the bills on the committee’s agenda:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future Supreme Court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms. This had previously been approved by the Civil Justice Subcommittee on March 17.

HJR 7025, a constitutional amendment that repeals the Supreme Court’s power, and that of any court, to adopt rules for the practice and procedure. Instead, the Supreme Court could recommend such rules to the legislature, which would have the power to adopt, amend, or reject any proposed or existing rule by law.

HB 7027 is a bill with statutory changes related to HJR 7025. In addition to specifying how the supreme court’s recommendations to the legislature would be handled, it would also create a judicial conference made up of the chief justice, the chief judge of each district court of appeal, and circuit judges and gives it broad oversight over the state’s judiciary.

HJR 7037, a constitutional amendment that provides all records, materials, & proceedings related to complaints & investigations of Judicial Qualifications Commission not otherwise exempt from disclosure are public upon filing of formal charges against judge or upon determination by commission or investigative panel that formal charges will not be filed. This is similar, but not identical, to SJR 1704 approved by the Senate Judiciary Committee on April 4.

HJR 7039, a constitutional amendment that requires justices or judges receive at least 60% of vote to be retained in office starting with 2012 election.

HB 7101, a statutory change that replaces entirely the state’s existing judicial nominating commissions. New commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The bill sets terms of the commission members concurrent with the governor and retains provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

HJR 7111 a constitutional amendment that would rename the existing Supreme Court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing Supreme Court would transfer to the new Supreme Court of Criminal Appeal and the existing Supreme Court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

HB 7119, repeals statutory provisions relating to requirement that district court sit in three judge panels & have majority for decision & requirement that clerk of district court perform duties prescribed by rule of court. This had been noticed for hearing and action previously on March 24 and March 30, but the bill was never taken up for consideration.

HB 7199 would change numerous statutes putting HJR 7111 into effect.

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).

FL: Bills to split supreme court and change judicial elections up for hearing on March 17

Tomorrow’s (March 17) House Judiciary Committee, Civil Justice Subcommittee promises to be very active with respect to the state’s judicial structure and election. A podcast of the hearing will be available here and video here.

On the agenda already are:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future supreme court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms.

PCB CVJS 11-06, a constitutional amendment that would rename the existing supreme court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing supreme court would transfer to the new Supreme Court of Criminal Appeal and the existing supreme court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

PCB CVJS 11-07 would change numerous statutes putting CVJS 11-06 into effect.

PCB CVJS 11-08 would replace the state’s existing judicial nominating commissions. The new commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The terms of the commission members would be concurrent with the governor, meaning a new governor would be able to pick all new commissions (currently, serve for 4 years). The bill does retain provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

Indiana: Floor amendment to unrelated bill would require courts provide bulk data

Courts have been contending with how to handle bulk data requests for years. Recently, however, efforts in Arizona and other states have sought to bypass the courts and mandate the disbursement by legislative act. The most recent example is in Indiana.

SB 561, as introduced, dealt with corrections and sentencing. A floor amendment, added on February 21 however, requires the division of state court administration to implement a standard program for disseminating bulk court case information for a reasonable fee. Moreover, the bill requires an executive branch agency (the Indiana Office of Technology) annually certify that case management systems operated or funded by the division of state court administration comply with this program.

Finally, while the amendment allows for the charging of “a reasonable fee” it defines “reasonable” as “not [to] exceed the direct cost of operating the export program and delivering data to the recipient plus a prorated fee to recoup the direct costs of developing the export program. In any one (1) year, the aggregate prorated fees charged under this subdivision may not exceed five percent (5%) of the direct costs of developing the export program.”

The bill, as amended, was approved by the full Senate 2/22/11 and is currently in the House awaiting committee assignment.

Cross-posted to Court Technology Bulletin.

FL: ConAmend to strip S.C. of rule making power on death penalty cases withdrawn

The Florida Supreme Court’s power to set rules of practice and procedure are among the broadest in the nation, as well as among the hardest to be overridden by the legislature. The Judiciary Article of the state constitution holds:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought…Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Two newly elected members of Florida’s House, however, attempted to transfer the rule making power as to death penalty cases directly to the legislature. HJR 73 of 2011 (as filed on December 16, 2010) would have added a section to the Legislative Article that read:

Notwithstanding any other provision of this constitution, the Legislature by general law shall adopt rules governing time limits, procedures, and processes relating to all death penalty cases and related proceedings in all courts.

The state bar’s Board of Governors on December 10 adopted a legislative position against any effort to alter the Supreme Court’s rule making power:

Opposes amendment of Article V, Section 2(a) of the Florida Constitution that would alter the Supreme Court’s authority to adopt rules for practice and procedure in all courts, or that would change the manner by which such rules may be repealed by the Legislature.

On December 30, precisely two weeks after the Constitutional Amendment was proposed, it was withdrawn by its sponsors.

IA: Judicial overhaul bill, vetoed in 2010, resubmitted in 2011

With ongoing efforts in Iowa to  impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature

In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:

  • Filling vacancies – Grants authority to the chief justice to delay the nomination of a supreme court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons up to one year. Grants authority to delay nomination for magistrates with certain limits.
  • Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the supreme court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the supreme court.
  • Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.
  • Residence – Requires district associate judge reside *in the judicial election district* in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.

Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:

  1. a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
  2. the sections allowing the Chief Justice to delay the appointment of judges for up to one year.

In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however  the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.

  • Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)

It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone