New Hampshire: plan to strip supreme court of rulemaking power killed by full House 244-47

A plan to strip the New Hampshire Supreme Court of its rule making authority over the judiciary has been scrapped by the House. CACR 13 was tabled by voice vote by the House yesterday.

CACR 13 as introduced would have amended the constitution to provide any such rules created by the supreme court would not “have the force and effect of law” and the court limited to making only rules governing court employees. A floor amendment would have continued to let the supreme court make rules regarding “administration of all courts in the state” but made them subject to legislative override (“provided that if such rules conflict with statute, statute shall prevail.”)

This year’s effort marks the latest in a 20+ year effort to remove the supreme court’s rulemaking authority or make is subject to legislative override.

New Hampshire: House approves 184-145 jury nullification bill; judges would have to instruct jurors using specific language set by legislature

The New Hampshire House yesterday approved on a 184-145 vote a bill to require judges give specific jury nullification instructions to jurors in criminal cases

HB 1270 as amended would replace an existing 2012 law with more specific language. The specific language was a key element for the House; legislators became infuriated after state courts failed to give nullification instructions based on the 2012 law and the state supreme court ruled the 2012 law did not require any specific nullification instructions.

The new law would contain 3 elements.

The first element essentially repeats the existing 2012 law although instead of the defense informing the jury, it would be the court doing so.

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

The second element is a “Wentworth instruction” derived from State v. Wentworth, 118 N.H. 833 (1978)

At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.

The third element of the instructions by the court would be the nullification instruction

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 1270 now goes to the Senate.

South Carolina: after state supreme court struck down law giving prosecutors control over court’s docket, legislature attempting to force issue; prosecutors “should not be restrained or controlled by another branch of government”

Up until a few years ago, South Carolina had a statute that granted the local prosecutors control over the criminal docket, allowing the prosecutor to set the calendar (emphasis added).

The solicitors shall attend the courts of general sessions for their respective circuits. Preparation of the dockets for general sessions courts shall be exclusively vested in the circuit solicitor and the solicitor shall determine the order in which cases on the docket are called for trial. Provided, however, that no later than seven days prior to the beginning of each term of general sessions court, the solicitor in each circuit shall prepare and publish a docket setting forth the cases to be called for trial during the term.

The state supreme court struck down on a 4-1 vote the law in 2012 as an unconstitutional infringement on the separation of powers (State v. Lankford, 735 S.E.2d 471 (S.C. 2012)) and issued an administrative order attached to the opinion regarding docket control. Now the legislature is attempting to force the issue and put control back with prosecutors.

HB 4981 and SB 1126 as introduced effectively declares that the control of the calendar is an executive, not judicial, function citing to the fact that prosecutors are elected by the voters (judges in SC’s higher courts are selected by the legislature).

Whereas, the General Assembly finds that developing and publishing a plan to properly proceed with the state’s criminal prosecutions, preparing the general session’s docket for the state’s prosecutions and determining the order in which the docketed cases are called for trial is an executive function of the government properly performed by the elected Circuit Solicitor; and

Whereas, the executive branch of government, as represented by the Circuit Solicitor, when exercising a discretionary official act such as preparing the general sessions court docket and determining the order in which docketed cases are called, should not be restrained or controlled by another branch of government; and

The bill then repeals the old statute, only to replace it with one that continues to give the prosecutor control (emphasis added)

Criminal cases in circuit court must be calendared by the Circuit Solicitor according to a written criminal case-docketing plan developed by the Circuit Solicitor for each circuit. Each criminal docketing plan must be published on the Circuit Solicitor’s website, if available, or at each courthouse in the Circuit Solicitor’s circuit if a website is unavailable. The Circuit Solicitor, in his sole discretion, may develop an individual docketing plan for each county within the circuit.

In addition it would the prosecutor who sets pleas, motions, and other events.

Both bills have been filed in their respective Judiciary Committees.

Missouri: bill makes legislators serving 2 years attorneys, eligible to become judges; similar bills introduced in 2005 and 2007

A bill introduced this week would make any member of the Missouri General Assembly who had served at least 2 years both and attorney and eligible to sit as a circuit court judge in the state. HB 2610 provides

21.085. A person who has served at least two years as a member of the Missouri general assembly shall:

(1) qualify such person to practice law as an attorney in the state of Missouri; and

(2) satisfy any requirements for a person to become an associate or circuit court judge in the state of Missouri.

Section (2) is likely a reference to the state’s constitution, which provides “Every supreme, appellate, circuit, and associate circuit court judge shall be licensed to practice law in this state.”

This in not the first time a member of the Missouri General Assembly has proposed letting legislators become lawyers without going to law school. SB 531 of 2005 and HB 1168 of 2007 would have amended Missouri Supreme Court Rule 8.07 to allow any legislator serving 8 years to sit for the bar exam.

An applicant who has served at least eight years as a member of the Missouri general assembly shall be permitted to take the bar examination.

Neither bill advanced out of committee.

 

New Hampshire: plan to strip supreme court of rulemaking authority advances out of committee on 8-8 vote

For the 19th time in 20 years, the New Hampshire legislature is considering stripping or limiting the state supreme court’s rulemaking power, despite 3 prior attempts failing at the ballot box.

Article 73-a was added to the New Hampshire constitution in 1978.

The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

CACR 13 was advanced without recommendation on an 8-8 tie vote by the House Judiciary Committee. It strikes the provision that supreme court rules “shall have the force and effect of law.” It also limits the court’s power of “governing the administration” of the courts to only “governing the employees.”

The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration employees of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

The bill now goes to the full House for a vote on March 9.

Georgia House advances bill for legislative takeover of judicial disciplinary commission; South Carolina Senate votes on takeover today

The list of legislatures looking to take over state judicial disciplinary commissions is growing.

Georgia

A plan discussed here to move the state’s independent judicial disciplinary commission (Judicial Qualifications Commission) under the legislature has cleared the House. Both a constitutional amendment (HR 1113) and enabling legislation (HB 808) that would vacate the existing JQC and create a new one. In addition the House this week approved creation of a panel to investigate and subpoena the JQC and its members. (h/t Gavel Grab)

South Carolina

An ethics reform package (HB 3184, originally discussed here) approved by the House and set for a Senate vote today would recreate the state’s Commission on Judicial Conduct in statute and diminish the state supreme court’s power to name the Commission on Judicial Conduct’s members.

The current 26 member Commission on Judicial Conduct is created by Rule 502, South Carolina Appellate Court Rules and chosen entirely by the Supreme Court. The new 24 member Commission would have only 1/3 chosen by that court.

  • 8 chosen by the Supreme Court, including 6 judges
  • 4 chosen by the Senate (2 attorneys, 2 non-attorneys)
  • 4 chosen by the House (2 attorneys, 2 non-attorneys)
  • 8 chosen by the Governor, (4 attorneys, 2 non-attorneys)

Oklahoma debates legislative takeover of Code of Judicial Conduct; Senate version drops references to independent judiciary

For the fourth biennial session in a row Oklahoma’s legislature is debating taking control of the state’s Code of Judicial Conduct away from the state supreme court and placing it in the legislature, despite a constitutional provision prohibiting such a move. This latest iteration, however, includes a constitutional amendment to overcome that challenge.

First, some background.

The Oklahoma constitution currently includes a provision giving the state’s supreme court “general administrative authority” over all courts; included within that power is the power to write court rules such as the Code of Judicial Conduct.

Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.

2015/2016

This year’s proposals take the form two statutes and a constitutional amendment. In the House, HJR 1064 of 2016 amends the state constitution to allow for a legislative takeover of the Code and the Rules of Professional Conduct for attorneys.

Rules of professional conduct for judges and attorneys shall be established by the people through the initiative process or by the Legislature by statute. Until such time as said rules are established pursuant to this section, the Code of Judicial Conduct for judges and judicial candidates and the Rules of Professional Conduct for attorneys in effect on the effective date of this amendment shall remain in effect.

HB 2857 takes select elements of the existing Code and rewrites others. It does include references to the need for an “independent” judiciary. Both the constitutional amendment and statute have been referred to the House Judiciary Committee.

On the Senate side, that chamber’s Judiciary Committee chair last year introduced a statutory version of the Code (SB 766 of 2015) with the elimination of any references to an independent judiciary (discussed here). The bill has been carried over into the 2016 session.

2013/2014

SB 1747 of 2014 made the Code of Judicial Conduct subject to the same rules and procedures as that of an administrative agency. Any changes to the Code would require the affirmative vote of the legislature to enact.

SB 1894 of 2014 created a statutory Code of Judicial Conduct and eliminated most references to an independent judiciary.

2011/2012

HB 1611 of 2011 appeared to copy select portions of the Code of Judicial Conduct into statute, including references to the need for an “independent” judiciary.

2009/2010

SB 1124 of 2009 provided that “The Legislature may by concurrent resolution disapprove any existing rule of the Code of Judicial Conduct.” Moreover, while it did not take away the Supreme Court’s power to make future changes to the Code, it did provide any such changes were subject to legislative approval/rejection. It was approved by the Senate Judiciary Committee but died on the Senate floor.

HJR 1028 of 2009 provided that an changes to the Code of Judicial Conduct or any other court rule would be subject to review by the legislature for approval, rejection, and/or amendment. If the legislature took no action within 30 days, the changes would be rejected. It was approved by the House Judiciary Committee but died on the House floor.