Hearings in Maryland and Missouri tomorrow to change way states pick judges

Plans to change the way judges are picked in Maryland and Missouri are set for committee hearings tomorrow.

In Maryland, two bills previously debated over the last several sessions are returning to the House Judiciary Committee (2017 coverage here).

HB 513 of 2018

Former HB 579 of 2017, HB 388 of 2016, HB 1071 of 2015SB 295 of 2013, HB 1385 of 2010

Ends elections for Circuit Court judges. Provides judges to be appointed by governor, confirmed by senate, and subject to yes/no retention elections. Reduces term in office from 15 years down to 10 years.

HB 607 of 2018

Former HB 826 of 2017, HB 223 of 2016

Ends elections for Circuit Court judges. Provides Circuit Court judges to be appointed by governor and confirmed by senate. Provides if confirmation vote is less than 80% of senate, judge is subject to contested election. Provides judges who are 80% confirmed or who win contested elect are to be reappointed by governor at end of a 15 year term and need not be reconfirmed or face another retention election.

In Missouri the Senate Government Reform Committee will consider SJR 28. Currently the nominating commissions for the state’s appellate courts and select Circuit Courts must send “three persons” to the governor. SJR 8 eliminates the “three persons” language and replaces with “all qualified nominees and shall not be limited in number, but shall contain at least three nominees.” A version of the plan (SJR 11 of 2017) cleared the Senate General Laws Committee last year after the Senate leader indicated he may move to simply eliminate the merit/commission system entirely accusing the state’s supreme court of “going rogue” and his desire to see more conservatives on the bench.

 

Rhode Island: House bills guarantee certain trial court judgeships to “persons of color”, require Judicial Nominating Commission actively recruit persons of color for judgeships

Over the last several years bills have been introduced in the Rhode Island House to mandate more diversity in the state’s courts (see here for the 2017 efforts and here and here for the 2016.)

Efforts to guarantee certain trial court judgeships in Rhode Island to “persons of color” have been re-introduced.

HB 7648 provides that when a person of color leaves a trial court bench (Superior, Family, District, Traffic Tribunal, Workers’ Compensation, or Municipal) “their replacement must be a person of color, so as not to diminish the number of judges of color in that court.”

HB 7649 requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

These bills are in addition to HB 7532 as filed last week that requires the 9-member Judicial Nominating Commission must have at least 3 persons of color. That bill was discussed here.

All three bills have been filed in the House Judiciary Committee.

West Virginia: Senate approves big changes to judiciary; constitutional amendment would let legislature control judiciary’s budget; creation of intermediate appellate court advances

The West Virginia Senate approved two big changes to the state’s judiciary yesterday

Judicial Budget Oversight Amendment

SJR 3 as approved addresses funding for the state’s judiciary. Currently the West Virginia judiciary is unique among all states in that it’s budget request must be approved by the legislature without a decrease

The Legislature shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

SJR 3 as approved by the House Judiciary committee struck the language, but added a protection.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 as approved by the House Finance committee changed the wording further still

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

The Senate Finance language was approved by the full Senate. If approved by the House it would still have be approved by voters.

Intermediate Appellate Court (at least for the next 10 years)

SB 341 as amended and approved by the full Senate yesterday is the latest in a 20 year effort to get an intermediate appellate court in the state.

SB 341 would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges. The court would automatically sunset in July 2029.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

Included is a provision that civil appeals would lie either to the Intermediate Court of Appeals or Supreme Court of Appeals and that in civil cases “shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals or the Intermediate Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

SB 341 now goes to the House.

Rhode Island: bill to mandate diversity in state courts re-introduced; requires at least 3 persons of color on Judicial Nominating Commission

Over the last several years bills have been introduced in the Rhode Island House to mandate more diversity in the state’s courts (see here for the 2017 efforts and here and here for the 2016.)  Prior proposals included guaranteeing certain trial court judgeships to “persons of color”. This year’s plan includes a return of a prior proposal: guaranteeing certain Judicial Nominating Commission seats to “persons of color.”

Under HB 7532 as filed the 9-member commission would, starting in 2019, must have at least 3 persons of color.

HB 7532 has been filed in the House Judiciary Committee.

Florida: Plan to take power to name some Judicial Nominating Commissions seats from governor and give to legislative leaders advances

A plan to give legislative leaders picks on the state’s judicial nominating commissions, at the expense of the governor, cleared its first legislative hurdle in late January.

Currently the commissions are made up of

  • 4 picks by the Governor from lists provided by the State Bar Board of Governors, all of whom must be engaged in the practice of law. The Governor is allowed to reject the lists.
  • 5 picks by the Governor, at least two of whom must be engaged in the practice of law.

Under HB 753 as approved in the House Judiciary Committee’s Civil Justice and Claims subcommittee, the 4 picks by the Governor from lists provided by the State Bar Board of Governors would transfer to the House Speaker (2) and President of the Senate (2). All 4 would have to be engaged in the practice of law but the list of names provided by the Bar would be advisory only.

HB 753 now goes to the full House Judiciary Committee.

 

 

 

West Virginia: latest in 20 year effort to create intermediate appellate court advances out of committee; judges would not be “borrowed” from other courts and would not be subject to elections

For almost 20 years West Virginia has seen semi-continuously legislative efforts to create an intermediate appellate court in the state. The latest iteration has now cleared its first legislative hurdle.

SB 341 as amended and approved by the Senate Judiciary Committee last week would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

An amendment in committee to allow for judges to be elected, or at least to put the question to voters on election vs. appointment, was rejected.

Removed from the original bill was a requirement that the new appellate court render decisions in 180 days. Instead, the court would have to issued reports on pending caseload.

SB 341 now goes to the Senate Finance Committee.

Georgia: plan calls for creation of brand new type of court to handle business cases; judges would be picked by Governor; plan similar to one proposed in Texas

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now legislators are pushing to create a separate 7th court: Business Court. This system would be used rather than as is the case now of having special dockets/calendars in existing courts (for example Fulton County Superior Court).

HR 993 would amend the state’s constitution to create a Business Court within 24 months of approval by the voters. The court’s decisions would be binding on all other courts except the Supreme Court and Court of Appeals.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor with no senate confirmation or election (retention or otherwise) for 5-year terms and reappointed by the Governor at will.

The plan bears striking similarities to the Chancery Court plan proposed in the Texas legislature in 2015 and 2017 and discussed here and here.

The judges would have to be admitted to the practice of law for 7 years and “have significant experience in business or other complex litigation” but there is no indication how that is supposed to be measured. A similar problem occurred when Washington State’s proposed a distinct Tax Court (see here).

Finally, HR 993 provides the language to be used on the ballot

Shall the Constitution of Georgia be amended so as to create a state-wide business court to lower costs, improve the efficiency of all courts, and promote predictability of judicial outcomes in certain complex business disputes for the benefit of all citizens of this state?