Wisconsin: judicial recusal bills reintroduced; mandatory recusal for contributions over $1000; supreme court could force fellow justice to recuse

Several bills were introduced in the last session of the Wisconsin legislature to change the way recusal would be handled in Wisconsin courts (discussed here). Those bills have now been reintroduced.

  • AB 132 creates an “objective standard” for recusal and requires a judge or justice to disqualify himself or herself from presiding over or deciding a legal proceeding or action if a reasonable person would question whether the judge or justice could act in an impartial manner.
  • AB 133 requires a judge or justice who does not disqualify himself or herself after a motion for disqualification is filed by a party in the action to file in writing the reasons he or she did not disqualify himself or herself. The bill further provides a judge or justice must file the reasons for disqualification or for deciding against disqualification within 60 days after a final judgment or final order has been issued in the action.
  • AB 135 requires a judge of any court to disqualify himself or herself from an action if, as a candidate for judicial office and within the past four years, the judge received campaign financial support of $1,000 or more from a party to the action. Moreover, the definition of “financial support” is defined broadly to include not only campaign contributions but independent contributions made on behalf of the judge, and independent contributions made against the judge’s opponent.
  • AB 136 is limited to the Wisconsin Supreme Court and provides if a justice denies a motion to disqualify himself or herself from an action, the other members of the court may review that decision to deny the motion, and may either affirm or reverse the justice’s decision.
  • AB 137 focuses on the contributors to judicial campaigns rather than the judges. Under the plan an “interested contributor” who makes a political contribution to the campaign of a judge/justice before whom he or she has a pending civil or criminal action must disclose the contribution within 5 days to the judge and all other parties.

All five bills have been referred to the Assembly Judiciary Committee.

North Carolina: in last 24 hours House has advanced major changes to state’s judiciary; return to partisan trial court races now going to governor

The North Carolina House in the last 24 hours has adopted major changes to the state’s judiciary, already sending some to the governor’s desk.

HB 100 as amended by the Senate would return races for Superior and District Courts to partisan races. The legislature in a late 2016 special session had already returned that state’s appellate races back to partisan ones. The House, having agreed to a Senate amendment, will now send HB 100 to the governor. It is unclear what the reaction will be, since the governor was the lead author of the bill making Superior Court races nonpartisan in the first place.

HB 239 approved by the full House a few hours ago is a plan to reduce the state’s Court of Appeals from 15 judges down to 12. No judges would be forced out of office, instead when a seat becomes vacant for whatever reason “the seat is abolished.” It has been sent to the Senate.

HB 240 as discussed here removes the governor’s power to fill interim vacancies in District Court and transfers that power to the legislature itself. An amendment to have the Chief Judge of the District Court or Chief Justice (if there was no Chief Judge) make the pick instead was defeated. It has been ordered engrossed and will likely go to the Senate shortly.

HB 241 as discussed here removes the power of North Carolina governors to name Special Superior Court Judges (SSCJs) and transfers that power to the legislature itself. It has been sent to the Senate.


North Carolina: Now legislators want to curtail or remove governor’s power to make interim vacancy appointments to District Court

Plans to remove the power of North Carolina’s governors to appoint some judges and transfer that authority to the legislature first discussed here continue apace.

Currently when an interim vacancy occurs in a District Court, the bar for the judicial district nominates 5 people for the governor, but the governor is free to select whomever he or she wishes. This is a change from several years ago when the bar’s 5 names were binding on the governor (Section 2 of SB 321 of 2013 as discussed here).

HB 240 as filed earlier this week would provide that where an interim vacancy occurs in a District Court judgeship the General Assembly would take the lead in this area.

  1. If in session, the General Assembly would pick the judge.
  2. If out of session, the Speaker of the House and President Pro Tempore of the Senate could leave the vacancy open until the General Assembly comes back.
  3. If out of session, the Speaker/President Pro Tempore could jointly submit the name of someone to the Governor who could then “confirm the nominee” no later than 10 days later.

HB 240 has been filed in the House Judiciary IV Committee.

Adding to Texas’ unique court structure and organization: brand new Chancery trial and appellate court system re-introduced; Governor would select judges

A plan first introduced in 2015 and discussed here to create a Chancery Court system in Texas has been reintroduced to hear business cases. As I noted at the time, Texas already has one of the largest number of court types in the United States with 6 trial court types (Constitutional County, Statutory County, Statutory Probate, District, Justice of the Peace, and Municipal), 14 separate Courts of Appeal, including a unique two-courts-in-one-county (the 1st and 14th Court of Appeals both serve Houston) and two courts of last resort (civil: Supreme; criminal: Court of Criminal Appeals).

The latest iteration of the plan, introduced this year as HB 2594 would add not only a new trial court (Chancery made up of 7 judges) but a new intermediate appellate court (Court of Chancery Appeals made up of 7 judges). The Chancery Court would have concurrent jurisdiction with the state’s District Courts over 10 specified complex civil litigation actions or proceedings. The Court of Chancery Appeals would operate as effectively a specialized 15th intermediate appellate court for business cases only, something no other state has.

No state has a trial court whose sole purpose is to hear business or complex litigation cases. Even Delaware’s Chancery Court hears cases other the business ones such as disputes involving the purchase and sale of land and questions of title to real estate. Much more common is for the creation of special divisions of existing courts. For example, Delaware’s Superior Court makes use of a Complex Commercial Litigation Division.

Making things more unique is the method of judicial selection. Judges of both courts would not be subject to elections but instead chosen solely by the Governor from a list provided by a Chancery Court Nominations Advisory Council to which the Governor would name all the members. The Governor’s hand-picked Commission would have to provide 5 names for each court vacancy, however the Governor could ask for another 5 for a total of 10 names. Judges of the Court of Chancery Appeals would have to be existing Justices of a Court of Appeals. Judges so chosen would be subject to Senate confirmation.

There is also a fail-safe: in case this particular manner of judicial selection is found unconstitutional the court(s) would be staffed by sitting or retired justices who are appointed by the Supreme Court.

HB 2594 has been filed in the House but not yet assigned to a committee.

Vermont: for state’s judicial merit/commission system, bill would allow governor to ask for second list of nominees, but no more

Vermont’s constitution requires that for judicial vacancies, the governor appoints “from a list of nominees presented by a judicial nominating body established by the General Assembly having authority to apply reasonable standards of selection.” The nominee is then subject to Senate confirmation.

By law that body, the Judicial Nominating Board, can submit as few or as many names as it likes to the governor. Now under a bill introduced last week, the governor would be empowered to ask for a second list.

Under SB 114 as filed the governor can ask the Board “reopen the search and provide the Governor with an additional list of persons it deems well qualified to be appointed to the office.” Such a request “shall not be made more than once.”

This is just the latest in a series of bills that would attempt to give more lists with more names to governors. Examples include HB 866 of 2014 and SB 305 of 2014. Both included provisions that if a governor declined to accept a name from the first list provided by the Board, the Board would reopen the process to “persons who did not previously apply for that particular vacancy” and conduct as many rounds and provide as many lists as necessary until the governor accepted a name.

SB 114 has been filed in the Senate Judiciary Committee.

North Carolina: Senate approves return to partisan races for trial courts, but will governor sign the bill? He was lead sponsor to make Superior races nonpartisan in first place.

The last 12 hours have been very busy for judicial selection in North Carolina. I mentioned a few minutes ago that the NC House may remove the power of the state’s governor to appoint Special Superior Court Judges. In addition, the push to change North Carolina trial court elections back to partisan races cleared the Senate yesterday.

HB 100 as approved by the Senate tracks closely with the House approved version in that both would make Superior and District Court races partisan again. The differences in the versions appear to focus on how to handle unaffiliated candidates who attempt to get on the ballot.

If approved by the House again, the bill would go to the state’s Democratic governor who, while a member of the legislature, voted to make the races nonpartisan in the first place. Then-state senator Cooper was the lead sponsor of the efforts to make Superior Court races nonpartisan in the 1995 regular session (SB 961) and the ultimately successful SB 41 of the 1996 2nd Special Session. When the District Courts moved to nonpartisan in 2001 (SB 119) Cooper was Attorney General.

North Carolina: House plan calls for removing Governor’s power to name Special Superior Court Judges and transferring to legislature itself

A plan to remove the power of North Carolina governors to name Special Superior Court Judges (SSCJs) and transfer that power to the legislature itself has been filed in the House.

SSCJs are authorized by the state’s constitution. (“The General Assembly may provide by general law for the selection or appointment of special or emergency Superior Court Judges not selected for a particular judicial district.” Art. VI, Sec. 9)

They are currently appointed by the Governor to 5 year terms and are not required to reside in the district in which they are assigned. Moreover, several SSCJs sit as the state’s Business Court.

Rather than having the Governor select SSCJs, under HB 241 as filed the General Assembly itself would make the selection.

The practice of having the legislature select judges without the state’s governor, while common in the period immediately after the American Revolution, has been effectively abandoned outside of South Carolina and Virginia. North Carolina’s prior history here is a case in point. Under the 1776 state constitution the General Assembly not only picked judges (Art. XII) and justices of the peace (Art. XXXIII) they also picked the Governor (Art. XV). Those judicial selection provisions lasted until 1868 when judges were changed over to an elected position.

HB 241 has been filed in the House Judiciary IV Committee.