Washington: modified version of 2015 bill to create Tax Court refiled, this time with a constitutional amendment

A 2015 plan to create a Tax Court in Washington (discussed here) composed of sitting Court of Appeals judges was hobbled with concerns that the state’s constitution didn’t give the legislature the power to create such a court. Now the 2017 version of the plan is back, this time with a constitutional amendment and some changes.

SJR 8209 amends the state’s judiciary article to authorize the creation of a Tax Court and spells out in general its jurisdiction. It provides that decisions of the Tax Court would go directly to the state supreme court. Finally, it provides that the number, election, terms, and compensation of Tax Court judges would be left to the legislature.

SB 5866 fleshes out SJR 8209’s provisions and appears to be similar to the 2015 plan. It abolishes the existing State Board of Tax Appeals in favor of the new Tax Court.

The Court would be made up of two “departments”.

  • The Main Department would consist of 3 judges who may individually or as a panel hear tax appeals. All decisions of the Main Department would have to be rendered within 6 months of submission, although the court could extend this for good cause an additional 3 months.

Unlike the 2015 plan, which called for using Court of Appeals judges, the 2017 plan would have the 3 judges elected to the Court in their own right to 6 year terms. It appears the judges would be elected by Court of Appeals district.

The judges would have to have “at least five years’ experience as an attorney practicing in Washington state and local tax law.” A similar provision created some controversy in 2015 when it was questioned who would determine whether a person met this requirement.

  • The Commissioner Department would be for “cost-effective and informal” reviews and would include a voluntary mediation system. Commissioners would be appointed by the judges of the Main Department.

A hearing on the implementing legislation (SB 5866) is set for tomorrow (March 14) in the Senate Law & Justice Committee. A hearing on both the bill and constitutional amendment are set for March 16.

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.

 

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.

Oklahoma: House committee approves plan to change Supreme Court districts, create 5 district-specific seats and 4 at-large seats on court; 2 at-large picks must come from rural counties

The latest plan to change the way Oklahoma Supreme Court justices are picked cleared the House Judiciary – Civil and Environmental Committee yesterday.

Currently the state is divided into 9 Supreme Court districts. The state constitution requires a nominee for a vacancy on the court must be a “a qualified elector in the district for at least one year immediately prior to the date of filing or appointment.” If named to the court, they face voters statewide on a yes/no retention election.

That “qualified elector” issue has been somewhat of a contested point, as accusations have been made that the latest pick to the Supreme Court does not meet the criteria, see media reports regarding a pending lawsuit in the matter here. A special assistant attorney general has called the lawsuit “frivolous.” A hearing on that lawsuit is set for today.

Under HB 1925 as approved in committee the currently serving Supreme Court justices would continue to operate under the old 9-district system. New nominations/appointments would use a new two-part system.

  • 5 justices would be selected, 1 for each Congressional District as constituted on November 1, 2017. For transition purposes, the current seats from Districts 1, 3, 4, 5, and 6 would turn into Congressional-District based seats.
  • 4 justices selected at-large, however 2 justices must come from counties with a population of less than 75,000. The current seats from Districts 2, 7, 8, and 9 would transition to at-large.

As I noted last year when something similar came up in Washington, 10 states have some form of district system for their courts of last resort. Details on the 10 states below the fold.

Continue reading Oklahoma: House committee approves plan to change Supreme Court districts, create 5 district-specific seats and 4 at-large seats on court; 2 at-large picks must come from rural counties

Wisconsin: Governor’s budget ends Judicial Council, moves judicial disciplinary commission $$$ under Supreme Court, changes way judicial salaries handled

Wisconsin Governor Scott Walker has submitted his proposed budget and the bill includes several big changes to the state’s judiciary. AB 64 of 2017 as filed repeats several items proposed in the governor’s 2015 budget (AB 21 of 2015). Media coverage of the 2017 plan here.  The budget:

  1. Deletes every statutory reference to the Judicial Council and removes all its appropriations.
  2. Moves the appropriations for administering the state’s judicial disciplinary body (Judicial Commission) to the Supreme Court.
  3. Provides the legislature’s Joint Committee on Employment Relations is to review and establish annual salaries for judges and justices under a proposal
    submitted by the director of state courts. Under current law, annual salaries for judges and justices are reviewed and established in the state compensation plan in the same manner as positions in the state classified service. The 2015 budget plan would have had a Judicial Compensation Commission consisting of members appointed by the supreme court to review judicial salaries and submit a written report and make recommendations on the judicial salaries.

Idaho: “Magistrate shuffle” bill killed in committee; plan would remove guarantee that every county has at least 1 Magistrate’s Division judge

A plan that could have removed the guarantee that every Idaho county have at least 1 magistrate judge and that would have allowed sitting magistrates to be “shuffled” to other counties was killed in committee yesterday.

In Idaho, the Magistrate’s Division serves as the state’s court of limited jurisdiction.

SB 1104 as filed had three main elements

  1. Removed the guarantee that “there shall be at least one (1) resident magistrate judge appointed in each county.”
  2. Removed the power of the district magistrates commission to decide the number and location of magistrate judges and made their role advisory
  3. Allowed the supreme court to move a magistrate judgeship (when a vacancy) or sitting magistrate judge within the same judicial district, but only in counties with less than 0.4% of the state’s population (9 counties). Such a move would have been based on population and caseload.

Media reports indicate the bill faced strong opposition from more rural counties that have seen increasing caseloads but no increase in the number of magistrates.

Senior District Judge Barry Wood presented the bill on behalf of the judicial branch.

“The court believed that it was appropriate to bring this policy question back to the attention of the Idaho Legislature,” Wood said. “Specifically, whether the Legislature wanted to continue funding new positions, or to allow the court to relocate a handful of these judgeships from the least populated counties to where the need was most significant.”

Alabama: Senate approves Judicial Resources Allocation Commission with power to move judgeships; requires more uniformity in how cases are counted throughout state

Earlier this week the Alabama Senate approved SB 90 to provide for the creation of a Judicial Resources Allocation Commission. The bill, as approved by that chamber, is a follow-up to similar legislation introduced over the last several sessions discussed here, here, and here. Media reports here. Key provisions of the bill include:

Moving Judgeships

Based on a review and ranking system (see below) the Commission by 2/3rds vote could move a vacant judgeship from one circuit/district to another without having to rely on legislative approval. The movement of a judgeship by the Commission would be limited in several ways

  1. The move can only occur where the judgeship is vacant by death, resignation, mandatory retirement, forced removal, or similar case.
  2. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the circuit or county ranking list (see below).
  3. Every county is entitled to at least one District Judge.
  4. No circuit can lose more than 1 judgeship in any 2-year period.
  5. No change can be made until 3 years of data are available after the revision of criminal case-count factors in the Judicial Weighted Caseload Study (see below).

Membership

The Commission would include the Chief Justice of the Supreme Court as chair. Prior versions introduced in the House did not include the Chief Justice.

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • the Attorney General
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 2 attorneys picked by the president of the Alabama Bar
  • 1 attorney picked by the president of the Alabama Lawyers Association

Rankings/Criteria

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 5 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit, including whether there are specialized divisions
  4. Uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits; versions introduced in prior sessions did not include this provision
  5. Any other information the commission deems relevant

Addressing lack of uniformity in criminal data/case counts

In addition to the requirement for uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits, data/calculations are specifically called out especially in those areas that count each separate criminal charge against a criminal defendant as a separate criminal case. Under SB 90 the Alabama Supreme Court must “revise the factors considered in the Judicial Weighted Caseload Study to uniformly, fairly, and accurately account for criminal cases by counts brought against a defendant.”

SB 90 now goes to the House.