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:
- Deletes every statutory reference to the Judicial Council and removes all its appropriations.
- Moves the appropriations for administering the state’s judicial disciplinary body (Judicial Commission) to the Supreme Court.
- 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.
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
- Removed the guarantee that “there shall be at least one (1) resident magistrate judge appointed in each county.”
- Removed the power of the district magistrates commission to decide the number and location of magistrate judges and made their role advisory
- 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.”
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:
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
- The move can only occur where the judgeship is vacant by death, resignation, mandatory retirement, forced removal, or similar case.
- 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).
- Every county is entitled to at least one District Judge.
- No circuit can lose more than 1 judgeship in any 2-year period.
- 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).
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
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
- A Judicial Weighted Caseload Study as adopted by the Supreme Court
- The population of the district or circuit
- The “judicial duties” in the district or circuit, including whether there are specialized divisions
- 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
- 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.
The latest bill in a decade-long effort to create an intermediate appellate court in West Virginia has been filed. SB 277 as introduced would create an Intermediate Court of Appeals. It appears to be similar if not identical to SB 9 of 2016, discussed here. With the creation in 2015 of the Nevada Court of Appeals, only 9 states lack an intermediate appellate court (IAC) among them West Virginia.
The new Intermediate Court of Appeals would have its own judges (6) divided into two panels of 3 (Northern District and Southern District). Other versions of the bill introduced in the last decade would have had Circuit and Supreme Court judges/justices sitting in panels of 3, a practice popular in states in the 1800s but abandoned.
- Judges would be initially appointed by the governor from a list provided by the state’s Judicial Vacancy Advisory Committee; the committee would send 3 names for each vacancy but the governor could ask for more names. After appointment the judges would be subject to nonpartisan elections by district.
- The Clerk of the Supreme Court would be clerk of the Intermediate Court of Appeals, a relatively common practice (Alaska, Colorado, Connecticut, Hawaii, Iowa, Kansas, Nevada, and Tennessee provide that the clerk of their court of last resort is also the IAC’s clerk)
- The court would use a “deflector” system: an appeal would be filed with the Supreme Court which would then either take the case itself or “deflect” it down to the IAC. Again, this is a relative common practice, for example Nevada’s new IAC uses this system.
SB 277 has been filed in the Senate Judiciary Committee.
Earlier today the Oklahoma Senate Judiciary Committee approved a series of bills targeting the state’s appellate courts, this after the state’s Supreme Court (the court of last resort for civil matters) has ruled against the legislature in a variety of cases in recent years.
- SJR 14 as introduced requires appellate judges up for retention elections receive at least a 60% “yes” vote to remain in office.
- SJR 42 as introduced requires partisan elections for all appellate courts.
- SJR 43 as introduced ends merit/commission selection for the state’s appellate courts. Instead, the governor would nominate an individual and submit his/her name to the Judicial Nominating Commission for a review as “qualified” or “not qualified”. The nominee would then be subject to Senate confirmation.
- SJR 44 as introduced would keep the state’s merit/commission selection system but require the Judicial Nominating Commission send the Governor 5 names (currently 3) for consideration and allow the Governor to ask for another list, for a total of 10 names. Requires nominee be subject to Senate confirmation. Provides that if Senate fails to act within certain time frame(s) nominee is confirmed by default.
- SB 213 as introduced provides of 9 members of Supreme Court, 5 to be selected from Congressional Districts and 4 statewide.
- SB 699 as introduced requires all appellate judges retire when years of judicial service + age = 80. It appears this is retroactive, as prior efforts have been, meaning that many if not most members of the state’s appellate courts could be forced off the bench.
- SB 700 as introduced removes all attorney-chosen members of the Judicial Nominating Commission. Provides attorney-members to be selected by legislative leaders.
- SB 702 as introduced adjusts counties in each Supreme Court Judicial District.
All the bills have now been referred to the Senate Rules committee.
Nebraska, like many states, provides for the election of the clerk of their general jurisdiction court or their appointment from outside the judiciary (e.g. county boards). Other states make the Clerk of Court a court employee and/or have merged the office into the court’s trial court administrator. Next week, Nebraska’s Senate Judiciary committee will debate whether to move in this direction.
Under LB 544 the office of Clerk of the District Court would be phased out in counties where the position is appointive or where some other county official is serving ex officio as clerk and the responsibilities transferred to existing clerk magistrates.
Where the position is elected (as appears to be most if not all counties), the county board could vote to end the position, however no incumbent would be forced out of office. Serving elected clerks would remain in office and continue to be re-elected until a vacancy occurs. This exact same situation occurred in Delaware when the state’s constitution was amended in the 1980s to make prothonotaries appointed by the Superior Court rather than elected and incumbents allowed to remain and run for re-election.
As for how the office would function, LB 544 provides property remains owned by the county, but books, files and records transfer to the state court administrator. Moreover, employees become state employees, but with the assurance “No transferred county employee shall incur a loss of income or benefits as a result of becoming a state employee.” This was similar to the law passed when California merged its Municipal Courts into Superior and all court employees became state employees (Cal Gov Code § 70217).
The hearing on LB 544 has been set for February 1 in the Senate Judiciary Committee.
Efforts to tinker with the membership of state courts of last resort have surged in recent years, as I noted in this article. In many instances these efforts have been to expand courts which has led to accusations of “court packing”, however several efforts have focused on reducing numbers to remove justices that have garnered the ire of legislators.
Enter Oklahoma HB 1699 of 2017.
Under the bill the state’s Supreme Court (which is the court of last resort for civil matters; there is also another court of last resort called the Court of Criminal Appeals) would be reduced from 9 members down to 5.
The bill comes after years of acrimony by the legislature at the court’s decisions, including impeachment efforts and attempts to change the way the court is selected/appointed. For example HB 1699 was filed by a House member who had alluded to setting himself on fire over abortion rulings by the court.
Moreover, the state’s constitution allows for this sort of change by statute without voter approval, providing in operative part that the Supreme Court is to consist of “nine Justices until the number shall be changed by statute.”
HB 1699 has been prefiled for the 2017 session set to start in February.