Plan to shrink Montana Supreme Court: designed to force the court into tort reform and out of redistricting lawsuits?

The effort to shrink the Montana Supreme Court from 7 members to 5, first discussed here, was heard in the Montana House Judiciary Committee today (audio and video here).

According to a fiscal note prepared on HB 245 the reduction would mean “a caseload increase of approximately 40% per justice. The time to disposition of Supreme Court cases would increase dramatically and cases may not be resolved timely.”

The author of HB 245, Rep. Derek Skees, told the House Judiciary Committee his intent in introducing the bill was to shrink government and save money. As for the caseload increase, Skees implied that while other Montana residents were having to do “more with less”, the Supreme Court had not and that the justices could “easily” handle the workload and achieve the guarantee of “speedy justice” in the state constitution. Skees also made clear his desire to obtain tort reform through the reduction of the size of the Supreme Court.

All of us want tort reform, well maybe not all of us.  I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.

Skees concluded his testimony with his desire to reduce the entire Supreme Court’s budget by 40%.

Rick Breckenridge of the Lake County Republican Party spoke in favor of the bill, noting to Republican members of the committee that:

We have redistricting and we need a tightened down Supreme Court in order to achieve that. So take control of the reins of the Supreme Court, show them who is in charge, and remember that with redistricting, how we (Republicans) have been treated by the Supreme Court in the past.

Opponents included the State Bar President Joe Sullivan who noted the massive slowdown that would result in the adjudication of both civil and criminal cases and impacting the economy. The State Bar opposes the bill “because it denies the citizens of Montana timely and swift access to their justice system.” Additionally, the chief prosecutor in the state Attorney-General’s office spoke out against the bill noting that, with lack of an intermediate appellate court, Montana’s 7 member Supreme Court was helpful for speedy deliberation of cases.

The chair of the committee noted a former justice of the Supreme Court resigned due to the already crushing burden on the court’s workload.

No vote was taken on the bill.

Montana is considering shrinking its Supreme Court

The last several years have seen numerous efforts to change the size of state supreme courts. Some had the air of court packing efforts, while others (such as Michigan in 2008) were expressly for the purpose of removing justices that some parties were dissatisfied with. The attempted changes were the focus of Issue 4:14 last year.

This year Montana House member Derek Skees has already requested a draft bill (D. 1609) which would reduce that state’s Supreme court from 7 to 5 justices by removing seats number 5 and 6 (Seats are designated chief justice, 1, 2, 3, 4, 5 and 6). Those seats, currently held by Justices James Nelson and Brian Morris, were created in 1979 and are up for reelection 2012.

The bill remains (as of the writing) in draft form only.

MT: City courts of record?

In Montana, 92% of the state’s DUI cases are filed in the state’s limited jurisdiction courts, according to the state’s Office of Court Administrator. As part of its examination of the state’s DUI laws, the legislature’s Law and Justice Interim Committee has recommended allowing one type of these courts, City Courts, to be courts of record. The proposal has been introduced as SB 41 of 2011 and would additionally grant city judges all the powers and duties of district judges in like cases. Because these would be courts of record, review in the state’s District Courts would be as an appeal and not a trial de novo. The bill is in the state Senate awaiting committee assignment.

WY: Expanded use of district court commissioners in lieu of judges

With budget shortfalls anticipated well into the next two years, many states are considering making more use of quasi-judicial officials.

Since the adoption of its original constitution in 1889, Wyoming’s district court commissioners have been limited in the services they may perform: they may take depositions and perform other tasks assigned by law, but they cannot perform “chamber business” unless either a) the district judge is out of the county or b) it is improper for the the district judge to act in a given case. However, in Summer 2010 in testimony before the state’ legislature’s Joint Interim Judiciary Committee, then-Chief Justice Barton Voigt “observed that the commissioners are acting even when a district court judge is present in violation of the constitution and statute and he believes that that a constitutional change is needed.”

HJR 1 of 2011 would remove those prohibitions (and delete the word “chamber” from “chamber business”). If adopted, a district court commissioner could perform duties assigned by a district court judge, even if the judge is not absent from the jurisdiction of the court or recused/disqualified, subject to any restrictions the legislature may impose by law upon the authority of district court commissioners. The bill is currently pending in the House but is not yet assigned to a committee.

PA: Problem solving courts clear House

Pennsylvania’s courts, like those in many other states, have included the use of problem solving courts or problem solving dockets in the past. However, SB 383 could set Pennsylvania apart in terms of the number and types of such courts available.  The bill allows each court to create any type of problem solving court, including but not limited to drug courts, mental health courts, and DUI courts. The Supreme Court is also permitted to appoint a statewide problem solving courts coordinator and an advisory committee to assist the coordinator. The bill was approved by a unanimous House on March 23 and returns to the Senate for its concurrence in a House amendment that lays out specific provisions with respect to drug courts along with a special surcharge to help pay for drug courts only.

VT: Committee approves bill to restructure entire state’s judiciary

In early February, I mentioned that Vermont was considering a bill to restructure the state’s entire judicial structure. The House Judiciary Committee approved that bill, with amendments, on March 16. The full text of the 181-page bill is available here. The bill now goes to the House Committee on Appropriations while the House Judiciary’s schedule indicates preparations are being made on March 19 for floor debate.

More push-pull legislation on court funding

Readers may recall the Florida House bills proposed several weeks ago that would provide the courts guaranteed funding, but only if judicial immunity and a list of other changes made to the way courts and judges operate. Now the Senate has introduced identical bills (SB 2636 and SB 2640).

Georgia, meanwhile, is also considering tying additional funding to changes in court structure. SB 429 would add a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. This additional funding comes, however, only if the Supreme Court is increased from 7 to 9 justices and the Court of Appeals from 12 to 15. Unlike in most states where a change to the number of Supreme Court justices would require a constitutional amendment,Article VI Section VI of Georgia’s Constitution allows the legislature to set the number so long as it is below 9 (interestingly, there appears to be no minimum). Gavel to Gavel readers may recall a similar effort to expand the Supreme Court in 2007. This, from Gavel to Gavel’s first edition

Georgia media reports legislation may be considered to increase from 7 to 9 the number of seats on that state’s high court. Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.”

Changes to the appellate courts are rare, especially courts of last resort. Since 1990, only 2 states have had such changes. Nevada’s Supreme Court grew from 5 to 7 members in 1999 (AB 343 of 1997). In that same year, Iowa’s Supreme Court shrank from 9 to 7 as 3 judges were added to the state’s Court of Appeals (HF 2471 of 1998).