FL House Speaker wants to expand Supreme Court: Court packing plan, or merely a “reform”?

News reports coming out of Florida indicate there is an attempt underway to expand the state’s supreme court. House Speaker Dean Cannon announced earlier today he wants to increase the size of the Florida Supreme Court from seven to 10 members and divide the 10 member court into two, 5 -member panels (one civil, one criminal). Cannon denies this is a court packing effort, claiming instead he wants to “reform” the court.

The only two states that even approximate this proposal are Oklahoma and Texas, however these two states have entirely separate courts to handle civil (Supreme Court) and criminal (Court of Criminal Appeals) cases.

The Tallahassee Democrat noted that Speaker Cannon was irate last year when the state’s Supreme Court struck from the ballot several legislatively introduced initiatives. In his first speech as Speaker-designate in November 2010, Cannon went out of his way to attack the court’s decisions.

This wouldn’t be the first time a Florida Supreme Court decision prompted a legislative effort to increase the size of the court. In 2007, Florida state senator Bill Posey introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. (Bush v. Holmes, 919 So.2d 392 (Fla. 2006)) When SB 408 became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.

For a 2010 review of efforts to tinker with the size of the state supreme courts, read Issue 4:14 of Gavel to Gavel here. For the recent effort to increase the Arizona Supreme Court (without asking or talking with the state’s Chief Justice first), read this blog post.

Update: 3/7/11 @ 3:23 According to a Twitter feed coming out of the press conference where Cannon made these announcements, Senate President Mike Haridopolos says House Speaker Cannon idea on FL Supreme Court will be given fair consideration. (h/t Gary Fineout)

AZ: Chief justice not asked about plan to expand state’s supreme court

Normally, either through constitutional provision, statutory requirement, or courtesy, legislative efforts to change the number of judges or justices in a state must receive some degree of input from the state’s supreme court, judicial council, or chief justice. A recent effort (SB 1481 of 2011) in Arizona to expand the state’s supreme court from 5 to 7 members was therefore curious in that it failed to include the chief justice in the development.

Chief Justice Rebecca White Berch, after being initially misidentified as being only a member of the state’s judicial council and not the state’s chief justice, (video here, four minutes from 1:06:30-1:10:30) said:

Actually I am the chief justice of the Supreme Court and I had hoped I was signed in in that capacity. And in that capacity, I was surprised by the bill and surprised to be surprised by the bill. Here’s a bill that proposes to change my court and no one asked me about it. Had I been asked, here’s what I might have said…

She noted that, perhaps unique among all governmental entities, the Arizona Supreme Court was current with its workload and that it would cost $1 million per year for the additional two justices.

The author later explained his bill: “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.” The bill was ultimately rejected by the committee, but on a 3-4 vote.

This is the second effort to change the composition of state supreme courts this year. Montana considered reducing the size of its supreme court to force it into tort reform.

Today’s a big day for hearings on bills affecting the judiciary

Several bills affecting the state courts are getting committee hearings today, (see update below) including:

Montana HB 332 (House Judiciary committee audio will be here) would permit jury nullification and require judges inform jurors they may judge both the facts and the law in the case> Judges would be required to provide jurors  state and federal constitutions and any statute books they request. In criminal cases, the judge would be required to inform jurors they may vote their conscience to acquit an accused in spite of technical guilt. Finally, the bill defines “obstruction” of these provisions as reversible error.

Meanwhile, Indiana’s Senate Judiciary committee (live streaming video here) will be considering two bills of particular note. SB 212 would move the state closer to a restructured system of consolidated trial courts. It provides that all circuit courts, superior courts, and probate courts have: (1) original and concurrent jurisdiction in all civil cases and in all criminal cases; (2) de novo appellate jurisdiction of appeals from city and town courts; and (3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts. The bill would also repeal authorization for the establishment and operation of county courts (since January 1, 2009, no county court exists in Indiana.).Also up for debate is SB 463 which would repeal all provisions that establish a mandatory retirement age for superior court and county court judges.

Update 2/2/11 @ 8:44 Eastern: The massive snow storm affecting most of the country has shut down the Indiana Legislature Tuesday and Wednesday. According to the legislature’s website, Senate hearings may be conducted Thursday.

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.