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.
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.
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.
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).
Readers may recall a post several weeks ago that looked at the possibility that Virginia would lose its Judicial Council. According to the Virginia Lawyer’s blog, the bill to do just that advanced out of subcommittee earlier this week and is now on its way to the full House Courts of Justice committee.
The budget crises in the United States are a, if not the, central focus for all state judiciaries in this legislative session. Over the years, there have been several suggested solutions to address the problem of how to fund the third branch. The Conference of Chief Justices, for example, passed a resolution in 1973, amid the mid-1970s recession, that “This conference supports the financing of [the courts] by an automatic constitutional appropriation of a percentage of the General Fund Budget of each state.” (73-A-2)
Into this comes Florida’s HB 735 and HB 737.
HB 737 creates a Fiscal Stability Trust Fund to be administered by the Supreme Court and into which would be placed an automatic, guaranteed 1 percent of the state’s General Revenue Fund. The bill also declares “the judicial branch of state government shall be held harmless in years of fiscal deficits in the state as a matter of public safety” and permits revenues in the Fiscal Stability Trust Fund to remain in the fund at the end of every fiscal year.
HB 737 requires passage of HB 735 “or similar legislation”. HB 735 requires a retroactive elimination of judicial immunity in a variety of specified contexts dealing with court proceedings. Additionally, it expands the Judicial Qualifications Commission (JQC) and requires JQC investigation panels include at least 5 “common citizen electors” as a staff committee, none of whom may be “officers of the court” and who must prepare a separate report on the investigation that is to be made publicly available. Both the state courts system in general, and the JQC in particular, would be subject to an immediate audit by the state’s Auditor General and the Office of Program Policy Analysis and Government Accountability conduct full audit review of commission, a review to be repeated every two years.
Additionally, HB 735 requires the Supreme Court create a plan “promoting civics for residents of this state, together with education concerning the judicial branch in order to develop trust and confidence in the state’s judicial system.” It also creates unified family courts, teen courts, drug courts and mental health courts in each judicial circuit.
The Florida legislature is due to come into full session March 2.
For nearly a century, the states have debated whether and to what extent their state court systems should be unified. Even the word itself has been the subject of ontological discourse (“What does “unified” mean, anyway?) As the ongoing budget crises force courts to review the way in which they deliver their core services, unification (however defined) is once again being submitted as a possible solution.
HB 470 comes out of the recommendations of the state’s Commission on Judicial Operation which has said on its website that “Vermonters can no longer afford the inefficiencies of our outdated court system. ” The Commission itself was created at the request of the legislature to “reduce the judiciary’s budget and enhance the efficient and effective delivery of judicial services.”
The bill would consolidate judicial functions by eliminating the Probate, Family, and District Courts (click here for current court structure chart, courtesy of the NCSC Court Statistics Project) and “establish[ing] a unified court system under the administrative control of the Supreme Court.” This unified system would consist of the Supreme Court and Superior Court, the later to absorb the Probate, Family and District Courts. This new Superior Court would have four divisions: civil, criminal, family, and probate, which would have the same subject matter jurisdiction currently had by the current Superior, District, Family, and Probate courts. Additionally, the state’s probate and judicial districts would be redrawn with districts no longer drawn along county lines. Moreover, all judges of the new Superior Court would be required to be attorneys, a qualification currently not mandatory for Probate Court judges. Finally, the state’s “assistant judges” (non-attorneys who may serve as “side judges” on cases) would not longer be allowed any judicial, adjudicative functions.
It remains to be seen whether this legislation will advance, and if so how far, before the legislature adjourns sometime in late April.