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).


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

  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.

West Virginia: bill to create intermediate appellate court filed; only 9 states don’t have an IAC

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.

Oklahoma: litany of bills targeting state’s appellate courts clear Senate committee- end merit/commission selection, creation of mandatory retirement age that could clear appellate benches, supermajority retention elections

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: hearing next week on plan to eliminate office of Clerk of the District Court, make county employees state; Delaware & California made similar moves in last several decades

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.

Oklahoma: legislator moves to reduce state’s Supreme Court from 9 members down to 5

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.

North Carolina: surprise special session called bill restructure appeals challenges states laws create unique en banc review system make appellate races partisan

I mentioned that there was speculation that the special session called by NC’s governor to deal with Hurricane Matthew relief might turn into an opportunity to expand the state’s supreme court from 7 to 9 members, giving the outgoing Republican governor the chance to name the 2 new seats.

That plan never materialized, however immediately at the close of the Hurricane Matthew special session, another called by the legislature’s GOP majority itself was started and this one included an omnibus bill that would restricted the state’s judiciary.

First, SB 4 as introduced in the 2016 Fourth Extra Session crams together numerous different items regarding a new Bipartisan State Board of Elections and Ethics Enforcement to take over from the existing Board of Elections, and other similar moves.

Court-specifically, the bill repeats an effort made over the last several years to reintroduce partisan races for the state’s appellate courts. As it stands the Supreme Court races are nonpartisan and in Court of Appeals races candidates may, but are not required, to put party labels next to their names.

Second, on the appellate front, challenges to state laws currently go to the state’s trial courts and then from there to the Supreme Court, hopping over the Court of Appeals.

Appeal lies of right directly to the Supreme Court from any order or judgment of a court, either final or interlocutory, that holds that an act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law.

Under SB 4 the appeals would now lie directly to the Court of Appeals. Currently the 15-member court sits in panels of 3 and does not have an en banc procedure. SB 4 would create such an en banc practice and effectively require en banc review if any judge dissented from the original 3-judge panel.

An appeal of right [to the Supreme Court] pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing.

SB 4 has already cleared the Senate Redistricting Committee and is now in Senate Finance. UPDATE: Appears to have cleared Senate Finance, now heading to Senate floor.

Publication note: my article in latest Judicature on how legislatures (state and local) create specific courts

I have this

Disorder in the courts: The varied ways states establish and oversee courts presents challenges for reform

in the latest edition of Judicature. The article examines not only the constitutional provisions related to courts, but also the specific mechanism legislatures (state and local) use to create them. For example Florida’s County Courts are built right into the constitution in each county, whereas many local courts are broadly authorized by state statute, but a local ordinance sets up the specific court (e.g. Municipal Court of the City of Z).

The Alabama judicial disciplinary system suspended Chief Justice Roy Moore from office, now members of the legislature want to get rid of the system or remove its powers

In September of this year Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017, as prefiled, would require legislative approval of any Court of the Judiciary decisions to remove a judge from office. Moreover, it would remove the exiting constitutional provision that “disqualifies” (suspends) a judge from office after the Judicial Inquiry Commission files charges until a final determination of the case against the judge.

SB 11 of 2017, as prefiled, goes further than SB 8 and simply abolishes both the Court of the Judiciary and the Judicial Inquiry Commission. There is no indication of what entity, if any, would replace them. The author of SB 11 described the proceedings against Chief Justice Moore as an “outrageous abuse of process.”

Also possibly coming up in 2017 will be legislation pushed for by the executive committee of the Alabama GOP to have all 9 members of the Judicial Inquiry Commission elected. Currently the commission is made up of

1 appellate judge appointed by the supreme court, but who can’t be supreme court justice

2 circuit judges appointed by the Circuit Judges’ Association

1 District Judge appointed by the Lt. Governor

3 persons who are non-lawyers appointed by the governor with confirmation by the Senate

2 members of the State Bar appointed by the Board of Bar Commissioners.

The Alabama legislature comes back into session in February.