Nevada: Constitutional amendment to create judicial compensation commission appears dead; plan to repeal defunct advisory statutory commission advances in Assembly

A constitutional amendment which would have created a new binding compensation commission to set salaries for judges and other elected officials in Nevada appears dead while plans to repeal a defunct statutory body have cleared the Assembly.

AJR 10, which had been approved by the 2015/2016 Nevada legislature, would have created a Citizens’ Commission on Salaries for Certain Elected Officers to set salaries for the Supreme Court, Court of Appeals, District Courts, and other state and local officials. The Commission’s recommendations would have been binding.

All seven members were to have been appointed to the commission by the governor; AJR 10 as originally introduced would have had seats chosen by members of each of the 3 branches of government.

The constitutional amendment needed to be passed by the 2017 session (Nevada’s legislature sits every other year) in order to get on the 2018 ballot. Under Joint Standing Rule No. 14.3.2 final action on a joint resolution may only be taken by the house of origin on or before the 79th calendar day of the legislative session (April 25 for this year).

The existing Commission to Review Compensation, which is created by statute and merely advisory, appears not to have met or held a session since the 1990s (see page 3). That body was to have reviewed the compensation paid to same officials covered by the proposed constitutional amendment. A bill to eliminate the Commission to Review Compensation (AB 126) and others commissions passed the Assembly.

Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

The 2017 legislative session appears poised to pick up where the 2015/2016 sessions left off with respects to attempts to ban state courts from using or making reference to foreign/international law in general and sharia law in particular. Among the legislation:

Oregon SB 479 specifically targets sharia by name. As I mentioned when this came up in 2015, the Oregon bill’s specific naming and targeting sharia is similar to an Oklahoma effort that was struck down by federal courts as a violation of the First Amendment.

Arkansas HB 1041 approved by the House last week 63-24 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution

Among those rights listed is the “right to marry, as “marriage” is defined by Arkansas Constitution, Amendment 83.” Amendment 83 provides “Marriage consists only of the union of one man and one woman.” The lead sponsor of the bill indicated he believed “that marriage is between a man and a woman, not between the same sexes.

The other bill to advance so far was Montana’s SB 97 which cleared the Senate 27-21 on February 3. It too mentions marriage, but does not explicitly limit it to one man and one woman.

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage.

Full list of bills below the fold.

  1. Continue reading Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

New Mexico debates a “benchmark” of at least 3% of state general fund for state judiciary, South Carolina a guaranteed 1%

Should states guarantee or “benchmark” a minimum amount of general funds go to their judiciaries? As I discussed here, the topic has been debated since at least the 1970s as a way to keep court funding out of the political arena and help provide a (more) stable source of revenue for the branch. The debate is now being renewed in modified forms in New Mexico and South Carolina in 2017.

The New Mexico House Judiciary committee voted 10-3 yesterday to approve HB 81 as amended. Rather than a guarantee the bill as introduced “benchmarked” at least 3% of the state’s general fund after various payments were made. The amended version removed the various other payments and now reads in operative part.

Appropriations to the judiciary shall be benchmarked at not less than three percent of the recurring general fund appropriation for the next fiscal year. The provisions of this act apply to fiscal year 2018 and succeeding fiscal years.

HB 81 now goes to the House Appropriations and Finance Committee.

In South Carolina for the 4th year in a row a member of the Senate has proposed a constitutional amendment to provide 1% of general fund for the judiciary, this year as SJR 69 of 2017.

The General Assembly, in the annual general appropriations act, shall appropriate, out of the estimated revenue of the general fund for the fiscal year for which the appropriations are made, to the Judicial Department an amount equal to one percent of the general fund revenue of the latest completed fiscal year.

Previous versions (SJR 72 of 2013/2014 and SJR 317 of 2015/2016) failed to advance out of committee.

Jury Nullification in New Hampshire, Massachusetts, Oregon, and New York

This year, four states introduced measures that addressed the issue of jury nullification. Even though all measures failed, it still reveals a greater level of attention towards the power of juries to nullify than it has historically received. Although two of these measures have been reviewed in previous posts, below is a collection and summary of the measures addressing jury nullification in the state legislatures this session.

New Hampshire

Over the past decade there have been efforts in New Hampshire to codify the right of juries to nullify the law, and to require that juries be informed of that right. These efforts culminated in the enactment of HB 146 in 2012, which was viewed by some proponents of jury nullification instructions as a victory, but by others as too watered down to be meaningful; and so efforts have continued.

Two bills were introduced in the New Hampshire House of Representative this session. Both HB 246 and HB 470 were responses to a New Hampshire Supreme Court ruling in October 2014, discussed in a previous post. This ruling significantly narrowed the scope of RSA 519:23-a, the statute created by HB 146, by declaring that it does not provide a right to jury nullification instructions. RSA 519:23-a, reads:

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Both measures attempted to circumvent that ruling by amending the statute to more explicitly provide for jury nullification instructions.

HB 246 was discussed in the previous post mentioned above, and would have added an additional provision to RSA 519:23-a that the refusal by a judge to administer jury nullification instructions be considered maladministration, an impeachable offense. This bill was killed by the House Judiciary Committee in February.

However, this was not the only jury nullification measure introduced in the New Hampshire House of Representatives this session. Another bill, HB 470 , proposed to repeal RSA 519:23-a and replace it with language that would make clear the jury’s right to nullify the law and the defendants right to inform them of this power. Specifically, the language of HB 470 read:

In all court proceedings, the court shall instruct the jury of its inherent right to judge the law as well as the fact and to nullify any and all actions it finds to be unjust. The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

HB 470 was killed by the House Judiciary Committee in late February. The language of this bill is almost identical to the introduced version of HB 146 of the 2012 session, the enacted version of which created RSA 519:23-a. However, HB 146 was amended by both the House and the Senate, and by the time it was enacted no longer included any explicit reference to jury nullification.

HB 246 and HB 470 are not the first bills since the enactment of HB 146 aimed at expanding the provisions of that bill. In 2014, the House considered HB 1452 (discussed here) which proposed to replace the language of RSA 519:23-a and more explicitly require that the jury be informed of the concept of jury nullification. The measure also proposed that a mistrial be declared if the court failed to provide such instructions. This bill was killed by the House Judiciary Committee. In 2012, the same session in which HB 146 was passed, two other bills, HB 1247 and HB 1397, were also considered that included more explicit provisions for jury nullification instructions. Both were killed by the House Judiciary Committee.

Massachusetts

Although with a much less contentious history, a measure was introduced in the Massachusetts House of Representative that required judges to permit the defense to inform the jury of their right to nullify the law. The language of this bill was very similar to HB 470 of New Hampshire. HB 1544 read:

In all criminal proceedings, the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to the facts by providing a specific nullification instruction to the jury. The instruction shall further inform jurors of their right to refuse to enforce unjust or unjustly applied laws.

Although referred to the Joint Committee on the Judiciary, no action was ever taken. This legislation was the first attempt to establish jury nullification instructions in Massachusetts in recent years.

Oregon

HB 3381 was introduced in the Oregon House of Representatives. This bill was also discussed in a previous post. HB 3381 proposed to amend ORS 136.325, which governs what information juries may and may not be given in criminal cases requiring mandatory minimum sentences and/or the adult prosecution of juveniles. The jury nullification instructions would have read:

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty.

The bill was referred to the House Judiciary Committee, but no further action was taken. This was the first attempt to establish jury nullification instructions in Oregon in recent years.

New York

New York also introduced legislation regarding jury nullification. However, rather than attempting to inform juries of their ability to nullify, as the other measures reviewed in this post did, this measure attempted to restrict the nullification power of juries by informing them of a reason for which they may not nullify the law. Introduced as AB 6381 in the Assembly, and SB 1724 in the Senate, this bill proposed a requirement that judges deliver certain instructions to juries in criminal proceedings, including the instruction that:

It is against public policy for a defendant to be acquitted of a charged offense or convicted of a lesser included offense based upon an appeal to the societal bias that may be possessed by members of a jury.

Although introduced in both the Assembly and the Senate and referred to their Committees on Codes, no action was ever taken on the bill. This legislation was the first attempt to address jury nullification instructions in New York in recent years.

Four states debate redrawing judicial districts/circuits: should it be a question of caseload? Population? Who should be on the commissions?

This year marks a dramatic uptick in the number of states that are examining the possibility of redrawing their judicial circuits/districts. How states plan on doing this and whether the districts should be redrawn focused on population or court workload are key questions at play.

Kentucky

Section 110 (appellate) and Sections 112 (trial) of the Kentucky constitution contend with the issue of judicial districts. In particular redrawing trial districts puts the Supreme Court into the mix.

The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name “Judicial Circuits,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts.

SB 49 adds to this by directing the Supreme Court submit a “suggested plan of correction” for circuit/district lines or the reallocation of judgeships. Interestingly, the plan calls for the use of two different criteria to be used

  • Appellate districts: “population only”
  • Trial districts/circuits: “populations or caseloads”

Moreover, SB 49 retains the policy that the General Assembly ultimately makes the decision to draw the lines; this a marked difference as compared to a 2013 constitutional amendment (HB 391) that would have let the Chief Justice redraw the lines as workload required.

SB 49 was approved 31-1-1 in the Senate and approved by the House State Government Committee; it is currently pending on the House floor.

Montana

HB 430 creates a judicial redistricting commission to recommend changes to district lines for the 2017 legislature. The commission would be made up of 7 members

  • 1 House or Senate member chosen jointly by majority leaders
  • 1 House or Senate member chosen jointly by minority leaders
  • 2 District Court Judges chosen by Chief Justice
  • 1 District Court Clerk chosen by clerk’s association
  • 1 County Commissioner chosen by counties association
  • 1 member of bar chosen by Bar President

In addition to a catchall provision, the commission would examine judicial redistricting using 6 factors

  1. population of the judicial districts
  2. judicial district’s weighted caseload as determined by judicial workload studies
  3. relative proportions of civil, criminal, juvenile, and family law cases
  4. extent to which special masters, alternative dispute resolution techniques, and other measures have been used
  5. distances in highway miles between county seats in existing judicial districts and any judicial districts that may be proposed by the commission
  6. impact on counties of any changes proposed in the judicial districts

HB 430 was narrowly approved by the full Montana House on a 51-49 vote on 2nd Reading on March 23. It was ultimately approved by the full House on a 54-46 vote yesterday (March 24) and is awaiting transmission to the Senate.

North Carolina

SB 226 directs the Legislative Research Commission (made up entirely of legislators) to study the state’s current trial court districts. The criteria do not mention population, instead focus on three others

  • improve the efficiency of the court system
  • provide for improved administration
  • better balance the caseloads in the various districts

SB 226 is currently in the Senate Rules Committee.

Tennessee

HB 144 was to be a bill about efiling in Tennessee courts. As amended in its entirety yesterday (March 24) it now creates a new way for Tennessee to redraw its judicial district lines. Amendment 1 to HB 144 directs the creation of a task force to recommend new judicial district lines and a joint House/Senate committee to review the proposal.

The Advisory Task Force to Review the Composition of Tennessee’s Current Judicial Districts would be made up of 13 members chosen by the House Speaker (6), Senate Speaker (6), and a joint appointment (1). The members would have to consist of

  • 3 current trial court judges, one from each grand division in the state
  • 3 current district attorneys, one from each grand division in the state
  • 3 current public defenders, one from each grand division in the state
  • 4 other members to be determined by speakers

There is no direction regarding the criteria for the new lines, other than

  • reasonable and timely access to Tennessee’s circuit, chancery, and criminal courts
  • promote the efficient utilization of publicly-funded resources allocated for the courts

The Task Force would make its report to a new Joint Legislative Committee on Judicial Redistricting made up of 5 House and 5 Senate members. The Joint Legislative Committee would remain a permanent feature in law being reconstituted every 8 years; the Advisory Task Force would have to be reenacted each time.

HB 114 as amended was approved yesterday (March 24) by the House Civil Justice Committee and referred to the House Finance, Ways & Means Committee.

Montana: House bill to require Supreme Court deliberate in public narrowly rejected 48-52

A plan to require the justices of the Montana Supreme Court hold the deliberative sessions in public rather than in chambers of a private conference room was effectively killed on a procedural vote Friday on a 48-52 vote.

HB 424 was put forth over anger that a parental notification for minors seeking an abortion law approved by voters may be overturned by the state Supreme Court. Proponents argued the state constitution’s open meetings requirement already applied to the Supreme Court and therefore compelled them to deliberate in public. Opponents pointed to the original 1972 constitutional convention that put in the open meetings requirement and that it was not intended to affect the judiciary’s practice of private deliberations.

The motion to advance the bill to the Third Reading calendar 48-52 with all 41 House Democrats voting against along with 11 Republicans.