Iowa: Senate approves 26-24 bill to require supermajority of state Supreme Court (5/7) to declare laws unconstitutional

A plan discussed here to require the Iowa Supreme Court have a 5/7 supermajority to declare laws unconstitutional cleared the Senate yesterday.

News reports quote the lead author of SF 2282 as claiming the proposal is not targeting the current court but that “It’s just too much power to give to four judges to make fundamental changes in our law.” Proponents also liken it to a legislature overriding a governor’s veto by 2/3rds, however that provision in the is found in the Iowa constitution, not a statute.

As noted before, there are two states with similar supermajority requirements (Nebraska and North Dakota) but those are due to constitutional provisions, not statutes.

SF 2153 now goes to the House.

Louisiana: bill provides Judicial Council would no longer report whether court costs/fees “reasonably related to the operation of the courts or court system”

A 2003 law that requires the state’s Judicial Council report whether new court costs of fees are “reasonably related to the operation of the courts or court system” may be effectively repealed.

HB 493 as prefiled for the 2018 session would repeal a provision requiring the Judicial Council weigh in on the “reasonably related.”

No law to provide for a new court cost or fee or to increase an existing court cost or fee shall be enacted unless first submitted to the Judicial Council for review and recommendation to the legislature as to whether the court cost or fee is reasonably related to the operation of the courts or court system.

This follows on a 2011 amendment that had added the “reasonably related” language, but removed the power of the Judicial Council to review fees/costs in Mayor’s Courts or Justice of the Peace Courts (HB 522 of 2011)

HB 493 has been preliminarily filed in the House Judiciary Committee.

Rhode Island: bill would require judicial nominating commission focus on “nominee’s perspicacity based on their unique background and experience in order to diversify the perspective of the judiciary”

The ongoing efforts by members of the Rhode Island House to diversify the bench continues.

HB 7908 as filed would require the state’s Judicial Nominating Commission focus on diversity and not emphasize courtroom and/or trial experience.

The commission shall consider each nominee’s perspicacity based on their unique background and experience in order to diversify the perspective of the judiciary of this state. When considering the qualifications of a nominee, courtroom and/or trial experience shall not be emphasized, but rather the commission shall consider the competence of the nominee in their chosen field of practice.

This is the latest in a series of bills related to judicial diversity introduced in the last threeweeks.

HB 7532 would require the 9-member Judicial Nominating Commission have at least 3 persons of color.

HB 7648 provides that when a person of color leaves a trial court bench (Superior, Family, District, Traffic Tribunal, Workers’ Compensation, or Municipal) “their replacement must be a person of color, so as not to diminish the number of judges of color in that court.”

HB 7649 requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

Oklahoma: Constitutional amendment to abolish Court of Criminal Appeals passes House Rules Committee

There are two states that have two separate courts of last resort: Oklahoma and Texas. Both have a court of last resort for civil matters (Supreme Court) and one for criminal (Court of Criminal Appeals). Texas has debated and attempted for 20 years to merge their courts, now Oklahoma appears to be trying to do the same.

HJR 1051 as filed and approved by the House Rules Committee yesterday would abolish the Court of Criminal Appeals within one year of approval by voters. All “duties, powers, cases, records, property, and personnel” EXCEPT judges would transfer to the Supreme Court. It appears the judges of the Court of Criminal Appeals would simply have their existing offices and terms ended.

The last and only time in recent history an effort like this was attempted in 2012 (discussed here).

There has been a single attempt in the last 20 years to merge the two courts. SJR 83 of 2012 would have abolished the constitutional references to the Court of Criminal Appeals. This was part of a package of bills, including SJR 84 of 2012 which would have stripped the newly combined Supreme Court of the power to strike down any law as unconstitutional, instead allowing an β€œAd Hoc Court of Constitutional Review” created by the legislature itself to determine whether its laws were constitutional.


Louisiana: Constitutional amendment would eliminate mandatory retirement age for judges, but could result in elimination of all age requirements for all public offices and employment

A plan to eliminate Louisiana’s mandatory judicial retirement age and replace it with a certification system has been filed for the upcoming session. The language, however, might have broader ramifications.

HB 203 as filed would strike the language in the state constitutions that judges but forced to retire at the end of the term in which they reach 70. It would also allow the legislature to require judges over 70 to report to the state’s judicial disciplinary commission (the Judiciary Commission) to be reviewed.

HB 215 implements the provision for Judicial Commission review of judges over 70.

HB 203 goes a step further that simply ending mandatory judicial retirement for judges however. It adds a provision in Article X of the state constitution that “No person shall be denied the right to hold public office or public employment based solely on age.” That would appear to eliminate the minimum age requirements for legislators (18) and governors (25) and end mandatory retirement ages or minimum age requirements for any government employment.

HB 203 and HB 215 have been prefiled for the 2018 regular session.

West Virginia: constitutional amendment to give legislature power over judiciary’s budget clears House committee; specific language denying legislature ability to financially punish courts for their decisions at issue

I mentioned that West Virginia is unique among all states in that the judiciary’s budget request to the legislature cannot be reduced. The West Virginia House and Senate appear to be disagreeing over how to re-assert legislative power in this area while ensuring courts aren’t punished financially for their decisions.

The current constitutional language provides

The Legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

SJR 3 as approved by the Senate Judiciary committee struck the language, but added a protection.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 as approved by the Senate Finance committee changed the wording further still (emphasis added

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state.

That language was approved by the full Senate.

However, the House Finance committee yesterday appears to have reverted the wording back to the Senate Judiciary version.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 now goes to the House Judiciary Committee.

Wyoming: SJR 4 clears committee, would limit judiciary’s power in K-12 finance suits; courts could declare legislature violated constitution but could not order any action to generate revenue to pay for schools

As discussed here, a constitutional amendment to strip state courts of power in K-12 funding lawsuits have not advanced out of the Senate Education Committee.

SJR 4 contains three key sections.

  1. The legislature alone is to decide funding levels and to “rationally determine” what those levels are.
  2. The legislature alone is to equitably allocate funding among the school districts in order to have adequate, thorough and efficient schools.
  3. The judiciary may declare a system of public school funding in violation of the constitution, but cannot order the legislature to take any action to generate revenue, through taxation or otherwise in order to fulfill its duties to fully fund the public school system.