KS State of the Judiciary: judiciary is a “core function” of government. Blue ribbon commission & weighted caseload study ongoing.

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Pursuant to HCR 5014 of 2011, the Kansas House and Senate met in joint session on February 15. Interestingly, and perhaps uniquely,the resolution called the joint session “for the purpose of hearing a message from the Supreme Court on the judicial branch of government”, and direct the House and Senate form a committee “to wait upon the Supreme Court Justices.” The chief justice was not specified by name or title.

It was however Chief Justice Lawton Nuss that delivered the address. Highlights of the Chief Justice’s speech (full text here) included:

[I]t is especially important for all of us here — members of the different branches of Kansas government — to combine our unique experiences and perspectives to work for the benefit of those whom ALL of us serve: the people of Kansas.

I saw a wonderful example of this “work for the people of Kansas” last spring when the Supreme Court had closed all Kansas state courts and sent employees home without pay for lack of money, for the first time in Kansas history. Legislators then asked me, “Exactly how much money will it take to keep Kansas courts open in FY 2011?” I consulted my colleagues and advisers; we tightened our belts — again — and told you precisely how much, in a short letter. Writing and then hand delivering such a letter to all 165 legislators may also have been a “for the first time in Kansas history.” To your everlasting credit, for which all Kansans should be grateful, you agreed to provide these funds.

Now, here we all are again, in the 2011 legislative session, where economic times are not just hard: they are harder. And where hundreds of requests, if not outright demands, are made upon you for slices of the shrinking Kansas monetary pie. The judicial branch of government is included among those groups requesting funds.

Let me start by acknowledging many have said that Kansas government needs to be reduced to performing only its “core functions.” I express no opinion about the wisdom of that goal. But in the words of Shakespeare, let me speak “what I do know.”…And I do know — that if we talk about the core functions of Kansas government, then it likewise makes sense that we start with the Kansas Constitution…As a result, I respectfully suggest to you that the judicial branch was created to perform some of the original functions of Kansas government. Your Kansas judges and their staffs have proudly been performing these original governmental functions — like the administration of justice — for the last 150 years.

Like you, we in the judicial branch have been well aware of the condition of the Kansas economy. For example, when you had asked how much money was required to keep courts open, you also asked us to “be realistic.” At that time we had been maintaining a hiring freeze for 18 months. We had been doing so because about 97 % of our judicial branch budget is for salaries; therefore much of our significant cost-cutting unfortunately comes at the expense of our personnel.

We agreed with two fundamental suggestions in your Legislative Post Audit: (1) the absolute need for a Blue Ribbon Commission to study the operations of the judicial branch, and (2) the absolute need for a “weighted case load study” to be funded by the Legislature. We recognize that sheer numbers of cases do not tell the full story of judicial and staff workloads. A valid study must take into account the driving time for judges in multi-county districts and the complexity of certain cases. For example, a trial for first-degree murder takes longer than one for simple theft. In other words, we need to compare apples to apples.

We decided to do some long-range planning. We decided we would try to be more efficient; to make the best use of taxpayer money; and hopefully to even save some money. So we started with your Legislative Post Audit study recommendation: we first looked at a weighted case load study. We learned that such a study had first been recommended in Kansas in 1944 — 67 years ago — and had been recommended many times since. But no legislative funding has ever been authorized. Nevertheless, in August of 2010, we signed a contract with the National Center for State Courts for a weighted caseload study of judges and staff workloads.

In the meantime, several months ago the Supreme Court appointed a Blue Ribbon Commission of 24 members. Here, we were also following the recommendation of your Legislative Post Audit study. This Commission will consider the results of the weighted case load study and will also review the operations of the judicial branch. It is authorized to consider issues like the number of court locations needed to provide Kansans access to justice (we are currently required by statute to have one judge per county); consider the services to be provided at each court location and the hours of operation; and consider the appropriate use of technology, cost containment or reductions, and flexibility in the use of human resources. This Commission has been asked to make recommendations to the Supreme Court for possible changes.

Together, the weighted caseload study and the Blue Ribbon Commission are called Project Pegasus (after the winged horse of Greek mythology)…I also want to emphasize that Project Pegasus has the potential for the most dramatic change in the judicial branch since court unification in 1977. It is additionally important that any changes be the right ones because these changes, like court unification in 1977, may be with us for many years to come. Why do I provide this detailed and probably painful explanation? The answer is: to tell you how extensive this project is; to tell you how significant its changes can be; and to tell you how committed our judicial branch people are to it. But it is also to ask you to allow us to finish it without interruption for the benefit of Kansas.

We ask that you return to the spirit that moved you last spring when you courageously decided to provide funding to keep Kansas courts open. We ask you to preserve that funding for the rest of this fiscal year and provide the funding we have requested for all of 2012. Such funding will allow us to receive our Pegasus reports and start considering needed improvements to the judicial branch. Less than that means closing courts — very quickly.

Loss of funding also jeopardizes electronic case filing, otherwise known as “e-filing.” E-filing, as its name suggests, allows lawsuits and related legal documents to be filed with the courts electronically from office or home, with no gas used in driving to the courthouse. After initial start-up costs, such filing systems in other states and at the federal level in Kansas have demonstrated efficiencies that save both the public and the judiciary considerable time and resources. It is designed with the basic business philosophy: spend money now to save more money in the future. An incredible amount of time and federal grants have already been spent; that investment would be lost without further funding.

During your legislative session, I am confident that you will take fair account of the needs of the judicial branch as we provide our core functions of Kansas government in administering justice to our citizens. And finally, for all the good work you have done and continue to do for the people of our state in these difficult times, I want to express my gratitude and bid you Godspeed. Thank you.

TX State of the Judiciary: End straight ticket voting for judges, support access to justice and indigent defense

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

On February 23, Texas Chief Justice Wallace Jefferson delivered his State of the Judiciary address to a joint session of the legislature, per  HCR 43 adopted earlier in February. As HCR 43 notes, the speech has a statutory basis. Section 21.004 Government Code, provides:

(a) At a convenient time at the commencement of each regular session of the legislature, the chief justice of the supreme court shall deliver a written or oral state of the judiciary message evaluating the accessibility of the courts to the citizens of the state and the future directions and needs of the courts of the state.

(b) It is the intent of the legislature that the state of the judiciary message promote better understanding between the legislative and judicial branches of government and promote more efficient administration of justice in Texas.

Highlights of the Chief Justice’s speech (full text here) included:

I have the privilege of addressing, in this room, the great leaders of our state, who have a vision for a better Texas; the passion to move public policy toward that end. Today, I am calling for action, on several fronts.

Juvenile Justice
The Supreme Court of Texas hears only civil matters. But by constitution, custom, and statute, we also have jurisdiction over juvenile cases. Those files cross our desks from time to time. We read the record, apply the law, and move on to the next case. I got a call a few months ago from a judge who said: “Chief, I would like you to see the faces behind those files.” And so I sat in on Judge Jeanne Meurer’s court and observed a day in the lives of families dealing with juvenile offenders
So let me announce my first plea for action. This one is easy. Jeanne Meurer is in the trenches, she knows how to reach these kids, she understands the challenges facing our parents and schools. When Jeanne Meurer calls you, and asks for your help, file the bill, appropriate the funds, sign the Act.

Access to Justice
We are a nation and state that believes the law provides protection for those who are most powerful, for those who are most vulnerable. But today, the courthouse door is closed to many who have lost their jobs, to military veterans who are on the streets, to women who suffer physical abuse
Here, then, is my second call to action. Even in the face of a tremendous budget crisis, I ask the Legislature to duplicate what it courageously did last Session and appropriate $20 million from general revenue for basic civil legal services. Advance legislation that would add a small fee to case filings, so that money is available to help Texans secure the legal rights that our constitution and laws give them.

Indigent Defense
Our commitment to equal justice does not end with civil justice. Recent efforts to find and rectify wrongful convictions in Texas provide a promising example of how our courts are working to free the innocent…We in the judiciary are trying to do our part. The Court of Criminal Appeals’ Criminal Justice Integrity Unit organized a two-day Forensic Science Seminar, educating more than 400 attorneys, judges, police officers, legislators, and lab personnel on evidence standards and specific sciences. The judicial Task Force on Indigent Defense recently helped establish the Harris County Public Defender’s Office
My third call for action is to ask this Legislature to support these efforts to make our criminal justice system fair. I commend Senator Ellis for his work on these issues and I commend those of you in this room who will work to pass the bills, and fund the projects, that will ensure no innocent person languishes in our prisons.

Judicial Selection

All that I have discussed depends on an impartial system of justice overseen by the judicial branch. We lost one of that branch’s greatest leaders, Joe Greenhill, less than two weeks ago. He told me once that he regretted that Texas has continued to elect judges on a partisan basis. I regret it, too. A justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted. I urge the Legislature to send the people a constitutional amendment that would allow judges to be selected on their merit. If we do not reform the process completely, judicial elections can at least be changed. And so my final call to action is that we consider common-sense solutions to the problems that plague partisan election of judges.

First, I would eliminate straight-ticket voting that allows judges to be swept from the bench…Let’s extend terms for state judges, from four years to six for district court judges, and from six years to eight for appellate court judges.. And let’s bring sense to the process to allow a judge appointed to an unexpired term to serve a full term before having to face the voters. That will give her or him experience and – this is important – a record to run on.

The Past, Present, and Future of the Judiciary in Texas
Led by public officials and private citizens, the Task Force has found documents about Sam Houston, litigation surrounding American Indians, immigration records in Galveston County – some of your families first came to Texas through that port – and about other exciting periods in our history. This session, the Legislature will be asked to address whether court clerks should retain such historic records. My recommendation is an emphatic yes. These documents are our living history: the parchment of our past. They prove to us, not only that we rose from the severest of circumstances, but that we forged ahead, and became stronger for it.

I ask you to take action this Session. Give us the assurance that, at this crucial juncture, we did not turn our backs on the neediest among us, but continued to serve them as the Constitution so strongly demands.

Texas bill would require Office of Court Administration put list of vexatious litigants online

Texas’ HB 720 was approved yesterday by that state’s House Committee on Judiciary & Civil Jurisprudence. The bill’s primary aim is to explicitly permit a person who has been found to be a vexatious litigant (and thus under an order requiring prior approval before additional filings)  may appeal the designation to a court of appeals.

Another portion of the bill, however, would modify an existing law that requires the state Office of Court Administration keep a list of vexatious litigants. That list must currently be send annually to the clerks of all courts in the state. If approved, Section 11.104(b) of the Civil Practice and Remedies Code would delete the annual distribution requirement and instead require the list be posted online, along with an indication of whether the person has filed an appeal of the designation.

2011 on track to have most efforts to remove judges from office in recent memory

It is barely March, and already there have been more bills seeking the removal of judges in 2011 than in any year in recent memory. As I noted in a special December 2010 edition of Gavel to Gavel, while threats to impeach state court judges have increased, it has only been in the last several years that actual bills have been drafted and submitted.
All told, 10 judges (9 state, 1 federal) are the target of impeachment or removal efforts in the state legislatures this year. This is in addition to the threats to impeach Iowa’s supreme court justices made earlier in the year that have not materialized as articles of impeachment.

State Bill Form of removal Target Reason for removal request
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim

MA: Effort to remove by bill of address 4 justices of Supreme Judicial Court introduced

Last week a Massachusetts Representative introduced, at the request of a constituent, HB 2172 a “bill of address” for the removal of Supreme Judicial Court Chief Justice Roderick L. Ireland and justices Francis X. Spina, Judith A. Cowin, and Robert J. Cordy.

There is no specific reasoning for the effort to remove these four justices in particular. The last such effort in Massachusetts occurred in 2004 and 2005 where bills of address were introduced against the justices that ruled in favor of same-sex marriage (Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)). However, justices Cordy and Spina had dissents in those cases, while (then associate justice) Ireland and Cowin voted in favor.

Under the Massachusetts constitution, removal by bill of address requires only a majority of both the House and Senate, followed by the approval of the Governor and Governor’s Council. Where impeachment would require accusations of “misconduct and mal-administration”, bills of address do not require such findings.

The bill is currently pending before the Joint Committee on the Judiciary.

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)

Florida considers a “Judicial Opinion Communications Act”

It is one thing to have a state appellate court strike down a statute as unconstitutional. It is quite another to send a copy of the order striking down the law straight to the legislature. However, this is precisely what some members of the legislature are asking for.

HB 87 (and its Senate counterpart, SB 996) would require the state supreme court or district courts of appeal to send a copy of any decision that

  1. declares a Florida statute, regulation, or government practice unconstitutional
  2. recommends any statutory or regulatory changes to the current law, or
  3. identifies drafting issues

to the Governor, the President of the Senate, and the Speaker of the House of Representatives within 30 days of the decision. The three officers would have 30 days to acknowledge receipt and “may state in the acknowledgment any and all action to be taken in response to the opinion.”

The House bill is set for a hearing before the Judiciary Committee’s Civil Justice subcommittee on March 8.