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.
While generally courts are permitted to entertain only cases and controversies, several states allow their Supreme Court to issue advisory opinions. Colorado’s Constitution gives its Supreme Court the power to weigh in “upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives”.
Colorado’s Governor made such a request on February 9 in response to the U.S. Supreme Court’s decision in Citizens United. The request paid specific attention to a provision in Colorado’s constitution that states “it shall be unlawful for a corporation or labor organization to provide funding for an electioneering communication; except that any political committee or small donor committee established by such corporation or labor organization may provide funding for an electioneering communication.”
Although the governor alone could have asked for a Supreme Court advisory opinion, both chambers of the state’s legislature added their request through HJR 1011 on February 10. The joint resolution found the questions posed by the governor of “extreme importance and public interest [and] that it is essential that an immediate determination be secured…”
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).
Two states, both having dealt recently with contentious elections, are actively debating the use of Judicial Vacancy Commissions. While they share similar names, the two are dramatically different.
Alabama’s version builds on its pre-existing system where counties are allowed to opt-in into a system that allows for interim judicial vacancies to be filled by a commission that submits names to the Governor. The selected individual serves only the remaining years left in the term, but may run for a full term in the regular, partisan election system. So far, only 8 of Alabama’s 67 counties have the program, with a special constitutional amendment required for each county. However HB 443 would amend the state’s constitution to provide for the use of such commissions in all counties of the state. It was approved as amended by the House Judiciary Committee 2/11/10.
While Alabama’s version is obligatory (the Governor must select from the list of names given by the commission to fill the temporary vacancy), West Virginia’s proposal is explicitly advisory only. HB 4036 and SB 223 would create a Judicial Vacancy Advisory Commission to submit 2-5 names to the Governor when a vacancy occurred in any judicial office. The Governor would be under no obligation to make use of the list, but the list and most of the proceedings of the commission would be open to the public. The House version was approved by that chamber on 2/24/10 and is currently on the Senate floor, having been approved by the Senate Judiciary (3/8/10), and Finance (3/11/10) committees. Probably because of the advance of the House version, the Senate bill has not made it out of committee.
Several weeks ago we looked several states looking to do away with non-attorney judges. Other states are looking at increasing the minimum number of years an attorney must practice law (or at least be admitted to the bar) before becoming a judge. For example, Alabama in 2009 passed a law (SB 28) requiring a minimum number of years to serve on certain courts: 10 for the appellate courts (Supreme, Civil Appeals, Criminal Appeals), 5 for Circuit, 3 for District.
In 2010, Illinois, which currently requires only that a would-be jurist be admitted to the bar, is considering requiring (HCA 57) a set number of years or practice before reaching certain courts: 15 years for their Supreme Court, 12 for their Appellate Court, and 10 for their Circuit Court.
Also active this year, New Jersey is considering (SCR 83) increasing from 10 years to 15 its existing minimum for the Supreme Court, the Appellate Division of the Superior Court (i.e. the state’s intermediate appellate court), and the Superior Court.
Earlier today the Senate Rules Committee approved SB 70, a bill to establish retention elections for judges. The bill also expands terms of office from six to eight years and creates a judicial performance commission. the commission must issue in the year a judge seeks retention ean valuation of “well-qualified,” “qualified,” or “unqualified”. The bill now goes to the Senate Finance Committee.
Florida – 3/2
Colorado – 3/8
New Mexico – 3/5