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.

California and Minnesota bills address issue of court disaster/emergency planning

Two bills filed last week address the need for courts to make plans for disasters and other emergencies.

California SB 1208 as filed amends the state’s existing Judicial Emergency statute (Government Code 68115). Among other things, SB 1208

  1. Expands instances where the Chief Justice, as Chair of Judicial Council, may exercise emergency powers due to disaster/emergency. Currently that power is limited to “war, insurrection, pestilence, or other public calamity” but would be changed to “war, an act of terrorism, public unrest or calamity, epidemic, natural disaster, or other substantial risk to the health and welfare of court personnel or the public.” The Chief Justice could also act where the President or the Governor declared a state of emergency.
  2. Allows civil cases to be move to another county; currently the power is limited to an adjacent county. However, a transfer “shall not be made” (currently “may be made”) except with the consent of all parties to the case or upon a finding by the court that extreme or undue hardship would result unless the case is transferred for trial.
  3. Provides certain civil time limits related to trials are to be extended only to fewest days necessary, however the Chief Justice may make extensions of time on the request of the presiding judge from granting further extensions if circumstances warrant relief.

Minnesota HF 2809 as filed is broader than the California bill and addresses emergency operations and continuity of government for all three branches. As filed, HF 2809 requires the Supreme Court adopt and maintain an emergency operations and continuity of government plan to ensure the secure, continued operation of the judicial branch in the event of a disaster, emergency, or “declared emergency” (defined as “a national security or peacetime emergency declared by the governor under section 12.31.”)

At minimum, the plan must include

  1. identification of at least three suitable locations within the state at which the Supreme Court, Court of Appeals, and central administrative functions of the judicial branch could operate in the event of a disaster or declared emergency that make its regular location unsafe or inaccessible, with one location designated as a primary alternate location and two designated as backup alternate locations if the primary location is unsafe or inaccessible;
  2. plans to provide timely and secure communications regarding a disaster, emergency, or declared emergency to all affected personnel, including alternate methods of communication if a primary method is unavailable;
  3. plans to securely transport affected justices, judges, designated personnel, and necessary equipment and records to an alternate location and begin judicial operations at that location in a timely manner;
  4. plans to ensure reasonable public notice of the judicial branch’s operations and access to its proceedings and records in-person or by electronic, broadcast, or other means as the rules of the court require and the circumstances of the emergency allow;
  5. plans to ensure the rights and protections guaranteed by the federal and state constitutions to criminal defendants, petitioners, and civil litigants are preserved;
  6. procedures for the orderly return of judicial branch operations to their regular location, as soon as circumstances allow; and
  7. policy decisions that address any other procedures or protocols recommended for inclusion by the state director of emergency management.

Louisiana: bill would require judges to file annual financial statements, mandatory ethics training; separation of powers debate comes back after 2008 agreement

A bill prefiled in the Louisiana House would require elected and appointed judges in the state to follow the same financial disclosure statute as other officials.

SB 44 as filed would require judges file annual financial statements and attend mandatory ethics training.

Some background: the law in question was adopted in 2008. At the time of introduction, HB 1 of the First Extraordinary Session of 2008 included judges in the required annual financial statements and mandatory ethics training and placed enforcement in the hands of an executive branch agency.

As I wrote, this struck some as a possible separation of powers, including the state’s Chief Justice who wrote a letter asking the legislature to remove the provision related to judges, assuring that the Supreme Court would issue rules with the same effect.

Ultimately the solution was that the Senate adopted a resolution asking the Supreme Court to impose financial disclosure on the judges similar to what had been adopted by law for the other officials (SR 6). The Supreme Court in fact did adopt a financial disclosure rule (Supreme Court Rule XXXIX) except for justices of the peace.

Despite the agreement reached in 2008, this isn’t the first time legislators have tried to statutorily impose disclosure on judges.

In 2010 SB 72 was filed to place judges under the provisions of the existing law. It was filed but failed to advance out of committee.

In 2015 several legislative efforts were made, starting again with putting judges under the existing statute (HB 294). It was heard in committee in May of that year. After the hearing the House considered HCR 195 and HR 127. Both requested the Louisiana Supreme Court make judicial financial disclosure reports available for viewing on the internet.  The HR was approved by the House, the HCR was never taken up.



Florida: What is the Constitution Revision Commission looking at regarding the judiciary?

Although not technically a legislative entity, Florida’s Constitutional Revision Commission is, like the legislature, allowed to submit constitutional amendments onto the ballot affecting the courts. While there were 103 CRC proposals, these have been narrowed to Proposals Under Active Consideration as of today. Those affecting the courts include

      • Proposal 6: Requires any state court or administrative law judge to interpret a state statute or rule de novo, independent of an agency’s interpretation, in any litigation proceedings between a private party and an administrative agency.
      • Proposal 39: Among other things, prohibits a justice or judge from personally representing another person for compensation before the legislative, executive, or judicial branches of state government, other than practicing law before a judicial tribunal, for a period of six years following vacation of office.
      • Proposal 41: Allows judges to serve until age 75. Currently judges must retire at 70, but can serve out their current term if they already served at least 1/2 of it when they hit 70.
      • Proposal 47: Provides a person must be a member of a U.S. state or territory for 10 years to be eligible for a trial court judgeship (Circuit or County Courts).
      • Proposal 55: Requires the legislature to provide funding sufficient to offset the Clerks costs in providing services in criminal and other court cases in which the parties do not pay fees and costs.

Gone are any proposals regarding changes to judicial selection.


Florida: Bill set for hearing tomorrow spells out relationship of courts, judges, and sheriffs regarding court security

A change in the way Florida’s court security is arranged may be in the offing. F.S. 30.15 spells out the “powers, duties, and obligations” of local sheriffs. Under HB 7089 as filed those may be changing.

HB 7089 is an omnibus public safety bill and includes over 80 pages of changes to various state laws, including F.S. 30.15, by adding a new section added regarding court security.

  1. Sheriffs would be explicitly required to “provide security for trial court facilities.” Current law provides they are to “Attend all sessions of the circuit court and county court held in their counties.”
  2. Sheriffs would be required to coordinate with the chief judge of the judicial circuit in which their county is located on all security matters for such facilities.
  3. Sheriffs would still retain operational control over the manner in which security is provided.
  4. Pursuant to F.S. 26.49 (which declares the sheriff of the county shall be the executive officer of the circuit court of the county), sheriffs and their deputies, employees, and contractors are officers of the court when providing security for trial court facilities.
  5. The chief judge of the judicial circuit shall have decisionmaking authority to ensure the protection of due process rights, including, but not limited to, the scheduling and conduct of trials and other judicial proceedings, as part of his or her responsibility for the administrative supervision of the trial courts pursuant to F.S. 43.26 (detailing the powers of chief judges).

HB 7089 is being heard in the House Appropriations Committee tomorrow.

Hearings in Maryland and Missouri tomorrow to change way states pick judges

Plans to change the way judges are picked in Maryland and Missouri are set for committee hearings tomorrow.

In Maryland, two bills previously debated over the last several sessions are returning to the House Judiciary Committee (2017 coverage here).

HB 513 of 2018

Former HB 579 of 2017, HB 388 of 2016, HB 1071 of 2015SB 295 of 2013, HB 1385 of 2010

Ends elections for Circuit Court judges. Provides judges to be appointed by governor, confirmed by senate, and subject to yes/no retention elections. Reduces term in office from 15 years down to 10 years.

HB 607 of 2018

Former HB 826 of 2017, HB 223 of 2016

Ends elections for Circuit Court judges. Provides Circuit Court judges to be appointed by governor and confirmed by senate. Provides if confirmation vote is less than 80% of senate, judge is subject to contested election. Provides judges who are 80% confirmed or who win contested elect are to be reappointed by governor at end of a 15 year term and need not be reconfirmed or face another retention election.

In Missouri the Senate Government Reform Committee will consider SJR 28. Currently the nominating commissions for the state’s appellate courts and select Circuit Courts must send “three persons” to the governor. SJR 8 eliminates the “three persons” language and replaces with “all qualified nominees and shall not be limited in number, but shall contain at least three nominees.” A version of the plan (SJR 11 of 2017) cleared the Senate General Laws Committee last year after the Senate leader indicated he may move to simply eliminate the merit/commission system entirely accusing the state’s supreme court of “going rogue” and his desire to see more conservatives on the bench.


Wyoming: Efforts to strip state courts of jurisdiction to hear K-12 funding lawsuits reintroduced; courts could declare funding system unconstitutional but could not order more funding

Last year the Wyoming Senate approved a constitutional amendment that would have prohibited courts from hearing K-12 funding lawsuits brought under the state constitution’s clause that the legislature is to “create and maintain a thorough and efficient system of public schools.” In 2018 several constitutional amendments were filed in this area, with one advancing to committee.

SJR 4 as filed was allowed to be introduced (normally, sessions in even number years are limited to budget issues only, but the House or Senate can vote to allow other items in). The constitutional amendment 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.

SJR 4 is similar to HJR 9, which failed to advance to committee. I simply declared no court could order/require imposition of any tax or tax increase, nor require any other provision of funding for schools beyond what the legislature approved.

Oklahoma: plan to let county employees carry guns into courthouses modified in House committee

A plan to let more people carry guns into Oklahoma courthouses was modified by a House committee last week.

HB 2527 as originally filed and discussed here provided all county employees, not just elected officials as in a 2017 law that expanded courthouse carry, with the ability to carry concealed weapons “when acting in the course and scope of employment within the courthouses of the county in which he or she is employed.”

HB 2527 was amended in the House Public Safety Committee to allow for the county board of commissioners to make the decision.

The board of county commissioners of any county may designate certain employees of the county, who possess a valid handgun license issued pursuant to the provisions of the Oklahoma Self-Defense Act, to carry a concealed handgun when acting in the course and scope of employment within the courthouses of the county in which the person is employed. The provisions of this paragraph shall not allow the county employee to carry the handgun into a courtroom.

HB 2527 now goes to the full House.

Rhode Island: House bills guarantee certain trial court judgeships to “persons of color”, require Judicial Nominating Commission actively recruit persons of color for judgeships

Over the last several years bills have been introduced in the Rhode Island House to mandate more diversity in the state’s courts (see here for the 2017 efforts and here and here for the 2016.)

Efforts to guarantee certain trial court judgeships in Rhode Island to “persons of color” have been re-introduced.

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.

These bills are in addition to HB 7532 as filed last week that requires the 9-member Judicial Nominating Commission must have at least 3 persons of color. That bill was discussed here.

All three bills have been filed in the House Judiciary Committee.