Archive for April, 2011

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Big doings, or lack thereof, in Florida Senate today. Study workgroup proposed as alternative to splitting supreme court now

April 29th, 2011

The Florida Senate’s adjourned with no effort to take up the bills that would split the state’s supreme court. According to the Tampa Bay Times, the bill(s) were yanked off the floor. (Check out Gavel Grab for more). Moreover, a related bill (SB 2170) to remove the role of the bar from the state’s merit selection process got amended to include an Article V Accountability and Efficiency Workgroup (Article V is the part of the FL Constitution dealing with the judiciary) with a report due January 2012. The 15 person work group would review and make recommendations on every aspect of the bills and the basis claimed for the need to divide the court (namely, that the business community is complaining of the slowness of civil cases), plus the myriad of bills proposed by the House Speaker to alter the judicial nominating and qualifications commissions.

(a) The workload of the Supreme Court.
(b) The impact on case processing of splitting the Supreme Court into a Criminal Division and a Civil Division.
(c) The structure and function of the Judicial Nominating Commission.
(d) The structure and function of the Judicial Qualifications Commission.
(e) The effectiveness of the merit retention system.
(f) The impact of including Senate confirmation in the judicial selection process.
(g) The structure and function of the Supreme Court’s rulemaking authority.
(h) The adequacy and stability of the current funding for the state courts system.

The Senate is due back in session Monday, May 2 and must adjourn Friday, May 6.

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Posted in Jurisdiction, Other, Qualification & Terms, Rule Making Authority, Salary & Budget, Selection, Structure Changes

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Florida Senate passage of plan to split supreme court “rests on a knife’s edge”; Lt. Gov. cannot break tie

April 29th, 2011

News reports this morning indicate that the effort to split the Florida Supreme Court may be unraveling in the Senate.

FlaglerLive.com Proposal to Split Florida Supreme Court Faces Long Odds in the Senate “The fate of House Speaker Dean Cannon’s overhaul of the Supreme Court seemed to rest on a knife’s edge Thursday evening”
MiamiHerald.com Florida Supreme Court overhaul hits resistance in Senate
Orlando Sentinel Split Supreme Court plan jams up Senate
Sunshine State News Dean Cannon’s Court Reform Runs Into Senate Opposition

With not a single Democrat (House or Senate) expressing any kind of support for  SJR 2084 / HJR 7111, it all comes down to a GOP whip count. Republicans hold 28 of 40 seats. They can therefore afford 7 defections and still get passage (21-19).

Update: I made an error. A constitutional amendment would not require a simple majority, but a three-fifths (i.e. 24 of 30).

The state’s Lieutenant Governor, under the state’s present constitution, cannot cast a tie-breaking vote. A 20 year experiment with such a system lasted only from 1865 to 1885 with the last tie-breaking Lt. Gov. leaving office in 1889. When the office was brought back in 1968 it did not include any role in or involving the Senate.

Meanwhile, the clock is ticking. The Senate comes into session today at 1:30 Eastern and is calendared to recess by 5:45 according to their media calendar. The legislature adjourns outright May 6.

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Posted in Jurisdiction, Qualification & Terms, Rule Making Authority, Salary & Budget, Selection, Structure Changes

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Minnesota bill would remove all judges/lawyers from judicial disciplinary board, rewrite code of judicial conduct, and convert it into a statute controllable by legislature

April 29th, 2011

Greetings Minnesota Lawyer readers!

I’ve noted some of the bills introduced this legislative session in Minnesota that would impact the state’s judges. There were the bills that would force judges to promise they will remain in office their full term or forfeit 25% of their pensions or the ones that would increase the mandatory retirement age, but do away with the “incumbent” designation on ballots for judges seeking reelection.

Several of the same House members advancing those bills have now introduced HB 1568 which would remove all judges and lawyers from the state’ judicial disciplinary board (the Board on Judicial Standards) and replace them with 4 House and 4 Senate members. But that is just the start. HB 1568  also:

  1. Strips the Supreme Court of the power to suspend temporarily a judge during an investigation and transfers it to the Board exclusively.
  2. Strips the Supreme Court of the power to “retire” permanently a judge and transfers it to the Board exclusively.
  3. Allows the newly constituted Board to open any prior complaint against any judge “for any reason.”
  4. Gives the Board the power to enforce a new Code of Judicial Conduct.

The Code of Judicial Conduct mentioned in that last part is not the one adopted by the state’s Supreme Court. Instead, Sections 3-8 of HB 1568 establish a new, statutory, Code of Judicial Conduct. The new Code would be binding on judges and others immediately upon enactment. The new, legislative code has numerous differences with the current Supreme Court one. Take for example, the differences on statements judges can make during judicial campaigns.

Current Code of Judicial Conduct Rule 2.10(A): A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

Proposed Legislative Code of Judicial Conduct Rule 2, Subdivision 11(a) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending in any Minnesota court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing then pending in a Minnesota court.

Moreover, the current Code of Judicial Conduct Rule 2.10(B) (“A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”) would be removed outright in the new legislatively controlled code. It would, however, preserve the mandatory recusal requirement under the present Code’s 2.11(A)(4) (“The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”)

While this appears to be the first effort by the Minnesota legislature to take over the Code of Judicial Conduct, it is not the first attempt to alter the state’s Board on Judicial Standards.

2010

SB 2367 Requires executive secretary of Board on Judicial Standards be confirmed by Senate.

2009

HB 1632 Replaces Board on Judicial Standards with 8 randomly selected citizens, plus 2 people selected by the House and Senate. Grants legislature power to “retire” a judge for a physical or mental disability or violations of state/federal laws or constitutions. Provides the Board may sit in review and judgment of court decisions and my overturn those decisions but specifies the state government, political subdivisions, and corporations must seek review in the appellate courts instead. Provides that if the Board determines a jurist is in violation of state/federal laws and constitutions the Board may overturn the judge’s decision and remove or merely “warn” the judge. Any determination of the Board as the legality/constitutionality of the jurist is deemed unappealable to any court; removal and determinations of the Board are only to be appealed to the legislature. Repeal requirement that when courts seek to determine legislative intent they may used the decisions of a court of last resort that has construed the language of the law or one dealing with the same subjects. In House Civil Justice Committee.

2007

HB 1736 and SB 774 would have required Board executive director be confirmed by Senate.

HB 1261 and its companion SB 2079 would have replaced the members of the state’s Board on Judicial Standards with eight people randomly selected from a list of applicants that submitted their own names to the Secretary of State. The eight would then name a member of the House and Senate to sit with them. The bills would have removed the Supreme Court’s power to set rules, practice and procedure not only for the Board but for the courts in general.

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Posted in Other, Rule Making Authority

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Issue 5:17 is out

April 28th, 2011

Issue 5:17 (April 22) is here.

  • Impeachment resolutions introduced against 4 Iowa Supreme Court justices
  • Arizona voters will decide if they want to change the way their merit selection system works
  • Small Claims jurisdiction increases: proposed in North Carolina & Wisconsin, advance in Minnesota and Nevada
  • International law ban passes Missouri House, but is heavily modified in Texas House committee
  • Louisiana tries to set uniform fines and costs in criminal cases
  • Missouri’s Senate Ways and Means Committee tries to make it easier to collect on court debt
  • Court structure changes: Nevada’s Assembly OK’s an intermediate appellate court, New Hampshire’s senate approves consolidation of its trial courts, and Louisiana’s House considers redistricting state’s supreme court seats
  • Alabama may make its AOC responsible for electronic publication of legal notices
  • Tennessee House committee votes to allow judges to carry guns in courthouses
  • 90+ page bill with numerous changes to Texas’ courts makes it out if its first committee

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Posted in Weekly Edition

Connecticut bill would require state, in consultation with judicial branch, establish e-document standards and guidelines

April 28th, 2011

Cross-posted to Court Technology Bulletin.

The question of standards for the authentication and storage of e-documents, in particular court documents, is getting more and more legislative attention. Connecticut’s HB 6600 of 2011 is a case in point.

Some background is in order. SB 501 of 2010 created a task force to study converting legislative documents from paper to electronic form. A similar but separate task force was created via HB 5435 of 2010 to study ways in which state agencies and departments could reduce or eliminate duplicative procedures and the amount of paper used and how, when practicable, technology can be employed to help in such reduction or elimination.

The judiciary testified before both task forces. Efforts to end transcription of legislative proceedings were opposed by the judiciary, as witnessed by the testimony of Deputy Chief Court Administrator Judge Patrick l. Carroll, III (page 79). Chief Court Administrator Judge Barbara M. Quinn submitted testimony to the state agency paper task force noting among other things the court’s use of e-filing and review of its business processes.

The resulting legislation, HB 6600, contains a litany of ways to avoid paper, such as reducing the number of copies of statutes that get distributed (the number going to the judiciary would decrease and probate courts would have to specifically request copies) and moving much of the legislative process online.

For the courts, another element of note is Section 28:

Not later than January 1, 2012, the State Librarian shall, in consultation with the Secretary of the Office of Policy and Management, the Commissioner of Administrative Services, the Chief Information Officer of the Department of Information Technology, the executive director of the Joint Committee on Legislative Management and the Chief Court Administrator of the judicial branch, establish standards and guidelines for the preservation and authentication of electronic documents. (emphasis added)

HB 6600 was approved by the Joint Government Administration and Elections Committee and is currently pending final action in the House and Senate.

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Florida Senate likely to vote tomorrow on splitting state’s supreme court. If approved, when will it get on the ballot? Could only Republicans wind up voting on it?

April 27th, 2011

All indications are SJR 2084, the Senate version of HJR 7111, which would split the Florida Supreme Court into civil and criminal divisions is set for a vote tomorrow, having been placed on the special order calendar along with SB 2170, the bill to remove the state bar’s role in judicial nominating commissions.

Under Article XI, Section 5 of the state’s constitution, constitutional amendments are to go on the ballot “at the next general election held more than ninety days after the joint resolution…is filed with the custodian of state records.” However, the same provision allows for a quicker election for a single constitutional amendment via a special election if agreed to by three-fourths of each house (the 90 day rule still applies, however). That would mean 90 votes in the House and 30 in the Senate. An earlier Democratic effort in the House to amend HJR 7111 to require it be on the 2012 general election ballot was rejected on party lines.

Holding a special election, or piggy-backing onto a “Presidential Preference” election, is not unheard of. In 2008, Amendment One was put on the ballot allowing people who move to keep the annual cap of 3 percent on increases in assessed home values for property taxes on their new home. Before it was Amendment One, it was SJR 4 of Special Session 2007B. HB 5 of the same Special Session 2007B authorized the special election to occur on January 29, the Presidential Preference election for 2008. The underlying SJR 4B passed the House 74-43 and the Senate 25-12. However, on the question of whether SJR 4B should get onto the January 2008 ballot (i.e. HB 5B), the vote was unanimous in both the House and Senate.

The 2012 Presidential Preference election is January 31, 2012. In the event President Obama does not have a primary challenger, the probability is there would be no Democratic race (a similar circumstance occurred in 2004 for Republicans and 1996 for Democrats). The result could mean an exceptionally low turnout for Democratic voters casting a ballot that so far has been an entirely GOP proposition (all 39 House Dems present voted against HJR 7111 on final passage, no Republicans voted against).

House and Senate Republicans, while holding substantial majorities in each chamber, do not have the 75% needed to get HJR 7111 or SJR 2084 onto that 2010 Presidential Preference ballot. Assuming unanimity among the GOP, they would need at least 10 Democrats in the House and 2 in the Senate to vote in favor of a January 2012 race.

Regardless of which race, the proposal would still face a unique hurdle of 60% for passage thanks to a 2006 constitutional amendment (brought about via the legislature) that raised the bar on all constitutional amendments.

Of course, all this is moot if the bill fails to clear the Senate tomorrow or sometime before the legislature adjourns May 6.

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Posted in Jurisdiction, Qualification & Terms, Rule Making Authority, Salary & Budget, Selection, Structure Changes

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New York State of the Judiciary: we [must] provide justice to our citizens in ways that are meaningful, equal for all, and absolutely fair and impartial

April 27th, 2011

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

The New York State of the Judiciary speech has a unique history in that it is often delivered not in the legislature but in the courtroom of the state’s highest court (the Court of Appeals) with the judges present. 2011 was no exception as Chief Judge Jonathan Lippman delivered the address on February 15.

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

We assemble at a formative moment for the future of the State of New York and for the system of justice that we cherish. Our State, our communities and our Judiciary all face historic challenges.

ACCESS TO CIVIL JUSTICE FOR POOR AND LOW-INCOME NEW YORKERS: I formed a Task Force to Expand Access to Civil Legal Services in New York…The Task Force found that we are meeting, at best, 20 percent of the civil legal needs of the poor and working poor in New York, and recommended that we include $25 million for civil legal services in the Judiciary Budget for the coming fiscal year, as part of a four-year effort to increase civil legal services funding in this State by 50 percent….What we are recommending is a measured, common sense approach that prioritizes our resources, particularly in light of today’s fiscal realities — we cannot provide a lawyer to every poor person with a legal problem, as much as we would want to. What we are seeking is to provide legal representation to those struggling to access life’s most basic necessities, such as shelter, food, and personal safety.

INDIGENT DEFENSE: In the coming year, the focus will be on assisting and evaluating our State’s multiplicity of counsel assignment systems, and supporting creative, cost-effective delivery systems that meet the fundamental constitutional right we are charged with enforcing. We will seek the participation, cooperation and input of all who are affected by and have an interest in strengthening New York’s indigent defense system, particularly county and State officials.

CIVIL JUSTICE: CONFRONTING THE FORECLOSURE CRISIS: Despite the increase in pro bono volunteers who have stepped up to provide legal assistance, 63% of homeowners appearing for mandatory court settlement conferences are unrepresented, and the percentage is even higher in New York City. It is ironic that we generally provide assigned counsel at arraignment to people caught in public with an open can of beer — and rightly so — but if those people appear in court because they are about to lose the roof over their heads, they are on their own. To begin to address this disparity, we will establish a program to ensure, over time, that all homeowners who cannot afford a lawyer will be provided with legal assistance or representation at foreclosure settlement appearances. The settlement conferences mandated by law several years ago are considered the defining moment in the foreclosure process: the first opportunity for many defendants to learn about their legal rights and protections, about settlement options, and about the court process that lies ahead. It is the moment when having a lawyer at the table matters most.

CRIMINAL JUSTICE: WRONGFUL CONVICTIONS: Mistaken eyewitness identifications are the leading cause of wrongful convictions and the Task Force made that issue its first priority, developing a comprehensive set of best practices to improve the accuracy and reliability of eyewitness identifications in New York. The Task Force’s work on other wrongful convictions issues that must be addressed, such as post-conviction DNA testing, is ongoing, and we certainly look forward to additional recommendations in the months ahead.

SENTENCING COMMISSION: New York’s sentencing laws have not been revised in more than four decades. It is critical that we modernize our sentencing laws and practices to reflect the best and latest knowledge about public safety, individualized punishment, reduced recidivism, successful re-entry and rehabilitation, and the rights of crime victims…Last October, I appointed a permanent Sentencing Commission for New York and charged it with performing a top to bottom evaluation of our sentencing laws.

JUVENILE JUSTICE: Governor Cuomo has proposed closing underutilized youth prisons, and the monies saved can be reinvested in meaningful community alternatives. The Judiciary has made its own commitment to reform, improving our Family Courts in so many ways and supporting Mayor Bloomberg’s efforts to promote alternatives to detention in New York City. These efforts are beginning to bear fruit…A stronger probation system would also enable us to build on our successful efforts in New York City to accurately assess the risk that any given young person will reoffend. We need to expand this risk assessment model to the rest of the State so that judges can make more informed decisions in each case. And we must work to match risks to responses — providing judges with sentencing options that are calibrated to all young offenders, whether they be low, medium or high risk.

PROTECTING JUDICIAL NEUTRALITY: For many years, judges have operated under an ethical duty to remain unaware of their campaign contributors. Candidates might see names on campaign stationery or attend cocktail receptions with contributors present, but contributions were made to committees run by others and the candidates did not see donor lists. It was hardly a perfect system, but on the whole it worked because a judge’s lack of knowledge of campaign contributors was credible….That is why today I am announcing the following. The Administrative Board of the Courts, the court system’s policy making body that includes myself and the Presiding Justices of the four Appellate Departments around the State, has approved for public comment a new rule that assures that no case will be assigned to a judge where the attorneys or parties in the case contributed $2,500 or more within the previous two years to the judge’s campaign.

JUSTICE FOR JUDGES: REFORMING JUDICIAL COMPENSATION: Today I am delighted to report significant progress in transforming New York’s broken judicial compensation system. First and foremost, thanks to the vision and leadership of the Legislature and former Governor Paterson, a permanent quadrennial judicial compensation commission was enacted into law to take judicial pay out of the political arena…While every one of us must be prepared to make sacrifices in this era of tough choices, judges have begun their 13th consecutive year of sacrifice — and that’s just too much based on any objective standard.

We do not have the option of picking and choosing which cases we will hear, of turning people away, or of turning a deaf ear to those who come to our courthouse doors seeking justice. Rest assured that today, tomorrow, and in all the days to follow, the New York State court system will never stray from our constitutional mission of pursuing justice for each and every citizen of this State.

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Under threat of holding up state budget, Florida Senate Budget Committee advances supreme court splitting proposal

April 26th, 2011

While the Senate Judiciary Committee was busy changing the way the state’s merit selection system was operating, the Senate Budget Committee was taking the bulk of HJR 7111 (see here) that would divide the state’s supreme court into civil and criminal divisions and amending it into a bill SJR 2084, which originally would have expanded the legislature’s ability to change or repeal rules adopted by the Supreme Court. The Speaker had previously threatened to hold up the state’s budget if this and other bills he advocate changing the courts were not adopted by the Senate. The passage of this bill in particular was cited as a Senate “olive branch” to the House Speaker.

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Posted in Jurisdiction, Other, Qualification & Terms, Rule Making Authority, Salary & Budget, Selection, Structure Changes

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Florida Senate Judiciary Committee gives (lukewarm) approval to changes to merit selection

April 26th, 2011

On April 25, the Florida Senate Judiciary Committee gave its approval to SB 2170, changing the current statute controlling the appointment process for members of the state’s Judicial Nominating Commissions. Specifically, the bill eliminates the role of The Florida Bar in the appointment of members to the commissions by removing statutory direction for the Board of Governors of The Bar to make recommendations to the Governor for the appointment of four members of each commission. Instead, the bill vests the authority to make recommendations for these four positions with the Attorney General. Furthermore, the bill amends the current statute to provide that the terms of all current members of a judicial nominating commission are terminated, and the Governor shall appoint two new members for terms ending July 1, 2012 (one of which shall be an appointment selected from nominations by the Attorney General), two new members for terms ending July 1, 2013, and two new members for terms ending July 1, 2014.

The bill, while formally approved, was met with tepid support by the members of the Judiciary Committee. as the St. Petersburg Times put it, “Senate committee passes court reform bill, but they don’t like it.” (h/t Gavel Grab). The passage at all was considered a “legislative courtesy” to the Speaker of the House, whose own series of changes to the judiciary’s selection and structure were adopted a few weeks ago (see here). The Speaker had previously threatened to hold up the state’s budget if this and other bills he advocate changing the courts were not adopted by the Senate.

The bill now goes before the Senate Rules committee today.

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Wyoming State of the Judiciary: Managing caseloads with static revenues and discontent in civil litigation

April 25th, 2011

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

Due to an unfortunate oversight, I failed to catch one of the first State of the Judiciary addresses delivered in 2011, in this case the one delivered by Marilyn S. Kite, Chief Justice of the Wyoming Supreme Court. The speech, delivered to a joint session of the legislature on January 11, included the presence of the state’s governor (only the second state, along with New Mexico, where that appears to have occurred). Governor Matt Mead delivered his State of the State address just before the chief justice delivered hers. There does not appear to have been a formal resolution filed, only an invitation given by the President of the Senate and the Speaker of the House to the chief justice.

The House and Senate met in joint session on January 11 to hear the speech. Highlights of the the Chief Justice’s speech (full text here) included:

What we are doing here today, bringing together the three separate and independent branches of government, constitutes an important tradition, symbolizing a unity of purpose, and provides us with a brief moment in which we can speak to each other and to the citizens of Wyoming as well as listen to each other and appreciate the importance of our respective efforts on behalf of this State.

I suppose one of the most obvious changes is that after four years of accomplished leadership, Justice Barton Voigt has passed that mantle on to me. Justice Voigt’s efforts over the past four years are far too many to mention, not the least of which were overseeing the design and construction of the remodel of the Supreme Court Building and leading the court system into the 21st century with electronic filing and docket management. On behalf of all of us serving in the Judiciary, I want to thank you, Justice Voigt, for your devotion to the job, your diligence, and your ever-present sense of humor. We all owe you a great debt.

The Supreme Court and the Access to Justice Commission have been busy implementing legislation this body adopted last year to provide funding through an increase in court filing fees to coordinate and support legal services for over 70,000 of our citizens who are financially eligible…The upcoming year will see much progress in this effort and we are committed to fulfilling this body’s intent to provide for justice for all of our citizens, not just those that can afford it.

In performing our work, we are facing some major challenges and we are working hard to meet them. While statistics certainly don’t tell the whole story, a quick look at our case filings show that the Wyoming courts are vibrant, busy, and getting their job done. The circuit courts processed over 180,000 cases last year, that includes all of law enforcement’s citations, and the district courts handled over 20,000 cases.

Despite this good news, we, like the other two branches of government, face extraordinary challenges. I want to talk to you today about two of those challenges in particular. No. 1 is how to become more efficient internally as we perform our jobs. And No. 2 is how to reduce the cost and delay to the private citizens in civil litigation.

1. How do we manage an ever-increasing workload with static or even declining revenues? We are all well aware that other states have not been as fortunate as we have financially, and many have seen draconian cuts in funding to the point of even closing some courts thus denying citizens access to justice. We are committed to assuring that we spend state resources responsibly and efficiently in order to assure the citizens of Wyoming never face that prospect.

The most obvious opportunity for enhanced efficiency is to better utilize the circuit courts. As you know, their jurisdiction is currently limited to misdemeanors and civil cases involving less than $7,000. That limit was set 15 years ago and needs to be significantly increased.

Electronic filing and docket management is in place and functioning well in the Supreme Court. We are about half way through the effort to get all district courts on the same docket management system and to provide electronic filing in those courts as well. As soon as that is complete, we will do the same in the circuit courts…Now, the next technological leap that will have the most impact on our day to day productivity will be when law enforcement is able to issue electronic citations and ultimately the fines can be paid electronically…Finally, on the technology front, most of our judicial districts have video conferencing capability and we are all learning how to use that tool effectively.

2. How do we address the growing discontent with the cost and delay involved in civil litigation? Keeping in mind that our primary job is to provide fair and efficient justice to our citizens, we have initiated an effort to examine our rules and procedures to see how we can do that better. We started by conducting a survey of all Wyoming lawyers and judges and, not surprisingly, it showed that an overwhelming majority of both believe that civil litigation costs too much and takes too long. The cause of this failure of the system is likely a combination of district court workloads in some areas, and outdated, cumbersome rules.

The rules of civil procedure that we follow today were adopted 72 years ago and have been modified very little since…I anticipate we will consider rules changes and possibly propose statutory changes over the next year.

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