Archive for May, 2011

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Nebraska legislative study of merit selection would seek to strengthen system, provide more citizen engagement

May 31st, 2011

I mentioned last week Nebraska’s LR 283, directing the Legislature’s Judiciary Committee “to conduct an interim study to examine issues surrounding judicial independence including, but not limited to, Nebraska’s current method of judicial retention”. Given the massive legislative interest disassembling merit selection systems in other states, I noted it “could be  innocuous, or setting the state for such a challenge/change in 2012.”

LR 283′s author, State Senator Danielle Conrad sent me a wonderful email while I was on vacation indicating the LR’s purpose was not to tear down the state’s merit selection system(s), but derived from an interest in strengthening the system. The Senator noted this January 2011 article from The Nebraska Lawyer that include thoughts about improving the retention vote system, including “more significant education about the judicial branch” in schools, more information for voters, and improvement in the quality of information available to the voting public.

In a year in which almost every state that has merit selection at least looked (legislatively speaking, see special edition here highlighting the state of merit selection as of mid-April) at changing it or ending it, Nebraska (along with Indiana) may be the only two states looking to buttress their existing systems.

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Week Ahead: 5-30-11

May 30th, 2011

Legislatures Going Out of Session

Missouri 5/30/2011
Texas 5/30/2011
Kansas 5/31/2011 (Estimated)
Nebraska 6/1/2011 (Estimated)
North Carolina 6/1/2011 (Estimated)
South Carolina 6/2/2011

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Posted in Coming Week

Issue 5:21 is out with a focus on electronic filing legislation

May 26th, 2011

Issue 5:21 (May 20) is here.

  • Focus Trend: Electronic Filing Legislation
  • Small Claims limit increases moving in California & Minnesota
  • South Carolina may give its locally-funded Probate Courts more authority when it comes to budgets
  • Massachusetts’ Senate passes its own version of judicial governance reform
  • California looks at employment and use of court interpreters

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Posted in Weekly Edition

3 Tennessee bills set the stage for 2012 merit selection showdown

May 25th, 2011

The Tennessee legislature just had the earliest adjournment in 13 years, ending late Sunday night. Before leaving, however, it left pending several items on judicial selection that are set for a return January 10, 2012.

I noted previously the dilemma: The state’s merit selection system depends on two commissions (the Judicial Selection Commission and the Judicial Performance Evaluation Commission) statutorily set to automatically sunset June 30, 2012. The last time something like this happened was in 2008, when the sunset deadline was passed and the commissions were almost at the end of their one-year “wind down” in June 2009 before legislation was adopted to keep them going. Thus if nothing happens, merit selection ends and there is some degree of ambiguity of there is any way to appoint or elected appellate judges after. The state’s Attorney General in 2009 issued an opinion (09-43) that with the commissions gone and no explicit statutory language for conducting direct elections, sitting judges would simply remain in office indefinitely due to a constitutional provision (Article VII, §5) that provides a judge “shall hold his office until his successor is elected or appointed, and qualified.”

While all bills not presented to the Governor in 2011 are automatically carried over in 2012, the bills that actually moved in 2011 and will probably set the baseline for 2012 negotiations are:

HB 173 / SB 127 ends the existing merit selection system and requires all judges be elected in partisan elections. The House bill was approved by the House Judiciary Committee, General Subcommittee on 4/20/11. The Senate version was approved by the full Senate Judiciary Committee 3/29/11 and ended the session in the Senate Finance, Ways and Means Committee.

The other bill, SJR 183, was detailed in this post here. It would explicitly include language specifically authorizing “merit selection” for judges, but with the option of retention elections at the legislature’s discretion. That bill was approved by the full Senate Judiciary Committee 4/26/11 and ended the session in the Senate Finance, Ways and Means’ General Subcommittee.

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Oklahoma Senate does, then doesn’t, reject bill to expand use of State Judicial Revolving Fund

May 24th, 2011

Many if not most states have some sort of revolving fund(s) for courts that does not require re-appropriation each year but may be used by the courts for general operations or some specific purpose. The Oklahoma State Judicial Revolving Fund is a specific-purpose fund: funds are to be used for an alternative dispute resolution system (12 Okl. St. § 1809) and “to perform the duties imposed upon the district courts by law, and upon the Supreme Court and Court of Civil Appeals pursuant to Section 1310.1 of Title 20 of the Oklahoma Statutes. ” (20 Okl. St. § 1310.2).

HB 2174 authorizes the Administrative Director of the Courts to use the State Judicial Revolving Fund for all expenses related to the district courts, Court of Civil Appeals and the Supreme Court. The bill will allow the Administrative Director of the Courts to use the funds where there is the greatest need, with approximately $1 million from the State Judicial Revolving Fund utilized for Supreme Court Expenditures.

HB 2174 was introduced May 11 and sped quickly through the House which approved it on May 13 on an 88-3 vote. Things fell apart somewhat in the Senate. It bypassed committee hearings and went straight to the Senate floor where it was rejected 19-25 on May 17. On May 19 it was brought back to the floor and adopted on a 37-7 vote.

The break down of the May 17 vote on HB 2147 is interesting  when compared to the vote count on efforts to end merit selection (SJR 36) or require senate confirmation of those chosen by the governor through the existing merit selection process (SB 621), both of which while passed in the Senate went nowhere in the House.

Yes on SB 621
Yes on SJR 36
No on HB 2174 (May 17 vote)
Aldridge
Aldridge
Aldridge
Allen
Allen
Allen
Anderson
Anderson
Anderson
Barrington
Barrington
Bingman
Bingman
Branan
Branan
Branan
Brecheen
Brecheen
Brecheen
Brinkley
Brinkley
Brinkley
Brown
Brown
Coates
Coates
Coates
Crain
Crain
Crain
David
David
David
Fields
Fields
Fields
Ford
Ford
Garrison (Nay on SB 621 & SJR 36)
Halligan
Halligan
Halligan
Holt
Holt
EXCUSED
Johnson, R
Johnson, R
Johnson, R
Jolley
Jolley
Justice
Justice
Justice
EXCUSED
Marlatt
EXCUSED
Mazzei
Mazzei
Mazzei
Myers
Myers
Newberry
Newberry
Newberry
Nichols
Nichols
Nichols
Reynolds
Reynolds
Reynolds
Russell
Russell
Schulz
Schulz
Shortey
Shortey
Shortey
EXCUSED
Simpson
Simpson
Stanislawski
Stanislawski
Stanislawski
Sykes
Sykes
Sykes
Treat
Treat
Treat
Wilson (Nay on SB 621 & SJR 36)
Wyrick (Nay on SJR 36; Excused on SB 621)

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Posted in Salary & Budget

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If Minnesota has a government shutdown, courts may be told to stay out of the conflict this time

May 23rd, 2011

We almost had a federal government shutdown several months ago and now it appears Minnesota may be standing on the same precipice. The state’s constitution prohibits the legislature from meeting in regular session “after the first Monday following the third Saturday in May of any year” which is today (May 23).  With no budget in place, this could be a shutdown of all but “essential services” after July 1, similar to what occurred in the state in 2005.

In that year, the state’s courts became involved in a series of lawsuits to determine what exactly was an “essential service.” A former Supreme Court justice was appointed a special master at the request of the Governor and Attorney General to help determine what was an “essential service” just days before the July 1 deadline. The special master immediately ordered the protection of services essential to the life, health and safety and those critical to maintaining or preserving public property and functioned for 2 weeks until the stalemate was resolved.

HB 1753 would avoid having a similar court fight over “essential services”, providing, other laws notwithstanding, “except for funding for public safety, a court may not order any expenditure of an amount in the treasury to fund any operation of state government.” Explicitly “trumped” by HB 1753 are the authorization or jurisdiction statutes for all three levels of court in the state: Supreme Court (Minn. Stat 480.04), Court of Appeals, (480A.06) and District Court (484.01).

The bill is currently pending in the House Committee on Ways & Means.

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Posted in Jurisdiction

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Week Ahead: 5-23-11

May 23rd, 2011

Legislatures Going Out of Session

Minnesota 5/23/2011
Oklahoma 5/27/2011

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Posted in Coming Week

Nebraska, one of the earliest adopters of merit selection, considers a legislative “study” of its merit selection system

May 20th, 2011

Could Nebraska be the next state to try and change its merit selection system? LR 283, introduced last week and pending in committee, directing the Legislature’s Judiciary Committee “to conduct an interim study to examine issues surrounding judicial independence including, but not limited to, Nebraska’s current method of judicial retention” could be  innocuous, or setting the state for such a challenge/change in 2012. (Update 5/31/11:  See post here. The study does not seek to attack the state’s merit system.)

First, some background.

Nebraska was an early adopter of merit selection, adopting it in November 1962. At the same election, and in almost identical language, Iowa adopted merit as well, making them the fifth and sixth states to move to the Missouri Plan since its creation in 1940. (see page 20 of this report put out in 2003 by the American Judicature Society by then AJS-staffer Malia Reddick and Utah State Court Administrator Dan Becker).

Currently, all of the state’s six courts use the same merit selection system. Like Iowa, however, the state’s constitution (the 1962 amendment known as Art. V, Sec. 21) only guarantees that merit selection system for the Supreme and main trial (District) courts.

(1) In the case of any vacancy in the Supreme Court or in any district court or in such other court or courts made subject to this provision by law, such vacancy shall be filled by the Governor from a list of at least two nominees presented to him by the appropriate judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the date it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice of the Supreme Court from the same list.

(2) In all other cases, any vacancy shall be filled as provided by law.

A separate section (Art. V, Sec. 27) allows the legislature to create the “separate juvenile” courts and choose their method of selection/appointment by statute.

Each of the four courts not given a merit-selection system by the constitution are presently covered by statutes to the same effect

Court of Appeals NRS 24-1101
County NRS 24-820
Worker’s Compensation NRS 48-152 & 48-153
Separate Juvenile NRS 43-2,114 (some NRS sections use commas)

While its co-1962 merit selection adopter Iowa is considering eliminating merit selection (statutorily for the Court of Appeals, constitutionally for other courts, see here for details), Nebraska has had no direct effort to eliminate its merit selection in some time.

The only major constitutional changes attempted lately were in 1998 (LR310CA, no link) when voters narrowly rejected an effort to have statewide retention elections for all 7 Supreme Court justices (currently, only the Chief Justice is retained statewide, the rest are retained by district). A 1999 constitutional amendment (LR7CA) to end merit and require elections for the District and County Courts was rejected in committee.

So, is LR 283 just a study of merit selection or a pretext for an Iowa-type attack on merit next session? History suggests the former, but in light of the flurry of anti-merit activity this year, it is hard to tell what end is what in the realm of judicial selection.

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Massachusetts’ court governance revamp running into snags

May 19th, 2011

I mentioned last week the Massachusetts’ House passing major revisions to the way the state’s (excuse me, commonwealth’s as someone corrected me after last week’s post) courts are governed. HB 3395 is having a tough slog in the Senate, however.

First, the Senate Ways & Means Committee opted to replace it with a new bill (SB 1907) which, while apparently adopting most of the text of HB 3395, does make some major additional changes with respect to the judiciary’s control and operation of the probation department.

Additionally, according Massachusetts Lawyers Weekly‘s The Docket, the 4 Senate Republicans (out of 40 Senators) wanted additional amendments added onto the bill once it reached the floor today, many of which were approved. Among the dozen amendments were:

Rejected

Amendment #3: Require the trial court chief justice to provide the Legislature with a cost and budgetary analysis of the proposed reorganization’s impact prior to implementation
Amendment #4: Provide for an annual independent audit of the trial court by the State Auditor and Inspector General, beginning in 2013

Adopted

Amendment #5: Allow for use of credit cards to pay all court fees/fines with processing surcharge
Amendment #6: Require the advisory committee on personnel standards to use merit-based standards for hiring court personnel, and to post these standards on the trial court’s website
Amendment #8: Require applicants for any trial court position to be certified as meeting the merit-based considerations for employment prior to the consideration of any letters of recommendation submitted on behalf of the applicant
Amendment #9: Expand the membership of the proposed advisory board charged with offering recommendations on the management of the probation office to include an active member of the Massachusetts Bar and an experienced probation officer
Amendment #18: Require the trial court chief justice and the court administrator to submit a report to the Legislature 90 days before the temporary closure or relocation of any courthouse

Left Pending

Amendment #2: Allow for the transfer of funds within the trial court
Amendment #14: Strikes “An officer or employee whose appointment is subject to this section may be removed for cause by the appointing authority. Every removal of an officer or employee whose appointment was subject to this section shall be reviewed by the [advisory committee on personnel standards], and no such removal shall be final until approved by the [advisory committee on personnel standards]. If any such officer or employee has served 3 full years in a position, appointment to which is subject to the provisions of this section, the officer or employee shall have the right to appear personally before the [advisory committee on personnel standards] before the committee reaches its decision as to whether or not to affirm the officer’s or employee’s removal.” to read “Subject to the terms of applicable collective bargaining agreements, any officer or employee whose appointment is subject to the provisions of this section may be removed by the appointing authority, in accordance with the standards promulgated by the committee.”

In addition to the GOP amendments, several Democratic ones were proposed and adopted, including one by the Senate Judiciary Committee chair (Amendment #17) that would alter the effective dates for various provisions in the bill.

The bill, as amended, was approved and sent back to the House on a 39-0 vote.

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Posted in Structure Changes

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Issue 5:20 is out

May 19th, 2011

Issue 5:20 (May 13) is here.

  • Texas House Select Committee on State Sovereignty advances its own version of a sharia/international law ban that differs from the House Committee on Judiciary & Civil Jurisprudence version
  • Louisiana House urges and requests state’s Supreme Court implement mandatory continuing education for judges
  • Ohio may consolidate references to all court costs and fees in a single statute/code section
  • California bill would require Judicial Council get approval from two-thirds of trial courts before making certain expenditures
  • Connecticut may transfer Judicial Selection Commission to Executive Branch
  • Judicial redistricting bills active in California, Nebraska, Rhode Island, and Texas

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Posted in Weekly Edition