Archive for August, 2012

Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking

August 30th, 2012

Most state constitutions explicitly grant their state courts of last resort the power to establish rules of practice, procedure, and/or administration for the state’s judiciary, including judiciary-related organs such as administrative offices of the courts, judicial disciplinary commissions, etc.

In the last several years, however, several states have made attempts to curtail the power of the court of last resort to exercise such power, or make it easier for the legislature to override the court of last resort. Two items, a portion of Florida Amendment 5 and New Hampshire Constitutional Amendment Concurrent Resolution (CACR) 26 will be voted on this November. In this election coverage update, I’ll be taking a look at those two items and what other states do.

Florida Amendment 5

Article V, Section 2(a) of the Florida constitution grants the state’s Supreme Court a relatively broad rulemaking authority.

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The Supreme Court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Amendment 5 focuses on that last sentence involving a two-thirds vote of the legislature to override the rules issued by the Supreme Court. Amendment 5 would lower the threshold to a simple majority and preclude the Supreme Court from readopting the rule unless the readopted rule conforms to the legislature’s “public policy” views. The proposed amendment would read as follows:

Rules of court may be repealed by general law that expresses the policy behind the repeal enacted by two-thirds vote of the membership of each house of the legislature. The court may readopt the repealed rule only in conformity with the public policy expressed by the legislature. If the legislature determines that a rule has been readopted and repeals the readopted rule, the rule may not be readopted thereafter without prior approval of the legislature.

New Hampshire CACR 26

New Hampshire’s existing constitutional provision does not contemplate a legislative override of rules adopted by the state’s Supreme Court. This has not stopped several efforts (prior coverage here and here) by the legislature from attempting to unilaterally declare by resolution certain court rules void).

The current Article 73-a reads, in operative part:

He [the chief justice] shall, with the concurrence of a majority of the Supreme Court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

CACR 26 would explicitly grant the legislature a “concurrent power” with respect rules of court, with statutes adopted by the legislature given precedent. It also changes “He” to the gender-neutral “chief justice”

The chief justice shall, with the concurrence of a majority of the Supreme Court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

What do other states do?

38 state constitutions grant rule making, “superintending”, or similar power which has been interpreted as including the power to create rules, to their court of last resort or a judicial council chaired by the chief justice of the state. Of these, most specify that the authority is specific to certain areas/topics.

State by state breakdowns below the fold.

» Read more: Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking

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Florida Amendment 5: Merit selection but requiring Senate confirmation of Supreme Court picks. What do other states do?

August 29th, 2012

Florida’s Amendment 5, like Arizona’s Proposition 115, makes a series of changes to the judicial branch. One such element involves judicial selection, specifically for the state’s Supreme Court.

Florida’s current merit selection

Since the 1970s, Florida’s appellate courts have used a merit selection system, spelled out for the most part in Article 5, Sections 10 & 11 of the state constitution. The system sets up merit selection commissions for the supreme court and one for each of the state’s district courts of appeal. Upon a vacancy, the commission for the applicable court meets and submits anywhere from 3 to 6 names to the governor to fill the vacancy. After the pick, the person serves for a short time and then is up for a yes/no retention election to serve a full term.

Amendment 5, among other things, would change the process for vacancies on the Supreme Court by requiring that after the governor makes a pick from the 3-6 names, the individual chosen be subject to Senate confirmation. The senate is authorized under Amendment 5 to call itself back into session and has 90 days to vote on the individual; if they fail to vote “the justice shall be deemed confirmed.” If the senate rejects the individual, the supreme court judicial nominating commission must go back and again submit 3-6 names to the governor (the person rejected cannot be one of the names).

How other merit selection states operate

20 states make use of a constitution-based or statute-based merit selection system for their initial selection to their court (and in the case of Oklahoma, courts) of last resort: Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Missouri, Nebraska, New Mexico, New York, Oklahoma, Rhode Island, South Dakota, Tennessee,  Utah, Vermont, and Wyoming.

Amendment 5: “Each appointment of a justice of the supreme court is subject to confirmation by the senate.”

Of these 20 states, only six provide for legislative confirmation. Hawaii, New York (court of last resort only), Rhode Island (trial judges only), Utah and Vermont require Senate confirmation. Connecticut and Rhode Island (court of last resort only) require House and Senate confirmation.

Amendment 5: “The senate may sit for the purpose of confirmation regardless of whether the house of representatives is in session or not.”

The constitutions of Hawaii (Art. 3, Sec. 10) and Utah (Art. VIII, Sec. 3)  have provisions allowing the Senate to call itself back into session specifically for confirmation purposes, although Hawaii does require two-thirds of the members of the senate write a letter to that effect for the session to be called. Connecticut’s constitution also allows the legislature generally to call itself back in “at such other times as the general assembly shall judge necessary” (Art. III) either on petition by the members or at the direction of the presiding officers or the house and senate (§ 2-6 and 2-7)

New York’s Senate can rely on a statute (Legislative Law § 34) permitting it to call itself back into session for confirmation.

According to the National Conference of State Legislatures, Rhode Island and Vermont have no provision for the legislature calling itself back into session other than by proclamation or direction of the governor.

Amendment 5: “If the senate fails to vote on the appointment of a justice within 90 days, the justice shall be deemed confirmed.”

This is similar to Hawaii’s constitution (Art. 6, Sec. 3) which gives the Senate 30 days to vote or else the appointment is deemed confirmed.

In contrast, Utah’s constitution (Art. VIII, Sec. 8(3)) provides for 60 days for confirmation or the nominee is considered rejected. Rhode Island has a similar statute (§ 8-16.1-5(c) and § 8-16.1-6(c)) which give separate time frames: 60 days for Supreme Court & 90 days for trial courts. Failure to meet the deadlines means the names are rejected.

New York  statute (Judiciary Law § 68 (3) & (4)) provides “The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor” but then goes to say (Judiciary Law § 68 (5)) “The failure of any officer or body to perform any act within a limitation of time established by this section shall not invalidate any appointment to the office of chief judge or associate judge of the court of appeals.” Thus failure to meet the deadline does not appear to result in automatic rejection or confirmation.

The remaining states (Connecticut and Vermont) do not appear to have time limits for confirmations.

Amendment 5: “If the senate votes to not confirm the appointment, the supreme court judicial nominating commission shall reconvene as though a new vacancy had occurred but may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the senate.”

Utah, like the Florida proposal, restarts the entire nominating process upon Senate rejection of a nominee (Art. VIII, Sec. 8(3)): “If the Senate fails to approve the appointment, the office shall be considered vacant and a new nominating process shall commence.”) New York’s statute on the subject (Judiciary Law § 68 (4)) says “A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment”. Thus, it appears the merit selection process would have to be restarted. Given that every nominee since the process was created in 1977 has been confirmed by the Senate, the issue hasn’t come up.

Contrast this with Hawaii (Art. 6, Sec. 3), which requires the same list be reused. Such an instance occurred in August 2010: Katherine Leonard was rejected by the Hawaii Senate to serve as Chief Justice of the state’s Supreme Court. Associate Justice Mark Recktenwald, also on the list of 6 names sent to then-Governor Linda Lingle, was confirmed in September of that year. Connecticut’s statute (51-44a(h)(1)) allows for the Governor to return to the list submitted by the Judicial Selection Commission.

Rhode Island makes use of two separate methods. With respect to the Supreme Court, § 8-16.1-5(c) requires the process restart as is proposed in Florida. Lower court selections, however, are treated differently; rejection does cause the judicial nominating commission to send another set of names to the Governor under §8-16.1-6(4)(c). A separate provision of law (§8-16.1-6 (3) and (4)) also makes eligible any person who in the prior 5 years had been submitted to the governor for a previous vacancy on the same court.

It is not at all clear what occurs in Vermont if there is a rejection.

Update 8/29/12 @ 11:57 AM. Added clarifying info on NY and added slew of links.

Update 8/30/12 @ 4:58 PM. Added that it is not clear what happens in VT if there is a rejection.

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Posted in Election 2012, Selection

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Missouri Amendment 3 & Arizona Prop 115: How many names get submitted to the governor in merit selection courts/states?

August 24th, 2012

Missouri’s Constitutional Amendment 3 and Arizona’s Proposition 115 contend with modifying the states’ merit selection systems by changing the way they are constituted as well as how many names they submit to a governor. In this installment of Election 2012 coverage, I’ll take a look at the proposed particular changes with respect to the number of names submitted

Missouri Amendment 3

Under the present constitution, Missouri’s merit selection system applies to the state’s Supreme Court, Court of Appeals, the Circuit Courts of the City of St. Louis and Jackson County (Art. V, Sec. 25(a)), and any circuit that opts into the system (Art. V, Sec. 25(b)). One “nonpartisan judicial commission” handles the supreme court and court of appeals (and is specifically entitled “The Appellate Judicial Commission”) while each circuit that has merit selection has its own commission (“The …. Circuit Judicial Commission”). Both commissions submit “three persons possessing the qualifications” of their respective judicial offices to the governor, who then chooses one name.

Amendment 3 would bifurcate this: Circuit Judicial Commissions would still submit 3 names to the governor, but the Appellate Judicial Commission would submit 4.

Arizona Proposition 115

As I noted in my first look at Prop 115, this amendment would change a litany of provisions related to the state’s judiciary. With respect to the number of names, it would expand it from at least 3 names to at least 8. There is a proviso allowing fewer than 8 names to be sent to the governor, but only if two-thirds of the nominating commission rejects enough candidate(s) that finding 8 names would be impossible.

Trial vs. appellate

In the case of Missouri, the increase from 3 to 4 applies to the state’s appellate courts (Supreme Court and Court of Appeals), as compared to Arizona which would set the standard of 8 or more for both levels. In those states where there is merit selection at the trial and appellate level, the tendency is to follow the Arizona example and set the same numerical requirement for both. Colorado, Iowa and Utah (by statute) are the exceptions, with a longer list required for appellate court vacancies.

How many names for vacancies?

11 of the 20 states that use merit selection to fill appellate court vacancies, including Missouri, allow for 2 or 3 names to be sent to a governor. In a 2007 New Mexico Supreme Court decision, the constitution’s failure to list specific numbers but inclusion of language that a commission send “names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission” was held to preclude sending a single name and implied at least 2.

No state has Arizona’s Prop 115 minimum of 8 names for a vacancy. Only Utah comes close with 7 for its appellate courts. New York does require 7, but only for the state’s chief justice (actual title is Chief Judge); the other vacancies on the court are filled via lists of as few as 3 names. Why the high number of names for the Chief Judge? The applicable statute (Jud § 63(a)) specifies this is “[i]n recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration…”

State by state breakdowns below the fold. » Read more: Missouri Amendment 3 & Arizona Prop 115: How many names get submitted to the governor in merit selection courts/states?

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Posted in Election 2012, Selection

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Arizona Prop 115: A look at judicial terms in other states

August 22nd, 2012

Arizona’s Proposition 115 modifies several provisions of the state’s constitution with respect to judicial selection, qualifications, and terms. In this first look at Prop 115, I’ll look at the changes to terms of office for judges.

Currently, Arizona’s constitution provides for six year terms for the Supreme Court (Art. 6, Sec. 4) and four year terms for the Superior Court, the state’s  general jurisdiction trial court (Art. 6, Sec. 12). Because it is a creation of statute, the terms for the state’s intermediate appellate court, the Court of Appeals, are set by statute as six years. (12-120.01)

Under Prop 115, the two existing constitutional provisions would change to provide eight year terms for both the Supreme Court and Superior Court. In addition, Court of Appeals judges would get an explicit eight year term added into the constitution itself.

Court of last resort/”supreme courts”: Arizona plus 14 other states currently use six year terms for the justices of their state’s top court(s), however 30 states use eight year terms or greater.

Intermediate appellate court/”court of appeals”: There is an almost perfect split among the 40 states that have intermediate appellate courts: 20 states (including Arizona currently) have six year terms or shorter for their intermediate appellate courts, while 20 have eight year terms or greater.

General jurisdiction courts: Only eight states join Arizona in giving their general jurisdiction judges a four year term in office. Precisely half of U.S. states grant their general jurisdiction judges six year terms. Fifteen states give eight year terms or longer.

Court of Last Resort = General Jurisdiction Court: One interesting feature of Prop 115 is the equalization of terms for the justices of the Supreme Court and the judges of the Superior Court at eight years. In twenty-seventy states, the higher court(s) have longer terms, in twenty-two they have the same terms. Maryland stands alone: the justices of their court of last resort serve for 10 years, while their general jurisdiction court judges serve for longer, 15 year terms (Md. Con. Art. IV, Sec. 3, 5 & 5A).

State by state breakdowns below the fold.

» Read more: Arizona Prop 115: A look at judicial terms in other states

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Alabama court cost constitutional amendments

August 21st, 2012

The Alabama constitution is one the longest of any state (or nation for that matter), with some 827 amendments already in place. Much of this stems from the need to issue an amendment for single-county or single-city exemptions from constitutional provisions, such as the provision in Section 96 that prohibits the state from enacting a law that would vary court costs from one county to another.

The legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers.

The result has been, starting with Amendment 2 in 1911 (court charges in Jefferson County), dozens of amendments exempting individual counties from the general restriction found in Section 96 with respect to court costs. These range from general statements to very particular and specific costs. Three such amendments, showing the range of amendment types with respect to court costs, will be voted on in November:

  • HB 735 / Covington County Local Amendment Provides for the law library fee in the county and to ratify, approve, validate and confirm any court costs levied pursuant to local law enacted prior to the adoption of this amendment. The amendment text itself is over 500 words long.
  • SB 344 / Marion County Local Amendment “The Legislature, by general or local law, may fix, regulate, and alter the costs and charges of courts in Marion County and provide for their distribution.”
  • SB 581 / Etowah County Local Amendment 2 “The Legislature, by general or local law, may fix, regulate, and alter the costs and charges of courts in Etowah County and provide for their distribution. Any local law authorizing the levy of additional court costs in Etowah County enacted prior to the effective date of this amendment is ratified and confirmed.”

Under the state’s constitution, while the amendments listed above required approval of the three-fifths of the full Alabama House and Senate, the amendments (because they impact only one county) require the approval of only a “majority of the qualified electors of the affected county who vote on the amendment.” (emphasis added)

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Posted in Election 2012, Salary & Budget

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Support Gavel to Gavel for ABA Journal’s Top 100 Law Blogs!

August 16th, 2012

It’s that time of year again – the ABA Journal has begun its search for the Top 100 Law Blogs. Last year the blog got an overwhelming amount of reader support but failed to break into the top 100. If you enjoy Gavel to Gavel and would like to show your support, visit the ABA Journal Law Blog Amici page and suggest Gavel to Gavel. Submissions are due no later than September 7, 2012. Thank you for your support!

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Special November 2012 election coverage starts today

August 16th, 2012

While a great deal of focus is being drawn to the 2012 presidential elections, November 2012 is set to be an incredibly busy election for state courts. Starting with this issue, Gavel to Gavel will spend the next 10 weeks to the election examining through its e-newsletter, the blog and YouTube channel the various items on the ballot.

The coverage starts with today’s issue of the e-newsletter, which lists the various items on the 2012 ballot. Each of those items will be explored on the blog starting next week.

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Posted in Election 2012, Special Edition

U.S. Virgin Islands: Intercepting tax refunds to pay for debts owed court, appeals straight to SCOTUS

August 2nd, 2012

The courts of the U.S. Virgin Islands, like other courts throughout the U.S., have fees, fines and other debts owed by parties. Like those courts and their respective legislatures, the idea of intercepting tax refunds to help offset these debts has recently come to the fore in the form of BR 11-1153. Under the proposal the Virgin Islands Bureau of Internal Revenue would be permitted to withhold payment of income tax returns to taxpayers who have outstanding financial obligations with the Superior Court of the Virgin Islands. The bill was formally introduced in November 2011 (as 29-0242) but held in the Legislature’s Rules and Judiciary Committee 3/29/12.

Another, more successful, piece of legislation was a BR 12-1524 involving direct appeals from the Virgin Islands’ Supreme Court to the U.S. Supreme Court. First, some background.

The Supreme Court of the Virgin Islands was created in 2004 and took on complete appellate jurisdiction for the territory in 2007. However, under the Section 23 of the Revised Organic Act of 1954, appeals from Virgin Islands’ courts went to the Third Circuit, rather than the U.S. Supreme Court directly (as is the case with appeals from courts of last resort in the U.S. states). The judges of the Third Circuit were to report to Congress every 5 years on whether the VI Supreme Court “has developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions.” The first report came out in 2012 and recommended just such a direct appeal route.

BR 12-1524 urges Congress to amend the Revised Organic Act to direct appeals from the V.I. Supreme Court directly to the U.S. Supreme Court, as occurs with the court of last resort in the U.S. states and D.C. It was approved on 6/27/12.

Other legislation of note over the last year included:

BR 11-0164: Increases penalties for assaults on judges.

BR 11-0227: Increases Magistrate and Small Claims Division civil jurisdiction from $10,000 to $25,000. In Public Safety Committee.

BR 11-0240 (introduced as 29-0163): Creates Judicial Branch Management Committee. Removes various powers from Supreme Court and Chief Justice. Gives committee power to adopt rules, establish policies, and take any other appropriate action pertaining to the operations of  the  Judicial  Branch  and  all  local  courts  within  the  Virgin  Islands  court  system. In House Rules and Judiciary Committee.

BR 11-0264: Provides for appeal from Magistrate Division of Superior Court directly to V.I. Supreme Court in some cases. Tabled indefinitely in Rules and Judiciary Committee 12/11/12

BR 11-0281 (introduced as 29-0297) : Permits Magistrate Division of the Superior Court of the Virgin Islands to hear all misdemeanors. Held in the Legislature’s Rules and Judiciary Committee 3/29/12 and 7/23/12.

 

 

 

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Posted in Jurisdiction, Rule Making Authority, Salary & Budget, Special Edition, Structure Changes

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NJ Governor vetoes bill to help pay for court technology & indigent defense; becomes 2nd state governor to veto court technology bills this year

August 2nd, 2012

Cross-posted to Court Technology Bulletin

Earlier this week NJ Governor Chris Christie’s veto of AB 763, a bill that would among other things raise various court fees to help pay for court technology, was delivered to the Assembly. The governor’s veto occurred in late June but wasn’t filed until July 30. The bill, as approved by the legislature, is similar to one vetoed by South Carolina Governor Nikki Haley earlier this year  and later overridden.

AB 763 provides the Supreme Court may, subject to limitations provided in the bill, adopt Rules of Court to revise or supplement filing fees and other statutory fees payable to the court for the sole purpose of funding: (1) the development, maintenance, and administration of a “Statewide digital e-court information system,” that incorporates electronic filing, service of process, document and case management, financial management, and public access to digital court records; and (2) Legal Services of New Jersey.

The veto now goes back to the Assembly. Its prospects are unclear: the original version passed the Assembly on March 2012 on a 64-14 vote. The Senate passed its version 24-11, shy of the 27 votes needed to override. The Assembly then re-passed the Senate amended version, but on a 48-30 vote; it would take 52 votes in the Assembly to override.

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Posted in Salary & Budget

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Northern Mariana Islands: tax credit for lawyers representing indigent defendants; constitutional amendment to decrease number of judges

August 1st, 2012

The question of how governments in general can help pay for indigent defense. In many locations, including the Northern Mariana Islands (NMI), funding for such defense is a part of the judiciary’s budget, but with cuts to the judicial and other budgets it has made payment difficult. One possible way to help alleviate the burden on the judiciary was HB 17-247, which would have converted any payments owed for indigent defense into a tax credit. The bill was referred to the House Judiciary & Governmental Operations Committee where it failed to advance before a February 10, 2012 legislative deadline.

Other proposals introduced in the last year, none of which advanced, included:

  • HB 17-248 Exempts Judiciary from requirement that 1% of all appropriated funds go to the office of the Public Auditor.
  • SLI 17-11, an amendment to the NMI Constitution to decrease the minimum number of Commonwealth Superior Court (i.e. trial court) judges from 4 judges to 3.

 

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Posted in Salary & Budget, Special Edition, Structure Changes

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