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North Carolina may ends Courts Commission, shift “oversight” over judiciary directly to legislature

May 16th, 2013

For two years, the North Carolina legislature has attempted to kill off its Courts Commission, but the latest version gives the legislature directly broad news powers over the courts.

The commission presently is made of 28 members: 7 appointed by the Governor, 7 appointed by the Chief Justice, and 14 legislators. In place since the 1970s, the commission has but one task:

It shall be the duty of the Commission to make continuing studies of the structure, organization, jurisdiction, procedures and personnel of the Judicial Department and of the General Court of Justice and to make recommendations to the General Assembly for such changes therein as will facilitate the administration of justice.

SB 851 of 2012, entitled the Boards & Commissions Efficiency Act of 2012, would have simply repealed  the authorizing legislation for the Commission.

The latest move comes in the form of HB 820 of 2013, the “Judicial Reform Act.” The bill revises numerous laws, for example it allows the Governor to select anyone to fill interim vacancies in District Courts (currently must selection from list given by local bar).

The bill also kills off the courts commission and transfers it to the Joint Legislative Oversight Committee on Justice and Public Safety to oversee courts. That committee has absolutely no members of the judiciary or executive appointees for that matter, consisting instead of 11 House and 11 Senate members.

HB 820 was approved by the House Government Committee on May 9.

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California Assembly Committee approves limits on court contracts

April 16th, 2013

Many trial courts contract out at least some services that would otherwise be performed by court staff. In California, the use of such contracts may be curtailed under AB 566 as approved by the Assembly Appropriations Committee last week.

Under the bill trial courts would only be allowed to contract “for any services that are currently or customarily performed by trial court employees” if a series of criteria were met, described in the bill’s official analysis as:

  • The contract may not be approved if, in light of the services provided by the trial courts and the special nature of the judicial function, it would be inconsistent with the public interest to have the services performed by a private entity
  • The court clearly demonstrates that the contract will result in actual, overall cost savings to the court, considering specified factors
  • The contract savings are not the result of lower contractor pay rates or benefits, provided the contract is eligible for approval if the contractor’s wages are at the industry standard and do not undercut trial court pay rates
  • The contract does not cause existing trial court employees to lose employment
  • The contract is awarded through a competitive bidding process
  • The contract provides for qualified staff, and the contractor’s hiring practicing are nondiscriminatory
  • The contract allows for immediate termination by the trial court, without penalty, for material breach
  • For contracts over $100,000, requires the contract to (i) disclose specified information, (ii) provide measurable performance standards; and (iii) require a performance audit and a cost audit be done and considered prior to any contract renewal
  • The contract is limited to no more than five years

The bill was approved on a 7-2 vote in the Assembly Appropriations Committee on April 9.

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Tennessee legislature debates: 1 court efiling vendor or multiple vendors authorized by AOC?

April 12th, 2013

As states move to efiling of court documents a dilemma can arise between individual counties seeking out their own efiling systems and the desire to have uniformity throughout a state. Tennessee confronted this situation in the 2013 legislative session and appears set to send its solution to the Governor.

HB 418 / SB 1050, as introduced (and discussed on the blog here), would have required a single system approved by the Administrative Office of the Courts (AOC).

Unless otherwise provided by law, on or after the effective date of this act, all courts in this state shall utilize the same system provider for operating an electronic court filing system. Such provider shall be determined by the administrative office of the courts.

Neither bill went anywhere.

Instead, late in the session an amendment was offered to replace the text of another bill set: HB 1226 / SB 1057. Under this language counties could use any system approved by the AOC and that met criteria and technical specifications set by the AOC.

Unless otherwise provided by law, all courts in this state that implement an electronic court filing system pursuant to Tennessee Supreme Court Rule 46 and Tennessee Rule of Civil Procedure 5B shall utilize only a system provider authorized by the administrative office of the courts. The administrative office of the courts shall establish technical standards with the goals of ensuring integrity of filings, assuring an environment that promotes uniformity and ease of filing, and providing the framework for future compatibility among e-filing solutions implemented by local and state courts. Nothing in this section shall require the administrative office of the courts to begin implementing a statewide e-filing system.

The Senate version passed the Senate April 10, the House then adopted the Senate bill on April 11.

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More movement on stripping Arkansas Supreme Court’s rulemaking authority; confusing nonbinding resolution passes, constitutional amendment still possible

April 11th, 2013

Ongoing efforts to strip the Arkansas Supreme Court of its rulemaking authority are continuing with yet another variation.

As I noted previously the impetus behind the efforts appears to be anger over state supreme court decisions finding that tort reform laws unconstitutionally abridge the supreme court’s power to “prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”

On April 2, the Senate adopted SR 30, a nonbinding resolution urging the Supreme Court adopt by court rule the tort reforms outlined in SJR 2.

What makes the matter confusing is precisely what version of SJR 2 the resolution references (there were four when the resolution was adopted). Moreover, 2 days after SR 30 was adopted by the full Senate, the author amended SJR 2 to simply strip the Supreme Court of rulemaking authority on mental anguish, pain and suffering, and similar claims and cap punitive damages as 5 times compensatory damages.

SJR 5 appears to be the main vehicle for the changes. The constitutional amendment is now in its fifth iteration. The latest, put forth via sponsor amendment last week:

  • Provides the legislature, by 3/5ths vote, may set awards of noneconomic damages
  • Provides punitive damages are equal to 5 times compensatory damages OR whatever level is set by a 2/3rds vote of the legislature
  • Provides the legislature is to “prescribe the rules of pleading, practice and procedure for all courts” but “shall delegate nonexclusive authority to the Supreme Court”
  • Provides that the Supreme Court has “no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts” except that which is expressly delegated by the legislature
  • Provides that any attempt by the legislature to override a rule in place as of January 1, 2015 requires a 3/5ths vote

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Arkansas: if the Supreme Court loses its rulemaking power, will it get merit selection in exchange?

April 1st, 2013

I’ve noted the ongoing fight over the Arkansas Supreme Court’s rulemaking authority, the citation to that authority to overturn tort reform laws, and the effort to constitutionally remove the Supreme Court’s power on this score. Coming up later today, however, are bills that tie merit selection into the equation.

First, some background.

When Arkansas voters approved Amendment 80 in 2000, they move the state away from partisan elections to nonpartisan ones, but kept open the possibility to a switch to merit selection for the appellate courts at some future time. Under Section 18 of Amendment 80, a simple majority of the legislature can refer the issue to the voters. Since 2000 there has been only one effort to even propose such a change: SB 744 of 2011 would have put the question of merit selection for the Court of Appeals only to voters. It went nowhere.

In the alternative, the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, which is where a series of placeholder bills set for a hearing today comes into play, all proposed by the same member of the Arkansas House.

HJR 1005 is straightforward, providing a merit selection system for state supreme court justices only and explicitly prohibiting the justices from engaging in partisan/party activity.

The other House bills are more ambiguous placeholders. The official text, not the preamble or synopsis but the text itself, of HJR 1012 and HJR 1014 echo language from SJR 5, a bill to remove the court’s rule making power with respect to civil claims and procedural law.

HJR 1012: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and amending Amendment 80 to the Arkansas Constitution and other constitutional provisions concerning the litigation of civil claims.”

HJR 1014: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and clarifying substantive and procedural law and rights under Amendment 80 to the Arkansas Constitution.”

It is not uncommon for such placeholder language to be replaced by operative text. For example SJR 5 as introduced read

The purpose of this joint resolution is to propose an amendment to the Arkansas Constitution concerning civil claims and court procedures.

The author then amended in the operative text to remove the Supreme Court’s rulemaking power.

The General Assembly shall delegate nonexclusive authority to the Supreme Court shall to prescribe the rules of pleading, practice and procedure and the rules of evidence for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.

All 4 bills (HJR 1005, HJR 1012, HJR 1014 & SJR 5) are up for a hearing before the  Arkansas Joint Committee on Constitutional Amendments later today.

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Citing complaints about tort reform, death penalty speed, and a conspiracy, Arkansas, Florida, and New Hampshire consider restricting or eliminating supreme court’s rule making power

March 27th, 2013

The majority of state constitutions grant the state’s court of last resort (usually called the “supreme court”) some degree of rule-making authority over practice and procedure in the state. This legislative year there have been several efforts to enact statutes that would effectively negate court rules, but in three states in particular there have been pushes to simply remove or curtail the supreme court’s power outright.

Arkansas Amendment 80, Section 3: “The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”

SJR 5 and SJR 6 effectively transfer the power over such rules to the legislature. News reports indicate the impetus are recent state supreme court rulings regarding a 2003 tort reform law.

SJR 5, as currently proposed after several author’s amendments, provides “The General Assembly shall delegate nonexclusive authority to the Supreme Court to prescribe rules of pleading, practice and procedure and the rules of evidence for all courts…”

It then adds a new paragraph to Amendment 80, Section 3 that details the extent of the legislature’s new power:

Except as expressly delegated by the General Assembly, the Supreme Court has no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts.  Notwithstanding the delegation of rulemaking authority, the General Assembly may enact laws that supersede the rules of pleading, practice, and procedure and the rules of evidence for courts.

Additionally, SJR 5 strikes another provision (Amendment 80, Section 11) that gives the supreme court the power to adopt rules to grant a right of appeal.

SJR 6 is even more restrictive and provides the General Assembly “may” delegate authority to the Supreme Court when it comes to rulemaking. It provides only that “The General Assembly shall prescribe the rules of pleading, practice ,  and procedure for all courts; provided that the General Assembly shall preserve the right of trial by jury as declared in this Constitution.”

Florida Article V, Section 2(a): “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.”

In 2000, the Florida legislature enacted the Death Penalty Reform Act of 2000 (HB 1A of the 2000 Special Session) a law to speed up executions in the state by setting time limits for court decisions and other activities. The state’s supreme court, citing Article V, Section 2(a) struck down the statute three months later in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000).

SJR 1740 would amend the state’s constitution to add Section 2(b):

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

HJR 7081, filed after SJR 1740, reads similarly

Notwithstanding subsection (a), the procedures for postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

New Hampshire Article 73-a: “The chief justice of the supreme court shall be the administrative head of all the courts. He 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.”

If Arkansas and Florida are notable in their novelty (the particular constitutional amendments are newly introduced this year) New Hampshire’s CACR 4 is notable for its repetition: three times in the last decade (2002, 2004 and 2012) voters have rejected efforts to give the legislature power over rulemaking by the state’s supreme court. CACR 4 of 2013, repeating CACR 39 of 2006, and CACR 20 of 2010, rather than adding a power for the legislature to amend or override rules of court instead strikes the sentence “The rules so promulgated shall have the force and effect of law.”

The author of CACR 4 asked it be rejected (see page 307 here) and replaced with a bill (such as HB 1193 of 2006 or  HB 1194 of 2011) claiming a conspiracy took place when the original Article 73-a was adopted in 1978. Under the theory the sentence “The rules so promulgated shall have the force and effect of law” was not on the ballot text on the 1978 ballot as Question 4, therefore the voters never approved it (a statutory change in 1979 ensured that all future ballot questions would include the entirety of the amendment).

The same member of the New Hampshire House was also a prime sponsor of HB 638 of 2013, which claimed a conspiracy that the “real” 13th Amendment to the U.S. Constitution was removed and that a different one (the one banning slavery) put in instead.

 

 

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Package of bills in Michigan House would rewrite state’s statutes to remove or alter requirements of paper documents, move the entire state’s judiciary towards electronic filing, documents, storage

March 20th, 2013

I mentioned earlier this month about Michigan’s HB 4064, which would effectively clear the way for e-filing in the state’s courts had been approved on a 105-3 vote. Michigan Lawyer’s Weekly reports (paywall) the bill “should be through the Senate and signed by Gov. Rick Snyder by summer.”

With HB 4064 on its way, the House is now set to take up a package of bills to effectively rewrite the state’s statutes regarding paper documents. To take but one example, currently law (MCL 600.1427) reads:

All writs, process, proceedings and records in any court within this state, shall be in the English language (except that the proper and known names of process, and technical words, may be expressed in the language heretofore and now commonly used), and shall be made out on paper, in a fair, legible character, in words at length, and not abbreviated; but such abbreviations as are now commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner.

HB 4412 accounts for the move to digital court records, electronically filed court papers, and electronic signatures on court documents thusly:

All writs, process, proceedings and records in any court within this state shall be in the English language, except that the proper and known names of process, and technical words, may be expressed in the language heretofore and now commonly used, and shall be made out in the manner and on any medium authorized by supreme court rules. If a signature is required on any document filed with or created by a court, that requirement is satisfied by an electronic signature as prescribed by supreme court rules.

HB 4412 is “tie-barred” (meaning for one to be enacted, they ALL must be enacted) with several other bills to make the transition to electronic courts in the state:

HB 4413 Allows for reproduction of digital court records and electronically filed court papers in all state courts.

HB 4414 Allows courts to provide electronic access to court records, pleadings, and practice. Provides for “enhanced access” for a reasonable fee.

HB 4415 Allows for digital court records and electronic filing of testimony given in probate court.

HB 4416 Allows for digital court records and electronically filing of probate court papers.

HB 4417 Provides for validity and enforceability of certain judgments. Allows a registry or a certified reproduction to serve as a complete replacement.

The entire package of bills has been assigned to the House Judiciary Committee.

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Bills to allow more guns into courthouses advance in six states

March 18th, 2013

A litany of legislation has been introduced in the 2013 to allow more people to carry firearms into U.S. state courthouses. Today I’ll be looking at the bills that have moved or are moving in this regard.

Arizona

Current law in Arizona leaves the question of carrying of weapons to the presiding judge of the particular court, with some exceptions. One in particular is that a peace officer or retired peace officer may only carry if a) they have the presiding judge’s permission or b) they are in the court to provide court security or respond to an emergency (A.R.S. § 38-1102)

HB 2516 Effectively removes the presiding judge’s authority in this area and specifically allows peace officers acting in an official capacity and carrying official peace officer identification to carry firearms in court. A floor amendment added a proviso: a presiding judge may establish rules or policies consistent with the new law enforcement carry authorization provision “for the protection of the court”.

The bill as amended was approved by the full House on February 28 and the Senate Judiciary Committee March 11.

Georgia

I mentioned a few weeks ago the situation in Georgia; by law, firearms are not generally permitted inside the state’s courthouses and there is a specific crime of carrying in a courthouse (O.C.G.A. § 16-11-127(b)(2)), but there are 16 categorical exceptions for people like law enforcement, certain judges, certain retired judges, prosecutors, etc.

HB 512 would effectively allow anyone with a concealed weapons permit to carry into a courthouse UNLESS the court provided security screening at the doorway. Specifically, it provides

A license holder shall be authorized to carry a weapon in a government building or courthouse where ingress into such building or courthouse is not restricted or screened by security personnel during the hours the government building or courthouse is open for business. A person who is not a license holder and who attempts to enter a government building or courthouse with a weapon shall be guilty of a misdemeanor. A person who enters or attempts to enter a government building or courthouse where ingress is restricted or screened by security personnel shall be guilty of a misdemeanor; provided, however, that a person who exits such building or courthouse or leaves such location upon his or her observation that such building or courthouse has security personnel restricting or screening ingress into such building or courthouse shall not be guilty of violating this subsection

HB 512 was met with surprise by judges, who have now come out in opposition. Despite the protest by judges, the bill was approved by the full House on March 7.

In addition to HB 512, HB 60 amends an existing categorical exemption and would allow all retired state and federal judges to carry. It was approved by the full House February 13.

Kansas

Like Georgia, Kansas provides a general prohibition and a specific crime of carrying of firearms into courthouses, with specific exception for certain judges and some others (K.S.A. § 21-6309 & 75-7c10).

HB 2055, echoing Georgia’s language, would effectively allow anyone with a concealed carry permit to enter a courthouse unless the court provides “adequate security” defined as screening at the front door.

“Adequate security measures” means the use of electronic equipment and personnel at public entrances to detect and restrict the carrying of any weapons into the state or municipal building, including, but not limited to, metal detectors, metal detector wands or any other equipment used for similar purposes to ensure that weapons are not permitted to be carried into such building by members of the public.

An amendment to re-establish the ban on courthouse carrying failed 60-61 on the House floor.

North Dakota

Existing law makes it a crime to carry a weapon into ”publicly owned or operated buildings”, including courthouses, with several exceptions for certain judges, law enforcement, etc. (North Dakota Code 62.1-02-05)

Like the other bills, HB 1366 would effectively allow anyone with a concealed carry permit to enter a courthouse.

Unlike the Georgia and Kansas bills, there is no exception for instances where the court provides screening at the door. Also unlike the other bills, this one would appear to allow out-of-state residents to carry in to North Dakota courthouses.

This section [prohibiting carrying into "publicly owned or operated buildings"] does not apply to…An individual possessing a valid concealed weapons license from this state or who has reciprocity under section 62.1-04-03.1 authorizing the individual to carry a firearm concealed…

HB 1366 was approved by the full House February 27 and has a hearing before the Senate Judiciary Committee March 19.

Another North Dakota bill (SB 2145) would allow all municipal court judges in the state to carry firearms into their courthouses (currently, only municipal court judges who are licensed attorneys may do so). SB 2145 was approved by the full Senate on January 23 and is set for a hearing before the House Judiciary Committee on March 20.

Oklahoma

Existing law (21 Okl. St. § 1277) provides a general ban on carrying firearms into a “structure, building, or office space which is owned or leased by a city, town, county, state, or federal governmental authority for the purpose of conducting business with the public” such as a courthouse.  There are categorical exemptions for judges, law enforcement, etc.

HB 1723 as introduced expands the list of judges who may carry into a courthouse to include municipal court judges. As amended however, the bill goes farther, allowing peace officers on active duty to carry their weapons anywhere in the state and making other changes to where and when off-duty peace officers may carry. The bill, as amended, was approved by the full House March 14.

Wyoming

State law (Wyo. Stat. § 6-8-104) provides a concealed carry permit does not allow a person to carry into “any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in the courtroom”. There is no specific penalty for violation of this provision. In 2012, a local judge issued an administrative order banning all weapons from the courthouse, not just his courtroom.

HB 216, was introduced to make it a felony to carry a firearm into a courtroom, provides a presiding judge may carry a weapon into courtroom and waive the prohibition on carrying in the courtroom. The bill, however, makes no mention of carrying into a courthouse and proponents are  clear they intended the bill to continue to allow for courthouse carrying.

 

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For fourth time in five years, Florida bills would provide additional funding for courts, but only if judicial immunity is retroactively ended and judicial disciplinary commission changed

March 14th, 2013

I’ve mentioned the past several years Florida’s efforts to tie funding for the courts to changes in either merit selection or court structure. For example at one point an effort to split the state’s supreme court into civil and criminal courts, an move all Democratically appointed justices of the current court to the new criminal court, was tied with a constitutionally guaranteed 2.25% appropriation of general revenue funds.

Now for the the 4th time in 5 years, a push is on to pay for the state’s courts only if judicial immunity is ended and the state’s judicial disciplinary commission processes and membership is changed.

All the bills in question (see below) provide for the creation of a Fiscal Stability Trust Fund to be created and funded with an automatic appropriation of 1% of the state’s budget to be controlled by the state’s Supreme Court in order to pay for running the judiciary.

In the 2009 version of the bill, the trust fund and changes to the state’s courts were in the same bill; since 2010 the bills have been separated with a link: passage of the additional funding for the courts would come only when the other bill was enacted.

In exchange for funding, the courts would be required to agree to a retroactive elimination of judicial immunity in a variety of specified contexts dealing with court proceedings. Additionally, the Judicial Qualifications Commission (JQC) and specific JQC investigation panels must include at least 5 “common citizen electors” as a staff committee, none of whom may be “officers of the court” and who must prepare a separate report on the investigation that is to be made publicly available. Both the state courts system in general, and the JQC in particular, would be subject to an immediate audit by the state’s Auditor General and the Office of Program Policy Analysis and Government Accountability conduct full audit review of commission, a review to be repeated every two years.

This years bills have been referred to their respective Judiciary Committees.

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Citing need to speed up executions, Florida bills would remove state’s supreme court rulemaking power regarding death penalty cases

March 8th, 2013

Attacks on the Florida Supreme Court’s rule making authority in the last several years have taken on the issue broadly. In particular, several bills in the 2011/2012 session would have provided the legislature could override such rules by a simple majority (now required 2/3rds). SJR 1740, introduced this week, however, takes on a new tack and specifically limits the court’s power with respect to death penalty cases.

Florida Constitution Article V, Section 2(a) reads:

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.

SJR 1740 would add a new subsection (b) to read

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

Just such a general law (SB 1750) was filed along with SJR 1740. SB 1750 details the express purpose for the bill and amendment is to overturn a decision by the state’s supreme court striking down a prior legislative effort to speed up executions (HB 1A of the 2000 Special Session)

WHEREAS, in order for capital punishment to be fair, just, and humane for both the family of victims and for offenders, there must be a prompt and efficient administration of justice  following any sentence of death ordered by the courts of this state, and…

WHEREAS, the Death Penalty Reform Act of 2000, chapter 2000-3, Laws of Florida, was declared unconstitutional by the Florida Supreme Court three months after becoming a law in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000), as being an encroachment on the court’s “exclusive power to ‘adopt rules for the practice and procedure in all courts,’” …

Both SJR 1740 and SB 1750 have been assigned to the Senate Judiciary Committee.

 

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