1. Deletes the existing provision of law that states that the Judicial Council shall retain the ultimate responsibility to adopt a budget and allocate funding for the trial courts and perform specified activities that best assure their ability to carry out their functions, promote implementation of statewide policies, and promote the immediate implementation of efficiencies and cost saving measures in court operations, in order to guarantee equal access to the courts.
2. Deletes existing provisions which empower the Judicial Council to authorize a trial court to carry unexpended funds over from one fiscal year to the next, and instead provides that unexpended funds shall be the funds of that trial court, which may carry those unexpended funds over from one fiscal year to the next. Prohibits those funds from being reallocated or redirected without the consent of the management of the trial court.
3. Requires the Judicial Council, or its designee, to allocate 100% of the funds appropriated for support of trial court operations according to each court’s share of statewide operational funding. Provides that all funds, once allocated, are funds of the trial court, and authorizes courts to transfer funds between functions, line items or programs as directed by management of the trial court.
4. Deletes existing provisions relating to the manner in which the Judicial Council allocates funding for trial court operations, and instead requires that the amount allocated to each trial court from the amount appropriated for trial court operations be equal to the pro rata share of the prior fiscal year’s adjusted base budget, except as provided.
5. Requires the Legislature, based on the information submitted in the Governor’s proposed budget, and prior to the allocation of funds to each local trial court, to specify, in each annual Budget Act, the funding amounts to be allocated for programs of statewide concern from the total funds appropriated for trial court operations by the Legislature.
6. Prohibits the Judicial Council, or its designee, from withholding or expending any portion of the total funds appropriated for trial court operations by the Legislature for any statewide information technology or administrative infrastructure program that was not identified in the annual Budget Act, unless the Judicial Council, or its designee, first obtains the written approval of 66 2/3% of a proportional representation of all local trial courts as determined by the number of judges in each court.

Introduced in 2011, the bill has been stalled since May of last year, however time is running out. The state’s constitution (Art. IV, Sec. 10(c)) requires bills introduced in the first year of a legislative session be adopted by its originating house by January 31 of the second year. This is confirmed by the Assembly’s own deadline calendar as being Tuesday of next week.

Both bills address the impact on retirement benefits for those judges already in retirement but called back into temporary service by the Chief Justice. In sum, the bills would provide such temporary assignment does not affect eligibility for benefits under the Florida Retirement System.

The bills then, in differing ways, alter the composition and membership of the state’s judicial nominating commissions.

HB 971, on the House House Judiciary’s Civil Justice Subcommittee agenda for January 11, removes a requirement that attorneys nominated by the Board of Governors of The Florida Bar and appointed to judicial nominating commission(s) by the governor be “engaged in the practice of law”. The bill then specifies appointments to a judicial nominating commission, except an appointment to fill a vacant, unexpired term, are for a set 4 years and specifies that acts of judicial nominating commissions must be made with concurrence of majority of its current members.

SB 1570 goes even further in changing merit selection in the state. It provides that, with the exception of members selected from a list of nominees provided by the Board of Governors of The Florida Bar, a current member of a judicial nominating commission appointed by the Governor serves at the pleasure of the Governor. Moreover, the provision appears to be retroactive (“Notwithstanding any other law, each current member of a judicial nominating commission appointed by the Governor, other than those selected from a list of nominees provided by the Board of Governors of The Florida Bar, shall serve at the pleasure of the Governor”) allowing current governor Rick Scott to remake the state’s judicial nominating commissions at any time. In this, it nearly parallels a similar 2011 effort (HB 7101) passed on a party line vote in the House that would have made the terms of all commission members the same as the Governor.

Moreover, even those members of the commissions nominated by the Board of Governors of The Florida Bar could more easily be removed. SB 1570 repeals a provision that commission members may only be removed for cause “pursuant to uniform rules of procedure established by the Executive Office of the Governor”.

SB 1524 requires a retroactive elimination of judicial immunity in a variety of specified contexts dealing with court proceedings.  Additionally, it expands the Judicial Qualifications Commission (JQC) and requires JQC investigation panels 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.

Additionally, SB 1524 requires the Supreme Court create a plan “promoting civics for residents of this state, together with education concerning the judicial branch in order to develop trust and confidence in the state’s judicial system.” It also creates unified family courts, teen courts, drug courts and mental health courts in each judicial circuit.

If SB 1524, “or similar legislation” is passed, the provisions of SB 1526 would/could go into effect. That bill creates a Fiscal Stability Trust Fund to be administered by the Supreme Court and into which would be placed an automatic, guaranteed 1 percent of the state’s General Revenue Fund. The bill also declares “the judicial branch of state government shall be held harmless in years of fiscal deficits in the state as a matter of public safety” and permits revenues in the Fiscal Stability Trust Fund to remain in the fund at the end of every fiscal year.

Both bills have been prefiled in the Senate, with no committee assignments as of yet.

The first efforts to alter the state’s merit selection system have now been filed. SJR 13 of 2012 repeats almost verbatim SJR 1 of 2005, a previous effort to change merit selection that was approved by the state’s Senate in that year. The constitutional amendment:

• Renames the judicial nominating commission as the commission on judicial nominations and qualifications.
• Provides that one commission member will be selected by attorneys licensed in Indiana, one commission member will be appointed by the speaker of the house of representatives, and one commission member will be appointed by the president pro tem.
• Requires at least one commission member appointed by the governor to be an attorney
• Prohibits a person who is a registered lobbyist from serving on the commission.
• Provides for the governor to fill a vacancy on the supreme court or the court of appeals from nominees recommended by the commission on judicial nominations and qualifications, subject to confirmation by the senate.
• Provides that a justice of the supreme court and a judge of the court of appeals serves until July 1 of the tenth year after the justice’s or judge’s appointment is confirmed by the senate or the justice’s or judge’s retention in office is confirmed by the senate.
• Provides that if a justice or judge wants to serve a new term, the justice or judge must apply to the senate for retention.
• Specifies that a judge or justice will be retained, unless: (1) the judge or justice does not apply to the senate for retention; and (2) at least 60% of the members of the senate vote against retention.

While SJR 13 would make changes to the state’s merit selection system, SJR 14 goes even further, ending appellate merit selection, restructuring the state’s judicial disciplinary committee (the commission on judicial qualifications), and allowing judicial candidates to speak, participate in partisan activities, and act like candidates for other offices. Specifically, it provides:

• End merit selection and replaces with gubernatorial appointment with senate confirmation.
• Requires appellate judges receive 60% of retention election vote to remain in office.
• Provides that a law, judicial rule, decree, or order may not abridge the freedom of a judge, lawyer, candidate for judicial office, or any other person from: (1) speaking, writing, or otherwise expressing the person’s views freely regarding a political issue, political party, or candidate for office, including a candidate for a judicial office; or (2) making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office.
• Specifies the 3 members of the state’s commission on judicial qualifications chosen by the Governor may not be attorneys.
• Grants the legislature alone the power to set terms for commission members, their compensation, and the manner they are elected.

Minnesota’s Senate considered the issue in the form of hearings conducted on November 17 before its Committee on Judiciary and Public Safety. At issue was HB 1568, the latest in a series of bills introduced in the last several years that would have allowed the Board of Judicial Standards to examine the merits of judicial decisions and used the Boards disapproval or disagreement as the basis for disciplinary actions against the jurist. Several Senators who spoke in favor of the bill did so with an eye towards using the judicial disciplinary process as a means to put pressure on the courts to rule certain ways or to provide a free or low cost alternative to an appeal.

Sen. Michael Jungbauer (R): “I’ve heard many, many issues about judges and cases and people always tell me they feel just this empty feeling when a judge rules something and they disagree with it but maybe don’t have the money or the wherewithal to bring it somewhere else.”

Sen. Dave Thompson (R): “The judiciary has taken on a much more significant role in our society that it should have through asserting itself overly aggressively in the area of judicial review and other things…So the problem we have here is judges are too significant, which is why how we select them and how we discipline them and how we review their performance has become far more important that it ought to be and until the judiciary is willing to see its role as less significant in our society and until legislatures are willing to do the politically difficult thing and ask judges about the decisions that they make, we’ll never solve the problem.”

The video below is from that November 17 and includes those portions that discussed changes to the Board and its role/function.

• The state’s Court of the Judiciary, the judicial disciplinary body for Tennessee
• Judicial Nominating Commission
• Judicial Performance Evaluation Commission

Media coverage indicated legislators intended on becoming very involved in all these bodies in the 2012 session.

The afternoon session focused on:

• Tennessee Residence Commission
• State Capitol Commission
• Department of General Services
• Tennessee Emergency Management Agency and Related Compacts

• Judicial Issues (specifically, Mandatory Retirement Age and Incumbency Designation on the Ballot)
• Judiciary Election Run-Offs for More Than Two Candidates
• History of the Judicial Standards Board and Code of Judicial Conduct & Ethics

Each section will receive 45 minutes of discussion (part of the discussion will be reserved for hearing a historical context for each issue area) followed by 15 minutes of Q & A from members.

The Mandatory Retirement/Incumbency Designation portion seems targeted at SB 627 (prior blog post here). That bill would change the mandatory retirement age from last day of the month judge turns 70 to  “official year of the state in the first even-numbered year during which a judge has attained 70 years of age” while repealing the provision in law that puts the word “incumbent” next to the name of a judge running for re-election.

As I noted previously, legislative interest in the Judicial Standards Board and Code of Judicial Conduct & Ethics has reached a high pitch in the Minnesota legislature over the last several years, with efforts introduced to (among other things) have a legislatively-created Code of Conduct in addition to, or in lieu of, the judicially-created one, and to remove all judges/lawyers from the Judicial Standards Board.

According to this post from Gavel Grab, the Tennessee legislature is considering a legislative enactment regarding judicial recusal. For prior blog posts on events in Tennessee, click here and here. For a review of all recent efforts to make changes to Codes of Judicial Conduct, see Issue 5:31.

The Gavel Grab post cites this Knoxville News Sentinel article, as follows:

Legislators are eyeing repeal of the state law that allows keeping the admonishments wayward judges receive secret and imposing stricter rules concerning when judges must bow out of a case when accused of a conflict of interest.

…

Changing the rules for recusal of a judge, which are now established by the state Supreme Court, also is criticized on policy grounds. But it could also be a violation of the state constitution, according to Chris Craft, presiding judge of the Court of the Judiciary (COJ).

As I noted in my article “’The Legislature Must Save the Court From Itself?’: Recusal, Separation of Powers, and the Post-Caperton World” in the Drake Law Review, it is not unheard of for legislatures to try and impose by law recusal standards for state courts. Moreover, it is also not unheard of for the same courts to strike down the laws as a violation of the state constitution. I suggested four possible outcomes: Cooperation, Co-option, Comity, and Conflict.

Missouri had a similar instance in the late 1990s which was decidedly in the Conflict category. There, the legislature tried to expand a 1978 recusal statute (Mo. Ann. Stat. 105.464).

The expansion was struck down by the state’s Supreme Court on the grounds that its “‘general superintending control over all courts and tribunals’” and power to “‘establish rules relating to the practice, procedure, and pleading for all courts,’” rendered the expansion a “violat[ion of] constitutional principles concerning separation of legislative and judicial functions.”  (Weinstock v. Holden, 995 S.W.2d 408, 410–11 (Mo. 1999) (per curiam)).

A few weeks after Weinstock was handed down, the legislature adopted a repeal of the expansion, but kept in place the original 1978 statute that imposed criminal sanctions for judges who heard cases in which they were related to a party.

So, will Tennessee end up in Cooperation, Co-option, Comity, or Conflict? We’ll see when the legislature comes back on January 10 or even earlier if a bill is filed before session starts.

Despite the adoption of HR 7 in March, and a July warning that the chair of the committee was considering ending life tenure for the state’s judges, there are no indications of any hearings having yet to take place on the issue of impeachment.

Instead, the House Judiciary Committee met September 13 to examine two bills:

• HB 151 requires the executive council hold a public hearing prior to its confirmation of the appointment of a marital master. It requires the governor and council review the performance of a marital master and hold a public hearing prior to his or her reappointment. The bill further clarifies that reappointed marital masters shall serve for 3-year terms.
• HB 599 changes the authority for recommending marital masters for appointment and reappointment from the administrative judge of the judicial branch family division to the supreme court or its designee. It requires marital masters be reappointed for 5-year terms in the same manner in which they were appointed.

The latest comes from the calendar released by the House Clerk’s office for September and October. The October 25 meeting of the House Judiciary committee will include “executive sessions” (read: votes) on the following:

• CACR 11 (Constitutional Amendment) Sets 5 year terms for judges (currently, they serve during good behavior until age 70).
• HB 151 Requires the executive council hold a public hearing prior to its confirmation of the appointment of a marital master. Requires the governor and council review the performance of a marital master and hold a public hearing prior to his or her reappointment. Clarifies that reappointed marital masters shall serve for 3-year terms.
• HB 315 Declares an “impeachable offense” against a judge, marital master, or judicial officer their appointment of an attorney or commitment of public funds for an attorney in connection with the representation of any person, whether indigent or not, except as specifically authorized by the New Hampshire constitution, federal or state law, or mandate of the New Hampshire supreme court. Provides such appointment shall be made only upon application of the person making the request and consistent with rules adopted by the New Hampshire supreme court. Prohibits appointment in any court other than the court in which the appointment is made, except to the extent necessary to preserve or perfect an appeal as mandated by the New Hampshire supreme court.
• HB 344 Establishes a judicial performance review commission and requires each district court and superior court judge and marital master to be reviewed by the commission every 3 years.
• HB 599  Changes the authority for recommending marital masters for appointment and reappointment from the administrative judge of the judicial branch family division to the supreme court or its designee. Requires marital masters to be reappointed for 5-year terms in the same manner in which they were appointed.

What is making it onto the ballot instead are bits and pieces of HJR 7111: Senate confirmation of Supreme Court justices (after merit selection by governor), restrictions on Supreme Court’s rule making authority, etc. (details here).

At the time I projected a possible appearance on the January 2012 Republican presidential primary ballot and that such a move was successfully achieved in the recent past. While a bill for a January 2012 vote was not formally introduced in the regular 2011 session before it adjourned, a Democratic amendment to HJR 7111 to explicitly require the bill appear on the November 2012 ballot was rejected on a party line vote.

Making things even more “curiouser and curiouser” now is a bill (HB 1355), signed into law last month. Because Florida is under the Voting Rights Act, the law was submitted to the Justice Department for “preclearance” earlier this month. Instead of keeping the current primary date of the last Tuesday in January and rejecting several proposals to change it to some other date specific, HB 1355 (details)

• sets up an earliest (first Tuesday in January) and latest (first Tuesday in March) date and
• creates a “Presidential Preference Primary Date Selection Committee” to set the date on or before October 1, 2011

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).

The legislature comes into regular session January 10, 2012. Even if they somehow adopted and got the governor to sign a special-election-for-HJR 7111 bill, it would still be beyond the last possible Presidential Primary Date (January 10, 2012 + 90 days = April 9, 2012).

Thus, to get HJR 7111 onto the GOP primary ballot would probably mean a special session of the legislature adopting a special-election-for-HJR 7111 bill sometime between October 5 and December 7, 2011. Those dates are not unheard of: the Florida legislature called itself into special session December 3-8 of 2009, was called into session by the Governor  July 20, 2010, and called itself back in just after its normal organizational session for a special session November 16, 2010.