Archive for the ‘Rule Making Authority’ category

« Older Entries
Newer Entries »

Tennessee Government Operations Joint Subcommittee on Judiciary and Government examined judicial selection, judicial discipline

November 16th, 2011

Tennessee’s Government Operations Joint Subcommittee on Judiciary and Government met on November 15 to examine a variety of issues already discussed in previous interim meetings. The morning session examined:

  • 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

2 comments »

Posted in Interim Activities, Rule Making Authority, Selection

Tags:

Minnesota Senate Committee on Judiciary and Public Safety to examine judicial selection, conduct codes, retirement, and incumbency designation

November 16th, 2011

Minnesota’s Senate Committee on Judiciary and Public Safety is set to examine a series of issues related to the courts on November 17. Among them:

  • 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.

 

1 comment »

Posted in Interim Activities, Rule Making Authority, Selection

Tags:

Tennessee: Constitutional showdown over recusal statutes?

October 3rd, 2011

Greetings TBA Today readers!

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.

No comments »

Posted in Other, Rule Making Authority

Tags:

New Hampshire House Judiciary Committee to vote October 25 on changing judicial terms, selection & expanding list of “impeachable offenses” against judges

September 16th, 2011

Earlier this year, the New Hampshire House voted to authorize (HR 7) its Judiciary Committee to investigate impeaching Marital Master Phillip Cross “and/or any justice of the New Hampshire Superior Court.” (prior posts on subject here, here, and here).

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.

No comments »

Posted in Interim Activities, Jurisdiction, Qualification & Terms, Rule Making Authority, Selection

Tags:

Florida: So when is HJR 7111 appearing on the ballot? And why does it matter?

June 20th, 2011

I noted several weeks ago the potential machinations behind the voting on the heavily amended Florida HJR 7111. A recap: the bill originally was going to split the Florida Supreme Court in two, put the Democratically-appointed justices in the new criminal division, and allow GOP-appointed justices control over the civil division.

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.

No comments »

Posted in Other, Rule Making Authority, Selection

Tags:

Florida Governor vetoes $400,000 “study” of splitting state’s supreme court

June 2nd, 2011

As readers know I have been tracking extensively the recent efforts by the Florida House Speaker to split the state’s supreme court. When it became clear his plan (HJR 7111) was not going to make it, a last minute budget amendment was added to provide a $400,000 “study” of the items in HJR 7111 and related bills. It was anticipated this study would reach a particular conclusion to the Speaker’s liking, giving the basis for another push for HJR 7111 or something like it in the 2012 session.

As our friends at Gavel Grab noted (here and here) the study was widely panned and the governor was urged to line-item veto the item. Gov. Rick Scott last week indeed vetoed the $400,000 study, noting in his veto message

I support the Legislature’s concept of reviewing the efficiency and structure of the administration of the Supreme Court, the nominating commissions and the Judicial Qualifications Commission and the effectiveness of the judicial merit retention system. However, I believe that during these tough economic times, we cannot afford to spend $400,000 on this otherwise worthwhile review.

The veto could be over-ridden, but is is exceptionally unlikely. As an article in Businessweek noted in 2010, Florida lawmakers have not had a successful override in 12 years and have only had two overrides in the last 24 years.

1 comment »

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

Tags:

Texas House Committee hears testimony on bill to require cost-benefit analysis for rules of court changes

May 3rd, 2011

Back in December, I noted an interesting piece of legislation in Texas that would require the Texas Supreme Court conduct a cost-benefit analysis of proposed rules prior to adoption or amendment by the court. HB 352 would require the analysis for a host of rules, such as civil and criminal procedure and bar discipline.  Unlike some states which have constitutionally derived rule making authority that cannot be altered or interfered with by the state legislature, the Texas Supreme Court may  “promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.”

The House Committee on Judiciary & Civil Jurisprudence conducted a hearing on the bill on April 28 (video here, running from about six minutes from 2:09:00 to about 2:15:00).

The bill’s author, Rep. Eddie Rodriguez, started off the testimony, citing the potential cost any change made to the state court rules on judges, attorneys, their clients, and the public in general. Rep. Rodriguez likened the measure to the  fiscal notes attached to pieces of legislation and stated it would encourage discipline on the part of the state’s courts by forcing an assessment on the “true cost of public policy.”

Next up was Julie Oliver of the Texas Coalition on Lawyer Accountability, a group created last year “standing against those trying to weaken lawyer ethical rules” in support of the bill. Oliver started by reading a statement purportedly from Jim McCormick, a former chief disciplinary counsel for the State Bar of Texas (see this article about McCormick from Texas Lawyer, here). Like Rep. Rodriguez, McCormick’s statement again made the parallel between HB 352 and the fiscal notes associated with legislation and that such information was needed so all interested persons or those affected, beyond lawyers, would be able to assess the impact of a proposed rule. Oliver then spoke personally, noting her coalition’s support.

Kennon Peterson, a rules attorney for the Supreme Court of Texas, registered but did not testify on the bill. Although she never spoke, the committee chair identified her as “neutral on the bill” and available as a resource witness on the bill.

The chair left the bill pending in committee.

No comments »

Posted in Rule Making Authority

Tags:

Florida Senate rejects effort to split supreme court, does approve modified amendment on partyline vote

May 3rd, 2011

HJR 7111 cleared the Florida Senate on Monday, but not without major revision. Below is a recap of what is now in and out.

Out

Jurisdiction & Structure Changes: Gone is any reference to expanding the state’s Supreme Court from 7 to 10 and dividing them into two panels of five (civil and criminal) each with its own chief justice.

Salary & Budget: Gone, too is any reference to a constitutional guarantee of a “total appropriation of all fund sources to the judicial branch [] equal [to] no less than 2.25 percent of the total general revenue funds appropriated in the general appropriation bill referred to in Section 19(b) of Article III.”

In

Selection: HJR 7111 as Senate-amended would keep the state’s judicial nomination commissions but require for Supreme Court justices only nominees selected by the governor be subject to senate confirmation. There is a time limit: if the Senate fails to confirm within 90 days the individual is deemed confirmed.

Rule Making: The legislature would be able to repeal any rule adopted by the Supreme Court by a majority vote (currently, requires two-thirds of legislature). The court could readopt the rule, so long as it was in conformance with the expressed policy expressed in the repeal bill or resolution. If the rule was repealed a second time, the Supreme Court could not readopt it without legislative permission.

Other: Removes the power of the Supreme Court and District Courts of Appeal to name its Clerks and Marshals. Removes the Governor’s power to ask the judicial qualifications commission for all information investigations/complaints against judges. The commission would still be obligated to turn such information over, on request, to the House of Representatives. All information so turned over would remain confidential during any investigation and until such information is used in the pursuit of any impeachment.

Even with the changes, the Senate adopted HJR 7111 on a straight party line vote with all Republicans in favor. Yet even this support was a courtesy to House Speaker Dean Cannon. The Miami Herald quotes GOP senator Paula Dockery as saying “I would prefer to have no bill, but this bill represents a good compromise” while naming several other Republican Senators who had “stood firm against the court split.”

With the legislature set to adjourn Friday, several questions remain:

  1. Will the modified bill be acceptable to House Speaker Cannon? Early indications are yes. (Cannon told the Miami Herald “It’s a win. It’s absolutely a win” after the Senate vote.)
  2. What about SB 2170 and HB 7101, the bills to remove the state bar’s role in judicial nominating commissions? SB 2170 remains pending on the Senate Special Order Calendar, while HB 7101 is in the Senate Judiciary Committee.
  3. Which ballot will HJR 7111 appear on? I noted last week there is the possibility there will be an effort to get it on the January 2012 Republican presidential primary ballot, and that such a move was successfully achieved in the recent past. However, so far it does not appear a bill for a January 2012 vote has been formally introduced. It could come up in any fall special session called, so long as it is adopted and in the hands of the custodian of state records 90 days prior to the election (January 31, 2012 – 90 days = November 2, 2011).

 

1 comment »

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

Tags:

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

April 29th, 2011

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

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

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

No comments »

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

Tags:

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

April 29th, 2011

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

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

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

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

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

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

No comments »

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

Tags: