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Showdown in California Assembly over Judicial Council’s budgetary power over state’s courts set for next week

January 27th, 2012

Angst and anger at the California Administrative Office of the Courts and the constitutionally-established Judicial Council will be coming to a head next week in the state’s Assembly. Under AB 1208, much of the Judicial Council’s power over local court budgeting and policy would be curtailed or ended with local courts given a veto over budget issues. According to an analysis written by the Assembly, AB 1208

  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.

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Posted in Rule Making Authority, Salary & Budget, Structure Changes

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Florida House and Senate bills tie judicial retirement benefits & funding to changes to state merit selection system

January 10th, 2012

I mentioned yesterday the Florida Senate plan to tie funding for the state courts to a revocation of judicial immunity and changes to the state judicial disciplinary commission. Carrying on the linkage pattern is HB 971 and the similar SB 1570. Rather than tying funding to allowing for judges to be sued personally for their decisions, the bills tie judicial retirement benefits to changes to the state’s merit selection system.

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”.

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Posted in Rule Making Authority, Salary & Budget, Selection

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Florida bills would provide additional funding for courts, but only if judicial immunity is retroactively ended and judicial disciplinary commission changed

January 9th, 2012

Ever since the 2006 effort in South Dakota to end judicial immunity and allow for civil and criminal prosecution for judicial decisions, called bluntly enough JAIL4Judges and defeated 89%-11%, legislators have taken an interest in similar efforts. Simultaneous with this interest has been the ongoing state budgetary crises. For the second time in as many years, Florida legislators are looking to consolidate both issues (see here for my post on the 2010 effort).

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.

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New Mexico considers special judicial nominating commission fund

January 6th, 2012

Judicial nominating commissions are a, if no the, defining element of merit selection systems such as the one in New Mexico. Many states simply establish that the funds for the commissions will be provided by the legislature to the judicial branch. For example, Colorado’s C.R.S. 13-3-103(2) reads,

The mileage and expenses incurred by members of judicial nominating commissions and members of the commission on judicial discipline shall be paid from funds appropriated to the judicial department of the state. Each commission member shall keep an account of the mileage and all moneys actually paid out for personal maintenance expenses and shall file a verified itemized statement thereof with the court administrator, who shall audit the same and submit it to the state controller. The state controller shall draw a warrant therefor, which warrant shall be paid by the state treasurer out of the appropriate fund.

New Mexico, however, is considering creation of a special fund to pay for that state’s judicial nominating commissions. SB 24 would put the new fund under the administrative control of the state’s Administrative Office of the Courts. A key element would be that money in the new fund would not revert to the state’s general fund every year, but would be subject to appropriation by the legislature. In addition, SB 28 appropriates $50,000 to the fund for FY 2012 to start the new fund off.

The bill has been prefiled in anticipation of the January 17 start of the New Mexico legislature’s 2012 session.

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Posted in Salary & Budget, Selection

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Wisconsin Assembly considers ending non-lawyer judges, increasing municipal court fees

December 8th, 2011

I previously mentioned the December 15 meeting of the Wisconsin Assembly’s Committee on Judiciary and Ethics and its consideration of a plan to change the way the state’s chief justice is selected. Several other court-related bills are on the agenda that are of particular note.

Two bills focus on changes to the state’s municipal courts. In 2010, the courts were restructured and their manner of operation much tightly controlled under SB 383 of that year (for example, judges must wear black robes during proceedings and store all records in the office of the court clerk or in another appropriate facility designated by the municipal governing body). An amendment offered at the time (Assembly Amendment 2) would have required all municipal court judges elected or appointed after a certain date be attorneys. The amendment was introduced but never voted on in committee.

AB 101 of 2011, introduced by the same member of the Assembly who introduced Assembly Amendment 2 to SB 383 of 2010, replicates the amendment’s language and specifies January 1, 2011 as the date beyond with municipal court judges elected or appointed must be attorneys.

AB 285 increases maximum court fees assessed for ordinance violations in municipal courts from $28 to $38.

Other items on the December 15 agenda:

  • AB 168: resolution of claims against the state for wrongful imprisonment of innocent persons and exempting from taxation certain amounts an individual receives from the claims board or legislature
  • AB 249: privileged communications to a school guidance counselor, school teacher, or teacher’s aide
  • AB 284: eliminating the right to refuse probation
  • AB 391: creating the Uniform Foreign Country Money Judgments Recognition Act
  • SB 127: aggravating factors for a court to consider when sentencing persons

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Posted in Interim Activities, Qualification & Terms, Salary & Budget

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Rhode Island overhauls judicial, other retirement systems

November 30th, 2011

The last few years have seen massive changes to public retirement systems in general, and judicial ones in particular. I dedicated an entire week to the subject earlier this year, most focused on ending defined benefit pensions/plans and replacing them with defined contribution programs. The most recent big move was in Rhode Island earlier in November. HB 6319/ SB 1111 converts the Judicial Retirement Benefits Trust and the other state and local employee retirement systems into what media reports describe as a “hybrid” system, adding elements of defined contribution to the existing defined benefit plan(s). The bill was signed into law November 18 and already there are government websites dedicated to describing how the new program will be put into effect, including a special FAQ for judges, which includes a table (below the fold).

» Read more: Rhode Island overhauls judicial, other retirement systems

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As expected, push to remove constitutional protections for New Jersey judicial salaries introduced

November 15th, 2011

I mentioned several weeks ago the effort to remove the protections for judicial salaries found in the NJ constitution, a response to the hue and cry from the state’s governor when a court struck down his plans to alter the retirement and other judicial benefits because of these provisions.

The ideas have now been introduced as ACR 208 and SCR 241. Although the text of the constitutional amendments are not yet ready, the legislature’s bill tracking system indicates they are intended as “clarifying Legislature’s authority to pass laws requiring contributions from justices’ and certain judges’ salaries to help fund employee benefits.”

It is unclear how far, if at all, these efforts will get. The House and Senate are both Democratically controlled, while the bills’ sponsors are Republicans. Moreover, legislative leadership has indicated no interest in pursuing these bills (h/t Gavel Grab).

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Michigan House pushing plans to tie state funding for local courts to performance standards set by state court administrative office

November 3rd, 2011

Michigan, like many states, has a dual system of funding for courts, with some funds coming from localities and other funds from the state. Current Michigan law for at least some of these funds makes distribution all but automatic or by formula; take the funds, divided by caseload, and disburse.

Michigan’s HB 5112 (with respect to the state’s court equity fund) and HB 5123 (with respect to the drug case information management fund and drunk driving caseflow assistance fund) would add an additional element: compliance with a set of “best practices” set by the state court administrative office (SCAO).

Both bills contain identical language

“Best practices” means a set of methods and processes used by courts to improve performance and efficiency, as determined by the state court administrative office, including, but not limited to, the following categories:

(i) Category 1, accountability and transparency, requires each eligible court to certify that it has produced, and made readily available to the public over the internet, a performance dashboard approved by the state court administrative office.

(ii) Category 2, consolidation of services, requires each eligible court to certify that it has entered into, and made readily available to the public over the internet, a concurrent jurisdiction plan and a consolidation plan to increase its existing level of cooperation, collaboration, and cooperation with other courts.

(iii) Category 3, court improvement and technology, requires each eligible court to certify that it has produced, and made readily available to the public over the internet, a plan for the effective use of technology and court improvement, as determined by the state court administrative office, including, but not limited to, performance measures.

Funds would be available only to a county (state’s court equity fund) or court (circuit, district, and probate courts for drug case information management fund; district and municipal courts for drunk driving caseflow assistance fund) that that “fulfills the requirements established by the state court administrative office to evaluate, formulate, and implement best practices.”

The bills are currently pending in the House Committee on Appropriations.

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First Hawaii, now Ireland, next maybe New Jersey: Legislatures look to remove constitutional guarantees not to reduce judicial salaries

October 31st, 2011

One of the items on the list of grievances in the Declaration of Independence against King George III was the linkage between his (dis)pleasure and judicial salaries

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

For this reason, among others, the U.S. Constitution assures federal judges are to “receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

Most (but not all) states have similar provisions in their constitutions. However, legislative efforts to overturn these clauses have been increasingly introduced as states cut budgets. Consider the following:

  • 79% of voters in Ireland last week approved a referendum to weaken their constitution’s protection of judicial salaries, allowing for laws to be passed reducing the pay of judges proportionately if the pay of public servants is being or has been reduced and that reduction is stated to be “in the public interest”.
  • New Jersey Governor Chris Christie’s plan to change the pension contributions for that state’s judges was also struck down as running afoul of that state’s guarantee that judicial salaries “shall not be diminished” (see prior post here). The Governor has vowed to introduce a constitutional amendment to curtail or eliminate the provision protecting judicial salaries.
  • In 2006, Hawaii voters voted to end the state’s judicial compensation commission and replace it with a compensation commission that would set salaries for most state elected officials. A lesser known provision of the amendment also stripped the constitutional guarantee that judicial salaries “shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State”. In 2009, all judicial salaries were “reduced by five per cent from what the salary [was] as of June 30, 2009, and shall remain at that salary rate until June 30, 2011″ (HB 1536 of 2009). The June 30, 2011 deadline has since been extended to June 30, 2013 (HB 575 of 2011).

Details of the various recent constitutional amendments below the fold.
» Read more: First Hawaii, now Ireland, next maybe New Jersey: Legislatures look to remove constitutional guarantees not to reduce judicial salaries

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Louisiana Legislature’s Judicial Compensation Commission meets October 25

October 18th, 2011

The Louisiana Judicial Compensation Commission is set to meet October 25. Housed under the legislature, the commission’s recommendations are nonbinding. See RS 13:42, RS 13:46, and RS 13:47.

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