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New Hampshire House votes to keep the state’s Supreme Court in constitution; 47 Republicans vote to remove it

February 3rd, 2012

An idea, popular among Republican presidential candidates, is to simply delete or remove from statute the court(s) that issue opinions that they disagree with. A similar effort was put in place in New Hampshire with respect to their Supreme and Superior (main trial) Courts. Under CACR 25, a 1966 constitutional amendment that specifically named the Supreme and Superior Courts in the state’s constitution would be eliminated, allowing the legislature to end the existence of the courts by statute (HB 1131 would set up a committee to work out the details on that).

In debate on the House floor on February 1, 2012 proponents argued that the 1966 put too much power into the hands of the judiciary, “fractured the balance of power” between the branches and that the supreme court was a “super power”, not a co-equal branch. Proponents argued that it would “subordinate” the judiciary to the legislature.

The video below is from the floor debate on CACR 25. The final vote was 251 in favor, 47 opposed (all Republicans).

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Oklahoma becomes third state this year to consider stripping its state Supreme Court of power of judicial review

February 2nd, 2012

First it was New Hampshire, then Tennessee, now Oklahoma’s legislature is considering removing the power of its state courts to strike down statutes as unconstitutional.

Under the recently introduced SJR 84, the state’s Supreme Court would be banned from reviewing any law enacted by the legislature. However, unlike the other states, this proposal does allow for an “Ad Hoc Court of Constitutional Review” to rule on. The amendment, in full, reads:

The Supreme Court shall not have the power of judicial review over the constitutionality of laws enacted in this state. An Ad Hoc Court of Constitutional Review shall be created to rule on the constitutionality of such enacted laws.

There is no indication of how this “Ad Hoc Court of Constitutional Review” would be formed, its membership, or any other details.

The amendment has been prefiled in the Senate awaiting the legislature’s return to session next week.

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Posted in Jurisdiction, Structure Changes

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Arizona Senator trying to end merit selection in state wants to remove over 2/3 of Court of Appeals judges, strip court of funding

February 1st, 2012

I mentioned last week the Arizona Senate, despite approving a constitutional amendment in 2011 to alter but not end merit selection in the state, is considering revoking the amendment from the 2012 ballot and replacing with partisan election for all judicial offices (not just those currently under merit selection).

The same senator has now introduced SB 1372 which would effectively remove 2/3 of the judges from the state’s Court of Appeals.

Under existing law, the Court of Appeals is made up of 2 divisions. Division 1 has a Chief judge + 15 judges (sitting in panels of 5 labeled A, B, C, D, and E. Division 2 has 6 judges with panels A & B. The two Divisions combine for a total of 22 judges.

Under SB 1372 Division 1 would shrink from 16 to 3 while Division 2 would go from 6 to 3. The reduction from 22 down to 6 would also cut funding for the court. Under current law the Court of Appeals retains 8.36% of all of the monies it collects monthly as fees and costs associated with appeals. SB 1372 would reduce that to 1% and transfer the other 7.36% to the state general fund.

The bill is currently pending in the Senate Judiciary Committee.

 

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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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West Virginia considers creating an intermediate appellate court, Virginia considers getting rid of theirs

January 27th, 2012

Of the 50 U.S. states, 40 have an intermediate appellate court (IAC), generally (but not always) called the “Court of Appeals”. Two states have been actively trying to get their own IACs. The first, Nevada, has been trying for decades but has been unable to get voter support for a constitutional amendment to create or allow the legislature to create such a court.  A fourth attempt is currently in the works.

The other state is West Virginia. Creation of an IAC (tentatively entitled the “Intermediate Court of Appeals”) has bounced around the legislature since at least 1999 (HB 3008 of 1999; HB 200B of Second Special Session of 2003) but picked up a great deal of attention in 2010 (HB 3269; HB 4619; SB 589; SB 645) and 2011 (HB 3150; HB 3165) with the state’s senate approving one version (SB 307) that has been reintroduced as part of a larger “Civil Justice Reform Act” in 2012 (SB 420). Under this bill,  “all appeals shall be reviewed and a written decision on the merits issued by either the Supreme Court or Intermediate Court as a matter of right except for [certain appeals as specified in statute]…”

Meanwhile, in the name of cost savings, the Commonwealth of Virginia is considering abolishing their IAC. Under SB 630 the current Court of Appeals would end effective October 2012. According to the blog of the Virginia Lawyers’ Weekly, the change would keep the current judges in their respective offices until the end of their terms, but with no apparent work to do after October of this year. The prime sponsor told the VLW Blog “when the state is cutting services to children the judiciary ought not be immune from the budget ax” and criticized the court for having in his view few if any judges with experience in criminal, domestic or workers compensation practice prior to selection to the court.

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Vote to change way Wisconsin picks its chief justice cancelled

January 11th, 2012

The planned Thursday vote on changing the way Wisconsin picks its chief justice has now been cancelled with no indication as to why or when (if?) the plan will come back up for a vote.

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Posted in Selection, Structure Changes

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Wisconsin Assembly committee will vote on plan to change way chief justice is elected

January 9th, 2012

Wisconsin’s Assembly Committee on Judiciary and Ethics is set to vote on Thursday on a constitutional amendment that would end the state’s practice of having the most senior justice of the state’s supreme court serve as Chief Justice.

Under AJR 49 and SJR 36 the court’s justices would chose among themselves after every election to determine who would serve as chief. At a December 15 hearing, the lead proponent of the bill admitted that he had not spoken with anyone on the court, court staff, or the state court administrator about whether or not they wanted the change and did not indicate if he intended on speaking to the justices or court staff prior to the vote (see video from 1:35:00-1:37:30).

Video of the hearing, if available, will be found here.

 

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Posted in Selection, Structure Changes

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

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2011 Year in Review: Alterations of/to state supreme courts

December 30th, 2011

Whether called court packing or court reform, the idea of “adjusting” the membership or structure of a state court of last resort in order to register legislative displeasure is nothing particularly new. Over the last 5 years, at least 5 such efforts have been made to either remove justices from the existing court or add enough justices to alter certain prior decisions (a review of such efforts can be found here). 2011 however is unique in the extent to which such efforts moved from hypothetical to on the ground realities and, as I noted last week, 2012 already has at least 1 bill filed.

Florida’s HJR 7111 is the most obvious on this score. The plan, as introduced by the Republican House Speaker, would have split the existing 7 member Florida Supreme Court into two panels of 5, one for civil and the other criminal. All Democratically-appointed sitting justices would be transferred to the criminal panel and the Republican-appointed justices (plus new appointees by the Republican governor) to the civil panel. While the proposal was approved on party line votes in the House, Senate Republicans removed any reference to splitting the supreme court before sending it back to the House. A last ditch effort by the Speaker for a “study” of splitting the supreme court splitting idea was line-item vetoed by the state’s GOP governor.

Montana’s HB 245 took a different tack; rather than expanding the state’s supreme court to achieve certain decisions this proposal would have shrunk the court from 7 to  5 (under Montana’s constitition the legislature may make such a reduction with a simple statute; no constitutional amendment required as in Florida). The sponsor was abundantly clear of his reasoning for the reduction:

All of us want tort reform, well maybe not all of us.  I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.

The effort died in committee, with all 6 House Judiciary Committee Democrats voting against and the committee Republicans splitting 8-6 in favor.

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Posted in Special Edition, Structure Changes

Taking page out of Gingrich playbook, New Hampshire proposal would eliminate state’s Supreme and Superior courts

December 23rd, 2011

I’ve mentioned at length the series of efforts lodged by the New Hampshire legislature against that state’s judiciary in general, and its Supreme Court in particular, including impeachment for decisions, efforts to unilaterally declare void or “repudiate” state Supreme Court decisions, etc . Now comes the latest proposal, this one an effort to eliminate the state’s Supreme Court and main trial court, the Superior Court.

Under the constitutional amendment (CACR 25) the two courts would no longer be specifically established by the state’s constitution, allowing them to be disbanded and reestablished (with new judges) based on passage of a simple statute. As a technical matter, it would repeal Article 72-a,  a 1966 amendment to the state’s 1784 constitution that added the following:

The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2.

One co-sponsor argues to the Huffington Post this amendment would allow for a legislative check on the judiciary that he feels has been absent since the 1966 amendment. Another proponent cites prior state Supreme Court rulings on education funding saying “With certain issues they have not taken direction from the legislature.” He argues the ability to disband the courts is necessary to give them “legislative direction on certain issues”.

Full disclosure: I am cited in the Huffington Post article as follows:

Bill Rafferty [sic], an analyst for the National Center for State Courts, said both proposals were unusual. There have been no proposals in recent years to raise the minimum judicial age, but there have been pushes to raise the retirement age for state court judges, he said. Many states require judges to retire at 70.

Unusual indeed. If adopted, New Hampshire would be the sole state without a court of last resort specified in its state constitution.

Moreover, when states have either adopted new constitutions or created new courts of last resort, they have rarely simply disbanded the court and ejected the existing judges/justices. Much more typical is what occurred in the spate of new constitutions adopted in the 1970s and early 1980s: justices of the pre-existing court of last resort were carried over onto the new court and/or allowed to serve out their existing term and then be elected/appointed to the new court.

  • Georgia (1983 Constitution) Each judge holding office on the effective date of this article shall continue in office until the expiration of the term of office, as a judge of the court having the same or similar jurisdiction.
  • Louisiana (1974 Constitution) A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.
  • Montana (1973 Constitution) Supreme court justices, district court judges, and justices of the peace holding office when this Constitution becomes effective shall serve the terms for which they were elected or appointed.
  • North Carolina (1971 Constitution) Except as otherwise specifically provided, the adoption of this Constitution shall not have the effect of vacating any office or term of office now filled or held by virtue of any election or appointment made under the prior Constitution of North Carolina and the laws of the State enacted pursuant thereto.
  • Virginia (1971 Constitution) Unless otherwise provided herein or by law, nothing in this revised Constitution shall affect the oath, tenure, term, status, or compensation of any person holding any public office, position, or employment in the Commonwealth, nor affect the date of filling any State or local office, elective or appointive, which shall be filled on the date on which it would otherwise have been filled…The requirement of Article VI, Section 7, that justices of the Supreme Court and judges of courts of record shall, at least five years prior to their election or appointment, have been members of the bar of the Commonwealth, shall not preclude justices or judges who were elected or appointed prior to the effective date of this revised Constitution, and who are otherwise qualified, from completing the term for which they were elected or appointed and from being reelected for one additional term.
  • Illinois (1970 Constitution) All officers filling any office by election or appointment shall continue to exercise the duties thereof, until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or laws enacted pursuant thereto.

The last time I can find of a state disbanding its court of last resort and, in effect, firing all the existing justices was New York in 1869 and then the court was disbanded only because a) it was grossly behind in its docket and b) since half its membership was trial judges, it meant that trial judges were sitting on appeals from their own decisions below (See page 13 of this history of the New York courts). Even then the judges of the older court were not simply shown the door; the 4 members of the pre-existing court elected statewide were established as a “Commission on Appeals” to finish up the cases on their docket.

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