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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SB 851 of 2012, entitled the Boards & Commissions Efficiency Act of 2012, would have simply repealed  the authorizing legislation for the Commission.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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Posted in Other, Rule Making Authority, Structure Changes

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Will Louisiana become the sixth state to have a Tax Court within the judicial branch?

April 11th, 2013

Presently 5 states have a tax court within the judicial branch to hear tax matters. Georgia considered creating such a court in 2011, now Louisiana is considering a similar proposal in 2013.

Under Louisiana’s HB 585 and SB 230  the new Tax Court, which would take the place of the existing Board of Tax Appeals, would serve “within the Louisiana Court of Appeals”, but it not clear if they would function as a court separate from the Court of Appeals (as in Indiana), as a sort of junior chamber, or as (in effect) an administrative agency within the Court of Appeals. The judges of the three judges of the Tax Court would not only have to be attorneys but would also have to be a certified as a tax specialist by the state’s Board of Legal Specialization.

What makes the Louisiana bill unique is the placement of the court in the judicial branch. “Tax courts” in most other states are executive branch or administrative agencies that perform quasi-judicial functions but are not formally parts of the judicial branch, such as in Maryland and Minnesota. The Tax Courts in Arizona, New Jersey, Oklahoma, and Oregon plus a specialized intermediate appellate court in Indiana, are all within the judicial branch.

HB 585 is pending before the House Judiciary Committee. SB 230 is in the Senate Revenue and Fiscal Affairs Committee.

 

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Posted in Jurisdiction, Structure Changes

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West Virginia Legislature’s proposed intermediate appellate court takes page out of history

April 2nd, 2013

While Nevada’s debating a possible constitutional change to get an intermediate appellate court (IAC), it does so in the context of having the IAC be a court with its own judges (at least 3, but possibly more) West Virginia, on the other hand, appears to be considering something not seen in decades: an IAC made up of 2 trial judges + 1 Supreme Court justice.

First, some background.

West Virgina rewrote its entire judiciary article (Article VIII) in 1974 at a time when many states were starting to create their own IACs. The legislature at the time it adopted SJR 6 of 1974 hedged its bets: rather than creating an IAC it provided that “The judicial power of the state shall be vested solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate courts and magistrate courts as shall be hereafter established by the Legislature…” (emphasis added).

Efforts to create an IAC appear to have begun in earnest in 1999 and can be divided into two types:

The 2013 bills (HB 3130 and SB 554) are of the second type, with 2 lower court judges (active or retired Circuit Court judges) sitting with 1 Supreme Court justice.

This second practice, of having judges of lower courts sit with a member of the higher court to serve as an IAC, did occur in some states in the 1800s but was discontinued in favor of having an IAC with its own judges (most states) or an IAC made up of active members of the main trial court who were elevated by the Chief Justice (New Jersey) or Governor (New York) and had no further trial court duties.

Perhaps the closest intermediate appellate court to the one being considered in West Virginia is the one that existed from 1851-1883 in Ohio. Under Art. IV, Sec. 5 of the 1851 Ohio Constitution the intermediate appellate courts were five “District Courts” made up of 2 judges of the Court of Common Pleas sitting with 1 “judge” (term used at the time) of the Supreme Court. They were abolished in 1883 and replaced with a new system of “Circuit Courts” with their own judges (this 1883 system remains today, although a 1912 constitutional amendment gave them their modern name, the Ohio “Courts of Appeals“).

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Nevada considers intermediate appellate court; for NV voters would be 4th time in 4 decades to vote on subject

April 1st, 2013

Nevada is one of only 10 states (Delaware, Maine, Montana, Nevada, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming) + DC without an intermediate appellate court. Two years ago I noted that Nevada is once again attempting to get an intermediate appellate court for the state. The Senate version of that bill (SJR 14 of 2011) met was approved 16-5 in the Senate and 32-8 in the Assembly.

Because Nevada requires a constitutional amendment be passed by 2 legislatures, the bill has been resubmitted and retains the same number, now SJR 14 of 2013.

If approved, this would be the fourth time voters considered creating an intermediate appellate court.

In 1980 and 1992 voters rejected efforts to amend the constitution to create an intermediate appellate (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a Court of Appeals, District Courts…”)

The third attempt in 2010 (Question 2) would  have allowed  but not required the creation of the court (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, if established by the Legislature, District Courts…”)

The 2011/2013 version returns back to the language in which the court of appeals is created (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, District Courts…”)

All three efforts have failed roughly 47-53 (1980: 106,131 to 118,933; 1992: 213,407 to 252,950; 2010: 356,357 to 313,769).

All three elections effectively had the same arguments for and against. Proponents argued that the creation of the court would alleviate backlog in the Supreme Court and allow for faster disposition of appeals. Opponents argued a new court would cost taxpayers and add costs to litigation.

What sets the 1980/1992 apart from the 2010/2013 versions is the jurisdiction of the court of appeals; the 1980/1992 version provided the legislature would set the jurisdiction, the 2010/2013 allows the Supreme Court to set it.

If approved by the 2013 session the question on a court of appeals would be on the 2016 ballot.

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Texas Senate committee approves bill to require problem solving courts register with the Governor

March 27th, 2013

Problem solving courts have been around for decades, but a question that often arises is who has what; does Superior Court in County X have a drug court? How about District Court in County Y? Often these courts are created locally with no central registry of such programs in a state.

Under Texas SB 462 just such a registry would be created for “specialty courts”, such as drug courts, veterans courts, and mental health courts. No “specialty court” would be allowed to operate without first registering the program with the governor. In addition, the program would have to comply with best practices set by the Governor’s Specialty Courts Advisory Council and approved by the Judicial Council (the original version required compliance with standards set by the criminal justice division of the governor’s office).

Moreover, the membership of the Advisory Council would be changed: current law provides for 7 members: 3 judges with experience in specialty courts and 4 members of the public. SB 462 changes it to 9 members: 4 judges (1 each with experience in family drug court, drug court, veterans court, and mental health court programs) and 5 members of the public.

SB 462 was approved by the Senate Criminal Justice Committee on March 18.

 

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

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Arizona legislature may require study of state’s mental health courts

March 4th, 2013

Like many states, Arizona makes use of mental health courts, specialized dockets or court calendars that focus judicial resources on those with mental illness. According to the legislature, the Arizona Superior Court system started in 2004 and the House Judiciary Committee has now requested, in the form of HB 2310, that the state’s administrative office of the courts review and evaluate the program.

(Note: HB 2310 originally dealt with how long a person had to a claim with the Department of Revenue; the House Judiciary Committee approved a “strike everything” amendment that removed every word from the original HB 2310 and replaced it with the mental health courts language.)

In addition to reviewing the program, HB 2310 requires the AOC to develop standards, encompassing data gathering and reporting procedures to facilitate annual evaluations and audits and ensure comparative data across this state for the design, training in and procedures.

HB 2310 could be voted on as early as today by the full House.

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Citing “judicial hellhole” report, West Virginia House members want a study of state’s top court rules

February 27th, 2013

In the last several years there has been a variety of efforts in West Virginia to create an intermediate appellate court, citing among other things the #2 rating the state holds in the American Tort Reform Association’s Judicial Hellhole List.

Citing the report, the years of debate over the need for an intermediate appellate court, and accusations by some that the West Virginia Supreme Court of Appeals does not provide a review as of right, House leaders earlier today filed HCR 44, “Requesting the [legislature's] Joint Committee on Government and Finance study the effectiveness and efficiency of the Supreme Court Rules on the Appeals process in West Virginia.” (Details can be found on reporter Andrea Lannom’s twitter feed and this article she filed earlier today).

The resolution specifically cites to changes made by West Virginia Supreme Court in December 2011 that altered the way the court handles appeals and the use of written decisions in each appeal.

The Joint Committee would be required to report back by the start of the 2014 session along with proposed legislation “to effectuate its recommendations in order to make certain that West Virginia’s judicial system is fair in its procedures and process for West Virginia citizens and businesses”

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Veterans Courts: 2013 legislatures are both encouraging them and trying to give the executive control over them

February 26th, 2013

I’ve been monitoring for the last several years legislative interest in veterans courts, and 2013 appears to bear out the continued interest in them. Many states already operate such courts through court rule or the calendar/docketing practices of individual judges, such as in Buffalo, New York where the a veterans court has operated for years.

What sets 2013′s bills apart is the shift in focus from establishment (such bills are still being introduced) to encouragement and control.

3 states (Kentucky HR 118, Oregon HCR 24, Washington State SB 5797) are considering bills or resolutions “encouraging” or “urging” veterans courts.

3 states (Oregon’s HB 3194 and HB 3195; Texas SB 462, South Carolina’s HB 3014) would transfer to or establish it is the executive branch, not the judiciary, that is to create veterans courts and/or set the rules for their operation.

Details and current status of the efforts below the fold. » Read more: Veterans Courts: 2013 legislatures are both encouraging them and trying to give the executive control over them

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Kentucky becomes fourth state this session to consider letting state chief justice or supreme court redistrict state’s courts and reallocate judgeships

February 25th, 2013

I mentioned earlier in February that 3 states (Kansas, Missouri, and to a limited extend Wyoming) are considering allowing their supreme court and/or chief justice reallocate judgeships and even redraw judicial circuit/district lines based on workload assessments and without legislative involvement. I also noted that Iowa had effectively done both in the last several years. Now Kentucky is considering a similar effort to give control of the judicial redistricting and resource allocation process to the judiciary.

Kentucky HB 391 would amend the state’s constitution to include two new elements.

  1. The Chief Justice, not the legislature, would redistrict the state’s District and Circuit judicial lines every 10 years based on the census AND in reflection not just of population but “to reflect workload.” The language echoes a 2003 law adopted in Iowa (HB 573, now Iowa Code 602.6107) that requires the supreme court redistrict every 10 years, starting in 2012, based on “the most efficient and effective administration of the district court and the judicial branch.”
  2. The Chief Justice, not the legislature, would reallocate judgeships, similar to the scheme enacted in 2011 in Iowa (SB326 now Iowa Code  602.6113). Under the existing Kentucky constitutional provisions the number of judges in each judicial district or circuit are determined by the General Assembly upon a certification of necessity by the Supreme Court.

Kentucky HB 391 is currently before the House Elections, Constitutional Amendments, and Intergovernmental Affairs Committee.

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