Archive for the ‘Structure Changes’ category

« Older Entries
Newer Entries »

After a century of trying, 3 states may join Iowa in giving state supreme courts broader powers to permanently reallocate judgeships

February 6th, 2013

Since at least the 1900s, states have contended with the question of whether state chief justices and/or supreme courts should be the head of the judicial branch and if so what that meant. One characteristic, pressed for since at least the 1920s by writers like W.F Willoughby and Roscoe Pound, has been the permanent reassignment of judgeships from areas in the state that needed the personnel as indicated by caseload/workload.  Three states, Kansas, Missouri and Wyoming, appear poised to achieve just that while a fourth (Iowa) is starting to use its newly found power.

The first such state in recent memory to achieve this level of control was Iowa. SB 326 of 2011 authorizes the Chief Justice to apportion a vacancy in the office of district judge, district associate judge, associate juvenile judge, or associate probate judge, from the judicial election district where the vacancy occurs to another judicial election district. The Chief Justice must first certify a disparity exists in the allocation of judgeships and judicial workload between judicial election districts, and a majority of the judicial council must approve the apportionment.

In Missouri, SB 21 and SB 22 would give the state’s supreme court the power to move judgeships (after the current occupants left office) based on workload. It would also let the Supreme Court redraw circuit and appellate district lines every 10 years. Both bills advanced out of the Senate Judiciary Committee on January 30.

In Kansas, HB 2113 provides that the Supreme Court shall allocate all judicial resources as the court determines necessary and appropriate, including assignment of district judges and district magistrate judges to the judicial districts and to the county or counties in which they serve. It eliminates the statutory requirements specifying the location and number of district judges and district magistrate judges in each judicial district, and would repeal existing law that requires at least one judge of the district court to reside and have a primary office in each county. That bill is set for a hearing in tomorrow (February 7) before the House Judiciary Committee.

Finally Wyoming appears poised to allow for the movement of at least some judgeships by the Supreme Court. SB 11 as amended eliminates mandatory full-time magistrates and requires the supreme court determine whether they are necessity in a given county, after consultation with the appropriate board of county commissioners. SB 11 was approved by the full Senate on January 18.

 

1 comment »

Posted in Structure Changes

Over a dozen efforts to alter number of state supreme court justices, almost all related to “packing” the courts, in last several years

February 5th, 2013

With the activity in NC today, and similar efforts underway in SC, I thought I’d review the efforts over the last several years to alter the structure of state supreme courts, as well as how they fared.

2007/2008

Florida: a state senator introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. When the bill became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.

Georgia: media reported legislation was considered to increase from 7 to 9 the number of seats on that state’s high court. Then-Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.” Nevertheless, SR 370 was introduced, providing that there would be a justice elected from each congressional district, effectively increasing the court from 7 to 13.

Michigan: an effort to reduce the size of the Supreme Court. The Reform Michigan Government Now proposal was ostensibly to help ease the state’s budget crises by reducing the size of the state’s legislature, Supreme Court, and Court of Appeals. However, a PowerPoint presentation left on the website of a local union explained the purpose of removing 2 of the then 7 serving Supreme Court justices was to ensure Democrat-friendly redistricting rulings after the 2010 U.S. Census (the 2 justices to be removed were Republicans). The initiative was eventually killed when the state’s Supreme Court held that the initiative failed to meet certain constitutional criteria for initiatives.

South Carolina: Amendment to the state’s constitution (SB 34) to expand their Supreme Court from 5 to 7 members elected by congressional district. Another version (SB 23) simply expanded the court from 5 to 7 without mention of congressional districts.

2009/2010

Alabama: SB 507 would have reduced their Supreme Court from 9 to 7 via attrition.

Indiana:  HJR 9 would have set the number of justices at 5 (currently can be from 5 to 9), but eliminated the state’s merit selection system and replaced it with direct elections.

Iowa: After all 7 justices ruled in favor of same-sex marriage in the state, HJR 2012 would have expanded the court to 9.

Georgia: SB 429 tied more money for the courts with an expanded Supreme Court. The bill would have added a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. The increase in funding was conditional on an increase in the Supreme Court from 7 to 9 justices and the court of appeals from 12 to 15.

Nevada: SJR 9 would have permitted, but not required, the state legislature create an intermediate appellate court consisting of 3 or more judges and sets the number at least initially at 3. If the constitutional amendment was approved and if the legislature did create an intermediate appellate court, the state’s Supreme Court would be reduced from 7 to 5 justices. The proposal was sent to the voters in 2010 and failed.

South Carolina:  2007/2008 bills to expand the state’s Supreme Court from 5 to 7 were reintroduced in 2009 as SB 63 (congressional districts) and SB 55.

2011/2012

Arizona SB 1481: expand state’s Supreme Court from 5 to 7 justices. Effort failed when the state’s chief justice personally testified the expansion was not needed, that the Supreme Court was fully functioning, and was not behind in its caseload. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

Florida HJR 7111 (as introduced): Split the state’s 7 member supreme court into two, separate 5 member civil and criminal Supreme Courts; transfer Democratically appointed justices to criminal court.

Montana:  HB 245 would have reduced the size of the state’s supreme court from 7 to 5. 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.

2013/2014

North Carolina: No bill number (amendment to SB 10) would have expanded the state’s supreme court from 7 to 9 members.

South Carolina: HB 3090 would expand Supreme Court from 5 to 7 members.

No comments »

Posted in Structure Changes

Tags:

Surprise effort by NC Senate GOP to expand Supreme Court loses after House balks, likely to return

February 5th, 2013

This morning’s meeting of the North Carolina Senate Rules committee to consider SB 10, a bill to “eliminate obsolete boards and commissions” turned to a different direction when Republicans put forth an effort to expand the state’s Supreme Court by 2 seats and let the newly elected Republican governor fill the new vacancies.

According to reporting by WRAL, the hearing on SB 10 this morning quickly moved away form “obsolete boards” and instead proposed removing the existing officers from several existing boards.

Additionally, and perhaps most surprising, was an effort to expand the NC Supreme Court by 2 seats. As WRAL reported:

Another provision would have added two justices to the North Carolina Supreme Court, appointed by McCrory, which would essentially allow the governor to stack the court without an election. That provision was dropped from the bill in committee after it reportedly failed to gain support in the House GOP caucus meeting Monday.

Sen. Tom Apodaca, chairman of the Senate Rules Committee, promised the concept would be revisited later this session.

The effort to expand the court from 7 to 9 would require only a statute; the state’s constitution sets the court at 7 members but provides the General Assembly may increase to either 8 or 9. (“The Supreme Court shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justices to not more than eight.”)

This is the latest effort in a series of attempts to expand/pack state supreme courts in the last several years.

Florida’s HJR 7111 of 2011, pushed for by the House’s Republican Speaker, would have split the existing Supreme Court in 2, send the justices appointed by Democratic governors to the newly created criminal section, and allowed the Republican Governor to fill vacancies in the new court(s). (Prior coverage here).

Also in 2011, a Republican Arizona Senator attempted to expand that state’s Supreme Court from 5 to 7 justices (SB 1481). That effort failed when the state’s chief justice personally testified the expansion was not needed, that the Supreme Court was fully functioning, and was not behind in its caseload. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

 

1 comment »

Posted in Structure Changes

Tags:

Kansas tries to put its court of appeals in the state constitution: 19 state appellate courts are creatures of statute only

January 29th, 2013

Aside from the provisions related to ending the state’s merit selection system, the recent Kansas legislation (HCR 5002, HCR 5003, HCR 5004, SCR 1601, SCR 1605) also changes the status of the state’s intermediate appellate court (or IACs, usually called the Court of Appeals) from a creation of statute to one established constitutionally. Most IACs can trace their origins back only in the 1970s (the “youngest” such court is probably the Mississippi Court of Appeals, created in 1995).

18 states created their IACs under constitutional provisions allowing the legislature to create courts below the supreme court.

Some state legislators have attempted to use the fact that the IAC is created by statute, and its membership set by statute as well, to pressure the courts. For example in 2012 an Arizona Senate bill attempted to cut the state’s court of appeals from 22 judges down to 6, expressly as punishment and a “push back” against the supreme court for ruling against the senate. (Prior coverage and video from the committee hearing here). Also in 2012 a member of the Virginia Senate tried to repeal the state’s court of appeals outright (SB 630) reportedly in order to save money.

18 states with 19 statute-based IACs below the fold.
» Read more: Kansas tries to put its court of appeals in the state constitution: 19 state appellate courts are creatures of statute only

1 comment »

Posted in Structure Changes

For 2 decades SC Senate Dem tried to expand Supreme Court from 5 to 7, now it is a House Republican trying to do the same in 2013

January 2nd, 2013

2013 marks the return of a piece of legislation that had been introduced in every legislative session in South Carolina for almost two decades: a constitutional amendment to expand the state’s supreme court from 5 to 7 members. What makes this year different is that it is a Republican member of the majority party introducing the bill in the House (HB 3090), rather than a Democrat member of the minority party in the Senate as had been the case for decades.

First, some background.

Pre-Court of Appeals efforts

The entire Judiciary Article (Article V) was revised under a 1972 amendment. The supreme court was re-established with a membership of 5 : 1 chief justice and 4 associate judges, the same composition it had had for decades. By 1979, however, efforts were underway to expand the court from 5 to as many as 10 judges sitting in panels of 3 or 5. The issue was also wrapped up in the matter of the Court of Appeals, which the legislature had created by statute under its power to create “courts of uniform jurisdiction as may be provided for by general law.” Litigation regarding the constitutionality of the Court of Appeals statute kept the court in limbo until it began operations in September 1, 1983 and was explicitly put into the state’s constitution under a 1985 constitutional amendment.

Session Bill Proposal Status
1979/1980 HB 3297 5 to 9 Approved by House Judiciary Committee
SB 1028 5 to 10, 5-judge panels Approved by Senate Judiciary Committee
1981/1982 HB 2140 / SB 36 5 to 7, 3-judge panels Killed in committee
SB 792 5 to 9 Never taken up
1983/1984 HB 2155 5, but allow legislature in future to increase to 7; explicitly create Court of Appeals in state constitution Killed in committee

Post-Court of Appeals efforts

Over the next decade the issue lay dormant in the legislature; it was not until the 19951996 session the subject came back up. SB 755 would have expanded the supreme court from 5 to 7 and provided the justices be elected by the general public (rather than the legislature itself, as has been the practice since the Revolutionary War), one per U.S. House district.

SB 755 was reintroduced every session for a decade by the same Democratic senator into a chamber that has had a Republican majority since 2001. None of the versions introduced ever made it out of committee.

Session Bill Proposal Status
1995/1996 SB 755 5 to 7, one justice per U.S. House district, elected by general public Died in committee
1997/1998 SB 808
1999/2000 SB 62
2001/2002 SB 85
2003/2004 SB 243
2005/2006 SB 299
2007/2008 SB 34
2009/2010 SB 63

Starting in 2005 the focus on these expansion efforts shifted from attempting to change both judicial selection, election-by-district, and expanding the Supreme Court to simply expanding the court.

Session Bill Proposal Status
2005/2006 HB 4447 / SB 1096 5 to 7 Died in committtee(s)
2007/2008 SB 23
2009/2010 SB 55

Curiously the 2011/2012 session saw no such bills introduced, the first time in almost 2 decades this was the case.

1 comment »

Posted in Structure Changes

Tags:

Missouri and Wyoming bills would give state supreme courts power to reallocate judgeships/judicial positions

December 10th, 2012

The vast majority of state constitutions give the chief justice and/or the state’s supreme court authority as the “administrative head” of the entire branch. Despite this, in most states supreme courts are bound to statutes allocating certain numbers of judges to individual counties/district/circuits. Several efforts have been made to give state supreme courts such discretion, the latest coming in Missouri and Wyoming.

Wyoming’s SB 11 deals with a provision in law that requires every Circuit Court (the state’s main limited jurisdiction court) have at least 1 full-time magistrate in each county in which a Circuit Court judge doesn’t already reside. SB 11 would provide the decision on whether a county gets a full-time magistrate would rest with the state’s supreme court.

Missouri’s SB 21 allows the state’s supreme court to transfer Circuit Court (the state’s main general jurisdiction court) judicial positions from one circuit to another “as the administration of justice requires”.

There are restrictions on the transfers, however. The position could only be moved from one circuit to another with the position became vacant (i.e. the current judge or associate judge retired, died, etc.) In addition, the supreme court is given criteria to use :

  1. Analysis of a judicial workload study
  2. Whether litigants in the circuit have adequate access to the courts
  3. Population of the circuit
  4. Judicial duties and travel time involved in the circuit
  5. Other criteria that the supreme court deems relevant

Finally, the number of judicial positions as of August 28, 2013 would be set and “any supreme court order changing the total number of judicial positions, through either creation or elimination, shall be null and void.”

No comments »

Posted in Structure Changes

Tags:

Ohio looks to reduce the number of, but not end, mayor’s courts

December 7th, 2012

It was once not entirely uncommon in U.S. history for cities and town to allow their mayor’s to serve as judges for lower courts; New York City’s mayor is still referred to as “His Honor” to reflect the office’s former authority. Most states, however, have abandoned the practice, the most notable exceptions being Louisiana and Ohio. It appears however that Ohio is set to restrict the number of localities which are allowed to establish such courts.

HB 523, as passed by the Ohio House’s Judiciary & Ethics committee, would increase from 100 to 1,000 the minimum population a locality must have in order to establish a mayor’s court. According to the Akron Beacon Journal, this would eliminate 92 of 318 courts.

SB 254, which was approved by the Senate Judiciary committee, would increase the threshold from 100 to 200, closing no more than 6 courts. Again according to the Beacon, this increase appears to be focused on one particular town (Linndale, population 179).

This effort is just the latest effort in the last decade to eliminate or curtail the use of such courts:

2003: HB 24 and SB 25 required municipality have a population of at least 100 in order to establish a Mayor’s Court. Enacted.

2005: HB 621 required a municipality have a population of at least 500 in order to establish a Mayor’s Court. Died in House Committee.

2007: HB 154 and SB 252 abolished Mayor’s Courts effective January 1, 2009. Municipalities with a population of at least 1,600 or that met the definition of an “urban township” would be permitted to  create Community Courts, defined as courts of record presided over by magistrate judges who must be attorneys. The House version was approved by the House Judiciary Committee but died on the House floor. Senate version died in the Senate Judiciary – Civil Justice Committee.

No comments »

Posted in Structure Changes

Tags:

Trying to eliminate the Texas Court of Criminal Appeals: will fourth attempt in 20 years succeed?

December 6th, 2012

Only two states, Texas and Oklahoma, bifurcate their courts of last resort into civil (Supreme Court) and criminal (Court of Criminal Appeals). The history of why Texas wound its way into this situation is complex (the Texas State Historical Association has an overview) and has lead one justice of the state’s Supreme Court to declare in a recent dissenting opinion “We Have Arrived Here Through Historical Happenstance”. With the introduction last month of HJR 36 of 2013 which would in fact eliminate the court, the fourth such legislative effort to end the Court of Criminal Appeals in the last 20 years continues.

1993: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

The 1993 effort (HJR 97 / SJR 39) when nowhere in House, but was at least the subject of a hearing before the Senate Jurisprudence Committee 4/6/1993.

1999: Merge the Court of Criminal Appeals into Supreme Court; change judicial selection; create judicial term limits

A 1999 proposal (HJR 96) would have effectively merged the two courts, creating a mega-court consisting of 15 justices (Chief Justice + 14), 8 of whom would for a quorum generally. The proposal would have required the concurrence of eight justices  to decide a case, authorized the court to sit in panels of at least five justices, and required the court to sit en banc during proceedings involving capital punishment, rehearings of cases on granted motions, and other cases as required by law.

Perhaps even more intriguing about the 1999 proposal was the method of selection for the 15 member court.

  • 7 would be elected by district in partisan elections for their initial terms and yes/no retention elections thereafter
  • 7 would be appointed by district by the governor
  • The chief justice would be appointed by the governor but could not be from the same district has the immediate past chief justice

Finally, HJR 96 would have imposed judicial term limits of 20 years (terms would remain at 6 years).

HJR 96 got a hearing before the House Judicial Affairs Committee on April 26, 1999 and proceeded no further.

2003: Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 67 and SJR 40 of 2003, as well as HJR 5A of the First 2003 Special Session, picked up where their 1993 counterparts left off and met substantively the same fate: none received a committee hearing.

2011/2013:  Keep existing Supreme Court, transfer all cases in Court of Criminal Appeals

HJR 35 of 2011 and HJR 36 of 2013, both introduced by the same House member, repeat almost verbatim the original 1993 proposal(s). The 2011 version failed to have so much as a committee hearing. The 2013 version was prefiled in mid-November.

No comments »

Posted in Jurisdiction, Selection, Structure Changes

Tags:

California Governor vetoes veterans’ courts, saying authority to establish them is already in “sound discretion of the courts”

October 4th, 2012

For the third time a California governor has vetoed a bill to create veterans courts in the state. As I mentioned previously similar bills passed by the legislature in 2010 and 2011 had been vetoed with then-Governor Arnold Schwarzenegger and later Governor Jerry Brown. Both cited the state court’s existing authority to create such courts without the need for legislation.

Governor Brown’s veto message on AB 2611 of 2012 reiterates some of those points

I applaud the author’s interest in encouraging courts to focus on helping these offenders rather than focusing solely on the punishment. These matters, however, fall logically within the sound discretion of the courts. Veterans treatment courts operate today in 15 counties, including Los Angeles, Orange, San Diego and Ventura. Nine more counties are considering whether to establish one. A bill is not necessary. I urge courts to continue to explore ways to meet the needs of veterans who have served their nation, including establishing a veterans treatment court.

The bill now goes back to the Assembly where it is unclear whether there are the votes for an override.

1 comment »

Posted in Structure Changes

Tags:

For third time California legislature approves of veterans courts: will this version get vetoed as well?

September 6th, 2012

Over the course of the last decade, courts have been confronted with an influx of veterans not seen in decades. In order to address the specialized concerns facing vets, individual judges or courts have created “veteran’s courts”; specialized dockets to handle cases involving returning service-members. Simultaneous with such court efforts have been attempts by state legislatures to enact legislation authorizing, or in some cases requiring, the use of such courts.

Several California counties already have veterans courts, but efforts to have a statewide statute for them have been vetoed twice before.

2007

The first legislative attempt was in 2007′s SB 851. THis program authorized the state’s trial courts courts to develop and implement mental health courts, as specified, which may operate as a pre-guilty plea program and deferred entry of judgment program and allows parolee participation in mental health court, as specified. Although not specific to veterans, the bill did call for ensuring “that eligible parolees requiring veterans’ treatment and recovery services outside of their geographic location will be given consideration for those needed services on a case-by-case basis.” SB 851 was vetoed by Schwarzenegger who, while acknowledging the mental health courts were “an important component of public safety and for managing our criminal justice system” vetoed the bill because of the cost as well as his contention that it “allows people who have committed crimes to avoid punishment completely because of a mental health issue.” The Senate failed to override the veto.

2009

AB 1925 of 2009 was  more veteran-specific than the 2007 bill. This version would have authorized the state’s trial courts develop and implement preguilty plea programs, deferred entry of judgment programs, and/or postguilty plea veterans court programs. Schwarzenegger vetoed that bill claiming it was unnecessary

[A]uthorizing legislation is not required for the superior courts to establish specialized courts with dedicated calendars. I would urge the Judicial Council to examine the need for veterans’ courts, however, and establish appropriate guidelines for the superior courts to follow.

2010

AB 674 of 2010, was enacted. Not a statutory veterans court program authorization per se, it did authorize courts to order a defendant who suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of military service into a treatment program or veteran’s courts (already set up by the judiciary in certain counties, as noted above) for a period not to exceed that which the defendant would have served in state prison or jail.

2011

With the election of Jerry Brown as California Governor in 2010, proponents reintroduced AB 674 verbatim as 2011′s AB 201. Brown, like Schwarzenegger before him, vetoed the bill.

While the provisions of this bill are well-intended, they create a clear expectation that our courts-already struggling with painful budget cuts–will establish a new program.

Given current budgetary constraints, the decision to adopt this kind of program-something already within the courts’ authority–is better left to the sound discretion of the judiciary.

2012

The legislation was once again introduced in February 2012 as AB 2611, again with language that was identical to AB 674 of 2009 and AB 201 of 2011. This legislation was given final approval by the legislature on August 27. There is no indication of the bill having been formally submitted to the governor yet or whether it will face the same veto-fate as the others before it.

1 comment »

Posted in Structure Changes

Tags: