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).
The issue of mandatory judicial retirement ages has grown more and more pressing as the general populace sees its life expectancy increase. Several state legislatures have grappled with the issue. Below is a hearing conducted before the Florida Senate Judiciary Committee on January 19, 2012 on SJR 408, an effort to increase Florida’s mandatory retirement age.
Florida’s Constitution specifies in Art. V, Sec. 8 that judges must retire at age 70, but may serve out their current term if they have already served roe than 50% of it.
No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.
SJR 408 changes the bolded text to read “seventy five”. It also makes some grammatical corrections (changes “No justice or judge…” to “A justice or judge…”)
The video below gives some of the pros and cons heard at the committee hearing. In the end, the bill passed 5-0 and was sent to the Senate Budget Committee.
Several states have seen legislative efforts to change the composition and role/function of their judicial disciplinary bodies in 2011. Among the motivating factors are disgruntled litigants who, finding their appeals rejected, wish nevertheless to “hold judges accountable.” Such language was and is at the forefront of the impeachment efforts underway in New Hampshire. Media reports indicate much of the testimony heard before a Tennessee committee regarding that state’s judicial disciplinary body focused on disagreements with the decisions rendered by judges as well.
Minnesota’s Senate considered the issue in the form of hearings conducted on November 17 before its Committee on Judiciary and Public Safety. At issue was HB 1568, the latest in a series of bills introduced in the last several years that would have allowed the Board of Judicial Standards to examine the merits of judicial decisions and used the Boards disapproval or disagreement as the basis for disciplinary actions against the jurist. Several Senators who spoke in favor of the bill did so with an eye towards using the judicial disciplinary process as a means to put pressure on the courts to rule certain ways or to provide a free or low cost alternative to an appeal.
Sen. Michael Jungbauer (R): “I’ve heard many, many issues about judges and cases and people always tell me they feel just this empty feeling when a judge rules something and they disagree with it but maybe don’t have the money or the wherewithal to bring it somewhere else.”
Sen. Dave Thompson (R): “The judiciary has taken on a much more significant role in our society that it should have through asserting itself overly aggressively in the area of judicial review and other things…So the problem we have here is judges are too significant, which is why how we select them and how we discipline them and how we review their performance has become far more important that it ought to be and until the judiciary is willing to see its role as less significant in our society and until legislatures are willing to do the politically difficult thing and ask judges about the decisions that they make, we’ll never solve the problem.”
The video below is from that November 17 and includes those portions that discussed changes to the Board and its role/function.
Proponents of Issue 1 (then known as HJR 1) in the Ohio House* made several arguments against the proposal. The video below outlines many of them, but they can be (and have been for electoral purposes here) summarized as follows:
The current system works fine
The current age limit prevents an entrenched judiciary
Retired judges can be recalled to service by the Supreme Court; this will make that pool of retired judges even older
The sections repealing Supreme Court commissions and courts of conciliation should be dealt with separately
Proponents of Issue 1 (then known as HJR 1) in the Ohio House and Senate made several arguments in favor of the proposal. The video below outlines many of them, but they can be (and have been for electoral purposes here) summarized as follows:
The proposal keeps experience, knowledge, and integrity in the judicial system
The proposal includes rigorous judicial accountability
The proposal creates no additional financial burden
As promised, here are video excerpts from the New Hampshire House floor activity on HR 13 on October 12 (all prior posts on subject found here). The video after the fold is the entire floor proceeding.
Should judges be paid an incentive “bonus” if they or their circuit dispose of a certain number of cases as determined by the legislature? That was the topic of debate for the Florida Senate in March and April of 2011.
The plan was first introduced in the Senate Budget Subcommittee on Criminal and Civil Justice Appropriations on March 17. The plan consisted of three elements:
$10,820,160 in appropriations for the Judicial Caseload Incentive Plan
A set of circuit-by-circuit performances goals for FY 2011-12 for the state’s two levels of trial court (Circuit and County), broken down by casetype and action. (for details, see pdf pages 14 to 18 here)
A quarterly review as to the meeting of the goals. Achievement would mean a $3,000 for each judge in the circuit with the assigned casetype (i.e. civil or criminal).
The statutory language for the plan can be found in Section 18 of SPB 7086 / SB 2002 and Section 1 of SPB 7120 / SB 2116.
Debate began in the Budget subcommittee on March 17 and carried over to March 21. Proponents argued an incentive program was a way to “light the fire” under judges who were perceived of as being slow to clear their dockets. Opponents argued that connecting money for judges to their disposal of cases would be horrible in terms of the appearance of propriety.
A modified version of the plan focusing on civil cases only was adopted by the full Senate Budget Committee and the full Senate but was ultimately rejected in a House/Senate conference committee.
Selected excerpts from the subcommittee and committees hearings can be found in the video below. Full video from the subcommittee and committee proceedings are below the fold.
In her January 12, 2011 State of the Judiciary Address, Washington State Chief Justice Barbara Madsen elaborated on her concerns regarding the practice in the state of municipalities appointing municipal court judges, suggesting that perhaps election would be preferable and help protect municipal court judges from being pressured to rule in favor of the municipality or to find people guilty in order to balance local budgets.
Shortly thereafter, SB 5630 was introduced, to make all municipal court judges elected by their respective localities. A hearing before the Senate Judiciary Committee was held on February 18. Video of the hearing is below. For those not wanting to watch all 40 minutes of video, a summary of the testimony can be found here.
Speakers (in order of appearance):
Panel 1: Juliana Roe, Senate Judiciary committee staff; Chief Justice Barbara Madsen, Washington State Supreme Court
Panel 2: Doug Haake, former municipal court judge for City of Bonney Lake; Chief Judge Stephen Brown, District and Municipal Court Judges Association
Panel 3: Candice Bock, Association of Washington Cities; Jim Haggerton, City of Tukwila; Diane Suprey, City of Sumner
I noted yesterday the litany of bills introduced in New Jersey to allow two-thirds of that state’s legislature to override court decisions. Not a single one of those bills reached a committee hearing. Not so in Montana.
A decision of the Montana supreme court invalidating one or more statutes or parts of statutes may be overturned by a bill that is approved by a vote of at least two-thirds of the members of each house of the legislature and that is signed by the governor. The bill must specifically state the statutes or parts of statutes invalidated by the decision being overturned.
When first introduced in 2005, the amendment was part of a package of bills all introduced by Republican Sen. Joe Balyeat, including
SB 391 – sets term limits for judges similar or equal to that of state legislators (“If legislators want to legislate from the bench, they should be treated like legislators”)
SB 392 – sets judicial pay as equal to that of legislators (“‘Legislating’ judges should be paid the same low rate…”)
SB 393 – ends nonpartisan races for judicial office
SB 394 – ends requirement judges be lawyers
SB 395 – elects supreme court by district, rather than statewide
SB 396 – sets supreme court campaign contribution limit as same a legislator
SB 398 – allows judges to be recalled from office for their decisions
SB 399 – applies open meetings law to judiciary
SB 400 – requires suits against legislature be brought in district of House Speaker or Senate President, rather than the capital
According to Sen. Balyeat’s 2005 testimony (no audio/video, minutes here) the Montana Supreme Court had failed to exercise “restraint” in various cases and was functioning as a “super legislature”. As in the New Jersey instance, court rulings on school funding were cited as a reason for the need to allow for an override of state supreme court decisions. Other proponents argued “it would put the people back in charge instead of the Court.” Ultimately, SB 397 was tabled on a 7-5 vote.
The bill returned in 2009 as SB 334. In his written testimony, which replicated the 2005 testimony almost identically, Sen. Balyeat had dropped all the other proposals except legislative override, supreme court election by district, and for suits against legislature to be brought in district of the House Speaker or Senate President, rather than the capital. This time the committee tied 6-6 on the bill and then voted 9-3 to table it. The audio (there was no video) is below. Note this exchange at about the 12:55 mark between Republican Senate Judiciary Vice-Chair Jim Shockley and Sen. Balyeat:
Sen. Shockley: Further questions? No. Just one from me Senator Balyeat. In effect, this is a constitutional, this allows the legislature in conjunction with the governor to amend the constitution, that’s basically it, right?
Sen. Balyeat: Um. Pretty close, yes. Although, it would also be limited to, with respect to a particular statute. Ok?
Sen. Shockley: Right. So it only says “Statute X is unconstitutional” we would in effect change the constitution so that that statute would be effective. So, we amend the constitution.
Sen. Balyeat: With respect to that narrow statutory provision.
