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).

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.

A justice of the Supreme Court or probate judge may, by an indorsement under his hand upon a warrant of arrest, authorize the service thereof by telegraph, and thereafter a telegraphic copy of such warrant may be sent by telegraph to one or more peace officers, and such copy is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant issued by the magistrate making the indorsement.

Probate courts in the state were eliminated decades ago, making the provision even more anachronistic.

Under SB 1272, the statute would be changed to read as follows:

A warrant of arrest may be sent by telegraph telecommunication process or facsimile process to one (1) or more  peace officers and a copy of a warrant sent in such manner is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant.

The bill is currently pending in the Senate Judiciary Committee.

• Delaware Senate looks at opening up Family Court proceedings
• Florida legislature advances plans to tie judicial retirement benefits to changes in merit selection
• Veterans’ Courts considered in Hawaii & Washington
• Cameras in the court bills introduced in New York and South Dakota
• New Hampshire House committee rejects effort to repeal state’s supreme court & require all judges be at least 60 years old
• Nebraska may raise judicial salaries
• Ohio Senate committee approves bill to increase penalties for crimes against judges
• Indiana House may require some town/city court judges be attorneys

Pursuant to HCR 5028 of 2012, the Kansas House and Senate met in joint session on January 18. Interestingly, and perhaps uniquely, the resolution called the joint session “for the purpose of hearing a message from the Supreme Court on the judicial branch of government”, and direct the House and Senate form a committee “to wait upon the Supreme Court Justices.” The chief justice was not specified by name or title.

It was however Chief Justice Lawton Nuss that delivered the address, much of which focused on a recent weighted caseload study conducted by the National Center for State Courts (full disclosure: Gavel to Gavel is a production of the National Center for State Courts).

Highlights of the Chief Justice’s speech (full text here) below the fold.

The 250 judges and 1600 employees of the judicial branch of Kansas government fully realize this. And the Supreme Court decided to act on this realization in June 2010 – soon after closing all Kansas state courts for lack of money.

As you may recall, Project Pegasus consists of two parts: (1) a weighted caseload study to measure the actual workloads of all district courts in our 105 counties and (2) a Blue Ribbon Commission to review the judicial branch operations…The state was in tough economic times. Which meant there was a real danger that our judicial budget would be cut, and then that courts would be closed, and that the Pegasus Project would be seriously compromised, if not destroyed altogether.

Thanks to you, our courts have remained open. And open courts have allowed Kansans? access to justice to continue and have allowed Pegasus to be properly completed – all without interruption. On behalf of the judicial branch, I publicly thank you for making yet another important decision for Kansas.

THE FIRST BIG COMMISSION RECOMMENDATION: LET US BE FREE TO ALLOCATE OUR HUMAN RESOURCES OURSELVES – Under the Kansas Constitution, the Supreme Court essentially is the manager of the Kansas court system. We therefore ask for managerial flexibility in applying limited resources to meet the demands made on our branch of government – both as the demands exist today and as they change in the future. Just as for years we have been able to assign our employees where needed, we ask that we soon have the same ability to assign our judges where needed.

THE SECOND BIG COMMISSION RECOMMENDATION: INVEST FUNDS FOR THE INCREASED USE OF THE TREMENDOUS CAPABILITIES OF COMPUTERS

A THIRD SET OF COMMISSION RECOMMENDATIONS CONCERNED DISTRICT COURT FUNCTIONS AND PROCEDURES

1. implement uniformity in court processes and procedures in all judicial districts;
2. promote statewide development of district court “best practices” through assistance of the National Center;
3. further consider statewide what types of cases should have priority over others and establish expedited timelines for their resolution – for example, adoptions; and
4. encourage all district courts to identify and vigorously pursue outstanding collectible court costs, fees, and fines – again, with the assistance of the National Center.

We ask that we be free to decide, based upon our weighted caseload study and other important factors such as access to justice, whether [the old ways of operating] would still be the best plan for Kansas. And if they are not, we ask that we be free to select from the better alternatives. And if a local market’s demand for legal matters is less than it used to be, we ask that…we be able to cover it with an increased use of technology and other modern aids.

The release of President Obama’s long form birth certification has for the most part diminished the interest in  such bills, but not completely eliminated it. Several remain pending, having been carried over from the 2011, while others are newly introduced for 2012.

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.

SB 2205 / SB 2209

One of the particular pieces of angst expressed by governors and others with state merit selection systems is the limitation on the names submitted by the merit selection commission. Arizona’s SCR 1001, for example, expands the number of choices for the governor from “not less than 3″ to “not less than 8″ (a two-thirds majority can reject an applicant and submit less than 8). Other proposals have sought similar expansions.

That is what sets Hawaii’s proposed constitutional amendment SB 2205 apart. Currently, the state’s judicial nominating commission sends “not less than four, and not more than six” names to the Governor for vacancies on the Supreme, Intermediate Appellate & Circuit Courts. For the state’s limited jurisdiction District Courts, the Chief Justice selects “from not less than 6″ names.

SB 2205, however, reduces the selection down to 3 in all instances/courts. Senator Clayton Hill, the chair of the Senate Committee on Judiciary and Labor, stated that by reducing the number “you reduce the politics”.

A companion constitutional amendment, SB 2209, would require the judicial selection commission disclose the names of and other statistical information regarding active nominees and applicants to fill justice and judge vacancies (amendment language in bold)

The deliberations of the commission shall be confidential with the exception of disclosing the names of nominees and the names of applicants to fill any justice or judge vacancies.  The commission shall disclose the names of active applicants to fill a justice or judge vacancy at the close of each application period as well as statistical information that serves the public interest, including but not limited to the total number, gender, and experience of applicants.

This issue of gender diversity is one the Hawaii Senate is on record as being concerned by. SR 26 and SCR 37, both adopted by the Senate in 2010, recited a litany of statistics regarding the gender diversity of the state’s bench and “strongly urged” then-Governor Linda Lingle “to use and consider gender equality when appointing judges and justices in the future…”

SB 2206

In 2006 Hawaii’s (heavily Democratic) legislature suddenly became interested in increasing the mandatory retirement age for the state’s judiciary. It may, or may not, have been a coincidence that the interest occurred right when the first Republican governor in 5 decades was about to appoint several judges and justices who were being forced out of office due to the mandatory retirement age of 70. SB 995 of 2006 to simply eliminate the mandatory retirement age was rejected 2-1 by voters.

In 2012, with a Democratic governor in office, SB 2006 was introduced to amend the state’s constitution and allow judges and justices to serve until age 80. If approved by voters, it would give Hawaii one of the highest mandatory retirement age in the U.S. (Vermont judges can serve until the end of the year they turn 90).

Under its provisions, all judges/justices of the state’s top appellate courts (Supreme Court for civil matters; Court of Criminal Appeals for criminal ones) would be limited to 12 years in office.

As of the effective date of this act, no Justice shall serve on the Supreme Court for a period of more than twelve (12) years…

As of the effective date of this act, no judge shall serve on the Court of Criminal Appeals for a period of more than twelve (12) years

Given that the judges/justices serve for 1 year or so initial terms (after merit selection appointment) and 6 years in subsequent terms, this would effectively limit them to only 1 initial term, 1 full term and a portion of a second full term.

Given that the effective date of the law is November 1, 2012, the effect would be to remove 2 of the 9 justices of the state’s Supreme Court: Justice Yvonne Kauger (appointed in 1984 and up for a retention election November 6) and Justice Joseph Watt (appointed in 1992).

The impact would be even greater on the Court of Criminal Appeals and could potentially clear the court entirely:

• 2 of that court’s 5 judges, Judge Charles Johnson (appointed 1989) and Judge Gary Lumpkin (appointed 1988) would be out of office effective November 1, 2012.
• The 3 remaining judges (Arlene Johnson, David B. Lewis, and Clancy Smith) are up for retention elections 5 days later on November 6, 2012. If they all lost (a possibility, given that Iowa saw 3 of its Supreme Court justices lose their retention election in 2010, all on the same day) the effect would be to empty the court.

SB 1729 has been prefiled with the legislature set to come into session February 6.

NONE

Committee Activity of Note

January 30

Alaska Senate Judiciary

SB 168 Alters geographic cost-of-living salary adjustments for justices of the supreme court and judges of the superior and district courts.

Arizona Senate Committee on Judiciary

SB 1152 Authorizes but does not require creation of homeless courts as divisions of existing courts.

SB 1310 Increases small claims jurisdiction from $2,500 to $10,000.

SB 1311 Increases justice of the peace civil jurisdiction from $10,000 to $25,000.

SCR 1032 (Constitutional Amendment) Increases justice of the peace civil jurisdiction from $10,000 to $25,000.

Kansas Senate Judiciary

HB 2087 Defines “foreign law,” “legal code” or “system” means any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction”€™s courts, administrative bodies or other formal or informal tribunals. Provides “Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.” Provides “Nothing in this act shall be construed to disapprove of or abrogate any appellate decision previously rendered by the supreme court of Kansas.”

Virginia House Courts of Justice, Civil Sub-Committee

HB 631 Provides that court decisions and contracts and other agreements will be void as violative of the public policy of the Commonwealth where such decisions or contracts are based on foreign law, i.e., law applied in a jurisdiction outside of the United States, where the application of such foreign law would violate a person’s rights guaranteed by the United States Constitution or the Constitution of Virginia.

HB 825 Prohibits any Virginia court or administrative agency from applying the law of any jurisdiction outside of the United States and its territories unless the application is required by the United States Constitution, the Constitution of Virginia, or any federal or state law.

January 31

California Assembly

Last for Assembly to pass AB 1208, regarding Judicial Council’s power over state judiciary’s budget (details here)

Florida Senate Judiciary Committee

SB 410 Requiring that a litigant pay a specified surcharge in addition to any other cost incurred for filing court and other legal documents by means of paper documents instead of electronically filing the documents. Provides an exception for a person who is indigent.

Tennessee House Judiciary Committee

HB 173 Ends merit selection. Requires contested elections for all  judges, including appellate and supreme court judges.

February 1

Wisconsin Assembly Committee on Judiciary and Ethics (public hearing)

AB 424 Makes battery or threat to a court employee a Class I felony. Makes it a Class I felony to threaten to cause damage to a courthouse and if the threatened action could result in bodily harm to a judge or court employee.

Wisconsin Assembly Committee on Judiciary and Ethics (votes)

AJR 49 (Constitutional Amendment) Ends practice where chief justice is most senior justice of the supreme court. Directs the supreme court to elect a chief justice as the first order of business each time a justice is elected or reelected.

AB 101 Requires a municipal judge to be a licensed Wisconsin attorney.

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

Wisconsin Senate Committee on Judiciary, Utilities, Commerce, and Government Operations (public hearing)

SJR 36 (Constitutional Amendment) Ends practice where chief justice is most senior justice of the supreme court. Directs the supreme court to elect a chief justice as the first order of business each time a justice is elected or reelected.

February 2

February 3