More movement on stripping Arkansas Supreme Court’s rulemaking authority; confusing nonbinding resolution passes, constitutional amendment still possible

April 11th, 2013 by Bill Raftery

Ongoing efforts to strip the Arkansas Supreme Court of its rulemaking authority are continuing with yet another variation.

As I noted previously the impetus behind the efforts appears to be anger over state supreme court decisions finding that tort reform laws unconstitutionally abridge the supreme court’s power to “prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”

On April 2, the Senate adopted SR 30, a nonbinding resolution urging the Supreme Court adopt by court rule the tort reforms outlined in SJR 2.

What makes the matter confusing is precisely what version of SJR 2 the resolution references (there were four when the resolution was adopted). Moreover, 2 days after SR 30 was adopted by the full Senate, the author amended SJR 2 to simply strip the Supreme Court of rulemaking authority on mental anguish, pain and suffering, and similar claims and cap punitive damages as 5 times compensatory damages.

SJR 5 appears to be the main vehicle for the changes. The constitutional amendment is now in its fifth iteration. The latest, put forth via sponsor amendment last week:

  • Provides the legislature, by 3/5ths vote, may set awards of noneconomic damages
  • Provides punitive damages are equal to 5 times compensatory damages OR whatever level is set by a 2/3rds vote of the legislature
  • Provides the legislature is to “prescribe the rules of pleading, practice and procedure for all courts” but “shall delegate nonexclusive authority to the Supreme Court”
  • Provides that the Supreme Court has “no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts” except that which is expressly delegated by the legislature
  • Provides that any attempt by the legislature to override a rule in place as of January 1, 2015 requires a 3/5ths vote

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Connecticut bill would require indigent work up to 20 hours of community service before filing lawsuits; hearing set for 4/15

April 11th, 2013 by Bill Raftery

Many states provide by law, court rule, or case law that an indigent person too poor to pay the fees associated with a  case may have the fees waived. Connecticut’s present statute on the subject, 52-259b(a) is fairly straightforward

In any civil or criminal matter, if the court finds that a party is indigent and unable to pay a fee or fees payable to the court or to pay the cost of service of process, the court shall waive such fee or fees and the cost of service of process shall be paid by the state.

HB 6692 would amend this to provide an alternative; if a person cannot pay due to indigence they can be compelled to work.

If the court waives such fee, fees or the cost of service of process, the court may, in connection with the granting of such fee waiver, order that the person participate in a program of community service, as set forth in section 2 of this act, for a period of time not to exceed twenty hours. In determining whether to order a person to participate in a program of community service, the court shall consider the person’s ability to perform community service and prior compliance with any order to participate in a program of community service.

Those seeking restraining orders against domestic violence under 46b-15 or 46b-38c would not be compelled to work.

HB 6692 is set for a hearing on April 15 before the Joint Committee on the Judiciary.

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

April 11th, 2013 by Bill Raftery

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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Alabama: Should appellate judges be forced to reside in Montgomery or face impeachment?

April 10th, 2013 by Bill Raftery

Under current law, all appellate judges in Alabama “shall reside or live in or sufficiently near to the City of Montgomery so that such office or post of duty shall be reasonably accessible to him daily” (Supreme Court) or “reside in Montgomery during the terms of the courts” (Court of [Civil] Appeals and Court of Criminal Appeals). At least for the Supreme Court’s justices, failure to do so is an impeachable offense. Under a bill introduced in the House last week, however, these restrictions may be eased.

First, some background.

In the earlier parts of U.S. history, it was not at all uncommon to require judges and clerks of court to reside at or near the court they served. Florida, for example, as recently as 2011 required the clerk of a Circuit Court live within 2 miles of the court.

All 6 of Alabama’s constitutions  have required executive branch officials such as the governor reside at the seat of government. A similar imposition was placed on the state’s appellate court judges by statute (§ 36-2-4) since at least 1919 (Supreme Court) and the current statute with respect to the intermediate appellate courts dates back to 1969 (§ 12-3-5, when the Court of Appeals was split into two separate courts, one for civil the other criminal) and maybe even earlier (the original Court of Appeals dates to 1911).

Moreover, the ramifications for judges who fail to reside in Montgomery are dire: the same 1911 statute that imposed the requirement on the Supreme Court also specifically holds that failure to reside was grounds for impeachment (§ 36-2-5).

HB 507 of 2013 would ease the residency restriction. Under its terms, justice of the Supreme Court and judges of the Court of (Civil) Appeals and judges of the Court of Criminal Appeals would be able to reside within a day’s travel of Montgomery. The threat of impeachment would, however, still hover over the Supreme Court.

The last time and only time in the last several decades the issue came up was in 1996. HB 701 / SB 643 would have repealed the residency requirement for just the intermediate appellate courts by eliminating § 12-3-5. The bills advanced out of their respective committees (House Judiciary on 4/3/96; Senate Judiciary on 4/30/96) but died when the legislature adjourned. They were never reintroduced or offered up again.

HB 507 of 2013 is in the House Constitution, Campaigns and Elections Committee.

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Merit selection update: TN still a mystery; repeal in OK appears dead for 2013; effort to adopt advances in MN; AZ increases number of names

April 9th, 2013 by Bill Raftery

With legislatures starting to wind down for 2013, efforts to adopt, modify, or end merit selection are up against key deadlines

1) On April 5 Arizona’s governor  signed HB 2600, a bill to require the state’s merit selection commissions submit at least 5 names to the governor to pick from (the constitution provides at least 3 names must be given).

2) Minnesota’s SB 1082, an effort to adopt merit selection for all judicial offices (currently in place for interim appointments for trial court judges only), advanced in the Senate Judiciary Committee on April 2.

3) The Oklahoma Senate’s effort to repeal merit selection (SJR 21) appears set to fail in the House for 2013.  Oklahoma House Rules require all Senate bills & joint resolutions, like SJR 21, be approved by the assigned House committee by April 11. However, the House Judiciary Committee has not put it on its agenda for today (April 9) and the House committee calendar for this week indicates the House Judiciary will not meet again before the April 11 deadline.

Death for SJR 21 in 2013 does not mean it is over for the Oklahoma legislature altogether. Under House Rule 6.9 SJR 21 will be back in the House Judiciary Committee at the start of the 2014 session.

4) It still remains unclear what, if anything, is going to happen in Tennessee, but whatever happens we’ll know in the next 24 hours.

I discussed the problem in depth here, in short the elements of the existing merit selection system: the nominating commission (JNC) and performance evaluation commission (JPEC) are set to expire. The JNC is set to end this year (June 30, 2012 + 1 year “wind down” period = June 20, 2013) and the JPEC in 2014 (June 30, 2013 + 1 year to “wind down”).

There are a great many moving parts, but the main sticking point occurred in March when an unrelated bill (SB 1058) was gutted and replaced with a major overhaul to the JPEC. Under the amendment the existing evaluation commission and all its members would be ended, a new JPEC installed and the new commission would have the power to not only change the criteria for “judicial performance” but allowed to block judges it deems not qualified from even getting on the ballot (currently the commission can recommend against retention but cannot actually stop the judge from trying). Proponents argue that because retention elections have failed to remove judges except one in the past, the JPEC should be allowed to do so.

Retention elections are set for November 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

A list of all the Tennessee JNC/JPEC extension bills are below.

Bills Provisions Hearings/Status
HB 364 / SB 215 Extends the judicial nominating commission until June 30, 2015. Senate Government Operations on 4/10/13
HB 695 /SB 216 Extends the judicial performance evaluation commission until June 30, 2015. House Government Operations Committee hearing on 4/9/13; Senate Government Operations hearing on 4/10/13
HB 796 Extends the judicial nominating commission until June 30, 2014. Approved as amended by full House 2/21/13.
SB 566 (counterpart HB 796 as originally introduced) Extends the judicial nominating commission until June 30, 2013. Senate Government Operations hearing on 4/10/13
HB 835 /SB 567 Extends the judicial performance evaluation commission until June 30, 2014. Approved by full House 3/18/13. Senate Government Operations hearing on 4/10/13.
SB 1058 (no House counterpart) AS AMENDED: Removes all judicial performance evaluation commission members. Replaces with 9 members, none of whom are judges (currently there must be 3 out of 9). Provides new JPEC allowed to rewrite any existing evaluation criteria (current criteria are set by Supreme Court Rule 27). Provides if JPEC recommends against judge, judge is not allowed to run for retention election (currently may run even if JPEC recommends against). Approved as amended by Senate Judiciary Committee 3/12/13. Senate Government Operations hearing on 4/10/13.

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New Mexico’s governor vetoes bills on judicial pensions, public financing of judicial elections

April 9th, 2013 by Bill Raftery

New Mexico Gov. Susana Martinez has issued several vetoes affecting the state’s judiciary in the last several days (h/t Gavel Grab for the pointer).

On the pension side, Gov. Martinez vetoed SB 25, which would have changed the age and service credit requirements and pension calculations for the judicial retirement system and magistrate retirement system. SB 25 altered cost of living adjustments, employee and employer contribution rates, and provided a new benefit structure starting in July 2013.

In her veto message Gov. Martinez noted

Although there is no doubt that these funds are in dire condition, this legislation does not fairly or adequately solve the problem. Instead, this bill seeks to address the deficiencies in the judicial retirement fund through an increase in taxpayer contributions while failing to address the serious challenges facing the magistrate retirement fund. Even with optimistic projections, this plan only delays the magistrate fund’s eventual bankruptcy.

The second veto of note was of changes to the state’s public financing for judicial elections (SB 16), changes made necessary because of the U.S. Supreme Court’s decision in McComish v. Bennett. SB 16 ended the practice of basing matching funds on the spending of a non-qualified opponent and instead based it on the amount of contributions collected by a qualified candidate.

In her veto message Gov. Martinez doubted the constitutionality of the new scheme and also opened up the possibility of reexamination of the state’s judicial selection system (a form of merit selection combined with partisan elections).

[I]t is entirely unclear that this proposed legislation is constitutional and allowing publicly-financed candidates, including judges, to raise an unlimited number of $100 contributions flies in the face of the intent of the law.

We need a broad, ground up reform of the entire judicial election system. We have the unusual procedure of using a bi-partisan judicial nominating commission process with an immediate open partisan election system. I encourage the Legislature to consider broadly reforming our election system when it comes to judges and am willing to address the issue of public-financing reforms in that overall context.

Because New Mexico’s legislature has adjourned sine die there appears to be no way to override the vetoes unless the legislature calls itself back into extraordinary session.

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Arkansas legislature will alter judge’s ability to identify themselves on the ballot as a judge

April 9th, 2013 by Bill Raftery

The Arkansas House yesterday approved SB 694, a bill limit a judicial candidate’s ability to refer to themselves as “Judge X Y” on the ballot. This bill has an interesting history in that when it came up in 2011 many members of the Arkansas Senate left the chamber rather than having to vote on it.

Under current law, anyone who is an elected judge may refer to themselves as “Judge X Y” on the ballot (Arkansas Code § 7-7-305(c)(1)(A) & (B))

Any person who shall file for any elective office in this state may use not more than three (3) given names, one (1) of which may be a nickname or any other word used for the purpose of identifying the person to the voters, and may add as a prefix to his or her name the title or an abbreviation of an elective public office the person currently holds. A person may use as the prefix the title of a judicial office in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected.

SB 694 as amended creates two ways in which a person can identify as “Judge X Y”

  1. If the person was elected to any judicial office they can identify as “Judge X Y” in any judicial election
  2. If the person was appointed to a judicial office, they may identify as “Judge X Y” only in judicial elections for a Circuit Court or District Court judgeship and only if they served as a Circuit/District Judge for at least 12 months.

SB 694 now goes to the governor for his signature or veto.

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Tennessee legislature enters second decade of trying to remove Supreme Court’s power to appoint state’s attorney general

April 8th, 2013 by Bill Raftery

Tennessee is the only U.S. state that currently provides for its attorney general to be appointed by the state’s supreme court, a practice the state has had in place since its 1870 constitution was adopted. (“An Attorney-general and Reporter for the State, shall be appointed by the Judges of the Supreme Court, and shall hold his office for a term of eight years.”)

This provision has been the source of some legislative interest in the last 2 decades, in particular since 2007. The legislature has taken a look at this constitutional provision, as well as others for the state’s Secretary of State, Treasurer, and Comptroller who are presently appointed by the legislature, with an eye towards moving to partisan elections or more recently appointment and confirmation.

So far, none of the proposals have advanced. A proposal for popular elections for all 4 offices was approved by the Senate 19-12 in 2007 but was never forwarded to the House. With respect to the attorney general alone, 2012′s SJR 693 advanced the furthest and failed when only 16 of the 33 members of the Tennessee Senate voted in favor (15 opposed, 2 were present but did not vote). Appointment and confirmation may come back up before the full Senate later this session as the Senate Judiciary Committee has approved a new version for 2013 (SJR 196) last week.

Year Bill Provisions Results
1997 HJR 74 Popular election Died in House subcommittee
2002 SJR 535 Popular election, including for Secretary of State, Treasurer & Comptroller Died in Senate Judiciary Committee
2003 SJR 19 Popular election Died in Senate Judiciary Committee
2003 SJR 52 Popular election Died in Senate Judiciary Committee
2007 SJR 139 Popular election, including for Secretary of State, Treasurer & Comptroller Approved by full Senate 19-12; held on Senate clerk’s desk
2007 SJR 36 Popular election Died in Senate Judiciary Committee
2009 HJR 103 Popular election Died in House subcommittee
2009 SJR 77 Popular election, including for Secretary of State, Treasurer & Comptroller Rejected 2-2 with 3 present but not voting by Senate Judiciary Committee
2010 SJR 747 Popular election Died in Senate Judiciary Committee
2011 HJR 69 Popular election, including for Secretary of State, Treasurer & Comptroller Died in House subcommittee
2011 SJR 37 Popular election, including for Secretary of State, Treasurer & Comptroller Rejected 0-6 with 3 present but not voting by Senate Judiciary Committee
2012 HJR 804 Gubernatorial appointment with legislative confirmation Approved by House Judiciary Committee (voice vote), died in subcommittee of House Finance, Ways & Means Committee
2012 SJR 693 Gubernatorial appointment with legislative confirmation Approved by Senate Judiciary Committee. Rejected by full House on 16-15 vote, 2 present not voting (required 17 to pass)
2013 HJR 103 Modified popular election: Governor nominates one person, legislature another to appear on ballot Rejected by House Civil Justice’s subcommittee
2013 SJR 123 Popular election In Senate Judiciary Committee
2013 SJR 196 Gubernatorial appointment with legislative confirmation Approved by Senate Judiciary Committee 4/3/13.
2013 SJR 270 Popular election In Senate (no committee)

 

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Week ahead: mandatory judicial retirement age in FL; international law banned in AR; court automation fees in IL

April 8th, 2013 by Bill Raftery

April 8

Arkansas Senate

SB 694 AS AMENDED: Provides judge/justice may not use “Judge” or “Justice” on ballot unless 1) they were elected to a judicial office in the last election 2) they are seeking the office of circuit or district judge and 3) they serving as a judge for at least 12 months.

Florida Senate Judiciary Committee

SJR 570 (Constitutional Amendment) Increases mandatory judicial retirement age from 70 to 75, but only for judges elected or appointed after January 1, 2014.

April 9

Arkansas House Judiciary Committee

HB 1348 Prohibits court use or enforcement of international law.

April 10

April 11

Illinois Senate Revenue Committee

HB 2327 ORIGINAL: Authorizes county boards to require the clerk of the circuit court to charge and collect a court automation fee of up to $25 (instead of $15) and a court document fee of up to $25 (instead of $15). AS AMENDED: Same, but limits the fee amount imposed upon certain defendants to not less than $1 nor more than $15.

April 12

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Posted in Coming Week

Will NC jurors be forced to swear to God? Legislation up for hearing this week would change juror’s oath to also require they only uphold federal laws “not inconsistent” with the U.S. Constitution

April 8th, 2013 by Bill Raftery

While the language differs from state to state, all states require trial jurors to take an oath before starting a trial. Article VI of North Carolina’s constitution lays out the language (emphasis added)

Sec. 7.  Oath.

Before entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath:

“I, _______________, do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as _______________, so help me God.”

Since at least 1883 North Carolina’ Supreme Court has upheld that a juror need not include the words “so help me God” (“An oath administered to a juror in the manner prescribed by statute is sufficient; the juror need not repeat the words “so help me God.”" State v. Paylor, 89 N.C. 539 (N.C. 1883)).

Under SB 528  the state legislature may attempt to force the issue  on “so help me God” and add jury nullification to boot.

NC General Statute 9-14, as currently written, provides in operative part

Each juror shall swear or affirm that he will truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before him and render true verdicts according to the evidence.

SB 528 amends this to read

Each juror shall take (i) the oath required by Article VI, Section 7 of the Constitution of North Carolina, by swearing or affirming to support and maintain the Constitution of the United States, and the Constitution and laws of the United States not inconsistent therewith, and (ii) the oath required under G.S. 11?11, by swearing or affirming to truthfully and without prejudice or partiality try all issues in criminal or civil actions that come before the juror and give true verdicts according to the evidence.

The provision “laws of the United States not inconsistent [with the Constitution of the United States]” could be a mechanism for jury nullification.

As for the “so help me God” provision, SB 528 makes reference to G.S. 11-11 which maintains the language and appears to mandate the use of the phrase (emphasis added)

Oath for Petit Juror

You do solemnly swear (affirm) that you will truthfully and without prejudice or partiality try all issues in civil or criminal actions that come before you and give true verdicts according to the evidence, so help you, God.

SB 528 has a hearing before the Senate Judiciary I Committee on April 9.

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