Posts Tagged ‘Alabama’

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

April 10th, 2013

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 HB 701 / SB 643 would have repealed the residency requirement for just the intermediate appellate courts by eliminating § 12-3-5.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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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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Posted in Rule Making Authority, Structure Changes

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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.

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Bans on court use of sharia/international law: withdrawn in VA, only 5 heavily modified bills introduced in 2013

January 14th, 2013

This year is proving to be a substantially different one in terms of legislative efforts to ban the use of sharia or international law in state courts. By January 14 in 2011 (the last most comparable year; some legislatures do not meet in even numbered years) there were at least a dozen bills filed. So far this year there are only 5 bills in as many states and at least one such bill has already been withdrawn.

Unlike in the bills introduced previously, which specifically mentioned sharia or broadly and generally prohibited reference to international law, most the bills introduced so far are limited to only a particular case type or area of law and provide a series of exceptions, in particular with reference to commercial contracts.

Even then, the first such bill to be considered, Virginia’s HB 1332 which was limited to domestic relations cases, was stricken at the request of the author when it was first heard in a subcommittee last week.

List of bills below the fold

» Read more: Bans on court use of sharia/international law: withdrawn in VA, only 5 heavily modified bills introduced in 2013

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Will Texas’ legislature join Alabama & California in mandating judges recuse due to specific campaign contribution limits?

December 20th, 2012

In 2009, the U.S. Supreme Court ruled in Capteron v. Massey that some campaign contributions to judicial candidates can be so high that due process requires the judge recuse. The high court failed to specify what amount would trigger recusal, but as I noted in “The Legislature Must Save the Court from Itself”?: Recusal, Separation of Powers and the Post-Caperton World, state legislatures have tried for decades to set specific limits. It now appears Texas’ legislature may join Alabama and California in setting specific recusal limits.

HB 129 of 2013 would require judges of state’s top appellate courts (Supreme Court and Court of Criminal Appeals) recuse if a party, attorney, lawfirm, etc. contributed $2,500 or more to judge’s campaign in last 4 years.

It further provides a way to address funds made via PAC: under a formula an individual’s contribution to the PAC would count as a contribution to the judicial campaign if the PACs total contributions made to all candidates meets (or fails to meet) certain thresholds.  This avoids individuals and firms barred by the $2,5000 limit from simply setting up a PAC which then funnels the money to a campaign anyway.

Five states now have specific contribution levels compelling recusal for at least some of the state’s judges, although most do so via rule of court and not statute.

  • Alabama Code § 12-24-2(c): $2,000 for trial judges, is $4,000 for appellate jurists during “election immediately preceding his or her new term in office”. The statute has never been enforced because no one has sought pre-clearance for the statute under the federal Voting Rights Act.
  • Arizona Code of Judicial Conduct Rule 2.11(A)(4): “The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous four years made aggregate contributions to the judge’s campaign in an amount that is greater than the amounts permitted pursuant to A.R.S. § 16-905.” This appears to mean a $872 limit.
  • California: By statute enacted in 2011 (Code of Civil Procedure 170.1) trial court judges must recuse if their campaign received $1,500 in support of the judge’s last election (if last election was in last 6 years) or in support of an upcoming election. A new rule adopted as Code of Judicial Conduct Rule 3E(5)(j) by the state’s Supreme Court in November 2012 applies a $5,000 limit to contributions for appellate justices.
  • Utah Code of Judicial Conduct Rule 2.11(A)(4):  $50 in prior 3 years. (“The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous three years made aggregate contributions to the judge’s retention in an amount that is greater than $50.”)
  • New York Rules of the Chief Administrative Judge 151: for trial judges, $2,500 from an individual party/attorney/firm OR $3,500 in the aggregate from all parties/attorneys/firms in the prior two years. The rule was adopted in early 2011.

 

 

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Alabama Legislative Year in Review: Court funding, protection of judges and other court officials from false liens

November 16th, 2012

New laws affecting the courts enacted by the Alabama legislature in 2012 include the following:

Alabama HB 14 ORIGINAL: Authorizes the presiding judge of a circuit court to authorize motion hearings in civil matters to be conducted by telephone or other audio-video telecommunications means. AMENDED: Expands use to district courts and criminal matters as well.

Alabama HB 17 Allows a judge or other public servant to request to remove a false instrument that has been filed against the public servant to be removed to circuit court and be expedited.

Alabama HB 99 Makes it a crime to act, without authority, as a judge, magistrate, hearing officer, juror, clerk of court, or any other official with the authority to adjudicate the rights or interests of another, or to sign a document in this capacity as if authorized by state law.

Alabama HB 688 Increases docket fees in all civil cases in the circuit and district courts excluding child support cases and in all criminal cases in the circuit, district, and municipal courts. Provides for distribution of the funds into State Judicial Administration Fund, Circuit Clerk’s Judicial Administration Fund, and Presiding Circuit Judge’s Judicial Administration Fund.

Alabama SB 47 ORIGINAL: Requires Supreme Court create rules for expedition of civil cases where damages are less than $100,000. CONFERENCE COMMITTEE: Same, but for cases less than $50,000. Expressly exempts domestic relations, family law, property law, and tax law from program.

Alabama SB 138 Allows a former or retired judge with certain qualifications to preside over cases in a circuit or district court.

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Election 2012: The close calls and why non-votes killed Hawaii’s Amendment 2 & Wyoming’s Amendment C

November 15th, 2012

Alabama’s Local Questions: 2 narrow losses, 1 win

I’ve mentioned before the constitutional quirk in Alabama whereby changes or increases in court filing fees required an amendment in the state’s constitution in many instances, albeit amendments voted on by only the county affected. The 3 items on the ballot in November 2012, all of which would have increased courts fees for various court or law library needs, all failed. In Marion County it was no contest: the proposal failed 46-54. The other two narrowly lost; the Covington County Local Amendment failed 49.58 to 50.42%, a margin of 88 votes. Similarly Etowah County Local Amendment 2 only failed 49.71 to 50.29%, a margin of 51 votes. While it is not clear the legislature will take these matters up again, the narrow losses are interesting.

Hawaii Amendment 2 failed 49.6% to 39.9% with 10.4% not voting

The Amendment would have authorized the use of judges forced into retirement for reassignment/recall in 3-month stretches. However, the state’s constitution requires “a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election” making a non-vote the equivalent of a no. The breakdown was 216,655 in favor with 174,190 opposed and 45,513 blank votes. If the blanks had gone 5% in favor to 95% against Amendment 2, it would have won 51-49%.

Wyoming Constitutional Amendment C failed 48.99% to 35.32%, 10.52% under votes

Like Hawaii’s Amendment 2, Wyoming’s Amendment C dealt with the “internal mechanics” of the judiciary. In Wyoming’s case, the amendment would have eliminated provision that district court commissioners appointed by the court may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act. Like in Hawaii, the amendment required a majority of all ballots cast in the election. With 250,701 ballots cast, the amendment needed at least 125,531 but got only 122,824 versus 88.562 against and 26, 419 under votes/non-votes. If the under votes had gone 10% in favor to 90% against Amendment C, it would have won 51-49%.

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Posted in Election 2012

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Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

October 4th, 2012

Few if any state legislatures are in session, but one of those few is Michigan and that state’s House is set to come back into session November 27 to decide the fate of a bill that would ban the use of international law by the state’s judiciary.

Under Michigan  HB 4769 and SB 701

A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.

After initial bad press and rallies where the bills were introduced earlier this year the bills remained in their respective committees. However the House journal indicates a notice for a motion to discharge HB 4769 from the House Committee on Judiciary was filed by the bill’s primary sponsor September 11 and the motion made September 12. The vote on the motion was postponed until November 27, 2012.

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

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Posted in Jurisdiction, Other, Special Edition

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Alabama court cost constitutional amendments

August 21st, 2012

The Alabama constitution is one the longest of any state (or nation for that matter), with some 827 amendments already in place. Much of this stems from the need to issue an amendment for single-county or single-city exemptions from constitutional provisions, such as the provision in Section 96 that prohibits the state from enacting a law that would vary court costs from one county to another.

The legislature shall not enact any law not applicable to all the counties in the state, regulating costs and charges of courts, or fees, commissions or allowances of public officers.

The result has been, starting with Amendment 2 in 1911 (court charges in Jefferson County), dozens of amendments exempting individual counties from the general restriction found in Section 96 with respect to court costs. These range from general statements to very particular and specific costs. Three such amendments, showing the range of amendment types with respect to court costs, will be voted on in November:

  • HB 735 / Covington County Local Amendment Provides for the law library fee in the county and to ratify, approve, validate and confirm any court costs levied pursuant to local law enacted prior to the adoption of this amendment. The amendment text itself is over 500 words long.
  • SB 344 / Marion County Local Amendment “The Legislature, by general or local law, may fix, regulate, and alter the costs and charges of courts in Marion County and provide for their distribution.”
  • SB 581 / Etowah County Local Amendment 2 “The Legislature, by general or local law, may fix, regulate, and alter the costs and charges of courts in Etowah County and provide for their distribution. Any local law authorizing the levy of additional court costs in Etowah County enacted prior to the effective date of this amendment is ratified and confirmed.”

Under the state’s constitution, while the amendments listed above required approval of the three-fifths of the full Alabama House and Senate, the amendments (because they impact only one county) require the approval of only a “majority of the qualified electors of the affected county who vote on the amendment.” (emphasis added)

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Posted in Election 2012, Salary & Budget

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Bans on court use of sharia/international law: signed into law in Kansas, sent to study committee in New Hampshire, still technically alive in MI, NC, PA, & SC

May 29th, 2012

There were only two pieces of activity since the May 14 update:

  • New Hampshire’s Senate approved May 16 on a voice vote its Judiciary Committee’s recommendation to send (HB 1422) to an interim study committee, effectively killing the bill for 2012.
  • In Kansas, that state’s governor signed SB 79 on May 21. News reports are here, prior blog posts detailing provisions (including an attempt to tie it to Citizens United) here and here.

With adjournments already having occurred, and with Missouri set to formal adjourn May 30 (they informally adjourned May 18), only 4 states even have the theoretically potential to advance such legislation in 2012 (barring special sessions):

  • Michigan HB 4769 / SB 701: the legislature is likely not to formally adjourn sine die, thus the legislation remains at least technically alive until a new legislature is sworn-in sometime in 2013.
  • North Carolina HB 640: Legislation carries over from odd-numbered to even-numbered years and the legislature is now back in session as of May 16.
  • Pennsylvania HB 2029: the legislature is likely not to formally adjourn sine die, thus the legislation remains at least technically alive until a new legislature is sworn-in sometime in 2013.
  • South Carolina HB 3490 / SB 444: Adjournment is June 7, however neither bill has advanced out of committee since being introduced in early 2011.

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: signed into law in Kansas, sent to study committee in New Hampshire, still technically alive in MI, NC, PA, & SC

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Posted in Jurisdiction, Other, Special Edition

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