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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

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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Despite 2012 veto, Arizona House wants to increase small claims court to $5,000; Senate balking at the number

March 26th, 2013

This time last year Arizona’s Governor vetoed a plan (SB 1310) to increase the state’s small claims court limits from $2,500 to $5,000. Undaunted, the House earlier this year approved HB 2240 as introduced that effectively disregarded the veto and put a $5,000 increase back on the table. The Senate Judiciary Committee, however, approved an amendment to set the amount at $3,500 instead. That limit was approved by the full Senate on March 21.

The question now comes as to whether or not a conference committee will be able to meet and come up with a solution before the session adjourns in April.

 

 

 

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Bills to allow more guns into courthouses advance in six states

March 18th, 2013

A litany of legislation has been introduced in the 2013 to allow more people to carry firearms into U.S. state courthouses. Today I’ll be looking at the bills that have moved or are moving in this regard.

Arizona

Current law in Arizona leaves the question of carrying of weapons to the presiding judge of the particular court, with some exceptions. One in particular is that a peace officer or retired peace officer may only carry if a) they have the presiding judge’s permission or b) they are in the court to provide court security or respond to an emergency (A.R.S. § 38-1102)

HB 2516 Effectively removes the presiding judge’s authority in this area and specifically allows peace officers acting in an official capacity and carrying official peace officer identification to carry firearms in court. A floor amendment added a proviso: a presiding judge may establish rules or policies consistent with the new law enforcement carry authorization provision “for the protection of the court”.

The bill as amended was approved by the full House on February 28 and the Senate Judiciary Committee March 11.

Georgia

I mentioned a few weeks ago the situation in Georgia; by law, firearms are not generally permitted inside the state’s courthouses and there is a specific crime of carrying in a courthouse (O.C.G.A. § 16-11-127(b)(2)), but there are 16 categorical exceptions for people like law enforcement, certain judges, certain retired judges, prosecutors, etc.

HB 512 would effectively allow anyone with a concealed weapons permit to carry into a courthouse UNLESS the court provided security screening at the doorway. Specifically, it provides

A license holder shall be authorized to carry a weapon in a government building or courthouse where ingress into such building or courthouse is not restricted or screened by security personnel during the hours the government building or courthouse is open for business. A person who is not a license holder and who attempts to enter a government building or courthouse with a weapon shall be guilty of a misdemeanor. A person who enters or attempts to enter a government building or courthouse where ingress is restricted or screened by security personnel shall be guilty of a misdemeanor; provided, however, that a person who exits such building or courthouse or leaves such location upon his or her observation that such building or courthouse has security personnel restricting or screening ingress into such building or courthouse shall not be guilty of violating this subsection

HB 512 was met with surprise by judges, who have now come out in opposition. Despite the protest by judges, the bill was approved by the full House on March 7.

In addition to HB 512, HB 60 amends an existing categorical exemption and would allow all retired state and federal judges to carry. It was approved by the full House February 13.

Kansas

Like Georgia, Kansas provides a general prohibition and a specific crime of carrying of firearms into courthouses, with specific exception for certain judges and some others (K.S.A. § 21-6309 & 75-7c10).

HB 2055, echoing Georgia’s language, would effectively allow anyone with a concealed carry permit to enter a courthouse unless the court provides “adequate security” defined as screening at the front door.

“Adequate security measures” means the use of electronic equipment and personnel at public entrances to detect and restrict the carrying of any weapons into the state or municipal building, including, but not limited to, metal detectors, metal detector wands or any other equipment used for similar purposes to ensure that weapons are not permitted to be carried into such building by members of the public.

An amendment to re-establish the ban on courthouse carrying failed 60-61 on the House floor.

North Dakota

Existing law makes it a crime to carry a weapon into ”publicly owned or operated buildings”, including courthouses, with several exceptions for certain judges, law enforcement, etc. (North Dakota Code 62.1-02-05)

Like the other bills, HB 1366 would effectively allow anyone with a concealed carry permit to enter a courthouse.

Unlike the Georgia and Kansas bills, there is no exception for instances where the court provides screening at the door. Also unlike the other bills, this one would appear to allow out-of-state residents to carry in to North Dakota courthouses.

This section [prohibiting carrying into "publicly owned or operated buildings"] does not apply to…An individual possessing a valid concealed weapons license from this state or who has reciprocity under section 62.1-04-03.1 authorizing the individual to carry a firearm concealed…

HB 1366 was approved by the full House February 27 and has a hearing before the Senate Judiciary Committee March 19.

Another North Dakota bill (SB 2145) would allow all municipal court judges in the state to carry firearms into their courthouses (currently, only municipal court judges who are licensed attorneys may do so). SB 2145 was approved by the full Senate on January 23 and is set for a hearing before the House Judiciary Committee on March 20.

Oklahoma

Existing law (21 Okl. St. § 1277) provides a general ban on carrying firearms into a “structure, building, or office space which is owned or leased by a city, town, county, state, or federal governmental authority for the purpose of conducting business with the public” such as a courthouse.  There are categorical exemptions for judges, law enforcement, etc.

HB 1723 as introduced expands the list of judges who may carry into a courthouse to include municipal court judges. As amended however, the bill goes farther, allowing peace officers on active duty to carry their weapons anywhere in the state and making other changes to where and when off-duty peace officers may carry. The bill, as amended, was approved by the full House March 14.

Wyoming

State law (Wyo. Stat. § 6-8-104) provides a concealed carry permit does not allow a person to carry into “any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in the courtroom”. There is no specific penalty for violation of this provision. In 2012, a local judge issued an administrative order banning all weapons from the courthouse, not just his courtroom.

HB 216, was introduced to make it a felony to carry a firearm into a courtroom, provides a presiding judge may carry a weapon into courtroom and waive the prohibition on carrying in the courtroom. The bill, however, makes no mention of carrying into a courthouse and proponents are  clear they intended the bill to continue to allow for courthouse carrying.

 

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Arizona and Indiana: changing merit selection by statute, not constitutional amendment? Votes March 18

March 15th, 2013

I’ve noted before the sort of odd situation going on in Arizona and separately in Indiana, namely state legislatures trying to alter merit selection systems established in the constitution via statue.

Arizona’s HB 2600: The state’s constitution (as I noted in this post) requires the state’s trial and appellate nominating commission provide ”the names of not less than three persons” (appellate) or “not less than three individuals” (trial). Yet HB 2600 provides the commissions “shall submit to the governor the names of at least five persons… except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names.”

Indiana’s SB 103: Marcia Oddi of the Indiana Law Blog notes the state constitution provides “The Governor shall appoint to the commission three citizens, not admitted to the practice of law. The terms of office and compensation for members of a judicial nominating commission shall be fixed by the General Assembly.” The state’s implementing statute (IC 33-27-2-1) already restricts the governor’s picks requiring one from each of the state’s three court of appeals districts. SB 103 would add a further restriction: the three people named by the governor are to come from a list of recommended candidates submitted by the president pro tempore of the senate, the speaker of the house of representatives, the minority leader of the senate, and the minority leader of the house of representatives. Oddi “wonders if it is constitutional”

The question is whether SB 103 would impose additional requirements on the selection by the Governor of the citizen members of the commission, beyond those outlined in the Constitution.

SB 103 would require the Governor to make his selection from “a list of recommended candidates” submitted by the House and Senate leadership.

Both bills will have key committee votes on March 18: Arizona HB 2600 before that state’s Senate Rules Committee and SB 103 before the Indiana Senate Judiciary Committee.

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Merit selection for judges: efforts to adopt it, extend it, end it or change it advance in 4 states in last 3 days UPDATE: 5 states

March 13th, 2013

The last 3 days in particular have probably been the most active 3 days for merit selection in decades, with efforts to end it, adopt it, extend it, or change it advancing in 4 states.

Adopt it: Minnesota HB 1083 is a constitutional amendment and statute that goes into effect if the amendment is approved. The amendment creates a merit selection system for all judges in state and requires judges up for retention election be subject to judicial performance evaluation commission. It was approved by the Minnesota House Elections Committee Tuesday.

Change it (1): Arizona’s HB 2600 would expand from the constitutionally established minimum of 3 to a minimum of 5 the number of names a governor must receive from a judicial nominating commission in the state. The increase, previously approved by the full House, passed the Senate Judiciary Committee Monday.

Change it (2): Oklahoma SJR 24 would keep the merit selection system, but provide for no retention elections and a single, 20-year term  (see this post)

Extend it: I’ve noted in the past that Tennessee’s merit selection system is set to statutorily sunset this year, leaving no way for appellate judges to be elected. HB 835 would extend the state’s performance evaluation commission, a part of the merit selection system, until 2014. Coupled with HB 796 (previously approved by the full House in February) which extends the judicial nominating commission, merit selection would remain in place in the state until at least 2014. HB 835 was approved by the House Government Operations Committee earlier today.

End it (1): That 2014 date is important because Tennessee’s SJR 2 will be on the 2014 ballot and replace the state’s merit selection system with a quasi-federal one. SJR 2 passed the Hose with the required 2/3rds majority on Monday.

End it (2): The other legislature moving to end merit selection was Kansas. HB 2019, approved by the House Committee of the Whole Tuesday, would end merit selection for the state’s Court of Appeals only. A parallel effort to change it for the state’s Supreme Court, which would required a constitutional amendment, while obtaining the 2/3rds majority in the Senate earlier in the session does not appear to have the 2/3rds votes in the House.

UPDATE 3/14/13 End it  (3): Oklahoma SJR 21  would end merit selection for the state’s appellate merit selection system (see this post)

 

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Arizona legislature may require study of state’s mental health courts

March 4th, 2013

Like many states, Arizona makes use of mental health courts, specialized dockets or court calendars that focus judicial resources on those with mental illness. According to the legislature, the Arizona Superior Court system started in 2004 and the House Judiciary Committee has now requested, in the form of HB 2310, that the state’s administrative office of the courts review and evaluate the program.

(Note: HB 2310 originally dealt with how long a person had to a claim with the Department of Revenue; the House Judiciary Committee approved a “strike everything” amendment that removed every word from the original HB 2310 and replaced it with the mental health courts language.)

In addition to reviewing the program, HB 2310 requires the AOC to develop standards, encompassing data gathering and reporting procedures to facilitate annual evaluations and audits and ensure comparative data across this state for the design, training in and procedures.

HB 2310 could be voted on as early as today by the full House.

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Efforts to enact, modify, or end merit selection for judges: what is moving and what is not

February 27th, 2013

I’ve had several readers ask for a synopsis of what is gong on in states to enact, modify, or end merit selection in 2013. This post is intended to respond to those queries. The latest information can always be found at the Gavel to Gavel database located here.

Details below the fold.

» Read more: Efforts to enact, modify, or end merit selection for judges: what is moving and what is not

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Arizona House votes on bill this week to change state’s merit selection system by statute rather than constitutional amendment; oddly bill is NOT before the Judiciary Committee

February 18th, 2013

Arizona’s merit selection system was the subject of a package-amendment (Proposition 115) introduced in 2011 that failed at the November 2012 ballot box 27-73. Included in the Proposition was a provision requiring the state’s merit selection commissions give governors at least 8 names to select from, up from the constitution’s currently provision of at least 3. Apparently undaunted by the loss, advocates for changing the way the state’s merit selection system is set up are apparently trying to change by statute what they could not change by constitutional amendment.

Article 6, Section 37 of the state’s constitution provides for a merit selection commission for the state’s appellate courts. Paragraph A lays out the framework: the commission on appellate court appointments is to submit to the governor “the names of not less than three persons” to fill a vacancy on the Supreme Court or Court of Appeals. Article 6, Section 41, Paragraph I has similar language with respect to the state’s Superior Courts that use merit selection: “not less than three individuals”.

HB 2600 adds a new section in state law to provide that the governor be given at least 5 names for any vacancy. In addition, it requires the voting records for all commission activities be made public, including and specifically how individual commissioners voted on individuals being considered.

Unlike the failed Proposition 115, which was a constitutional amendment requiring approval by Arizona voters, HB 2600 purports to make the change by statute, requiring only the legislature and a governor’s signature.

HB 2600 is set for a vote on Wednesday (February 20) not in the House Judiciary Committee, where all prior efforts to change the state’s merit selection have been dealt with, such as HCR 2010 of 2013 which would require judges in yes/no retention elections that are part of the state’s merit selection system identify on the ballot their party affiliation.

Instead, the House Public Safety, Military and Regulatory Affairs Committee will be voting on the measure this week.

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Arizona Supreme Court’s control over state bar debated, contested in House Judiciary Committee hearing

February 14th, 2013

Every state, either by statute, constitution, or case law, vests with the state’s courts power over bar admission specifically and lawyers in general. Arizona, however, is among several states that have legislatures that are seeking to take away or involve themselves more directly into controlling the bar.

On February 14, 2013 the Arizona House Judiciary Committee debated HB 2480. On the one hand it would require the state’s supreme court to adopt rules to license attorneys for the practice of law in Arizona, something the supreme court already does. It would also end the practice whereby an attorney is obligated to join the state bar in order to practice law.

After about 38 minutes of debate, the bill was held over to be debated further at another committee hearing.

www.youtube.com/watch?v=xotdkMf61Ic

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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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