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Did Kansas Senator threaten funding for courts if judges didn’t accept change to merit selection? Similar efforts occurred in FL in 2011.

May 15th, 2013

I’ve mentioned over the last two years the numerous efforts by Kansas Republicans to change the merit selection system used for the state’s appellate courts. Efforts to change it by statute for the Court of Appeals was approved earlier this year, but GOP members have not gotten the 2/3rds of the House needed to change it for the Supreme Court.

Now comes word from the state’s Chief Justice that the Senate Judiciary chair and prime sponsor of the change away from merit selection attempted to link court funding to the changes (h/t to Gavel Grab for the pointer). A Topeka Capital Journal article details the accusation and denials.

If the Kansas Senate did attempt to link changes to judicial selection with court funding, it would not be the first time. When Florida attempted to change not only merit selection but the structure of the supreme court itself (splitting it into two courts) those seeking to end merit selection was tied with a constitutionally guaranteed 2.25% appropriation of general revenue funds.

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Posted in Salary & Budget, Selection

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Citing complaints about tort reform, death penalty speed, and a conspiracy, Arkansas, Florida, and New Hampshire consider restricting or eliminating supreme court’s rule making power

March 27th, 2013

The majority of state constitutions grant the state’s court of last resort (usually called the “supreme court”) some degree of rule-making authority over practice and procedure in the state. This legislative year there have been several efforts to enact statutes that would effectively negate court rules, but in three states in particular there have been pushes to simply remove or curtail the supreme court’s power outright.

Arkansas Amendment 80, Section 3: “The Supreme Court shall 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.”

SJR 5 and SJR 6 effectively transfer the power over such rules to the legislature. News reports indicate the impetus are recent state supreme court rulings regarding a 2003 tort reform law.

SJR 5, as currently proposed after several author’s amendments, provides “The General Assembly shall delegate nonexclusive authority to the Supreme Court to prescribe rules of pleading, practice and procedure and the rules of evidence for all courts…”

It then adds a new paragraph to Amendment 80, Section 3 that details the extent of the legislature’s new power:

Except as expressly delegated by the General Assembly, the Supreme Court has no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts.  Notwithstanding the delegation of rulemaking authority, the General Assembly may enact laws that supersede the rules of pleading, practice, and procedure and the rules of evidence for courts.

Additionally, SJR 5 strikes another provision (Amendment 80, Section 11) that gives the supreme court the power to adopt rules to grant a right of appeal.

SJR 6 is even more restrictive and provides the General Assembly “may” delegate authority to the Supreme Court when it comes to rulemaking. It provides only that “The General Assembly shall prescribe the rules of pleading, practice ,  and procedure for all courts; provided that the General Assembly shall preserve the right of trial by jury as declared in this Constitution.”

Florida Article V, Section 2(a): “The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought.”

In 2000, the Florida legislature enacted the Death Penalty Reform Act of 2000 (HB 1A of the 2000 Special Session) a law to speed up executions in the state by setting time limits for court decisions and other activities. The state’s supreme court, citing Article V, Section 2(a) struck down the statute three months later in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000).

SJR 1740 would amend the state’s constitution to add Section 2(b):

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

HJR 7081, filed after SJR 1740, reads similarly

Notwithstanding subsection (a), the procedures for postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

New Hampshire Article 73-a: “The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.”

If Arkansas and Florida are notable in their novelty (the particular constitutional amendments are newly introduced this year) New Hampshire’s CACR 4 is notable for its repetition: three times in the last decade (2002, 2004 and 2012) voters have rejected efforts to give the legislature power over rulemaking by the state’s supreme court. CACR 4 of 2013, repeating CACR 39 of 2006, and CACR 20 of 2010, rather than adding a power for the legislature to amend or override rules of court instead strikes the sentence “The rules so promulgated shall have the force and effect of law.”

The author of CACR 4 asked it be rejected (see page 307 here) and replaced with a bill (such as HB 1193 of 2006 or  HB 1194 of 2011) claiming a conspiracy took place when the original Article 73-a was adopted in 1978. Under the theory the sentence “The rules so promulgated shall have the force and effect of law” was not on the ballot text on the 1978 ballot as Question 4, therefore the voters never approved it (a statutory change in 1979 ensured that all future ballot questions would include the entirety of the amendment).

The same member of the New Hampshire House was also a prime sponsor of HB 638 of 2013, which claimed a conspiracy that the “real” 13th Amendment to the U.S. Constitution was removed and that a different one (the one banning slavery) put in instead.

 

 

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Posted in Rule Making Authority

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Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

March 19th, 2013

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

» Read more: Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

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Posted in Qualification & Terms

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For fourth time in five years, Florida bills would provide additional funding for courts, but only if judicial immunity is retroactively ended and judicial disciplinary commission changed

March 14th, 2013

I’ve mentioned the past several years Florida’s efforts to tie funding for the courts to changes in either merit selection or court structure. For example at one point an effort to split the state’s supreme court into civil and criminal courts, an move all Democratically appointed justices of the current court to the new criminal court, was tied with a constitutionally guaranteed 2.25% appropriation of general revenue funds.

Now for the the 4th time in 5 years, a push is on to pay for the state’s courts only if judicial immunity is ended and the state’s judicial disciplinary commission processes and membership is changed.

All the bills in question (see below) provide for the creation of a Fiscal Stability Trust Fund to be created and funded with an automatic appropriation of 1% of the state’s budget to be controlled by the state’s Supreme Court in order to pay for running the judiciary.

In the 2009 version of the bill, the trust fund and changes to the state’s courts were in the same bill; since 2010 the bills have been separated with a link: passage of the additional funding for the courts would come only when the other bill was enacted.

In exchange for funding, the courts would be required to agree to a retroactive elimination of judicial immunity in a variety of specified contexts dealing with court proceedings. Additionally, the Judicial Qualifications Commission (JQC) and specific JQC investigation panels must include at least 5 “common citizen electors” as a staff committee, none of whom may be “officers of the court” and who must prepare a separate report on the investigation that is to be made publicly available. Both the state courts system in general, and the JQC in particular, would be subject to an immediate audit by the state’s Auditor General and the Office of Program Policy Analysis and Government Accountability conduct full audit review of commission, a review to be repeated every two years.

This years bills have been referred to their respective Judiciary Committees.

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Posted in Rule Making Authority, Salary & Budget, Structure Changes

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Citing need to speed up executions, Florida bills would remove state’s supreme court rulemaking power regarding death penalty cases

March 8th, 2013

Attacks on the Florida Supreme Court’s rule making authority in the last several years have taken on the issue broadly. In particular, several bills in the 2011/2012 session would have provided the legislature could override such rules by a simple majority (now required 2/3rds). SJR 1740, introduced this week, however, takes on a new tack and specifically limits the court’s power with respect to death penalty cases.

Florida Constitution Article V, Section 2(a) reads:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought.

SJR 1740 would add a new subsection (b) to read

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

Just such a general law (SB 1750) was filed along with SJR 1740. SB 1750 details the express purpose for the bill and amendment is to overturn a decision by the state’s supreme court striking down a prior legislative effort to speed up executions (HB 1A of the 2000 Special Session)

WHEREAS, in order for capital punishment to be fair, just, and humane for both the family of victims and for offenders, there must be a prompt and efficient administration of justice  following any sentence of death ordered by the courts of this state, and…

WHEREAS, the Death Penalty Reform Act of 2000, chapter 2000-3, Laws of Florida, was declared unconstitutional by the Florida Supreme Court three months after becoming a law in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000), as being an encroachment on the court’s “exclusive power to ‘adopt rules for the practice and procedure in all courts,’” …

Both SJR 1740 and SB 1750 have been assigned to the Senate Judiciary Committee.

 

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Posted in Rule Making Authority

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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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Posted in Selection, Special Edition

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Citing pre-Civil War law, Tennessee legislature wants to fine judges $500 who fail to open court, while Florida wants to repeal their almost identical statute

February 18th, 2013

Most states continue to make use of “terms of court”, many referencing statutes that are as much as 200 years old, to bracket the individual segments of a judicial year. Two states are confronting how to handle the question of modernization of “terms of court”: Florida wants them repealed; Tennessee wants judges to pay if they are missed.

Florida’s statutes 26.37 through 26.40 trace back at least as far as 1849 (just after the state jointed the Union) and lay out the expectations for (in this case Circuit Court) judges: they are to attend the first day of their “term” unless sick or stopped by “providential causes.” Terms are to be held at least twice a year in each county, but other statutes dating back to at least 1879 specify by name 3 terms or more by statute (Spring, Fall, and Winter terms, in this example for the First Judicial Circuit).

Under 26.37, failure to attend the opening day of a new term would result in $100 being deducted from the judge’s salary for every day missed.

Under HB 7017 and SB 746, all references to terms of court would be eliminated from statutes that currently have them. The Supreme Court could re-establish them, let the lower courts create their own, or simply end the practice altogether. This is the third year in a row Florida’s tried to end the use of “terms of court”; they have usually failed because of they were attached to another more controversial bill, or because controversial aspects were added to them.

  • HB 7031 / SB 2276 (2010) Approved by full House, died in Senate Judiciary Committee.
  • HB 1379 (2011) Also included references to pretrial release programs. Died on House floor.
  • HB 7023 (2011) Died on House floor.
  • SB 1398 (2011) Also included references to conduct of lineups. Approved by full Senate. Died on House floor.
  • HB 631 (2012) Approved by full House. Died in Senate Judiciary Committee.
  • SB 462 (2012) Died on Senate floor.

Tennessee’s legislature is considering something quite the opposite. Not only with terms of court remain in their statutes, but judges could be fined if they missed their term. Tennessee Code 17-1-202 is similar to Florida’s 26.37 and dates back nearly as far (1853/1854 vs. Florida’s 1849): judges must open their court on the first day the term starts or within 3 days thereafter; failure to do so currently costs the judge $100. Under HB 1124 and SB 1056 the penalty would be increased to $500. Interestingly, this appears to be the first time in decades there has been an attempt to amend this law.

 

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Posted in Other, Salary & Budget

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Florida bill would raise mandatory judicial retirement age, but as in past efforts there’s a catch

February 14th, 2013

Earlier this week I noted several states that are trying to raise or eliminate the state’s mandatory judicial age. Florida may well be added to the list, but the plan in that state has a catch

Currently, Florida judges must retire at age 70, but may serve out the term in which they turn 70 if they’ve already completed at least half of the term. Constitutional amendments HB 747 /  SJR 570 would raise the age from 70 to 75, but only for judges elected or appointed after January 1, 2014.

Florida’s legislature has a history of offering up increases to the state’s mandatory retirement age with a catch (or two).

1996: One major wave of activity was in 1996. HJR 1415 and SJR 978 of that year would have allowed the legislature to increase the age to 72 (House) or any age (Senate), but would have also altered both the state’s merit selection system and  judicial qualifications commission membership and procedures. A version without the increase to the retirement age but allowing the merit selection commission to recommend up  to 6 people to the governor (rather than 3) went onto the ballot as Amendment 3. In addition, SJR 578 of the same year would have increase the age from 70 to 72 outright, but merged the state’s County Courts into the Circuit Courts.

2002: The next wave of activity again focused on tying the increase in age to changes to the merit selection system. HB 1465 and the similar HB 567 eliminated the retirement age, but ended merit selection for the state’s supreme court. SB 162 would also have eliminated the mandatory retirement age, but at the cost of ending merit selection altogether. SB 162 was approved by the Senate Judiciary Committee but died in the Senate Rules Committee.

2012: The latest wave of activity started last year with two bills. HJR 345 would have raised the age from 70 to 75. SJR 408 as introduced would have done the same but was committee amended to apply only for judges elected or appointed after a certain date (January 1, 2013 in that case). SJR 408 was approved by the full Senate on but died in the House.

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Posted in Qualification & Terms

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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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Posted in Structure Changes

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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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Posted in Jurisdiction

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