Posts Tagged ‘Tennessee’

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Tennessee legislature debates: 1 court efiling vendor or multiple vendors authorized by AOC?

April 12th, 2013

As states move to efiling of court documents a dilemma can arise between individual counties seeking out their own efiling systems and the desire to have uniformity throughout a state. Tennessee confronted this situation in the 2013 legislative session and appears set to send its solution to the Governor.

HB 418 / SB 1050, as introduced (and discussed on the blog here), would have required a single system approved by the Administrative Office of the Courts (AOC).

Unless otherwise provided by law, on or after the effective date of this act, all courts in this state shall utilize the same system provider for operating an electronic court filing system. Such provider shall be determined by the administrative office of the courts.

Neither bill went anywhere.

Instead, late in the session an amendment was offered to replace the text of another bill set: HB 1226 / SB 1057. Under this language counties could use any system approved by the AOC and that met criteria and technical specifications set by the AOC.

Unless otherwise provided by law, all courts in this state that implement an electronic court filing system pursuant to Tennessee Supreme Court Rule 46 and Tennessee Rule of Civil Procedure 5B shall utilize only a system provider authorized by the administrative office of the courts. The administrative office of the courts shall establish technical standards with the goals of ensuring integrity of filings, assuring an environment that promotes uniformity and ease of filing, and providing the framework for future compatibility among e-filing solutions implemented by local and state courts. Nothing in this section shall require the administrative office of the courts to begin implementing a statewide e-filing system.

The Senate version passed the Senate April 10, the House then adopted the Senate bill on April 11.

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

April 8th, 2013

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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Efforts by Tennessee legislature would re-write entire judicial performance evaluation system, let JPEC block judges from seeking retention election

March 28th, 2013

I’ve mentioned in the past the difficulty Tennessee has had with its merit selection system; the commissions that form the basis for it (the judicial nominating commission (JNC) and the judicial performance evaluation commission (JPEC)) must be reauthorized every few years or they automatically “sunset”. In past years the extensions have been granted by the legislature at the last minute; 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”).

This year’s batch of bills to extend the commissions, at least until voters get to decide in November 2014 whether to adopted a quasi-federal system of judicial selection, have been bogged down in efforts to revamp the commissions, potentially leading the JPEC being shut down completely due the subcommittee with jurisdiction over the bill having shut down already. (h/t Tennessee Bar Association Twitter feed for the pointer).

The focus on the fight has been HB 1227 / SB 1058. As introduced, the bills had nothing to do with the commissions; it would have simply added the Government Operations Committees of the Senate and House of Representatives to the list of legislative committees required to receive a report from the administrative director of the courts on judicial appointments.

As amended in the Senate Judiciary Committee, however, SB 1058 effectively removed all existing JPEC members and reconstituted the commission with no judges (currently there must be 3 out of 9). The new JPEC would be allowed to rewrite any existing evaluation criteria (current criteria are set by Supreme Court Rule 27).

Moreover, the JPEC could have prohibited a judge from even seeking re-election via retention election. Currently if the JPEC recommends against retention (deemed “for replacement”), the judge can nevertheless run anyway; under the amendment to SB 1058 the JPEC’s recommendation against retention barred the judge’s name from even being on the ballot.

Meanwhile, the bills to allow for a simple extension of the existing deadlines for the JNC and JPEC have failed to advance to the Governor’s desk.

HB 796 / SB 566 : Extend the JNC to 2013, with the 1 year wind down that would mean the commission could function until June 2014. The House adopted its version simply extending the deadline on February 21. The Senate, however, has gone nowhere.

HB 835 / SB 567: Extend the JPEC to June 30, 2014, with the 1 year wind down that would mean the commission could function until June 2015. The House adopted its version simply extending the deadline on March 18. The Senate, however, has gone nowhere.

HB 364 / SB 215: Extend the JNC to June 30, 2015. Neither the House nor the Senate version has advanced.

HB 695 / SB 216: Extend the JPEC to June 30, 2015. Neither the House nor the Senate version has advanced.

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Tennessee will not have its Supreme Court involved directly in declaring governor incapacitated

March 21st, 2013

I mentioned in February a plan by the Tennessee Senate (SJR 103) to provide for a process to declare the state’s governor incapacitated or so disabled that he or she would be removed on a temporary basis.

A portion of the plan would have had the Attorney General, in consultation with the Secretary of State, Comptroller of the Treasury, and Treasurer,  petition the Supreme Court seeking a declaration the governor was “unable to perform the powers and duties of the office.” The court would rule on the petition and could remove the governor, who could then re-petition the Supreme Court for reinstatement.

During a hearing of the Senate Judiciary Committee, an amendment was offered that removed any mention of the Supreme Court. Instead, a majority vote of 5 officers (Speaker of the House of Representatives, the Speaker of the Senate, the Secretary of State, the Treasurer, and the Comptroller of the Treasury) would be all that is required. The Governor would resume power after submitting a letter to the two Speakers.

The bill, as amended, was approved by the Senate Judiciary Committee on March 12.

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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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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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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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As more states try to require their judges be lawyers, Tennessee may move in opposite direction

February 19th, 2013

In the last several years, various states have moved away from the practice of allowing judges to be non-attorneys. Georgia, for example, in 2011 required all newly appointed or elected Municipal Court judges to be attorneys. In 2011 and 2012 Maryland’s voters approved constitutional amendments requiring at least some of their Orphan’s Courts have attorney-judges.

Tennessee’s HB 1320 and SB 1230 move in precisely in the opposite direction.

Existing laws require the judges of all the state’s courts be attorneys (judges serving prior to 1990 in some courts without a law license can continue to serve). HB 1320 / SB 1230 would provide that effective September 2013 the requirements would be repealed.

At the same time at least 4 states are considering requiring their judges be lawyers:

Indiana SB 295: City and Town Courts

Mississippi HB 633: Municipal Court

Montana HB 467: Justice of the Peace Courts that are courts of record

New Mexico HB 119: Metropolitan Courts

New Mexico SB 237: Probate Courts in counties with a population over 500,000

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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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