Posts Tagged ‘Tennessee’

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Tennessee legislative leaders, members, clashing over judicial elections; vote today on return to contested elections

February 7th, 2012

Several weeks ago, Tennessee’s top leadership (Governor, House Speaker, and Senate Speaker) came out in support of a plan to extend (statutorily) the state’s existing merit selection system in the short term and push in the long term for a constitutional amendment to enshrine the system (h/t Gavel Grab). That announcement, however, is not stopping several rank and file members of the legislature pushing to return the state to direct head-to-head contested elections for appellate courts, a fight that is coming to a head today.

After the January 26 announcement by the leadership, a January 31 committee vote on a House measure to instead end merit selection and replace it with contested elections (HB 173) was shelved. The vote has been rescheduled for today, however, and according to the Twitter feed for the Tennessee Bar Association, the sponsor indicates he thinks he has the votes to buck the leadership and get the measure out of committee.

As a reminder, if no action is taken by July of this year, the merit selection system “sunsets” over the course of the next year and it is not clear what would happen. The state’s Attorney General in 2009 issued an opinion (09-43) that with the no explicit statutory language for conducting direct elections, sitting judges would simply remain in office indefinitely due to a constitutional provision (Article VII, §5) that provides a judge “shall hold his office until his successor is elected or appointed, and qualified.”

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Tennessee bill would prohibit litigants from filing civil suits until all debts owed the court are paid off

February 6th, 2012

Last year Tennessee enacted a law that would revoke the driver’s license of anyone owing debt to the court. A new effort introduced to also ensure court costs and fees are paid would prohibit filing of civil suits until the debt is paid off.

HB 3034 / SB 3053 prohibit a court clerk from accepting the filing of another claim by a litigant who owes fees, taxes, costs and other expenses. The bills provide a limited exception, allowing a litigant to file if the relief sought “seeks injunctive relief to prevent irreparable injury or serious physical harm to the litigant.”

The bill is set for hearing before the Senate Judiciary Committee’s main subcommittee on February 8.

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Posted in Salary & Budget

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Tennessee legislator withdraws bill to end judicial review in the state

January 25th, 2012

A bill introduced by the chair of the Tennessee Senate’s Judiciary Committee that would have ended judicial review of state laws has been withdrawn. According to the Tennessee Bar Association’s TBA Today, the Senator’s proposal “to control out-of-control courts”  faced opposition from both sides of the aisle. Other bills withdrawn by the Senator along with the ban on judicial review were ones that exempted all Tennessee-made goods from federal regulation under the commerce clause and required all presidential candidates prove they are natural born citizens.

 

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Posted in Jurisdiction

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Tennessee bill would end judicial review of all statutes, but loophole might allow Court of Appeals & Court of Criminal Appeals to hear such cases

January 13th, 2012

A Tennessee legislator is attempting to do by simple statute what New Hampshire legislators are attempting to do by state constitutional amendment, namely, ending judicial review of state statutes.

Under SB 2348 as introduced, the Supreme Court, Circuit Courts, and Criminal Courts “shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law in accordance with Article II, § 18 and Article III, § 18 of the Tennessee constitution.” A similar provision applies against the state’s Chancery Courts.

The bill is curious for two reasons.

First is the question of whether or not a mere statute can strip the courts of the power of judicial review (as noted, the New Hampshire parallel would be a state constitutional amendment).

The second is that while the state’s highest court (Supreme) and general jurisdiction trial courts (Circuit, Criminal, Chancery) are cited by name, the state’s intermediate appellate courts (Court of Appeals on the civil side and the Court of Criminal Appeals) are not.

For example, the change to the Supreme Court would be an amendment to Tennessee Code Annotated Section 16-3-201 which discusses the supreme court’s jurisdiction in general. Similarly cited are Section 16-10-101 (Circuit and Criminal Court – General Jurisdiction) and Section 4-5-225 (providing review of the validity or applicability of a statute lies in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute.)

Missing are any changes to the jurisdiction of the Court of Appeals (16-4-108) and the Court of Criminal Appeals (16-5-108).

In addition, absolutely no mention is made of the state’s other courts (General Sessions, Probate, Juvenile, and Municipal).

 

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Now Tennessee considers drug testing judges

January 12th, 2012

I noted several weeks ago the press by some elected officials to drug test welfare recipients is leading other legislators to want to drug test elected officials (including judges). Now Tennessee is considering such a proposal but, rather than citing to drug testing welfare recipients, is citing the state’s drug-free workplace laws.

Under Section 1 of HB 2432 as introduced, the speakers of the House and Senate would be required to create a drug-testing regime for members of the General Assembly “consistent with the provisions for a drug free workplace under title 50, chapter 9″ and specifically cites Tenn. Code Ann. § 50-9-106(a)(1), which authorizes private employers to conduct drug tests.

Section 2 of the bill goes on to require the Tennessee Ethics Commission “develop and implement a system for drug testing all persons who are elected to public office”, again citing 50-9-106(a)(1).

Because judges in Tennessee are “elected to public office” (through partisan or non-partisan election at the trial and a merit selection/retention election system at the appellate level) they would appear to be covered under Section 2 as “elected to public office.” Section 3, however, confusingly does not specifically require the Supreme Court administer such a program, but the court is “urged” to do so.

The Tennessee supreme court is urged to develop and implement a system for drug testing all persons who are elected to judicial office. The system should provide for the testing of elected public officials in a manner consistent with the provisions for a drug free workplace under title 50, chapter 9. The expenses of the system may be paid from applicable accounts of the judiciary for official purposes.

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Jury nullification bills: active in 2011, moving in 2012?

December 22nd, 2011

The issue of jury nullification has come back up into the news lately, but it has been peculating in state legislatures for the last several years. New Hampshire nearly passed a law in 2011 and may yet do so in 2012 that would have required judges instruct jurors about the power to nullify.

2012

Iowa HB 542 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

Iowa SB 318 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

New Hampshire HB 146 AS AMENDED: Provides in all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. Provides the court shall permit the defendant or counsel for the defendant to explain this right to the jury. Approved on  voice vote by full House 3/15/11. Rejected by Senate Judiciary Committee  on tie (2-2) vote 5/26/11. Rejected by full Senate 8-12 on 6/1/11. Re-referred to Senate Judiciary Committee. Carried over into 2012 session.

Tennessee HB 1831 Requires, in any criminal jury trial, the trial judge to inform jurors with the following statement, verbatim “In Tennessee and throughout America, jurors possess the responsibility and fundamental right to judge the facts and the law in any court. Jurors are empowered to decide if a law is just, moral, and constitutional. Additionally, jurors are empowered to decide if that law has been violated. A verdict of ‘Guilty’ condemns the defendant, and a verdict of ‘Not Guilty’ absolves the defendant of any wrongdoing. The juror’s conscience dictates the exercise of this power.” Carried over into 2012 session.

2011

Iowa HB 542 (see above) Carried over into 2012 session.

Iowa SB 318 (see above) Carried over into 2012 session.

Montana HB 332 Provides parties have the right to argue to the jurors that a law is unconstitutional, is unconstitutional as applied, or should be nullified for any other reason. Provides upon request by a party, the court in any jury trial shall inform the jurors that the jurors may judge both the facts and the law in the case. Provides denial of the instruction is reversible error. Tabled by House Judiciary Committee 18-2 on 2/21/11.

New Hampshire HB 146 (see above) Carried over into 2012 session.

Tennessee HB 1831 (see above) Carried over into 2012 session.

2010

New Hampshire HB 1347 Provides that in all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. Provides the court is also mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House Judiciary Committee 13-7 on 2/2/10. Rejected by full House 234-113 on 2/17/11.

2009

Alaska HB 140 Provides a defendant has the right to inform the jury of the jury’s power to judge the just application of the law and to vote on the verdict according to conscience. Further provides failure to allow the defendant to inform the jury of the jury’s power is grounds for a mistrial. Died in House Judiciary Committee.

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Bans on court use of sharia/international law: Pennsylvania bill introduced

November 28th, 2011

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. » Read more: Bans on court use of sharia/international law: Pennsylvania bill introduced

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Posted in Jurisdiction, Other, Special Edition

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Tennessee Government Operations Joint Subcommittee on Judiciary and Government examined judicial selection, judicial discipline

November 16th, 2011

Tennessee’s Government Operations Joint Subcommittee on Judiciary and Government met on November 15 to examine a variety of issues already discussed in previous interim meetings. The morning session examined:

  • The state’s Court of the Judiciary, the judicial disciplinary body for Tennessee
  • Judicial Nominating Commission
  • Judicial Performance Evaluation Commission

Media coverage indicated legislators intended on becoming very involved in all these bodies in the 2012 session.

The afternoon session focused on:

  • Tennessee Residence Commission
  • State Capitol Commission
  • Department of General Services
  • Tennessee Emergency Management Agency and Related Compacts

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Posted in Interim Activities, Rule Making Authority, Selection

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Tennessee: Constitutional showdown over recusal statutes?

October 3rd, 2011

Greetings TBA Today readers!

According to this post from Gavel Grab, the Tennessee legislature is considering a legislative enactment regarding judicial recusal. For prior blog posts on events in Tennessee, click here and here. For a review of all recent efforts to make changes to Codes of Judicial Conduct, see Issue 5:31.

The Gavel Grab post cites this Knoxville News Sentinel article, as follows:

Legislators are eyeing repeal of the state law that allows keeping the admonishments wayward judges receive secret and imposing stricter rules concerning when judges must bow out of a case when accused of a conflict of interest.

…

Changing the rules for recusal of a judge, which are now established by the state Supreme Court, also is criticized on policy grounds. But it could also be a violation of the state constitution, according to Chris Craft, presiding judge of the Court of the Judiciary (COJ).

As I noted in my article “’The Legislature Must Save the Court From Itself?’: Recusal, Separation of Powers, and the Post-Caperton World” in the Drake Law Review, it is not unheard of for legislatures to try and impose by law recusal standards for state courts. Moreover, it is also not unheard of for the same courts to strike down the laws as a violation of the state constitution. I suggested four possible outcomes: Cooperation, Co-option, Comity, and Conflict.

Missouri had a similar instance in the late 1990s which was decidedly in the Conflict category. There, the legislature tried to expand a 1978 recusal statute (Mo. Ann. Stat. 105.464).

The expansion was struck down by the state’s Supreme Court on the grounds that its “‘general superintending control over all courts and tribunals’” and power to “‘establish rules relating to the practice, procedure, and pleading for all courts,’” rendered the expansion a “violat[ion of] constitutional principles concerning separation of legislative and judicial functions.”  (Weinstock v. Holden, 995 S.W.2d 408, 410–11 (Mo. 1999) (per curiam)).

A few weeks after Weinstock was handed down, the legislature adopted a repeal of the expansion, but kept in place the original 1978 statute that imposed criminal sanctions for judges who heard cases in which they were related to a party.

So, will Tennessee end up in Cooperation, Co-option, Comity, or Conflict? We’ll see when the legislature comes back on January 10 or even earlier if a bill is filed before session starts.

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Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

October 3rd, 2011

This post has been updated. Click here.

Since the last update of this list in August, two pieces of legislation have been introduced. Michigan’s SB 701 appears to be the Senate version of HB 4769, which has gone nowhere since its June introduction.

The other bill is Alabama SB 33 of 2012, a prefiled bill for the next session. SB 33 of 2012 is a constitutional amendment that looks more like HB 607 / SB 61 than HB 597 / SB 62 in that it does not specifically mention “sharia”.

It should be noted that at least some 2011 bills will make a return in 2012; roughly half of states allow bills to be “carried over” from one session to the next. Definitive answers as to which bills will return will be available as the legislatures come back into session in January.

Full roster of bills going back to 2010 after the jump.
» Read more: Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

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Posted in Jurisdiction, Other, Special Edition

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