Alabama: Senate approves Judicial Resources Allocation Commission with power to move judgeships; requires more uniformity in how cases are counted throughout state

Earlier this week the Alabama Senate approved SB 90 to provide for the creation of a Judicial Resources Allocation Commission. The bill, as approved by that chamber, is a follow-up to similar legislation introduced over the last several sessions discussed here, here, and here. Media reports here. Key provisions of the bill include:

Moving Judgeships

Based on a review and ranking system (see below) the Commission by 2/3rds vote could move a vacant judgeship from one circuit/district to another without having to rely on legislative approval. The movement of a judgeship by the Commission would be limited in several ways

  1. The move can only occur where the judgeship is vacant by death, resignation, mandatory retirement, forced removal, or similar case.
  2. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the circuit or county ranking list (see below).
  3. Every county is entitled to at least one District Judge.
  4. No circuit can lose more than 1 judgeship in any 2-year period.
  5. No change can be made until 3 years of data are available after the revision of criminal case-count factors in the Judicial Weighted Caseload Study (see below).

Membership

The Commission would include the Chief Justice of the Supreme Court as chair. Prior versions introduced in the House did not include the Chief Justice.

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • the Attorney General
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 2 attorneys picked by the president of the Alabama Bar
  • 1 attorney picked by the president of the Alabama Lawyers Association

Rankings/Criteria

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 5 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit, including whether there are specialized divisions
  4. Uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits; versions introduced in prior sessions did not include this provision
  5. Any other information the commission deems relevant

Addressing lack of uniformity in criminal data/case counts

In addition to the requirement for uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits, data/calculations are specifically called out especially in those areas that count each separate criminal charge against a criminal defendant as a separate criminal case. Under SB 90 the Alabama Supreme Court must “revise the factors considered in the Judicial Weighted Caseload Study to uniformly, fairly, and accurately account for criminal cases by counts brought against a defendant.”

SB 90 now goes to the House.

NC: So how many other states/courts elect their appellate judges in a partisan manner? It’s complicated.

Amid the debate on SB 4 today and the decision to switch North Carolina’s Supreme Court and Court of Appeals from nonpartisan to partisan races, there’s been a good amount of discussion of how many other states and appellate courts have partisan elections. Numbers have ranged widely. The reason for this is fairly straight forward in that for many states it is not a straight forward answer.

There are 8 states with 9 courts in which at one point or another justices of the supreme court/court of last resort show up with a party label somehow. It was 9 states with 10 courts until 2015 when West Virginia ended partisan races for their Supreme Court of Appeals.

  1. Alabama: partisan primaries and partisan general elections.
  2. Illinois: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Illinois Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 60% “yes to retain” vote.
  3. Louisiana: The state uses a “blanket primary” in which all candidates appear with party labels on the primary ballot. The two top votegetters compete in the general election. Thus in the general election, you could have two Republicans vying against each other for the seat, as occurred most recently in 2016 when Republican James “Jimmy” Genovese defeated fellow Republican Marilyn Castle for the 3rd Supreme Court District (Louisiana elects their justices by district, not statewide).
  4. Michigan: candidates for Supreme Court are nominated by political parties but the actual ballot in November is nonpartisan (i.e. no party labels).
  5. New Mexico: very complicated. When a vacancy occurs on the New Mexico Supreme Court, it is initially filled via merit selection (nominating commission sends list of names to governor, governor picks). The newly appointed justice must then run in a partisan primary and partisan general election but only for the first election. If a person does get elected to the New Mexico Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 57% “yes to retain” vote.
  6. Ohio: Partisan primaries, but nonpartisan general elections.
  7. Pennsylvania: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Pennsylvania Supreme Court, the next time they are up they are put into a yes/no retention election (50% “yes to retain” to remain in office).
  8. Texas: Everything is bigger in Texas, including their appellate courts. Texas has two “courts of last resort”: the Supreme Court for civil matters and the Court of Criminal Appeals. Both courts use partisan primaries and partisan general elections.

The Alabama judicial disciplinary system suspended Chief Justice Roy Moore from office, now members of the legislature want to get rid of the system or remove its powers

In September of this year Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017, as prefiled, would require legislative approval of any Court of the Judiciary decisions to remove a judge from office. Moreover, it would remove the exiting constitutional provision that “disqualifies” (suspends) a judge from office after the Judicial Inquiry Commission files charges until a final determination of the case against the judge.

SB 11 of 2017, as prefiled, goes further than SB 8 and simply abolishes both the Court of the Judiciary and the Judicial Inquiry Commission. There is no indication of what entity, if any, would replace them. The author of SB 11 described the proceedings against Chief Justice Moore as an “outrageous abuse of process.”

Also possibly coming up in 2017 will be legislation pushed for by the executive committee of the Alabama GOP to have all 9 members of the Judicial Inquiry Commission elected. Currently the commission is made up of

1 appellate judge appointed by the supreme court, but who can’t be supreme court justice

2 circuit judges appointed by the Circuit Judges’ Association

1 District Judge appointed by the Lt. Governor

3 persons who are non-lawyers appointed by the governor with confirmation by the Senate

2 members of the State Bar appointed by the Board of Bar Commissioners.

The Alabama legislature comes back into session in February.

Alabama bill would require judges give and post jury nullification instructions in courthouse or be arrested and impeached; “judges are the chief competition to the jury”

Last week the New Hampshire House approved a plan to require judges to give jury nullification instructions to jurors in that state. Now an Alabama lawmaker wants judges to post the information in courts and swear an oath to jury nullification.

Alabama HB 408 as filed yesterday provides for nearly 5 pages of rationale for the instructions/postings and warns that “While it is one thing for a Legislature to enact a statute, it is often another thing entirely to insure that the statute is properly administered free of judicial rewriting.” and “What judges today are careful to conceal from jury members is that judges are the chief competition to the jury.”

HB 408 provides that the following instructions are to be read in their entirety to every juror and posted in every courthouse

“The laws of this state are established by the vote of the duly elected representatives of your Legislature and are to be presumed as being representative of the will and purpose of the people of this state. As the will and purpose of the people change, our system of government assumes that the representatives of the people will adjust the laws governing the people accordingly. Sometimes, however, laws are passed that do not represent the will of the people, or laws are interpreted in ways that exceed the original scope and intention of the law when it was created. If you as the jury find the evidence shows the defendant violated the law, but you disagree with the law you are being asked to consider as part of your deliberations, and believe such a law should not be enforced, then you have the legal authority to return a verdict of not guilty on the ground of Jury Nullification.

“Jury nullification is nothing less than a rejection of a law of this state that has been passed by the state Legislature and signed by the Governor, and for this reason it should never be undertaken lightly. Nevertheless, jury nullification also provides an opportunity for you, as citizens of this state, to inform your government that the laws the defendant is charged with violating exceeds what you consider appropriate and acceptable in our society and should be either repealed or revised.

“If you choose to find the defendant not guilty by reason of jury nullification, then you should check the box marked jury nullification on the verdict form.”

Judges who failed to read/post this would be impeached, arrested and, if convicted, sentenced to a mandatory 3 days in jail.

Moreover, every judge in the state would be required to read a statement and swear an oath to uphold jury nullification.

Finally, “no Alabama State Supreme Court Justice, Appellate Court Judge, or Circuit Court Judge may interpret this statute.”

HB 408 has been filed but not yet assigned to a committee

 

 

Alabama: who should decide how to reallocate vacant judgeships? Senate considering two different options

Over the last several years Alabama has been considering a non-legislative mechanism to reallocate vacant (judge has died, retired, etc.) judgeships. I discussed the 2015 iterations here and here. The 2016 session now includes two bills that differ most notably in the role of the chief justice in the process.

SB 88 creates a Judicial Resources Allocation Commission made up of

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • the Attorney General
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 2 attorneys picked by the state bar’s president

The Judicial Resources Allocation Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 4 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit
  4. Any other information the commission deems relevant

It would be the Commission that would move vacant judgeships based on their report/review.

SB 88 is in the Senate Judiciary Committee.

SB 176 on the other hand uses the state’s existing Judicial System Study Commission to recommend to the chief justice changes. That Commission is made up of over 30 members, including

  • 6 members of the House
  • 6 members of the Senate
  • the state’s 16-member Judicial Conference
  • the Lt. Governor
  • a member of the Attorney General’s staff
  • the Governor’s legal advisor

Under SB 176 the Judicial System Study Commission would recommend changes, but it would be the Chief Justice alone who would make the decision on moving the vacancy.

SB 176 is in the Senate Finance and Taxation General Fund Committee.

Alabama Legislative Year in Review: Study business courts; merit selection for some judges; new retirement plan for judges and clerks elected/appointed after 2016

Law

HB 232 Increases small claims jurisdiction to $6,000.

SB 70 Expands merit selection system for filling interim judicial vacancies in Shelby County to include Probate Court. Requires approval by Shelby County voters. To appear on November 2016 ballot in Shelby County only.

SB 411 Establishes new retirement plans, known as Judges’ and Clerks’ Plan, for justices, judges, and circuit clerks first elected or appointed to their respective positions on or after November 8, 2016. Provides plan to operate under the Judicial Retirement Fund.

Adopted

SJR 50 Creates Business Litigation and Complex Litigation Study Committee to study possible creation of business courts/divisions.

SR 95 Requests Supreme Court advisory opinion on SB 453 regarding lotteries and gaming.

Alabama: commission to reallocate judgeships reintroduced in special session; Senate approves quickly but stalls out in House

A plan discussed here to create a special commission in Alabama to reallocate judgeships that failed in the regular session of that state’s legislature was re-introduced in a special session held this week. While the plan was quickly approved by the Senate it was once again killed in the House. With the prospects of a second special session this fall some version of the plan is likely to come back up again.

SB 33 of the First Special Session, like SB 230 of the regular session, would have created a Judicial Resources Allocation Commission made up of 11 people

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 3 attorneys picked by the state bar’s president

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 4 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit
  4. Any other information the commission deems relevant

That review and ranking list would be submitted to the legislature and the governor. The Commission would, however, be able to act without a specific law to change the judgeships. Where a vacancy occurred due to death, resignation, mandatory retirement, or similar case the Commission could unilaterally move the vacancy. The move would be limited in two ways

  1. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the ranking list
  2. Every county is entitled to at least one District Judge

This 2015 version differs markedly as compared to the 2014 version in that the Commission would be able to move the judgeship alone; the prior version as amended would have required approval by the state’s supreme court.

SB 33B was approved by the full Senate on August 5 and made it through the House committees. It died on the House floor when the special session adjourned Tuesday.