Arkansas: House committee amends Senate plan to make Supreme Court rules subject to legislature; system similar to one in place in other states

The Arkansas House Judiciary Committee last night voted on its plan to change the way rules adopted by the Arkansas Supreme Court for pleading, practice, and procedure are handled. Currently the state’s constitution vests exclusively authority in this area with the court.

SJR 8, as approved by the senate, would make three key changes

  1. any rules adopted by the Arkansas Supreme Court would not become effective until approved by 3/5ths of the legislature
  2. the legislature could by 3/5ths majority amend or repeal any rule
  3. the legislature could by 3/5ths majority create a rule

The House Judiciary Committee version, however, effectively drops the first provision requiring legislative approval and keeps the other two.

By a three-fifths vote of each house, the General Assembly may enact laws: (A) Amending or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court; and (B) Adopting on its own initiative a rule of pleading, practice, or procedure.

That super-majority provision is similar to ones in place in 4 other states, but each handles it differently.

  1. Alaska’s constitution provides the supreme court the power to make and promulgate rules governing the administration of all courts as well as governing practice and procedure in civil and criminal cases. “These rules may be changed by the legislature by two-thirds vote of the members elected to each house.”
  2. Florida’s constitution gives the supreme court the power to adopt rules for the practice and procedure in all courts. The legislature has the ability to repeal such a rule by general law enacted by two-thirds vote of the membership of each house of the legislature.
  3. South Carolina has two provisions in this area. The first provides the supreme court “shall make rules governing the administration of all the courts of the State. Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts.” The second provides rules created by the supreme court “shall become effective ninety calendar days after submission [to the General Assembly’s Judiciary Committees] unless disapproved by concurrent resolution of the General Assembly, with the concurrence of three-fifths of the members of each House present and voting.”
  4. Utah’s constitution gives that state’s supreme court the power to “adopt rules of procedure and evidence to be used in the courts of the state.”  However, with respect to Rules of Procedure and Evidence, the legislature may make amendments upon a vote of two-thirds of all members of both houses of the Legislature.

Arkansas: constitutional amendment to subject supreme court rules to 3/5ths legislative approval clears Senate 21-10; effort wrapped up in “tort reform” laws

A constitutional amendment discussed here to subject rules of practice and procedure adopted by the Arkansas Supreme Court to legislative approval cleared the Senate this week. SJR 8 would, among other things related to damage awards in tort cases, require all rules of pleading, practice and procedure be subject to 3/5ths legislative approval or, by 3/5ths, allow the legislature to amend or repeal any rule.

SJR 8 also includes elements of a “tort reform” package that was stricken from the ballot last year by the Supreme Court. Moreover, the effort to curtail or remove the supreme court’s rulemaking power dates back at least 4 years to a 2013 ruling striking down portions of a 2003 “tort reform” law that violated the supreme court’s rulemaking authority.

SJR 8 is currently being held in the Senate prior to transmission to the House. If approved by that chamber it would then have to be approved by voters.

 

Arkansas: House approves 89-0 bill to allow for judges who take bribes to be personally sued including punitive damages; would remove judicial immunity in such instances

A bill first discussed here that would allow for those harmed by judges who take bribes to seize the judge’s personal assets has cleared the Arkansas House unanimously on an 89-0 vote

HB 1007 as amended provides that where a judge was either found or pleaded guilty to bribery in a case a party who had an adverse ruling against them as a result of the bribe could sue to recover not only compensatory damages but punitive as well from the judge personally. Judicial immunity, which generally provides a judge’s personal assets cannot be taken for an official judicial act, would be removed.

As introduced, HB 1007 would also have included instances where the judge was fined, removed, or otherwise disciplined by the Supreme Court or the Judicial Discipline and Disability Commission for bribery.

The bill appears to be a response to a case in 2015 involving Circuit Court Judge Michael Maggio. The former judge pleaded guilty in January 2015 to a federal charge that he accepted a bribe in exchange for reducing a negligence jury verdict. The plaintiffs in the negligence case then sued Maggio, but the case against the former judge was dismissed in March 2015 due to judicial immunity.

HB 1007 has been sent to the Senate Judiciary Committee.

Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

The 2017 legislative session appears poised to pick up where the 2015/2016 sessions left off with respects to attempts to ban state courts from using or making reference to foreign/international law in general and sharia law in particular. Among the legislation:

Oregon SB 479 specifically targets sharia by name. As I mentioned when this came up in 2015, the Oregon bill’s specific naming and targeting sharia is similar to an Oklahoma effort that was struck down by federal courts as a violation of the First Amendment.

Arkansas HB 1041 approved by the House last week 63-24 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution

Among those rights listed is the “right to marry, as “marriage” is defined by Arkansas Constitution, Amendment 83.” Amendment 83 provides “Marriage consists only of the union of one man and one woman.” The lead sponsor of the bill indicated he believed “that marriage is between a man and a woman, not between the same sexes.

The other bill to advance so far was Montana’s SB 97 which cleared the Senate 27-21 on February 3. It too mentions marriage, but does not explicitly limit it to one man and one woman.

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage.

Full list of bills below the fold.

  1. Continue reading Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

Arkansas: constitutional amendment would subject supreme court’s rule making power to 3/5ths legislative approval: 2013 “tort reform” decision at issue

The latest in a 4-year effort to strip or curtail the Arkansas Supreme Court’s rulemaking power is set for a committee hearing today in the Senate State Agencies & Governmental Affairs Committee.

SJR 8 would, among other things related to damage awards in tort cases, require all rules of pleading, practice and procedure be subject to 3/5ths legislative approval or, by 3/5ths, amend or repeal any rule.

First, some background.

Arkansas in November 2000 rewrote their state’s judiciary article (Amendment 80) and in so doing placed in the hands of the state’s supreme court the power to

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.

That exclusive vesting in the court of the power to set such rules, practices, and procedures was cited by the state’s supreme court in 2013 when it struck down a 2003 tort reform law (news reports here).

SJR 8 would place a requirement that any such rule must have the 3/5ths approval of the legislature.

(2) A rule of pleading, practice, or procedure prescribed by the Supreme Court shall not become effective until approved by the General Assembly at a regular session, fiscal session, or special session.
(b)(1) By a three-fifths vote of each house, the General Assembly may enact laws:
(A) Approving, amending, or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court and
(B) Adopting on its own initiative a rule of pleading, practice, or procedure.

Since the 2013 ruling there have been several efforts to remove or curtail that rulemaking power discussed here with SJR 8 of 2017 being just the latest. Among them: a plan to allow for merit/commission selection of Supreme Court if the Supreme Court’s rulemaking authority was curtailed.

NOTE: The lack of legislation in 2014 and 2016 is due to a constitutional provision than the legislature can only consider budget/appropriations items in even numbered years.

SJR 5 of 2013 ORIGINAL: Removes Supreme Court’s rulemaking power and transfers to legislature. AS AMENDED: provides “General Assembly shall delegate nonexclusive authority to the Supreme Court” regarding rulemaking. Provides laws enacted by General Assembly supersede rules adopted by Supreme Court.

SJR 6 of 2013 Removes Supreme Court’s rulemaking power and transfers to legislature.

HJR 1016 of 2015 AS AMENDED: Creates merit/commission system for Supreme Court. Authorizes legislature to enact “loser pays” laws and laws against “frivolous” lawsuits, supreme court rulemaking authority notwithstanding.

 

Arkansas: constitutional amendment creates quasi-federal system (with merit/commission elements) of selection for state’s supreme court

I mentioned last year that concerns over the amount of money being spent in state court races in general, and the state supreme court races in particular, had prompted discussions of legislative activity in the 2016 and 2017 session. The first proposal in this area has now been filed and the focus is squarely on the state’s supreme court.

SJR 4 would create a “1-and-done” quasi-federal system of selection for the supreme court that contains some elements of merit/commission systems but is unique in how it operates.

  1. Terms for the supreme court would be set at 14 years (currently 8) and a justice appointed to the court could not be reappointed.
  2. A Judicial Nominating Commission would be created, with the Governor naming 3 members, the House Speaker 1, and the President Pro Tempore of the Senate 1.
  3. Rather than having the Commission submit names to the Governor (as in other merit/commission systems), the Governor would submit 5 names to the Commission who would then review the names and rank them in order within 15 days. The Commission would have the power to strike up to 2 names in the process. The Governor does not have to take into account the Commission’s rankings.
  4. The Governor would then pick from the list and submit the nominee to the Senate for confirmation. There does not appear to be any provision for default confirmation or rejection is the senate fails to act.

SJR 4 has been filed in the Senate State Agencies and Governmental Affairs Committee.

 

 

Arkansas: Bills would allow parties to personally sue judges who take bribes

A proposal filed for the 2017 Arkansas legislation would remove judicial immunity, the principle that a judge cannot be sued in his or her personal capacity for official acts, in cases of bribery.

Under HB 1007 and SB 6 as filed a party could sue a judge if the judge made or influenced the adverse decision against a party as the result of bribery. The bribery would either have to be proven via

  1. a criminal proceeding in which the judge took a plea deal or was found guilty of bribery or
  2. the judge was fined, removed, or otherwise disciplined by the Supreme Court or the Judicial Discipline and Disability Commission for bribery.

The bill appears to be a response to a case in 2015 involving Circuit Court Judge Michael Maggio. The former judge pleaded guilty in January 2015 to a federal charge that he accepted a bribe in exchange for reducing a negligence jury verdict. The plaintiffs in the negligence case then sued Maggio, but the case against the former judge was dismissed in March 2015 due to judicial immunity.