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.

Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

Election 2016: Arkansas Issue 1 – Most states elect their general jurisdiction court clerks and they typically serve 4-6 years

I mentioned in the last post on Arkansas Issue 1 that most states elect the clerks of their general jurisdiction courts. In all, a total of 32 states have elected clerks. In 27 states all the clerks are elected. In 4 others (Nevada, Missouri, New York, and Washington) most clerks are elected; in select counties/independent cities the clerk is chosen by the court. Finally 1 state (North Dakota) uses a mixed approach of election (13 counties), court-appointment (14 counties), and selection by the county commission (26 counties).

The remaining 18 states make use of appointment/hired clerks of court for their general jurisdiction courts. It should be noted, however, that some of these states started originally with elected clerks and/or switched from appointed to elected and back again. For example under Delaware’s 1897 Constitution the Prothonotary of each County was ex officio Clerk of the Superior Court and elected. That changed in 1989 when SB 109 was adopted by the state’s legislature (Delaware doesn’t require constitutional amendments to be approved by voters) making the position appointive.

The Superior Court shall appoint a Prothonotary in each county to hold office at the pleasure of the said Court.

All existing elected clerks were allowed to remain in office.

Of the states that have elected clerks, almost all have opted for 4 year terms, much like Issue 1 would do for Arkansas Circuit Clerks. Only 1 state (North Dakota) has a 2-year term for some elected clerks. 4 states (Alabama Circuit, Kentucky Circuit, Massachusetts Superior, and West Virginia Circuit) have 6 year terms.

Details below the fold.

Continue reading Election 2016: Arkansas Issue 1 – Most states elect their general jurisdiction court clerks and they typically serve 4-6 years

Election 2016: Arkansas Issue 1 – why does Arkansas elect Circuit Court Clerks anyway?

On the ballot this November in Arkansas is Issue 1, a constitutional amendment that would make several changes to the terms, election, and eligibility of elected officials. Among other things, it defines what is an “infamous crime” that would prohibit someone from holding elected office.

For court purposes, however, there is one key element: Clerks of the Circuit Court will see their terms in office extended from 2 years to 4 years.

The Arkansas Circuit Court is the court of general jurisdiction for the state and the Clerk of the Court is elected as a separate office that handles not only the records of that court but is also the county recorder of deeds and other instruments. Most states continue to elect their general jurisdiction clerks, as will be discussed in a future post.

The history of elected clerks of court is a rich one and reflective of the movement in the early 1800s towards “Jacksonian democracy.”  Prior to the Revolution, court clerks tended to be appointed either by the Crown or, in some instances, by the judges of the particular court. The U.S. Constitution, for example, hedged on this question in terms of the President, providing the President shall have the power to make appointments generally

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

And thus the clerks of the federal courts are appointed by the judges of their respective courts, starting with the Judiciary Act of 1787.

That the Supreme Court, and the district courts shall have power to appoint clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in such district…

Many if not most state constitutions adopted in the immediate aftermath of the Revolution maintained a similar pattern of having the clerks of court appointed by the Governor or judges.

In the period from roughly 1828 to 1854, traditionally referred to as the period of “Jacksonian democracy”, there was a push to provide that all or almost all positions of government authority should be vested in elected officials, not in appointed “elites”. The result was that many offices which were appointive became elective and with short terms.

In the case of Arkansas, the state’s first constitution (1836) reflected this duality. The Clerk of the Chancery Court would be appointed by the chancellors of that court. However, the office of Clerk of the Circuit Court would be an elective one with only a 2 year term (Art. VI, Sec. 7)

The qualified voters of each county shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years; and courts of chan­cery, if any be established, shall appoint their own clerks.

The Second or Secession Constitution (1861) kept similar language (Art. VI, Sec. 9) that was then adopted verbatim into the Third Constitution (1864) also as Art. VI, Sec. 9

and the qualified voters of each county, shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years, and until his successor is elected and qualified-the first election of circuit clerks, under this constitution, to be held at the general election next before the expiration of the commissions of the present incumbents. Courts of chancery, when established, shall appoint their own clerks.

Interestingly, the Fourth Constitution (1868) makes no mention of Circuit Clerks or their selection. There are indications the office may have converted at this time to an appointive one as many offices were required to become appointive under Reconstruction; judges in the state who had been elected under the 1864 constitution were now in 1868 appointed by the Governor.

The fifth and current constitution (1874) one again provided for elected Circuit Clerks (Art. VII, Sec. 19) and even moved to make the clerk of the chancery court elected (Art. VII, Sec. 44). Chancery courts were eventually abolished and merged into the Circuit Courts (Amendment 80). It is this 1874 provision of “two years” that is subject to amendment this year.

The clerks of the circuit court shall be elected by the qualified electors of the several counties, for the term of two years…

The judge and clerk of said [Pulaski chancery court] shall hold office for the term of two years, and shall be elected by the qualified voters of the State…

Election 2016: Coverage of November ballot items starts today; live coverage of all items election night at

With the election season in full gear, today starts Gavel to Gavel’s review of the 4 ballot items to watch for state courts:

State Ballot Item Synopsis
Arkansas Issue 1 Extends terms for Circuit Clerks and other county officials from 2 years to 4 years
Georgia Amendment 3 Disbands Judicial Qualifications Commission, allows legislature to recreate and set membership
Oregon Measure 94 Repeals mandatory judicial retirement age
Pennsylvania Amendment 1 Increases mandatory judicial retirement age from 70 to 75

In addition to these items, I’ll be once again hosting live election night coverage of the 65 supreme court/court of last resort races at the National Center for State Court’s Election 2016 website