Bills to require senate confirmation of judicial nominees finding more approval in state senates than in state houses

A big trend in recent weeks, and for that matter years, has been to target for elimination of merit selection systems for selecting judges (see here). A related often parallel set of bills seek to interject Senate confirmation of whomever the governor, working off the list of names given by a nominating commission, appoints. These efforts are proving as or more effective in gaining legislative approval that attempts to outright end merit selection. However, somewhat interestingly, most such bills are thus far being introduced and active in state senates with less interest shown by the lower chambers, who would have no role in any such confirmation process.

Earlier today, for example, the Florida Senate Judiciary Committee approved SJR 1664 which, while maintaining the state’s existing merit selection system for appellate judges, would add to the state’s constitution a requirement those chosen for the supreme court only be approved by the state’s senate as well. Interestingly, unlike other similar bills (some discussed below), there is no authorization for the Senate to bring itself into session in case a confirmation is needed. However the state’s constitution does allow for special sessions to be called by the governor and “convened as provided by law”.  Presumably this later provision would be used if the constitutional amendment itself were approved by Florida voters.

Similar to Florida’s SJR 1664, Oklahoma’s SB 621 would require senate confirmation, but does not include a provision allowing the senate to convene itself for those purposes. The state’s constitution allows the entire legislature to be called back in by two-thirds of both chambers, but it is not clear of that means two-thirds of the senate can call just itself back in. SB 621 was approved by the Senate on March 8.

Arizona SCR 1040 massively restructures, but does not formally end, the merit selection system in the state. Included is a provision requiring senate confirmation. The senate president or a majority of senators are explicitly authorized to convene the chamber for the confirmation. Moreover, there is a built in presumption and default of confirmation: the senate must explicitly reject the appointee within 60 days or the person takes judicial office “as if the appointee had been confirmed. ” The bill also ends retention elections and puts in place a system of reappointment and reconfirmation, again with the same 60-days-to-reject rule. SCR 1040 was also approved by the Senate on March 8.

Finally, Pennsylvania is once again considering changing to a merit selection system for its appellate courts with a senate confirmation provision. SB 842 would be the implementing statutes for the constitutional amendment in SB 843, if approved. As for senate reconvening, the state’s constitution is already mostly prepared. The state’s governor may fill a judicial vacancy caused by death, resignation, etc. and the senate must confirm when it comes back into session (if recessed or adjourned) within a certain number of days or else the appointment is deemed confirmed. The same provisions would be duplicated for cases involving an appellate merit selection system.

Not only would there be a presumption or default of confirmation, but should the senate reject three nominations made for a specific vacancy, the nominating commission itself, without interference by the governor or the senate, would pick a fourth person who would automatically take office (no appointment or confirmation necessary). The two Pennsylvania bills were introduced March 15 and are pending in the Senate Judiciary Committee.

As I noted at the start, senate-confirmation bills are often dead-letters in the various houses/lower chambers in the states. Bills going nowhere so far include Arizona HCR 2020, Iowa HB 429 and HJR 12, Kansas HCR 5015, and Oklahoma HJR 1009. All include senate confirmation in addition to, or in lieu of, merit selection.  In addition, a Rhode Island House bill (HB 5675) would transfer the existing power to confirm from the Senate to the House.

That said, some senate-confirmation bills are finding house approval.

Kansas HB 2101 ends merit selection system for the state’s court of appeals judges and instead creates a governor appoints/senate confirms system. The senate president could call the senate into session for the confirmation process. The bill was approved by the full House February 25.

A similar Florida House bill (HJR 1097) would outright end merit selection for appellate judges and make use of senate confirmation only was approved by the House Judiciary Committee’s Civil Justice Subcommittee on March 17.

FL: Bills to split supreme court and change judicial elections up for hearing on March 17

Tomorrow’s (March 17) House Judiciary Committee, Civil Justice Subcommittee promises to be very active with respect to the state’s judicial structure and election. A podcast of the hearing will be available here and video here.

On the agenda already are:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future supreme court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms.

PCB CVJS 11-06, a constitutional amendment that would rename the existing supreme court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing supreme court would transfer to the new Supreme Court of Criminal Appeal and the existing supreme court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

PCB CVJS 11-07 would change numerous statutes putting CVJS 11-06 into effect.

PCB CVJS 11-08 would replace the state’s existing judicial nominating commissions. The new commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The terms of the commission members would be concurrent with the governor, meaning a new governor would be able to pick all new commissions (currently, serve for 4 years). The bill does retain provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Florida’s Senate Judiciary Committee rejects bill to create the crime of intimidation of a judge

Several states have active bills to define as a separate criminal act threats or intimidation of judges and court staff. Gavel to Gavel 5:2 looked as some of those efforts and in early March both the Washington House and Senate passed bills to increase existing penalties for such crimes (HB 1794 & SB 5046). The Florida Senate Judiciary Committee, however, has rejected a similar effort today (audio here).

SB 262 (and its House version HB 129) would create the crime of intimidation of a judge. Much of the opposition voiced against the bill surrounded the definition of “intimidation or threats”:

“Intimidation or threats” include, but are not limited to, actions or words that:
1. Directly or indirectly threaten physical force, economic loss, damage to property, damage to career, or damage to the reputation of a judge or a member of the judge’s immediate family;
2. Are intended to create a situation requiring recusal or disqualification of a judge; or
3. Consist of contacts or attempts to contact or that create a pattern of contact with a judge or a member of the judge’s immediate family under false pretenses which would reasonably cause a judge or a member of the judge’s immediate family to fear for his or her safety.

Opponents suggested that the “economic loss”, “damage to career”, and “damage to reputation” provisions would make any conversation about opposing the judge for election or suggesting that someone should run against the judge a criminal act.

Senator Anitere Flores, chair of the committee, urged the sponsor to work with opponents to narrow the language and noted the bill was prompted, in part, by an actual case of judicial intimidation in the sponsor’s district.

The bill failed on a 3-4 vote. It is unclear what the rejection will mean for the House version.

FL House Speaker wants to expand Supreme Court: Court packing plan, or merely a “reform”?

News reports coming out of Florida indicate there is an attempt underway to expand the state’s supreme court. House Speaker Dean Cannon announced earlier today he wants to increase the size of the Florida Supreme Court from seven to 10 members and divide the 10 member court into two, 5 -member panels (one civil, one criminal). Cannon denies this is a court packing effort, claiming instead he wants to “reform” the court.

The only two states that even approximate this proposal are Oklahoma and Texas, however these two states have entirely separate courts to handle civil (Supreme Court) and criminal (Court of Criminal Appeals) cases.

The Tallahassee Democrat noted that Speaker Cannon was irate last year when the state’s Supreme Court struck from the ballot several legislatively introduced initiatives. In his first speech as Speaker-designate in November 2010, Cannon went out of his way to attack the court’s decisions.

This wouldn’t be the first time a Florida Supreme Court decision prompted a legislative effort to increase the size of the court. In 2007, Florida state senator Bill Posey introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. (Bush v. Holmes, 919 So.2d 392 (Fla. 2006)) When SB 408 became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.

For a 2010 review of efforts to tinker with the size of the state supreme courts, read Issue 4:14 of Gavel to Gavel here. For the recent effort to increase the Arizona Supreme Court (without asking or talking with the state’s Chief Justice first), read this blog post.

Update: 3/7/11 @ 3:23 According to a Twitter feed coming out of the press conference where Cannon made these announcements, Senate President Mike Haridopolos says House Speaker Cannon idea on FL Supreme Court will be given fair consideration. (h/t Gary Fineout)

Florida considers a “Judicial Opinion Communications Act”

It is one thing to have a state appellate court strike down a statute as unconstitutional. It is quite another to send a copy of the order striking down the law straight to the legislature. However, this is precisely what some members of the legislature are asking for.

HB 87 (and its Senate counterpart, SB 996) would require the state supreme court or district courts of appeal to send a copy of any decision that

  1. declares a Florida statute, regulation, or government practice unconstitutional
  2. recommends any statutory or regulatory changes to the current law, or
  3. identifies drafting issues

to the Governor, the President of the Senate, and the Speaker of the House of Representatives within 30 days of the decision. The three officers would have 30 days to acknowledge receipt and “may state in the acknowledgment any and all action to be taken in response to the opinion.”

The House bill is set for a hearing before the Judiciary Committee’s Civil Justice subcommittee on March 8.

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.