Georgia: New statewide Business Court with unique judicial selection system to appear on November 2018 ballot; Superior Courts could still create business divisions

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now voters will decide on a 7th: Business Court.

HR 993 would amend the state’s constitution to create a Business Court. The plan, as amended, would still allow Superior Courts to create their own business court divisions.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor. Moreover, unlike any other state, confirmation would be done not by a single chamber (e.g. Senate) or both legislative chambers (as in Connecticut and Tennessee) but by the House Judiciary Committee and the Senate Judiciary Committee.

Georgia: plan calls for creation of brand new type of court to handle business cases; judges would be picked by Governor; plan similar to one proposed in Texas

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now legislators are pushing to create a separate 7th court: Business Court. This system would be used rather than as is the case now of having special dockets/calendars in existing courts (for example Fulton County Superior Court).

HR 993 would amend the state’s constitution to create a Business Court within 24 months of approval by the voters. The court’s decisions would be binding on all other courts except the Supreme Court and Court of Appeals.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor with no senate confirmation or election (retention or otherwise) for 5-year terms and reappointed by the Governor at will.

The plan bears striking similarities to the Chancery Court plan proposed in the Texas legislature in 2015 and 2017 and discussed here and here.

The judges would have to be admitted to the practice of law for 7 years and “have significant experience in business or other complex litigation” but there is no indication how that is supposed to be measured. A similar problem occurred when Washington State’s proposed a distinct Tax Court (see here).

Finally, HR 993 provides the language to be used on the ballot

Shall the Constitution of Georgia be amended so as to create a state-wide business court to lower costs, improve the efficiency of all courts, and promote predictability of judicial outcomes in certain complex business disputes for the benefit of all citizens of this state?

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: Georgia Amendment 3 – Should the senate confirm picks to the judicial disciplinary commission? Most states say no. Only Texas lets senate reject picks made by judiciary itself.

As previously noted, Georgia’s Amendment 3 would give the legislature power over the state’s judicial disciplinary commission (called the Judicial Qualifications Commission) that few if any states grant to their legislature. Under the proposal and implementing legislation the legislature sets the membership of the JQC, something most states do not allow. Moreover, the plan calls for a majority of the new JQC to be picked by legislative leaders, something no other state (other the Virginia) allows to occur.

The third element in play is for all JQC members picked by the House/Senate leadership (4), the Governor (1), or the Supreme Court (2) to be subject to Senate confirmation.

Appointments to the Judicial Qualifications Commission shall be subject to confirmation by the Senate as provided for by general law.

Most states do not allow for any such confirmation votes. Only 15 states have such votes, in a 16th (Virginia) all members of the judicial disciplinary commission are picked by the legislature therefore a confirmation vote is redundant.

Moreover, where states do allow for legislative confirmation votes, they do not allow the legislature the power to reject those appointments made by the judiciary/judges. Only 1 state, Texas, allows that state’s senate the power to confirm, or conversely reject, appointments made by the judiciary.

In all other states the power to confirm is limited to picks made by the Governor, the state bar, or by legislative leaders themselves.

Details below the fold.

Continue reading Election 2016: Georgia Amendment 3 – Should the senate confirm picks to the judicial disciplinary commission? Most states say no. Only Texas lets senate reject picks made by judiciary itself.

Election 2016: Georgia Amendment 3 – Only 9 states give the legislature power to name members to the judicial disciplinary commission; only 1 allows legislature to name majority

As previously noted, on the ballot this November is Georgia’s Amendment 3. The amendment would repeal the existing Art. VI, Sec. 7, Para. 7 of the state constitution that establishes the state’s judicial disciplinary commission (Judicial Qualifications Commission) and readopt it with one major revision: membership of the JQC would be left to the legislature.

Amendment 3, and its implementing legislation (HB 808) would give the legislature two powers they don’t currently have:

  1. the ability to pick a majority of the JQC
  2. Senate confirmation for all picks (“Appointments to the Judicial Qualifications Commission shall be subject to confirmation by the Senate as provided for by general law.”) This will be discussed in a later blog post.

Under HB 808, the leaders of the Georgia legislature would be able to name 4 out of 7 members of the new JQC: 2 by the Speaker of the House and 2 by the President of the Senate. The Supreme Court (2) and Governor (1) would pick the rest.

Only a handful of states (9) give the legislature or legislative leaders the power to name members to the judicial disciplinary commission; a tenth (Oklahoma) lets the legislature pick 2 out of 3 members of a body that conducts preliminary investigations only (Council on Judicial Complaints).

Moreover, in 8 of those 9 states that allow for legislative picks, the legislature is only able to name a minority of the membership; only in Virginia does the legislature name a majority of members however it should be noted that in Virginia the legislature also appoints all judges (there are no elections and the governor has no role in judicial selection other than to fill temporary vacancies.

State by state details below the fold.

Continue reading Election 2016: Georgia Amendment 3 – Only 9 states give the legislature power to name members to the judicial disciplinary commission; only 1 allows legislature to name majority

Election 2016: Georgia Amendment 3 – should the legislature set the membership of the state’s judicial disciplinary commission? Most states say no.

On the ballot this November is Georgia’s Amendment 3. The amendment would repeal the existing Art. VI, Sec. 7, Para. 7 of the state constitution that establishes the state’s judicial disciplinary commission (Judicial Qualifications Commission) and readopt it with one major revision: membership of the JQC would be left to the legislature.

The current provision specifically provides for a commission made up of

(1) Two judges of any court of record, selected by the Supreme Court;
(2) Three members of the State Bar of Georgia who shall have been active status members of the state bar for at least ten years and who shall be elected by the board of governors of the state bar; and
(3) Two citizens, neither of whom shall be a member of the state bar, who shall be appointed by the Governor.

All of that language would be repealed and replaced with

The General Assembly shall by general law create and provide for the composition, manner of appointment, and governance of a Judicial Qualifications Commission…

While all states at this point have some sort of judicial disciplinary body in place, the vast majority have opted not to allow the legislature to tamper directly with the membership of these entities.

The vast majority of states either place the membership directly into the constitution (24 states), as Georgia currently has, or the membership is set by the state’s supreme court/court of last resort via court rule (10 states). Some states use a combination.

Only 16 states give the legislature the power to set the membership and, as will be discussed in an upcoming blog post, most legislatures have opted to only give about 1/3 of the seats to the legislature itself to fill.

Details on who picks what members to what judicial disciplinary bodies below the fold.

Continue reading Election 2016: Georgia Amendment 3 – should the legislature set the membership of the state’s judicial disciplinary commission? Most states say no.

Election 2016: Coverage of November ballot items starts today; live coverage of all items election night at ncsc.org/elections

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 www.ncsc.org/elections