GA: Constitutional amendment would make Supreme Court decisions nonbinding

Georgia’s history with its Supreme Court is one of note. For nearly 75 years of statehood, there was no appellate review: a new trial before a new jury in the local court was the only procedure available for the correction of judicial error.

Enter HR 5 of 2011, a constitutional amendment being considered in the 2011 session that would remove the state’s constitutional provisions making state supreme court (and court of appeals) decisions binding on lower courts. The resolution’s preamble also makes it clear the decisions of the appellate courts would not be binding on any other party other than those involved in the judicial action at hand.

Judicial Retirement Plans/Pensions: Southern States

Georgia HB 202 Authorizes the boards of all public retirement systems operating under Title 47 of O.C.G.A to adopt any rules which are required to meet the necessary federal compliance standards. It requires all systems to comply with mandatory distribution requirements that are included in the Internal Revenue Code. Clarifies provisions relating to rollovers from public retirement systems to other qualified plans, and revises language relating to maximum benefits payable to ensure the language is consistent with the Internal Revenue Code.

Georgia HB 210 Amends provisions relating to membership in the Georgia Judicial Retirement System. Clarifies that certain attorney‘s employed by the office of Legislative Counsel or the Department of Law on June 30, 2005, shall retain all rights and obligations as exist on that day. Those in this group shall be subject to all provisions of this chapter applicable to solicitors-general of the state courts, and Employer contributions shall be paid by respective employers under such Code sections.

Georgia HB 452 Provides that members of the Georgia Judicial Retirement System who become members on or after July 1, 2009, not be entitled to receive any postretirement benefit adjustments.

Georgia SB 109 Provides for each of the following Councils to pay their respective employer contributions for retirement: Superior Court Judges, State Court Judges, Juvenile Court Judges and the Prosecuting Attorneys. Requires  that each of these Councils be authorized, and directed to pay from funds appropriated or otherwise available in additional amount equal to the 5% contribution of the member plus an additional 20% so that the state contribution is in accordance with the Employees’ Retirement System of Georgia

Georgia SB 177 Provides that appellate court judges who become members of the Employees’ Retirement System of Georgia, and persons who become members of the Georgia Judicial Retirement System on or after July 1, 2009, not be entitled to Survivors benefits.

Kentucky HB 182 Permits the Judicial Form Retirement System board of trustees to promulgate administrative regulations to conform with federal statutes and regulations and to meet the qualification requirements under 26 U.S.C. Section 401(a).

Kentucky HB 289 Judicial Retirement Plan to honor qualified domestic relations orders if the orders meet the requirements established by the retirement systems or plan and by these sections

North Carolina HB 1507 & SB 703 Permits assets of Consolidated Judicial Retirement System and systems to may be invested in securities traded on a public securities exchange or market organized and regulated pursuant to the laws of the jurisdiction of such exchange or market (previously limited to “preferred or common stock”) . Signed into law by governor 6/11/09.

North Carolina HB 649 & SB 691 Specifies Treasurer’s responsibilities and duties regarding Consolidated Judicial Retirement System and other retirement systems. Signed into law by Governor 7/10/09.

Oklahoma HB 1110 (2009) Requires Oklahoma Public Employees Retirement System deliver two reports of the fiscal activities of  the State Judicial Retirement Fund for the fiscal year to the Legislative Service Bureau. House and Senate conference committee unable to come to agreement 5/27/09.

Oklahoma HB 2357 (2010) Requires Oklahoma Public Employees Retirement System deliver two reports of the fiscal activities of  the State Judicial Retirement Fund for the fiscal year to the Legislative Service Bureau. Approved by full House 2/10/10. Approved with Senate amendment by full Senate 3/29/10. To House to concur with amendment.

Oklahoma SB 1059 Makes various modifications to employer contribution rates for Uniform Retirement System for Justices and Judges. Requires certain funds be transferred to the Judicial Retirement Fund.  Approved by full Senate 3/9/09. Died in House.

Oklahoma SB 212 Specifies that the funded ratio for the State Judicial Retirement Fund should be at or near 90%  (previously 100%) or be receiving sufficient contributions to amortize any unfunded liability of the fund according to the adopted amortization schedule.  Modifies the Board of Trustees ability to raise employer contribution rates. Signed into law by Governor 5/26/09.

Virginia HB 1189 & SB 232 Changes member contributions for those under the Judicial Retirement System or other specified plans. Institutes a new service weight schedule based on the judge’s age at the time he or she is appointed or elected to an original term commencing July 1, 2010 Changes the requirements for unreduced early retirement benefits from 50 years of age and 30 years of creditable service, to the “Rule of 90” (combination of age and service equals 90). Approved by House and Senate 3/11/10. To Governor for approval.

House considers “informing” Chief Justice Georgia is not a “democracy”

Most states allow their chief justices to offer State of the Judiciary addresses to the legislature or legislative and executive branch leaders.  (A collection of the 2010 State of the Judiciary speeches and archive of past ones is available here.)

Georgia did so via a formal resolution (HR 1682) inviting Chief Justice Carol Hunstein to “address a joint session” on March 16. The Chief Justice did so and in her address noted, “The separation of powers is the very bedrock of our nation’s democracy” and, citing Judge Learned Hand, that “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”

The reference to “democracy” did not sit well with several members of the House, at least 6 of whom introduced a resolution (HR 1770) on March 26 to “inform Georgia Supreme Court Chief Justice Carol W. Hunstein that the State of Georgia is a republic and not a democracy.”

However, in his January State of the State address, Governor Sonny Perdue made three separate references to the U.S. and/or Georgia as being a “democracy”.

No word on any similar resolution having been introduced for his references.

More push-pull legislation on court funding

Readers may recall the Florida House bills proposed several weeks ago that would provide the courts guaranteed funding, but only if judicial immunity and a list of other changes made to the way courts and judges operate. Now the Senate has introduced identical bills (SB 2636 and SB 2640).

Georgia, meanwhile, is also considering tying additional funding to changes in court structure. SB 429 would add a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. This additional funding comes, however, only if the Supreme Court is increased from 7 to 9 justices and the Court of Appeals from 12 to 15. Unlike in most states where a change to the number of Supreme Court justices would require a constitutional amendment,Article VI Section VI of Georgia’s Constitution allows the legislature to set the number so long as it is below 9 (interestingly, there appears to be no minimum). Gavel to Gavel readers may recall a similar effort to expand the Supreme Court in 2007. This, from Gavel to Gavel’s first edition

Georgia media reports legislation may be considered to increase from 7 to 9 the number of seats on that state’s high court. Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.”

Changes to the appellate courts are rare, especially courts of last resort. Since 1990, only 2 states have had such changes. Nevada’s Supreme Court grew from 5 to 7 members in 1999 (AB 343 of 1997). In that same year, Iowa’s Supreme Court shrank from 9 to 7 as 3 judges were added to the state’s Court of Appeals (HF 2471 of 1998).

Emergencies and the courts

How courts operate, or don’t, post-disaster has been of considerable concern since 9/11 and all the more so after Hurricanes Katrina and Rita. Several states have tackled the matter. For example, Delaware’s SB 25 of 2009 provides for the operation of the courts in the event of an emergency and grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities with such order limited to an initial duration of 30 days but renewable for 30 day periods. It allows the Chief Justice to order the conducting of courts outside their normal county, extend statutes of limitations, and similar measures.

In 2010, several states are looking at similar measures.

Georgia’s HB 185 authorizes the Chief Justice to extend the duration of a judicial emergency order when a public health emergency exists until the emergency ends (currently there is a maximum of 60 days).

Virginia’s HB 883 sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. The bill permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

No more non-attorney judges?

While no longer as popular as in the past, many states continue to retain non-attorney judges. Trial judges in at least 27 states, most in probate, justice of the peace, or other similar limited jurisdiction courts, are not required to be attorneys. Several states, however, are trying to eliminate this practice.

Georgia’s HB 478 requires municipal court judges be attorneys unless already serving as municipal court judge. It was approved by the House Committee on Governmental Affairs on February 4.

Indiana’s SB 122 would require City and Town judges be attorneys as well.

Maryland HB 417 would require Orphan’s Court judges, in the city of Baltimore only, be attorneys. Prior versions (such as HB 387 and SB 293 of 2008) would have required most if not all of the state’s Orphan’s Court judges be attorneys. The Senate version made it through that chamber in 2008 (42-4), while the House version failed to achieve the three-fifths majority needed (failed 84-50, with 85 votes needed).