Plans to expand Arizona Supreme Court from 5 to 7 and Georgia Supreme Court from 7 to 9 advance

Plans to expand the Arizona and Georgia Supreme Courts have recently advanced.

On February 18, the Georgia House approved HB 927 which would expand that state’s court of last resort from 7 to 9 members on July 1, 2016. The proposal would allow the state’s governor to name the two new justices for interim appointment, subject to a nonpartisan election in 2018.

On February 24 the Arizona House approved HB 2537 which would expand that state’s court of last resort from 5 to 7 members, with an effective date sometime this summer. The new justices would be subject to the state’s merit/commission based selection process.

Both bills now head for their respective senates.

 

Georgia House advances bill for legislative takeover of judicial disciplinary commission; South Carolina Senate votes on takeover today

The list of legislatures looking to take over state judicial disciplinary commissions is growing.

Georgia

A plan discussed here to move the state’s independent judicial disciplinary commission (Judicial Qualifications Commission) under the legislature has cleared the House. Both a constitutional amendment (HR 1113) and enabling legislation (HB 808) that would vacate the existing JQC and create a new one. In addition the House this week approved creation of a panel to investigate and subpoena the JQC and its members. (h/t Gavel Grab)

South Carolina

An ethics reform package (HB 3184, originally discussed here) approved by the House and set for a Senate vote today would recreate the state’s Commission on Judicial Conduct in statute and diminish the state supreme court’s power to name the Commission on Judicial Conduct’s members.

The current 26 member Commission on Judicial Conduct is created by Rule 502, South Carolina Appellate Court Rules and chosen entirely by the Supreme Court. The new 24 member Commission would have only 1/3 chosen by that court.

  • 8 chosen by the Supreme Court, including 6 judges
  • 4 chosen by the Senate (2 attorneys, 2 non-attorneys)
  • 4 chosen by the House (2 attorneys, 2 non-attorneys)
  • 8 chosen by the Governor, (4 attorneys, 2 non-attorneys)

Georgia: constitutional amendment would provide legislative takeover of state judicial disciplinary commission, subjects proceedings to open meetings requirements

A plan to move the state’s independent judicial disciplinary commission (Judicial Qualifications Commission) under the legislature has cleared its first legislative hurdle. Both a constitutional amendment (HR 1113) and enabling legislation (HB 808) that would vacate the existing JQC and create a new one cleared the House Judiciary Committee yesterday.

Presently the JQC is made up of

  • 2 judges from courts of record chosen by the Supreme Court
  • 3 bar members elected by the bar’s board of governors
  • 2 non-attorneys chosen by the Governor

The constitutional amendment provides only that the General Assembly would have the power to create and provide for the composition of the new JQC. Under the enabling legislation as introduced the new JQC would be made up of all attorneys and judges. As amended, the JQC would be made up of attorneys and non-attorneys.

  • 2 judges from courts of record chosen by the Supreme Court
  • 1 state bar member chosen by the Governor
  • 1 state bar member chosen by the House Speaker
  • 1 state bar member chosen by the Senate President
  • 2 non state bar members chosen by the Governor

Moreover, the bill would require all future JQC meetings be subject to the state’s open meeting requirements (O.C.G.A. 50-14-3). Proponents accuse the existing JQC of operating “more like a star chamber than a judicial commission in handling the cases coming before them.”

The state’s supreme court would still retain review authority over the JQC (“[P]rocedures and advisory opinions issued by the Judicial Qualifications Commission shall be subject to review by the Supreme Court.”)

Georgia governor wants to expand supreme court; legislatures in 3 states (AZ, GA, WA) now actively attempting to change membership in state’s court of last resort

An anticipated plan by Georgia’s governor to expand the state’s supreme court from 7 to 9 members discussed here and here has finally been filed. HB 927 would make a host of changes in addition to the expansion, including altering the jurisdiction of the Court of Appeals to take over many of the cases currently heard directly by the Supreme Court. The expansion plan specifically provides the vacancies would be filled by the governor; an election in November 2018 would be held for the seats as well.

This is the third time in the last decade the legislature has attempted to increase the Georgia Supreme Court (discussed here).

Georgia now joins Arizona and Washington in the list of states attempting to change the composition of their respective courts of last resort.

  • In Arizona the effort to expand the state’s Supreme Court from 5 to 7 members (HB 2537) may go before the full House this week. An effort to place it on the House Consent Calendar was rejected yesterday.
  • In Washington, legislators are attempting to reduce the state’s Supreme Court from 9 to 5 members (HB 2784).

 

 

Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:

Continued reference to sharia in particular

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.

Missouri HJR 69 of 2016

The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States, provided the law of the other state does not include sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.

Oklahoma HJR 1056 of 2010

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law , in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Threat of impeachment

Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)

List of proposals and their current status below the fold.

Continue reading Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

Georgia: Why the state’s unique constitutional provision allows supreme court expansion without voter approval

I noted a few weeks ago plans being developed by Georgia’s governor to expand the state’s Supreme Court from 7 to 9 members. One of the interesting aspects of this is that Georgia is one of 26 states in which the legislature could change the composition of the state’s court of last resort without having to go to voters. However, as discussed below, its language is unique from any other state.

A near majority of states (24) provide in the state’s constitution a specific number of justices/judges. For example Arkansas provides their supreme court is to be made up of “seven Justices, one of whom shall serve as Chief Justice.” Changes would require a constitutional amendment.

Beyond this things get more complex. 2 states (Alaska and South Dakota) have a minimum number of judges, but with anti-court-packing provisions: the legislature can expand the court only if the court itself asks to be expanded. (South Dakota: “Upon request by the Supreme Court the Legislature may increase the number of justices to seven.”)

The remaining 24 states give the legislature power to set the number of seats with more or less freedom in terms of numbers.

  • 8 state constitutions provide no numbers as to the composition of the court, leaving it entirely to the legislature to set the number.
  • 8 other states provide a minimum with no maximum number of seats on the court. For example the Arizona Supreme Court must be made up of “not less than five justices. The number of justices may be increased or decreased by law, but the court shall at all times be constituted of at least five justices.” However note that in some cases there are court-packing restrictions which limit the number of seats that can be expanded at any one time (Iowa) or that require super-majorities in two separate legislative sessions (Virginia).
  • 7 states provide for a minimum and a maximum. Indiana’s Supreme Court is made up of a “Chief Justice of the State and not less than four nor more than eight associate justices”
  • 1 State (Georgia) has a maximum with no minimum (“not more than nine Justices.”)

Details for each state below the fold.

Continue reading Georgia: Why the state’s unique constitutional provision allows supreme court expansion without voter approval

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.

Georgia: Governor may push for expansion of state’s supreme court; third such push to expand court in last decade

Earlier this year Georgia’s Governor requested and got an expansion of the state’s Court of Appeals from 12 to 15 judges. It now appears in the 2016 session Governor Nathan Deal could be pushing to add new justices to the supreme court as well.

According to this blog post from the Atlanta Journal-Constitution the Governor may ask for an expansion of Georgia’s court of last resort from 7 to 9. If so, this would be the third such push in the last decade. In the 2007/2008 session there was a press for a 6-seat expansion.

Then-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.” Nevertheless, SR 370 was introduced, providing that there would be a justice elected from each congressional district, effectively increasing the court from 7 to 13.

The second attempt was in the 2009/2010 session when the expansion was tied to additional funding for the courts.

SB 429 of 2010 tied more money for the courts with an expanded Supreme Court. The bill would have added 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. The increase in funding was conditional on an increase in the Supreme Court from 7 to 9 justices and the court of appeals from 12 to 15.

As I noted earlier in 2015 this is the latest in over a dozen efforts in the last decade to expand courts of last resort. The most recent such effort was in Arizona in 2015 which was posted into a House committee at the last moment and nearly cleared the full House.

To put this into perspective for other states (data from State Court Organization):

  • 17 states have a court of last resort consisting of 5 justices
  • 28 states including Georgia have 7 justices
  • 3 states have 9-justice courts: Alabama, Mississippi, and Washington
  • 2 states (Oklahoma and Texas) have two separate courts of last resort. Texas has a Supreme Court that handles civil matters (9 justices) and a Court of Criminal Appeals (9 justices). Oklahoma has a Supreme Court that handles civil matters (9 justices) and a Court of Criminal Appeals (5 justices).

Georgia Legislative Year in Review part 2: oversight of drug courts/mental health courts/veterans courts

Law

HB 328 Creates Council of Accountability Court Judges of Georgia. Transfers powers currently held by Judicial Council over drug courts/mental health courts/veterans courts division to Council of Accountability Court Judges.

SB 135 Provides Clerk of Superior Court is sole custodian of all records Clerk is required to file and retain. Provides Clerk alone to respond to open records requests for documents in Clerk’s office. Allows Clerk to contract out archiving and storage of electronic records. Provides any contracting entity who releases information subject to a felony conviction.

Georgia Legislative Year in Review part 1: expanded Court of Appeals; judicial compensation commission

Law

HB 279

Part I

  • The Court of Appeals is expanded from 12 to 15 judges. The three new judges are to be appointed by the governor for their initial terms and face voters in 2018.
  • Supreme Court and Court of Appeals judges residing more than 50 miles from the judicial building in Atlanta will receive same daily expense allowance as members of the General Assembly.
  • Judges assigned to Drug Court, Mental Health Court, or Veterans Court divisions will receive a $6,000 “annual accountability court supplement” from the state via The Council of Superior Court Judges of Georgia.
  • Counties are not permitted to give more than a $50,000 in the form of a county salary supplements
  • Base state statutory salaries for judges are increased
    • Supreme Court $139,418 to $175,600
    • Court of Appeals $138,556 to $174,500
    • Superior Court $99,862 to $126,265

Part II

  • Changes to Western Circuit

Part III

  • Creation of Judicial, District Attorney, and Circuit Public Defender Compensation Commission attached to the Criminal Justice Coordinating Commission. Authorization for the commission would be in place until 2020.
  • Compensation Commission has only the power to advise and recommend changes related to salaries and “efficient use of resources and caseload balance of the justice system”
  • Compensation Commission to be made up of 7 members (5 voting)
    1.  Citizen member chosen by Governor
    2. Citizen member with experience in executive compensation and who is a non-attorney chosen by Governor
    3. Current or retired judge chosen by Chief Justice
    4. Non-attorney chosen by Lt. Governor
    5. Non-attorney chosen by House Speaker
    6. Chair of Senate Appropriations Committee (non-voting ex officio)
    7. Chair of House Appropriations Committee (non voting ex officio)
  • Compensation Commission to “evaluate and consider”
    1. Whether compensation drawing highly qualified, diverse attorneys to become judges, districts attorneys, or circuit public defenders
    2. Whether county supplements for judges, districts attorneys, or circuit public defenders is enough
    3. “The caseload demands of judicial officers, prosecuting attorneys, and public defenders and the allocation of such officials, including staffing resources and jurisdictional structure.”
    4. Skill/experience need for judges, districts attorneys, or circuit public defenders
    5. Time required for judges, districts attorneys, or circuit public defenders
    6. Value of “compensable service” by reference to other states and federal government
    7. Value of “comparable service” in private sector
    8. Compensation of attorneys in private sector
    9. Consumer Price Index changes
    10. Overall compensation received by other public officials and employees
    11. Any other factors normally taken into consideration