Changing civil jurisdiction thresholds – Part 3

This third in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Massachusetts to New Jersey below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 3

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

This third installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

Massachusetts to New Jersey below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

This second installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

Hawaii to Maryland below the fold.
Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

Kansas, Oklahoma, and other states show the legislative perils of being a statutorily created intermediate appellate court

I noted two weeks ago that when Oklahoma’s Speaker submitted his legislative agenda with respect to the courts that it included a bill for term limits for the Court of Civil Appeals only (HB 3379). It was notable in that much of the Speaker’s prior commentary had been about his objections to the state’s supreme court. Last year a move was made to eliminate merit selection for the Kansas Court of Appeals, but the inability to do so for the Kansas Supreme Court. A year before that, anger over an Arizona Supreme Court decision prompted a member of the Arizona Senate to try and reduce the size of the Court of Appeals, which never even heard the case in question, from 22 down to 6. All this seems to suggest a pattern of legislative activity emerging with respect to intermediate appellate courts (IACs), much of which seems focused on statutorily created IACs.

First, some history.

IACs are relatively new; most states simply didn’t have them prior to 1965 and to this day 10 states still do not have an IAC (that may go down to 9 if Nevada voters approve an IAC in November 2014). In making revisions to their state constitutions, some states during this time declined to create an IAC, instead giving the legislature the option at some point in the future to create such courts by statute if the need arose.

As a result of the 45 IACs in 40 states (Alabama, Indiana, New York, Pennsylvania and Tennessee have two IACs) 16 are created via statutory provision alone. As such, unlike the super-majority + vote at the ballot box needed to alter courts of last resort, IACs are in a more vulnerable spot. Some rely entirely on statute for their method of selection, terms, and retirement. Others, such as Massachusetts, may rely on statute for their creation but once created the state constitution sets the parameters in these three areas.

Details regarding those 16 IACs below the fold.

Continue reading Kansas, Oklahoma, and other states show the legislative perils of being a statutorily created intermediate appellate court

Missouri Senate bill would require mandatory recusal where nominating commission members appear before a judge they nominated

All merit selection systems for judicial offices require that the commission that recommends names include a mix of lawyers and non-lawyers. There are presently, however, no apparent provisions that would preclude the attorneys on the commission to appear before the judicial-nominee-turned-judge they recommended.

That would change under Missouri SB 489 of 2014, as prefiled for the upcoming session. The bill would require recusal by any judge or justice “when a party or party’s attorney to the proceeding before the judge was a member of the appellate judicial commission or a circuit judicial commission who nominated the judge.” The bill then reiterates two constitutional provisions that in the event a Circuit Court judge was forced to recuse the supreme court could name a replacement or the circuit court itself could call in another judge.

The only recent bill that comes close to this is one proposed in Massachusetts in 2011 (SB 1562). In that state governors use a voluntary merit selection system; they are not bound by or to the names submitted by the Judicial Nominating Commission. The Massachusetts bill is a reversal of the Missouri one; rather than the judge being forced to recuse if an attorney that was on the commission appeared, the attorney who served on a commission would be effectively barred from practicing law in any court in the state.

 

Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

Continue reading Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

After record number of impeachment attempts against judges in 2011/2012, 2013 efforts down to effectively zero

One of the big stories coming out of the 2010 elections was the record number of attempts to impeach judges, almost all focused on decisions they rendered. A review of the list from the 2011/2012 sessions finds that all failed, although in one case (Oklahoma District Judge Tammy Bass-LeSure) the judge in question resigned and plead guilty to two felony counts.

So far in 2013 the wave of impeachment efforts have failed to be reestablished. Only two such efforts even show hints of being started.

The first, a carryover from the 2011/2012 session, attempts to remove by bill of address 6 of the 7 justices of the Massachusetts Supreme Judicial Court for decisions they have rendered relative to the private right of action provisions of the state’s wage and hour laws. The effort (HB 1342 of 2013) was not even the idea of the legislator who introduced it; under the Massachusetts constitution anyone can require their legislator submit any bill to the House or Senate for consideration. The authorship portion of HB 1324 indicates it is in fact being submitted “by request” and “by petition” of a voter.

The second may occur in the next several weeks in Pennsylvania. State Supreme Court Justice Joan Orie Melvin was convicted in February of using state employees to assist in campaigns. The justice, already suspended from the Supreme Court, is set to be sentenced May 7 and there is no indication one way or the other if she intends to resign from office and she may yet be removed from office by the state’s Court of Judicial Discipline. Pennsylvania House leaders have indicated that they will begin the preliminary steps for an impeachment proceeding just in case the justice fails to resign or the Court of Judicial Discipline fails to remove her from office.

Massachusetts & Washington bills would increase penalties for assaults committed in courts

The last several years have seen new laws enacted increasing penalties for assaults and other crimes perpetrated against not only judges but court staff. Bills introduced in Massachusetts and Washington, however, would focus on the placement of the criminal activity (a courthouse or courtroom).

Under Washington HB 1563  and SB 5484 provide an assault committed in an area related to court proceedings, including and specifically courtrooms, corridors, judge’s chambers, jury rooms, etc. would automatically be elevated to a Class C felony. It would also make such an assault an “Aggravating circumstance” for sentencing purposes.

The House version was committee amended to require courts to develop procedures for notifying the public that an assault offense occurring on the grounds of a court proceeding is a class C felony. The amended bill was approved by the House Public Safety Committee February 21 on a 9-2 vote

The Senate version has its own amendment to address the issue of courthouses that also hold or host other government functions. Under the amendment the felony assault provision would only apply at those times when the area in question was being used for a judicial proceeding. SB 5484, with the committee amendment, was approved by the Senate Law & Justice Committee unanimously on February 22.

On the same day the Washington State Senate committee was approving SB 5484, Massachusetts HB 1269 and  HB 1305 were being introduced. Sections 2 & 3 of the nearly identical bills provide for enhanced for enhanced punishment for crimes committed against judges, court staff, or court employees in the performance of their duties.

Section 1, however, like the Washington State bill provides for enhanced punishment for an assault on  “property owned, leased or occupied by the Massachusetts judicial department or an agency or committee thereof, including any trial or appellate court, during the time when the courts are in session or open to the public.”

Massachusetts HB 1269 & HB 1305 are currently pending in the legislature’s Joint Committee on the Judiciary.

Updated 3/1/13 added HB 1268 references