Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

Welcome Gavel Grab readers!

The (probably?) single biggest year in history for efforts to impeach state judges has just gotten one bill bigger.

On May 4, Missouri House member Rochelle Walton Gray filed HR 3102, articles of impeachment against St. Louis Circuit Judge John A. Ross. The articles were filed the same day Judge Ross was set to testify before the U.S. Senate Judiciary Committee as it considered his nomination for an appointment to the federal bench for the Eastern District of Missouri.

The articles accuse Judge Ross of “judicial activism” and racial discrimination in the case of Buchek v. Washington, et. al., Cause No. 09SL-CC04530, for failure  to follow legal precedence (and specifying the cases allegedly not followed) and other accusations related to the Northeast Ambulance and Fire Protection District, whose board membership the articles claim is made up of black elected officials. The district’s former attorney, Elbert Walton Jr., is the father of Rochelle Walton Gray, the Missouri House Representative that authored HR 3102.

The articles of impeachment read very much like the letter sent by Missouri Rep. Lacy Clay in opposition to Judge Ross’ appointment to the federal bench (as per this article in the Missouri Lawyer’s Weekly).  The Clay letter contained as an attachment a letter (described by local media as “meandering”) from “Citizens for Fairness in the Appointment of Judges” (led by Elbert Walton, Jr. and Rep. Walton Gray) to Sen. Claire McCaskill, sections of which appear to have been repeated verbatim in HR 3102.

During the Senate Judiciary Committee hearing Judge Ross denied the statements in the Clay letter, suggesting it “contains significant inaccuracies.”

Despite being filed on May 4, HR 3102 was not referred to a committee (House Judiciary) until May 13, the day the legislature concluded floor sessions. Formal adjournment sine die will occur May 26 or 27. Because Missouri bills do not carry over from session to session, it appears no action will take place regarding HR 3102.

An updated list of pending impeachment/judicial removal efforts can be found below the fold:

Continue reading Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

Massachusetts House approves bill to overhaul governance of state’s judiciary

The Massachusetts judiciary may be set for the biggest overhaul since the Court Reorganization Act of 1978 established the current system and named a “chief justice for administration and management” (CJAM) to serve as the state court administrator. Yesterday the House unanimously approved HB 3395 which would revamp the state judiciary’s governance structure. According to the Boston Globe, the impetus for the change was the Probation Department hiring/promotion scandals under review over the last several years. (I discussed the legislative plan to remove Probation from the judiciary here).

The 1978 act made the CJAM’s position perhaps unique among all state court administrators. Whereas most served at the pleasure their chief justice or supreme court and were not judges, the CJAM was required to be a trial judge and held a five year fixed term. While “subject to the superintendence power of the supreme judicial court “, the CJAM could only be removed from office by the supreme judicial court for “malfeasance, misfeasance or nonfeasance” (MGL ch. 211B, § 6 & § 9).

HB 3395 renames the CJAM the “chief justice of the trial court” (CJTC) transfers much of the CJAM’s power to a new “court administrator” and deputy court administrators for each division of the trial court. In sum, “business functions” would be handled by the court administrator, but “judicial management” by the CJTC.

It creates an office of court management under the court administrator. Both the CJTC and the newly created court administrator would serve 5 year terms, but the restriction on removal only for “malfeasance, misfeasance or nonfeasance” was removed from the provisions related to the CJAM/CJTC. Interestingly, the new court administrator would be specifically prohibited from being a judge and would be required to have significant leadership experience in the fields of management and finance.

HB 3395 provides the CJTC “shall have general superintendence of the judicial policy of the trial court [currently administration of the trial court], including, without limitation, the improvement of the administration of such courts and the securing of their proper and efficient administration” but that the court administrator is “administrative head of the trial court of the commonwealth [a distinction held currently by the CJAM].”

Although the currently CJAM approved of the plans outlined in HB 3395, the bill anticipates possible conflicts between the new court administrator and the CJAM/CJTC:

The chief justice of the trial court and the court administrator shall endeavor to resolve between themselves all differences or disputes they may have regarding the management and administration of the trial court. If, after due discussion and collaboration, they are unable to do so, either may submit the issue to the chief justice of the supreme judicial court who, after determining why the chief justice and the court administrator were unable to resolve the issue, shall promptly decide it. The decision of the chief justice of the supreme judicial court shall be final and binding.

Coverage and commentary about the proposal are available from the Boston Globe, the Boston Bar Association, the Massachusetts Bar Association, and Massachusetts Lawyers Weekly‘s The Docket.

Massachusetts constitutional convention meets today, considers 7-year judicial terms

Today marks the start of the latest Massachusetts constitutional convention. Required to meet every legislative session, the convention functions more or less as a joint session of the House and Senate sitting for the sole purpose of considering constitutional amendments.

On the agenda this year is Proposal 12, which would change the state’s current practice of having judges serve until age 70. Instead, judges would be subject to reconfirmation every 7 years in much the same way as their initial confirmation, namely by the state’s elected Executive Council. The chief proponent, while specifically stating he opposes elected judges (h/t Boston Globe) argues that judges are too lenient against criminals in the state and that reconfirmation would address that, while at the same time saying “This is by no means an attack on judges.”

Proposal 12 is identical to House Bill 1283 which had been rejected by the Joint Committee on the Judiciary previously this year.

The convention meets at 1 PM Eastern today. Video coverage will be available here.

Zero-based budgeting: Coming soon to a judicial branch near you?

The National Association of State Budget Officers (NASBO) defines zero-based budgeting as a system that

subjects all programs, activities and expenditures to justification (in contrast to incremental budgeting). Funding requests, recommendations and allocations for existing and new programs are usually ranked in priority order on the basis of alternative service levels, which are lower, equal to and higher than current levels. This process can be used in conjunction with either line-item budgeting and/or program budgeting.

According to NASBO in 2008, 17 states use ZBB or “modified” ZBB for at least some state funding.

ZBB was and is under active consideration by several states this year, with many such bills explicitly applying to the state’s judicial branches. Among the most active is Minnesota’s SB 1047, which would put the state’s judicial branch budget under ZBB starting in the July 2013 biennial budget. Minnesota proponents argue that it ensures the state lives within its means and does not have unnecessary spending. Opponents counter ZBB is backwards: it is needs that should be identified first, then figuring out the funding.

Other bills that would move the state’s courts to ZBB include:

Active

Massachusetts SB 1619 Requires zero based budgeting “for each agency and department of state government.” In Joint Committee on State Administration and Regulatory Oversight.

Minnesota HB 2 Applies zero based budgeting to all judicial branch budgets starting with the July 2013 biennium. Approved by House Government Operations and Elections Committee 1/31/11. Approved by State Government Finance Committee 4/28/11. In House Ways and Means Committee.

Minnesota HB 577 Applies zero based budgeting to all judicial branch budget starting with the July 2013 biennium. In House Ways & Means Committee

Minnesota SB 76 Requires judiciary and other branches use zero-based budgets. In House Government Operations and Elections Committee.

New Jersey AB 1201 Requires Judicial Branch make use of  certain zero-based budgeting practices and procedures and specifies 10 items to be submitted to State Treasurer and the Director of the Division of Budget and Accounting. In Assembly Budget Committee.

New Jersey SB 344 Requires Judicial Branch make use of  certain zero-based budgeting practices and procedures and specifies 10 items to be submitted to State Treasurer and the Director of the Division of Budget and Accounting. In Senate Budget and Appropriations Committee.

South Carolina HB 3215 Provides House Ways and Means Committee and the Senate Finance Committee will implement a zero-base budget review process as part of the annual appropriations process beginning with appropriations for fiscal year 2012-2013 for all elements of judicial branch. In House Committee on Ways and Means.

South Carolina SB 15 Provides House Ways and Means Committee and the Senate Finance Committee will implement a zero-base budget review process as part of the annual appropriations process. Provides such reviews would begin for judiciary in FY 2014-2015. In Senate Committee on Finance.

South Carolina HB 3528 Provides House Ways and Means Committee and the Senate Finance Committee will implement a zero-base budget review process as part of the annual appropriations process. Provides such reviews would begin for judiciary in FY 2014-2015. In House Committee on Ways and Means.

Previously active, dead for session

Georgia HB 33 Requires zero-base budgeting for most state agencies. Encourages but does not require judicial branch participate in the zero-base budgeting process proposed in bill. Approved by full House 4/13/11.

Georgia SB 33 Requires zero-base budgeting for most state agencies. Encourages but does not require judicial branch participate in the zero-base budgeting process proposed in bill. “Encourages” language amended out. See HB 33.

Minnesota SB 3 Requires judiciary and other branches use zero-based budgets. Amended into SB 1047.

Montana HB 343 Provides for “partial” zero-based budgets in judicial branch and other branches/agencies. Approved by full House 3/24/11. Tabled in Senate Finance and Claims Committee 4/6/11.

Inactive, dead for session

Illinois SB 1212 requires for fiscal year 2013 and beyond zero-based budgeting for the judicial branch and all agencies under the jurisdiction of the Executive Ethics Commission. No hearings held.

Oklahoma now in tie with Massachusetts for most legislative efforts to remove judges from office in 2011

I mentioned in March that 2011 was on track to have most efforts to remove judges from office in recent memory with efforts lodged against 10 judges by various state legislatures. Since then Pennsylvania was added (see post here). Now, Oklahoma’s legislature, which already had three such efforts, has added a fourth. HR 1024 petitions the Trial Division of the Court on the Judiciary to assume jurisdiction and institute proceedings for the removal of District Judge Tom Lucas for failing to disqualify himself from hearing cases prosecuted by the Office of the District Attorney of Cleveland County. The ABA Journal and The Oklahoman have a full recap of the events surrounding the DA’s blanket recusal motion (filed under seal) and the judge’s (very public) denial. In short, the DA’s office contends that Lucas is prejudiced against the prosecution in all criminal cases due to an active child molestation investigation in which a member of the judge’s family is involved.

Below is an updated list of pending impeachment/judicial removal efforts:

State Bill Form of removal Target Reason for removal request Status
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown Pending
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases Investigation approved by House
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases Investigation approved by House
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases Request for resignation or impeachment approved by Senate
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case Pending
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban Pending
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim Pending
Oklahoma HR 1024 Request for removal by judicial disciplinary commission District Judge Tom Lucas Denial of blanket recusal motion by DA Pending
Pennsylvania HR 124 Impeachment Court of Common Pleas Judge Willis W. Berry, Jr. Use of his office and judicial secretary for a decade to “assist him in the day-to-day operations concerning his properties.” Pending

Massachusetts: Bill to remove Probation Department from judiciary debated

The precise placement of Parole and Probation functions have been a subject of some debate. Traditionally, parole was viewed as an exercise of the executive’s power, while probation was a judicial sentence. While several states have combined the administration of the functions under joint Departments of Probation and Parole others, such as Massachusetts, keep them separate.

Amid accusations made in the Boston Globe and from an independent counsel’s report that found a “patronage hiring machine” at the Massachusetts Probation Department, HB 42 of 2011 would combine the Probation Department from the judiciary and the Parole Department from the Executive Branch into new Department of Re-entry and Community Supervision. The new department would he housed in the Executive Branch.

According to the Massachusetts Lawyer’s Weekly Blog, judicial leaders testified in late March in opposition to HB 42. Supreme Judicial Court Chief Justice Roderick L. Ireland noted the probation department had been overhauled and warned

“Many judges are greatly concerned that if Probation is removed from the judicial branch, the probation function will be compromised. Judges will wonder whether they’re getting the probation officer’s most candid, most objective advice and probation officers may feel torn between their desire to provide the best counsel to the judges while at the same time striving to comply with the policies and goals of the executive branch.”

Executive branch officials argue judges and probation officials “are professionals” and would note be at odds if probation came under the executive purview.

The bill remains pending in the Joint Committee on the Judiciary.

Judicial Retirement Plans/Pensions 2011: Northeastern States

Maine HB 425 Establishes an option for new employees hired on or after July 1, 2012 to become members of the Judicial Retirement Program. Provides current members may make a onetime, irrevocable election to remain as members.

Massachusetts HB 2431 Provides survivors of judges who die “in the performance of his/her duties” are to receive maximum retirement benefits as if judge were fully vested, etc. Defines “in the performance of his/her duties” as including judicial assignments in any courthouse or other venue, such as hospitals or jails, used to conduct judicial business; to Emergency Judicial Response System assignments; to approved voluntary or assigned education programs or other assignment within the scope of his/her employment as a judge or justice.

Massachusetts HB 2965 Modifies retirement earnings and benefits of certain senior justices.

Massachusetts HB 2978 Provides for judges who reach mandatory retirement age shall receive automatic inflation adjustments to annual pensions.

New Hampshire HB 299 Allows the annual contribution for unfunded accrued liability of the judicial retirement plan to be calculated over a 30-year period or the maximum period allowed, whichever is less.

New Hampshire HB 492 Establishes a deferred retirement option in the judicial retirement plan. Modifies benefits related to service of certain judges of probate retiring because of permanent disability.

New Jersey AB 3796 & SB 2705 Increases employee contribution rates in Judicial Retirement System (JRS) to 8.5% of salary (up from 3%). Provides additional 5.5% not being used to reduce the statutorily required employer normal contribution. Provides increases to be implemented in a manner to conform to State Constitution prohibition against the reduction in the compensation of a judge during the judge’s term of appointment.

New Jersey SB 2696 Restructures Judicial Retirement System (JRS) and other Retirement Systems. Changes contribution rate to JRS and authorizes JRS board to make future changes.

Rhode Island HB 5840 Eliminates the cost-of-living retirement adjustments for all judges, teachers, and state employees and their surviving spouses or domestic partners who are hired on or after the effective date of act.

MA bills: Failure to fly U.S. & commonwealth flags in courtroom due process violation

Welcome Volokh readers!

Many states have requirements that U.S. and state flags be used in courthouses and/or courtrooms. Several Massachusetts bills, however, would in effect void any proceeding that did not include such flags.

Chapter 220, Section 1 of the Massachusetts General Laws provides “The flag of the United States and the flag of the commonwealth shall be displayed in every court of justice of the commonwealth while court is in session. The flags shall be of suitable dimensions.”

The matter has actually been litigated involving a case where a courtroom’s flag was borrowed by another court and was returned to the courtroom before the morning session was over. On appeal, the party sought a mistrial, which was denied. (Zabin v. Picciotto, 2008 Mass. App. LEXIS 1135).

HB 1325 and SB 643 of 2011 would both declare “Failure to adhere to the provisions of this section [i.e. display the flags] shall constitute a violation of due process.” The bills are identical to ones filed in the 2009/2010 session (HB 1475 and SB 1562).

The 2011 bills are currently pending in the Joint Committee on the Judiciary.

Update: Fixed a typo or two…

2011 on track to have most efforts to remove judges from office in recent memory

It is barely March, and already there have been more bills seeking the removal of judges in 2011 than in any year in recent memory. As I noted in a special December 2010 edition of Gavel to Gavel, while threats to impeach state court judges have increased, it has only been in the last several years that actual bills have been drafted and submitted.
All told, 10 judges (9 state, 1 federal) are the target of impeachment or removal efforts in the state legislatures this year. This is in addition to the threats to impeach Iowa’s supreme court justices made earlier in the year that have not materialized as articles of impeachment.

State Bill Form of removal Target Reason for removal request
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim

MA: Effort to remove by bill of address 4 justices of Supreme Judicial Court introduced

Last week a Massachusetts Representative introduced, at the request of a constituent, HB 2172 a “bill of address” for the removal of Supreme Judicial Court Chief Justice Roderick L. Ireland and justices Francis X. Spina, Judith A. Cowin, and Robert J. Cordy.

There is no specific reasoning for the effort to remove these four justices in particular. The last such effort in Massachusetts occurred in 2004 and 2005 where bills of address were introduced against the justices that ruled in favor of same-sex marriage (Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)). However, justices Cordy and Spina had dissents in those cases, while (then associate justice) Ireland and Cowin voted in favor.

Under the Massachusetts constitution, removal by bill of address requires only a majority of both the House and Senate, followed by the approval of the Governor and Governor’s Council. Where impeachment would require accusations of “misconduct and mal-administration”, bills of address do not require such findings.

The bill is currently pending before the Joint Committee on the Judiciary.