Montana: bill calls for creation of “Supreme Court Candidate Public Forum Program” to help inform voters

A plan to expand public information about Montana Supreme Court races has been filed in that state’s House.

First, some background.

Montana uses a unique election system for their Supreme Court.

  • For initial terms, justices run for a particular seat (e.g. Associate Justice #2, Chief Justice) in a non-partisan race.
  • For additional terms, if a justice runs in a contest race, it is again non-partisan. If the justice runs unopposed, the justice must still go before voters, but in a yes/no retention election. So, for example, in 2016 Chief Justice Mike McGrath ran unopposed, so had to go up for a retention vote (he won with an 82% yes vote).

Under HB 636 as filed the Montana Secretary of State would administer the Supreme Court Candidate Public Forum Program and invite all candidates to participate. The program is designed to provide increased public access to information about candidates for justice and chief justice of the Montana supreme court.

The Program would pay for candidates to travel to forums across the state and pay for the space needed to host, publicize, and broadcast the events. The Secretary of State would “arrange forums in a manner that emphasizes and respects the nonpartisan nature of the supreme court while providing electors important information about candidates.”

Funds for the Program would come from 2 sources

  • An increase in filing fees in appellate and civil cases
  • Voluntary income tax refund contributions up to $5 (individual) or $10 (joint) from state income tax forms. Those who owe taxes could contribute $1.

HB 636 has been assigned to the House Judiciary Committee.

Montana: Senate hearing on plan to declare new ABA model rule banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Senate Judiciary committee is set to hold a hearing tomorrow on Senate Joint Resolution 15 to declare “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

While rules of procedure are “subject to disapproval by the legislature”, the rules governing bar admission and conduct aren’t. That is not stopping members of the Montana Senate from trying.

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power,”

 

Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

The 2017 legislative session appears poised to pick up where the 2015/2016 sessions left off with respects to attempts to ban state courts from using or making reference to foreign/international law in general and sharia law in particular. Among the legislation:

Oregon SB 479 specifically targets sharia by name. As I mentioned when this came up in 2015, the Oregon bill’s specific naming and targeting sharia is similar to an Oklahoma effort that was struck down by federal courts as a violation of the First Amendment.

Arkansas HB 1041 approved by the House last week 63-24 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution

Among those rights listed is the “right to marry, as “marriage” is defined by Arkansas Constitution, Amendment 83.” Amendment 83 provides “Marriage consists only of the union of one man and one woman.” The lead sponsor of the bill indicated he believed “that marriage is between a man and a woman, not between the same sexes.

The other bill to advance so far was Montana’s SB 97 which cleared the Senate 27-21 on February 3. It too mentions marriage, but does not explicitly limit it to one man and one woman.

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage.

Full list of bills below the fold.

  1. Continue reading Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

Montana Legislative Year in Review: judicial redistricting commission; financial disclosures for judges

Law

HB 366 Allows a Justice of the Peace or Clerk of District Court to be paid up to an additional $2,000 per year in addition to their base salaries.

HB 430 Creates judicial redistricting commission to recommend changes to district lines for 2017 legislature.

HB 461 Allows justice court judges to receive additional compensation for longevity in addition to their base salary.

SB 15 Clarifies retired judges or justices may handle all phases of a case if called for service.

SB 72 Repeals law prohibiting political party endorsement of judicial candidates.

SB 89 Requires Supreme Court justices and district court judges to file financial reports.

Vetoed

SB 235 Provides governor may not alter judicial branch budget proposals but must direct them to legislature unchanged.

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.

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

Continue reading Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

MT: Governor vetoes bill that would prohibit executive from modifying judiciary’s budget requests to the legislature; 29 states have similar protections

Montana’s governor has vetoed a bill that would prohibit the executive branch from tampering with the judiciary’s budget request to the legislature prior to submission. As originally discussed here current law already provides “Legislative branch budget proposals must be included in the budget submitted by the governor without changes.” SB 235, as vetoed, would extend the same protections to judicial branch proposals.

In his veto message Governor Steve Bullock warned that

If implemented, SB 235 could force the executive branch to forego its budget priorities in order to fully fund a budget request of the judiciary that has no boundaries or limitations.

According to the latest data from my National Center for State Courts’ colleagues who run the State Court Organization project 29 states either prevent the executive amending the judiciary’s budget request to the legislature or limit the request to comments on the proposal only. (See table below fold)

It is not clear the legislature has the 2/3rds needed to override the veto. While the House passed the bill 70-28 (67 votes needed to override) the Senate passed it by only 28-22 (34 votes needed to override).

Continue reading MT: Governor vetoes bill that would prohibit executive from modifying judiciary’s budget requests to the legislature; 29 states have similar protections