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

Louisiana (bill) and Montana (law) mandate judges disclose financial information; LA bill appears to duplicate existing court rule but requires disclosures be put online

The issue of how and when judges should file financial disclosure statement for the public has come up in the 2015 session in both Montana and Louisiana with both states taking somewhat different approaches.

Montana’s governor has now signed into law SB 89, expanding the state’s disclosure law that already included all other state or local elected officers to specifically include supreme court justices and district court judges; judges of the justice courts, city courts, municipal courts, and water courts would not be affected. The bill was approved without a single no vote in any committee or in the full House or Senate.

Louisiana’s HB 294 takes a different tack. Rather than expanding existing disclosure laws (such as those that apply to state officials) it creates a new code section by duplicating existing disclosure laws and an existing rule of court (La. Sup. Ct. R. XXXIX). It differs from the court rule, however, in terms of access; HB 294 requires the disclosures be posted online while the Supreme Court rule does not appear to provide for this. Both HB 294 and the Supreme Court rule do provide judges that have failed to file, or have partially filed, their disclosures are to be listed on a website.

HB 294 is pending in the House Judiciary Committee.

Four states debate redrawing judicial districts/circuits: should it be a question of caseload? Population? Who should be on the commissions?

This year marks a dramatic uptick in the number of states that are examining the possibility of redrawing their judicial circuits/districts. How states plan on doing this and whether the districts should be redrawn focused on population or court workload are key questions at play.

Kentucky

Section 110 (appellate) and Sections 112 (trial) of the Kentucky constitution contend with the issue of judicial districts. In particular redrawing trial districts puts the Supreme Court into the mix.

The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name “Judicial Circuits,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts.

SB 49 adds to this by directing the Supreme Court submit a “suggested plan of correction” for circuit/district lines or the reallocation of judgeships. Interestingly, the plan calls for the use of two different criteria to be used

  • Appellate districts: “population only”
  • Trial districts/circuits: “populations or caseloads”

Moreover, SB 49 retains the policy that the General Assembly ultimately makes the decision to draw the lines; this a marked difference as compared to a 2013 constitutional amendment (HB 391) that would have let the Chief Justice redraw the lines as workload required.

SB 49 was approved 31-1-1 in the Senate and approved by the House State Government Committee; it is currently pending on the House floor.

Montana

HB 430 creates a judicial redistricting commission to recommend changes to district lines for the 2017 legislature. The commission would be made up of 7 members

  • 1 House or Senate member chosen jointly by majority leaders
  • 1 House or Senate member chosen jointly by minority leaders
  • 2 District Court Judges chosen by Chief Justice
  • 1 District Court Clerk chosen by clerk’s association
  • 1 County Commissioner chosen by counties association
  • 1 member of bar chosen by Bar President

In addition to a catchall provision, the commission would examine judicial redistricting using 6 factors

  1. population of the judicial districts
  2. judicial district’s weighted caseload as determined by judicial workload studies
  3. relative proportions of civil, criminal, juvenile, and family law cases
  4. extent to which special masters, alternative dispute resolution techniques, and other measures have been used
  5. distances in highway miles between county seats in existing judicial districts and any judicial districts that may be proposed by the commission
  6. impact on counties of any changes proposed in the judicial districts

HB 430 was narrowly approved by the full Montana House on a 51-49 vote on 2nd Reading on March 23. It was ultimately approved by the full House on a 54-46 vote yesterday (March 24) and is awaiting transmission to the Senate.

North Carolina

SB 226 directs the Legislative Research Commission (made up entirely of legislators) to study the state’s current trial court districts. The criteria do not mention population, instead focus on three others

  • improve the efficiency of the court system
  • provide for improved administration
  • better balance the caseloads in the various districts

SB 226 is currently in the Senate Rules Committee.

Tennessee

HB 144 was to be a bill about efiling in Tennessee courts. As amended in its entirety yesterday (March 24) it now creates a new way for Tennessee to redraw its judicial district lines. Amendment 1 to HB 144 directs the creation of a task force to recommend new judicial district lines and a joint House/Senate committee to review the proposal.

The Advisory Task Force to Review the Composition of Tennessee’s Current Judicial Districts would be made up of 13 members chosen by the House Speaker (6), Senate Speaker (6), and a joint appointment (1). The members would have to consist of

  • 3 current trial court judges, one from each grand division in the state
  • 3 current district attorneys, one from each grand division in the state
  • 3 current public defenders, one from each grand division in the state
  • 4 other members to be determined by speakers

There is no direction regarding the criteria for the new lines, other than

  • reasonable and timely access to Tennessee’s circuit, chancery, and criminal courts
  • promote the efficient utilization of publicly-funded resources allocated for the courts

The Task Force would make its report to a new Joint Legislative Committee on Judicial Redistricting made up of 5 House and 5 Senate members. The Joint Legislative Committee would remain a permanent feature in law being reconstituted every 8 years; the Advisory Task Force would have to be reenacted each time.

HB 114 as amended was approved yesterday (March 24) by the House Civil Justice Committee and referred to the House Finance, Ways & Means Committee.

First Montana, now Rhode Island may protect judiciary’s budget proposals from executive branch alterations

Last month Montana’s Senate approved on a 28-22 vote a bill (SB 235) which would prohibit the governor from tampering with the judiciary’s budget request before it was submitted to the legislature (discussed here). It now appears as if some Rhode Island legislatures are looking to advance a similar plan.

Under SB 524 the Rhode Island judiciary’s budget would be exempt from control by the Executive Branch’s Budget Officer of the Capital Development Planning Commission. Instead, the Budget Officer would only have the authority to assist the judiciary in the development of its budget.

SB 524 is set for a hearing tomorrow (March 5) before the Senate Judiciary Committee.