Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.

MT: Merit selection bill dies by tie vote in committee

Despite last year’s defeat of merit selection in Nevada, several states are actively considering putting it on their ballots. The first to a vote this year was in Montana, where SB 175 was considered by that state’s Senate Judiciary Committee over the last several weeks. In a January 27 hearing (audio here, minutes here) proponents noted the influx of money and partisan politics in judicial races and noted the need for fair and impartial courts. Some committee members, however, expressed concern that by having a partisan-elected governor select from a commission created by a partisan-elected legislature, politics would seep back in. One senator recommended having the supreme court chose.

Several senators expressed concern over the nominating commission composition. SB 175 provides only that the commissioners “shall be state residents and may not hold office in any political party. A majority of the commissioners shall be lay members who are neither attorneys nor elected officeholders.” Proponents argued that details of commission composition and selection should be left out of the constitition, citing a Montana tradition of not “legislating in the constitution.”

When a committee vote was finally held on February 4 (audio here) several committee members that voted against stated their worries about taking away the vote of Montana residents, that no Native American would ever be able to become a judge, and that the politics of judicial selection would simply go behind closed doors. All committee members present, however, did express their concerns over over-politicization of judicial election/selection, with some openly calling for a discussion on public financing. When brought to a vote, the bill died on a 6-6 tie with all five Democrats, plus the Republican committee chair voting No. However, several of the Yes votes were expressed with the caveat that they were voting to advance the bill to the floor and/or a fuller debate and might very well vote against the final bill.

MT: Prosecuting judges for enforcing federal laws and court decisions

Article VI of the U.S. Constitution provides “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This restriction, however, has not prohibited several bills in the Montana legislature to provide that if a state judge is “bound thereby” he or she will be prosecuted.

HB 381makes it a misdemeanor to enforce any federal firearms law “that conflicts with the provisions of Title 30, chapter 20, part 1 [of the Montana Code]”. That provision, the Montana Firearms Freedom Act was enacted in 2009 and declares, in relevant part:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

HB 443 makes a similar statement with respect to interstate commerce as it relates to food (possibly in an effort to directly challenge Wickard v. Filburn, in which the U.S. Supreme Court held a farmer raising wheat on his own farm to feed the chickens on his farm was engaged in interstate commerce). The bill declares as a violation of the U.S. Constitution:

any federal regulation, rule, or policy promulgated after [the effective date of this act], and any executive order issued by the president of the United States after [the effective date of this act] that seeks, purports, or is otherwise intended to regulate, in any way, the manufacture, production, processing, packing, exposure, offer, possession, and holding of food for sale, the sale, dispensing, and giving of food, and the supplying or applying of food intended to remain in this state and not intended to enter interstate commerce

While the descriptor portion of the law is limited to federal “regulation, rule, policy…[or]…executive order”, the punishment provisions are more expansive: any federal OR state judge that attempts to enforce or attempt to enforce an act, order, law, executive order, court decision, or regulation of the United States government in violation of the above is guilty of a felony.

SB 150 creates the civil tort and crime of “Official oppression” to include “arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or deni[al] or imped[ing] another in the exercise or enjoyment of any right, privilege, power, or immunity”. The bill permits recovery of damages from judges individually and personally, with no indemnification from the government, unless the judge functioned in a “normal and usual judicial capacity” and in includes judges and other officials “of the federal government or of another nation or an organization of nations.”

Today’s a big day for hearings on bills affecting the judiciary

Several bills affecting the state courts are getting committee hearings today, (see update below) including:

Montana HB 332 (House Judiciary committee audio will be here) would permit jury nullification and require judges inform jurors they may judge both the facts and the law in the case> Judges would be required to provide jurors¬† state and federal constitutions and any statute books they request. In criminal cases, the judge would be required to inform jurors they may vote their conscience to acquit an accused in spite of technical guilt. Finally, the bill defines “obstruction” of these provisions as reversible error.

Meanwhile, Indiana’s Senate Judiciary committee (live streaming video here) will be considering two bills of particular note. SB 212 would move the state closer to a restructured system of consolidated trial courts. It provides that all circuit courts, superior courts, and probate courts have: (1) original and concurrent jurisdiction in all civil cases and in all criminal cases; (2) de novo appellate jurisdiction of appeals from city and town courts; and (3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts. The bill would also repeal authorization for the establishment and operation of county courts (since January 1, 2009, no county court exists in Indiana.).Also up for debate is SB 463 which would repeal all provisions that establish a mandatory retirement age for superior court and county court judges.

Update 2/2/11 @ 8:44 Eastern: The massive snow storm affecting most of the country has shut down the Indiana Legislature Tuesday and Wednesday. According to the legislature’s website, Senate hearings may be conducted Thursday.

Plan to shrink Montana Supreme Court: designed to force the court into tort reform and out of redistricting lawsuits?

The effort to shrink the Montana Supreme Court from 7 members to 5, first discussed here, was heard in the Montana House Judiciary Committee today (audio and video here).

According to a fiscal note prepared on HB 245 the reduction would mean “a caseload increase of approximately 40% per justice. The time to disposition of Supreme Court cases would increase dramatically and cases may not be resolved timely.”

The author of HB 245, Rep. Derek Skees, told the House Judiciary Committee his intent in introducing the bill was to shrink government and save money. As for the caseload increase, Skees implied that while other Montana residents were having to do “more with less”, the Supreme Court had not and that the justices could “easily” handle the workload and achieve the guarantee of “speedy justice” in the state constitution. Skees also made clear his desire to obtain tort reform through the reduction of the size of the Supreme Court.

All of us want tort reform, well maybe not all of us.  I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.

Skees concluded his testimony with his desire to reduce the entire Supreme Court’s budget by 40%.

Rick Breckenridge of the Lake County Republican Party spoke in favor of the bill, noting to Republican members of the committee that:

We have redistricting and we need a tightened down Supreme Court in order to achieve that. So take control of the reins of the Supreme Court, show them who is in charge, and remember that with redistricting, how we (Republicans) have been treated by the Supreme Court in the past.

Opponents included the State Bar President Joe Sullivan who noted the massive slowdown that would result in the adjudication of both civil and criminal cases and impacting the economy. The State Bar opposes the bill “because it denies the citizens of Montana timely and swift access to their justice system.” Additionally, the chief prosecutor in the state Attorney-General’s office spoke out against the bill noting that, with lack of an intermediate appellate court, Montana’s 7 member Supreme Court was helpful for speedy deliberation of cases.

The chair of the committee noted a former justice of the Supreme Court resigned due to the already crushing burden on the court’s workload.

No vote was taken on the bill.

Montana is considering shrinking its Supreme Court

The last several years have seen numerous efforts to change the size of state supreme courts. Some had the air of court packing efforts, while others (such as Michigan in 2008) were expressly for the purpose of removing justices that some parties were dissatisfied with. The attempted changes were the focus of Issue 4:14 last year.

This year Montana House member Derek Skees has already requested a draft bill (D. 1609) which would reduce that state’s Supreme court from 7 to 5 justices by removing seats number 5 and 6 (Seats are designated chief justice, 1, 2, 3, 4, 5 and 6). Those seats, currently held by Justices James Nelson and Brian Morris, were created in 1979 and are up for reelection 2012.

The bill remains (as of the writing) in draft form only.

MT: City courts of record?

In Montana, 92% of the state’s DUI cases are filed in the state’s limited jurisdiction courts, according to the state’s Office of Court Administrator. As part of its examination of the state’s DUI laws, the legislature’s Law and Justice Interim Committee has recommended allowing one type of these courts, City Courts, to be courts of record. The proposal has been introduced as SB 41 of 2011 and would additionally grant city judges all the powers and duties of district judges in like cases. Because these would be courts of record, review in the state’s District Courts would be as an appeal and not a trial de novo. The bill is in the state Senate awaiting committee assignment.