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.

New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

I noted back in March the litany of bills that would allow for expanded carrying of firearms into courthouses, and in some cases directly into courtrooms. Since then there’s been a great deal of activity.

In late July North Carolina’s governor signed into law a bill (HB 562) that would allow for prosecutors to carry guns not just into courthouses but directly into courtrooms. Moreover, the no-guns-courthouses policy (specifically that “portion of the building used for court purposes while the building is being used for court purposes.”) already in place no longer applies to administrative law judges or employees of the Department of Public Safety.

At the same time North Carolina was debating expanding guns-in-courthouses, Oregon was moving to restrict. SB 385, as introduced, originally added justice courts and municipal courts to the definition of “court facility” in which firearms and other weapons are prohibited except in specified circumstances. As enacted SB 385 still expands the restriction, allowing municipal court and justice of the peace court judges to ban weapons but only to those portions of the “local court facility” used by the court during the hours in which the court operates. Moreover, in buildings where there are multiple types of court (circuit, municipal, justice of the peace, etc.) the presiding judge of Circuit Court can enforce a ban that cannot be contradicted by an order of the lower court’s judges.

A review of 2015 legislation regarding guns in courts is below the fold.

Continue reading New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

States Expand Protections Against False Liens for Public Officials

During this legislative session, seven states passed measures that expand protections against the filing of false liens—a legal claim to property for unpaid debt—for public officials, and one other state is still considering such a measure. Over the past 20 years, an increasing number of individuals have taken to filing false liens against public officials, a form of harassment that the FBI has dubbed “paper terrorism.” The states have responded by allowing clerks and filing offices to reject such claims, as recommended by the National Association of Secretaries of State, and by increasing civil and criminal penalties.

In addition to the seven states that passed measures this year, there are a number of other states with existing protections. In 2012, this blog covered the efforts of six states (here and here) to pass such measures, three of which were ultimately successful. Similarly, there were eight states in 2013, and five states in 2014, that successfully passed such legislation. The following is a review of efforts in the states to protect judges and other public officials from false liens during the 2015 legislative session.

Passed
Indiana HB 1371 amends existing law prohibiting the filing of false liens to include those who do not currently hold office but have in the preceding four years and provides that liens will be voided if a suit has not commenced within 30 days.

Maryland SB 77 provides that if the filing office believes a claim to be false, they must notify the subject of the filing, state their reasons for believing it is false, and terminate it in 45 days unless the claimant files an affidavit under the penalties of perjury that provides for the claim’s validity. If the filing office still believes the claim to be false after receiving the affidavit, the office may terminate the claim in 45 days unless the claimant petitions for a judicial determination of its validity. (Note: The Governor vetoed HB 312 as duplicative).

Nevada SB 197 amends existing law to prohibit and classify as a category B felony the filing of a false lien or other encumbrance “against the real or personal property of a public officer, candidate for public office, public employee, or participant in an official proceeding, or a member of [their] immediate family” based on the performance of or failure to perform the duties relating to their office or employment. The subject of the fraudulent claim is permitted to bring civil suit against the claimant under this statute.

New Jersey AB 2481 authorizes the filing office to reject a claim it reasonably believes to be materially false or fraudulent because it is (1) filed against a current or former officer or employee of any federal, state, county, local, or other government unit; (2) relates to their performance or failure to perform the duties relating to their office or employment; and (3) “for which the filer does not hold a properly executed security agreement or judgment from a court of competent jurisdiction.” The statute allows the filing office to reject claims filed by incarcerated individuals. The official or employee against whom the claim is filed is also authorized to bring civil suit, and the court is authorized to grant awards up to $2000 or damages incurred and enjoin the defendant from filing any future liens, encumbrances, or court actions without the approval of the court. (Note: The existing statute already included the provision that the filing of a false lien against a public official or employee is a second degree crime).

North Carolina SB 83 amends existing law concerning the filing of false liens or encumbrances against the real or personal property of a public officer, public employee, or their immediate family. The measure authorizes the register of deeds or clerk of court to refuse to file a claim that they reasonably suspect to be fraudulent. The measure also provides an appeals process for denied filings.

North Dakota HB 1307 amends existing law to classify the threatening of a public servant, including the filing of false liens, as a class A misdemeanor for a first offense, and a class C felony for second and subsequent offenses.

Pending
California AB 1267 expands existing protections against false liens to apply to lawsuits and other encumbrances against public officials with the intent to harass. It also provides that the subject of the fraudulent claim can request an order directing the claimant to appear in court to defend the claim. AB 1267 was passed by both the House and Senate, but is still awaiting the Governor’s approval.

Pennsylvania SB 212 classifies the filing of a false lien, in addition to any other unlawful action that attempts to influence, intimidate, or hinder a public official or law enforcement officer from performing their duties, as a misdemeanor of the second degree. This bill is still pending in committee.

Carrying guns into courthouses: Arkansas moving legislation, Texas debating, North Dakota rejected

Continuing a trend that’s been moving nationally over the last several years, efforts have been pressed in this legislative session to expand those people who are allowed to carry weapons into courthouses.

Arkansas

Current law (Arkansas Code § 5-73-306(5) & (6)) puts forth a general ban on concealed handgun permit holders carrying a firearm into a courthouse (5) or courtroom (6). Last week the Arkansas Senate Judiciary Committee approved SB 159, a plan to allow allows any county employee with a concealed carry permit to bring their gun into the courthouse that contains their primary place of employment. More than just the courthouse, the person would be permitted to carry into

Any courthouse, courthouse annex or other building owned, leased, or regularly used by a county for conducting court proceedings or housing a county office

The Arkansas Senate could vote on this proposal as early as today.

Meanwhile the Arkansas House approved earlier in March a more limited bill (HB 1626) that allows elected officials with a concealed carry permit to carry into courthouses. That bill was approved March 12 on an 80-4 vote.

North Dakota

Current law (62.1-02-05) makes it a crime to possess a firearm at a “public gathering” which includes courthouses and other “publicly owned or operated buildings.” HB 1157 as introduced would have permitted any elected official with a concealed weapons license to carry into such “publicly owned or operated buildings” with their weapon.

The House Judiciary Committee approved a modified version: the ban on handgun carrying would still apply but only in areas designated and made a “secured court facility”

“Secured court facility” means a building or portion of a building in which court proceedings occur and in which access is not permitted unless an individual passes through equipment that detects weapons and is staffed by armed security personnel.

The language is very similar to a Kansas law enacted a few years ago that used the term “adequate security” instead of “secured court facility.” The only way a court would be able to prohibit carrying weapons into a courthouse area was if there was the resources to provide for scanners and armed security. The amended bill was rejected by the House Judiciary Committee 5-8 but advanced to the full House, where it was rejected on a narrow 45-47 vote in February.

Texas

Texas Penal Code Sec. 46.03(a)(3) provides

A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a)…on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.

Two bills on this subject, one of which is set for a hearing tomorrow, would provide exemptions to this restriction and allow county employees or officials to carry into the courthouses. Texas HB 2241 would allow a “county officer” or “county employee” to possess a firearm in a courthouse. The county officer would need to have a concealed handgun permit; a county employee would need both a permit and the permission from both the local governing body and the county officer who supervises the employee.

An alternative bill (HB 3007) would be limited to county and court clerks only that possess a concealed handgun permit. No additional permissions would be required.

North Dakota: hearing today on giving another 4 years of life to the state’s 27 year old “Temporary” Court of Appeals

When North Dakota rewrote its judiciary article in 1976 (Amendment 3) and then heavily amended it again in 1980 (Amendment 5) it declined to create an intermediate appellate court (typically called a Court of Appeals in other states), instead leaving the option for the legislature to create “such other courts as may be provided by law.”

One such court was the Temporary Court of Appeals, established in 1987 with a sunset date of 1990.  It is notable that the court is truly “temporary”; it is only constituted and judges named to it when the number of appeals disposed in the state’s Supreme Court exceeds 250 and the Chief Justice certifies the Temporary Court of Appeals is needed. Judges are named to temporary panels of the court “for a time certain, not to exceed one year from the date of assignment, or specifically for one or more cases on the docket of the supreme court.” Once the cases are completed or the time ends, the panel disbands.

As such, there have been years when the court simply did not operate. Nevertheless, the legislature has continued to reauthorize the court several times usually for four years at a stretch (the exception was in 1993 when the legislature only authorized a 2-year extension). This year’s extension (to 2020) takes the form on HB 1076 which was scheduled for a hearing today before the House Judiciary Committee.

 

 

 

 

North Dakota: Should courts be mandated to sit outside of cities or should the supreme court have flexibility in placement?

It may sound mundane, but the question of where courts should be located at has been a contested issue for centuries. Sending judges out the rural hinterlands was one of the mandates found in the Magna Carta in 1215 as agreed to by King John.

We ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets.

The counter argument to such judicial postings has been that most cases are not far out in rural areas but closer to the urban centers.

When North Dakota created its modern court system in 1991, eliminating the various County Courts in favor of a single District Court, the legislature mandated that at least 30% of judges be placed outside of cities. (N.D. Cent. Code 27-05-08). Last week in a 13-0 vote in committee and 90-1 in House that provision was moved closer to repeal (HB 1166) and characterized as an “anachronism” of the County Court merger. Instead, the Supreme Court would be free to establish by rule where the judge’s chambers are to be located.

HB 1166 now goes to the Senate for consideration.

 

North Dakota State of the Judiciary: lack of legislative resources for court staff, judges has led to “conveyor-belt justice”

On January 7, North Dakota Chief Justice Gerald VandeWalle delivered his State of the Judiciary Address to the state’s Legislative Assembly.

From a procedural standpoint, no resolution was adopted. The Senate’s Assistant Majority Leader made a motion to join the House in its Chamber for a joint session. The House’s Assistant Majority Leader made effectively the same motion 30 minutes later.

The speech itself (a copy of which can be found here) included

Continue reading North Dakota State of the Judiciary: lack of legislative resources for court staff, judges has led to “conveyor-belt justice”