Oregon and South Carolina consider directly tying state judicial salaries to federal judicial salaries

Efforts are underway in two states to directly tie the salaries for state judges to that of federal judicial pay.

Oregon HB 2238 would set judicial salaries for the state’s top courts (Supreme Court, Court of Appeals, Tax, and Circuit) for the coming year. Thereafter in odd-numbered years (e.g. 2021, etc.) the salaries would be set as a percentage of the pay given to a U.S. District Court judge. The Oregon Chief Justice would be paid “no less than 90 percent” of the pay of a U.S. District Court judge while the other justices of the supreme court would receive 87%. Circuit Court judges would make no less than 80%.

South Carolina’s proposals differ markedly from one another.

SB 43 is very similar to the Oregon plan. It is a judges-only bill that focuses only on the state’s top courts. The South Carolina Chief Justice would make 100% of a U.S. District Court judge while the associate justices of the supreme court would receive 95% of the chief justice’s salary. Circuit Court judges would make 95% of the salary for associate justices. This creates something of a mathematical formula (U.S. District Court judge/S.C. chief justice salary * 95% (associate justice) * 95% = Circuit Judge)

SB 73 keeps the language/mathematical formulas for state judges but then sets salary levels for local prosecutors (circuit solicitors salaries would be tied to the local U.S. Attorney), public defenders, magistrates and masters-in-equity and others. HB 3161 is similar to SB 73 in terms of offices covered and levels established.


3 states consider ending partisan judicial races, but 2 other states debate bringing them back; other states want an end to partisan election of clerks of court

Years ago, I noted the North Carolina/West Virginia paradox. As West Virginia moved to expand its public financing of judicial races (court of last resort at least), North Carolina moved to end their program. West Virginia moved to end partisan judicial races at almost the same moment North Carolina moved to bring their judicial races back to partisan.

The above dynamic is playing out in the 2019 legislative sessions in a host of states: one state moving one way on judicial selection, while a nearby (and sometimes neighboring) state considers going the other way.

Partisan to Nonpartisan
New Mexico SJR 12 would end partisan races for Supreme Court, Court of Appeals, District Court, and Metropolitan Court. A similar plan was introduced as SJR 10 of 2017 (discussed here). The 2017 effort was approved in the Senate Rules Committee but proceed no further.

Mississippi HB 1490 addresses a quirk in Mississippi law. The state has previously ended partisan judicial elections for all courts except the state’s lowest (justice court). HB 1490 would switch these elections to partisan and provide that judges elected to these courts would be considered legally “part-time” judges and eligible to continue to practice law.

South Carolina HB 3034 would require nonpartisan elections in probate courts. Interesting, South Carolina’s probate court judges are the only judges in the state subject to voters. Most (Supreme Court, Court of Appeals, Circuit, and Family) are chosen by the legislature. Magistrates Court judges are appointed by the governor with legislative confirmation. Municipal Court judges are appointed by local government.

Nonpartisan to Partisan
Kentucky HB 123 would amend the state’s constitution to require partisan elections for judges in the state. The move seems, at least in part, prompted by a recent decision of the state’s supreme court striking down the governor’s and legislature’s pension reform plan as unconstitutional.

South Dakota SJR 3 would end nonpartisan elections for all judges.

Clerk Races
While a great deal of focus is on judicial races, another key judiciary-related office is that of Clerk of Court. While there have been several attempts in states to make these races nonpartisan over the years, none have succeeded. Nevertheless, the topic is up for debate this year in the following states:

Mississippi SB 2374 would convert several county offices to nonpartisan including Chancery Clerk and Circuit Clerk.

Nebraska LB 72, LB 144, and LB 211 would allow for some of all county officers, including clerks of court, to be elected on a nonpartisan basis. The bills differ in how that change would occur: LB 72 and LB 211 would simply convert these elections to nonpartisan directly. HB 144 would require voters to approve such a change on a county-by-county basis.

South Carolina HB 3032 would end the practice of electing on a partisan basis the Clerk of Common Pleas who serves ex officio as the clerk for all courts of record in a county (unless specified by another statute).





South Carolina: bill out of committee requires Magistrate Court Judges have at least a four-year baccalaureate degree, requires attorney-judges in counties over 75k

South Carolina maintains 5 trial courts, one of which is Magistrate Court (in many/most states a “magistrate” is a quasi-judicial officer of some other court, not a judge of a separate court). South Carolina Magistrate Court Judges are appointed by the governor with senate confirmation and have both civil and criminal jurisdiction, but aren’t required to be lawyers or even to have graduated college; a GED is all that is required. That may change under a bill approved by the House Judiciary Committee this week.

HB 4811 as filed provided that starting in July 2018 newly appointed Magistrate Court Judges must have received a four-year baccalaureate degree. In counties over 75,000, the judges must also be a licensed attorney. The version as amended in committee extends the deadline to July 2019.

HB 4811 now goes to the full House.

South Carolina: Senate passed bill would require judges receive 2 hours training every 4 years on animal cruelty

A bill passed unanimously by the South Carolina Senate to address animal cruelty in the state contains a judge-specific provision. SB 841 was drafted with a focus mainly on placing restrictions on how long animals can be tethered and under what conditions (news accounts here).

Under the bill as approved by the Senate Magistrate Court and Municipal Court judges must receive at least two hours of instruction on issues concerning animal cruelty every four years.

The bill now goes to the House.

Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Efforts to ban state courts from using or referencing foreign/international law in general, and sharia law in particular, continue apace with two legislatures approving versions while a bill in North Dakota was rejected.

Arkansas enacted a ban (HB 1041). An earlier version noted here would have re-declared that marriage in Arkansas was limited to a man and a woman, despite a U.S. Supreme Court decision saying the opposite. The amended/enacted HB 1041 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:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as “marriage” is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.

Meanwhile the Montana legislature approved a version (SB 97) that is currently pending on the governor’s desk that reads in operative part

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.

Finally, North Dakota’s House approved HB 1425 in February, but in late March the Senate rejected the proposal. At issue was the situation similar to Arkansas, namely, that the bill would have attempted to re-establish a ban on same-sex marriage. Senators objected to the marriage provision and amended it out, but also worried this was an “insult to our judges” and assumes North Dakota judges would violate the U.S. and North Dakota Constitutions without this bill.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

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.

South Carolina: latest bill in 2-decades long debate- should Merit Selection Commission send three judicial nominees or “all qualified” names?

In South Carolina, it is the legislature that elects the state’s top judges. Since a 1997 constitutional amendment the nominees for a vacancy have to come from a “Judicial Merit Selection Commission” that is controlled by the legislature itself. The Commission is limited to nominating 3 names and sending them on to the legislature for a final vote. Now, however, the latest bill in a 2-decade long effort to change the way the Commission operates has come back to the House floor.

Under HB 3204 as approved by the House Judiciary Committee last week any reference to the Commission making “nominations” is repealed. Instead, the Commission’s sole responsibility is to determine if the nominee is “qualified” and send “all [qualified] candidates” on to the General Assembly for election.

For example, current law (2-19-80) provides

The commission shall make nominations to the General Assembly of candidates and their qualifications for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge division.

The new language would read

The commission shall release to the General Assembly a list of the names of all candidates that are qualified, as provided in Sections 15 and 27, Article V of the Constitution of this State and Section 2-19-35, for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law court.

The bill was scheduled for floor debate today, which has been adjourned until tomorrow.

As noted, this is just the latest in a series of bills dating back to at least 1999 to change the role of the Commission to provide it must send all qualified individuals forward. As I noted when a similar bill came up in 2015,

There have been over two dozen [as of December 2015] pieces of legislation to alter the number of names released by the commission. Almost all focused on the release of all qualified names, with “qualified” meaning either a) that the individual meets the minimum requirements for the position (age, attorney, etc.) or b) the person was “qualified” to serve in the opinion of the commission.

The practice for the better part of a decade was for the House to pass the “all qualified names” provision and for the Senate to either reject it or amend it to “no more than 3 qualified names” but with a provision that more than 3 names could be sent if two-thirds of the commission approved. This House/Senate split occurred in the 2003/2004 (HB 4734), 2005/2006 (HB 2079), and 2007/2008 (HB 3463 & SB 40) sessions. The Senate passed its own standalone version (3 names, more if two-thirds of commission approved) in 2007 (SB 40) that the House failed to act on.

New Mexico debates a “benchmark” of at least 3% of state general fund for state judiciary, South Carolina a guaranteed 1%

Should states guarantee or “benchmark” a minimum amount of general funds go to their judiciaries? As I discussed here, the topic has been debated since at least the 1970s as a way to keep court funding out of the political arena and help provide a (more) stable source of revenue for the branch. The debate is now being renewed in modified forms in New Mexico and South Carolina in 2017.

The New Mexico House Judiciary committee voted 10-3 yesterday to approve HB 81 as amended. Rather than a guarantee the bill as introduced “benchmarked” at least 3% of the state’s general fund after various payments were made. The amended version removed the various other payments and now reads in operative part.

Appropriations to the judiciary shall be benchmarked at not less than three percent of the recurring general fund appropriation for the next fiscal year. The provisions of this act apply to fiscal year 2018 and succeeding fiscal years.

HB 81 now goes to the House Appropriations and Finance Committee.

In South Carolina for the 4th year in a row a member of the Senate has proposed a constitutional amendment to provide 1% of general fund for the judiciary, this year as SJR 69 of 2017.

The General Assembly, in the annual general appropriations act, shall appropriate, out of the estimated revenue of the general fund for the fiscal year for which the appropriations are made, to the Judicial Department an amount equal to one percent of the general fund revenue of the latest completed fiscal year.

Previous versions (SJR 72 of 2013/2014 and SJR 317 of 2015/2016) failed to advance out of committee.

Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

The latest iterations of efforts to ban state courts from using foreign or international law in general, and sharia law in particular, appear to be stalling in most states. Since last month’s update there have been three pieces of activity, within only 1 bill moving.

Georgia: The House yesterday passed a heavily amended version of HB 171. As introduced, the bill provided

Any tribunal ruling shall be void and unenforceable if the tribunal bases its ruling in whole or in part on any foreign law that would deny the parties the rights and privileges granted under the United States Constitution or the Georgia Constitution.

As amended the bill adds to an existing list of items (O.C.G.A. 9-10-31.1) to be considered by a court when considering the issue of venue and the doctrine of forum non conveniens.

In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors

whether the forum outside of this state provides for impartial tribunals and procedures that are consonant to the requirements of due process of law as required by the Constitutions of the United States and the State of Georgia.

The bill was approved 165-0.

In Mississippi, which already enacted a foreign law ban in 2015, legislators attempted to enhance the existing law. SB 2400 would have allowed courts to award attorney’s fees to any party opposing recognition or enforcement of foreign law. SB 2595 specifically targeted the use of sharia law in divorce and child custody cases. Both bills died in committee.

Finally, a bill was introduced in Missouri (HB 2507) that dealt with the subject as well.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

South Carolina: after state supreme court struck down law giving prosecutors control over court’s docket, legislature attempting to force issue; prosecutors “should not be restrained or controlled by another branch of government”

Up until a few years ago, South Carolina had a statute that granted the local prosecutors control over the criminal docket, allowing the prosecutor to set the calendar (emphasis added).

The solicitors shall attend the courts of general sessions for their respective circuits. Preparation of the dockets for general sessions courts shall be exclusively vested in the circuit solicitor and the solicitor shall determine the order in which cases on the docket are called for trial. Provided, however, that no later than seven days prior to the beginning of each term of general sessions court, the solicitor in each circuit shall prepare and publish a docket setting forth the cases to be called for trial during the term.

The state supreme court struck down on a 4-1 vote the law in 2012 as an unconstitutional infringement on the separation of powers (State v. Lankford, 735 S.E.2d 471 (S.C. 2012)) and issued an administrative order attached to the opinion regarding docket control. Now the legislature is attempting to force the issue and put control back with prosecutors.

HB 4981 and SB 1126 as introduced effectively declares that the control of the calendar is an executive, not judicial, function citing to the fact that prosecutors are elected by the voters (judges in SC’s higher courts are selected by the legislature).

Whereas, the General Assembly finds that developing and publishing a plan to properly proceed with the state’s criminal prosecutions, preparing the general session’s docket for the state’s prosecutions and determining the order in which the docketed cases are called for trial is an executive function of the government properly performed by the elected Circuit Solicitor; and

Whereas, the executive branch of government, as represented by the Circuit Solicitor, when exercising a discretionary official act such as preparing the general sessions court docket and determining the order in which docketed cases are called, should not be restrained or controlled by another branch of government; and

The bill then repeals the old statute, only to replace it with one that continues to give the prosecutor control (emphasis added)

Criminal cases in circuit court must be calendared by the Circuit Solicitor according to a written criminal case-docketing plan developed by the Circuit Solicitor for each circuit. Each criminal docketing plan must be published on the Circuit Solicitor’s website, if available, or at each courthouse in the Circuit Solicitor’s circuit if a website is unavailable. The Circuit Solicitor, in his sole discretion, may develop an individual docketing plan for each county within the circuit.

In addition it would the prosecutor who sets pleas, motions, and other events.

Both bills have been filed in their respective Judiciary Committees.