Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 7

This seventh and final installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

South Dakota to Wyoming below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 7

Alabama committee approves plan to recall judges, South Dakota committee kills its plan

Plans to allow for the recall of various state officials, including judges, met with two very different outcomes in the last 24 hours. Yesterday the Alabama Senate Constitution, Campaign Finance, Ethics, and Elections Committee approved on a 3-2 vote SB 91, a constitutional amendment to allow for the recall of all “elected state officers” on the basis of

  1. Malfeasance or nonfeasance
  2. Lack of physical or mental fitness
  3. Incompetence
  4. Violation of an oath of office

To hold a recall election, electors of the state or a particular judicial district would have to file a petition with signatures equal to 25% of the votes cast for the office in the last election.

This morning South Dakota’s House State Affairs Committee debated a similar measure, HB 1233. It would have covered any “elected official” including any “judicial officer of the state.” Like Alabama the signature threshold would have been 25%, however unlike Alabama it does not appear a particular cause or basis for recall would have to be alleged in the petition. The South Dakota plan was rejected 13-0 in committee.

Several state legislatures have empowered chief justices, supreme courts to handle natural disasters in recent years

In the aftermath of the September 11 attacks states began the process of dealing with the potential for courts to be shut down for days at a time. Hurricanes Katrina and Rita extended that potential closure to weeks. As a result in the last decade state legislatures have considered and enacted various bills to empower chief justices and supreme courts to make emergency declarations, allowing for the moving of courts and the tolling/suspension of some deadlines. (See this report I wrote in 2010 on all such statutes at the time).

In light of today’s “arctic vortex” shutting down most of the middle part of the country, below is a review of laws recently enacted on the subject, including North Dakota whose new 2013 law may be put to use for the first time today.

Connecticut HB 5539 (2010) Provides Chief Justice may take any action necessary in the event of a (as defined by statute) major disaster, emergency, civil preparedness emergency, disaster emergency, or a public health emergency, to ensure the continued efficient operation of the Supreme, Appellate and Superior Courts, the prompt disposition of cases and the proper administration of judicial business. Such necessary action may include: (1) Establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used, (2) suspending any judicial business that is deemed not essential by the Chief Justice, and (3) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

Delaware SB 25 (2009) Provides for the operation of the courts in the event of an emergency due to natural or manmade causes that destroys or severely damages one or more court facilities or severely impacts the ability to staff the courts. Grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities. Provides the order declaring a judicial emergency shall be limited to an initial duration of 30 days, but may be modified or extended for additional 30 day periods. Provides Chief Justice may also 1) Order that a court may operate in a county other than the county in which it is normally located. 2) Extend statutes of limitations and time periods prescribed by statute as well as those time limitations prescribed by court rule or administrative directive which the Chief Justice already has the authority to extend pursuant to his authority under Art. IV, Section 13 of the Delaware Constitution 3) Declare that specific proceedings not normally conducted by audiovisual device may be conducted in this manner. When such usage is not otherwise authorized by statute or court rule, an explanation of the compelling state interest in such usage shall be included in the order and 4) Take such other actions as the Chief Justice reasonably believes necessary for the continued operation of the courts during a judicial emergency. Provides that the host county shall be a proper venue for proceedings. Establishes provisions of this law shall preempt and supersede but not repeal any conflicting provisions of any other provision of law.

Georgia HB 1294 (2008) Allows Chief Justice to extend judicial emergencies beyond normal limitations if a public health emergency exists. Emergency declaration may remain in place for as long as the public health emergency exists.

Georgia HB 339 (2011) Revises the courts to which a challenge of a quarantine or vaccination order may be brought and manner of appealing orders concerning such challenges. Removes chief judge of the court of appeals’ power to declare judicial emergencies. Provides extensions of judicial emergencies by chief justice may only last as long as governor has declared state of emergency.

Hawaii HB 1983 (2006) Provides during a period of civil defense emergency proclaimed by the governor, the chief justice shall be authorized to order the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, in civil or criminal cases or administrative matters, in any judicial circuit affected by the governor’s proclamation. Provides chief justice shall determine the judicial circuits so affected.

New Hampshire SB 370 (2008) Grants the chief justice of the supreme court the power to enter orders to suspend, toll, or otherwise grant relief from time deadlines imposed by statutes and rules of procedure, for a 21-day period, in the event of a declared state of emergency. Permits the legislature to terminate such orders by concurrent resolution.

New York AB 6921 / SB 2849 (2009) Repeals most existing law related to judicial emergencies. Provides if a court location is unsafe or impractical for the holding of a trial court, then the Governor may by order appoint another place for the temporary holding of court after consulting with the Chief Judge or his or her designee if practicable. Provides for the Court of Appeals and for trial courts where the Governor has not acted, the relocation power would fall to the Chief Judge. Provides for intermediate appellate courts ( i.e. Appellate Division and Appellate Terms of Supreme Court), the relocation power would fall to the Presiding Justice of the Appellate Division after consulting with the Chief Judge or his or her designee. Provides all temporary relocations must be to the most proximate place that the term of court safely and practicably can preside, and should be consistent with applicable State and local disaster preparedness plans. Provides for trial courts, temporary relocations must be after consultation with relevant local leaders (e.g., county executives or mayors) if practicable. Provides for relocation orders would expire within 30 days but could be renewed for successive periods of 30 days each in like fashion as an original order. Provides regardless where a court temporarily sits, the court would continue to preside on behalf of its original jurisdiction (i.e. judicial department, judicial district, county, city, etc.) and the same substantive and procedural laws (e.g. governing venue, jury selection, papers and appeals) would apply as if the court were not relocated. Provides if a court is relocated temporarily outside its original jurisdiction, then facility costs would not be borne by the receiving locality but instead would become State costs charged to the Office of Court Administration. Memorializes the Chief Judge’s emergency relocation powers as provided above. Recognizes the continuing obligation of the State Disaster Preparedness Commission and local disaster preparedness commissions to insure that the disaster preparedness plans for which they are responsible take appropriate account of the provisions of this measure. (See also AB 10616 / SB 6900 of 2008)

North Carolina HB 1269 (2009) Allows courts to be closed for “catastrophic conditions” and defines the term. Allows Chief Justice to extend certain deadlines for “catastrophic conditions” and to issue any emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions for 30 days, subject to 30 day renewals.

North Dakota HB 1073 (2013) Grants supreme court power to declare judicial emergencies. Allows for supreme court to toll statutes/deadlines. Does not allow for tolling or extension of deadlines or requirements imposed by U.S. or North Dakota constitution.

Oregon HB 2322 (2007) Provides Chief Justice may designate locations in the state for the sitting of circuit courts in the event of an emergency and that such locations designated need not be in the circuit court’s judicial district.

Oregon SB 270 (2009) Grants Chief Justice power to establish procedures for closing courts in emergencies and to establish standards for determining when courts are closed for purposes of ORCP 10, ORS 174.120 and other rules and laws that refer to periods of time when courts are closed.

South Dakota HB 1093 (2007) Allows Chief Justice to suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters or any other legal proceedings as determined necessary.

Tennessee SB 3660 / HB 3060 (2008) Specifies that if an appellate court declares a disaster pursuant to applicable court rules, then all statutes of limitation and repose will be extended by the same number of days that the applicable filing deadlines are extended with deadlines to be extended only in county in which disaster is declared.

Texas HB 1861 (2009) Authorizes the Supreme Court of Texas to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor and sets forth contingencies that provide for such action by another court or judge if a disaster prevents the supreme court from acting. Authorizes the local rules of administration that must be adopted by district and statutory county court judges in each county to provide for a coordinated response for the transaction of essential judicial functions in the event of a disaster. Includes as a purpose of the Texas Disaster Act of 1975 clarifying and strengthening the role of the judicial branch of state government in prevention of, preparation for, response to, and recovery from disasters.

Virginia HB 883 / SB 127 (2010) Sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. Permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

South Dakota Legislative Year in Review: modification to merit selection panel

Law

HB 1072 Repeals certain provisions providing a criminal penalty for a political party to endorse or nominate a judicial candidate.

SB 70 Requires each magistrate and circuit judge complete training on evidence-based practices, including the use of validated risk and needs assessments and behavioral health assessments in decision making. Training levels/forms to be determined by Chief Justice. Authorizes creation of veterans HOPE Courts.

SB 198 Provides governor’s 2 picks to Judicial Qualifications Commission can be anyone (currently cannot be judges, retired judges, or attorneys). Provides 2 seats designated for attorneys chosen by state bar to be chosen by bar commissioners (currently selected by bar president).

 

 

South Dakota State of the Judiciary: “As a society are we going to pick these people up or pick them off?”

The National Center for State Courts has an archive of current and prior State of the Judiciary addresses located here.

Through an unnumbered report adopted by both the House and Senate, the South Dakota legislature met in joint session January 9 for the purposes of hearing the State of the Judiciary Address of Chief Justice David Gilbertson.

Highlights of the Chief Justice’s speech (full text here) below the fold.

Continue reading South Dakota State of the Judiciary: “As a society are we going to pick these people up or pick them off?”

Attempt to change merit selection in South Dakota effectively fails; House rejects 65-5 effort to expand merit selection commission

The effort to expand the merit selection panel used for the state’s supreme court has ended in defeat.

Under SB 198 as introduced the state’s Judicial Qualifications Commission (which serves as both the state’s disciplinary commission and the merit selection commission for the state supreme court) would have removed 2 of the 3 seats given the state’s attorneys and instead added 1 House and 1 Senate member added.

The Senate approved version kept 3 attorney seats, but expanded the commission from 7 to 9, and provided the 2 new people would be chosen by the House Speaker and Senate Preside Pro Tempore (i.e. NOT House and Senate members).

The House Judiciary Committee, however, barely passed SB 198 on a 7-6 vote on February 25. The vote crossed party lines: the committee’s Democrats split 2 Yes/1 No; the Republicans tied 5-5.

The full House approved 65-5 a floor amendment that struck any reference to expanding the commission. The only provision from the original bill that remained was a provision that shifts the power to name the 3 attorney members of the Judicial Qualifications Commission from the bar president and instead hands it to a majority vote of the state bar commissioners.

The Senate approved the House version on a 28-4 vote on 3/4.

SB 198 is now on its way to the Governor for approval.

 

Efforts to enact, modify, or end merit selection for judges: what is moving and what is not

I’ve had several readers ask for a synopsis of what is gong on in states to enact, modify, or end merit selection in 2013. This post is intended to respond to those queries. The latest information can always be found at the Gavel to Gavel database located here.

Details below the fold.

Continue reading Efforts to enact, modify, or end merit selection for judges: what is moving and what is not