Texas: bill to end straight-ticket voting, including for judicial races, clears first committee; former judge noted impact of STV on judiciary

A Texas bill that would end straight-ticket voting (STV) for all  races, including judicial ones, cleared the House Elections Committee earlier this week.

The move to end straight-ticket voting comes after the state’s chief justice call to end the practice for judicial races in his state of the judiciary address and backing by the Speaker of the House.

During testimony at least one judge noted the impact straight-ticket voting has on the judiciary.

Another notable witness was Erin Lunceford, a Harris County judge, appointed by Gov. Greg Abbott in 2015, who said she was swept out of office with partisan tides in the 2016 general election.

Lunceford, who ran as a Republican, in a county that voted majority Democrat, said she lost to her Democrat opponent, who has never even tried a case before.

She said without taking into account those who voted straight-ticket, she would have won the election by a 10-point margin.

HB 25 cleared the Elections Committee on a 5-2 party-line vote. The bill’s Senate counterpart SB 2175 has yet to be taken up. A bill to end straight-ticket voting for judicial races only (SB 1989) also has not been taken up.

Texas becomes 4th state to consider bill to permit/require judges give jury nullification instructions; Utah House rejected plan 29-45

Texas this week becomes the 4th state this legislative session to consider a bill to permit or require judges give a jury nullification instruction.

HB 3911 as filed would amend Government Code 23 (General Provisions for Trial Courts). The new subchapter would require a judge’s charge to a jury instruct the members of the jury of their duty to:

  1. judge the law to determine whether the law is unjust or unjustly applied to a party in a case
  2. determine the validity of the evidence and
  3. vote on the jury verdict according to the members’ consciences.

The Texas bill is similar to one filed in Utah (HB 332). That bill would have required judges inform jurors of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

The bill was rejected by the full Utah House on a 29-45-1 vote earlier this month.

The other two bills (Oregon 924 discussed here and New Hampshire HB 133 discussed here) have not advanced in the last several weeks.

 

Texas: bills to end straight-ticket voting for judicial races filed; hearing on bill today to eliminate straight-ticket voting for all races

Several bills that would end straight-ticket voting for judicial races, called for by the state’s chief justice in his state of the judiciary address and backed by the Speaker of the House, have now been filed. One in particular filed late last week would focus exclusively on judicial races.

SB 1989 would impact only races for courts with elected judges (i.e. all courts but Municipal Courts). Some prior bills past only affected some courts.

Other bills (HB 25 / SB 2175 and the duplicate HB 433) appear to eliminate straight-ticket voting for all races, judicial included. HB 25 is set for a hearing today in the House Elections Committee.

 

Adding to Texas’ unique court structure and organization: brand new Chancery trial and appellate court system re-introduced; Governor would select judges

A plan first introduced in 2015 and discussed here to create a Chancery Court system in Texas has been reintroduced to hear business cases. As I noted at the time, Texas already has one of the largest number of court types in the United States with 6 trial court types (Constitutional County, Statutory County, Statutory Probate, District, Justice of the Peace, and Municipal), 14 separate Courts of Appeal, including a unique two-courts-in-one-county (the 1st and 14th Court of Appeals both serve Houston) and two courts of last resort (civil: Supreme; criminal: Court of Criminal Appeals).

The latest iteration of the plan, introduced this year as HB 2594 would add not only a new trial court (Chancery made up of 7 judges) but a new intermediate appellate court (Court of Chancery Appeals made up of 7 judges). The Chancery Court would have concurrent jurisdiction with the state’s District Courts over 10 specified complex civil litigation actions or proceedings. The Court of Chancery Appeals would operate as effectively a specialized 15th intermediate appellate court for business cases only, something no other state has.

No state has a trial court whose sole purpose is to hear business or complex litigation cases. Even Delaware’s Chancery Court hears cases other the business ones such as disputes involving the purchase and sale of land and questions of title to real estate. Much more common is for the creation of special divisions of existing courts. For example, Delaware’s Superior Court makes use of a Complex Commercial Litigation Division.

Making things more unique is the method of judicial selection. Judges of both courts would not be subject to elections but instead chosen solely by the Governor from a list provided by a Chancery Court Nominations Advisory Council to which the Governor would name all the members. The Governor’s hand-picked Commission would have to provide 5 names for each court vacancy, however the Governor could ask for another 5 for a total of 10 names. Judges of the Court of Chancery Appeals would have to be existing Justices of a Court of Appeals. Judges so chosen would be subject to Senate confirmation.

There is also a fail-safe: in case this particular manner of judicial selection is found unconstitutional the court(s) would be staffed by sitting or retired justices who are appointed by the Supreme Court.

HB 2594 has been filed in the House but not yet assigned to a committee.

Texas: bill removes power of State Commission on Judicial Conduct to discipline judges who refuse to follow federal court rulings; claims state judges have free speech right to refuse to obey federal court rulings

A bill introduced into the Texas Senate late last week would prohibit the State Commission on Judicial Conduct from pursing disciplinary action against a state judge who refused to obey federal court rulings.

SB 1307 as filed specifically provides

a judge is not subject to any disciplinary action, investigation, censure, or sanction for criticizing or refusing to follow an action or ruling of a federal court. A judge’s criticism of or refusal to follow an action or ruling of a federal court is considered the judge’s right to freedom of speech, protected under Section 8, Article I, Texas Constitution.

SB 1307 has been filed in the Senate but not yet assigned to a committee.

Texas: bill similar to Arizona “anti-commandeering” legislation would ban state appellate courts from enforcing federal court orders

A version of the Arizona bill that would ban state courts from enforcing federal court decisions has now been filed in the Texas House.

HB 2808 as filed amends Government Code Chapter 2113 by creating a new Subchapter F to prohibit a “state agency” from using any money in enforcing any “federal action.”

Under Gov. Code Ch. 2113 “state agency” includes “the supreme court, the court of criminal appeals, another entity in the judicial branch of state government with statewide authority, or a court of appeals.”

Moreover, HB 2808 specifically defines “federal action” to include “order of a federal court.”

Enforcement of the federal court order could only occur if permitted by the Texas legislature via the General Appropriations Act or some other state law.

HB 2808 has been filed but not yet assigned to a committee.

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.