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.

Texas: Chief Justice and House Speaker call for end of straight-ticket voting for judicial races, Lt. Gov. previously sponsored bill – what could legislation look like?

Earlier this week Texas Chief Justice Nathan Hecht delivered his State of the Judiciary address in which he called for changes to judicial selection in the state. The Chief Justice noted in particular the pattern in Texas of sweep-elections resulting in judges losing office because of partisan politics.

In November, many good judges lost solely because voters in their districts preferred a presidential candidate in the other party. These kinds of partisan sweeps are common, with judicial candidates at the mercy of the top of the ticket…

There is no perfect alternative to judicial elections. But removing judges from straight-ticket voting would help some, and merit selection followed by nonpartisan retention elections would help more.

Shortly after the Chief Justice’s speech the Speaker of the House Joe Straus also called for an end to straight ticket voting for judges. In 2009, before becoming Speaker, Straus had filed a bill that would have ended straight ticket voting for all offices (HB 135). That same session then-state senator Dan Patrick, now Lt. Gov. and President of the Senate Dan Patrick, filed a bill to end straight ticket voting in judicial elections (SB 392).

There appear to be four options based on previous efforts made since 1993.

  1. End straight ticket voting for all courts: In 2015 session this came up as HB 25 and SB 1702. This year’s version of this plan has been filed as HB 433 of 2017.
  2. End straight ticket voting for all offices: For example the 2009 Straus bill (HB 135).
  3. End straight ticket voting for lower courts: HB 498 of 1993 would have ended straight ticket voting for lower level courts (Courts of Appeals, District Courts, County Courts, Justices of the Peace) but kept it for the state’s two courts of last resort (Supreme Court & Court of Criminal Appeals).
  4. End straight ticket voting for higher courts: HB 555 of 2001 would have ended straight ticket voting for all courts except Justices of the Peace.

 

 

 

Texas: bill would strengthen court security in state; sheriffs would be required to report court security incidents to state OCA

The Texas Judicial Council’s package of legislation to address court security in the state has now been filed for the 2017 session. The package comes about from a review of security in the state 10 years after an original study on the subject. The 2016 study found that many of the same issues reported in the 2006 report remain.

SB 42 as filed makes numerous changes to laws related to court security, including

  • Provides the sheriff or other law enforcement agency or entity that provides security for a court shall provide to the Office of Court Administration a written report regarding any court/courthouse security incident. A 2007 law currently places that responsibility on the local administrative judge.
  • Requires Municipal Court Judges and Local Administrative Judges create court security committees.
  • Creates a¬†Judicial Security Division of the Office of Court Administration to help local courts address security needs.
  • Require all those providing court security be specifically certified in court security practices and procedures by the Texas Commission on Law Enforcement.
  • Provides the state Department of Public Safety may provide personal security for state judges that have been threatened or attacked.
  • Allow judges to remove for themselves and their spouses their home addresses and other personal information from public records required to file for office.
  • Allow spouses to remove personal information from appraisal records and county deeds.
  • Retroactively and prospectively removes all personal addresses from Texas Ethics Commission online searches.

SB 42 has been prefiled for the 2017 session and not yet assigned to a committee.

 

NC: So how many other states/courts elect their appellate judges in a partisan manner? It’s complicated.

Amid the debate on SB 4 today and the decision to switch North Carolina’s Supreme Court and Court of Appeals from nonpartisan to partisan races, there’s been a good amount of discussion of how many other states and appellate courts have partisan elections. Numbers have ranged widely. The reason for this is fairly straight forward in that for many states it is not a straight forward answer.

There are 8 states with 9 courts in which at one point or another justices of the supreme court/court of last resort show up with a party label somehow. It was 9 states with 10 courts until 2015 when West Virginia ended partisan races for their Supreme Court of Appeals.

  1. Alabama: partisan primaries and partisan general elections.
  2. Illinois: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Illinois Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 60% “yes to retain” vote.
  3. Louisiana: The state uses a “blanket primary” in which all candidates appear with party labels on the primary ballot. The two top votegetters compete in the general election. Thus in the general election, you could have two Republicans vying against each other for the seat, as occurred most recently in 2016 when Republican James “Jimmy” Genovese defeated fellow Republican Marilyn Castle for the 3rd Supreme Court District (Louisiana elects their justices by district, not statewide).
  4. Michigan: candidates for Supreme Court are nominated by political parties but the actual ballot in November is nonpartisan (i.e. no party labels).
  5. New Mexico: very complicated. When a vacancy occurs on the New Mexico Supreme Court, it is initially filled via merit selection (nominating commission sends list of names to governor, governor picks). The newly appointed justice must then run in a partisan primary and partisan general election¬†but only for the first election. If a person does get elected to the New Mexico Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 57% “yes to retain” vote.
  6. Ohio: Partisan primaries, but nonpartisan general elections.
  7. Pennsylvania: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Pennsylvania Supreme Court, the next time they are up they are put into a yes/no retention election (50% “yes to retain” to remain in office).
  8. Texas: Everything is bigger in Texas, including their appellate courts. Texas has two “courts of last resort”: the Supreme Court for civil matters and the Court of Criminal Appeals. Both courts use partisan primaries and partisan general elections.

Texas legislation would term limit state’s judiciary: 18 years (max) and out. Five other states considered similar legislation in last session.

Last year 5 states considered term limiting judges, including a proposed retroactive term limit that would have targeted Florida’s Supreme Court. Now Texas’ legislature is set to consider their own version in the 2017 session.

SJR 12 (Constitutional Amendment) would allow for term limits to be set by the state’s two courts of last resort by rule.

The legislature by general law shall require the Supreme Court, in consultation with the Court of Criminal Appeals, to establish a limit on the number of terms a judge or justice may be elected to serve as a judge or justice of a court established under this article, by the legislature under general law, or by the governing body of a municipality by ordinance

However, the implementing legislation (SB 109) specifies whatever term limits program the Supreme Court/Court of Criminal Appeals comes up with, judges must be limited to 18 years service on a particular court.

(b) The term limits established in the rules adopted under Subsection (a) may not allow a judge or justice to serve as a judge or justice of any one court for more than 18 years.

As I noted in 2015 when that session’s raft of term-limits-for-judges legislation was introduced, no state (other than New Mexico’s part-time non-attorney probate judges) provides for judicial term limits. Moreover, when such efforts have been attempted in the past, voters have rejected them.