WA: Senate bill would require judges to recuse from cases if they receive $50 in campaign contributions; House member wanted $1,000 threshold

I mentioned last fall a plan circulating by a Republican member of Washington House to require state supreme court justices recuse for receiving $1,000 in campaign contributions (news reports here). That effort came after the state’s supreme court ruled in a case involving charter schools; several members of the supreme court received campaign money from the Washington Education Association who was a plaintiff in the case.

Now it appears a modified version of the bill has been introduced with only a $50 threshold by 11 Senate Republicans including the Majority Leader joined with 1 Democrat.

SB 6255 as written would amend the section of Washington law (chapter RCW 2.64) dealing with the Commission on Judicial Conduct. Under the bill the Commission would be required to discipline any judge

  1. For failure to recuse when the judge finds out that a party, lawyer, or law firm gave $50 in the previous 3 years to the judge’s election.
  2. For failure to disclose any such $50 contributions. “The requirement to disclose shall continue from the time the judge begins a campaign until one hundred eighty days after the judge’s election.”

SB 6255 is set for a hearing this Thursday (Jan. 21)

 

 

WA: Plan calls for election of state supreme court by district & reduction of court from 9 to 5; only 6 states elect by district

Plans originally introduced and killed in 2014 and 2015 to divide the Washington Supreme Court into districts and reduce the court from 9 justices down to 5 have now been combined. SB 5685 as amended would in effect merge SB 5686 of 2015 and SB 6088 of 2014.

  1. The state would be divided in 5 Judicial Districts made up of 2 congressional districts each (e.g. Judicial District 1 = Congressional District 4 & 5)
  2. The existing 9 justices would be allowed to serve out their term. When their term expires or if the office becomes vacant (death, resignation, etc.) their position may not be filled until the total number of seats is reduced to 5.

Proponents argued in last year’s hearings that the “intensely liberal” Seattle was skewing elections; 8 of the 9 justices in office in 2015 were from the western, more urban part of the state. Moreover some of the impetus behind the proposal seems to be anger over decisions by the state’s supreme court on K-12 education funding, including the supreme court holding the legislature in contempt.

A division of the supreme court into districts would require a constitutional amendment (“The judges of the supreme court shall be elected by the qualified electors of the state at large…”) A similar effort was made by conservative forces in Oregon in 2006 (Measure 40) through initiative rather than through the legislature; it failed with only 43% voting yes.

The vast majority of states do not use any district system: only 10 states make use of districts and even there in 4 instances (Florida, Oklahoma, South Dakota, and Tennessee) justices must run in statewide elections even if they are required to reside or be appointed from a particular district. NOTE: Oklahoma has two courts of last resort one for civil matters (Supreme Court) and the other criminal (Court of Criminal Appeals).

  1. Florida: 7 justices appointed from 5 Appellate Districts. Each district is guaranteed at least 1 justice. Justices are retained in statewide yes/no retention elections.
  2. Illinois: 7 justices elected in partisan elections from 5 Judicial Districts. Retained in yes/no retention elections by Judicial District. The First Judicial District (Cook County) is entitled to 3 justices.
  3. Kentucky: 7 justices elected in nonpartisan elections from 7 Districts. Reelected by District.
  4. Louisiana: 7 justices elected in partisan elections from 7 Supreme Court Districts. Reelected by Supreme Court District.
  5. Maryland: 7 justices appointed from 7 Appellate Judicial Circuits. Retained in yes/no retention elections by Appellate Judicial Circuit.
  6. Mississippi: 9 justices elected in nonpartisan elections from 3 Supreme Court Districts (3 justices per District). Reelected by Supreme Court District.
  7. Nebraska: 6 justices appointed from and retained in yes/no retention elections from 6 Districts. 1 Chief Justice appointed and retained in yes/no retention statewide.
  8. Oklahoma: Supreme Court – 9 justices appointed from 9 Districts. Retained in yes/no retention elections statewide. Court of Criminal Appeals – 5 judges appointed from 5 Districts. Retained in yes/no retention elections statewide.
  9. South Dakota: 5 justices appointed from 5 Districts. Retained in yes/no retention elections statewide.
  10. Tennessee: 5 justices appointed from 3 Grand Divisions. Not more than two may reside in the same Grand Division. Retained in yes/no retention elections statewide.

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.

Washington State: “Stop Buying Supreme Court Justices Now” initiative filed; would mandate recusal for justices receiving $1000 in campaign contributions

This year’s been fairly quiet for initiatives related to courts, however one was filed yesterday (h/t Gavel Grab for the news story).

The “Stop Buying Supreme Court Justices Now” initiative would submit a proposed law to the legislature (rather than directly to the ballot as a proposed law or constitutional amendment). Under it justices of the supreme court, and only justices of the supreme court, would be required to recuse if they received more than $1,000 in contributions from a party or attorney in a case.

(a) Any judge sitting on the supreme court shall disqualify himself or herself if the judge learns by means of a timely motion by a party or a party’s counsel that an adverse party or an adverse party’s counsel has provided financial support for any of the judge’s judicial election campaigns within the last six years in an amount equal to or greater than one thousand dollars.

(b) A judge who fails to disqualify himself or herself after proof has been made that the judge is subject to mandatory recusal under subsection (a) of this section is guilty of judicial misconduct and is subject to sanctions imposed by the commission on judicial conduct.

The impetus appears to be recent decisions of the state’s supreme court striking down the state’s funding for charter schools and mandating additional K-12 funding from the legislature (including holding the legislature in contempt). Several members of the court received campaign money from the state’s teachers union.

The initiative would need to get signatures from at least 246,372 registered voters by January 1, 2016. It should be noted similar efforts that succeeded in the last decade (I-591 & I-594 circulated in 2013, I-517 & I-522 circulated in 2012, and I-502 circulated in 2011) started their signature gathering in April-June.

If the signatures were collected, the initiative would be taken up by the 2016 legislature which would have 3 options:

  1. Adopt as is, in which case it would become law assuming the governor signs it. This does not appear to have occurred since 1994.
  2. Adopt an amended version, in which case both the original and amended version go on the ballot in November 2016. This option does not appear to happen that often if at all.
  3. Reject or ignore it, in which case it would go to the ballot in November 2016, which typically occurs.

Several states have similar provisions that require, or create a presumption, for recusal for certain specific contribution levels.

  1. Alabama: Sliding scale. There is a “rebuttable presumption” in favor of recusal if the party or attorney gave 10% (appellate), 15% (general jurisdiction trial), or 25% (limited jurisdiction trial) of the judge’s total campaign receipts.
  2. Arizona: Must disqualify for contributions over $5,000.
  3. California:Must disqualify for contributions over $1,500 (trial) or $5,000 (appellate).
  4. Mississippi: May be forced to disqualify if “major donor” defined as more than $2,000 (appellate) or $1,000 (trial).
  5. New York: For trial court judges, case may not be assigned to a judge if received $2,500 (individual attorney or party) or $3,500 (attorney and co-counsel, special council, law firm or firms, or clients).
  6. Utah: Must disqualify for contributions over $50.

2015 efforts to changing civil jurisdiction thresholds: Nevada and Washington enact

Last year around this time I noted a trend towards increasing civil jurisdiction thresholds for some limited jurisdiction courts.

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result.

This year saw 5 efforts to raise these limits, including 2 states where changes were enacted.

Maryland: District Courts have exclusive original civil jurisdiction in specified civil cases up to $30,000 (Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 4-401). The threshold was $25,000 but was increased in 2007 (HB 1109). No other efforts to increase the threshold were made in the past decade until 2015. HB 461 would have increased the jurisdiction of the District Court to $50,000 while HB 719 would have raised the jurisdiction to $50,000 but only for first-party motor vehicle insurance benefits for uninsured motorist coverage. Both bills were withdrawn by their respective authors.

Nevada: Nevada’s Justice Courts had jurisdiction in civil cases up to $10,000 since a 2003 law (AB 100) increased the threshold from $7,500 (Nev. Rev. Stat. Ann. § 4.370(1)(a)). Since then there have been no efforts to change the provisions until 2015. AB 66 as enacted now increases that threshold from $10,000 to $15,000 effective January 1, 2017.

South Carolina: Magistrate Court is effectively the state’s small claims court, with a concurrent jurisdiction with the Circuit Court up to only $7,500 (S.C. Code Ann. § 22-3-10). Nearly a dozen efforts had been made in the past decade and 2015 was no exception. SB 53 would have increased the jurisdiction to $10,000 and required mediation for cases below $5,000. SB 325 would have simply provided an increase from $7,500 to $10,000. Neither bill advanced out of committee.

New York: There are five types of limited jurisdiction courts with civil jurisdiction, each with its own threshold:

  • $25,000 for NYC Civil Court and County Courts (NY CLS NYC Civil Ct Act § 201 & NY CLS Jud § 190(1))
  • $15,000 for City and District Courts (NY CLS UCCA § 202 & NY CLS UDCA § 201)
  • $3,000 for Town and Village Courts (NY CLSUJCA § 201(a))

AB 1935 would have raised the jurisdiction of the Town and Village Courts to $5,000. As all prior efforts introduced in the last decade, it never advanced out of committee.

Washington: The state’s District Courts had civil jurisdiction in cases up to $75,000 (Rev. Code Wash. (ARCW) § 3.66.020). The threshold had previously been $50,000, but that was increased in 2008 (HB 2557). A prior effort to increase to $75,000 had previously died in committee without a hearing (SB 5322 of 2005). This year saw two efforts in increase the limit, with one reaching enactment.

  • SB 5125 raises the limit from $75,000 to $100,000. It met with unanimous approval in House and Senate committees and on the floors of each chamber and was signed into law by the governor with an effective date of July 24, 2015.
  • HB 1248 would have raised the limit from $75,000 to $100,000 but also adjusted the threshold for mandatory arbitration from $15,000 to $75,000 in the Senate amended version. The bill was approved 78-19 in the House and was approved as amended by the Senate Law & Justice Committee but died on the Senate floor.

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

Continue reading Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

Special intermediate appellate courts advance in Texas (business) and Washington (tax); introduced in Pennsylvania (business)

Legislatures in three states are now debating creation of special intermediate appellate courts (IACs), or divisions of existing IACs, to handle business and tax matters.

Pennsylvania: Pennsylvania already has two IACs. The Superior Court (created in 1895) handles most appeals while the Commonwealth Court (1968) is primarily responsible for appeals involving state and local governments and regulatory agencies. HB 323 as introduced last week would create a Commerce Division of the Superior Court made up of 2 Superior Court Judges and 3 Senior Superior Court Judges appointed by the President Judge of the Superior Court to hear business cases. That bill is pending in the House Judiciary Committee.

Texas: previously discussed here, HB 1603 would create Chancery Courts (trial) and a Court of Chancery Appeals (IAC) to handle specified actions relating to certain for-profit or nonprofit organizations and their owners or other members and certain business transactions. Judges of the Court of Chancery Appeals would be selected by the Governor from a list of the state’s elected IAC (Court of Appeals), that list provided by a new Advisory Council made up of lawyers that deal with business law. If this selection system runs afoul of the state’s constitution the court would be staffed by sitting or retired justices who are appointed by the Supreme Court. HB 1603 was approved by the House Business & Industry Committee on April 21 and is on the House Calendars Committee.

Washington: previously discussed here, SB 5449 and its House companion HB 2111 would create a special Tax Appeal Division of the state’s existing Court of Appeals made up of 3 Court of Appeals judges and eventually 3 judges elected specifically to the Division. This new division would consist of a “Main” Department for 1-judge trials on complex tax matters and the “Commissioners” Department for other proceedings. A judge of the tax appeal division would have to have “three years’ of experience practicing in state or local tax law” before election to office. Judges would have to render decisions within 6 months after hearing and appeals from the Main Department would be directly to the Supreme Court.

At issue in the legislature was the question of how this division would be created given the state constitution’s grant of trial power to the Superior Court and whether a constitutional amendment was needed to create such a court/division. It was also unclear how the Secretary of State would measure or calculate “three years’ of experience practicing in state or local tax law” needed for candidates to appear on the ballot. Nevertheless the Senate version of the bill was approved 33-16 by the full Senate on April 15. The legislature then adjourned but the bill was reintroduced when a special session was called in on April 29.

Washington State: Plan for special Tax Division of the Court of Appeals advances 4-3; second state to consider Court of Appeals judges to also sit as trial judges

Over the last several years states have considered creating within the judicial branch separate, special courts to hear only tax cases or tax appeals, such as proposals in Georgia (discussed here) and Louisiana (discussed here). Now Washington State’s Senate Committee on Law & Justice has advanced a different plan, namely, to designate a portion of the state’s existing Court of Appeals as a Tax Division which would take over the work of the State Board of Tax Appeals.

Currently the state’s Court of Appeals are divided into three divisions based on geography (Division 1 = Seattle, Division 2 = Tacoma, Division 3 = Spokane). SB 5449 and its House companion HB 2111 would create a special Tax Division based in Olympia.

Judges of the Tax Division would be Court of Appeals judges from Divisions 1-3 called the “Main” Department for 1-judge trials on complex tax matters and the “Commissioners” Department for other proceedings. A judge of the tax appeal division would have to have at least five years’ experience as an attorney practicing in state tax law before election to office. Judges would have to render decisions within 6 months after hearing and appeals from the Main Department would be directly to the Supreme Court.

This marks the second effort in the last several years to have intermediate appellate court judges sit as trial judges; Michigan made a similar move in 2013 when it made specially designated judges of that state’s Court of Appeals into the state’s Court of Claims.

Presently five states have their own Tax Courts within the judiciary branch: Arizona, New Jersey, Oklahoma, and Oregon plus a specialized intermediate appellate court in Indiana.

Bans on court use of sharia/international law: new year means two dozen new bills

The new legislative year means a new wave of legislation that purport to ban the use by state courts of international or foreign law in general and sharia law in particular. In some instances, such as Oregon, this legislation has never previously been introduced in prior years.

The general pattern of the legislation this year has been to avoid the use of the word “sharia”, although 4 bills continue to specifically use the term. This appears to be done primarily in light of a federal court decision striking down a 2010 Oklahoma constitutional amendment that had used the word as being discriminatory for picking on sharia, and by extension Islam, in particular a decision upheld by the Tenth Circuit in 2012 and subsequent permanent injunction issued in August 2013.

The other aspect has been to specify that the bill, if enacted, would not apply to:

  1. harm or affect the right to contract
  2. corporations
  3. laws and court decisions of Native American tribes
  4. ecclesiastical matters/religious organizations

So far the bills have moved in Indiana (Senate) and Mississippi (House), while the Virginia version was withdrawn by the sponsor.

Details below the fold.

Continue reading Bans on court use of sharia/international law: new year means two dozen new bills