West Virginia: bill ends plurality wins for state’s supreme court & requires runoffs for top 2 candidates; other judicial races would not be affected

West Virginia’s current voting system for the state’s courts are both nonpartisan (as of 2015) and plurality-win. This meant that in the 2016 contest for the state’s Supreme Court of Appeals the victor (Beth Walker) defeated incumbent Brent Benjamin with only 39.62% of the vote in a 5-way race.

HB 2635 as filed would prohibit such a win in the future, at least for the state’s top court. Instead, if no candidate received a majority of votes, the top 2 candidates would face off in a runoff within 30 days.

Interestingly, this would not apply to the state’s other judicial races. For example in 2016 the Circuit Court District 10, Division 4 seat was won with only 25.49% of the vote in a 10-way race while Circuit Court District 15, Division 1 was won with only 32.67% in a 6-way race. Similar races occurred for the state’s Family Court (37.34% for District 16, Division 1 & 39.11% for District 24, Division 2, both 3-way races).

HB 1635 has been filed in the House Judiciary Committee.

West Virginia: bill to create intermediate appellate court filed; only 9 states don’t have an IAC

The latest bill in a decade-long effort to create an intermediate appellate court in West Virginia has been filed. SB 277 as introduced would create an Intermediate Court of Appeals. It appears to be similar if not identical to SB 9 of 2016, discussed here. With the creation in 2015 of the Nevada Court of Appeals, only 9 states lack an intermediate appellate court (IAC) among them West Virginia.

The new Intermediate Court of Appeals would have its own judges (6) divided into two panels of 3 (Northern District and Southern District). Other versions of the bill introduced in the last decade would have had Circuit and Supreme Court judges/justices sitting in panels of 3, a practice popular in states in the 1800s but abandoned.

  • Judges would be initially appointed by the governor from a list provided by the state’s Judicial Vacancy Advisory Committee; the committee would send 3 names for each vacancy but the governor could ask for more names. After appointment the judges would be subject to nonpartisan elections by district.
  • The Clerk of the Supreme Court would be clerk of the Intermediate Court of Appeals, a relatively common practice (Alaska, Colorado, Connecticut, Hawaii, Iowa, Kansas, Nevada, and Tennessee provide that the clerk of their court of last resort is also the IAC’s clerk)
  • The court would use a “deflector” system: an appeal would be filed with the Supreme Court which would then either take the case itself or “deflect” it down to the IAC. Again, this is a relative common practice, for example Nevada’s new IAC uses this system.

SB 277 has been filed in the Senate Judiciary Committee.

West Virginia Judicial Compensation Commission approved by House; recommendations no longer guaranteed to be filed in legislature as bill

Earlier today the West Virginia House approved SB 339 which would create a Judicial Compensation Commission. Of note in the process has been diminishing the power of the Commission.

As introduced, the bill as discussed here provided the Commission’s recommendations would go into effect unless the legislature overrode them by a 60% vote.

The salary recommendations made by the commission shall be introduced as a concurrent resolution by the presiding officer in both the Senate and the House of Delegates no later than the twentieth day of the regular legislative session. If the Legislature fails to take action on the concurrent resolution or if the Legislature rejects the passage of the concurrent resolution by less than sixty-percent of those elected in each body, then the recommendations made by the Judicial Compensation Commission will stand…

As approved by the Senate and discussed here the Commission’s recommendation would not be automatically approved subject to override, but would be guaranteed to be turned into a bill for consideration.

a bill adopting the salary recommendations made by the commission shall be introduced by the presiding officer in both the Senate and the House of Delegates no later than the twentieth day of the regular legislative session.

As approved by the House, the Commission’s recommendation is no longer assured to even be submitted as a bill.

a bill adopting the salary recommendations made by the commission may be introduced by the presiding officer in both the Senate and the House of Delegates.

SB 339 now goes back to the Senate to concur with the House amendment.

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

West Virginia: Judicial Compensation Commission clears Senate committee; commission’s recommendation no longer automatically enacted unless overridden

A plan to set up a West Virginia Judicial Compensation Commission has cleared its first legislative hurdle. SB 339 as amended by the committee differs in several ways from the original bill.

Commission’s report is now just a recommendation

Under the original plan the Commission would issue a report that would be automatically appropriated and take effect unless rejected by 60% of the House and Senate. Under the amended version, the report is just a recommendation. The House Speaker and Senate President would be obligated to introduce the recommendations as a bill (or bills) but it would still require enactment/appropriation. If the legislature failed to enact the recommendations, the report would be automatically reintroduced every year until adopted or a new commission report/recommendation was issued.

Membership

The original bill provided for a 5 member commission including the President of the West Virginia State Bar. The bar president’s seat has instead been given to the governor

  1. Dean of West Virginia University’s law school
  2. Governor’s appointee
  3. President of the West Virginia State Bar Governor’s second appointee
  4. House Speaker’s appointee
  5. Senate President’s appointee

Criteria used to assess judicial salaries

Second, of the 9 criteria for the commission to consider, only 8 remain. Dropped from the list, “The level of overall compensation adequate to attract the most highly qualified individuals in the state, from a diversity of life and professional experiences, to serve the judiciary without unreasonable hardship and with judicial independence unaffected by financial concerns.”

  1. The skill and experience required of the particular judgeship at issue
  2. The value of comparable service performed by justices and judges, as determined by reference to judicial compensation in other states and in the federal government
  3. The value of comparable service performed in the private sector including, but not limited to, private judging, arbitration, and mediation
  4. The compensation of attorneys in the private sector
  5. The cost of living
  6. The compensation presently received by other public officials in the state
  7. The compensation of deans, presidents, and chancellors of the university systems, if available
  8. Any other information the commission may find relevant in its mission to determine the appropriate compensation for the state’s professional judicial officers.

SB 339 is now on the Senate’s 2nd reading calendar.

 

Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.

Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:

Continued reference to sharia in particular

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.

Missouri HJR 69 of 2016

The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States, provided the law of the other state does not include sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.

Oklahoma HJR 1056 of 2010

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law , in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Threat of impeachment

Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)

List of proposals and their current status below the fold.

Continue reading Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV