This fifth and final item in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.
South Dakota to Wyoming below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 5
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
North Carolina’s Senate budget passed early Saturday morning included a myriad of changes to statutes, but one item in particular stands out as a Gavel to Gavel reader pointed out to me via email. The Senate-approved budget changes the way the state’s trial courts can strike down a law as unconstitutional, this apparently in anger at a recent decision by a trial judge striking down a 2013 NC law that would strip teachers of tenure in exchange for raises.
Under Section 18B.16.(a) of SB 744 as approved by the Senate any challenge to a statute on constitutional grounds would have to be tried or determined by panels of 3 Superior Court judges. The bill is based on a 2003 law that allows for challenges of redistricting lines to be heard by a three-judge panel of the Superior Court of Wake County. This new version, however, goes beyond Wake County and requires that the three judge panel be selected by the Chief Justice from certain parts of the state (1 from First or Second Judicial Division, 1 from Seventh or Eighth, 1 from Third, Fourth, Fifth, or Sixth). Media coverage of the proposal can be found here.
As I noted when this came up in the context of Oklahoma, no state provides for three-judge panels to address the issue of striking ANY law as unconstitutional; where they do exist they usually are created to address a particular, limited subject such as redistricting (NC & WI) or school funding (KS). My review of those laws is here.
North Carolina is now the fourth state in 4 years to try to change the ways judges can strike down state laws or rule against the legislature.
- Oklahoma (2014)- HB 2686 would require a challenge to the constitutionality of any state statute be heard by a panel of the state’s main trial court (District). The panel would be made of “at least three district judges”: the original district judge assigned and “additional judges assigned randomly” to the case. The House approved the bill 55-33 in March 2014 but the Senate Judiciary Committee rejected it in April.
- Michigan (2013)- SB 652 began with anger by the legislature over decisions by the state’s Court of Claims (a specially designated judge of the Ingham County Circuit Court, where the capital is located) over Michigan’s emergency manager and right-to-work laws. Under SB 652 as enacted in the constitutionally minimum amount of time the Court of Claims is no longer an Ingham County Circuit Court Judge but 4 judges of the state’s Court of Appeals chosen by the Chief Justice. Details here and here.
- Wisconsin (2013/2014)- As introduced, AB 161 provided that a trial judge/court could declare a law unconstitutional but any order by the trial court prohibiting enforcement was automatically stayed and the law allowed to remain in effect if the state filed a petition for interlocutory review was filed within ten days after the entry of the order. It derived from a case in which a Dane County judge struck down a state law (Act 10) the weakened collective bargaining in the state. What was eventually enacted provided that “If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
- Oklahoma (2012)- SJR 84 was a constitutional amendment that would have stripped the state’s Supreme Court of the power to strike down any law passed by the legislature as unconstitutional. Instead, the legislature itself would create an “Ad Hoc Court of Constitutional Review” in such cases. It was filed in the Senate Judiciary Committee but proceeded no further.
- Wisconsin (2011)- angry that challenges to state laws were being heard and struck down by judges of Dane County, the Wisconsin legislature enacted SB 117. Under it, actions in which state government is the sole party may be filed in any county in the state. Appeals must be heard in a Court of Appeals district other than the one in which the case was filed. Moreover, the appellant (the state, in cases where a law is struck down at the trial level) would be allowed to pick the Court of Appeals district they want the appeal heard in.
I’ve mentioned in the past the saga of public financing for judicial elections in Wisconsin. In sum, the program for publicly financed supreme court races lasted a little less than 2 years (2009-2011) and was killed off. Since then several bills have been introduced to bring the program back in some form of fashion (detailed coverage here, here, and here). All have effectively been bottled up in committee.
Democrats in the lower chamber (Assembly) tried to have one such bill removed from its committee Tuesday. AB 298 would provide public financing to candidates seeking various partisan state offices except district attorney, plus the superintendent of public instruction and justices of the supreme court. It had been assigned to the Joint Committee on Finance in August 2013 and had so far been left there. All 39 Assembly Democrats voted to remove the bill from the committee, while 59 out of 60 Republicans voted against (1 member did not vote).
It is a popular and widespread misconception that a search of online court records is the same as a criminal background back. It is demonstrably false, as noted here (full disclosure: I and other National Center for State Court folks wrote and drafted the info sheet).
That said court information is misused as a form of background check to vet people for jobs or housing rentals. For the last 5 years or so efforts have been made in Wisconsin to have information related to people arrested and charged, but later acquitted or who obtained a dismissal of the charges, removed from that state’s database, the Consolidated Court Automation Program (CCAP) and the judiciary’s
Internet site Wisconsin Circuit Court Access (WCCA). For the most part they have failed (see prior coverage here) however a new effort reportedly has bipartisan support.
AB 685 and SB 526 require the director of state courts to remove a case or charge from WCCA in two instances:
- civil forfeiture: 90 days after being notified of dismissal/not guilty/overturned on appeal
- misdemeanor/felony: 120 days after being notified of dismissal/not guilty/overturned on appeal.
A hearing on the Assembly version is set for this week before the Assembly Corrections Committee.
SJR 57 Ends practice where chief justice is most senior justice of the supreme court. Provides “The chief justice of the supreme court shall be elected for a term of 2 years by a majority of the justices then serving on the court.” Must be reapproved by 2015/2016 legislative session.
AB 22 Increases maximum court fees assessed for ordinance violations in municipal courts from $28 to $38.
Wisconsin now has three different proposals to bring back public financing for state supreme court races. The first (AB 298) covers state elected officials (including Supreme Court, Court of Appeals, and Circuit Court judges) except district attorneys; I discussed that one here. The second (AB 353) covered state offices other than Court of Appeals, Circuit Court, and district attorney; I discussed that one here.
Now there is a new proposal (AB 543) that would focus exclusively on the state’s supreme court only. Candidates who participate would get $100,000 for the primary and $300,000 for the general election (Wisconsin Supreme Court races occur in the spring of odd numbered years). The benefits would be increased every two-years based on cost of living in the state. Financing would come from an income tax checkoff system and, if that were insufficient, general purpose revenues
AB 543 has been assigned to the Assembly Committee on Campaigns and Elections.
I mentioned two weeks ago a plan circulating to once again try and change the way Wisconsin picks its chief justice. The bills are now out and at least one has met with initial approval.
Under the current system the most senior justice on the court is the chief justice. AJR 67 / SJR 57 however would provide that the justices themselves would elect a chief justice for a two year term. Unlike the prior iterations in 2011/2012, this 2013 version also includes a term limit provision: no chief justice could serve for longer than 6 years (i.e. 3 consecutive 2 year terms).
The Senate Judiciary approved its version October 29; the Assembly Judiciary Committee votes on its version later today.
If approved by both chambers it would need to be reapproved by the 2015/2016 legislature before going on the ballot.
For the second session in a row Wisconsin legislators are considering changing the way the state’s chief justice is selected. News reports indicate there will be a revival of a plan first introduced in 2011 to allow the Supreme Court to select its own chief justice every 2 years. Under the current system the most senior justice on the court is the chief justice.
The first iteration of this was SJR 36 of 2011 which passed on a 3-2 vote and died on the Senate floor.
The Assembly version (AJR 49 of 2011) had a much more complex legislative history. As I noted at the time AJR 49 was added, removed, then added again to the Assembly Judiciary Committee’s agenda. It was passed and brought to the Assembly floor however a quick parliamentary motion effectively gutted the proposal and replaced it with an amendment that would have required mandatory judicial recusal due to campaign contributions. The amended bill was tabled and never brought back up.
A third attempt, AB 131 of 2012, was introduced a few days after AJR 49 was tabled, but with only days left in the legislative session it had no chance at passage.
I mentioned last month that Wisconsin was once again attempting to bring back its public financing system for supreme court races. Now a second proposal has been filed.
AB 353 would provide public financing for state offices other than court of appeals judge, circuit judge, or district attorney. This differs from the other proposal (AB 298 of 2013) in not allowing public financing for court of appeals and circuit court races.
Whereas AB 298 sent to the Joint Finance Committee, AB 353 is now in the Assembly Campaigns and Elections committee.