Delaware Legislative Year in Review: expanding list of those entities that may certify questions to state’s Supreme Court

Law

HB 392 Designates court security positions in the Court of Common Pleas and uniformed services supervisor positions in the Justice of the Peace Court as exempt from the State of Delaware Merit Rules, thereby placing them under the Judicial Branch Personnel Rules, consistent with similar positions in the Superior Court. Allows any incumbent to elect to be governed by the Judicial Branch Personnel Rules or remain in the Merit System.

Adopted Constitutional Amendment (must be re-adopted in 2015/2016)

HB 232 Adds “the highest appellate court of any foreign country, or any foreign governmental agency regulating the public issuance or trading of securities” to the list of entities that may certify questions of law to the Delaware Supreme Court.

Adopted

SCR 35 Extends deadline for Blue Ribbon Task Force to review the feasibility of opening Family Court proceedings to the public from February 15, 2014 to April 15, 2014.

Changing civil jurisdiction thresholds – Part 1

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 series examines the existing thresholds and the legislative efforts to change them over the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Alabama to Georgia below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 1

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Most state constitutions grant their court of last resort, typically called the “supreme court”, or their judicial council some degree of rulemaking authority. My colleagues here at the National Center have a listing of all such provisions here. In the last several years, however, legislatures have made efforts to amend or alter those provisions. This series will examine all such efforts and how they have fared.

Alabama to Georgia below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Delaware constitutional amendment would expand who could certify questions to state’s supreme court; would be third expansion in last 10 years

The Delaware legislature appears ready to expand yet again the state supreme court’s ability to hear certified questions of law. If adopted in the 2014 session and again in the 2015/2016 cycle, HB 232 would allow “the highest appellate court of any foreign country, or any foreign governmental agency regulating the public issuance or trading of securities” to certify questions of law to the Delaware high court. The amendment would not have to go before voters.

If adopted this would be the fourth expansion of certified questions of law to the Delaware Supreme Court and the third such expansion in the last decade. The power was conferred on the court via a 1982 constitutional amendment (63 Del. Laws, c. 325) which allowed the Supreme Court to hear certified questions of law from the United States District Court for the District of Delaware. It remained as such until changes in 2007 and 2013 opened the certification process to other federal courts as well as state courts of last resort.

  • 1982– “the United States District Court for the District of Delaware”
  • 2007 (76 Del. Laws, c. 37)-“the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, the United States Securities and Exchange Commission, or the highest appellate court of any other state”
  • 2013 (79 Del. Laws, c. 97)- “the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a United States Bankruptcy Court, the United States Securities and Exchange Commission, or the highest appellate court of any other state”
  • 2016 (?)- “the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a United States Bankruptcy Court, the United States Securities and Exchange Commission, or the highest appellate court of any other state, the highest appellate court of any foreign country, or any foreign governmental agency regulating the public issuance or trading of securities

Several state legislatures have empowered chief justices, supreme courts to handle natural disasters in recent years

In the aftermath of the September 11 attacks states began the process of dealing with the potential for courts to be shut down for days at a time. Hurricanes Katrina and Rita extended that potential closure to weeks. As a result in the last decade state legislatures have considered and enacted various bills to empower chief justices and supreme courts to make emergency declarations, allowing for the moving of courts and the tolling/suspension of some deadlines. (See this report I wrote in 2010 on all such statutes at the time).

In light of today’s “arctic vortex” shutting down most of the middle part of the country, below is a review of laws recently enacted on the subject, including North Dakota whose new 2013 law may be put to use for the first time today.

Connecticut HB 5539 (2010) Provides Chief Justice may take any action necessary in the event of a (as defined by statute) major disaster, emergency, civil preparedness emergency, disaster emergency, or a public health emergency, to ensure the continued efficient operation of the Supreme, Appellate and Superior Courts, the prompt disposition of cases and the proper administration of judicial business. Such necessary action may include: (1) Establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used, (2) suspending any judicial business that is deemed not essential by the Chief Justice, and (3) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

Delaware SB 25 (2009) Provides for the operation of the courts in the event of an emergency due to natural or manmade causes that destroys or severely damages one or more court facilities or severely impacts the ability to staff the courts. Grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities. Provides the order declaring a judicial emergency shall be limited to an initial duration of 30 days, but may be modified or extended for additional 30 day periods. Provides Chief Justice may also 1) Order that a court may operate in a county other than the county in which it is normally located. 2) Extend statutes of limitations and time periods prescribed by statute as well as those time limitations prescribed by court rule or administrative directive which the Chief Justice already has the authority to extend pursuant to his authority under Art. IV, Section 13 of the Delaware Constitution 3) Declare that specific proceedings not normally conducted by audiovisual device may be conducted in this manner. When such usage is not otherwise authorized by statute or court rule, an explanation of the compelling state interest in such usage shall be included in the order and 4) Take such other actions as the Chief Justice reasonably believes necessary for the continued operation of the courts during a judicial emergency. Provides that the host county shall be a proper venue for proceedings. Establishes provisions of this law shall preempt and supersede but not repeal any conflicting provisions of any other provision of law.

Georgia HB 1294 (2008) Allows Chief Justice to extend judicial emergencies beyond normal limitations if a public health emergency exists. Emergency declaration may remain in place for as long as the public health emergency exists.

Georgia HB 339 (2011) Revises the courts to which a challenge of a quarantine or vaccination order may be brought and manner of appealing orders concerning such challenges. Removes chief judge of the court of appeals’ power to declare judicial emergencies. Provides extensions of judicial emergencies by chief justice may only last as long as governor has declared state of emergency.

Hawaii HB 1983 (2006) Provides during a period of civil defense emergency proclaimed by the governor, the chief justice shall be authorized to order the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, in civil or criminal cases or administrative matters, in any judicial circuit affected by the governor’s proclamation. Provides chief justice shall determine the judicial circuits so affected.

New Hampshire SB 370 (2008) Grants the chief justice of the supreme court the power to enter orders to suspend, toll, or otherwise grant relief from time deadlines imposed by statutes and rules of procedure, for a 21-day period, in the event of a declared state of emergency. Permits the legislature to terminate such orders by concurrent resolution.

New York AB 6921 / SB 2849 (2009) Repeals most existing law related to judicial emergencies. Provides if a court location is unsafe or impractical for the holding of a trial court, then the Governor may by order appoint another place for the temporary holding of court after consulting with the Chief Judge or his or her designee if practicable. Provides for the Court of Appeals and for trial courts where the Governor has not acted, the relocation power would fall to the Chief Judge. Provides for intermediate appellate courts ( i.e. Appellate Division and Appellate Terms of Supreme Court), the relocation power would fall to the Presiding Justice of the Appellate Division after consulting with the Chief Judge or his or her designee. Provides all temporary relocations must be to the most proximate place that the term of court safely and practicably can preside, and should be consistent with applicable State and local disaster preparedness plans. Provides for trial courts, temporary relocations must be after consultation with relevant local leaders (e.g., county executives or mayors) if practicable. Provides for relocation orders would expire within 30 days but could be renewed for successive periods of 30 days each in like fashion as an original order. Provides regardless where a court temporarily sits, the court would continue to preside on behalf of its original jurisdiction (i.e. judicial department, judicial district, county, city, etc.) and the same substantive and procedural laws (e.g. governing venue, jury selection, papers and appeals) would apply as if the court were not relocated. Provides if a court is relocated temporarily outside its original jurisdiction, then facility costs would not be borne by the receiving locality but instead would become State costs charged to the Office of Court Administration. Memorializes the Chief Judge’s emergency relocation powers as provided above. Recognizes the continuing obligation of the State Disaster Preparedness Commission and local disaster preparedness commissions to insure that the disaster preparedness plans for which they are responsible take appropriate account of the provisions of this measure. (See also AB 10616 / SB 6900 of 2008)

North Carolina HB 1269 (2009) Allows courts to be closed for “catastrophic conditions” and defines the term. Allows Chief Justice to extend certain deadlines for “catastrophic conditions” and to issue any emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions for 30 days, subject to 30 day renewals.

North Dakota HB 1073 (2013) Grants supreme court power to declare judicial emergencies. Allows for supreme court to toll statutes/deadlines. Does not allow for tolling or extension of deadlines or requirements imposed by U.S. or North Dakota constitution.

Oregon HB 2322 (2007) Provides Chief Justice may designate locations in the state for the sitting of circuit courts in the event of an emergency and that such locations designated need not be in the circuit court’s judicial district.

Oregon SB 270 (2009) Grants Chief Justice power to establish procedures for closing courts in emergencies and to establish standards for determining when courts are closed for purposes of ORCP 10, ORS 174.120 and other rules and laws that refer to periods of time when courts are closed.

South Dakota HB 1093 (2007) Allows Chief Justice to suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters or any other legal proceedings as determined necessary.

Tennessee SB 3660 / HB 3060 (2008) Specifies that if an appellate court declares a disaster pursuant to applicable court rules, then all statutes of limitation and repose will be extended by the same number of days that the applicable filing deadlines are extended with deadlines to be extended only in county in which disaster is declared.

Texas HB 1861 (2009) Authorizes the Supreme Court of Texas to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor and sets forth contingencies that provide for such action by another court or judge if a disaster prevents the supreme court from acting. Authorizes the local rules of administration that must be adopted by district and statutory county court judges in each county to provide for a coordinated response for the transaction of essential judicial functions in the event of a disaster. Includes as a purpose of the Texas Disaster Act of 1975 clarifying and strengthening the role of the judicial branch of state government in prevention of, preparation for, response to, and recovery from disasters.

Virginia HB 883 / SB 127 (2010) Sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. Permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

Delaware Year in Review: Opening Family Court proceedings, rejecting judicial salary increase

Law

SB 77 Designates upper-level management positions in the Justice of the Peace Court from classified service to exempt service, consistent with similar positions in the Superior Court, Family Court and Court of Common Pleas. Provides legislation effective at the time the incumbent separates from service.

Constitutional Amendment

SB 10 Adds the United States Bankruptcy Courts to the list of entities that may certify questions of law to the Delaware Supreme Court.  In Delaware, constitutional amendments do NOT have to be approved by voters.

Resolution

SCR 9 Creates a Blue Ribbon Task Force to review the feasibility of opening Family Court proceedings to the public. Provides report due February 15, 2014.

SJR 2 Rejects Compensation Commission’s recommendation to increase judicial and other salary.

 

Delaware legislature wants report on opening Family Court proceedings by February 2014

I mentioned last year that Delaware’s legislature was considering a review of the openness of Family Court proceedings in the state. The resolution authorizing the review failed to pass in 2011/2012 but has made its way through the 2013 session, marking the second legislative review of the subject in two decades.

First, some background.

Over the course of the last several years the Delaware legislature has shown interest in the issue of openness of Family Court proceedings. In 1992, the House debated HJR 23 which would have asked the Family Courts to open all proceedings

That the 136th General Assembly encourages the Chief Judge of the Family Court, or his designate, to initiate a Family Court administrative order or policy whereby proceedings before the Court shall be open to the public, except to the extent that the Court shall determine that privacy is in the interest of the public, the parties, or the Court

HJR 23 of 1992 does not appear to have been adopted.

The legislature next took up the subject in 1997 in the form of HJR 3 and HJR 4. HJR 3 created a task force “to study and evaluate the current system for dealing with open hearings and the weaknesses that may be present in that system; to consider methods utilized in other states for possible use in Delaware; and to develop recommendations to be presented to the Governor, to the Speaker of the House, and to the President Pro Tempore of the Senate by March 1, 1998.”

HJR 4 was an expression of the legislature towards openness and directing the courts themselves to produce a study and report

BE IT RESOLVED that it is the intent of the 139th General Assembly that, except as otherwise provided by statute, all Family Court proceedings and records may be open to the public unless the Court determines on a case-by-case basis that privacy is in the interest of the public, the parties, or the Court; and

BE IT FURTHER RESOLVED, that where privacy of proceedings or records is otherwise provided by statute, pursuant to 13 Del.C. Sections 724, 725, 726, 815, 924, 1107, 1112 and 1516, the Family Court shall affirmatively determine on a case-by-case basis, in accordance with the standard stated in the applicable statute, whether a particular proceeding or records should be open to the public, and

BE IT FURTHER RESOLVED, that the Family Court conduct a study of the effects of opening court proceedings on security, timeliness of hearings, records management, quality of litigation and the privacy concerns of litigants and their families; and

BE IT FURTHER RESOLVED, that the Court collect data on security incidents, number of hearings closed and the reasons therefor, and other pertinent information; and

BE IT FURTHER RESOLVED that this Joint Resolution shall only apply to matters filed in Family Court after the effective date of this Joint Resolution.

BE IT FURTHER RESOLVED, that by February 1, 1998, the Court submit to the General Assembly a report describing the information collected during the study, and recommendations for the best procedures to implement the intent of the General Assembly to make more Family Court proceedings open to the public.

The Family Court implemented HJR 4 via Administrative Order 98.02 which directed some cases to be open.

The issue of opening Family Court proceedings came back again in 2011 as SCR 21, a resolution directing another study of the subject of opening up the Family Courts. That resolution passed the Senate in 2012 but failed to get House approval.

The very similar SCR 9 of 2013 fared better. It was approved by the House and Senate this year and once again directs a review of  “the feasibility of opening Family Court proceedings to the public.” The report is due by February 15, 2014.

Delaware may require judicial nominees belong to their political party at least 2 years

I mentioned in December the situation in Delaware. In short, the state’s constitution provides for judicial appointments based on political party and a mandatory balance. For example if the Supreme Court is made up of 3 Democrats and 1 Republican, the next appointee by the governor MUST be a Republican, regardless of the party of the Governor.

There were accusations that at least some people under consideration for judicial appointments were switching parties in order to become eligible for a particular vacancy. Senate Republicans (the Senate in Delaware confirms judges) at the time vowed to try and end the practice and have now introduced SB 14, a constitutional amendment to require a person must belong to a political party at least 2 years in order to be considered a member of the party for judicial appointment purposes.

Specifically, it amends Article IV, Section 3 to add paragraph 7:

Seventh, at the time of Senate confirmation of an appointment to a vacancy in any Judicial Office which requires the appointee to be a member of a political party, the appointee shall have been a registered member of that political party for a period of at least two years immediately prior to the confirmation.

Although the complaints in December 2012 came from Republicans, SB 14 is bipartisan with 7 Senate Republicans joined by 2 Senate Democrats in cosponsoring the bill; the House co-sponsors are also bipartisan.

SB 14 has been assigned to the Senate Executive Committee.

 

Designating judicial seats to particular parties: Delaware examines their system, West Virginia enacted it in 2012

At least 19 states have partisan elections for at least some (though not necessarily all) the judicial offices in the state. Interestingly in the last several years the issue of party designation of certain seats has arisen, West Virginia considering the subject in 2012 and Delaware set to consider its system in 2013.

West Virginia’s HB 4314 of 2012 addressed the issue of Magistrate Court judges (in WV, magistrates are judges of their own court and not as in some states subordinate judicial officers of some other court). Existing law provided that where a Magistrate Court judge vacancy occurred it could be filled until the next election by the Circuit Court for the area. HB 4314 specified that the person selected must be of the same political party as the officeholder vacating the office. HB 4314 was signed into law in April.

Delaware does not have judicial elections, instead the Delaware Constitution specifies a system almost identical to the federal courts: gubernatorial appointment with senate confirmation (albeit for 12 year terms; federal judges serve for life). Governors have opted to use nominating commissions for preliminary screen but are not constitutionally obligated to do so.

Delaware’s constitution does, however, set a mandatory partisan balance in no more than 50%+1 of the judges of the court may be of the same party. Thus, with respect to the Supreme Court the constitution says:

[T]hree of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

There are similar provisions for Superior, Chancery, Family, Common Pleas, and Justice of the Peace Courts and what occurs if there is an even split.

Senate Republicans have announced plans to amend the state’s constitution and require any judicial nominee have held his or her political affiliation for at least two years (h/t to Malia Reddick at IAALS for the pointer). They claim candidates for judicial positions have changed party affiliation to try and become eligible as vacancies have occurred.

Delaware Legislative Year in Review: certifying questions to state supreme court; use of retired court commissioners

Delaware’s legislature approved a constitutional amendment in 2012, SB 221, that would add the United States Bankruptcy Courts to the list of entities that may certify questions of law to the Delaware Supreme Court. The amendment must be re-approved by the 2013/2014 legislature before becoming part of the state’s constitution.

New laws affecting the courts enacted by the Delaware legislature in 2012 include the following:

SB 232 Permits the Family Court and the Court of Common Pleas to temporarily assign retired Commissioners duties at the designation of each Court’s Chief Judge with the consent of the Chief Justice of the Supreme Court.