Several states have active bills to define as a separate criminal act threats or intimidation of judges and court staff. Gavel to Gavel 5:2 looked as some of those efforts and in early March both the Washington House and Senate passed bills to increase existing penalties for such crimes (HB 1794 & SB 5046). The Florida Senate Judiciary Committee, however, has rejected a similar effort today (audio here).
SB 262 (and its House version HB 129) would create the crime of intimidation of a judge. Much of the opposition voiced against the bill surrounded the definition of “intimidation or threats”:
“Intimidation or threats” include, but are not limited to, actions or words that:
1. Directly or indirectly threaten physical force, economic loss, damage to property, damage to career, or damage to the reputation of a judge or a member of the judge’s immediate family;
2. Are intended to create a situation requiring recusal or disqualification of a judge; or
3. Consist of contacts or attempts to contact or that create a pattern of contact with a judge or a member of the judge’s immediate family under false pretenses which would reasonably cause a judge or a member of the judge’s immediate family to fear for his or her safety.
Opponents suggested that the “economic loss”, “damage to career”, and “damage to reputation” provisions would make any conversation about opposing the judge for election or suggesting that someone should run against the judge a criminal act.
Senator Anitere Flores, chair of the committee, urged the sponsor to work with opponents to narrow the language and noted the bill was prompted, in part, by an actual case of judicial intimidation in the sponsor’s district.
The bill failed on a 3-4 vote. It is unclear what the rejection will mean for the House version.
News reports coming out of Florida indicate there is an attempt underway to expand the state’s supreme court. House Speaker Dean Cannon announced earlier today he wants to increase the size of the Florida Supreme Court from seven to 10 members and divide the 10 member court into two, 5 -member panels (one civil, one criminal). Cannon denies this is a court packing effort, claiming instead he wants to “reform” the court.
The only two states that even approximate this proposal are Oklahoma and Texas, however these two states have entirely separate courts to handle civil (Supreme Court) and criminal (Court of Criminal Appeals) cases.
The Tallahassee Democrat noted that Speaker Cannon was irate last year when the state’s Supreme Court struck from the ballot several legislatively introduced initiatives. In his first speech as Speaker-designate in November 2010, Cannon went out of his way to attack the court’s decisions.
This wouldn’t be the first time a Florida Supreme Court decision prompted a legislative effort to increase the size of the court. In 2007, Florida state senator Bill Posey introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. (Bush v. Holmes, 919 So.2d 392 (Fla. 2006)) When SB 408 became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.
For a 2010 review of efforts to tinker with the size of the state supreme courts, read Issue 4:14 of Gavel to Gavel here. For the recent effort to increase the Arizona Supreme Court (without asking or talking with the state’s Chief Justice first), read this blog post.
Update: 3/7/11 @ 3:23 According to a Twitter feed coming out of the press conference where Cannon made these announcements, Senate President Mike Haridopolos says House Speaker Cannon idea on FL Supreme Court will be given fair consideration. (h/t Gary Fineout)
It is one thing to have a state appellate court strike down a statute as unconstitutional. It is quite another to send a copy of the order striking down the law straight to the legislature. However, this is precisely what some members of the legislature are asking for.
HB 87 (and its Senate counterpart, SB 996) would require the state supreme court or district courts of appeal to send a copy of any decision that
- declares a Florida statute, regulation, or government practice unconstitutional
- recommends any statutory or regulatory changes to the current law, or
- identifies drafting issues
to the Governor, the President of the Senate, and the Speaker of the House of Representatives within 30 days of the decision. The three officers would have 30 days to acknowledge receipt and “may state in the acknowledgment any and all action to be taken in response to the opinion.”
The House bill is set for a hearing before the Judiciary Committee’s Civil Justice subcommittee on March 8.
The Florida Supreme Court’s power to set rules of practice and procedure are among the broadest in the nation, as well as among the hardest to be overridden by the legislature. The Judiciary Article of the state constitution holds:
The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought…Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.
Two newly elected members of Florida’s House, however, attempted to transfer the rule making power as to death penalty cases directly to the legislature. HJR 73 of 2011 (as filed on December 16, 2010) would have added a section to the Legislative Article that read:
Notwithstanding any other provision of this constitution, the Legislature by general law shall adopt rules governing time limits, procedures, and processes relating to all death penalty cases and related proceedings in all courts.
The state bar’s Board of Governors on December 10 adopted a legislative position against any effort to alter the Supreme Court’s rule making power:
Opposes amendment of Article V, Section 2(a) of the Florida Constitution that would alter the Supreme Court’s authority to adopt rules for practice and procedure in all courts, or that would change the manner by which such rules may be repealed by the Legislature.
On December 30, precisely two weeks after the Constitutional Amendment was proposed, it was withdrawn by its sponsors.
There have been numerous efforts to try and avoid the excesses of judicial elections, but one Florida House member has proposed a unique solution. In 2010, Broward County faced an “unwieldy primary election for judges [with] 42 candidates including 15 incumbents in 20 races”. (h/t Florida Bar News) This prompted state Sen. Jeremy Ring to introduce SB 140, a constitutional amendment that increases the number of years a person must be a member of the Florida bar before being eligible for a trial court judgeship. Circuit and county court judges would need to have 10 years as an attorney (currently 5 years for circuit, and bar admission only for county), the same qualifications needed as with the state’s appellate courts. An identical bill (HB 47) was also introduced in the House.
Earlier in 2010, Gavel to Gavel looked at efforts by state legislatures to mandate more electronic filing of court documents. Much of the focus was on civil cases, however Florida’s Senate is considering a plan to press for criminal case e-filing. SB 170 of 2011 would require prosecutors and public defenders to e-file documents with the clerk of court and report back on March 1, 2012 on the implementation of the program to the legislature.
Cross-posted at Court Technology Bulletin blog
We have this submission from Cristina Alonso, an attorney with Carlton Fields and co-chair of the NCSC Young Lawyers committee.
Florida is considering bringing judges out of retirement to help the courts. HB 13 and SB 130 permit the chief judge of a judicial circuit, subject to approval by the Chief Justice of the Supreme Court, to establish a program for retired justices or judges to preside over civil cases & trials or to hear motions upon written request of one or more parties. The bills further provide for compensation of such justices or judges to be paid by the parties by deposit into the Operating Trust Fund of the state courts system.
A similar bill (HB 369 of 2009) was passed by the House 114-0 last year, but was not taken up in the Senate.
This year’s House version was approved by the chamber’s Civil Justice and Courts Policy Committee on February 16. The Senate version was approved by the Senate Judiciary Committee on March 9.
Readers may recall the Florida House bills proposed several weeks ago that would provide the courts guaranteed funding, but only if judicial immunity and a list of other changes made to the way courts and judges operate. Now the Senate has introduced identical bills (SB 2636 and SB 2640).
Georgia, meanwhile, is also considering tying additional funding to changes in court structure. SB 429 would add a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. This additional funding comes, however, only if the Supreme Court is increased from 7 to 9 justices and the Court of Appeals from 12 to 15. Unlike in most states where a change to the number of Supreme Court justices would require a constitutional amendment,Article VI Section VI of Georgia’s Constitution allows the legislature to set the number so long as it is below 9 (interestingly, there appears to be no minimum). Gavel to Gavel readers may recall a similar effort to expand the Supreme Court in 2007. This, from Gavel to Gavel’s first edition
Georgia media reports legislation may be considered to increase from 7 to 9 the number of seats on that state’s high court. Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.”
Changes to the appellate courts are rare, especially courts of last resort. Since 1990, only 2 states have had such changes. Nevada’s Supreme Court grew from 5 to 7 members in 1999 (AB 343 of 1997). In that same year, Iowa’s Supreme Court shrank from 9 to 7 as 3 judges were added to the state’s Court of Appeals (HF 2471 of 1998).
Gavel to Gavel: The Blog is designed to be more expansive, in terms of both content and contributors, than the original e-publication. Writers will be key contributors on the front lines of legislation and the courts.
This week marks the first such contribution from Cristina Alonso, an attorney with Carlton Fields and co-chair of the NCSC Young Lawyers committee.
Florida’s legislature is not yet in session, but already has several bills to contend with foreclosures and the courts. SB 1778 and HB 75 provide procedural requirements and limitations for plaintiffs, defendants, and courts in certain foreclosure actions, including a requirement for court-ordered mediation. The bills would require that the Florida Supreme Court create “the form and content notices, affidavits, certificates, liens, and other forms required” and require Circuit Clerks to “provide all forms, together with instructions in English and Spanish, to a pro se defendant seeking assistance in any foreclosure action. Such forms shall be provided at no cost to the defendant.” Both bills are currently pending in various committees of both chambers.