Illinois becomes sixth U.S. legislature in 2014 to consider bill for drug testing judges; this version includes testing for alcohol as well

Last week Illinois became the sixth U.S. legislature (five states + 1 territory) to consider a bill to mandate drug testing judges. Under HB 6313 of 2014 a person may not serve as a judge, or return to service as a judge after testing positive, until they first provide a “clean” drug and alcohol test (“a blood alcohol concentration of less than .02”). For judges currently serving, that means a drug/alcohol test once a year. For those judges who tested positive, it means a mandatory substance abuse program plus drug/alcohol testing 9 times a year for 3 years after returning to service.

The other states/territories considering similar bills this year were Tennessee (discussed here), Mississippi (discussed here), Pennsylvania and Missouri (discussed here jointly) and the Northern Mariana Islands where the bill was passed but vetoed.

HB 6313 has been sent to the House Rules Committee.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

Changing civil jurisdiction thresholds – Part 3

This third 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.

Massachusetts to New Jersey below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 3

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

This third 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.

Massachusetts to New Jersey below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

Election 2014: Missouri initiatives fail to make it onto ballot; Colorado “Clean Up the Courts” initiatives have until August 4 to get 86k signatures

Yesterday the Missouri Secretary of State announced the questions that had gathered enough signatures on initiative petitions to be put on the ballot in 2014. Absent from the list were the several proposals (Initiative 2014-047 and the nearly identical 2014-048) to end merit selection in the state.

With their absence the only state that appears to have anything circulating at this point is Colorado’s “Clean Up the Courts” constitutional amendments. Local media coverage here.

Question #79 keeps the state’s judicial retention elections but requires that the judges receive a 2/3rds “yes” vote to be retained. Somewhat confusingly, Question #79 would apply to the judicial races on the November 4, 2014 general election ballot, the same election that would determine passage of Question #79 itself.

The second item, Question #94 (described by proponents as the “Honest Judge Amendment”), would disband the state’s Commission on Judicial Discipline and transfer discipline of judges to the state’s Independent Ethics Commission. Discipline would also be expanded to include any act by a judge that “may be otherwise subject to appellate review.” The Independent Ethics Commission under Question #94 would be free to ignore any appellate rulings in a case at will and allows the reopening of previously dismissed complaints. On May 29, the state Supreme Court affirmed the Title Board’s description of Question #94.

Shall there be an amendment to the Colorado constitution concerning regulation of judicial conduct and, in connection therewith, transferring jurisdiction over judicial discipline and disability to the independent ethics commission from the commission on judicial discipline and specifying that such jurisdiction includes review of claims of violations of the Colorado code of judicial conduct and claims of disability, as well as complaints that were previously dismissed by the commission on judicial discipline?

86,105 signatures on Questions #79 and #94 must be turned in by August 4, 2014.

Missouri House Judiciary Committee advances plan to remove power of state supreme court to try impeachments

Missouri’s House Judiciary Committee last week approved HJR 46, the latest in a long line of efforts to try to remove the power to try impeachments against public officials from the Supreme Court and transfer it back to the state senate.  Missouri is one of only two states (Nebraska with its unicameral legislature is the other) that give such a role to their court of last resort to try impeachments. The current constitutional provision reads:

The house of representatives shall have the sole power of impeachment. All impeachments shall be tried before the supreme court, except that the governor or a member of the supreme court shall be tried by a special commission of seven eminent jurists to be elected by the senate. The supreme court or special commission shall take an oath to try impartially the person impeached, and no person shall be convicted without the concurrence of five-sevenths of the court or special commission.

HJR 46 as well as transferring the trial of impeachments to the Senate would also drop the conviction threshold from 5/7 to 2/3.

The Missouri Senate Judiciary committee have approval to its version (SJR 34) in February; the full Senate has yet to take up the measure. It requires only a simple majority of the House and Senate to get either measure on the 2014 ballot.

 

Special look at what will be on the November 2014 ballot affecting state courts

Publication link here.

There are 6 months until the November 2014 elections and the ballot will be full of items impacting the courts. This special edition reviews what will be and may be before voters in 26 short weeks.

Alabama

SB 4 of 2013, the American and Alabama Laws for Alabama Courts Amendment, will be the second time (Oklahoma 2010 was the first) voters will get to weigh in on banning state court use or reference to international or foreign law or court decisions. The Alabama version goes further, however, and not only bans use of foreign/international law in the state’s courts, but also refuses to grant full faith and credit to court decisions or orders issued in other states that use or reference foreign/international law.

HB 205 of 2013, a “local” constitutional amendment, is also on the ballot. It would require the Judge of Probate of Shelby County be an attorney. Because of the way the Alabama Constitution is structured, such a change has to take the form of a constitutional amendment that is voted on only by the residents of the affected county.

Arkansas

HJR 1009, the Elected Officials Ethics, Transparency and Financial Reform Amendment, is effectively three amendments in one. The first part restricts lobbying and lobbyist gifts for all elected officials, including judges. The second item would expand term limits for members of the legislature, allowing them to serve up to 16 years. The third part removes the legislature’s power to set salaries for elected officials, including Supreme Court, Court of Appeals, Circuit, and District judges (i.e. all but City Court judges), and transfers it to a salary commission called the Independent Citizens Commission. The Chief Justice would get to pick 1 member of the 7 member Commission. During its first meeting/session the Commission could increase (or decrease) salaries to any level they wished. Subsequent adjustments would be limited to increases/decreases of no more than 15%.

HJR 1009 also removes the guarantee that judicial salaries may not be diminished (expenses paid to judges will keep their protections). Moreover, it eliminates a provision that all Circuit Judges in the state receive a uniform salary. It also specifically provides that salaries to judges and others be paid monthly.

Florida

SJR 1188 addresses whether the incoming or outgoing governor gets to fill appellate vacancies that occur on the same day as the transfer of the governorship. SJR 1188 opts for the outgoing, allowing for “prospective appointments” via the state’s merit selection system. Critics argue this is an effort to “pack” the Florida Supreme Court. The only 3 justices appointed by a Democratic governor are all being forced out of office due to the state’s mandatory judicial retirement age in 2019. There is the possibility Republican Governor Rick Scott, if re-elected, would be able to appoint all their replacements as he was leaving office. SJR 1188 has to receive the approval of 60% of those voting on the subject.

Hawaii

HB 420 requires the state’s merit selection commission (the Judicial Selection Commission) to publicly disclose its list of nominees for appointment to the office of the Chief Justice, Supreme Court, Intermediate Appellate Court, Circuit Courts, or District Courts concurrently with its presentation of that list to the Governor or the Chief Justice (in Hawaii, the Chief Justice selects District Court judges).

SB 886 will be the third time in the last decade Hawaii voters contend with the issue of judicial retirement. SB 886 would increase the constitutionally established mandatory retirement age for justices and judges from 70 to 80 years of age. The last two attempts both failed (for a full history of the earlier attempts, click here).

Note: Hawaii requires that the measures receive the approval of a majority of those voting in the election, thereby making a non-vote on these two ballot items effectively a no vote. This resulted in the failure of a ballot item in 2012 to allow Hawaii’s chief justice to recall retired judges back into temporary service.

Louisiana (highly likely)

HB 96 or SB 11 would remove the state’s mandatory judicial retirement age. Currently judges must retire at the end of the term during which they reach age 70. In 2013 the House was unable to muster the 2/3rds majority to get it on the ballot; that changed in 2014 when the House approved their version 72-19 (70 required). The Senate approved its version unanimously. The two differ only in terms of ballot language and as of now (May 2014) it appears SB 11 will be the one to advance onto the ballot.

5/8/14 update: Since putting this together another bill has advanced far enough along to warrant some attention. SB 216 is a constitutional amendment that would grant the state’s supreme court the power to move or reallocate a judicial vacancy when the seat is open. The supreme court would not need to ask the permission of the legislature for a reallocation/move but would need approval by the legislature and the governor to abolish the vacancy outright.

New Mexico

SJR 16 repeals a constitutional provision that says, “The date for filing a declaration of candidacy for retention of [judicial] office shall be the same as that for filing a declaration of candidacy in a primary election.” Instead, the legislature would be free to set the declaration of candidacy date for judicial retention elections as it saw fit.

Nevada

For the fourth time in 4 decades Nevada voters will get to decide on a constitutional amendment creating an intermediate appellate court called the Court of Appeals, this time as SJR 14. The prior efforts all lost by roughly the same 47-53 margins, including the latest attempt in 2010. Full details on the prior efforts can be found here.

Oregon

SJR 203 provides employment by the Oregon National Guard for the purpose of performing military service or employment by any public university for the purpose of teaching does not prevent the person from serving as a judge. The current constitution prohibits judges or any official for that matter from “hold[ing] more than one lucrative office at the same time” with only limited exceptions. This was originally passed as SJR 34 of 2013, however SJR 203 also includes provisions that allow school employees to serve in the state legislature.

Tennessee

Tennessee had a statutory-based merit selection system for the state’s appellate courts that lapsed; the governor continued it via executive order. SJR 2 would specifically put into the state constitution a quasi-federal system in which the governor appoints, the House and Senate confirm, and additional terms are by retention election. The current governor has vowed to retain a merit selection commission to recommend to him names for appointment.

Initiatives

This may be the first year in a decade where no item affecting the courts will make its way to the ballot via initiative. Of the 25 states that allow for the use of initiatives to get items on the ballot, only 2 even have items that have been submitted for possible signatures and it is not clear the proponents are actually trying to get signatures on a large scale.

Colorado: A group called “Clean Up the Courts” has two constitutional amendments currently circulating. Question #79 keeps the state’s judicial retention elections but requires that the judges receive a 2/3rds “yes” vote to be retained. Somewhat confusingly, Question #79 would apply to the judicial races on the November 4, 2014 general election ballot, the same election that would determine passage of Question #79 itself.

The second item, Question #94, would disband the state’s Commission on Judicial Discipline and transfer discipline of judges to the state’s Independent Ethics Commission. Discipline would also be expanded to include any act by a judge that “may be otherwise subject to appellate review.” The Independent Ethics Commission under Question #94 would be free to ignore any appellate rulings in a case at will.

Signatures on both Questions must be turned in by August 4, 2014. It is not clear whether or not signatures are being collected on either of these measures.

Missouri: Initiative 2014-032 would amend the state’s constitution and put in a provision for campaign contribution limits. Individuals would be limited to contributing a maximum of $2,600 to a candidate for state races and all judicial races.

Initiative 2014-047 and the nearly identical 2014-048 end merit selection in the state and require judges to be elected in partisan elections. Judicial candidates would be free to solicit, receive, and make any legal campaign contributions or expenditures that benefit their own campaigns. The initiatives decrease Supreme Court and Appellate Court judges’ terms from 12 years to 8 and increase the number of Supreme Court judges from 7 to 9.

It is not clear whether signatures were being collected on any of these measures prior to the deadline for filing on May 4.

 

Missouri Senate gives veto-proof approval of bill that nullifies federal gun laws and prohibits state courts from enforcing them; allows for suits against state judges who enforce such laws

The Missouri Senate on April 30 gave its approval to HB 1439, a bill that unilaterally declares void “federal statutes, executive orders, administrative orders, court orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms.”

As mentioned previously any state judge or “public officer” that helped enforce any federal law or federal court orders regarding the firearms “shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress.” The judge could be personally liable to pay out of their own pocket for such a suit. “Neither sovereign nor official or qualified immunity shall be an affirmative defense in such cases.”

The Senate added amendments that would remove references to criminal prosecution of federal agents that enforced federal gun laws, instead only allowing suits against them.

A version of this bill passed last year but was vetoed. The Senate fell one vote short of an override that year. The Senate this year passed the bill with a veto-proof majority 23-8; 23 votes would be needed for an override of any veto. The House did so previously as well with 110 yes votes out of 109 needed for an override.

The Senate amended version of HB 1439 now goes back to the House for approval.

Missouri Senate committee approves bill that nullifies federal gun laws and prohibits state courts from enforcing them; allows for suits against state judges who enforce such laws

Yesterday the Missouri Senate General Laws Committee gave its approval to HB 1439, a bill that unilaterally declares void “federal statutes, executive orders, administrative orders, court orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms.”

While such attempted nullification bills have become more commonplace in state legislatures in recent years, Missouri’s HB 1439 includes provisions that prohibit state court judges from recognizing such laws or federal court orders: “It shall be the duty of the courts…of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined in section 1.322.”

No “public officer or employee” would be permitted to enforce or attempt to enforce those federal gun laws/court orders. Additionally, were a judge to do so he or she “shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress…Neither sovereign nor official or qualified immunity shall be an affirmative defense in such cases.”

The bill now likely goes to the Senate Rules Committee before advancing to the floor.

 

Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?

The 2014 efforts to ban state court use of international or foreign laws in general, and sharia law in particular, are effectively over save for two states. Since I last updated this in early March the only movement has been in Florida and Missouri, setting the stage for a possible repeat of 2013.

Florida: The Florida House and Senate bills are presently on the floors of their respective chambers and could be voted on any day. However, when this occurred last year the House was able to pass its version on April 18, 2013. The Senate on the other hand did not have the votes to pass either its version or the House bill and wound up tabling (i.e. killing) a combined House/Senate bill in May 2013.

Missouri: Just like in 2013, the 2014 effort came out of the Senate General Laws committee. However, last year’s version was vetoed by the state’s governor citing among other things the possibility that the language was so broad it would void or at least jeopardize foreign adoptions. The 2013 veto was overridden by the Senate but failed to be overridden by the House by a single vote (108 out of 109 needed).

List of bills below the fold
Continue reading Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?