Last year’s big trial court consolidation effort was Vermont’s HB 470 which resulted in the state’s Probate, Family, and District courts being absorbed into the state’s Superior Court (the state’s Judicial Bureau, which handles minor violations, remains as a separate court).
New Hampshire is on its way to a similar consolidation with HB 609 which would consolidate the state’s District, Probate, and Judicial Branch Family Division into a newly created limited jurisdiction court called the Circuit Court. The state’s Superior Court would remain a general jurisdiction court. Like the Vermont consolidation, the older courts would be converted to divisions of a court rather than simply eliminated outright.
HB 609 was approved with committee amendment by the House Judiciary Committee on a 16-0 vote on March 10. The committee will hold a second vote to approve the amendment on March 15 before sending it to the full House.
It is barely March, and already there have been more bills seeking the removal of judges in 2011 than in any year in recent memory. As I noted in a special December 2010 edition of Gavel to Gavel, while threats to impeach state court judges have increased, it has only been in the last several years that actual bills have been drafted and submitted.
All told, 10 judges (9 state, 1 federal) are the target of impeachment or removal efforts in the state legislatures this year. This is in addition to the threats to impeach Iowa’s supreme court justices made earlier in the year that have not materialized as articles of impeachment.
||Form of removal
||Reason for removal request
||Bill of address
||Supreme Judicial Court Chief Justice Roderick L. Ireland
||Bill of address
||Supreme Judicial Court Justice Francis X. Spina
||Bill of address
||Supreme Judicial Court Justice Judith A. Cowin
||Bill of address
||Supreme Judicial Court Justice Robert J. Cordy
||Marital Master Phillip Cross
||Decisions in custody/divorce cases
||“any justice of the New Hampshire superior court”
||Decisions in custody/divorce cases
||Supreme Court Justice Roberto Rivera-Soto
||Refusal to vote in some cases
||Request for removal by judicial disciplinary commission
||District Judge Thomas Bartheld
||Failure to reject negotiated plea bargain in child sex abuse case
||Impeachment request to Congress
||U.S. District Court Judge Vickie Miles-LaGrange
||“Abuse of authority” for issuing an injunction against state’s sharia law ban
||Request for removal by judicial disciplinary commission
||District Judge Tammy Bass-LeSure
||36 felony counts, including four counts of perjury and 32 counts of fraudulent claim
The last few weeks have been particularly active in the area of judicial impeachment.
In New Jersey, SR 105 expressed the sense of Senate that in the event the General Assembly does not proceed with impeachment Justice Roberto Rivera-Soto that he should resign as Justice of the New Jersey Supreme Court. The criticism of Justice Rivera-Soto arises from controversy over a vacancy on the state’s supreme court. It began in May 2010 when, for the first time, the Governor declined to automatically reappoint a supreme court justice back to the court (Justice John E. Wallace Jr.), instead nominating Anne Patterson. The Senate President has declined to have a confirmation hearing on Patterson, resulting in a vacancy on the high court.
Chief Justice Stuart Rabner temporarily elevated a trial court judge into the vacancy, an act Justice Rivera-Soto decried in at least two December 2010 opinions as unconstitutional. Justice Rivera-Soto filed a separate opinion in Lula M. Henry v. New Jersey Department of Human Services “abstaining and expressing his view that the Constitution allows the assignment of a Superior Court judge to serve on the Supreme Court only when necessary to constitute a quorum and stating that he will continue to abstain from all decisions of the Court for so long as it remains unconstitutionally constituted.”
Less than a month later on January 12, 2011 in Hopewell Valley Citizens’ Group, Inc. v. Berwind Prop. Group Dev. Co., L.P. Justice Rivera-Soto modified his position: “This process [blanket abstention from all decisions of the Court] has revealed a previously unconsidered, but nevertheless reasoned and measured alternative approach, one that minimizes the jurisprudential uproar a blanket abstention might create but that also maintains the intellectual and constitutional integrity that undergirds my earlier abstaining opinion… I will cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case.”
The result was SR 105
It is the sense of the Senate that the actions of Justice Roberto Rivera-Soto are prejudicial to the administration of justice and constitute a serious violation of the public trust. It is also the sense of the Senate that the actions of Justice Rivera-Soto may constitute grounds for impeachment for misdemeanor committed during his continuance in office. It is further the sense of the Senate that in the event the Assembly does not consider Articles of Impeachment, Justice Roberto Rivera-Soto must resign his seat as Justice of the Supreme Court of the State of New Jersey.
The resolution passed on February 17 on a 21-3-16 vote. All the Senate Republicans declined to vote on the resolution.
In New Hampshire, the House Judiciary Committee advanced a bill to start an impeachment investigation of Marital Master Philip Cross. I detailed HR 7 in a prior blog post here and some of the history and prior attempts to have the Martial Master and other judges/judicial officers removed from office last year. The efforts against Martial Master Cross derive from what the Concord Monitor described as a “witch hunt” lead by “men angry about the outcome of their divorce cases.” According to the New Hampshire Bar Association e-Bulletin, the House Judiciary committee on March 1 voted 10-5 to proceed with the investigation of not only Cross but, according to the text of HR 7, “and/or any justice of the New Hampshire superior court.”
It is relatively common for state legislatures to, effectively, overturn court decisions which relate to statutory interpretation by either changing the wording of the statute or repealing it outright. This even extends to efforts to overturn state supreme court interpretations of the state constitution by adopting state constitutional amendments.
What is uncommon is New Hampshire’s attempts to achieve the same effect by targeting certain decisions and retroactively declaring them void.
For example, HCR 17 of 2011 declares the 1868 case of Copp v. Henniker (55 NH 179) and the opinions which subsequently relied upon Copp “void and of no force.” In Copp, the state’s supreme court (then known as the Superior Court of Judicature), referencing a similar Wisconsin case (Meade v. Walker 17 Wis. 189 (1863)) held that the state constitutional right to a trial by jury applied if that was the case when the state constitution was ratified. The reference to the Wisconsin case is specifically criticized by HCR 17. The concurrent resolution ends with a two part declaration that the opinion in Copp “is repugnant to the Constitution of New Hampshire” and that “the opinions which subsequently rely upon Copp versus Henniker to deny the right to trial by jury in new types of civil cases are utterly void and of no force.”
HCR 18 declares an even older case (Merrill v. Sherburne, 1 NH 199 (1819)) void as well. There, Merrill (as executor for the estate of a man named Ward) had lost at trial and on appeal a probate case against Ward’s heirs that would have granted Merill the entire estate. In 1817 Merrill petitioned the legislature for another trial and the legislature adopted a special law for him to that effect later in the year. The heirs moved to quash the proceedings. The state’s Superior Court of Judicature did quash, citing the U.S. Constitution, “The Spirit of Laws” by Montesquieu, several of the Federal Papers, Thomas Jefferson’s “Virginia Papers”, and similar documents. Specifically, the court held that the state legislature had exceeded its constitutional authority and, in effect, exercised judicial powers.
HCR 18, on the other hand, declares the listed documents were deliberately edited to mislead readers. Moreover, referencing a state constitutional provision that “the Legislature shall assemble for the redress of public grievances and for making such laws as the public good may require”, the resolution declares Merrill and subsequent decisions relying on it “repugnant to the Constitution of New Hampshire…utterly void and of no force.”
The author’s writings on the subject of these cases can be read more fully here.
Last year I noted the effort in New Hampshire to remove Marital Master Philip Cross (details here) via a bill of address. Such bills allow, in cases where there “shall not be a cause which is a sufficient ground for impeachment”, for a majority of both houses of the legislature to ask the state’s governor and executive council to remove a judge or judicial officer. The bill of address method was used to try and remove Cross, another martial master, and a judge last year. Those efforts failed, however Cross’ was the “closest” vote (6-3 in committee against recommending removal; 170-127 against in the full House).
Citing testimony from the 2010 bill of address hearings, HR 7 of 2011 has been introduced directing the House Judiciary Committee to investigate Cross “and/or any justice of the New Hampshire superior court” for impeachment. Under the state constitution, the committee would have to find instances of “bribery, corruption, malpractice or maladministration in office” for impeachment to proceed.
Maine HB 650 & SB 184 Implements the recommendation of the Judicial Compensation Commission that members of Maine’s judiciary with retirement contributions earned in the Legislative Retirement Program be allowed to fully transfer these contributions to the Judicial Retirement Program. Requires any member who transfers retirement contributions from the State Employee and Teacher Retirement Program or the Legislative Retirement Program to pay the costs to have the contributions transferred to the Judicial Retirement Program. Signed into law by Governor 6/4/09.
Maine HB 1120 Brings various public employees retirement systems, including the Judicial Retirement Program, into IRS compliance. Specifies Judicial Retirement Program as a governmental qualified defined benefit plan pursuant to Sections 401(a) and 414(d) of the Internal Revenue Code and such other provisions of the Internal Revenue Code and United States Treasury regulations and other guidance as are applicable. Details vesting, use of forfeitures, benefits, etc. in a manner to comply with the Internal Revenue Code. Signed into law by Governor 2/23/10.
New Hampshire SB 1512 Allows judges who resign from office to elect to receive a deferred retirement benefit under the judicial retirement plan. Approved by full House 3/3/10.
New Hampshire SB 357 Authorizes the judicial retirement plan to deduct a health insurance premium contribution from allowances. Approved by full Senate 2/17/10.
New Jersey SB 2 Provides that new members of the Judicial Retirement System (JRS) will not have a non-forfeitable right to receive benefits upon the attainment of five years of service credit. Signed into law by Governor 3/22/10.
The third New Hampshire bill of address (HA 3) this year focuses on Marital Master Philip Cross. While details are not provided as to specific case number or names in the bill of address, the charges appear to duplicate most of those found in the bill of address Judge Lucinda Sadler but do not involve the “Amanda” case for which Sadler and Marital Master Michael Garner face the prospect of being removed from their respective offices.
It remains to be seen among all three of these bills of address if a committee will be convened to examine the matter. According to the bill status reports from the NH legislature’s website, all three must be voted out of committee and onto the floor by February 18.
Yesterday’s post on the effort to legislatively remove form office a New Hampshire marital master was only half the story. To recap, marital master Michael garner recommend a girl be removed at the father’s request from his ex-wife’s homeschooling practices for the girl and put into public school. It was Judge Lucinda Sadler that signed off on that recommendation. For her role in the homeschooling order, Judge Sadler is the target of HA 2 of 2010 seeking her removal via a bill of address to the Governor. Sadler is also cited for her role in signing off on the orders of another marital master in a many as 6 child support and custody cases in addition to the one previously noted.
Three separate efforts to remove New Hampshire judges and judicial officers via bills of address are currently pending in that state. A bill of address requires only a simple majority of both the House and Senate and need not specify any “bribery, corruption, malpractice or maladministration, in office” as in the case of an impeachment. “The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature,..”
The first such effort (HA 1) is against marital master Michael Garner. Garner, according to the bill of address, “recommended to the presiding justice an order removing a child from an educational setting on the basis of religious prejudice.” The case surrounds a divorce case and a child, identified only as “Amanda,” who was being home schooled by her mother, while her father wanted the child placed in public school. According to media reports, Garner evaluated the home schooling situation. On July 13, 2009, he issued his recommendation, stating “The Court is extremely reluctant to impose on parents a decision about a child’s education” but ultimately deciding, based on the testimony of the parents and a Guardian Ad Litem, that it was in “Amanda’s best interests to attend public school.” The story made national headlines and was, as of November 2009, on appeal to that state’s Supreme Court.
Judicial Councils vary from state to state, ranging from advisory bodies to formal policy makers and setters. Three states are wrestling with the possibility of eliminating these bodies.
Virginia’s HB 240 would eliminate the Council and transfer its responsibilities to the Supreme Court or the Executive Secretary of the Supreme Court (the official title for the state court administrator).
New Hampshire, on the other hand, is seeking to save its Judicial Council. In 2009, the state’s legislature passed as part of its appropriations bill a provision (144:87) automatically ending “all non-regulatory boards, commissions, councils, advisory committees, and task forces in state government created by statute or administrative rule” on June 30, 2011 unless new authorizing legislation was approved. HB 1689 would keep the Judicial Council in operation.
Tennessee’s Judicial Council is facing a similar automatic sunset. Statutorily, the Council expired June 30, 2009 and is currently in its one-year “wind down” phase. HB 1016 and SB 374 would extend it until June 2017 while HB 1102 and SB 373 would grant it only until June 2010. HB 1102 was approved on a 90-5 vote on June 3, 2009 while the Senate version was deferred until 2010.