Supreme Weekly: Busy week for the courts

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June 9, 2011

by: Katy Farrell

The search for new justices, the intersection of politics with the courts and important rulings have us crisscrossing the nation this week. The state Supreme Courts are busy with budget battles, gubernatorial authority and the western wildfires during the first full week of June.

Missouri Applications being accepted for Supreme Court vacancy

The search is officially on to find a new justice for the Missouri Supreme Court. Retiring in August 2011, Michael Wolff will step down before the end of his current term, allowing Governor Jay Nixon the opportunity to help shape the court. Of course, the state's method of judicial selection is the Missouri Plan, a merit based appointment system in which a judicial selection commission chooses three finalists for gubernatorial appointment. Whoever Nixon selects, most likely in the fall of 2011, will serve until 2012, when she or he must run for retention to keep the seat.

Vermont Governor discusses qualifications sought for first appointment to high court

Governor Peter Shumlin is already sharing his checklist for evaluating potential nominees to the Vermont Supreme Court. The governor is shopping for a justice to succeed Denise Johnson, who announced her retirement from the court effective August 31, 2011. Shumlin says he agrees with the approach of former governors, who didn't mandate experience on the bench for service on the high court.

For now, before the applications are even being accepted, one can only speculate about the future justice. The governor did say that he would like to have a full court sitting when it resumes in October.

Idaho High court to hear legislator's tax appeal

Five appeals and eight months later, Representative Phil Hart has brought his opposition to Idaho's state income tax to the Idaho Supreme Court. The issue began in 1996, when Hart stopped filing federal and state income tax returns, in protest over their perceived unconstitutionality. He resumed payments, but according to the IRS is hundreds of thousands of dollars behind schedule. In addition, the Idaho Tax Commission found that Hart owed them $53,523 in back taxes as of 2009, which continue to accrue interest.

The issue facing the court is no longer the legality of collecting taxes in general, but whether he waited too long to file his initial appeal and whether his most recent hearing should have been delayed, since he was participating in lawmaking in the Idaho House of Representatives. On the first point, two government bodies have already deemed that the six months Hart waited is much longer than the 91 day appeal period, and that his work as a legislator would not sway that point. As to the second point, an exception was provided by First Judicial District Judge John Mitchell. Mitchell found that since that hearing just relied on legal arguments of the attorneys, Hart was not required to be there. He was however, able to call in by phone, which he refused to do.

Though the appeal has been filed with the Supreme Court, procedure determines that a ruling would not come until at least April 2012.

South Carolina Separation of powers reaffirmed

This week a divided South Carolina Supreme Court ruled that Governor Nikki Haley lacks the authority to order lawmakers back to work. Haley was adamant that the South Carolina Senate return to pass four resolutions that she deems integral. Senator Glenn McConnell filed the lawsuit on Monday. That day, Justices Jean Hoefer Toal, Donald Beatty and Kaye Hearn found that the governor's meddling with the General Assembly's calendar would violate the separation of powers. The full ruling can be found here.

The resolutions at the heart of the lawsuit have already been passed in the House and now will not be reconsidered until the Senate reconvenes. They would:

• Create a Department of Administration to help oversee state government;

• Merge the Department of Probate, Parole and Pardon Services with the Department of Corrections;

• Give the governor authority to appoint the State Superintendent of Education; and

• Authorize the governor and lieutenant governor to run on the same ticket, like the national presidential election.

Oklahoma Budget lawsuit goes to Supreme Court

Like we discussed last week in this column about Nevada, Oklahoma's budget is the subject of a lawsuit. Also like Nevada, the government is accused of taking funds earmarked for one project and moving it to fulfill budget obligations. In Oklahoma, the budget calls for allocating $100 million meant for the Department of Transportation instead to the general fund for the purpose of maintaining ten state agencies. This move would allow lawmakers to balance the 2012 budget. The lawsuit was filed by Jerry Fent, an attorney in Oklahoma City, who has sued the state over financing issues in the past.

Because the budget is designed to take effect July 1, Fent asked that the Oklahoma Supreme Court expedite the process. A hearing on the matter will take place on June 21 with a referee of the court. If the court finds in favor of Fent, the legislature and governor's office will be forced to alleviate a $100 million budget gap. Lawmakers interviewed are confident that they acted within the constitutional bounds of a budget and that the court will find in their favor.

Wyoming Ruling allows same-sex divorce

The Wyoming Supreme Court this week reversed an Eighth District Court decision. The high court found that courts in the state are authorized to allow same-sex divorces, though the unions are not performed there. The opinion was written by Michael Golden and found, "...recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages."

As to be expected, members representing both sides of the marriage equality issue searched the ruling for a meaning favorable to their cause. The odd part is that both sides appreciated the decision. A member of Wyoming Equality referred to it as a baby step in the right direction, while the president of WyWatch saw in the court's ruling the sought after definition of marriage. Golden's carefully worded footnote seems to have been overlooked by these groups. It said, "Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day."

Arizona Wildfires spur emergency measures

Wildfires in Arizona have Supreme Court Chief Justice Rebecca White Berch granting emergency powers to court officials in Apache and Greenelee counties. The authority allows officials to "...take any action concerning court operations that the circumstances require." One protective aspect of this is that now judges are able to enforce mandatory evacuations of residents.

See also

• Supreme Weekly: Vacancies and cases
• Judgepedia's Supreme Weekly: The States