Three state legislatures consider programs to require courts notify defendants by text of upcoming court hearings

Bills in three states have been filed in the last month to require state courts (in particular the various administrative offices of the courts) to develop text reminder system.

Colorado SB 36 appears to be a revised version of HB 1081 of 2018.

Under the 2019 bill, the state court administrator would have to roll out a text reminder program in four of the state’s judicial districts by January 1, 2020. “In administering the program, the state court administrator shall prioritize the use of text messages to remind criminal defendants with the capacity to receive text messages, unless and until a more effective technological means of reminding defendants becomes available.”

It is not clear from the text whether defendants would opt-in or opt-out of such text messages.

Tennessee’s legislature is considering legislation (SB 740 and HB 1104) that appears to be almost a cut-and-paste of Colorado’s HB 1081 of 2018 and/or SB 36 of 2019.

The third state (Massachusetts) is placing its proposed text messaging system for courts as part of a larger omnibus pretrial release package (HB 66) which is itself a repeat of a 2018 proposal (HB 4903).

In this 2019 iteration, there is an explicit opt-out provision and confidentiality provision (“such information may not be used in any proceeding”) but these have exceptions:

1) A judge can order a defendant to participate in the text message system as part of a pre-trial release order.

2) “The fact that a defendant did or did not participate in this system shall be marked on the docket and may be used in a proceeding if otherwise admissible.”

Montana: House committee approves bill to require judges recuse due to campaign contributions; using PACs to direct funds to judges could also require recusal

The Montana House State Administration Committee yesterday approved a bill to require judges recuse from cases due to campaign contributions.

Under HB 157 as approved a judge may not sit or act in an action or proceeding when the judge learns by means of a timely motion that the judge has benefitted from or received from a person in the action or proceeding or the person’s employee or attorney an aggregate contribution that exceeds the standard contribution limit. “Aggregate contribution” includes both direct, reportable contributions made to a judicial candidate AND contributions made independently to or through a person or political committee when the contribution can be shown to benefit the election of the judicial candidate.

Wyoming: plan to subject judicial nominating commissioners to senate confirmation appears dead

A plan to require Wyoming judicial nominating commission members to be subject to senate confirmation appears to have died.

Wyoming’s top courts use a merit/commission based system of appointment. The commission membership is set by the state’s constitution as

-the chief justice (or designee)
-three bar members elected by the state bar
-three non-bar members chosen by the governor

Nowhere in the constitutional provision is the senate given a role. Nevertheless, this year SF 141 was filed to provide that the bar members and non-bar members were to be confirmed by the senate.

While the bill was originally directed to the Senate Judiciary committee it was later diverted to the Senate Transportation committee. It was approved by that committee and sent to the full Senate which appears to have passed the bill by and not sent it on to the House before the legislative deadline.

The debate over partisan vs. nonpartisan judicial elections continues: now an Arkansas legislator wants an end to nonpartisan races and a return to partisan ones

This is proving to be an unprecedented year in terms of the number of efforts to either switch from partisan to nonpartisan judicial elections or vice versa. See here and here. Now we can add Arkansas to the list.

In 2000, Arkansas voters approved Amendment 80, which effectively rewrote the state’s judiciary article. A key provision (Sections 17 & 18) in Amendment 80 required all judicial race to be nonpartisan and gave an option to eventually switch from nonpartisan election to merit/commission based selection.

HJR 1006
would strike the word “nonpartisan” in Sections 17 & 18 and replace with “partisan”.

The move comes amid controversy over the state’s judiciary. In the last session, the legislature sent to the ballot a proposal (Issue 1, discussed here) that would have changed tort laws in the state and given the legislature power over court rulemaking (something Amendment 80 gave exclusively to the state supreme court). The supreme court removed the proposal from the ballot, arguing it violated provisions of the state’s constitution regarding what the legislature could and could not put before voters. Almost immediately thereafter efforts were made to stymie the judiciary’s budget, with legislators tweeting that “there will be consequences, starting with [the court’s] budget” for the decision.

West Virginia: legislature moves to withhold judicial retirement benefits until state supreme court overturns a ruling

Last year’s attempt by the West Virginia legislature to impeach and remove from office several members of the state’s supreme court effectively ended when the state supreme court ruled the impeachment proceedings were unconstitutional. (State ex. rel. Workman v. Carmichael) Now members of the legislature have moved to withhold judicial retirement benefits unless that decision is overturned.

Hat tip to WV Clean Elections for the news article

Under SB 398 as amended yesterday by the House Judiciary committee, the payments for retirement benefits would cease unless Workman v. Carmichael is overturned.

Until State ex. rel. Workman v. Carmichael is overturned by the Court, and the Court fully recognizes that it has no legitimate constitutional authority over the powers of impeachment that solely belong to the Legislature, even in the case of limited judicial review, then the Legislature shall not fund the Judges’ Retirement System as set forth in this article.

The lead proponent argues that the move is an effort to check the courts. Opponents claim it violates the separation of power.

SB 398 now goes to the House Finance Committee.

Florida: bills protect information of judicial assistants & their families from public disclosure

Many states, concerned over the threats made to judges/judicial officers, provide protections for the personal information and prohibit public records laws from being used to obtain that information. Court employees, however, are not always covered by such statutes. Florida is considering extending such protections to “judicial assistants” in the state.

HB 635 / SB 746 as filed cites concerns that the information related to these current and former assistants can be used to target them for false liens and other acts of revenge. It would protect from public disclosure information related to them and their families in the same way that similar information regarding judges and their families are protected.

The bills have been filed but neither have been assigned to a committee.

Who decides who can carry a gun into a courtroom? And what is a courtroom, exactly? Arkansas and Mississippi debating the issues.

As I’ve noted over the years, there’s been more and more of an effort to expand where people can carry firearms into courthouses, but the traditional (and in some states constitutional) boundary is the courtroom door. But what is a “courtroom”? And what about law enforcement?

What is a courtroom?
In Mississippi this issue came up most recently as the result of litigation. The state legislature had previously enacted a law to allow for courthouse carry for those with enhanced licenses, but specifically exempted courtrooms. Several Mississippi judges attempted to create by administrative order a gunfree zone that encompassed portions of their courthouse. In June of last year the Mississippi Supreme Court struck down that policy (Ward v. Winston Colom) but did uphold the courtroom ban.

The debate did not stop there, however. Enter HB 1581, which would specifically defined “courthouse” and “courtroom” for purposes of the carrying statute, and provide that a “courtroom” includes “judges’ chambers, witness rooms and jury rooms. ” However, explicitly excluded from “courtroom” is ” hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding, the grassed areas, cultivated flower beds, sidewalks, parking lots, or other areas contained within the boundaries of the public land upon which the courthouse is located.”

HB 1581 was approved by the House Judiciary B committee on February 5.

Does law enforcement have a “right” to carry into a courtroom?

The other question is whether a judge could prohibit law enforcement from coming into a courtroom armed. When the New Hampshire legislature tried to force this issue in the 1970s, that state’s high court ruled against a statute that required judges let law enforcement come in armed (State v. LaFrance, 124 N.H. 171, 471 A.2d 340, 1983 N.H. LEXIS 377 (1983). The provision in RSA 490:4-a (“Notwithstanding any other rule, regulation or order to the contrary, law enforcement officers shall be permitted to wear firearms in any courtroom in the state.”) struck as unconstitutional. Violates the separation of powers doctrine provided by part 1, article 37 of the Constitution of New Hampshire.)

Mississippi law already provides “A law enforcement officer, as defined in Section 45-6-3, shall be authorized to carry weapons in courthouses in performance of his official duties” but what about courtroom carry? HB 1019 would have specifically put into law that the existing statute did not apply where the officer was “instructed by the judge of that court in that judge’s courtroom” to leave the weapon. The bill went nowhere in the House.

Arkansas is debating a similar courtroom-carry-by-law-enforcement bill. Arkansas law already contains a provision that law enforcement “is permitted to possess a handgun in the courtroom.” SB 197 as originally filed would have allowed for both on-duty and off-duty certified law enforcement to courtroom carry.

This was amended, however, with a proviso: an off-duty officer may not courtroom carry if he or she is “a party to or a witness in a civil or criminal matter unless the law provides otherwise.”

SB 197 is set for a hearing in the Arkansas Senate City, County, and Local Affairs Committee tomorrow (2/12).

Tennessee becomes latest state to consider ending partisan judicial races; incumbent judges would be guaranteed to have their name first on the ballot

Tennessee has joined a growing list of states considering an end to partisan judicial races.

Tennessee, like a great many states, does not just rely on 1 method of judicial selection. The state’s appellate courts are chosen in a quasi-federal system (governor appoints, House/Senate confirm, followed by retention elections). Trial courts are picked in any number of ways, including partisan election, nonpartisan, and appointment by local officials (such as in Municipal Courts).

For those courts/counties that use partisan judicial elections, HB 1494 / SB 1063 would end them in favor of nonpartisan judicial races. In those races, incumbents would have the right to have their name first on the ballot.

Several other bills have been introduced with a county-specific focus.
HB 1183 / SB 990 would focus on judicial races and require they be nonpartisan in Shelby and Davidson Counties along with local legislative races.

SB 411 has the same end (nonpartisan judicial and legislative races in Shelby and Davison) but with slightly different language that includes the incumbent-name-first aspect of HB 1494 / SB 1063.

Texas: bill would require state judges “rely on the plain meaning of the text of the United States Constitution and any applicable constitutional doctrine as understood by the framers of the constitution.”

A bill before the Texas House would direct the state’s judiciary to rely almost entirely on “the plain meaning of the text of the United States Constitution and any applicable constitutional doctrine as understood by the framers of the constitution.”

HB 1347 as filed, entitled the Texas Sovereignty Act, would provide that state courts in Texas could reference decisions of other courts interpreting the U.S. Constitution (such as the U.S. Supreme Court) but that Texas courts could not “solely on the decisions of other courts interpreting the United States Constitution.”

HB 1347 has been filed in the House but not yet assigned to committee.

Iowa: Legislative subcommittee moved to overhaul state’s judicial selection system, give governor and legislature power over nominating commissions

A plan to overhaul Iowa’s merit/commission system for the selection of judges cleared its first legislative hurdle this week.

Presently, Iowa’s merit selection commissions are made up of

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

HSB 110 and its Senate counterpart SSB 1101 would end the role of the bar and remove the judge as chair. Instead, the governor would effectively maintain his/her picks (but be required to name lawyers among those picks). The remaining seats would go to legislative leaders: speaker of the house, house minority leader, senate majority leader, and senate minority leader.

This is just the latest in a series of bills introduced in the last several years to dilute our outright eliminate the role of the state bar/members of the bar in judicial selection in the state and transfer those seats to the governor and/or legislature (see this from the 2017 iterations).

HSB 110 cleared a House Judiciary Committee on February 6. SSB 1101 remains in subcommittee