Jury Nullification in New Hampshire, Massachusetts, Oregon, and New York

This year, four states introduced measures that addressed the issue of jury nullification. Even though all measures failed, it still reveals a greater level of attention towards the power of juries to nullify than it has historically received. Although two of these measures have been reviewed in previous posts, below is a collection and summary of the measures addressing jury nullification in the state legislatures this session.

New Hampshire

Over the past decade there have been efforts in New Hampshire to codify the right of juries to nullify the law, and to require that juries be informed of that right. These efforts culminated in the enactment of HB 146 in 2012, which was viewed by some proponents of jury nullification instructions as a victory, but by others as too watered down to be meaningful; and so efforts have continued.

Two bills were introduced in the New Hampshire House of Representative this session. Both HB 246 and HB 470 were responses to a New Hampshire Supreme Court ruling in October 2014, discussed in a previous post. This ruling significantly narrowed the scope of RSA 519:23-a, the statute created by HB 146, by declaring that it does not provide a right to jury nullification instructions. RSA 519:23-a, reads:

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Both measures attempted to circumvent that ruling by amending the statute to more explicitly provide for jury nullification instructions.

HB 246 was discussed in the previous post mentioned above, and would have added an additional provision to RSA 519:23-a that the refusal by a judge to administer jury nullification instructions be considered maladministration, an impeachable offense. This bill was killed by the House Judiciary Committee in February.

However, this was not the only jury nullification measure introduced in the New Hampshire House of Representatives this session. Another bill, HB 470 , proposed to repeal RSA 519:23-a and replace it with language that would make clear the jury’s right to nullify the law and the defendants right to inform them of this power. Specifically, the language of HB 470 read:

In all court proceedings, the court shall instruct the jury of its inherent right to judge the law as well as the fact and to nullify any and all actions it finds to be unjust. The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

HB 470 was killed by the House Judiciary Committee in late February. The language of this bill is almost identical to the introduced version of HB 146 of the 2012 session, the enacted version of which created RSA 519:23-a. However, HB 146 was amended by both the House and the Senate, and by the time it was enacted no longer included any explicit reference to jury nullification.

HB 246 and HB 470 are not the first bills since the enactment of HB 146 aimed at expanding the provisions of that bill. In 2014, the House considered HB 1452 (discussed here) which proposed to replace the language of RSA 519:23-a and more explicitly require that the jury be informed of the concept of jury nullification. The measure also proposed that a mistrial be declared if the court failed to provide such instructions. This bill was killed by the House Judiciary Committee. In 2012, the same session in which HB 146 was passed, two other bills, HB 1247 and HB 1397, were also considered that included more explicit provisions for jury nullification instructions. Both were killed by the House Judiciary Committee.

Massachusetts

Although with a much less contentious history, a measure was introduced in the Massachusetts House of Representative that required judges to permit the defense to inform the jury of their right to nullify the law. The language of this bill was very similar to HB 470 of New Hampshire. HB 1544 read:

In all criminal proceedings, the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to the facts by providing a specific nullification instruction to the jury. The instruction shall further inform jurors of their right to refuse to enforce unjust or unjustly applied laws.

Although referred to the Joint Committee on the Judiciary, no action was ever taken. This legislation was the first attempt to establish jury nullification instructions in Massachusetts in recent years.

Oregon

HB 3381 was introduced in the Oregon House of Representatives. This bill was also discussed in a previous post. HB 3381 proposed to amend ORS 136.325, which governs what information juries may and may not be given in criminal cases requiring mandatory minimum sentences and/or the adult prosecution of juveniles. The jury nullification instructions would have read:

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty.

The bill was referred to the House Judiciary Committee, but no further action was taken. This was the first attempt to establish jury nullification instructions in Oregon in recent years.

New York

New York also introduced legislation regarding jury nullification. However, rather than attempting to inform juries of their ability to nullify, as the other measures reviewed in this post did, this measure attempted to restrict the nullification power of juries by informing them of a reason for which they may not nullify the law. Introduced as AB 6381 in the Assembly, and SB 1724 in the Senate, this bill proposed a requirement that judges deliver certain instructions to juries in criminal proceedings, including the instruction that:

It is against public policy for a defendant to be acquitted of a charged offense or convicted of a lesser included offense based upon an appeal to the societal bias that may be possessed by members of a jury.

Although introduced in both the Assembly and the Senate and referred to their Committees on Codes, no action was ever taken on the bill. This legislation was the first attempt to address jury nullification instructions in New York in recent years.

Changes to mandatory judicial retirement ages: Virginia plan now law; Oregon voters will decide in November 2016 on repeal; Massachusetts proposal rejected

Since April’s update on the subject of mandatory judicial retirement age changes there’s been several developments.

Alabama

While the state does not have a retirement age per se, it does prohibit judges from seeking election or being appointed to fill a vacancy if they are above the age of 70. Efforts to raise this to 72 were approved in the House and appeared to have Senate backing before time ran out in the session. Critics argued the constitutional amendment was specifically designed to allow 68 year old Chief Justice Roy Moore to seek one more term in office.

Louisiana

Despite voters in 2014 rejecting a constitutional amendment repealing the mandatory retirement age for most judges in the state, at least some judges will be able to avoid being forced out at 70. Under HB 350 as signed into law, justices of the peace in office as of August 15, 2006 can continue to run for re-election over the age of 70.

Massachusetts

A plan to increase the mandatory retirement age for judges in that state from 70 to 76 was rejected in committee in late April.

North Carolina

Several efforts to increase the mandatory retirement age for judges met with approval in the House but were not taken up by the Senate prior to adjournment. Those bills could come back up in the 2016 session.

Oregon

Voters will get to decide in 2016 whether or not to repeal the state’s mandatory judicial retirement age. Under SJR 4 as approved by the legislature in late June the constitutional provision allowing the legislature to set a retirement age would be stricken.

Virginia

Virginia appellate judges as of today (July 1), will see their mandatory judicial retirement age increase from 70 to 73 under a bill signed into law this spring. However, only those trial judges elected or appointed after July 1, 2015 would get the increase to 73; all other trial judges remain at the mandatory retirement age of 70. Virginia Governor Terry McAuliffe had asked the legislature to amend the bill (HB 1984) to apply the increase to all judges, and the state’s Senate was willing to do so, however the House insisted on the split treatment.

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North Carolina: retention election system advances out of Senate committee, but limited to Supreme Court

Plans to change the way North Carolina’s Supreme Court justices are elected appear to be closing in on an elect/appoint then retention race system. HB 222 as first discussed here would create a two-step process

  1. Justices of the Supreme Court would be elected or appointed to fill an interim vacancy. Currently elections are nonpartisan, although there has been a push approved by the House to make these races partisan again.
  2. The justice would then be subject to a yes/no retention election and required to receive a simple majority (50% + 1) to remain in office.

Similar but not identical systems exist in Illinois and Pennsylvania: Illinois justices must recent a 60% yes vote while Pennsylvania justices run initially in partisan races.

A key difference between the NC House approved version of HB 222 and what is coming out of the Senate appears to be what judges are covered; the House also included Court of Appeals judges while the Senate wants the Supreme Court only.

News reports indicate the Senate version of HB 222 could be voted on as early as today (5/28).

Indiana: the beginning of the end of non-attorney judges in the state

Like most states, Indiana had for decades allowed non-attorneys to serve as judges in at least some courts, previously in the (now disbanded) Justice of the Peace courts and most recently in Town and City Courts. However, the Indiana legislature earlier this month approved, and the state’s governor has now signed, what is the beginning of the end of non-attorney judges in the state.

Under current law adopted in 1998 (IC 33-35-5-7) only judges in 10 towns and cities must be an attorney. Under HB 1110 all new Town and City judges elected in the future must be an attorney. As has occurred when similar efforts were made in other states such as Georgia Municipal Courts in 2011 there is a grandparent clause: all non-attorney Town and City judges currently in office can remain and even be re-elected, but those who follow must be lawyers.

Oklahoma: Governor vetoes bill to end practice of tying salaries of executive branch officials to judges; Senate unanimously overrides

An Oklahoma bill discussed here and here to eliminate the decade’s old practice of linking salaries for executive branch officials to that of judges was vetoed by that state’s governor and promptly overridden by a unanimous Senate.

Under SB 549 the salaries of executive branch officials would have been set at specified amounts (e.g. “The Governor shall receive a salary of One Hundred Forty-seven Thousand Dollars ($147,000.00)) rather than linked (“The Governor shall receive a salary equal to the salary received by the Chief Justice of the Oklahoma Supreme Court…”) Additional increases would come from a new Board on Executive Compensation.

In her May 8 veto message Governor Mary Fallin objected to the practice of specifying salaries in statute.

Recent compensation reform initiatives have discarded the practice of codifying state employee salaries for good reason: fixing salary in statute tends to calcify salaries without regard to such pertinent considerations as inflation; the current fiscal health of the state; and most importantly, each particular employee’s performance.

The veto on SB 549 was sent back to the Senate where it was promptly overridden on May 15on a 36-0 vote. The override now goes to the House which had previously approved the bill 91-1.

Kansas: upcoming yes/no floor vote calls for judiciary’s entire budget to be eliminated if courts rule against 2014 law

Yesterday a Kansas House/Senate conference committee agreed on a plan to tie the judiciary’s entire funding package to its eventual decision in a case currently pending in the state’s trial courts.

As previously discussed here, here, and here, this process started in 2014 when HB 2338 as amended gave $2 million to the state’s judiciary for FY 2015 but with a “non-severability” provision: the funds would only come available on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power. Article 3 of the Kansas Constitution gives the Supreme Court, “general administrative authority over all courts in this state.”

Rather than just ending the 2014 $2 million supplemental, this year’s plan as approved by the conference committee yesterday would completely de-fund the judiciary if the courts rule against any provision in HB 2338, in particular the provision currently contested in a lawsuit filed in February transferring the ability to name chief judges from the Supreme Court down to the District Courts and Court of Appeals.

Local news reports indicate that because the bill is coming out of a conference committee there will be no opportunity to amend out the non-severability provision, meaning legislators will have to vote yes or no on the entire appropriations bill unchanged.

Anticipating possible government shutdown, Minnesota legislators want to block state courts from ordering funding of “essential services”

In a repeat of what occurred in 2005 and 2011, Minnesota’s government may be facing a shutdown. When those shutdowns occurred, the state’s judiciary ordered “essential services” to remain funded. However as in 2011 members of the legislature anticipating court-ordered “essential” spending are moving to prevent the courts from issuing such orders.

Prior to the 2011 shutdown the legislature considered preempting any court orders by stripping the courts of jurisdiction to hear any “essential services” cases “except for funding for public safety” (HB 1753 of 2011). Now the same language has made its way into SB 2146 of 2015. Taking this court stripping effort an additional step further is SB 2144 of 2015 which would prevent state courts from ordering any funding whatsoever.

Both bills are currently pending in the Senate State & Local Government Committee.