South Dakota State of the Judiciary – CSI South Dakota?!?

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Through an unnumbered report adopted by both the House and Senate, the South Dakota legislature met in joint session on Wednesday for the purposes of hearing the State of the Judiciary Address of Chief Justice David Gilbertson.

Highlights of the Chief Justice’s speech (full text here) included:

Technology Overhaul

We need our judges and employees to be able to maintain adequate contact with each other, our central judicial administration in Pierre, and other state agencies. Some software programs we currently use date from the early 1980’s and can no longer reliably be maintained. At the end of the implementation period in 2015, all UJS programs should be up-to-date and electronic filing a reality.

Cameras in Trial Courts

The Supreme Court has the matter under active consideration using the committee’s report and public input as a guide.


The issue of governmental services provided to those not fluent in English is one of intense discussion across our nation. The courts are constitutionally mandated to allow an accused to present an adequate defense to a criminal charge. How do you defend what you cannot understand?

Drug Courts

Our efforts to promote the breaking of the cycle of addiction and criminal activity continue…We are very pleased with the positive results the programs are achieving.

Court Protection of Seniors

This issue is quickly becoming a national priority and South Dakota should definitely become more aggressive in its protection of its senior citizens. This is a problem the judiciary as well as others need to address. There have been, however, no substantive moves to do so.

The Vanishing Attorney in Rural Areas

Despite this unemployment, the availability of attorneys in rural and reservation areas continues to decline. We face the very real possibility of whole sections of this state being without access to legal services.

Access to the Courts by the Underprivileged

We have an increasing number of our citizens who cannot afford to hire an attorney even if one is available in their area. Yet these citizens need and deserve access to our courts. We have worked with the Access to Justice Program of the State Bar to encourage attorneys to provide free legal services to those who need them.

Juvenile Concerns

While juvenile probation increased in 2008–2009 in this state by 20% and adult probation by 14%, funds were not available to increase the number of qualified court services officers to supervise them.

Courthouse Security and Improvements

Another area of concern is a lack of security at many of our courthouses. While several have adequate security, many others do not.

CSI: South Dakota

Increasingly trials involve the use of scientific principles. It is popularized in the media by television shows such as “CSI: Miami.” Those of us in the judiciary, who avoided as many science classes as possible while completing our education, are now faced with the task of determining what evidence and witnesses are qualified to assist a jury by testifying on scientific methods.

The UJS Budget

Returning to the economic situation for a moment, last year the UJS assisted state government in balancing its budget by cutting the UJS budget…We have obligations which must be met no matter what the fiscal climate. We are mandated to promptly provide hearings after arrest and speedy trials to those who stand accused of crimes. The same demand for prompt hearings also applies to civil proceedings such as domestic protection orders…I do come today offering some judicial bargains. We have proven that drug courts save taxpayers money over other alternatives while getting long term goals accomplished. Drug courts in this nation have a success rate of approximately 75%…Perhaps one of the biggest bargains in state government is probation. Probation for first time offenders costs $3.00 per day compared to the cost of incarceration which is $63.69 per day.

Sometimes in the pile of balance sheets and income projections I fear we lose track of the bottom line. To me it is not a dollar figure but the effect of that dollar figure. If the Unified Judicial System were to sustain substantial financial cuts, those cuts do not simply go away. The costs are merely transferred to others including law enforcement, schools, counties, cities, the Departments of Social Services and Corrections, the churches, and the private sector.

Indiana’s Chief Justice gives his twenty-fourth State of the Judiciary address

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Pursuant to HCR 1 of 2011 Chief Justice Randall Shepard presented the Indiana State of the Judiciary earlier today to a joint session of the legislature, his twenty-fourth such speech. As noted in HCR 1, Chief Justice Shepard’s address is one of the only State of the Judiciary speeches in the nation to be constitutionally based (Art. 7, Sec 3.)

The Chief Justice shall have prepared and submit to the General Assembly regular reports on the condition of the courts and such other reports as may be requested.

Highlights of the Chief Justice’s speech (full text here) included:

The Mortgage Foreclosure Crisis

The first is a genuine crisis on which all three branches of Indiana government have worked:  mass foreclosures.  Foreclosure filings were even higher last year than in 2009.  While Indiana may no longer be near the top of the national list, that’s little comfort to the 43,000 new families facing loss of their homes. You recently passed legislation giving every homeowner the right to a settlement conference and the chance to negotiate for a modified loan.

The Indiana Foreclosure Prevention Network led by Lieutenant Governor Skillman, the lenders, Attorney General Zoeller, the Housing and Community Development Authority, and our Division of State Court Administration have been perfecting techniques to maximize the possibility of success.  We now use these techniques in counties that have 60 percent of the foreclosures and we’ll cover the rest of the state by year’s end.  We do it all without any claim on the state’s General Fund because you’ve authorized a user’s fee on foreclosure case.s

The Smartest Sentencing Possible

Are we capable of devising a new, more reliable tool to help sort out who needs to go to prison and who probably does not?  The answer’s been yes, and last Monday a new generation risk assessment became mandatory in every criminal court and delinquency court.  We have trained and tested 2300 probation and corrections officers, drug and alcohol staff, and judges in using it.

Tackling Technology

If there’s a field where Indiana’s courts have proven themselves capable of identifying an opportunity or a problem, devising a plan to address it and executing on the plan, it is technology.

You’ll know that at your direction, every county now uses a system built by our Judicial Technology and Automation Committee (called “JTAC”) to notify law enforcement immediately when a court enters a protective order on behalf of victims of domestic violence… At your direction, JTAC has created an electronic system for notifying law enforcement when someone is adjudicated mentally ill.  Last week alone, names of 39 people adjudicated mentally ill were transmitted through the FBI so that police and gun dealers could do their part in keeping firearms out of the hands of the mentally ill. We collaborated with the Department of Revenue to build a system for transmitting tax warrants directly to local courts…All of these achievements are the result of collaboration between the judiciary and agencies like the Indiana Office of Technology, the BMV, the Department of Revenue, the Criminal Justice Institute, DCS and the State Police.  None of these could have been accomplished by the judiciary alone or by anybody else alone.

Does this matter to citizens?  If you build it, they will come. Rather than driving to the courthouse or hanging on the phone, our constituents were seeking court information this morning at the rate of more than 3400 an hour.  I’m proud that Indiana’s courts are creating a 21st Century system.

Plain English Jury Instructions

People come to the courthouse by the tens of thousands to make possible that jewel of the Bill of Rights, trial by jury.  During those trials, lawyers and judges explain the law that applies to the case jurors are being asked to decide.  Too often, we have talked to jurors about this in legalese. Committed to doing better, the Indiana Judges Association began work on what we decided to call “Plain English Jury Instructions.”  The drafting committee, led by Judges John Pera of Lake County and Carl Heldt of Evansville, and an English teacher, spent three years revising the traditional instructions. The new instructions were issued during the fall.

How Good is What We’re Doing?

In short, Indiana’s judiciary is one that keeps its feet planted firmly on Hoosier soil while keeping its eyes on the horizon.  They are men and women of high ambition who are capable of confronting a problem, devising a plan, and executing on the plan.

Why Does This Matter?

Whether we can build a better system of justice matters first and foremost to the individual citizens who come to court as part of the two million cases we hear every year.  Our first duty is give them a full and fair hearing. But whether we run a respectable court system also matters for people who have never seen the inside of a courtroom because a reliable court system is part and parcel of a decent government and a crucial element of a healthy and productive economy

Despite being under threat of impeachment, Iowa Chief Justice gives State of the Judiciary

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Despite active efforts by members of the Iowa House impeach him, Chief Justice Mark Cady presented the State of the Judiciary earlier today to a joint convention of the legislature pursuant to a resolution (HCR 3 of 2011) passed by both chambers. HCR 3 noted that the Chief Justice’s report is statutorily based. Iowa Code 602.1207 provides:

The chief justice shall communicate the condition of the judicial branch by message to each general assembly, and may recommend matters the chief justice deems appropriate.

Highlights of the Chief Justice’s speech (full text here) included:

The story of our ability to deliver justice to Iowans over the decades—the story of our people—shows our job will be done regardless of the cards we are dealt. But, there is no doubt our mission, more and more, is becoming harder and harder to achieve. I too fear, as Kim Glock does, that the deep cuts in our resources are beginning to cause damage to our system of justice. Let me explain beginning with what I observe to be a decline in access to justice.

Access to Justice
Iowans cannot have the hope of justice without having access to justice. The grim reality is that more and more Iowans with legal problems are forced to wait too long for their day in court. These problems are troublesome to litigants and shake people’s confidence in our government. These problems result from a decade of fiscal austerity coupled with Iowans’ growing demands for court services…Today, Iowa’s court system operates with a smaller workforce than it had in 1987. In contrast, over the same period, the total number of legal actions brought by Iowans and Iowa businesses has nearly doubled. In short, Iowa’s courts are overrun with work, and Iowans are paying the price with reduced access to justice.

EDMS and Civil Justice Reform
We are testing a system for electronic filing and retrieval of documents. This system, which we call EDMS, expands access to justice beyond the courthouse walls. It enables litigants, lawyers, and others to file and access court records online, at anytime, night and day. It saves Iowans the cost and inconvenience of traveling to the courthouse to conduct their business. It gives judges access to records as soon as they are filed. If everything goes as planned and we have sufficient resources to move ahead, we should have EDMS fully implemented in five or six years.

Reasons to Bolster Court Funding
The recession has placed additional demands on our courts. In the past three years, mortgage foreclosure cases filed in Iowa have increased 17%, debt collection cases have increased 15%, child-in-need-of-assistance cases have increased 23%, and adult civil commitment cases have increased 19%. These legal actions may have a life-altering effect on the Iowans involved. This is not the time to give them ration cards for justice…We appreciate the continued need for all of government, including the judicial branch, to “share the pain.” However, the courts are already stretched painfully thin. I hope we can all agree that Iowans deserve more access to justice than they have now. Our fiscal year 2012 budget request reflects a modest three-year plan to improve Iowans’ access to justice. We ask you to give it serious consideration.

When the Iowa Supreme Court decided the Varnum v. Brien case on April 3, 2009, we understood it would receive great attention and be subject to much scrutiny. We worked hard to author a written decision to fully explain our reasoning to all Iowans, and we understand how Iowans could reach differing opinions about this decision…First, I hope to help us move forward by addressing the concerns some Iowans have about our system for selecting judges.

Merit Selection Fosters Fair and Impartial Courts

Importantly, the Iowa Constitution requires that all commission members be chosen “without regard to political affiliation.” Likewise, the law specifically requires the commissioners to choose nominees “without regard to political affiliation.”

Don Decker, a Ft. Dodge businessman and long-time Republican, who served on the state judicial nominating commission in the mid-1990s, recently told me that, when it came to selecting a slate of nominees for a judicial position, he “rooted for the home team” but always voted for the most qualified applicants regardless of their party affiliation. This honest assessment captures the reason our process has worked so well for so long.

Building Public Confidence in Commissions: Enhancements
In addition to opening interviews to the public, we recommend that the state and district nominating commissions: adopt uniform rules of procedure, adopt a code of ethics, and adopt procedures for the release of more information to the public.

Principle #1: Courts Serve the People by Serving the Rule of Law
The will of the people followed by courts is the will expressed in our law as constrained by the written principles in the constitution. If this were any other way, “why have a constitution?”…Chief Justice William Rehnquist called the independence that allows judges to serve the law “the crown jewel of our system of justice.” I hope we can go forward with the same understanding.

Principle #2: Upholding the Constitution is the Most Important Role of Courts
Upholding the constitution is the most important function of courts. The duty of courts to review the constitutionality of laws is known as judicial review and is one of our most basic responsibilities.

In 1849, the Iowa Supreme Court issued its first decision that protected the constitutional rights of an Iowan by invalidating a statute enacted by the legislature. In this case, the court stated it was “a settled principle” in this country that courts have the power, “as a matter of right and duty, to declare every act of the legislature made in violation of the constitution, or any provision of it, null and void.” This is the very duty the court exercised in the Varnum decision.

As far back as 1883, the Iowa Supreme Court made it clear that even unpopular rulings could not simply be suspended in time to await any future legislative action. In its decision, the court said that, if courts could be coerced by popular majorities to disregard the constitution any point in time, “constitutions would become mere ropes of sand and there would be an end of . . . constitutional freedom.”

Promoting Understanding about the Work of Courts
Lastly, it is my hope that we can move forward with a shared commitment for a greater understanding of our courts and their important role in maintaining our democracy. This understanding can best be achieved by making our courts even more transparent.

Up until a year ago, the [Iowa Courts] website also provided a video cast of supreme court proceedings, but this procedure was a victim of the budget cuts. Nevertheless, we can do more to open the work of the courts to the people. So today I’m pleased to announce the Iowa Supreme Court plans to hold some of its oral arguments in communities across Iowa. This will allow interested citizens an opportunity to watch the court proceedings, and the proceedings can be used as a teaching tool for our youth.

Conclusion: Let Us Go Forward with a New Understanding
So, let us go forward with a new understanding—a new understanding of the courts and a new understanding of the direction that will lead to a better and brighter future, for all Iowans…So, let me end by asking all branches of government, and all people, to go forward, together, to transform the promise given to us into our proud legacy. The story that is not yet told is our story. Let us go forward to write our untold story with a greater understanding of ourselves, and all Iowans.

FL: ConAmend to strip S.C. of rule making power on death penalty cases withdrawn

The Florida Supreme Court’s power to set rules of practice and procedure are among the broadest in the nation, as well as among the hardest to be overridden by the legislature. The Judiciary Article of the state constitution holds:

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought…Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Two newly elected members of Florida’s House, however, attempted to transfer the rule making power as to death penalty cases directly to the legislature. HJR 73 of 2011 (as filed on December 16, 2010) would have added a section to the Legislative Article that read:

Notwithstanding any other provision of this constitution, the Legislature by general law shall adopt rules governing time limits, procedures, and processes relating to all death penalty cases and related proceedings in all courts.

The state bar’s Board of Governors on December 10 adopted a legislative position against any effort to alter the Supreme Court’s rule making power:

Opposes amendment of Article V, Section 2(a) of the Florida Constitution that would alter the Supreme Court’s authority to adopt rules for practice and procedure in all courts, or that would change the manner by which such rules may be repealed by the Legislature.

On December 30, precisely two weeks after the Constitutional Amendment was proposed, it was withdrawn by its sponsors.

Montana is considering shrinking its Supreme Court

The last several years have seen numerous efforts to change the size of state supreme courts. Some had the air of court packing efforts, while others (such as Michigan in 2008) were expressly for the purpose of removing justices that some parties were dissatisfied with. The attempted changes were the focus of Issue 4:14 last year.

This year Montana House member Derek Skees has already requested a draft bill (D. 1609) which would reduce that state’s Supreme court from 7 to 5 justices by removing seats number 5 and 6 (Seats are designated chief justice, 1, 2, 3, 4, 5 and 6). Those seats, currently held by Justices James Nelson and Brian Morris, were created in 1979 and are up for reelection 2012.

The bill remains (as of the writing) in draft form only.

Week Ahead: 1-10-11

Legislatures Coming Into Session

Indiana 1/10/2011
Idaho 1/10/2011
Kansas 1/10/2011
Arizona 1/10/2011
Arkansas 1/10/2011
Georgia 1/10/2011
Iowa 1/10/2011
Oregon 1/10/2011
Washington 1/10/2011
Delaware 1/11/2011
South Carolina 1/11/2011
South Dakota 1/11/2011
Tennessee 1/11/2011
Texas 1/11/2011
Wisconsin 1/11/2011
Wyoming 1/11/2011
Colorado 1/12/2011
Illinois 1/12/2011
Maryland 1/12/2011
Michigan 1/12/2011
New Jersey 1/12/2011
Virginia 1/12/2011
West Virginia 1/12/2011

IA: Judicial overhaul bill, vetoed in 2010, resubmitted in 2011

With ongoing efforts in Iowa to  impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature

In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:

  • Filling vacancies – Grants authority to the chief justice to delay the nomination of a supreme court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons up to one year. Grants authority to delay nomination for magistrates with certain limits.
  • Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the supreme court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the supreme court.
  • Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.
  • Residence – Requires district associate judge reside *in the judicial election district* in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.

Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:

  1. a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
  2. the sections allowing the Chief Justice to delay the appointment of judges for up to one year.

In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however  the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.

  • Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)

It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone