Alaska: bill allows legislature to declare judicial decisions impeachable “malfeasance”, removes judicial review; similar to 2016 Kansas Senate effort

A plan to allow for the impeachment of Alaska’s judges for their decisions has been filed in that state’s House in a move almost identical to one put forth in the Kansas Senate last year.

The Alaska Constitution provides that “all civil officers” are subject to impeachment, but fails to specify the reasons for impeachment such as high crimes, misdemeanors, malfeasance, etc.

All civil officers of the State are subject to impeachment by the legislature. Impeachment shall originate in the senate and must be approved by a two-thirds vote of its members. The motion for impeachment shall list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives.

Existing statutes define the reasons for impeachment of judges as “malfeasance or misfeasance in the performance of official duties.” (A.S. 22.05.120 for the Supreme Court; A.S. 22.07.075 for the Court of Appeals; A.S. 22.10.170 for the Superior Court).

HB 251 would amend the definition of “malfeasance” to include “exercising legislative power.” Moreover, HB 251 would prohibit any judicial review of the state legislature’s actions in this area (“the legislature’s judgment under this section is not subject to judicial review.”)

That language is similar to Kansas’ SB 439 of 2016 as amended, that provided Kansas judges, or more specifically those chosen via the state’s merit/commission system, would be subject to impeachment for “attempting to usurp the power of the legislative…branch of government.” That bill was approved 21-19 but never taken up in the House.

HB 251 has been filed in the House Community & Regional Affairs Committee.

Pennsylvania: bill making it a misdemeanor to audio/video record in or near a courtroom without judge’s permission clears committee unanimously

A bill that would make it a crime to make an audio or video recording in or around Pennsylvania courtrooms without a judge’s permission has cleared the House Judiciary Committee on a 26-1 vote.

Under HB 149

A person commits a misdemeanor of the second degree if the person in any manner and for any purpose uses or operates a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a hearing room, courtroom or the environs of a hearing room or courtroom without the approval of the court or presiding judicial officer or except as provided by rules of court…”environs” means the area immediately surrounding any entrance or exit.

The lead proponent notes that existing witness intimidation laws don’t cover such courtroom or near-courtroom recordings.

The 2015/2016 version of the bill (HB 1682) pass the House unanimously with a 200-0 vote, but the Senate never took it up.

HB 149 has been sent to the full House.

New Hampshire: Senate committee rejects specific language for judges to use for jury nullification; House had approved 170-160

Earlier this week the New Hampshire Senate Judiciary Committee voted 5-0 to reject HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here). The House had previously approved the bill on a 170-160 vote.

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

Alabama: 2nd hearing today on plan to require legislature approve of judicial disciplinary proceeding that would remove a judge from office

In September of 2016 Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017 is a constitutional amendment that would require 2/3rds legislative approval of Supreme Court decisions to remove judges from office. The move comes after the suspension from office of Chief Justice Roy Moore. During the hearing on the bill the lead proponent complained that in the state’s Judicial Inquiry Commission “We have popularly elected judges, and we have a small, unelected body that takes them out.” Opponents expressed concern over separation of powers issues.

SB 8 also ends the practice where a judge or justice is suspended from office upon filing of a complaint by the Judicial Inquiry Commission.

Florida: Senate approves bill to levy civil fines and remove from office judges who try to stop the carrying of guns into courthouses

A bill that would allow the state’s Governor to remove judges who try and stop courthouse carry has been approved by the Florida Senate.

SB 616 generally keeps the state’s current prohibition on courthouse carry, but makes three key changes.

First, it provides when a gun license holder approaches security or management personnel upon arrival at a courthouse, the license holder may temporarily surrender their weapon or firearm to the security or management personnel, who shall store the weapon or firearm in a locker, safe, or other secure location and return the weapon or firearm to the licensee when he or she is exiting the courthouse.

As the legislative analysis for the bill notes, not all courthouses have such security checkpoints (footnote 16).

Second, the bill defines “courthouse”

the term “courthouse” means a building in which trials and hearings are conducted on a regular basis. If a building is used primarily for purposes other than the conduct of hearings and trials and housing judicial chambers, the term includes only that portion of the building that is primarily used for hearings and trials and judicial chambers.

Finally, the bill warns that any judge who issues an administrative order or rule to alter this definition faces fines and removal from office by the Governor.

A local ordinance, administrative rule, administrative order, or regulation that is in conflict with the definition of the term “courthouse” in this subsection or the rights set forth under subparagraph (12)(a)4 is preempted to the Legislature under s. 790.33. The person, justice, judge, county, agency, municipality, district, or other entity that enacts or causes to be enforced a local ordinance, administrative rule, administrative order, or regulation that is preempted is subject to the penalties set forth in s. 790.33, including, but not limited to, civil fines and removal from office by the Governor.

SB 616 was approved 19-15 with 5 not voting by the full Senate on April 28 and is now on the House Special Order calendar.

Colorado: House amended bill still allows trial judges to rule on their own disqualification motions, but allows for interlocutory appeal

A plan to require trial judges in civil cases refer a motion to disqualify to another judge for determination has been heavily amended.

HB 1132 as introduced gave the judge who was the subject of such a disqualification motion two options:

  1. grant the motion (and have the chief judge assign a new judge) or
  2. certify the motion to the chief judge of the court for the chief judge to make the determination. If the targeted judge is the chief judge of the court, the chief judge must certify the motion to a chief judge of an “adjoining, like jurisdiction.”

HB 1132 as amended and approved by the House provides that the trial judge will continue to determine, and even reject, such a disqualification motion and must do so within 63 days in a signed, written order.

  1. If granted, the case is reassigned
  2. If denied, a petition for review of the motion to disqualify may be filed in a higher court as an interlocutory appeal (County Court to District Court, District Court to Court of Appeals). Such a petition “must be expedited on the reviewing court’s docket.”

HB 1132 as amended was approved 64-1 in the house on April 20 and is set for a hearing in the Senate Judiciary Committee on May 1.

State legislatures debating use of dogs in courtrooms to calm, assist witnesses; bills out of committee in several states, enacted in Idaho

I mentioned in 2016 that there’s been an increasing number of bills introduced to address the use of animals in court proceedings to calm and assist witnesses. The 2017 session has continued this trend. The bills often contend with two issues: who can have access to such animals (children only? others?) and in what kinds of cases can such an animal be used (criminal? any?)

Alabama HB 393 and SB 273 would permit at the judge’s discretion registered therapy dogs into courtrooms to assist any victim or witness “to reduce unnecessary emotional distress experience by a victim or witness and allow full and factual testimony.” The District Attorney would have to provide instructions on court protocol to the handler. The bills also deal with how to explain the presence of the dog to the jury and authorizes judges to use discretionary court funds to offset the costs for a registered handler for the therapy dog.

SB 273 was approved 7-0 by the Senate Health and Human Services Committee yesterday. HB 393 is in the House Public Safety and Homeland Security but has not yet come up for a hearing.

California AB 411 as amended focuses on 1) child witnesses in cases involving a serious or violation felony and 2) victims entitled under existing law to support persons. These individuals under the bill would be able to have access to a therapy or facility dog and defines these terms, subject to approval by a judge. The bill also deals with how to explain the presence of the dog to the jury.

AB 411 as amended was approved by the Assembly Committee on Public Safety on March 15 and is currently on the Assembly floor (3rd Reading Calendar).

Connecticut HB 6999 as filed would have authorized the use of therapy dogs for those under the age of 18 in criminal cases.

During testimony on the bill by the Connecticut Judicial Branch, it was noted that the state’s supreme court had recently ruled that judges already have the inherent authority to allow for a therapy dog for any witness, in any court proceeding, and that therefore the bill as filed might have the effect of limiting the court’s ability to make such accommodations.

HB 6999 as amended, instead provides the Judicial Branch shall maintain on its website a section providing information regarding the availability of an accommodation, granted at the court’s discretion, for the presence of a dog to provide comfort and support for a child under the age of eighteen during such child’s testimony in the criminal prosecution of an offense involving the alleged assault, abuse or sexual abuse of such child. it also directs that trial judges be trained on this issue.

HB 6999 as amended was approved by the Joint Committee on Children on March 2 and remains pending.

Florida HB 151 amends an existing law that allows the court to use service or therapy animals in proceedings involving a sexual offense to assist a child victim or witness or a sexual offense victim or witness.

As amended, HB 151

  1. Expands the list of proceedings in which support animals may be used to include any proceeding involving child abuse, abandonment, or neglect.
  2. Expands the categories of allowable animals to include a “facility dog”;
  3. Allows a court to set any conditions it finds just and appropriate when taking the testimony of a person who has an intellectual disability, including the use of a therapy animal or facility dog;
  4. Removes the requirement for evaluation and registration of an animal pursuant to national standards, and replaces it with a requirement that an animal be trained, evaluated, and certified according to industry standards; and
  5. Provides definitions for the terms “facility dog” and “therapy animal.”

HB 151 was approved by the full Senate yesterday and is on its way to the governor. The Senate’s similar bill (SB 416) addressed the same issues and was approved on committee, but was ultimately shelved in favor of HB 151.

Idaho SB 1089 as enacted provides when a child is summoned as a witness in any hearing in a noncriminal matter that involves the abuse, neglect or abandonment of the child, including any preliminary hearing, notwithstanding any other statutory provision, a facility dog shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony. The bill also defines what a “facility dog” is. SB 1089 was signed into law by the governor in March, with an effective date of July 1, 2017.

Maryland SB 77 amends a 2016 law (SB 1106) that created a pilot program for the use of both facility and therapy dogs with respect to child witnesses in criminal cases and limited the program to two counties (Anne Arundel and Harford). SB 77 would delete the word “criminal”, allowing for the use of such dogs in any case.

SB 77 was approved by the House on April 4 and is in back in the Senate pending transmission to the Governor.