A plan introduced earlier this year in the Maryland Senate could have effectively stripped judges in civil cases of the ability to deny many continuances.
SB 250, as introduced, provided that if all parties to a civil proceeding agreed to a continuance “a court shall continue” the proceeding.
Current law provides a continuance may be granted. And Maryland’s top court in December 2016 adopted a rule (Rule 16-804) regarding continuances.
SB 250 came up for a hearing in the Senate Judicial Proceedings Committee February 2 where the author indicated lawyers were complaining of judges not granting continuances. The state’s top judge (Chief Judge Mary Ellen Barbera) testified in committee against the bill, indicating her concern the detrimental impact on the courts and the court’s ability to set and arrange calendaring.
SB 250 failed to advance out of committee.
Over the last several decades there has been a push to drug test those who are on any kind of public assistance and, in response, efforts by state legislators to put the same sort of drug testing requirements on public officials, including in many instances judges (I discussed this phenomena at length here and here and here).
This year’s version comes from Pennsylvania as HB 1655 which would require candidates who seek to serve as judges to, along with their nomination petitions, submit to a drug test. The same requirement would be imposed on anyone seeking to be elected to local, state, or federal office from or in Pennsylvania.
If enacted, HB 1655 is likely to face a court challenge. In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).
The Ohio House last week approved a plan that could expand the carrying of guns into courthouses in the state.
Under current law (R.C. 2923.126(B)(3)) a concealed carry license doesn’t allow for a person to carry a concealed gun into “A courthouse or another building or structure in which a courtroom is located, in violation of section 2923.123 of the Revised Code.”)
Currently a person who does carry into a courthouse is guilty of a felony under R.C. 2319.123(A) and (B).
However, under HB 233 as approved by the House, the person with a concealed carry license would be able to avoid the felony charge if they simply leave the courthouse. Moreover, if they remained or came back with a gun within 30 days, they would be charged only with a misdemeanor under a new law (R.C. 2923.1214).
A person who has a valid concealed handgun license or who is a qualified military member and who is discovered conveying, possessing, or controlling a deadly weapon in violation of division (A) or (B) of this section is subject to removal from the premises but is not guilty of illegal conveyance of a deadly weapon or dangerous ordnance into a courthouse or of illegal possession or control of a deadly weapon or dangerous ordnance in a courthouse, as applicable . If the person refuses or fails to leave the premises upon being requested to do so by the individual in control of the premises or by that individual’s agent or employee, or returns within thirty days to the same premises while knowingly in possession of a deadly weapon in violation of this section, the person is guilty of criminal trespass with a deadly weapon, as described in section 2923.1214 of the Revised Code
HB 233 has been sent to the Senate.
I’ve mentioned the highly contentious issue of school funding and its impact on efforts to limit state court systems such as stripping the courts of jurisdiction to hear K-12 funding lawsuits. Now members of the Delaware legislature want that state’s supreme court to weigh in via an advisory opinion.
Delaware state law (10 Del. C. 141) allows for the Governor or a majority of the legislature to request an advisory opinion from the supreme court. In this instance, the request to the state’s supreme court comes after a recent Chancery Court decision in Young v. Red Clay Consol. Sch. Dist. determined that a local school district broke election rules when it passed a voter referendum to raise taxes to pay for schools. In that opinion, the court noted that the case “stems from the dysfunction in Delaware’s system for funding public schools” (media coverage here).
SCR 38 asks the supreme court two questions:
- What does “efficient system of free public schools” mean for purposes of the General Assembly’s obligations under § 1, Article X of the Delaware Constitution?
- Does Delaware’s public school system, given the features set forth in the above Whereas clauses, meet the definition of an “efficient system”?
A bill that would implement portions of the Texas Judicial Council review of security in the state has cleared the legislature and already been signed by the governor.
SB 42, originally discussed here, is named after Travis County District Judge Julie Kocurek who was the victim of an attempted assassination in 2015.
SB 42 makes numerous changes to laws related to court security, including
Certified Court Security Officers Requirement
- Prohibits a person from serving as a court security officer unless the person holds a court security certification issued by a training program approved by the Texas Commission on Law Enforcement (TCOLE).
- Requires TCOLE create model court security curriculum in consultation with the Office of Court Administration (OCA).
- Grants person providing court security 1 year to obtain certification from date officer beings providing court security; currently serving officers have until September 1, 2019.
- Requires the sheriff, constable, law enforcement agency, or other entity that provides security for a court to verify that each court security officer holds the required certification.
Court Security Committees (CSCs)
- Requires the presiding judge, municipal judge, or local administrative judge (as applicable) of every court create a CSC and sets their composition.
- Requires the CSCs establish the policies and procedures necessary to provide adequate security to the court(s).
- Authorizes a CSC to recommend to county commissioners the uses of resources and expenditures of money for courthouse security, but prohibits a CSC from directing the assignment of those resources or the expenditure of those funds.
- Creates a $5 fee on filings to go toward the existing Judicial and Court Personnel Training Fund.
- Requires that the Court of Criminal Appeals (the state’s court of last resort in criminal cases) grant legal funds to statewide professional associations and other entities that provide training to individuals responsible for providing court security.
- Requires the legislature appropriate from the Judicial and Court Personnel Training Fund money to the Court of Criminal Appeals to provide for, among certain programs, court security training programs for individuals responsible for providing court security.
Court Incident Reporting
- Provides the sheriff or other law enforcement agency or entity that provides security for a court shall provide to the Office of Court Administration a written report regarding any court/courthouse security incident. A 2007 law currently places that responsibility on the local administrative judges.
Office of Court Administration, Judicial Security Division
- Requires OCA establish a judicial security division to provide guidance to state court personnel on improving security for each court.
- Requires the Director of OCA to notify county registrars, the Texas Department of Public Safety (DPS), the Texas Ethics Commission (TEC), and any other state agency OCA determines should be notified of the judges, judges’ spouses, and related family members whose personal information must be kept from public records, as provided under Government Code 552.117.
Public Release/Availability of Personal Information on Judges
- Defines “state judge” for purposes of non-release of personal information about “state judges”.
- Include a current or former federal judge or state judge or a spouse of a current or former federal judge or state judge or a current or former district attorney, criminal district attorney, or county attorney whose jurisdiction includes any criminal law or child protective services matter, as persons whose information is excepted from the requirements of Section 552.021 (Availability of Public Information) if it is information that relates to certain personal information.
- Allow judges to remove for themselves and their spouses their home addresses and other personal information from public records required to file for office, including information held by
- the Texas Ethics Commission
- local county registrars (related to voter registration)
- local county clerks
- tax appraisal records
- driver’s licenses, and in lieu of personal address use courthouse address
Protection For Judges
- Authorizes any commissioned peace officer, including a commissioned officer of the Department of Public Safety, to provide personal security to a state judge at any location, regardless of the location of the law enforcement agency or department that employs or commissions the peace officer.
I previously mentioned Oklahoma HR 1004 that addresses abortion laws in the state and, in effect, directed the state’s judiciary to stay out of the subject. That resolution has now passed the House.
HR 1004 as adopted by voice vote starts by rejecting the U.S. Supreme Court cases dealing with abortion, citing specifically Roe v. Wade and Planned Parenthood v. Casey. It then calls on state public officials, including judges and justices specifically, to “exercise their authority as appropriate in their respective jurisdictions to stop the murder of innocent unborn children by abortion.”
The next paragraph, however, is specifically directed at state judges.
THAT Oklahoma judges and specifically justices of the Oklahoma Supreme Court are directed not to interfere with this Legislature’ s right to clarify Oklahoma criminal law regarding abortion per Section 36 of Article V of the Oklahoma Constitution.
That particular section of the state’s constitution deals with the legislature’s power.
The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.
The resolution appears to target two decisions by the Oklahoma Supreme Court from late 2016:
- In October 2016, the Oklahoma Supreme Court struck down a 2015 law (SB 642 of 2015) that dealt with restrictions on abortions (parental consent for minors, tissue preservation, inspection of clinics, and legal liability of abortion providers). That decision was 9-0.
- In December 2016 the court again ruled 9-0 that a law requiring doctors at abortion clinics to have hospital admitting privileges (SB 1848 of 2014) was also unconstitutional.
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.