Texas: bill removes power of State Commission on Judicial Conduct to discipline judges who refuse to follow federal court rulings; claims state judges have free speech right to refuse to obey federal court rulings

A bill introduced into the Texas Senate late last week would prohibit the State Commission on Judicial Conduct from pursing disciplinary action against a state judge who refused to obey federal court rulings.

SB 1307 as filed specifically provides

a judge is not subject to any disciplinary action, investigation, censure, or sanction for criticizing or refusing to follow an action or ruling of a federal court. A judge’s criticism of or refusal to follow an action or ruling of a federal court is considered the judge’s right to freedom of speech, protected under Section 8, Article I, Texas Constitution.

SB 1307 has been filed in the Senate but not yet assigned to a committee.

Florida: bill prohibits using public records act to obtain judges’ business email addresses for 5 years

Like most states, Florida law does not allow for personal information related to judges to be publicly released under the state’s open records act. Specifically exempted are the home addresses, dates of birth, and telephone numbers of current or former judges. Now a bill would make a judge’s business e-mail addresses not subject to release.

SB 1736 amends the general exemptions from inspection or copying of public records statute to include the business e-mail addresses of current judges/justices of the state’s 4 courts (supreme, district court of appeal, circuit, and county). The provision would last only 5 years and be automatically repealed unless re-enacted by October 2, 2022.

SB 1736 has been filed but not yet assigned to a committee.

 

Florida: Senate version of “Judicial Accountability” bill would no longer force judges off of criminal cases if racial disparity in sentencing found

The Florida Senate’s Criminal Justice committee earlier today held a hearing on SB 382 which would require the legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) collect data on all criminal sentences handed down over the previous 5 calendar years to determine whether or not judges were issuing disparate sentences based on race or other demographic criteria. The reports would have to be posted online.

The committee-approved version of the bill makes two changes via amendment.

  1. Judges who are found to have issued disparate sentences would not be forced to automatically recuse/disqualify in cases involving a member of a particular demographic group.
  2. The demographic data collect would be different.
Original Amended
Age Date of Birth
Sex Sex
Race Race and ethnicity
Income Court-appointed or private counsel
Prior criminal history Scoresheet

Scoresheet here appears to refer to this scoresheet used to assist in determining sentences.

During the hearing (video here starting at 43:00) the author indicated this was not a bill to attack judges but only to collect data. Others voiced concerns that, given the high percentage of plea bargains (98% in at least one area in the state), that the data would not reflect the judge’s sentencing but the plea agreements reached between the prosecutors and defendants.

As a result of these concerns, the possibility of coming up with some form of compromise bill was brought up. In the end, SB 382 was postponed in the committee.

Oregon becomes 3rd state to consider bill to permit/require judges give jury nullification instructions; bill includes exact wording to be used

Efforts to permit or require judges in criminal cases give jury nullification instructions (discussed here) have now been introduced in a third state this session.

Oregon SB 924 would not only require judges give a jury nullification instruction in criminal cases but the bill provides the exact and specific wording to be used.

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 even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.

This is similar to the bill approved in the New Hampshire House in that it requires the judge use wording directed by the legislature. This issue came up in that state after the legislature adopted a jury-nullification law several years ago and the courts ruled that the judiciary’s existing jury instructions were sufficient.

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 Utah bill doesn’t include exact wording, only that defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

Oregon SB 924 has been filed in the Senate Judiciary Committee.

Jury nullification legislation: pending on Utah House floor; cleared New Hampshire House & pending in Senate committee

Efforts to require judges give, or allow, jury nullification information in criminal cases have cleared legislative hurdles in Utah while the New Hampshire version remains pending in the Senate after House approval.

Utah HB 332 as amended provides that in all criminal cases, defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

HB 332 cleared the House Judiciary Committee on a 7-4-1 vote on February 24 and the House Rules committee on February 28. It is now pending on the House 3rd Reading Calendar.

Meanwhile, the 2017 New Hampshire jury nullification bill (HB 133), that includes the specific wording/language judges are to use in instructing a jury, was approved in mid-February by the House (discussed here) and remains pending in the Senate Judiciary Committee.

 

First Arkansas, then Oklahoma, now Oregon considers letting elected officials carry guns in courthouses

Efforts to allow elected officials to carry guns into courthouses, adopted in Arkansas in 2015 and being actively considered in Oklahoma in 2017, have now moved to Oregon.

Current law (ORS 166.370(2)(a)) generally makes it a Class C felony to carry guns into “court facilities”, “local court facilities” or at least those portions of the facilities used by the courts.

Under HB 3107 as filed those prohibitions would not apply where

  1. the facility is located in a building in which other governmental functions take place
  2. the elected official performs official duties in the building and
  3. the elected official has a concealed handgun license

HB 3107 has been filed but not yet assigned to a committee.

 

 

West Virginia: Circuit Judge-Elect suspended from office for campaign flier may be impeached by legislature

A West Virginia Circuit judge-elect who was suspended from office for knowingly publishing false statements against his opponent in the 2016 election is now facing an impeachment effort in the state’s legislature.

During the 2016 election cycle for West Virginia’s 28th Circuit Court Steven Callaghan sent a mailer to voters showing the incumbent judge parting with then-President Barack Obama. No such party took place but Callaghan won the election by a mere 220 votes. A complaint was lodged with the state’s judicial disciplinary commission and during those proceedings and to this date Callaghan never took office (thus “Judge-Elect”).

The state’s Supreme Court of Appeals on February 9 suspended Judge-Elect Callaghan for 2 years without pay and ordered him to pay $15,000 in fines.  The judiciary’s proceedings are now part of a federal lawsuit by Callaghan alleging First Amendment violations, but the state’s legislature has taken the first step of its own towards impeaching and removing Callaghan from office.

HR 10 of 2017 as filed quotes portions of the Supreme Court of Appeals’ opinion in suspending and fining Callaghan. The resolution goes on to question whether the actions move into the area of “maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor”, the language under the state’s constitution for an impeachable offense. It would require a majority of the House to send articles of impeachment to the Senate, which would try Callaghan and could remove him from office on a 2/3rds vote.

HR 10 authorizes the House Committee of the Judiciary to investigate Callaghan’s conduct and report to the House either a recommendation to not impeach or, if to impeach, articles of impeachment.

HR 10 has been filed in the House Rules Committee.