NH: Legislator seeks to declare void state supreme court decisions from the 1800s

It is relatively common for state legislatures to, effectively, overturn court decisions which relate to statutory interpretation by either changing the wording of the statute or repealing it outright. This even extends to efforts to overturn state supreme court interpretations of the state constitution by adopting state constitutional amendments.

What is uncommon is New Hampshire’s attempts to achieve the same effect by targeting certain decisions and retroactively declaring them void.

For example, HCR 17 of 2011 declares the 1868 case of Copp v. Henniker (55 NH 179) and the opinions which subsequently relied upon Copp “void and of no force.” In Copp, the state’s supreme court (then known as the Superior Court of Judicature), referencing a similar Wisconsin case (Meade v. Walker 17 Wis. 189 (1863)) held that the state constitutional right to a trial by jury applied if that was the case when the state constitution was ratified. The reference to the Wisconsin case is specifically criticized by HCR 17. The concurrent resolution ends with a two part declaration that the opinion in Copp “is repugnant to the Constitution of New Hampshire” and that “the opinions which subsequently rely upon Copp versus Henniker to deny the right to trial by jury in new types of civil cases are utterly void and of no force.”

HCR 18 declares an even older case (Merrill v. Sherburne, 1 NH 199 (1819)) void as well. There, Merrill (as executor for the estate of a man named Ward) had lost at trial and on appeal a probate case against Ward’s heirs that would have granted Merill the entire estate. In 1817 Merrill petitioned the legislature for another trial and the legislature adopted a special law for him to that effect later in the year. The heirs moved to quash the proceedings. The state’s Superior Court of Judicature did quash, citing the U.S. Constitution, “The Spirit of Laws” by Montesquieu, several of the Federal Papers, Thomas Jefferson’s “Virginia Papers”, and similar documents. Specifically, the court held that the state legislature had exceeded its constitutional authority and, in effect, exercised judicial powers.

HCR 18, on the other hand, declares the listed documents were deliberately edited to mislead readers. Moreover, referencing a state constitutional provision that “the Legislature shall assemble for the redress of public grievances and for making such laws as the public good may require”, the resolution declares Merrill and subsequent decisions relying on it “repugnant to the Constitution of New Hampshire…utterly void and of no force.”

The author’s writings on the subject of these cases can be read more fully here.

NM: Two pieces of legislation to restrict or end court e-filing

Cross posted at the Court Technology Bulletin blog

Numerous state legislatures have been exceptionally active in promoting or advancing bills to permit or require e-filing in state courts. New Mexico’s Senate, however, may be the first state legislative chamber be to actively working against such efforts.

SB 328 repeals the judiciary’s “electronic services fund” and transfers the balance to the state’s general fund. According to the fiscal impact note prepared by the Legislative Finance Committee, “SB 328 would effectively end the ability of courts to implement efiling in New Mexico.”

The same senator that authored SB 328 has also introduced this week SB 388 which declares the state’s courts “shall not charge an electronic services fee to persons who choose not to use electronic services and shall allow persons to file and access documents without using electronic services.”

SB 328 is in the Senate Judiciary Committee, while SB 388 is in the Senate Public Affairs Committee.

New/old effort to impeach New Hampshire Marital Master

Last year I noted the effort in New Hampshire to remove Marital Master Philip Cross (details here) via a bill of address. Such bills allow, in cases where there “shall not be a cause which is a sufficient ground for impeachment”, for a majority of both houses of the legislature to ask the state’s governor and executive council to remove a judge or judicial officer. The bill of address method was used to try and remove Cross, another martial master, and a judge last year. Those efforts failed, however Cross’ was the “closest” vote (6-3 in committee against recommending removal; 170-127 against in the full House).

Citing testimony from the 2010 bill of address hearings, HR 7 of 2011 has been introduced directing the House Judiciary Committee to investigate Cross “and/or any justice of the New Hampshire superior court” for impeachment. Under the state constitution, the committee would have to find instances of “bribery, corruption, malpractice or maladministration in office” for impeachment to proceed.

MT: Prosecuting judges for enforcing federal laws and court decisions

Article VI of the U.S. Constitution provides “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This restriction, however, has not prohibited several bills in the Montana legislature to provide that if a state judge is “bound thereby” he or she will be prosecuted.

HB 381makes it a misdemeanor to enforce any federal firearms law “that conflicts with the provisions of Title 30, chapter 20, part 1 [of the Montana Code]”. That provision, the Montana Firearms Freedom Act was enacted in 2009 and declares, in relevant part:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

HB 443 makes a similar statement with respect to interstate commerce as it relates to food (possibly in an effort to directly challenge Wickard v. Filburn, in which the U.S. Supreme Court held a farmer raising wheat on his own farm to feed the chickens on his farm was engaged in interstate commerce). The bill declares as a violation of the U.S. Constitution:

any federal regulation, rule, or policy promulgated after [the effective date of this act], and any executive order issued by the president of the United States after [the effective date of this act] that seeks, purports, or is otherwise intended to regulate, in any way, the manufacture, production, processing, packing, exposure, offer, possession, and holding of food for sale, the sale, dispensing, and giving of food, and the supplying or applying of food intended to remain in this state and not intended to enter interstate commerce

While the descriptor portion of the law is limited to federal “regulation, rule, policy…[or]…executive order”, the punishment provisions are more expansive: any federal OR state judge that attempts to enforce or attempt to enforce an act, order, law, executive order, court decision, or regulation of the United States government in violation of the above is guilty of a felony.

SB 150 creates the civil tort and crime of “Official oppression” to include “arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or deni[al] or imped[ing] another in the exercise or enjoyment of any right, privilege, power, or immunity”. The bill permits recovery of damages from judges individually and personally, with no indemnification from the government, unless the judge functioned in a “normal and usual judicial capacity” and in includes judges and other officials “of the federal government or of another nation or an organization of nations.”

Today’s a big day for hearings on bills affecting the judiciary

Several bills affecting the state courts are getting committee hearings today, (see update below) including:

Montana HB 332 (House Judiciary committee audio will be here) would permit jury nullification and require judges inform jurors they may judge both the facts and the law in the case> Judges would be required to provide jurors  state and federal constitutions and any statute books they request. In criminal cases, the judge would be required to inform jurors they may vote their conscience to acquit an accused in spite of technical guilt. Finally, the bill defines “obstruction” of these provisions as reversible error.

Meanwhile, Indiana’s Senate Judiciary committee (live streaming video here) will be considering two bills of particular note. SB 212 would move the state closer to a restructured system of consolidated trial courts. It provides that all circuit courts, superior courts, and probate courts have: (1) original and concurrent jurisdiction in all civil cases and in all criminal cases; (2) de novo appellate jurisdiction of appeals from city and town courts; and (3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts. The bill would also repeal authorization for the establishment and operation of county courts (since January 1, 2009, no county court exists in Indiana.).Also up for debate is SB 463 which would repeal all provisions that establish a mandatory retirement age for superior court and county court judges.

Update 2/2/11 @ 8:44 Eastern: The massive snow storm affecting most of the country has shut down the Indiana Legislature Tuesday and Wednesday. According to the legislature’s website, Senate hearings may be conducted Thursday.

Bills to increase penalties for filing false liens on judges, court personnel moving in AR and PA

Among the myriad of challenges facing judges and court staff beyond the threat of physical violence is the prospect of having liens and similar instruments filed on their homes. A federal law adopted in 2008 (and codified as 18 USC 1521) provides

Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an individual described in [18 USCS § 1114], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

In 2011, at least two states are looking at similar legislation.

Arkansas’  HB 1045 would make is a class C felony (punishable by 3 to 10 years in prison) to cloud or adversely affect the title or ownership of the property of a judge or other court personnel because of the performance of their official duties. That bill was approved by the House Committee on Judiciary 1/27/11 and adopted by the full House on 1/31/11.

A similar Pennsylvania bill (SB 50) would create the crime of “Simulated legal process” and includes within it “actions affecting title to real or personal property, indictments, subpoenas, warrants, injunctions, liens, orders, judgments or any legal documents or proceedings, knowing or having reason to know that the contents of the documents or proceedings or basis for the action to be fraudulent”. In addition SB 50 creates a separate crime (“Hindering public official”) when a person attempts “to influence, intimidate or hinder a public official or law enforcement officer in the discharge of his official duties by threat of or actual physical violence, harassment, through simulated legal process or by other unlawful act.” Both would be second degree misdemeanors punishable by up to two years imprisonment. SB 50 would also make specific crimes of tactics often used by “common law court” and militia/patriot groups such as “impersonating public official or legal tribunal” and use of unofficial license plates. SB 50 was introduced on January 12 and is currently pending in the Senate Judiciary Committee.

Recently introduced e-filing bills

Cross-posted at the Court Technology Bulletin blog

Much has been made, particularly in the recent spate of State of the Judiciary Speeches, about the boon and promise of e-filing in state courts. In just the last week legislators in five states introduced or advanced bills related to the subject.

Arizona SB 1185 Would change the state’s existing laws that allow the Supreme Court and Superior Courts (pursuant to rules adopted by the Supreme Court) to have e-filing to require they do (“may” to “shall”) Moreover, the bill would require the electronic access to court records and add bulk data to required material the courts shall provide. It is currently in the Senate Banking and Insurance Committee.

Oregon HB 2690 (link to legislature’s website, no direct link to bill status page) takes a different tack. It allows the state;s Chief Justice to establish reasonable subscription fees, and other user and transaction fees, for remote access to case information and other Judicial Department forms, reports and services that are available in electronic form. Moreover, it modifies laws on filing of trial court transcripts on appeal to allow for the electronic filing of the transcript. It is in the House Judiciary Committee.

South Dakota HB 1038 requires the clerk of that state’s Supreme Court collect certain fees for the electronic transmission of court records. That bill was approved by the House Committee on Judiciary on January 21 and by the full House on January 25.

Virginia SB 1369 would allow Circuit Court Clerks to charge a fee of $25 for civil or criminal proceedings filed electronically and an additional $10 fee for subsequent filings in such proceedings. The funds would be directed to the clerk’s local fund to cover operational expenses of the electronic filing system.  That bill is currently in the Senate Courts of Justice Committee.

Finally, Wyoming HB 190 offers what amounts to an e-filing discount of sorts. The bill provides for the electronic submittal of fees, fines, bonds and penalties to circuit courts and authorizes the Supreme Court to reduce the aforementioned fines, bonds and penalties if submitted electronically. That bill is currently in the House Judiciary Committee.