Rhode Island: Civil unions bill would exempt judicial officers who object from solemnizing such unions

The press for gay marriage and/or civil unions throughout the states has been an ongoing effort for years. While several states have such partnerships through judicial determination, others have done so via statutes adopted by state legislatures. Rhode Island is currently considering a bill to create “domestic unions” (SB 376). Including in the bill are provisions similar to  those adopted in other states that would protect religious organizations from being forced to solemnize such unions, provide services related to such solemnization, or recognize such unions.

Similar though not identical provisions also exempt “individuals and small businesses” based on their “sincerely held religious beliefs”, however the provision has two exceptions. The individual or small business must provide goods or services to the union if a party to the union “is unable to obtain any similar good or services elsewhere without substantial hardship.” The second portion, however, is judiciary specific:

[The exemption for individuals and small businesses] shall not apply if…In the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize domestic unions shall be required to do so if that act would violate the judicial officer’s sincerely held religious beliefs.

Existing Rhode Island law (15-3-5) lists the officials empowered to join persons in marriage as including:

  • every justice of the supreme court, superior court, family court, workers’ compensation court, district court or traffic tribunal
  • the clerk of the supreme court
  • every clerk or general chief clerk of a superior court, family court, district court, or traffic tribunal
  • magistrates, special or general magistrates of the superior court, family court, traffic tribunal or district court
  • administrative clerks of the district court
  • administrators of the workers’ compensation court
  • every former justice or judge and former administrator of the above courts
  • every former chief clerk of the district court
  • every former clerk or general chief clerk of a superior court
  • judges of the United States appointed pursuant to Article III of the United States Constitution
  • bankruptcy judges appointed pursuant to Article I of the United States Constitution
  • United States magistrate judges appointed pursuant to federal law
  • every justice and every former justice of the municipal courts of the cities and towns
  • former justices of the police court of the town of Johnston
  • every probate judge
  • every former probate judge

SB 376 is currently pending before the Senate Judiciary Committee which will have a hearing on the bill March 10.

Maine: One sentence bill directs judicial branch to upgrade its computer system

Typically legislation related to a state judiciary’s computer system(s) are parts of budget bills or sections of other non-appropriations bills related to the judiciary. Maine’s HB 644 of 2011, however, may go on record as the single shortest and most direct piece of legislation on the matter ever.

Below is the sum total of the bill (formatting in original):

Resolve, To Streamline the Judicial Process in Maine’s Courts

Sec. 1. Judicial Department to upgrade its computer system. Resolved: That the Judicial Department shall design and implement a plan to upgrade its computer system to ensure access by Maine citizens and attorneys to electronic filing and scheduling online.

The bill’s summary is almost as long as the bill itself:

This resolve directs the Judicial Department to design and implement a plan to upgrade its computer system to ensure access by Maine citizens and attorneys to electronic filing and scheduling online.

The bill has yet to be assigned to a committee, but presumably it would be sent to the Joint Committee on the Judiciary. Interesting note: Maine is one of three states (Connecticut and Massachusetts are the others) that rely primarily on joint judiciary committees.

Cross-posted to Court Technology Bulletin.

Judicial impeachment efforts advance in New Hampshire and New Jersey

The last few weeks have been particularly active in the area of judicial impeachment.

In New Jersey, SR 105 expressed the sense of Senate that in the event the General Assembly does not proceed with impeachment Justice Roberto Rivera-Soto that he should resign as Justice of the New Jersey Supreme Court. The criticism of Justice Rivera-Soto arises from controversy over a vacancy on the state’s supreme court. It began in May 2010 when, for the first time, the Governor declined to automatically reappoint a supreme court justice back to the court (Justice John E. Wallace Jr.), instead nominating Anne Patterson. The Senate President has declined to have a confirmation hearing on Patterson, resulting in a vacancy on the high court.

Chief Justice Stuart Rabner temporarily elevated a trial court judge into the vacancy, an act Justice Rivera-Soto decried in at least two December 2010 opinions as unconstitutional. Justice Rivera-Soto filed a separate opinion in Lula M. Henry v. New Jersey Department of Human Services “abstaining and expressing his view that the Constitution allows the assignment of a Superior Court judge to serve on the Supreme Court only when necessary to constitute a quorum and stating that he will continue to abstain from all decisions of the Court for so long as it remains unconstitutionally constituted.”

Less than a month later on January 12, 2011 in Hopewell Valley Citizens’ Group, Inc. v. Berwind Prop. Group Dev. Co., L.P. Justice Rivera-Soto modified his position: “This process [blanket abstention from all decisions of the Court] has revealed a previously unconsidered, but nevertheless reasoned and measured alternative approach, one that minimizes the jurisprudential uproar a blanket abstention might create but that also maintains the intellectual and constitutional integrity that undergirds my earlier abstaining opinion… I will cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case.”

The result was SR 105

It is the sense of the Senate that the actions of Justice Roberto Rivera-Soto are prejudicial to the administration of justice and constitute a serious violation of the public trust. It is also the sense of the Senate that the actions of Justice Rivera-Soto may constitute grounds for impeachment for misdemeanor committed during his continuance in office. It is further the sense of the Senate that in the event the Assembly does not consider Articles of Impeachment, Justice Roberto Rivera-Soto must resign his seat as Justice of the Supreme Court of the State of New Jersey.

The resolution passed on February 17 on a 21-3-16 vote. All the Senate Republicans declined to vote on the resolution.

In New Hampshire, the House Judiciary Committee advanced a bill to start an impeachment investigation of Marital Master Philip Cross. I detailed HR 7 in a prior blog post here and some of the history and prior attempts to have the Martial Master and other judges/judicial officers removed from office last year. The efforts against Martial Master Cross derive from what the Concord Monitor described as a “witch hunt” lead by “men angry about the outcome of their divorce cases.” According to the New Hampshire Bar Association e-Bulletin, the House Judiciary committee on March 1 voted 10-5 to proceed with the investigation of not only Cross but, according to the text of HR 7, “and/or any justice of the New Hampshire superior court.”

Indiana: Floor amendment to unrelated bill would require courts provide bulk data

Courts have been contending with how to handle bulk data requests for years. Recently, however, efforts in Arizona and other states have sought to bypass the courts and mandate the disbursement by legislative act. The most recent example is in Indiana.

SB 561, as introduced, dealt with corrections and sentencing. A floor amendment, added on February 21 however, requires the division of state court administration to implement a standard program for disseminating bulk court case information for a reasonable fee. Moreover, the bill requires an executive branch agency (the Indiana Office of Technology) annually certify that case management systems operated or funded by the division of state court administration comply with this program.

Finally, while the amendment allows for the charging of “a reasonable fee” it defines “reasonable” as “not [to] exceed the direct cost of operating the export program and delivering data to the recipient plus a prorated fee to recoup the direct costs of developing the export program. In any one (1) year, the aggregate prorated fees charged under this subdivision may not exceed five percent (5%) of the direct costs of developing the export program.”

The bill, as amended, was approved by the full Senate 2/22/11 and is currently in the House awaiting committee assignment.

Cross-posted to Court Technology Bulletin.

MD: Bills would require Administrative Office of the Courts keep central registry of when spouses refuse to testify against spouses in domestic violence cases

For decades, Maryland law has required that the invocation of spousal privilege in domestic violence cases be especially noted and recorded by the court clerk (Md. Courts and Judicial Proceedings 9-106)

(b) Record of assertion; expungement.-

(1) If the spouse of a person on trial for assault in any degree in which the spouse was a victim is sworn to testify at the trial and refuses to testify on the basis of the provisions of this section, the clerk of the court shall make and maintain a record of that refusal, including the name of the spouse refusing to testify.
(2) When an expungement order is presented to the clerk of the court in a case involving a charge of assault in any degree, the clerk shall check the record to determine whether the defendant’s spouse refused to testify on the basis of the provisions of this section.
(3) If the record shows such refusal, the clerk shall make and maintain a separate record of the refusal, including the defendant’s name, the spouse’s name, the case file number, a copy of the charging document, and the date of the trial in which the spouse refused to testify.
(4) The separate record specified under paragraph (3) of this subsection:

(i) Is not subject to expungement under Title 10, Subtitle 1 of the Criminal Procedure Article; and
(ii) Shall be available only to the court, a State’s Attorney’s office, and an attorney for the defendant.

Two Maryland bills (HB 1169 and SB 919) would require the record of refusal be sent to the Administrative Office of the Courts to maintain a central registry. Access to the individual record would be limited to the court, a State’s Attorney’s office, an attorney for the defendant, the spouse, and the defendant. Access to statistical data from the registry would be limited to “an organization that conducts research or provides services related to domestic violence…for research, evaluation, and statistical analysis…[and]…may not contain any unique identifying information, including names, record numbers, or case file numbers.”

HB 1169 is set for a House Judiciary Committee hearing on 3/17. No word yet on any hearings for the Senate version.

Citing Heller, Illinois legislators consider explicitly permitting judges to carry concealed firearms into courthouses

The U.S. Supreme Court decision in District of Columbia v. Heller, which specifically found an individual right to keep and bear arms, has lead to a massive review of state statutes as they pertain to firearms. Illinois is no exception: it was the case of McDonald v. Chicago that applied Heller to the states via the 14th Amendment. For judges on a more personal level, however, Heller and McDonald may mean more discretion in carrying their own firearms into their courts.

At present, Illinois law and rules of court are relatively silent on whether judges explicitly may (or may not) bring firearms into courthouses or courtroom. The only apparently relevant statute is 720 ILCS 5/24-1. Sections (a) and (b) define the offense of unlawful use of weapons and provide for sentences depending on the particular actions. (a)(4)-(9) in particular deal with the carrying of firearms.

Section 720 ILCS 5/24-1(c) however provides enhanced sentences for carrying a firearm in public places, such as parks and courthouses (defined as “any building that is used by the Circuit, Appellate, or Supreme Court of this State for the conduct of official business.”). Illinois, unlike most states, does not provide elsewhere that such courthouse restrictions do not apply to judges.

HB 1403 and SB 2150, however, would modify the restrictions. Concealed firearms permits would not allow a person to carry into “Any courthouse solely occupied by the Circuit, Appellate, or Supreme Court or a courtroom of any of those courts, or court proceeding.” However “nothing in this Section shall preclude a judge, or State’s Attorney holding a concealed firearms permit, from carrying a concealed firearm within a courthouse.” (emphasis added)

Surrounding states take slightly different tacks with respect to courthouse carrying.

Missouri (§ 571.107 R.S.Mo.) bans firearms generally (and in the same section specifically exempts judges from the ban) in “Any courthouse solely occupied by the circuit, appellate or supreme court, or any courtrooms, administrative offices, libraries or other rooms of any such court whether or not such court solely occupies the building in question…The.. supreme court… may by rule..prohibit or limit the carrying of concealed firearms by endorsement holders in that portion of a building owned, leased or controlled by that unit of government.”

Kentucky’s (KRS § 237.110) has a similar clause banning generally the carrying of a firearm  in “Any courthouse, solely occupied by the Court of Justice courtroom, or court proceeding.” but then (KRS § 237.020) exempts active, retired, and senior status justices and judges with a handgun permit. In fact, Kentucky active, retired, and senior staus judges with a permit may carry “at all times and at all locations within the Commonwealth of Kentucky” exception detention facilities, which specifically “does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.”

Illinois HB 1403 is in the House Agriculture & Conservation Committee while SB 2150 is currently in the Senate Assignments Committee awaiting designation to a subject matter committee.

Georgia House (again) considers “informing” Chief Justice Georgia is not a “democracy”

Last year in her first state of the judiciary address, Chief Justice Carol Hunstein referred to Georgia as a “democracy”. As I noted at the time, this did not sit well with some members of the Georgia House, who prepared a resolution to “inform” the Chief Justice the state was a republic, not a democracy (see post here). The resolution went nowhere, legislatively speaking.

Undaunted, Chief Justice Hunstein gave her 2011 state of the judiciary and made use of the term “democracy” five times (see post here). Equally undaunted, the Georgia House is considering “informing” her via HR 340 of 2011.

WHEREAS, most synonymous with majority rule, democracy was condemned by the Founding Fathers of the United States, who closely studied the history of both democracies and republics before drafting the Declaration of Independence and the Constitution…

WHEREAS, in 1928, the War Department of the United States defined democracy in Training Manual No. 2000-25 as a “government of the masses” which “[r]esults in mobocracy,” communistic attitudes to property rights, “demagogism,…agitation, discontent,  [and] anarchy.”

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body recognize the difference between a democracy and a republic and inform Georgia Supreme Court Chief Justice Carol W. Hunstein that the State of Georgia is a republic and not a democracy.

BE IT FURTHER RESOLVED that the Clerk of the House of Representatives is authorized and directed to transmit appropriate copies of this resolution to Georgia Supreme Court Chief  Justice Carol W. Hunstein, all Justices of the Georgia Supreme Court, and all Judges of the Georgia Court of Appeals.

Presumably the decision to forward the resolution (if adopted) to the justices of the supreme court and court of appeals is because they were invited to attend the state of the judiciary address (HR 19 of 2011) and heard the reference to “democracy.”

The resolution is currently pending in the House Committee on the Judiciary.