Montana: There’s (electronic) gold in them thar…contempt of court proceedings?!?

Over the last several months, states including Virginia and South Carolina have considered bills to allow for or require the use of gold in state transactions. In 2009, Montana considered a similar idea (HB 639). This year, Montana has turned its attention back to gold use via HB 513 and in so doing carved special provisions for the state’s courts.

Section 7 provides “the state may not require but shall allow a person to recognize, receive, pay out, deliver, promise to pay, or otherwise use or employ gold and silver coin or electronic gold currency as media of exchange.” It extends this allowance to court judgments, decrees, and orders, however:

If the court, agency, or tribunal finds that a payment of gold and silver coin or electronic gold currency is not just compensation, the court, agency, or tribunal shall require:

(a) specific performance of the contract or other agreement then before the court, agency, or tribunal by other than the payment of money;

(b) specific restitution of property other than money;

(c) payment of some medium of exchange other than gold and silver coin, pursuant to a requirement for the payment in a contract or other agreement then before the court, agency, or tribunal; or

(d) other relief, similar to the relief described in subsection (5)(a) through (5)(c).

Thus, an individual generally has the option of using gold, silver, or “electronic gold” in addition to “legal tender of the United States”.

Even more interesting for purposes of the court’s internal workings is section 12, requiring damages, awards, payments, fines, penalties and other monetary forfeitures be determined and certified by the court “in both legal tender of the United States and electronic gold currency.”

The options are even more limited in criminal cases, contempt of court cases, cases involving violation of court rules, or any case in which the state is entitled to receive payment. There “the person against whom monetary damages or an award, payment, fine, penalty, or other monetary forfeiture is assessed shall pay the amount of the monetary damages, award, payment, fine, penalty, or other monetary forfeiture in electronic gold currency.” There appears to be no other option but for payment to the court for a contempt in the form of electronic gold.

A hearing on the bill set for February 16 before the House State Administration Committee was canceled. No word on when it is to be rescheduled.

Wisconsin’s woes and a ramification particular to the state’s jurists

A large amount of media attention has been turned towards Wisconsin and a bill being advanced by the state’s governor to require state employees to pay more for their benefits and to limit collective bargaining rights in the state (Special Session AB 11, the “Budget Repair Bill.”) In the ensuing fight between protesters, the governor, and the legislature (a large portion of whom appear to have fled the state to avoid making a quorum for action), less attention has been paid to provisions related to retirement and benefit changes and their unique and specific implications for the third branch and its employees.

Of particular note is a proposed change to the pension calculation/multiplier for judges and other elected officials. Changes to these judicial calculations “appl[y] to creditable service that is performed on the day on which the next supreme court justice, court of appeals judge, or circuit court judge assumes office after the effective date of this paragraph.” (This is the normal effective date for changes in compensation for the judiciary.) A similar provision applies to other elected officials.

However, whereas most Wisconsin officials are elected in even years and would therefore not be subject to this until January 2013 or 2015, Wisconsin judges are elected in April elections each year. This year alone, there are one supreme court justice, two court of appeals judges, and 41 circuit court judges up for election on April 5. Therefore, it is anticipated this provision for Wisconsin’s judiciary will become effective when they take office this year (i.e on or before August 1, 2011.)

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.

MS: Paying for judicial salary increases with special fees and increased duties for judges

It is not uncommon for states to try and increase judicial salaries via special fees, for example just this year Virginia (SB 816) considered a $50 fee on many civil case filings to be exclusively dedicated to paying for judicial salaries.

Mississippi’s SB 2253 began in a somewhat similar fashion. As introduced, the bill created a special Justice Enhancement Fund into which would got the proceeds from a special $25 civil filing fee for supplemental pay to judges and prosecutors.

What came out of the Senate Judiciary A committee on February 1, however, was markedly different.
This bill explicitly raised the statutorily set salaries of judges to specified levels (e.g. Chief Justice to $159,000, etc.) and paid for them directly (i.e. no Judicial Enhancement Fund) via:

  • an increase the fee for filing an appeal from $100 to $200,
  • a special $40 fee on a civil case filings and,
  • special $70 fee on criminal convictions.

Additionally, several judge-types where given additional specific statutory responsibilities:

Supreme Court justices, under the direction of the Chief Justice, are to

  • support and implement electronic filing systems for the courts, and
  • support and implement drug courts.

Judges of the court of appeals are to

  • serve as special trial judges (explicitly “because of a statewide increase in litigation and insufficient resources to fully fund trial judge positions”),
  • perform additional judicial services after usual state business hours to reduce delays, backlogs and inefficiencies to comply with time standards adopted by and for the appellate and trial courts, and
  • promote public awareness of the judicial processes and openness and accessibility of the courts by being available to conduct programs and give speeches to civic, educational, governmental and religious organizations and entities.

Circuit judges are to

  • take all necessary action to develop drug courts within their districts and to regularly report to the Administrative Office of Courts on the success of their drug court programs, and
  • (along with chancery judges) take such action as is necessary to implement electronic filing and case management systems within their districts as developed by the Administrative Office of Courts as such systems become available and take all necessary action to prepare their courts for electronic filing and case management.

Constitutional crisis over South Dakota judicial budget?

Several weeks ago, South Dakota’s governor asked for all state branches and agencies to cut their budget by 10%. In what was described as a potential “constitutional showdown” the state’s chief justice declined the 10% number and put forth a 5% cut. Mentioned at the time was a state constitutional provision that

The chief justice shall submit an annual consolidated budget for the entire unified judicial system, and the total cost of the system shall be paid by the state. The Legislature may provide by law for the reimbursement to the state of appropriate portions of such cost by governmental subdivisions. (emphasis added)

Ultimately, the court system agreed to the 10% cut, but not before several pieces of legislation were introduced on the subject.

SB 195 declared any reading of the cited section that would have required the courts be funded automatically “miscomprehension and naivete” and specifically finding:

That, even if someone were to explicate the two sentences as implying virtual independence of one of the three separate, traditional branches of American government, such a reformulation of the constitutional system of checks and balances could not be accommodated within the United States, South Dakota, nor our sister states’ constitutions without destroying an essential element of the Anglo-American political system.

Additionally, SJR 1 was introduced to amend the state constitution, striking the two sentences in question and replacing them with:

The chief justice shall submit an annual consolidated budget for the entire unified judicial system, and the Legislature shall fund the unified judicial system adequate to maintain access to the courts and the fair and measured administration of justice.

Both bills are currently pending in the Senate Appropriations Committee.

AZ: You say court surcharge, I say court penalty assessment….

Trying to come to terms with terms is at the heart of both legislative and judicial branches. One such area where the two can become entangled is with the difference between a court imposed surcharge in criminal cases where there is a conviction and an assessment the court imposes as the result of a criminal conviction. For Arizona, the terms matter: courts are required to collect a 61% and 13% surcharge, or penalty assessment, for violations of motor vehicle statutes and a 10% surcharge is also permitted for violations related to the Clean Elections Act. Moreover, it is not 100% what the surcharge is on (can one surcharge a surcharge? an assessment?)

Enter HB 2353 which clarifies that surcharges apply to the base fine and do not apply to another surcharge and conforms all terminology currently referring to a penalty assessment as a surcharge. It was adopted on a 9-0 vote by the House Judiciary Committee last Thursday and is now in the House Committee of the Whole.

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.