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.
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.
Missouri’s compensation system for most elected officials is fairly straightforward: the Missouri Citizens’ Commission on Compensation for Elected Officials makes a recommendation which goes into effect unless overridden by two-thirds of the legislature by a set date. In 2009 it was in fact overridden (HCR 5) and things looked less than promising when the Senate Rules committee appeared last week to reject the increases in light of the economy. However, in a twist, the Senate Rules committee on a 4-3 vote rejected advancing a resolution of disapproval (SCR 3). Moreover, the Commission’s policy to set state judicial salaries as a fixed percentage of federal salaries appears to have gained legislative support.
However, according to the Associated Press, money for the raises would have to be included in the state budget. The leader of the state Senate’s Republican majority says he hopes lawmakers won’t fund them.
I noted earlier this month that Maryland is considering closing the door to any future entrants for its Judges’ Retirement System. Kentucky, which has been in session since January 4, has moved swiftly to do the same. SB 2 of 2011 closes the state’s Judicial Retirement Plan to new members effective July 1, 2012. The bill allows those in the Judicial Retirement Plan with less than 5 years of service to transfer their membership and account balance to the newly-created Public Employees Retirement System, a 401(k)-style retirement plan (as opposed to the current defined benefit system, h/t Courier-Journal). All future judges would have no choice put to join the new System. The bill went from introduced to committee approved in the first three days of session (January 4-7) and is currently on the Senate floor.
With ongoing efforts in Iowa to impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature
In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:
- Filling vacancies – Grants authority to the chief justice to delay the nomination of a supreme court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons up to one year. Grants authority to delay nomination for magistrates with certain limits.
- Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the supreme court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the supreme court.
- Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.
- Residence – Requires district associate judge reside *in the judicial election district* in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.
Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:
- a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
- the sections allowing the Chief Justice to delay the appointment of judges for up to one year.
In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.
- Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)
It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone
Readers may recall that in 2010 I did a feature on the massive changes being proposed to retirement systems for judges and court staff. (Click here for a review). This year is starting off on exactly the same footing in Maryland, whose public-employee retirement system was poorly reviewed by the Pew Center on the States and whose plight is near dire. Maryland’s SB 6 of 2011 provides that, on or after July 1, 2011, an individual not already a member of the Judges’ Retirement System may not join. Instead, all judges previously eligible for the Judges’ Retirement System would be placed into the state’s Optional Retirement Program. The same would apply to those who would otherwise be eligible for most of the state’s pension systems. The bill is currently in the Senate Budget and Taxation Committee.
In 2010, the Virginia state legislature imposed a judicial hiring freeze, declining to fill any newly created vacancies created due to judges retiring, resigning, or otherwise leaving the bench. The council of the state’s mandatory bar (Virginia State Bar), itself an agency of the Virginia Supreme Court, passed a February 2010 resolution urging funding for the vacancies. Nevertheless, the freeze was approved.
In December 2010 the president of the VSB sent a letter to all bar members urging they indicate to their state legislators the impact the freeze was having in Virginia’s courts.
According to the Virginia Lawyer Weekly’s blog, the pressure initially appeared to have succeeded in getting additional funding for judgeships in 2011. However, the Governor’s plan for funding those positions includes use of $5 million in mandatory bar dues. Existing state law directs the bar dues go to a State Bar Fund to pay for the Bar itself and its functions.
The incoming chair of the House Courts of Justice Committee indicated to Virginia Lawyers Weekly he thought this was a direct response by the Governor to VSB’s efforts at advocacy against the hiring freeze plan.
Are state bar dues nationally subject to this sort of general appropriation movement? Virginia’s state appropriations bill (HB 30 of 2010) at pages 25-26 go into detail with respect to state bar funding. Contrast this to South Dakota’s appropriations bill (SB 196 of 2010) which lists State Bar of South Dakota appropriations as “Informational” only.