Connecticut will NOT force courts to order poor into community service prior to filing civil suits

May 17th, 2013 by Bill Raftery

I noted last month that Connecticut was considering compelling those unable to pay civil filing fees to work up to 20 hours of community service. HB 6692 would have amended existing law to provide a person who could not pay due to indigence could be be compelled to work.

If the court waives such fee, fees or the cost of service of process, the court may, in connection with the granting of such fee waiver, order that the person participate in a program of community service, as set forth in section 2 of this act, for a period of time not to exceed twenty hours. In determining whether to order a person to participate in a program of community service, the court shall consider the person’s ability to perform community service and prior compliance with any order to participate in a program of community service.

The avowed purpose according to news reports was to stop frivolous lawsuits.

After an April 15 hearing the bill was effectively rewritten with all references to community service removed (additions to existing 52-259b(c) are underlined):

(c) Nothing in this section shall preclude the court from (1) finding that a person whose income does not meet the criteria of subsection (b) of this section is indigent and unable to pay a fee or fees or the cost of service of process, or (2) denying an application for the waiver of the payment of a fee or fees or the cost of service of process when the court finds that (A) the applicant has repeatedly filed actions with respect to the same or similar matters and such filings establish an extended pattern of filings that have been so without merit as to be deemed frivolous and an abuse of judicial process, (B) the application before the court is consistent with the applicant’s previous pattern of frivolous filings, (C) the application is sought in connection with an action that, on its face, fails to state a cognizable claim for which relief may be granted and would likely be dismissed by the court as frivolous, and (D) the granting of such application would constitute an egregious misuse of Judicial Branch resources. If an application for the waiver of the payment of a fee or fees or the cost of service of process is denied, the court clerk shall, upon the request of the applicant, schedule a hearing on the application.

The amended bill was approved 44-1 in the Joint Committee on the Judiciary on April 19.

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North Carolina may ends Courts Commission, shift “oversight” over judiciary directly to legislature

May 16th, 2013 by Bill Raftery

For two years, the North Carolina legislature has attempted to kill off its Courts Commission, but the latest version gives the legislature directly broad news powers over the courts.

The commission presently is made of 28 members: 7 appointed by the Governor, 7 appointed by the Chief Justice, and 14 legislators. In place since the 1970s, the commission has but one task:

It shall be the duty of the Commission to make continuing studies of the structure, organization, jurisdiction, procedures and personnel of the Judicial Department and of the General Court of Justice and to make recommendations to the General Assembly for such changes therein as will facilitate the administration of justice.

SB 851 of 2012, entitled the Boards & Commissions Efficiency Act of 2012, would have simply repealed  the authorizing legislation for the Commission.

The latest move comes in the form of HB 820 of 2013, the “Judicial Reform Act.” The bill revises numerous laws, for example it allows the Governor to select anyone to fill interim vacancies in District Courts (currently must selection from list given by local bar).

The bill also kills off the courts commission and transfers it to the Joint Legislative Oversight Committee on Justice and Public Safety to oversee courts. That committee has absolutely no members of the judiciary or executive appointees for that matter, consisting instead of 11 House and 11 Senate members.

HB 820 was approved by the House Government Committee on May 9.

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Posted in Other, Rule Making Authority, Structure Changes

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In moves similar to Florida in 2011, Kansas House committee votes to split supreme court; end merit selection, force judges off bench at age 65

May 16th, 2013 by Bill Raftery

I mentioned yesterday the ongoing fight over merit selection for the Kansas Supreme Court. Yesterday was a very, very busy day and night.

During the day, the Kansas Bar Association’s executive committee unanimously rejected a proposal to change the state’s merit system that would give the governor the power to name 5 members of the merit selection commission and the state bar the power to elect 4 (currently it is bar 5, governor 4). The governor’s picks would serve at the pleasure of the governor and NOT for fixed terms. In addition the governor’s pick would be subject to senate confirmation.

During the night the fight took a new twist as members of the Kansas House Federal and State Affairs committee approved constitutional amendments that would end merit selection, split the supreme court, and change the mandatory judicial retirement age downward. (h/t Gavel Grab)

1) Split the Supreme Court: taking a page out of similar efforts in 2011 in Florida when that state’s House was angry with the Supreme Court (HJR 7111) the committee approved a plan to create a Kansas Court of Criminal Appeals to take over all criminal cases currently heard by the Supreme Court. Details remain fuzzy as the bill has not yet entered into the Kansas House’s bill tracking system. One news account seems to make it appear that the court would be on equal status and footing with the Supreme Court, a model that exists in Texas and Oklahoma. Another news account seems to indicate the new Court of Criminal Appeals would be an intermediate appellate court, a model that exists in Alabama and Tennessee.

2) End merit selection: The second proposal submitted by House committee would end merit selection and replace it with a form of federal system that includes executive (governor) appointment, senate confirmation, and possible life tenure. This may be similar if not identical to a House plan put forth in 2011 (HB 2101) for the Court of Appeals that included life tenure, a provision that was stricken after it was noted the KS constitution forbids life tenure for anyone (Art. 15, Sec. 2 “The tenure of any office not herein provided for may be declared by law; when not so declared , such office shall be held during the pleasure of the authority making appointment, but the legislature shall not create any office the tenure of which shall be longer than four years, except that appointments under a merit system in civil service shall not be subject to such limitation.”)

3) Reduce mandatory retirement age: At a time when most states are looking to INCREASE the mandatory retirement age, the House Federal and State Affairs Committee approved a measure to reduce it for Kansas from 75 (or more accurately the term in which they turn 75)  down to 65. The mandatory retirement age is set by statute and therefore does NOT require the supermajorities the other two proposals would require.

House Democrat Minority Leader Paul Davis told the Wichita Eagle: “Trying to mess with their retirement age and creating new courts are just simply an effort to try to bully the Supreme Court,” he said. “But there’s just no place for that.”

Lead proponent Rep. Lance Kinzer who chairs the House Judiciary Committee also told the Eagle that while the court-split and merit-selection end amendments were put forth with an eye towards 2014, the reduction in the mandatory retirement age for justices from 74 to 65 may get through the 2013 session.

With respect to the retirement age, it is unclear what justices would be impacted. The Kansas Supreme Court’s website gives the birthday or birth year of the 7 justices; a reduction from 75 down to 65 would not appear to result in an immediate forced resignation (assuming the provision is retroactive).

Birth year Retire during term each 75 (current) Retire during term each 65
Chief Justice Lawton Nuss 1952 2027 2017
Justice Marla J. Luckert 1955 2030 2020
Justice Carol A. Beier 1958 2033 2023
Justice Eric S. Rosen 1953 2028 2018
Justice Lee A. Johnson 1947 2022 2012
Justice Dan Biles 1952 2027 2017
Justice Nancy Moritz  1960 2035 2025

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Posted in Qualification & Terms, Selection

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Did Kansas Senator threaten funding for courts if judges didn’t accept change to merit selection? Similar efforts occurred in FL in 2011.

May 15th, 2013 by Bill Raftery

I’ve mentioned over the last two years the numerous efforts by Kansas Republicans to change the merit selection system used for the state’s appellate courts. Efforts to change it by statute for the Court of Appeals was approved earlier this year, but GOP members have not gotten the 2/3rds of the House needed to change it for the Supreme Court.

Now comes word from the state’s Chief Justice that the Senate Judiciary chair and prime sponsor of the change away from merit selection attempted to link court funding to the changes (h/t to Gavel Grab for the pointer). A Topeka Capital Journal article details the accusation and denials.

If the Kansas Senate did attempt to link changes to judicial selection with court funding, it would not be the first time. When Florida attempted to change not only merit selection but the structure of the supreme court itself (splitting it into two courts) those seeking to end merit selection was tied with a constitutionally guaranteed 2.25% appropriation of general revenue funds.

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Posted in Salary & Budget, Selection

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Movement on changing judicial selection in Texas House and Senate

May 9th, 2013 by Bill Raftery

Not to pick on Texas two days in a row, but the state’s House and Senate are both moving on judicial selection at a rapid clip.

On May 3 the Senate State Affairs Committee approved SB 103, a law that would end straight ticket voting for the state’s judicial offices. As I mentioned, the state’s Chief Justice has been asking for an end to the practice for years and the use of straight ticket voting has been cited as a reason for entire counties to clear their bench (i.e. remove all Democrats for Republicans or all Republicans for Democrats) in the last several years.

The other piece of legislation was HB 2772, approved May 2 by the full House. The bill directs the creation of a committee to examine judicial selection in the state. Specifically the committee is to look at

  1. lifetime appointment
  2. appointment for a term
  3. appointment for a term, followed by a partisan election
  4. appointment for a term, followed by a nonpartisan election
  5. appointment for a term, followed by a nonpartisan retention election
  6. partisan election for an open seat, followed by a nonpartisan retention election for incumbents
  7. any other method or combination of methods for selecting district judges and appellate judges and justices.

The committee is made up exclusively of members of the legislature

  • chair of the senate jurisprudence committee
  • chair of the senate criminal justice committee
  • four senators appointed by the lieutenant governor
  • chair of the judiciary and civil jurisprudence committee of the house of representatives
  • chair of the criminal jurisprudence committee of the house of representatives
  • four members of the house of representatives appointed by the speaker of the house of representatives

The committee would have until January 6, 2015 to come up with a recommendation.

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Texas House passes several bills that could mean arrest of judges that enforce federal firearms laws

May 8th, 2013 by Bill Raftery

I mentioned in January the press to prosecute state and local officials, including and specifically judges, who uphold federal firearms laws. On Monday May 6, two such bills were approved by the Texas House.

Texas’ HB 1076 specifies under subsection a the law applies to “the State of Texas, including… [a] court, or other entity that is in any branch of state government and that is created by the constitution or a statute of this state…” (emphasis added)

Subsection (b) prohibits any covered entity from adopting “a rule, order, ordinance, or policy under which the entity enforces or by consistent action allows the enforcement of, a federal statute, order, rule, or regulation enacted on or after January 1, 2013, that purports to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as capacity or size limitation, a registration requirement, or a background check, that does not exist under the laws of this state.”

In addition “No entity described by Subsection (a) and no person employed by or otherwise under the direction or control of the entity may enforce or attempt to enforce any federal statute, order, rule, or regulation described by Subsection (b).”

Moreover, a judge that “knowingly enforces or attempts to enforce any federal statute, order, rule, or regulation described by Subsection (b) [is guilty of] a Class A misdemeanor.”

HB 1314 echoes many of the same elements of HB 1076: an official is guilty of a Class A Misdemeanor if the official “knowingly seizes a firearm as permitted or required by a federal statute, order, rule, or regulation that imposes a prohibition, restriction, or other regulation on firearms that does not exist under the laws of this state.”

Both bills are now in the Senate but not yet assigned to a committee.

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Issue 7:16 is out

May 3rd, 2013 by Bill Raftery

Issue 7:16 is here.

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Posted in Weekly Edition

California Assembly Committee approves limits on court contracts

April 16th, 2013 by Bill Raftery

Many trial courts contract out at least some services that would otherwise be performed by court staff. In California, the use of such contracts may be curtailed under AB 566 as approved by the Assembly Appropriations Committee last week.

Under the bill trial courts would only be allowed to contract “for any services that are currently or customarily performed by trial court employees” if a series of criteria were met, described in the bill’s official analysis as:

  • The contract may not be approved if, in light of the services provided by the trial courts and the special nature of the judicial function, it would be inconsistent with the public interest to have the services performed by a private entity
  • The court clearly demonstrates that the contract will result in actual, overall cost savings to the court, considering specified factors
  • The contract savings are not the result of lower contractor pay rates or benefits, provided the contract is eligible for approval if the contractor’s wages are at the industry standard and do not undercut trial court pay rates
  • The contract does not cause existing trial court employees to lose employment
  • The contract is awarded through a competitive bidding process
  • The contract provides for qualified staff, and the contractor’s hiring practicing are nondiscriminatory
  • The contract allows for immediate termination by the trial court, without penalty, for material breach
  • For contracts over $100,000, requires the contract to (i) disclose specified information, (ii) provide measurable performance standards; and (iii) require a performance audit and a cost audit be done and considered prior to any contract renewal
  • The contract is limited to no more than five years

The bill was approved on a 7-2 vote in the Assembly Appropriations Committee on April 9.

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Posted in Rule Making Authority, Salary & Budget

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Tennessee legislature debates: 1 court efiling vendor or multiple vendors authorized by AOC?

April 12th, 2013 by Bill Raftery

As states move to efiling of court documents a dilemma can arise between individual counties seeking out their own efiling systems and the desire to have uniformity throughout a state. Tennessee confronted this situation in the 2013 legislative session and appears set to send its solution to the Governor.

HB 418 / SB 1050, as introduced (and discussed on the blog here), would have required a single system approved by the Administrative Office of the Courts (AOC).

Unless otherwise provided by law, on or after the effective date of this act, all courts in this state shall utilize the same system provider for operating an electronic court filing system. Such provider shall be determined by the administrative office of the courts.

Neither bill went anywhere.

Instead, late in the session an amendment was offered to replace the text of another bill set: HB 1226 / SB 1057. Under this language counties could use any system approved by the AOC and that met criteria and technical specifications set by the AOC.

Unless otherwise provided by law, all courts in this state that implement an electronic court filing system pursuant to Tennessee Supreme Court Rule 46 and Tennessee Rule of Civil Procedure 5B shall utilize only a system provider authorized by the administrative office of the courts. The administrative office of the courts shall establish technical standards with the goals of ensuring integrity of filings, assuring an environment that promotes uniformity and ease of filing, and providing the framework for future compatibility among e-filing solutions implemented by local and state courts. Nothing in this section shall require the administrative office of the courts to begin implementing a statewide e-filing system.

The Senate version passed the Senate April 10, the House then adopted the Senate bill on April 11.

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Issue 7:15 is out

April 11th, 2013 by Bill Raftery

Issue 7:15 is here.

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Posted in Weekly Edition