Archive for February, 2012

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Maryland joins other states in considering ways to allow judicial disciplinary commission to remove judges from office for their opinions

February 23rd, 2012

Maryland’s legislature is just the latest (including Florida, Minnesota, and Tennessee) that may seek to use the state’s judicial disciplinary process to punish or remove judges from office not for misconduct but for their opinions and rulings. (see here and here for prior write-ups in Gavel to Gavel the publication).

HB 1061, as introduced, is an amendment to the state’s constitition that would expand the authority of the state’s Commission on Judicial Disabilities to remove judges from office that:

  • Refused to enforce applicable law, court rules, or provisions of this constitition or the United States constitution
  • Rendered a decision or issued an order that is contrary to applicable law, court rules, or provisions of this constitition or the United States constitution
  • Knowingly disregarded applicable law, court rules, or provisions of this constitition or the United States constitution

Judges could be merely reprimanded if they “misinterpreted” the applicable law, as determined by the Commission. Judges found by the Commission to have engaged in the above conduct would be removed from office, forfeit their pensions and “any rights and privileges”, possibly including judicial immunity and permitting the judge to be sued personally.

Complaints to the Commission under these provisions would accepted from any litigant, whether the case in question is pending or concluded.

HB 1061 is before the House Judiciary Committee and set for a March 7 hearing.

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Arizona Senator tries to “push back” against state’s supreme court decision by cutting court of appeals from 22 judges to 6

February 21st, 2012

Legislative anger of state supreme court decisions is nothing new, nor is the practice of “punishing” the judiciary as a whole for the decisions of that court. The most visible example so far this year may have been the attempt made in Arizona last week.

Arizona has an independent redistricting commission (IRC). In November 2011, the state’s Senate and Governor attempted to remove the chair of that commission. The chair filed an action in the state’s Supreme Court, which held the attempted removal unconstitutional.

Angry over the decision, a state senator attempted to “push back” against the judiciary as a branch in two ways. The first was an effort to end the state’s merit selection system and replace it with partisan elections (SB 1371 / SCR 1034).

The second would have reduced the state’s Court of Appeals (which did not hear the IRC case and had nothing to do with it) from 22 judges to 6 (SB 1372).

The video below is from the February 13, 2012 hearing on these bills before the Arizona Senate Judiciary Committee.

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Posted in Selection, Structure Changes, Video

West Virginia bill to change funding for judicial campaign conduct committee amended to overhaul system in light of recent U.S. Supreme Court decision

February 21st, 2012

The U.S. Supreme Court’s decisions in  McComish v. Bennett and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett were at the heart of a hearing Monday in the West Virginia House Judiciary Committee.

HB 4016, as introduced, would have modified sources of revenue for the Supreme Court of Appeals Public Campaign Financing Fund by

  • Requiring a $2 million transfer from the Treasurer’s Unclaimed Property Trust Fund to the financing fund
  • Requiring attorneys to pay additional fees to the state bar
  • Requiring plaintiffs to pay additional fees when a civil action is filed of $10 or $20 in civil actions

A committee substitute addressed the McComish cases prohibition on matching/rescue funds in public financing systems by striking them from the West Virginia system. It also extended the program into the 2016 state supreme court election

The bill, as amended, was approved and forwarded to the House Finance Committee.

 

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Posted in Salary & Budget, Selection

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State legislatures grappling with filing of false liens on judges and court staff

February 20th, 2012

The 1990s saw a series of efforts by disgruntled litigants using so-called “common law courts” to file liens with county recorders on the property of judges and court staff. At the federal level, the Court Security Improvement Act of 2007 expanded penalties for retaliating against a federal judge or clerk/staff by false claim or slander of title (18 USC 1521).

In recent years, many of the same practices launched against state judges and court staff in the 90s have returned with new vigor. As a result, several state legislatures have sought to enact prohibitions on such practices or enhance their existing provisions.

Alabama HB 17 / SB 64 / SB 225 Creates crime of offering a false instrument for recording against a public servant. Allows a public servant to request to remove a false instrument that has been filed against the public servant to be removed to circuit court and be expedited.

Alabama HB 99 Creates several new crimes with respect to sham legal processes against public servants, including judges and court staff. Creates crimes of:

  • impersonating a state or local official or employee or a law enforcement officer in connection with sham legal process
  • falsely asserting authority of state law in connection with sham legal process
  • acting, without authority, as a judge, magistrate, hearing officer, juror, clerk of court, or any other official with the authority to adjudicate the rights or interests of another, or to sign a document in this capacity as if authorized by state law
  • falsely asserting authority of law in an attempt to intimidate or hinder a state or local official or employee or a law enforcement officer in the discharge of official duties by means of threats, harassment, physical abuse, or the use of sham legal process.

Georgia HB 997 Provides for the new crime of false lien statements against public officers, including all judges, or public employees, including every person employed by the judicial branch. (Hearing 2/22/12)

Indiana SB 382 Makes it a Class D felony for a person to file a false lien or a false encumbrance against a public servant’s real or personal property.

Nebraska LB 982 Changes the powers of the Secretary of State regarding the removal of fraudulent (or believed to be fraudulent) financing statements. Allows those affected by a fraudulent statement to recover damages from the person responsible for the fraudulent statement. Expands definition of a fraudulent statement.

Pennsylvania SB 50 Creates crimes of simulated legal process, impersonating public official or legal tribunal, and hindering public official related to filing of false liens and similar items against judges and others.

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Week ahead: TN looks at judicial discipline, GA may expand protections for judges & court employees, WV considers way to pay for public financing of judicial campaigns

February 20th, 2012

Legislatures Coming Into Session

NONE

Committee Activity of Note

February 20

West Virginia House Judiciary Committee

HB 4016 Provides sources of revenue for the Supreme Court of Appeals Public Campaign Financing Fund. Requires a $2 million transfer from the Treasurer’s Unclaimed Property Trust Fund to the financing fund. Requires attorneys to pay additional fees to the state bar. Requires plaintiffs to pay additional fees when a civil action is filed. Provides for the collection and deposit of the $2 million and additional fees into the financing fund. Creates fair administration of justice fee of $10 or $20 in civil actions.

February 21

Tennessee House Judiciary Committee

HB 2935 Abolishes the court of judiciary. Creates 16-member board of judicial conduct. Changes the burden of proof to investigate a judge to probable cause that misconduct occurred from substantial likelihood that it did.

Tennessee Senate Judiciary Committee

SB 2671 Abolishes the court of judiciary. Creates 16-member board of judicial conduct. Changes the burden of proof to investigate a judge to probable cause that misconduct occurred from substantial likelihood that it did.

February 22

Georgia House Judiciary Non-Civil Committee

HB 541 Includes in crime of obstruction of public administration threatening or intimidating a law enforcement officer, public official, or other person relating to such person’s involvement in a judicial proceeding.

HB 997 Provides for the new crime of false lien statements against public officers, including all judges, or public employees, including every person employed by the judicial branch.

February 23

South Carolina House Judiciary Committee, Constitutional Laws Subcommittee

HB 4128 Requires all courts “In any case or controversy involving the enforcement of a debt…specifically enforce payment in gold or silver coin, or both.”

February 24

Montana Law and Justice Committee (interim committee)

Review of Supreme Court Rules of Procedure

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Posted in Coming Week

Pennsylvania becomes fourth legislature this year to consider public financing of judicial races

February 17th, 2012

I noted last month that legislatures in Kentucky, Ohio, and Wisconsin were considering establishing (or, in the case of Wisconsin, reestablishing) public financing of at least some judicial races. Now, Pennsylvania joins the list of states considering such a move.

Under HB 2193, introduced earlier this week, the Pennsylvania Fair Campaign Fund would be created to publicly finance races for the state’s appellate courts (Supreme, Superior, and Commonwealth). Funds would come from a) $3 tax return check offs, b) a fee up to $50 on attorneys and c) if the other two sources are insufficient, general revenue funds. Candidates who collect $45,000, of which 350 contributions must be in amounts of at least $10, would be eligible for funding up to $100,000 for primaries and $200,000 for general elections (whether head-to-head partisan or retention elections). Additional “rescue” funds would be made available if a third party attacks the candidate.

The bill is currently pending in the Pennsylvania House State Government committee.

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Issue 6:7 is out with a focus on legislation letting more people carry guns into courthouses

February 16th, 2012

Issue 6:7 is here.

  • Focus Trend: Letting more people carry guns into courthouses
  • South Dakota looks to prohibit judicial enforcement of any religious codes
  • Minnesota bill would guarantee 2 Court of Appeals judges per Congressional district
  • Changes to court technology fees advance in Illinois but die in Virginia
  • Efforts to increase mandatory judicial retirement moving in three states

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Posted in Weekly Edition

Wisconsin debates making battery on court staff a felony

February 15th, 2012

Many states have enhanced penalties for assaults or other crimes committed against judges for performing their functions as officers of the third branch. Many states are however moving to increase the penalties for crimes committed against court staff in the course of their duties. This year one such bill is Wisconsin’s AB 424. The bill

  • Makes battery or threat to a court employee a Class I felony (Wisconsin felonies range in severity from A down to I).
  • Makes it a Class I felony to threaten to cause damage to a courthouse and if the threatened action could result in bodily harm to a judge or court employee.

The Wisconsin Assembly’s Judiciary and Ethics Committee heard testimony on the bill February 2, 2012, the video of which is below.

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Judicial compensation commissions introduced in Connecticut, advance in Indiana

February 15th, 2012

Judicial salary or compensation commissions are nothing particularly new, but more and more states have in the last several years attempted to get them established in their states. Texas enacted one in 2007 that makes advisory suggestions, while the salaries set by New York’s commission, created by a law signed in 2010, are binding unless overriden by the state’s legislature. 2012 has two bills that look to establish or reestablish such commissions.

The Indiana Public Officers Compensation Advisory Commission was created in 2004 (HB 1401) to make recommendations to the legislature regarding salaries to be paid to public officers, including and expressly all judges. It was repealed in 2011 as part of an omnibus bill (HB 1233) that eliminated dozens of councils, commissions, and boards. HB 1002 of 2012 also eliminates two dozen or so committees, commissions, and boards but does re-create the Public Officers Compensation Advisory Commission. The bill, with the advisory commission, passed the House unanimously on January 30 and is currently in the Senate Committee on Public Policy.

Connecticut is considering SB 31, a bill to create a new Commission on Judicial Compensation. Connecticut already has a Compensation Commission for Elected State Officers and Judges which recommends salary changes. The Commission on Judicial Compensation under SB 31, however, would replicate provisions similar to New York, namely, that the recommended changes to salaries are automatic unless overriden by the legislature. The bill specifies that the Commission in examining judicial salaries must take into account a variety of factors, including but expressly not limited to:

  1. the overall economic climate in the state
  2. the rate of inflation
  3. the levels of compensation received by judges of other states and of the federal government
  4. the levels of compensation received by attorneys employed by government agencies, academic institutions and private and nonprofit organizations
  5. the state’s interest in attracting highly qualified and experienced attorneys to serve in judicial capacities
  6. compensation adjustments applicable to employees of the state during applicable fiscal years
  7. the state’s ability to fund increases in compensation

The bill was introduced February 9 and is currently pending in the Joint Committee on Judiciary.

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Posted in Salary & Budget

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Proposed legislative changes to court security funding, practices

February 14th, 2012

With legislation recently introduced in the U.S. Senate to provide federal assistance to state court security, several state legislatures are grappling with the same subject, in particular who should provide court security and how should it be paid for? Bills introduced already in 2012 include:

Hawaii HB 493 Transfers responsibility for judiciary security personnel from department of public safety to newly created office of the sheriff within the department of the attorney general. Carried over from 2011 session.

Minnesota HB 1607 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Minnesota HB 2000 Authorizes county boards to set and impose court security fees in civil and criminal matters for court security equipment and personnel. In House Judiciary Policy and Finance Committee.

Minnesota SB 1283 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Missouri HB 1416 For St. Louis County Courthouse only, exempts any licensed attorney from court security screening measures. In House (no committee).

New Jersey SB 264 Provides that while each county must provide “suitable courtrooms”, it is the county governing body that shall have final authority to determine expenditures for “suitably” securing courtrooms. In Senate Judiciary Committee.

New Jersey SB 652 Creates Court Security Enhancement Fund financed by increase of $5 to most court fees, assessments and penalties, to provide a continuous source of funding to assist counties and municipalities in providing and maintaining safe and secure court facilities. In Senate Judiciary Committee.

New York AB 3385 Provides a $5 fee to cover security costs in justice courts. Carried over from 2011 session.

New York AB 7325 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

New York SB 5177 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

Oklahoma SB 626 Repeals requirement that counties provide the courts attendants, fuel, lights and stationery, electricity, water, other utilities, toilet facilities and janitorial service, suitable and sufficient for the transaction of court business in such facilities. Provides county shall not be responsible for providing security, telephone, and utility service for the county courthouse or any annex thereto without an agreement with the Administrative Director of the Courts providing that the county will be reimbursed from the court fund for such services. Carried over from 2011 session.

Oregon HB 4163 Changes title of “court security officer” to “judicial security marshal” and “court security personnel” to “judicial security personnel.” Requires Department of Public Safety Standards and Training to certify individual members of judicial security personnel upon request of Security and Emergency Preparedness Office of Judicial Department, at office’s expense. In House Judiciary Committee.

Tennessee HB 1801 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Tennessee SB 1755 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Virginia HB 683 Increases from $10 to $15 the maximum sum that may be assessed as part of the costs in each criminal or traffic case in district or circuit court in which the defendant is convicted of a violation of any statute or ordinance, to be used to pay for courthouse and courtroom security. Tabled in House Courts of Justice, Civil Subcommittee 1/18/12.

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