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Idaho may strip Supreme Court Justices of power to authorize arrest warrants by telegraph

February 2nd, 2012

With e-ticking, e-filing, and e-everything becoming commonplace it courts, it sometimes takes some time to adjust statutes to the new realities. That appears to be the case in Idaho, where current statute provides for warrants of arrest to served by telegraph:

A justice of the Supreme Court or probate judge may, by an indorsement under his hand upon a warrant of arrest, authorize the service thereof by telegraph, and thereafter a telegraphic copy of such warrant may be sent by telegraph to one or more peace officers, and such copy is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant issued by the magistrate making the indorsement.

Probate courts in the state were eliminated decades ago, making the provision even more anachronistic.

Under SB 1272, the statute would be changed to read as follows:

A warrant of arrest may be sent by telegraph telecommunication process or facsimile process to one (1) or more  peace officers and a copy of a warrant sent in such manner is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant.

The bill is currently pending in the Senate Judiciary Committee.

 

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Bans on court use of sharia/international law: 33 bills in 20 states to start 2012; review of all efforts since 2010

January 30th, 2012

2012 marks the third year in a row to see major legislative efforts to ban state courts from using sharia or international law. A recap:

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

  • Louisiana HB 785 & SB 460: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
  • Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
  • Tennessee HB 3768 & SB 3740: Defines “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

  • Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….a court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the united states or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

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Now Tennessee considers drug testing judges

January 12th, 2012

I noted several weeks ago the press by some elected officials to drug test welfare recipients is leading other legislators to want to drug test elected officials (including judges). Now Tennessee is considering such a proposal but, rather than citing to drug testing welfare recipients, is citing the state’s drug-free workplace laws.

Under Section 1 of HB 2432 as introduced, the speakers of the House and Senate would be required to create a drug-testing regime for members of the General Assembly “consistent with the provisions for a drug free workplace under title 50, chapter 9″ and specifically cites Tenn. Code Ann. § 50-9-106(a)(1), which authorizes private employers to conduct drug tests.

Section 2 of the bill goes on to require the Tennessee Ethics Commission “develop and implement a system for drug testing all persons who are elected to public office”, again citing 50-9-106(a)(1).

Because judges in Tennessee are “elected to public office” (through partisan or non-partisan election at the trial and a merit selection/retention election system at the appellate level) they would appear to be covered under Section 2 as “elected to public office.” Section 3, however, confusingly does not specifically require the Supreme Court administer such a program, but the court is “urged” to do so.

The Tennessee supreme court is urged to develop and implement a system for drug testing all persons who are elected to judicial office. The system should provide for the testing of elected public officials in a manner consistent with the provisions for a drug free workplace under title 50, chapter 9. The expenses of the system may be paid from applicable accounts of the judiciary for official purposes.

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Wisconsin legislator seeks to remove supreme court justice by bill of address for failure to recuse in cases

January 11th, 2012

2011 was record setting for the number of attempts made to impeach or otherwise remove state judges and 2012 looks to be starting off on the same footing.

According to this morning’s Wisconsin Law Journal, a state lawmaker is circulating a petition seeking to remove Wisconsin Supreme Court Justice Michael Gableman “because he presided over cases involving a law firm that had represented him without charging legal fees.”

A statement released by the representative on her Facebook page states that rather than impeachment (which would require a finding of “corrupt conduct in office, or for crimes and misdemeanors”) the removal method will be a bill of address. The state’s constitution is silent as to what the criteria for such a removal, however the statement alleges Gableman violated state law, the Code of Judicial Conduct, and Supreme Court rules.

Any justice or judge may be removed from office by address of both houses of the legislature, if two-thirds of all the members elected to each house concur therein, but no removal shall be made by virtue of this section unless the justice or judge complained of is served with a copy of the charges, as the ground of address, and has had an opportunity of being heard. On the question of removal, the ayes and noes shall be entered on the journals.

A bill of address is numerically harder than impeachment: while both require 2/3rds of the Senate, impeachment requires only a simple majority in the House, while a bill of address requires 2/3rds.

This would be the second legislative attempt to remove a judge for failure to recuse in two years. Oklahoma’s HR 1024 of 2011 would have asked the state’s judicial disciplinary commission to remove District Judge Tom Lucas for his refusal to recuse from all criminal cases after a request he do so filed by the county District Attorney.

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Jury nullification bills: active in 2011, moving in 2012?

December 22nd, 2011

The issue of jury nullification has come back up into the news lately, but it has been peculating in state legislatures for the last several years. New Hampshire nearly passed a law in 2011 and may yet do so in 2012 that would have required judges instruct jurors about the power to nullify.

2012

Iowa HB 542 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

Iowa SB 318 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

New Hampshire HB 146 AS AMENDED: Provides in all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. Provides the court shall permit the defendant or counsel for the defendant to explain this right to the jury. Approved on  voice vote by full House 3/15/11. Rejected by Senate Judiciary Committee  on tie (2-2) vote 5/26/11. Rejected by full Senate 8-12 on 6/1/11. Re-referred to Senate Judiciary Committee. Carried over into 2012 session.

Tennessee HB 1831 Requires, in any criminal jury trial, the trial judge to inform jurors with the following statement, verbatim “In Tennessee and throughout America, jurors possess the responsibility and fundamental right to judge the facts and the law in any court. Jurors are empowered to decide if a law is just, moral, and constitutional. Additionally, jurors are empowered to decide if that law has been violated. A verdict of ‘Guilty’ condemns the defendant, and a verdict of ‘Not Guilty’ absolves the defendant of any wrongdoing. The juror’s conscience dictates the exercise of this power.” Carried over into 2012 session.

2011

Iowa HB 542 (see above) Carried over into 2012 session.

Iowa SB 318 (see above) Carried over into 2012 session.

Montana HB 332 Provides parties have the right to argue to the jurors that a law is unconstitutional, is unconstitutional as applied, or should be nullified for any other reason. Provides upon request by a party, the court in any jury trial shall inform the jurors that the jurors may judge both the facts and the law in the case. Provides denial of the instruction is reversible error. Tabled by House Judiciary Committee 18-2 on 2/21/11.

New Hampshire HB 146 (see above) Carried over into 2012 session.

Tennessee HB 1831 (see above) Carried over into 2012 session.

2010

New Hampshire HB 1347 Provides that in all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. Provides the court is also mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House Judiciary Committee 13-7 on 2/2/10. Rejected by full House 234-113 on 2/17/11.

2009

Alaska HB 140 Provides a defendant has the right to inform the jury of the jury’s power to judge the just application of the law and to vote on the verdict according to conscience. Further provides failure to allow the defendant to inform the jury of the jury’s power is grounds for a mistrial. Died in House Judiciary Committee.

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With increased interest in drug testing welfare recipients, several states consider drug testing judges

December 2nd, 2011

According to the National Conference of State Legislatures, 36 states in 2011 entertained proposals for drug testing applicants for welfare and food stamps. Arizona, Florida, and Missouri enacted such proposals, and at least one Presidential candidate has entertained the idea.

The last time the issue came up in the mid to late 1990s, several attempts were made to impose the same conditions on not only the legislators enacting such laws, but on judges as well.

In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

Undaunted, in 2006 an amendment to the Louisiana constitution (SB 274 of 2006) and bill (SB 361) were introduced that specifically targeted state judges for drug testing and that repeated almost verbatim the text of the law struck down by the federal courts, most particularly in the legislative declaration portion of the bills.

The legislature declares the interest of the state in ensuring that those who are elected to serve in public office as judges in any trial or appellate court within this state are persons who have a respect for the laws they are sworn to uphold and are persons of integrity, sound judgment, reliability, and seriousness of purpose. The legislature finds that judges are in a critical position to protect the citizens of the state of Louisiana from the numerous illegal activities associated with illegal drugs, and to ensure access to courts and other constitutional rights. The legislature finds that the use of illegal drugs by judges will put the citizens of the state of Louisiana in danger because judges who use illegal drugs cannot provide the state and its citizens with fair and impartial trials. The legislature finds that the use of illegal drugs which may impair the physical or mental ability of a judge to function effectively in all aspects of his duties cannot be condoned, and therefore the state has a compelling interest in establishing a requirement that all judges demonstrate that they do not use illegal drugs, without the necessity of showing any measure of individualized suspicion.

Interestingly, when Louisiana tried again in 2010 for a voluntary drug testing (and psychological evaluation) program for elected officials (HB 1352) it was focused only on statewide elected officials in the executive branch listed in Art. IV, Sec. 3 of the state constitution and legislators.

Several similar bills, either targeting judges in particular or sweeping them in as “elected officials”, have been introduced in state legislatures. Many seek to avoid the Fourth Amendment problems found by the O’Neill court by making the programs voluntary. Most recently South Carolina’s Senate in 2008 approved a voluntary plan for testing that state’s judges, however the bill died in the House Judiciary Committee and was apparently never reintroduced.

2011

Ohio HB 343 Mandatory drug testing for Supreme Court Justices, members of the General Assembly, the board of directors of JobsOhio, and recipients of Troubled Asset Relief Program money. Carried over into 2012 session.

Oklahoma SB 538 Mandatory drug testing for Temporary Assistance for Needy Families recipients and all “state elected officials”. Those declining must submit to substance abuse program. Carried over into 2012 session.

Puerto Rico PC 3215 Requires all individuals nominated for a judicial office submit a hair sample for drug testing (previously discussed here). Carried over into 2012 session.

2009

Oregon HB 2635 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2008

South Carolina SB 1070 Voluntary for any “popularly elected office or an office elected by the General Assembly”. (In South Carolina, judges are elected by the General Assembly). Approved by full Senate. Died in House.

2007

New Mexico SB 36 Voluntary drug testing for all “elected officials”. Died in committee.

Oregon HB 2306 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2006

Missouri HB 1646 Mandatory drug testing for “all state elected officials”. Died in committee.

Louisiana SB 274 (Constitutional Amendment) Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

Louisiana SB 361 Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

2005

New Mexico SB 20 Voluntary drug testing for all “elected officials”. Died in committee.

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Bans on court use of sharia/international law: Pennsylvania bill introduced

November 28th, 2011

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. » Read more: Bans on court use of sharia/international law: Pennsylvania bill introduced

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Special/Interim Judiciary Committee meetings in Illinois, North Carolina, Washington

November 28th, 2011

This week promises to be busy for legislators as Special and Interim Sessions are being held in Illinois, North Carolina, and Washington.

The Illinois House’s Judiciary II – Criminal Law Committee meets December 1 to examine overcrowding in prisons.

In NC, the Senate Judiciary I committee meets today (November 28) to debate changes to the state’s No Discriminatory Purpose in Death Penalty Act that allow the introduction of certain statistical evidence to show discrimination in either pretrial or posttrial proceedings in capital cases.

Washington State’s Senate Judiciary Committee will consider draft legislation on “Protection of public policy” on November 29.  On December 1 the same committee will consider bills on

  • Bail and pretrial release practices
  • Consular Notification
  • County Coroners

On December 2, it is the House Judiciary’s turn to meet. That committee will look at

  • Child Support Schedule Work Group Report and Recommendations
  • Uniform Collaborative Law Act
  • Legislation authorizing qui tam actions as part of a state Medicaid Fraud False Claims Act

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New Hampshire proceedings to impeach judges for their decisions continues Nov. 29

November 21st, 2011

The effort in New Hampshire to impeach a marital master, and potentially all the judges of the state’s Superior Court, for their decisions in family law cases is set to continue on November 29 (see here for all prior posts). According to the NH House calendar, a special subcommittee of the House Judiciary Committee is set for a work session pursuant to HR 7, which directs the house judiciary committee to investigate whether grounds exist to impeach marital master Philip Cross and/or any justice of the New Hampshire superior court.

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Florida Senate: Make non-efilers in courts pay a 3.5% surcharge?

October 17th, 2011

Cross-posted to Court Technology Bulletin.

I mentioned last week that the Florida Senate was going to meet tomorrow (October 18) and that the agenda included an item entitled

Presentations on issues related to electronic filing of court documents

I came across a (possibly) related piece of legislation: SB 410 of 2012. The bill contains two provisions:

(1) A litigant who is required to electronically file a court or other legal document in a court of this state, in the Division of Administrative Hearings, or in the Office of the Judges of Compensation Claims shall pay a surcharge in addition to any other cost incurred if the litigant files a paper document instead of electronically filing the document. The surcharge shall equal 3.5 percent of the cost of filing the document electronically.
(2) This section does not apply to a litigant who is indigent as determined by s. 27.52, Florida Statutes.

The obvious question is “who is required to electronically file a court or other legal document”? SB 170 of 2011, signed into law in June, requires prosecutors and public defenders to e-file documents with the clerk of court and report back on March 1, 2012 on the implementation of the program to the legislature (click here for prior posts). A 2009 statute (SB 1718) required the clerks of court to implement an electronic filing process by March 1, 2010.

Live coverage of the Senate Judiciary Committee e-filing presentation can be found here.

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