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Arizona Senator trying to end merit selection in state wants to remove over 2/3 of Court of Appeals judges, strip court of funding

February 1st, 2012

I mentioned last week the Arizona Senate, despite approving a constitutional amendment in 2011 to alter but not end merit selection in the state, is considering revoking the amendment from the 2012 ballot and replacing with partisan election for all judicial offices (not just those currently under merit selection).

The same senator has now introduced SB 1372 which would effectively remove 2/3 of the judges from the state’s Court of Appeals.

Under existing law, the Court of Appeals is made up of 2 divisions. Division 1 has a Chief judge + 15 judges (sitting in panels of 5 labeled A, B, C, D, and E. Division 2 has 6 judges with panels A & B. The two Divisions combine for a total of 22 judges.

Under SB 1372 Division 1 would shrink from 16 to 3 while Division 2 would go from 6 to 3. The reduction from 22 down to 6 would also cut funding for the court. Under current law the Court of Appeals retains 8.36% of all of the monies it collects monthly as fees and costs associated with appeals. SB 1372 would reduce that to 1% and transfer the other 7.36% to the state general fund.

The bill is currently pending in the Senate Judiciary Committee.

 

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Despite already passing ballot item for 2012 election, Arizona legislature takes up debate over judicial elections/merit selection again

January 27th, 2012

2011 proved highly contentious when it comes to judicial elections. One state that had presumably settled the issue (legislatively speaking) was Arizona, which sent to the November 2012 a proposal to revise the state’s merit selection system, increase judicial terms, and increase the mandatory retirement age for judges.

SCR 1001 of 2011 was approved in April, before the state’s Supreme Court overturned an effort by the state’s governor and senate to remove from office the chair of the state’s redistricting commission.

Early indications are that SCR 1001 may now be taken off the ballot and replaced with something different. Already introduced by the chair of the Senate Appropriations Committee is SCR 1034 of 2012, a constitutional amendment to outright end merit selection in the state. In addition to ending the state’s merit selection system, it would also undo the provisions of SCR 1001 extending judicial terms and mandatory retirement ages.

The amendment is currently pending in the Senate Judiciary 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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Ohio Issue 1: Supreme Court Commissions? Courts of Conciliation? Thank (or blame) New York…

October 28th, 2011

While much of the focus regarding Issue 1 has been on the proposed change to the judicial retirement age, Ohio voters will decide on the outright repeal of two sections of the state constitution’s Article 6. Both sections can be traced back to New York’s 1846 constitution.

Courts of Conciliation

Ohio Constitution (1851) Article 6, Section 19

The General Assembly may establish courts of conciliation, and prescribe their powers and duties; but such courts shall not render final judgment in any case, except upon submission, by the parties, of the matter in dispute, and their agreement to abide such judgment.

New York Constitution (1846) Article 6, Section 23

Tribunals of conciliation may be established, with such powers and duties as may be prescribed by law; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference, and agree to abide the judgment, or assent thereto, in the presence of such tribunal, in such cases as shall be prescribed by law.

Provisions for tribunals of conciliation or courts of conciliation can be found in the 1800s constitutions of not only Ohio (1851), but Wisconsin (1848), California (1849), Michigan (1850), Indiana (1851), and North Dakota (1889). They are all taken, almost verbatim, from the 1846 New York Constitution, which for its time was considered revolutionary in terms of judicial proceedings (and also was the genesis for the appellate commissions discussed below).

Courts of conciliation were akin to small claims courts (Minnesota’s small claims courts are still called “conciliation courts”) and arbitration or mediation (statutes in Arizona, California, Montana, and Nebraska reference conciliation courts that focus to amicably resolve martial and domestic relations issues). The report of the debates of the 1851 Ohio Constitutional convention note the intent behind these courts:

This plan of a court of conciliation has many advocates, who desire to see it established. It has been tried in other countries, with excellent effect—greatly diminish litigation and subduing a litigious spirit—a spirit which is the bane of a community. It sets neighbor against neighbor, brother against brother and even father against son, and son against father. Such litigation have I often witnessed, and in some cases seen it prosecuted with an embittered spirit, little short of devilish. Every means which promises only a mitigation if the evil should be employed. The expense and time wasted in such controversies, employing judges, jurors, witnesses, lawyers and suitors, is but a little of the mischief. The monstrous evil consists in the engendering and perpetuating of strife and contention among neighbors, begetting and nursing discord and hatred in families, and in disturbing the harmony and peace of society. A judicious peace loving and peace making officer of this kind may be more useful, far more useful than the first judge of your State, whom you propose to dignify with title of Chief Justice of Ohio.

It should be noted that despite the above ringing endorsement, the provision almost never happened. According to the reports of the debates at the 1851 Ohio Constitutional Convention, the vote to put in the provision was adopted 42-39.

All references to such courts can trace back (constitutionally speaking) to similar courts in Denmark and Norway, the “other countries” alluded to above. Although intended as separate and independent from regular courts, most courts of conciliation instead became divisions of existing courts. For example, a 1909 report indicates Cleveland’s Municipal Court had a Conciliation Division.

According to a history of the New York Constitution, the courts were seldom used because existing laws, with respect to arbitration, were already in place and accessible. In New York, it wasn’t until 1862 that an actual  tribunal of conciliation was set up in a judicial district. The statute authorizing the court was repealed 3 years later. As the Ohio Legislative Service Commission’s review of Measure 1 (then called HJR 1) indicates, Ohio too opted to put in mediation/conciliation practices rather than create free-standing courts.

Supreme Court Commissions

Ohio Constitution (1875) Article 6, Section 22

A commission, which shall consist of five members, shall be appointed by the governor, with the advice and consent of the senate, the members of which shall hold office for the term of three years from and after the first day of February, 1876, to dispose of such part of the business then on the dockets of the supreme court, as shall, by arrangement between said commission and said court, be transferred to such commission; and said commission shall have like jurisdiction and power in respect to such business as are or may be vested in said court; and the members of said commission shall receive a like compensation for the time being, with the judges of said court. A majority of the members of said commission shall be necessary to form a quorum or pronounce a decision, and its decision shall be certified, entered, and enforced as the judgments of the supreme court, and at the expiration of the term of said commission, all business undisposed of shall by it be certified to the supreme court and disposed of as if said commission had never existed. The clerk and reporter of said court shall be the clerk and reporter of said commission, and the commission shall have such other attendants not exceeding in number those provided by law for said court, which attendants said commission may appoint and remove at its pleasure. Any vacancy occurring in said commission, shall be filled by appointment of the governor, with the advice and consent of the senate, if the senate be in session, and if the senate be not in session, by the governor, but in such last case, such appointment shall expire at the end of the next session of the general assembly. The general assembly may, on application of the supreme court duly entered on the journal of the court and certified, provide by law, whenever two-thirds of such [each] house shall concur therein, from time to time, for the appointment, in like manner, of a like commission with like powers, jurisdiction and duties; provided, that the term of any such commission shall not exceed two years, nor shall it be created oftener than once in ten years.

New York Constitution (1869) Article 6, Section 4 & 5

Sec. 4 Upon the organization of the [new] Court of Appeals [New York's top court], under this article, the causes then pending in the present Court of Appeals shall become vested in the Court of Appeals hereby established. Such of said causes as are pending on the first day of January, eighteen hundred and sixty-nine, shall be heard and determined by a Commission, to be composed of five Commissioners of Appeals, four of whom shall be necessary to constitute a quorum; but the Court of Appeals hereby established may order any of said causes to be heard therein. Such Commission shall be composed of the Judges of the present Court of Appeals, elected or appointed thereto, and a fifth Commissioner who shall be appointed by the Governor, by and with the advice and consent of the Senate; or, if the Senate be not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session.

Sec. 5 If any vacancy shall occur in the office of the said Commissioners, it shall be filled by appointment by the Governor by and with the advice and consent of the Senate; or if the Senate is not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session. The Commissioners shall appoint, from their number, a Chief Commissioner; and may appoint and remove such attendants as may be necessary. The reporter of the Court of Appeals shall be the reporter of said Commission. The decisions of the Commission shall be certified to, and entered and enforced, as the judgments of the Court of Appeals. The Commission shall continue until the causes committed to it are determined, but not exceeding three years; and all causes then undetermined shall be heard by the Court of Appeals.

We take for granted the system in place in 40 states of an intermediate appellate court (usually called the Court of Appeals), however the creation of these courts met with fierce resistance both from voters and, on occasion, state supreme courts. Consider, for example, that Nevada voters have three times in the last three decades rejected the creation of such a court, most recently in 2010 (a fourth attempt may be made in 2014). When Colorado’s legislature made an attempt to create such a court in 1886, the state’s supreme court issued an advisory opinion that the proposed Court of Appeal was an unconstitutional infringement on the Supreme Court’s role as the supreme court of the state (the Supreme Court upheld a different version of the Court of Appeals in 1891).

Ohio and other large states like Texas tried to grapple with this problem through the use of appellate commissions. The appointment of special judicial officers to hear certain motions or matters was, and is, not uncommon. To this day subordinate judicial officers in California trial courts are called “commissioners“.

What made the New York, Ohio, and Texas provisions unique was that they provided for panels of commissioners to sit and render judgments. This avoided the exceptionally untenable situation of creating an intermediate appellate court or adding judges to existing courts which, as noted, had no real political support. The commission idea, however, got the votes in 1869 as part of a massive overhaul of New York’s judiciary article. The provisions appear to have been for the most part duplicated in Ohio (1875) and Texas (1879 by statute) a few years later.

Eventually these commissions fell out of favor for two reasons. First, states large and small simply needed dedicated, permanent intermediate appellate courts to handle the caseload. Second, there was a very real possibility that decisions of the commissions would be in conflict with the courts.

New York got such a dedicated court (the Appellate Divisions) in its 1894 constitution. Ohio got Circuit Courts of Appeals in 1851 consisting of 1 Supreme Court Justice riding circuit and sitting with the judges of the courts of common pleas, but it was not until an 1883 amendment that the Circuit Courts of Appeals consisted of judges specifically elected to serve in those courts. These eventually were made into the modern District Courts of Appeals.

What appellate commissioners remain today (such as in Oregon) are hearing officers who handle motion practice, not panels. Perhaps the only remaining vestiges of the old system are in Ohio’s constitution and North Dakota’s “Court of Appeals” which, despite the name, functions much the same as the commissions did, with panels coming into existence or only being used when the state’s top court is overwhelmed.

 

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Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

October 27th, 2011

Ohio voters will head to the polls November 8 to decide the fate of Issue 1, marking the sixth time in 20 years the question of judicial retirement has been on the ballot (Hawaii 2006; Louisiana 1995 & 2003; Pennsylvania 2001; Texas 2007; Vermont 2002), with 4 victories to 2 defeats.

Four legislatures have adopted statutes to alter retirement (Indiana 2011; Kansas 2003 & 2010; North Carolina 1992; Vermont 2003). Moreover, Arizona has advanced a proposed change for the 2012 ballot while New York voters will probably address the issue in 2014. This marks a trend over the last several year in particular of state legislatures confronting judges living longer and the question of whether there should be any limits on service at all.

State by state breakdown below the fold.

» Read more: Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

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Why Senate confirmation for state judicial nominees? Why not House? Or joint?

October 11th, 2011

Numerous state legislatures in 2011 that have a version of merit selection (Arizona, Florida, Oklahoma) or have considered adopting merit selection (Mississippi, Pennsylvania, Wisconsin) have put in provisions for Senate confirmation. Additionally, Rhode Island (HB 5675) considered removing the state senate’s existing confirmation power with respect to a trial court (Superior Court) and transferring the power to the house.

But the question arises: why Senate confirmation? There’s the case for reference to the U.S. Senate and its role in federal judicial confirmations. And this was consistent when a) state senators were elected by counties to represent the county as a whole (as in New Jersey) or clusters of counties (as in New York) and b) trial judges (and occasionally appellate judges) were picked by districts made up of clusters of counties.

Thanks to one person/one vote decisions by the U.S. Supreme Court over the years, the practice of Senate districts following county lines is over. The practice of appellate judges being chosen based on geography is also on the decline with only 10 states continuing to use the practice for courts of last resort and 17 of 40 states with intermediate appellate courts using district based selection (although Montana may buck the trend in 2012, Oregon voters rejected the idea 2-1 in 2006).

Moreover, as I noted in March, such proposals have fared much better in state senates than in state houses, and history bears this out. In short, when the power to confirm has been handed solely to the state senate, it has had mixed support in the state’s house. The only way it happens, normally, is when there is a litany of other issues in play.

When does Senate confirmation of appellate nominees come into a constitution?

  • Conventions changing entire constitution: Delaware, Hawaii, and New Jersey
  • Constitutional amendment changing most/entire Judiciary Article: Maryland (1970 attempt) and Utah
  • Constitutional amendment changing judicial selection only: Maryland (1976), New York
  • Constitutional amendment changing most/entire Executive Branch Article: Maine, Vermont

In the case of Maryland (1976) and New York (1977) the amendments to have Senate confirmation met with lower House approval as part of a package of bills related to the courts.

This institutional inertia may explain some 2011 activity. Consider the following:

  • The original Florida House proposal HJR 7111, introduced March 22, 2011 included nothing about Senate confirmation of justices of the planned modified supreme court with civil and criminal panels. The only mention of the Senate was a provision stripping the power of the court(s) to name their chief justice and giving it to the Governor with Senate confirmation. Six days later, SJR 1664 requiring Senate confirmation for the Supreme Court was passed by the Senate Judiciary Committee. On April 5, the Senate Governmental Oversight and Accountability Committee gave its approval of SJR 1664. By April 8, SCR 1046) and Oklahoma Senate (SB 621) did not fare as well. The Arizona bill went nowhere. The Oklahoma bill moved through the Senate and was not even brought up for a House committee hearing.

Roles of legislatures in appellate judicial selection

Both chambers

Connecticut: since the 1818 Constitution. An 1880 amendment (Article XXVI) allowed for the Governor to nominate, but still required confirmation by both chambers. A 1986 amendment added merit selection, permitting the Governor to nominate only from those names submitted by the Judicial Selection Commission.

Rhode Island: since the 1842 Constitution and kept as part of the 1986 constitution. A 1994 amendment added merit selection, permitting the Governor to nominate only from those names submitted by an independent non-partisan judicial nominating commission.

South Carolina: since the 1776 Constitution and kept as a part of the 1778, 1790, 1861, 1865 and 1868 constitutions, plus a 1973 revision to the judiciary article. A 1997 constitutional amendment added merit selection allowing the legislature to elect only from those names submitted by the Judicial Merit Selection Commission.

Virginia: since the 1776 Constitution and kept as part of the 1850, 1861, 1864, 1870, and 1902 constitutions.

Senate only

Delaware: since the 1897 Constitution. The 1776 Constitution specified a joint ballot of both chambers of the general assembly and the “president” (i.e. governor) of the state. The 1792 and 1831 Constitutions placed the power of appointment solely in the hands of the Governor.

Hawaii: since the 1949 Constitution.

Maryland: since a 1976 constitutional amendment. The 1776 Constitution gave appointment to the Governor with the Council “for the time being” and put it solely in the hands of the Governor via an 1837 amendment. Maryland’s 1864 Constitution provided for direct election of the judges of the top court (Court of Appeals), but provided the Governor with Senate confirmation would select the chief judge. The 1867 Constitution made 7 of the 8 chief judges of the state’s judicial circuits the state’s top court and provided the Governor with the confirmation of the Senate would select the chief judge of the Court of Appeals. This practice continued until a 1943 constitutional amendment separated the roles of chief circuit judge from judge of the Court of Appeals but still required direct election. A 1960 amendment reaffirmed direct election, while changing the geographic boundaries.

It should be noted that the Maryland proposal was initially rejected in 1970 (1970 version) and included most courts in the state (judges of the Court of Appeals, intermediate courts of appeal, Circuit Courts, and the Supreme Bench of Baltimore City), increased terms of office to 15 years, and made revisions to the power of the Commission on Judicial Disabilities which had just been created in 1966. The successful 1976 version focused exclusively on merit selection with Senate confirmation for appellate courts only.

New Jersey: since the 1844 Constitution. The 1776 Constitution made the Governor and Council the state’s top court (Court of Appeals). The current 1947 Constitution replicated the Governor-appoints-Senate confirms system of the 1844 Constitution, but with a significant change. Rather than being re-confirmed every 7 years, the justices would face only 2 Senate confirmations: one for their initial appointment and a second after 7 years. If reconfirmed a second time, they would remain in office until age 70.

New York Court of Appeals (state’s court of last resort): sporadically since the 1777 Constitution. Under the 1777 Constitution, a Council on Appointments made up of 4 Senators chosen by the Assembly, plus the Governor (to break ties) was used. The 1821 Constitution changed this to a Governor-appoints-Senate-confirms system. The 1846 Constitution created a bifurcated election system: 4 of the 8 judges would be elected by the statewide, the other 4 would be locally elected judges of the general jurisdiction court (confusingly called the “supreme court”) “having the shortest time to serve.” A new constitution was voted on, section by section, in 1869; the judicial article was the only one approved. That new article provided for statewide election. The 1894 Constitution and 1938 Constitution continued the statewide election system. A 1977 amendment that revamped much of the Judiciary Article created the present merit-selection-Senate-confirmation system.

10/24/11 update: Selection to the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature. The Governor alone elevates from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”).

Utah: since a 1984 constitutional amendment. The original 1895 constitution provided for statewide election. The 1984 amendment overhauling the entire Judiciary Article provided for the present merit-selection-Senate-confirmation system. A subsequent 1992 amendment increased the time for the Senate to consider nominations.

Vermont: since a 1971 constitutional amendment. The 1793 Constitution provide for joint election by the unicameral House and Executive Council, a practice that was continued when the Council was made the Senate via a 1836 amendment. An 1890 effort to shift this to the Senate alone was rejected by the Senate itself but was incorporated into the 1971 revision of the state’s entire Judiciary Article.

Hybrid

Maine: since a 1975 constitutional amendment (L.D. 25). The 1820 Constitution in place when Maine was separated from Massachusetts and became a state kept the Massachusetts practice of supreme court selection method of governor-appoints-and-executive-council-confirms. The 1975 amendment abolishing the Council created the current procedure for confirmation: the Governor nominates and a Joint House/Senate legislative committee recommends confirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

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Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

October 3rd, 2011

This post has been updated. Click here.

Since the last update of this list in August, two pieces of legislation have been introduced. Michigan’s SB 701 appears to be the Senate version of HB 4769, which has gone nowhere since its June introduction.

The other bill is Alabama SB 33 of 2012, a prefiled bill for the next session. SB 33 of 2012 is a constitutional amendment that looks more like HB 607 / SB 61 than HB 597 / SB 62 in that it does not specifically mention “sharia”.

It should be noted that at least some 2011 bills will make a return in 2012; roughly half of states allow bills to be “carried over” from one session to the next. Definitive answers as to which bills will return will be available as the legislatures come back into session in January.

Full roster of bills going back to 2010 after the jump.
» Read more: Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

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2011 Western indigent defense legislation

September 16th, 2011

Law

Arizona HB 2377 Continues the State Capital Postconviction Public Defender Office until July 1, 2016.

California AB 118 Defines public safety programs, including public defenders, as local responsibilities. Creates Local Revenue Fund 2011 with District Attorney and Public Defender Account.

Hawaii SB 1073 Increases the amount of the indigent legal services fee surcharge on court filing fees in civil actions. January  2012: trial level – $10 to $35; appellate courts – $25 to $50.  January 2014: trial level – $35 to $50; appellate courts – $50 to $65. Requires Hawaii Justice Foundation to review, on a biennial basis, whether the Indigent Legal Assistance Fund is meeting the civil legal needs of indigent persons, and report its findings.

Idaho SB 1048 Allows governor to select anyone, subject to senate confirmation, to serve as State Appellate Public Defender (currently, may only chose from list submitted by panel consisting of bar president, chairs of Senate and House judiciary committees, appointee of governor and, ex-officio, the chief justice). (see also SB 1117)

Montana HB 96 Allows state public defender to recover costs in cases involving involuntary commitment of a developmentally disabled person when the respondent is determined to have the financial ability to pay for a public defender and a judge orders payment.

Montana HB 97 Transfers supervision of Office of Appellate Defender from Chief Public Defender to Public Defender Commission.

Montana SB 187 Provides if the defendant desires assigned counsel because of financial inability to retain private counsel and the offense charged is a misdemeanor and incarceration is a sentencing option if the defendant is convicted, during the initial appearance the court may order that incarceration not be exercised as a sentencing option if the defendant is convicted. Further provides if the court so orders, the court shall inform the defendant that the assistance of counsel at public expense through the office of state public defender is not available and that time will be given to consult with an attorney before a plea is entered. Further provides if incarceration is waived as a sentencing option, a public defender may not be assigned.” Increases amount of fee to be paid by defendant for representation to various amounts depending on case outcome and severity of crime. Provides, during application and at other points in time, court advise defendant is subject to criminal charges for any false statement made regarding their finances, ability to pay, etc. on the financial statement. Requiring defendant sign affidavit and specifies affidavit must include statement regarding perjury and possible criminal prosecution for false statements regarding finances. Adds as a purpose of state public defender commission “ensure that clients of the statewide public defender system pay reasonable costs for services provided by the system based on the clients’ financial ability to pay”. Requires commission establish and oversee a conflicts office with a conflicts manager responsible for conflicts of interest and for ensuring that cases involving a conflict of interest are handled according to professional ethical standards. Provides new staff positions for the public defender commission may be added only when the public defender account received sufficient revenue pursuant maintain a balance in the account that would sustain any staff position approved by the commission for at least 1 year. Ends requirement that chief public defender serve as secretary to commission. Provides neither the chief public defender nor the chief contract manager may not maintain a client caseload. Requires commission limit number of contract attorneys so they may be meaningfully evaluated and requires commission establish biennial reviews.  Provides contract attorneys may not take any money or benefit from an appointed client or from anyone for the benefit of the appointed client.

Nevada AB 259 Authorizes certain fees to be charged and collected in civil actions be used to support legal services for the indigent in counties whose population is less than 100,000.  Provides in counties over 100,000, $10 of certain fees related to transfer of cases between courts, must be submitted to a program for legal services for the operation of programs for the indigent. Provides $5 collected at the time of recording a notice of default and election to sell must be submitted to a program for legal services for the operation of programs for the indigent.

Oregon HB 2710 Establishes Legal Aid Account in General Fund and directs state court administrator as to funding and distribution of account funds.

Utah HB 272 Requires the court, when making a determination of indigency for a defendant. consider the reasonableness of the fees and expenses charge by privately retained defense counsel.

Approved by one chamber

California AB 259 Allows the appointment to the office of public defender 1) a sitting or retired judge, and as a judge meets specified qualifications, or 2) a judicial commissioner, magistrate, or referee, or elected public official meeting specified qualifications.

Idaho HB 300 Establishes an Access to Justice Fund in the state treasury to assist Idaho Legal Aid Services in providing free legal representation for indigent persons in civil matters and to meet the costs of maintaining the operation of ILAS.  Provides for $10 fee on most civil cases filed in state to pay for Fund.

Nevada SB 26 Provides standards for determining whether the parent or guardian of a child for whom the juvenile court has appointed an attorney is  required to pay for such legal representation or reimburse the county or State for such legal representation.

Died in committee

Arizona HB 2375 Makes an assault on a public defender an aggravated assault.

Hawaii HB 1381 Increases the surcharges on court filing fees in civil actions used to fund indigent legal services : trial level – $10 to $35; appellate courts- $25 to $65.

Montana SB 147 Allows public defender access to jailed persons prior to court appointment.

Nevada AB 49 Establishes the Fund for Legal Defense of Indigent Persons and authorizes certain counties to apply to the Board of Trustees of the Fund for reimbursement of certain extraordinary costs of providing public defender services. Provides for additional administrative assessments or increase is existing assessments for guilty pleas in misdemeanors and in other instances to pay for Fund. Imposes additional sales and use tax and authorizes county commissioners to impose an additional sales and use tax for legal services to indigent persons.

Nevada AB 520 Requires all the compensation and expenses of a court-appointed attorney to be paid from the treasury of the county in which a court appointed the attorney.

Nevada SB 123 Moves Office of State Public Defender  from Department of Health and Human Services to the Office of the Governor.

New Mexico SB 106 Removes Public Defender Department as administratively attached to the Department of Corrections, making it a “stand alone” “adjunct” agency.

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State-by-State 2011 Legislative Year in Review: Arizona

September 16th, 2011

Bills affecting the courts approved by the Arizona legislature subsequently vetoed by the governor in 2011 included:

SB 1288 Provides “Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person’s exercise of religion…A person’s exercise of religion is not unprofessional conduct.” Specifies “Government” includes all courts and administrative bodies or entities under the jurisdiction of the Arizona supreme court.”

New laws affecting the courts enacted by the Arizona legislature in 2011, plus a constitutional amendment to appear on the 2012 ballot, include the following:

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.

HB 2352 Removes the requirement that an appointed court commissioner have engaged in active general practice for at least three years before being appointed. Requires that an appointed commissioner be an Arizona resident for five years before taking office. Increases the term in which an appointed commissioner must have been admitted to practice law in Arizona from three to five years.

HB 2355 Redefines for budget and other purposes various assessments as surcharges.

HB 2424 Establishes a panel that must study ways to improve guardianship and conservatorship laws through statutory changes.

SB 1192 Requires supreme court select a nationally recognized independent research organization to review and assess the methodology used in creating the child outcome based support model for child support and the effect that model would have on child support for families in this state if that model were adopted.

SB 1472 For retention elections, adds a listing to voter pamphlet distributed prior to election of a judge’s biography and published decisions which declared a statute unconstitutional and the provision of the Constitution relied upon.

SB 1482 Requires the Commission on Judicial Performance Review to prepare and publish on its website a list of decisions that an appellate judge made, including the official citations and electronic copies of the decision, no later than 60 days prior to the primary election for the judge’s retention.

SB 1499 Requires that a judicial officer presiding guardianship/conservatorship proceedings take part in training as prescribed by the Supreme Court.

SB 1621 Provides “the designated post of duty of a justice of the supreme court who resides outside of Maricopa County shall be deemed to be the justice’s place of permanent physical residence at the time of the justice’s appointment.”

SCR 1001 (Constitutional Amendment)

  • Qualifications & Terms- Increases to 8 years the term of office for Supreme, Court of Appeals, and Superior Court judges starting in 2013. Increases the judicial retirement age from 70 to 75 years old.
  • Appellate and Trial Court Commissions- Removes the requirement that attorney members be nominated by the Board of Governors of the Arizona State Bar. Establishes that four attorney members be appointed by the Governor and one member be appointed by the President of the State Bar. Requires, upon an attorney member vacancy, the Arizona bar to solicit, review and forward to the Governor all applications and recommendations for appointment. Increases the time period attorney members must be admitted to practice from 5 to 10 years. Specifies that attorney members must be in good standing with the state bar, have no formal disciplinary complaints and have never been formally sanctioned as a result of disciplinary action. Requires the Commissions to submit at least eight nominees, rather than three, to the Governor to fill a vacancy in the office of a justice or judge of the Supreme Court, Appellate Court or superior court. Permits the Commissions to reject an applicant and submit less than eight nominees, unless the applicant receives a two-thirds vote. Requires the Commissions to nominate any applicant who receives a majority vote. Requires, if more than one vacancy exists in the same court at the same time, the Commissions to submit the names of at least six persons nominated to fill each vacancy and prohibits the submission of the name of the same person for more than one vacancy. Permits the Governor to make an appointment from any of the nominees presented for any of the vacancies in that court, if more than one vacancy exists in the same court at the same time.
  • Supreme Court- Must make available through its website, every written opinion or order that is issued by a judge of a court of record that resolves a contested matter of law and that is not sealed or confidential. Must transmit a copy of the judicial performance review of each justice and judge who is up for retention to the Senate President and the Speaker of the House of Representatives at least 60 days before the regular primary election.
  • Legislature- Permits a joint legislative committee consisting of the Senate and House Judiciary committees to meet and take testimony on the justices and judges who are up for retention at least 60 days prior to the general election.

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2011 Western bail/pretrial release legislation

August 20th, 2011

Note: This was suppose to go out Friday, August 19. Sorry for the delayed posting.

Law

Arizona HB 2355 Redefines various “assessments” with respect to bail as “surcharges”.

Arizona SB 1023 Authorizes adult probation officers, in counties with more than two million, to serve warrants and make arrests on anyone who has violated a condition of pretrial release while under the supervision of the pretrial services division.

California SB 291 Provides that after a person has been brought back to the state by extradition proceedings, the person shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of bail appearing on the underlying arrest warrant. Specifies a 48-hour noticed bail hearing, excluding weekends and holidays, is required to deviate from this prescribed bail amount. Clarifies that nothing in this law is intended to preclude the existing ex parte process for raising bail through an affidavit of a law enforcement officer in a felony or specified misdemeanor domestic violence case, as specified.

Colorado HB 1189 Provides if a person is arrested for driving under the influence or driving while ability impaired and has been convicted of either offense at least
twice previously, the bill requires the court to impose participation in a substance abuse treatment program, electronic monitoring, drug or alcohol testing, and use of an interlock device (if appropriate) as bail conditions.

Wyoming SB 17 Provides that “conditional release” does not include release on bail; probation and parole agents will not supervise individuals on bail.

Introduced with committee and/or floor approval

Alaska HB 175 Makes corrections in the law to conform to the changes in the bail statutes adopted in 2010. Makes conforming amendments to statutes that are in conflict with the bail schedules in the court rules and directly and indirectly amends various rules of court, including the Alaska Rules of Criminal Procedure and Alaska Rules of Administration.

Arizona SB 1611 Prohibits a person from being admitted to bail if the proof is evident or the presumption great that the person is guilty of a class 5 or 6 felony if there is probable cause to believe that the person has entered or remained in the U.S. illegally.

California AB 178 Requires any person released from county jail before sentencing due to a court order or policy to relieve overcrowding to sign a release agreement, as specified; apply the same penalties to a person released under court order or policy to relieve overcrowding and who fails to appear as would apply to a person released on their “own recognizance”; and apply the same penalty enhancement to a person released due to a court order or policy to relieve overcrowding who commits a new felony offense while on release as would apply to a person who commits such an offense while on an “own recognizance” release.

Colorado HB 1088 Provides a law enforcement agency holding a defendant for a felony or class 1 or 2 misdemeanor whom the law enforcement agency has reasonable grounds to believe is present in the country illegally must notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. Requires a court, when considering the amount of bond to set, consider whether there are reasonable grounds to believe the defendant is present in the country illegally.

Colorado SB 186 Permits an alternative bond program to be established in any judicial district. Allows courts to provide the option of the alternative bond program to a defendant if there is such a program in that judicial district. Provides a law enforcement agency may work with an alternative bond program to secure the appearance of defendants in the program. Provides a pretrial services program with an alternative bond program is permitted to expend a portion of the moneys collected for pretrial services.

Hawaii HCR 140 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

Hawaii HR 122 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

New Mexico HJR 20 (Constitutional Amendment) Eliminates right to bail under state’s constitution. Provides bail may be granted or denied by a court based on the flight risk of the defendant, the nature and seriousness of the offense, the danger that would be posed to any person or the community by the defendant’s release, and other factors as provided by law. Eliminates the presumption of no bail in capital cases. Eliminates prohibitions against excessive bail, excessive fines, and cruel and unusual punishment. Eliminates requirement that courts give preference to an appeal from an order denying bail over all other matters.

Washington HB 1194 Provides when a person is arrested and detained for a class A or B felony, a judicial officer must make a bail determination on an individualized basis. Requires courts notify sureties of a defendant’s failure to appear within 14 calendar days of the date on which the defendant failed to appear, rather than 30 days. Provides a surety may surrender a client in a criminal case for good cause and if accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for surrender. Provides if the court finds that good cause does not exist for the surrender, the surety must return the premium paid as well as any recovery fee. Specifies good cause does not include circumstances in which the client failed to make timely payment to the surety for the bond premium. Requires presiding judge of a court notify the Administrative Office of the Courts (AOC) when the court revokes the justification or certification of a bail bond agent to post bonds in the court. Requires AOC notify superior courts and courts of limited jurisdiction statewide or revocation.

Washington SB 5056 Subject to the availability of funds, requires Administrator for the Courts provide superior courts and courts of limited jurisdiction access to the risk assessment tool developed by the Washington State Institute for Public Policy (WSIPP). Subject to the availability of funds, requires Washington State Center for Court Research (WSCCR) research, evaluate, monitor, and report on the validity of the risk assessment tool to ensure the predictive value of the tool. Requires every two years WSCCR submit a report and recommendations regarding the validity of the risk assessment tool to the Governor, the Supreme Court, and the Legislature. Provides a court may, in its consideration of pretrial release or detention, issue an order requesting information related to mental health services that a defendant has received. Limits information that may be requested to information related to violent acts. Provides court may delay the setting of bail pending receipt of the information, not to exceed 48 hours. Subject to the availability of funds, requires WSIPP develop and validate a pretrial risk assessment tool to assess whether an individual is likely to fail to appear at subsequent court hearings by December 1, 2011. Requires WSIPP submit a report, describing the methodology for developing and validating the pretrial risk assessment tool and the predictive value of the tool, to the Governor, the Supreme Court, and the Legislature by December 1, 2011. Provides presiding judge of a court must notify AOC when the court revokes the justification or certification of a bail bond agent to post bonds in the court. This notice must include the reasons for revocation. Provides once AOC receives the information it must notify superior courts and courts of limited jurisdiction statewide. Requires AOC develop a model form that law enforcement and jails may use to collect information about persons arrested or held in custody so that courts have more information at the bail hearing, including any history of domestic violence, protection orders known to law enforcement or the facility holding the person, and input from individuals reasonably believed to be a victim of the person in custody regarding pretrial release determinations.

Introduced with committee rejection

n/a

Introduced with other or no activity

California AB 1264 Repeals the uniform countywide schedule of bail. Establishes Statewide Bail Commission to prepare, adopt, and annually revise a statewide bail schedule for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.

Hawaii HB 401 Creates task force to reduce contact with the criminal justice system to examine various issues, including increasing options for cost-effective pretrial release, with consideration given to enrollment and participation in an appropriate social services or treatment program.

Idaho SB 1119 Requires bail agents to collect all of the premium on the surety bail bonds they write at the time the defendant is released from custody.

Nevada SB 217 Requires each pretrial release agency prepare a register to be made available to the public that contains certain information regarding the cases and defendants who are recommended for release by the pretrial release agency and submit an annual report containing certain statistical information regarding the operations of the pretrial release agency during the preceding calendar year.

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