New laws affecting the courts enacted by the Colorado legislature in 2012 include the following:
HB 1053 Adds retaliation against a judge and retaliation against a juror to crimes included in the victims’ rights statute.
New laws affecting the courts enacted by the Colorado legislature in 2012 include the following:
HB 1053 Adds retaliation against a judge and retaliation against a juror to crimes included in the victims’ rights statute.
There are already 9 judiciary-related items on the 2012 ballots this year (and a 10th was stricken). With most legislatures now out, the only remaining way to get things on the ballot is via initiative or referendum, and there there remains scant little time for that.
Presently, there appears to be only two items circulating and neither of them appear to be gathering signatures.
Colorado Proposed Initiative 2011-11 (DEADLINE: August 6) Changes term of office for the justices of the Colorado Supreme Court from ten years to two years. Prohibits a justice from serving as chief justice for more than one term. Prohibits a justice who is not retained as the result of a retention election, resigns from the Court, is removed from the Court, or fails to file a declaration under section 25 of article VI of the Colorado constitution from being reappointed to the Court for a period of ten years.
The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.
Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.
Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.
Alabama – Circuit Court in select counties [interim only]: No activity
Alaska – Supreme Court, Court of Appeals, Superior Court: No activity
Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.
Colorado – Supreme Court, Court of Appeals, District Court: No activity
Connecticut – Supreme Court, Appellate Court, Superior Court: No activity
Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).
Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.
Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity
Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.
Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.
Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).
Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity
Maine – Supreme Judicial Court and Superior Court: No activity
Minnesota – District Court [interim only]: No activity
Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.
Montana – Supreme Court and District Court [interim only]-: Legislature not in session.
Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity
Nevada – Supreme Court and District Court [interim only]: Legislature not in session.
New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.
New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.
North Dakota – Supreme Court and District Court: Legislature out of session
Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.
Rhode Island – Supreme Court, Superior Court, Family Court, District Court :
No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.
South Dakota – Supreme Court, Circuit Court [Interim only]: No activity
Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.
Put merit selection explicitly in constitution:
HJR 753 Adds legislative confirmation of nominees
SJR 710 Adds legislative confirmation of nominees
Extend merit to June 30, 2013:
Extend merit to June 30, 2014:
HB 3451 (nominating commission only)
Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity
Vermont – Supreme Court, Superior Court, District Court: No activity
West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity
Wyoming – Supreme Court, District Court, Circuit Court: No activity
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.
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.
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.
New laws or resolutions affecting the courts enacted by the Colorado legislature in 2011 include the following:
HB 1018 Permits a seal to be electronically attached to or logically associated with an electronic record or document, including court records and warrants.
HB 1076 Clarifies that the time payment fee and late fees in judicial actions when the fees, costs, and fines are not paid in full on the date of assessment apply to all
criminal cases and traffic infractions. Provides the time payment fee is reimposed annually if all costs, fees, and fines have not been paid in full.
SB 82 Specifically authorizes state auditor for assess, confirm, and report on security practices of all IT systems, including those of the judicial branch.
SJR 7 Requests Chief Justice and Governor review, assess, and study the operation of state government in order to identify opportunities for improving its efficiency and effectiveness. Specifies use of “kaizen” or lean-government principles in review.
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.
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.
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.
Note: This was suppose to go out Friday, August 19. Sorry for the delayed posting.
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.
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.
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.
While a great deal of focus is already being drawn to the 2012 presidential elections, next year is set to be an incredibly busy year for ballot items related to state courts.
This special edition of Gavel to Gavel released today looks at those items as well as those currently circulating for signatures.
Colorado’s Judiciary has had a Public Access System (PAS) and Electronic Filing System (EFS) for years. According to their website “Over the next two years, the Colorado Judicial Branch’s PAS/EFS team will build a new electronic filing system that will replace the Branch’s current e-filing vendor by January 2013.”
Enter Colorado HB 1282 of 2011.
The bill specifically provides a statutory obligation for the judicial department to provide a public access system for certain court records that direct-paying users and nonpaying users can access remotely. The bill prohibits the judicial department from restricting a direct-paying user from replicating the information on its system.
The bill also creates a Judicial Public Access System Advisory Board to govern the aforementioned system. The board would set the price schedule for access by direct-paying users and approve any changes to the schedule, determine what information will be available through the system and in what form it will be available, and address any other matter relevant to the system.
The board itself would consist of 9 members, including 4 legislators, 1 office of information technology (executive branch) staff member, 2 judicial department employees, and 2 vendors. The 2 judicial department employees (one of whom would chair the board) and 2 vendors would be selected by the chief justice.
The bill is currently pending in the House State, Veterans, & Military Affairs committee.
Cross-posted to Court Technology Bulletin.
The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.
With the adoption of HJR 1103 of 2011 the Colorado House and Senate met in Joint Session on January 14 to hear the State of the Judiciary Address from Chief Justice Michael L. Bender.
Highlights of the Chief Justice’s speech (full text here) included:
[John] Adams’ point rings true today — to have a government that secures liberty and freedom, all branches of the government must be obedient to the law. Our government is not founded upon the good wishes and desires of individuals because, as Adams noted, individuals cannot be counted on to “prefer the public good before their own.”
As Chief Justice, I stand before you as representative of the seven justices, as well as the judiciary as a whole. I was elected to serve as chief by my peers and began a little less than six weeks ago, so the job is a little new to me.
Although adequate resources for court and probation functions are critical, I have not come here today to present budgetary needs. Instead, I will share some accomplishments, describe meeting the challenges posed by a struggling economy, and explain my goals for strengthening the judiciary.
Our greatest strength is our people—judges, magistrates, administrators, probation officers and clerks.
I would be remiss in not emphasizing that the resources provided by the General Assembly over the years have fully supported our mission. No matter how capable our judges, they cannot be effective unless adequate resources are provided. But there is no question that the economic downturn of the last few years has impacted all branches of government. Despite diminished resources and increasing demands, we have strengthened the operation of the courts by increasing efficiency.
As you know, we are in the process of building a statewide e-filing system for all cases, which will increase our efficiency and yield additional revenue. With your support, Colorado continues to lead the nation in court technology applications, as evidenced by the development and implementation of our public access system last year.
We continue to ensure quality and integrity within our court system. For example, we have been pioneers in the establishment of jury reform and the establishment of over 60 community problem solving courts across the state—these include veterans trauma, adult and juvenile drug, family dependence and neglect, DUI, adult and juvenile mental health, and truancy courts.
Access to the courts is also affected by the rapidly rising numbers of parties in marital dissolutions who cannot afford legal representation. These unrepresented parties, especially those with children, need legal advice and counseling.
Employee morale is critical. I don’t need to tell you how devastating job cuts and hiring freezes can be. The cuts we’ve made branch wide have fostered feelings that the work done in the local courts is not fully appreciated.
We, as judges, need to expand our efforts to educate the public about what we do and what the rule of law means to the Judiciary. The educational outreach program “Our Courts,” initiated by Court of Appeals Judge Russell Carparelli and Federal District Court Judge Marcia Krieger and supported by the Colorado Bar association and the Colorado Judicial Institute, needs our full support.
Before I close I want to talk a little about our new building. Thank you again General Assembly for your bipartisan support in championing this project. The Ralph L. Carr Colorado Judicial Center, which is being built without any general fund impact, will be finished in the spring of 2013. This center will house our appellate courts, the State Court Administrator’s Office, the Attorney General’s Office and other state legally related entities.