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Package of bills in Michigan House would rewrite state’s statutes to remove or alter requirements of paper documents, move the entire state’s judiciary towards electronic filing, documents, storage

March 20th, 2013

I mentioned earlier this month about Michigan’s HB 4064, which would effectively clear the way for e-filing in the state’s courts had been approved on a 105-3 vote. Michigan Lawyer’s Weekly reports (paywall) the bill “should be through the Senate and signed by Gov. Rick Snyder by summer.”

With HB 4064 on its way, the House is now set to take up a package of bills to effectively rewrite the state’s statutes regarding paper documents. To take but one example, currently law (MCL 600.1427) reads:

All writs, process, proceedings and records in any court within this state, shall be in the English language (except that the proper and known names of process, and technical words, may be expressed in the language heretofore and now commonly used), and shall be made out on paper, in a fair, legible character, in words at length, and not abbreviated; but such abbreviations as are now commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner.

HB 4412 accounts for the move to digital court records, electronically filed court papers, and electronic signatures on court documents thusly:

All writs, process, proceedings and records in any court within this state shall be in the English language, except that the proper and known names of process, and technical words, may be expressed in the language heretofore and now commonly used, and shall be made out in the manner and on any medium authorized by supreme court rules. If a signature is required on any document filed with or created by a court, that requirement is satisfied by an electronic signature as prescribed by supreme court rules.

HB 4412 is “tie-barred” (meaning for one to be enacted, they ALL must be enacted) with several other bills to make the transition to electronic courts in the state:

HB 4413 Allows for reproduction of digital court records and electronically filed court papers in all state courts.

HB 4414 Allows courts to provide electronic access to court records, pleadings, and practice. Provides for “enhanced access” for a reasonable fee.

HB 4415 Allows for digital court records and electronic filing of testimony given in probate court.

HB 4416 Allows for digital court records and electronically filing of probate court papers.

HB 4417 Provides for validity and enforceability of certain judgments. Allows a registry or a certified reproduction to serve as a complete replacement.

The entire package of bills has been assigned to the House Judiciary Committee.

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Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

March 19th, 2013

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

» Read more: Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

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Michigan House approves 105-3 broad changes to how the state’s courts handle records & pay for e-filing, electronic access

March 7th, 2013

Yesterday the Michigan House approved a plan to effectively repeal most statutes related to court records retention in favor of letting the judiciary set the rules. HB 4064 as committee amended deletes almost all statutes related to retention of, access to, and destruction of records and mediums in which a record may be produced. It also removes a provision in law prohibiting probate court records, except otherwise provided by law, to be inspected without charge by all interested persons.

In lieu of all these statutes, the State Court Administrative Office would establish and maintain records management policies and procedures for all courts, including a records retention and disposal schedule, in accordance with Supreme Court rules. The new rules would have to be developed and maintained in laws currently related to the Michigan Historical Commission.

In addition to storage issues, HB 4064 deals with access to court records. Under the bill electronic access to case records, pleadings, practice, and procedure would be set by Supreme Court rule. So called “enhanced access” could be based on “reasonable fee”, defined as “a charge calculated to enable a court to recover, over time, operating expenses directly related to enhanced access.” Moreover, a perhaps critical to the actual development of electronic document management and e-filing systems, “operating expense” would include “the cost of computer hardware and software, system development, employee time, and the actual cost of providing the access.”

HB 4064 now goes to the Senate.

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Effort to increase judicial retirement age fails for 7th year in a row in VA, faring better in other state legislatures

February 12th, 2013

It appears that for the 7th year in a row, an effort to increase the mandatory retirement age of 70 for Virginia’s judges will fail, but similar efforts in other states are showing signs of movement.

A full list of all such effort to eliminate mandatory judicial retirement from 1990-2010 is here.

A list of what states have what mandatory judicial retirement ages is here.

Hawaii: The history of Hawaii’s interest in increasing its judicial retirement age is a complex one. When the Democrat-dominated legislature faced the prospect in 2006 of having a Republican governor appoint new judges to the state’s courts, they swiftly put onto the ballot an effort to raise the retirement age. Numerous political leaders, including the Democrat Attorney General came out against it and the effort failed. In the last several years, however, the effort has been renewed. SB 886 of 2013, approved by the Senate Judiciary Committee on January 29, would increase the age from 70 to 80.

Indiana: SB 124, which would outright eliminate the mandatory retirement age of 75 for appellate judges, was approved by the Senate Judiciary Committee on February 7. Indiana in 2011 eliminated the mandatory retirement ages for its trial courts.

Michigan: SJR 5 of 2013 picks up where SJR 21 of 2012 left off in pushing for an outright elimination of the state’s mandatory judicial retirement age of 70. The 2012 bill, introduced late in that session, was approved by the Senate Judiciary in September 2012. The 2013 version has already re-passed the Senate Judiciary Committee on January 31.

North Carolina: HB 12 would increase the state’s judicial retirement age from 72 to 75 and is currently pending in the House Judiciary A Committee.

New York: The state legislature already approved in 2011 (SB 5827) an effort to increase the mandatory retirement age for the judges of top appellate court from 70 to 80 and to allow judges for the state’s main trial court to be certified for 2-year periods from age 70-80. SB 886 of 2013 is the second passage required for state constitutional amendments. If approved in 2013 or 2014, it would go to the voters on the 2014 ballot.

Pennsylvania: While lawsuits have been filed against the state’s existing mandatory retirement age of 70 as a form of age discrimination, SB 85 of 2013 would eliminate it legislatively. That bill is currently pending in the Senate Judiciary Committee. Update 2/13/13: A House version (HB 79) would up the age from 70 to 75. h/t to Pennsylvanians for Modern Courts for the pointer.

South Carolina: The effort to eliminate the judicial retirement age of 72 (SB 71) is pending in the Senate Judiciary Committee.

Virginia: Like prior efforts,  SB 740 / SB 762 of 2013 met with initial success and was approved by the full Senate on a 30-10 vote in January. However, the bill was assigned to the House Committee on Courts of Justice, Civil Subcommittee, which killed the bill on a 4-4 tie vote in 2012 killed it again in 2013 on a vote vote.

Washington State: HB 1266 / SB 5046 would allow district court judges only to serve out the term in which they read age 75 (currently they have to resign the end of that year). The House bill was approved by the House Judiciary Committee on February 5. The Senate version was approved by the full Senate 48-0 on January 30.

Wyoming:  I’ve noted the efforts here. In short the House has approved a plan (HB 167) to increase the mandatory retirement for supreme court and district court judges from 70 to 75 and imposes a mandatory retirement age for circuit judges at 75 (currently, they have none). This was after Senate leadership balked at the House’s original idea (HJR 1) to simply eliminate the mandatory retirement age.

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Over a dozen efforts to alter number of state supreme court justices, almost all related to “packing” the courts, in last several years

February 5th, 2013

With the activity in NC today, and similar efforts underway in SC, I thought I’d review the efforts over the last several years to alter the structure of state supreme courts, as well as how they fared.

2007/2008

Florida: a state senator introduced SB 408 in 2007 to expand the state’s Supreme Court from 7 to 15 members. The bill’s text explicitly stated the reason for the increase was to overturn the Court’s decision in 2006 that found unconstitutional the state’s use of public money for vouchers for use in Catholic schools. When the bill became public, the senator quickly withdrew it, telling the Tallahassee Democrat “Basically, a law student came up with the idea and asked me to have it drafted so he could see how it would look, but it was never supposed to be introduced.” The senator declined to identify the law student.

Georgia: media reported legislation was considered to increase from 7 to 9 the number of seats on that state’s high court. Then-Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.” Nevertheless, SR 370 was introduced, providing that there would be a justice elected from each congressional district, effectively increasing the court from 7 to 13.

Michigan: an effort to reduce the size of the Supreme Court. The Reform Michigan Government Now proposal was ostensibly to help ease the state’s budget crises by reducing the size of the state’s legislature, Supreme Court, and Court of Appeals. However, a PowerPoint presentation left on the website of a local union explained the purpose of removing 2 of the then 7 serving Supreme Court justices was to ensure Democrat-friendly redistricting rulings after the 2010 U.S. Census (the 2 justices to be removed were Republicans). The initiative was eventually killed when the state’s Supreme Court held that the initiative failed to meet certain constitutional criteria for initiatives.

South Carolina: Amendment to the state’s constitution (SB 34) to expand their Supreme Court from 5 to 7 members elected by congressional district. Another version (SB 23) simply expanded the court from 5 to 7 without mention of congressional districts.

2009/2010

Alabama: SB 507 would have reduced their Supreme Court from 9 to 7 via attrition.

Indiana:  HJR 9 would have set the number of justices at 5 (currently can be from 5 to 9), but eliminated the state’s merit selection system and replaced it with direct elections.

Iowa: After all 7 justices ruled in favor of same-sex marriage in the state, HJR 2012 would have expanded the court to 9.

Georgia: SB 429 tied more money for the courts with an expanded Supreme Court. The bill would have added a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. The increase in funding was conditional on an increase in the Supreme Court from 7 to 9 justices and the court of appeals from 12 to 15.

Nevada: SJR 9 would have permitted, but not required, the state legislature create an intermediate appellate court consisting of 3 or more judges and sets the number at least initially at 3. If the constitutional amendment was approved and if the legislature did create an intermediate appellate court, the state’s Supreme Court would be reduced from 7 to 5 justices. The proposal was sent to the voters in 2010 and failed.

South Carolina:  2007/2008 bills to expand the state’s Supreme Court from 5 to 7 were reintroduced in 2009 as SB 63 (congressional districts) and SB 55.

2011/2012

Arizona SB 1481: expand state’s Supreme Court from 5 to 7 justices. Effort failed when the state’s chief justice personally testified the expansion was not needed, that the Supreme Court was fully functioning, and was not behind in its caseload. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

Florida HJR 7111 (as introduced): Split the state’s 7 member supreme court into two, separate 5 member civil and criminal Supreme Courts; transfer Democratically appointed justices to criminal court.

Montana:  HB 245 would have reduced the size of the state’s supreme court from 7 to 5. The sponsor was abundantly clear of his reasoning for the reduction:

All of us want tort reform, well maybe not all of us.  I surely want it and a lot of folks I talk to want it. So how do we get tort reform? I would suggest that if we took the Supreme Court from 7 down to 5, they have a higher workload, guess who becomes our ally in tort reform? The Supreme Court.

2013/2014

North Carolina: No bill number (amendment to SB 10) would have expanded the state’s supreme court from 7 to 9 members.

South Carolina: HB 3090 would expand Supreme Court from 5 to 7 members.

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Posted in Structure Changes

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Michigan Year in Review: restructuring an entire state’s trial court system

December 19th, 2012

New laws affecting the courts enacted by the Michigan legislature in 2012 include the following:

HB5071, HB5072, HB5073, HB5074, HB5075, HB5093, HB5094, HB5095, HB5101, HB5102, HB5103, HB5104, HB5105, HB5106, HB5107 (collectively):  Restructures state’s trial court system. Eliminates judgeships from certain district, probate, and circuit courts. Merges or consolidates certain judicial circuits. Shifts duties of some district judges to a county’s probate judge.

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Michigan House approves bill to give trial courts standing to sue county legislators, administrative officers over “serviceable levels” of funding

November 30th, 2012

State trial courts are rarely entirely funded via state-level appropriations; there is often a mix of state and local funding with the majority of funding in some locations coming from the locality itself. Michigan’s trial courts have just such a mixture and may, under legislation approved by the House on a 65-44 vote this week, be able to sue localities that fail to provide “serviceable levels” of funding.

Under HB 5076 as amended, a court funded by a county would have standing to bring a suit against the legislative body of that local unit concerning a general appropriations act, including any challenge to serviceable levels of funding for that court. The bill includes a presumption that a county general appropriations act “is presumed to fund those activities of a county mandated by law at a serviceable level.”

In addition, county-funded courts would also have standing to bring suit against the chief administrative officer of that county concerning an action relating to the administration, execution, and enforcement of a general appropriations act for that court.

The bill would not apply to courts in the Third Judicial Circuit (i.e. Detroit), as they are funded by the city in which they are located and not a county.

Before a court brings suit either against the legislative body or the chief administrative office, a mediator would have to certify in writing that the parties were unable to resolve the issues by mediation. Suits involving the trial court’s funding would have to be filed directly with the Court of Appeals.

The Court of Appeals “shall consider the financial ability of the county to pay when considering any challenge as to serviceable levels of funding.” Moreover, the  Court of Appeals would be prohibited from transferring the case to any other court, but could request retired judge be appointed by the Supreme Court to resolve discovery issues, review the evidence, and make proposed findings of fact and conclusions of law.

The bill is now in the Senate’s Judiciary Committee.

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Posted in Salary & Budget

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Bans on court use of sharia/international law: showdown vote in Michigan House set for tomorrow

November 26th, 2012

I mentioned in early October that Michigan’s legislature had postponed a show-down vote in the House on that state’s ban on court use of sharia and/or international law. The vote is now set for tomorrow, November 27.

Under Michigan  HB 4769 and SB 701

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.

After initial bad press and rallies where the bills were introduced earlier this year the bills remained in their respective committees. However a notice for a motion to discharge HB 4769 from the House Committee on Judiciary was filed by the bill’s primary sponsor in September. The House calendar for tomorrow indicates the vote on the motion will take place sometime after 1:30 pm local.

 

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Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

October 4th, 2012

Few if any state legislatures are in session, but one of those few is Michigan and that state’s House is set to come back into session November 27 to decide the fate of a bill that would ban the use of international law by the state’s judiciary.

Under Michigan  HB 4769 and SB 701

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.

After initial bad press and rallies where the bills were introduced earlier this year the bills remained in their respective committees. However the House journal indicates a notice for a motion to discharge HB 4769 from the House Committee on Judiciary was filed by the bill’s primary sponsor September 11 and the motion made September 12. The vote on the motion was postponed until November 27, 2012.

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

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Posted in Jurisdiction, Other, Special Edition

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Michigan House and Senate Judiciary met July 18, examined veterans courts, trial court concurrent jurisdiction, military custody issues

July 19th, 2012

Both the Michigan House and Senate Judiciary Committee met yesterday (July 18).

The Senate committee started at 9 AM with an examination of several bills previously approved by the House, including:

  • HB 5124  Requires plans of concurrent jurisdiction in judicial circuits to be adopted by majority vote of all the judges, rather than allowing such plans to be adopted by a majority vote of each group of judges. Allows a plan of concurrent jurisdiction to include agreements involving the operation of the participating trial courts, as approved by the Supreme Court. Specifies that a concurrent jurisdiction plan that was adopted, approved by the Supreme Court, and in effect on December 31, 2012, would be valid and in compliance with the bill’s requirements. Specifies that a plan of concurrent jurisdiction would be effective upon the Supreme Court’s approval of the plan. Deletes exceptions to concurrent jurisdiction, which give exclusive jurisdiction over certain matters to the probate or district court.
  • HB 5159 Requires the State Drug Treatment Court Advisory Committee to monitor the effectiveness of veterans treatment courts and present annual recommendations regarding them to the Legislature and Supreme Court. Adds a circuit or district court judge who had presided over a veterans treatment court to the Advisory Committee.
  • HB 5162 Requires a veterans treatment court to comply with the modified version of the 10 key components of drug treatment courts. Requires a court that adopted a veterans treatment court to enter into a memorandum of understanding with certain parties. Requires a veterans treatment court to participate in training required by the State Court Administrative Office. Provides for participation of veterans from outside of the court’s jurisdiction, under certain circumstances. Establishes requirements for a person’s admission to a veterans treatment court, and allow admission of an eligible participant who was subject to discharge and dismissal under another provision of law. Requires a preadmission screening and period evaluations of veterans treatment court participants. Provides for the confidentiality of a statement or other information obtained as result of an individual’s participation in preadmission screening or a veterans treatment court program. Requires the State Police, upon request, to give the court certain information contained in the Law Enforcement Information Network. Requires a veterans treatment court to accept the guilty plea of an individual admitted to the court, and allow deferral of proceedings. Requires a veterans treatment court to maintain jurisdiction over a participant until final disposition of the case. Specifies services that a veterans treatment court would have to provide to a participant. Requires a participant to pay certain costs and fees, but allow the court to waive all or part of them under certain circumstances. Establishes requirements for the adjudication and sentencing of participants, or the discharge and dismissal of charges, as applicable. Establishes data collection and reporting requirements. Authorizes the Supreme Court to spend State funds for the establishment and operation of veterans treatment courts, and require the distribution of Federal funds provided to the State for the operation of the courts.

The House met at 11 AM and considered HB 5163 which contends with how courts are to handle change-of-custody requests when one parent is an active duty service member. The committee also heard a presentation on the Governor’s Indigent Defense Advisory Commission Report.

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Posted in Interim Activities, Jurisdiction, Structure Changes

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