Minnesota’s Senate considered the issue in the form of hearings conducted on November 17 before its Committee on Judiciary and Public Safety. At issue was HB 1568, the latest in a series of bills introduced in the last several years that would have allowed the Board of Judicial Standards to examine the merits of judicial decisions and used the Boards disapproval or disagreement as the basis for disciplinary actions against the jurist. Several Senators who spoke in favor of the bill did so with an eye towards using the judicial disciplinary process as a means to put pressure on the courts to rule certain ways or to provide a free or low cost alternative to an appeal.

Sen. Michael Jungbauer (R): “I’ve heard many, many issues about judges and cases and people always tell me they feel just this empty feeling when a judge rules something and they disagree with it but maybe don’t have the money or the wherewithal to bring it somewhere else.”

Sen. Dave Thompson (R): “The judiciary has taken on a much more significant role in our society that it should have through asserting itself overly aggressively in the area of judicial review and other things…So the problem we have here is judges are too significant, which is why how we select them and how we discipline them and how we review their performance has become far more important that it ought to be and until the judiciary is willing to see its role as less significant in our society and until legislatures are willing to do the politically difficult thing and ask judges about the decisions that they make, we’ll never solve the problem.”

The video below is from that November 17 and includes those portions that discussed changes to the Board and its role/function.

• Judicial Issues (specifically, Mandatory Retirement Age and Incumbency Designation on the Ballot)
• Judiciary Election Run-Offs for More Than Two Candidates
• History of the Judicial Standards Board and Code of Judicial Conduct & Ethics

Each section will receive 45 minutes of discussion (part of the discussion will be reserved for hearing a historical context for each issue area) followed by 15 minutes of Q & A from members.

The Mandatory Retirement/Incumbency Designation portion seems targeted at SB 627 (prior blog post here). That bill would change the mandatory retirement age from last day of the month judge turns 70 to  “official year of the state in the first even-numbered year during which a judge has attained 70 years of age” while repealing the provision in law that puts the word “incumbent” next to the name of a judge running for re-election.

As I noted previously, legislative interest in the Judicial Standards Board and Code of Judicial Conduct & Ethics has reached a high pitch in the Minnesota legislature over the last several years, with efforts introduced to (among other things) have a legislatively-created Code of Conduct in addition to, or in lieu of, the judicially-created one, and to remove all judges/lawyers from the Judicial Standards Board.

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.

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.

Alabama

In the last decade, Alabama’s House and Senate have at various times both passed constitutional amendments for the elimination of mandatory judicial retirement and rejected them as well.

Arizona

All efforts since 1990 to change the state’s mandatory retirement age of 70 have focused on increasing it to 75. The first round of bills (2002-2004) met with some success in the House but not the Senate. A second round (2005-2006) included a Senate effort to increase for the state’s main trial court judges (Superior Court) only. The Senate approved, the House balked. The third and continuing round (2007-2011) tied the increase to 75 with changes to the state’s merit selection system. Such a connective bill was passed in 2011 and is set to be voted on in 2012. Under SCR1001 the mandatory retirement age would go to 75, but the composition of the state’s merit selection commissions would be altered.

Florida

As with Arizona, the Florida interest in changing the mandatory retirement age was connected to changes to judicial selection. Bills introduced in 1994 and 1996 would have raised the limit or allowed the legislature to do so at a later date. The constitutional amendment that appeared on the ballot excluded the reference to the mandatory retirement age.

Hawaii

In 2005, Hawaii was faced with a Republican Governor (something which had not happened since 1962), a very Democratic legislature, and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a standalone constitutional amendment eliminating the retirement age which went down to a nearly 2-1 defeat. A 2008/2009 effort to increase the age to 80 for justices and judges appointed after November 4, 2008 (i.e. after the Republican governor would be term limited out of office) died in a conference committee.

Indiana

Kansas

Kansas had been considering a change to its statutes regarding mandatory judicial retirement at 70 for several years before a 2002 Supreme Court order reset the dynamics. In March of that year, in response to legislative cuts to the courts, the Supreme Court entered an order for emergency surcharges on various court filings, fees, and fines. The language of a 2000 bill was then reintroduced in 2003 to increase the mandatory retirement age for judges, even the Court of Appeals, except the Supreme Court. That version was enacted. It was not until 2010 that the law was further amended to include the Supreme Court in the increase.

Louisiana

Louisiana has had two efforts to increase the retirement ages of its judges. The first was in the early 1990s and sought an increase from 70 to 75. It was put up on the ballot in 1995, along with 14 other items, as Amendment 4. It was one of only 2 proposals to lose. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. It passed overwhelmingly 75%-25%, making the “mere” 62%-38% drubbing Amendment 4 took somewhat remarkable. Thereafter the issue lay dormant for almost a decade until 2003 when a change was proposed to allow judges to serve out the term in which they turned 70. Like its 1995 its counterpart it was one of 14 items on an October ballot. The 2003 effort, however, succeeded.

Michigan

Massachusetts

Minnesota

Missouri

Missouri is one of only a handful of states that have a different retirement age for trial and appellate judges. Moreover, municipal judges have a higher retirement age (75) than that of the judges of all the other courts (Circuit, Court of Appeals, and Supreme Court = 70).

North Carolina

New Jersey

New York

Ohio

Pennsylvania

Throughout the 1990s several attempts were made to extend judicial terms to the end of the calendar year a judge turned 70.The extension was added onto a bill related to reapportionment, but approved by the voters in a separate vote in May 2001 where it won on a 2-1 vote.

South Dakota

Texas

The 2007 Texas amendment noted below was the first effort in a decade to change the state’s judicial retirement. It was one of 16 ballot items voters cast ballots on in November 2007, all of which passed.

Virginia

For each of the past 5 years it appeared that Virginia General Assembly would raise the mandatory retirement age for judges and in each one of those years it failed, often at the last minute. Part of the challenge is the statutory placement of the law itself; Virginia Code 51.1-305(B1) not only sets 70 as the mandatory age for judges, but for members of the state Corporation Commission who are also members of the Judicial Retirement System. Trying to craft a bill that does, or does not, also change the retirement provisions for the members of the Commission has been a sticking point. The result has been numerous attempts, including three tie-vote-failures in committee.

Vermont

When originally proposed in the Vermont Senate, the bill to simply eliminate the retirement age. A committee amendment changed it to a range to be set by the legislature instead. The legislature would later opt for the high end, passing a statute in 2003 to set it as being the end of the calendar year the judge turns 90.

Washington

Wyoming

SB 1047 / HB 577 Requires adoption of zero-based budgeting by judicial branch starting July 2013. (veto message)

New laws or resolutions affecting the courts enacted or adopted by the Minnesota legislature in 2011 include the following:

HB 1023 / SB 874 Modifies duties of court district administrators. Provides administrator is to supervise court reporters as agreed upon with the collective bargaining representative. Provides court reporters who serve in the courts of the judicial district and are appointed by individual judges shall remain under the supervision of the judge who appointed them and serve at their pleasure.

North Dakota HB 1023 Strikes provision that certain court fees must be used to contract for indigent defense.

North Dakota HB 1065 Clarifies that the cities are responsible for indigent defense services in all prosecutions for violations of city ordinances, whether in city court, district court, or on appeal.

Vetoed

Minnesota HB 988 Requires the court, prior to appointing a public defender, to inquire whether a prosecutor intends to certify a misdemeanor as a petty misdemeanor. Provides that if an offense is certified as a petty misdemeanor, a defendant would not be eligible for a public defender. Clarifies that only those persons with a statutory right to a public defender under law may request appointment of a public defender. Establishes criteria to determine eligibility for public defender representation based on the offense level charged and the defendant’s income: misdemeanor 125% of federal poverty guideline; gross misdemeanor 150%; felony 175%. Maintains current language allowing the court to also determine eligibility based on defendant’s ability to pay for private counsel with current income and liquid assets. Strikes language limiting applicant’s duty to disclose information about changes in financial circumstances that is only relevant to eligibility for a public defender; language that allows only the public defender representing the applicant to see information in the application; and language providing that the court has the sole duty to conduct a financial inquiry, not the public defender. Requires all district courts to use financial statement forms furnished by the state public defender. Authorizes the court to reduce the $75 copayment for public defender representation. Provides that the court shall not appoint a public defender if a defendant: is financially able to retain counsel but refuses to do so; refuses to execute the required financial statement or provide information; or waives appointment of a public defender. Provides that the chief appellate public defender represents persons pursuing an appeal or post-conviction relief and the district public defender represents persons in all other statutorily defined cases. Strikes language mandating continued representation of an arrested individual and maintains permissive language allowing the public defender discretion in such cases. Eliminates restrictions on how reimbursements collected from defendants may be used by a district public defender’s office. Adds language requiring a defendant who is or becomes able to make partial payments to reimburse the state for the cost of the public defender. Strikes language referring to reimbursement guidelines (which is repealed in section 9). Directs the court, in determining a defendant’s payment schedule, to consider the defendant’s financial statement application. Requires the court to evaluate a defendant’s ability to make partial payments if the court originally determined that the defendant was financially unable to afford counsel due to the private retainer fee. Provides that the Board of Public Defense must fund all items and services necessary to satisfy its obligations law. Provides that a county is not responsible for public defender costs, expect for costs currently paid by Hennepin County.

Active/Carried over in 2012

Michigan HB 4742 Creates statewide public defense commission. Require commission develop, implement, and administer public defense system. Specifies manner for attorney representation of indigent criminal and juvenile defendants and standards for the appointment of legal counsel.

Ohio HB 49 Provides that specified fees, costs, and fines that currently are deposited into the state treasury to the credit of funds that help pay for the defense of indigent criminal defendants be deposited instead into the municipal treasury to help compensate counsel appointed by the court to represent indigent defendants if the court that imposed the fees, costs, or fines is a municipal court that is not a county?operated municipal court and that appoints counsel for indigent defendants in a manner other than that in law.

Died in committee

Indiana HB 1454 Establishes a statutory right to counsel for a child who is alleged or adjudicated to be a child in need of services or the subject of a parent- child termination proceeding. Establishes the office of the state juvenile public defender. Provides for representation of indigent children in cases filed in a juvenile court under a plan developed by the office of the state juvenile public defender and approved by the supreme court. Provides for counties to distribute to the state the average net amount (after deducting certain reimbursements) that the counties spent for these services over a five year period.

Indiana HB 1456 Provides that if a person is represented by a public defender in a probation violation hearing and the court determines the person is able to pay for part of the costs of the representation, the court shall order the person to pay $100. Provides that a court may make a finding of ability to pay the costs of representation for a probation violation hearing.

Indiana SB 253 Specifies that 20% of the late surrender fees collected under the Indiana bail law must be deposited in the county supplemental public defender services fund. (see also SB 518)

Iowa HB 602 Provides that legal services for indigent persons contracted through the state public defender may be paid based on other than an hourly rate, including a fixed rate basis. Provides for the handling of appeals for indigent persons by the state appellate defender or by transfer of the case to a person under contract with the state public defender. Provides that the expenses of the public defender in determining the amount of restitution for a case include all expenses approved by the state public defender together with the attorney fees for the public defender. Specifies an exception to payment of fees for appointed counsel by the person filing or on whose behalf a petition for termination of parental rights is filed.

Kansas HB 2197 Allows a public defender to withdraw from a court-appointed case when the defender determines a conflict of interest exists or when the defender’s current caseload would preclude them from providing adequate representation to new or existing clients. Requires withdrawal be communicated to Chief Judge of the District Court. Provides any public defender, with the approval of the Executive Director of the State Board of Indigents Defense Services, would be allowed to accept misdemeanor or juvenile appointments not covered by contract or agreement in the district county of jurisdiction. Requires public defender keep a record of time spent on a case and submit the timesheet to the Executive Director of BIDS and the Clerk of the District Court of the county in which the case was heard.

Kansas HB 2305 Reduces the number of members of the State Board of Indigents Defense Services from nine to seven. Reduces the number of members required to be lawyers from five to four and the number required not to be lawyers from four to three. Allows a member to represent both a congressional district and a county with a population of over 100,000.

Minnesota HB 987 Eliminates restrictions on use of reimbursements received by the Board of Public Defense.

Minnesota SB 1027 Authorizing counties and contiguous county groups to withdraw from the statewide public defense system for a certain specified period and allowing renewal of election to withdraw. Requires state board of public defense and commissioner of management and budget notification. Requires withdrawing counties to agree to provide court-ordered representation of indigent people Requires advisory board formation for comprehensive plan development. Requires state board of public defense to transfer a portion of state funding to withdrawing counties. Requires continued chief appellate public defender continued representation in appeals.

Missouri SB 89 Abolishes the state public defender system and requires circuit courts to provide legal defense for indigents.

Nebraska LB 214 In those areas where public defenders are elected, converts election from partisan to nonpartisan.

North Dakota SB 2105 Requires Commission on Legal Counsel for Indigents to provide legal counsel services to persons who refuse to retain their own counsel, if the court has determined that they are incompetent to represent themselves.

Iowa SB 165 / SB 292 Provides that any fine, court costs, surcharge, or other penalty previously paid by the defendant, including an unsecured appearance bond, may be refunded to the defendant or upon subsequent conviction applied to the newly assessed fine, court costs, surcharge, or other penalty.

Illinois HB 1295 Provides that a municipality may impose a bail processing fee up to $20 against any person arrested for violating a bailable municipal ordinance or a State or federal law.

Indiana SB 590 Requires a judicial officer in setting bail to consider that the defendant is a foreign national who has not been lawfully admitted to the United States as relevant to the risk of nonappearance. Establishes certain bond requirements if bail is set for a defendant who is a foreign national unlawfully present in the United States.

Illinois HB 2581 Provides that the payment of the $75 fee assessed by the court against an accused upon his or her admission to bail for failure to appear in certain cases in which a court appearance is required shall be a condition of release unless otherwise ordered by the court. Provides that if the Department of State Police is the arresting agency, $70 of the fee assessed shall be remitted by the clerk of the court to the State Treasurer within one month after receipt for deposit into the State Police Operations Assistance Fund.

Kansas HB 2118 Allows courts, as a condition of bond release, to order offenders who are charged with a felony to submit to drug and alcohol abuse examinations. Gives courts the authority to impose the full amount of unpaid costs associated with the conditions of release of an appearance bond when a person has been found guilty of a crime.

Introduced with committee and/or floor approval

Kansas SB 176 Requires courts, when considering the release of a person on appearance bond, to take into account whether a defendant is lawfully present in the United States.

Missouri SB 387 Allows circuit court to adopt a local rule allowing for the pretrial release on electronic monitoring in lieu of confinement for anyone charged with a crime who can afford to pay the costs of electronic monitoring.

Introduced with committee rejection

n/a

Introduced with other or no activity

Indiana SB 40 Provides that an undertaking for bail expires 36 months after the undertaking is posted for the release of a defendant from custody if: (1) the defendant fails to appear as required; and (2) the court fails to make an adjudication concerning the defendant, including refusing to extradite the defendant; during the 36 month period. Requires sureties and bail agents to establish and maintain electronic mail addresses before June 1, 2011. Provides that if a defendant does not appear as provided in a bond and the court orders the bail agent and the surety to surrender the defendant to the court, the clerk may send notice of the order by electronic mail to the bail agent and surety. Reduces the amount of time that a surety and bail agent have to produce a defendant or provide a valid reason for the defendant’s failure to appear from 365 days to 180 days. Provides that a court must release the bail agent and surety from liability from a bond if a defendant is arrested before the court enters judgment on the forfeiture of the bond and the court has actual knowledge that the defendant was or is in the custody of the United States pending deportation from the United States. Changes the period used to assess late surrender fees against a surety and bail agent. Specifies the late surrender fee is equal to 80% of the face value of the bond. Provides that costs resulting from a defendant’s failure to appear may not be assessed against a bail agent or surety. Provides that the court in which a bond is posted retains late surrender fees instead of the fees being deposited in police pension trust funds and county extradition funds. Specifies that the retained fees must be used by a court to defray the costs of operating the court, extraditing criminal defendants, and operating diversion programs. Repeals the law establishing county extradition funds on July 1, 2013.

Indiana SB 518 Provides that every surety for the release on bail of a person who executes a bail bond by depositing cash or securities in an amount not less than 10% of the bail must be: (1) an insurer represented by a bail agent; or (2) a person who is at least 18 years of age, a United States citizen, a resident of Indiana, related to the person for whom release on bail is sought within the third degree of affinity, and the owner of real or tangible personal property in Indiana with a net asset value that is acceptable to the authority approving the bond. Provides that, for purposes of the Indiana bail law, a cause is determined when: (1) a judgment of conviction or acquittal is entered; (2) judgment is withheld; or (3) the defendant has been ordered or admitted to a diversion program. Requires a court to waive a late surrender fee assessed against a bail agent or surety, or extend the period for payment beyond the statutorily permitted period, or both, if: (1) a written request is filed with the court and the prosecutor; and (2) the surety or bail agent provides evidence satisfactory to the court that diligent efforts were made to locate the defendant. Specifies that 40% of the late surrender fees collected under the Indiana bail law must be deposited in the police pension trust fund, 40% must be deposited in the county extradition fund, and the remaining 20% must be deposited in the county supplemental public defender services fund. Provides that if the combination of requirements a court imposes on a defendant to admit the defendant to bail includes the requirement that the defendant execute a bail bond with sufficient solvent sureties, the amount of the bail bond must be at least 50% of the total amount of the bail. Provides that if a person charged with a felony under IC 35-42 (offenses against the person) is admitted to bail, the person: (1) shall be admitted to bail by executing a bail bond with sufficient solvent sureties, depositing cash or securities in an amount equal to the bail, executing a bond secured by certain real estate, or posting a real estate bond; and (2) may not be admitted to bail under the statute that allows admission to bail by executing a bail bond by depositing cash or securities in an amount not less than 10% of the bail.

Kansas HB 2259 Requires magistrates to articulate certain findings when setting amounts of appearance bonds. Requires magistrates articulate the documentation that demonstrates the qualifications to allow a person to make a cash deposit for 10.0 percent of the bond. Provides if the magistrate does not have a factual basis for each of the qualifications, then the magistrate may not permit the bond deposit. Limits limit the conditions under which courts may determine that a person who has been charged with a crime may be released on the person’s own recognizance.

Minnesota HB 1502 / SB 1341 Provides anyone on e pretrial release to a county probation officer subject to unannounced searches by officer.

Missouri HB 159 Specifies that any person charged with a bailable nonviolent offense who does not post bail prior to his or her appearance before a judge may be placed on house arrest.

Minnesota’s efforts fared better. Several attempts were made to increase the current limitation of their “conciliation court” from its current $7,500/$4,000 if the case involves a consumer credit transaction ($7,500/$4,000).

In the Senate, SB 506 as introduced increased conciliation court jurisdiction to $15,000/ $7,500. It was amended up in committee to $20,000/$10,000. SB 506 was approved 65-0 in the Minnesota Senate. Meanwhile, its House counterpart (HB 868) was approved by the House Judiciary Policy and Finance Committee on May 9. The House committee amended their version to provide for a lower increase than the Senate, only opting for a jump to $10,000/$7,500. Similar efforts and amounts were found in an omnibus torts bill  (HB 211 / SB 149).

The Senate bills passed in their chamber of origin but failed to progress through the House before adjournment.

Although none of the 4 bills ultimately were adopted, the testimony before the Senate Judiciary and Public Safety Committee on April 18, 2011 gives an overview of the discussion and debate over the issue.

Part 1

Part 2

In that year, the state’s courts became involved in a series of lawsuits to determine what exactly was an “essential service.” A former Supreme Court justice was appointed a special master at the request of the Governor and Attorney General to help determine what was an “essential service” just days before the July 1 deadline. The special master immediately ordered the protection of services essential to the life, health and safety and those critical to maintaining or preserving public property and functioned for 2 weeks until the stalemate was resolved.

HB 1753 would avoid having a similar court fight over “essential services”, providing, other laws notwithstanding, “except for funding for public safety, a court may not order any expenditure of an amount in the treasury to fund any operation of state government.” Explicitly “trumped” by HB 1753 are the authorization or jurisdiction statutes for all three levels of court in the state: Supreme Court (Minn. Stat 480.04), Court of Appeals, (480A.06) and District Court (484.01).

The bill is currently pending in the House Committee on Ways & Means.

The bill faces an uphill battle. The committee took only testimony yesterday and did not vote one way or another. Moreover, the legislature is set to adjourn next week making passage at least this year appear unlikely.