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2011 Western court interpreters legislation

November 10th, 2011

Law

California AB 1403 Adds court interpreter fees to those costs that may be recovered, when the court has authorized a court interpreter for an indigent person, in certain civil actions. Signed into law by Governor.

Hawaii HB 298 / SB 997 Exempts court interpreters who appear at the request of the court from parking violations for expired meters.

Montana HB 65 Provides that in criminal matters when a interpreter is appointed, the interpreter’s fee must be paid by the office of court administrator in accordance with judicial branch policy (currently paid out of the county general fund).

Approved by one chamber

California AB 618 AS AMENDED: Provides that a person who is unable to understand English, and who is charged with a crime, has the right to a competent interpreter provided by the court to provide exclusive and ongoing interpretation services throughout any criminal proceeding as required by law. This includes a right not to share an interpreter with a witness. The person charged with the crime is also entitled to a separate interpreter not to be shared with a codefendant during any trial proceeding, including jury instructions, and in any proceeding, as required by law, at which witnesses are called and testimony is taken. Any rights pursuant to this provision may be waived as provided by this section. Provides that a person who is charged with a crime has a right to a determination by the court of the competence of an interpreter at any time during a proceeding if on the basis of the interpreter’s provision of interpreter services during a criminal proceeding, the court determines there is good cause to question whether the continued use of the interpreter in the proceeding may prejudice the rights of the person charged with the crime such that it would not be in the interest of justice or efficiency for the interpreter to continue. Specifies that notwithstanding any other provision of this article, a non-interpreter staff person of the court, or any person employed by the sheriff, probation department, prosecutor, jail or corrections department of the prosecuting city or county shall not provide interpreter services during a proceeding under this section. This subdivision shall not be construed to negate or modify the circumstances under which a court has the authority to appoint a noncertified interpreter. Establishes that the foregoing rights may only be waived expressly by the person charged if the waiver is affirmatively shown to be intelligent and voluntary. Placed on Appropriations Suspense file (i.e. postponed) by Senate Appropriations Committee 8/15/11.

Died in committee

California AB 973 ORIGINAL: Requires any change in court services, including “A reduction in the availability of court interpreters”, be subject to public notice and a public hearing. AMENDED: Removes specific references to court interpreters. Requires trial courts give public input into proposed budgets in general.

California AB 1809 Authorizes a bilingual judge, notwithstanding any other law, to provide an unofficial translation of preliminary court procedures that do not bear on any substantive right of a party when a court interpreter is not immediately available.

California AB 810 Authorizes the clerk of the court to employ as many foreign language interpreters as may be necessary to interpret cases in the superior court, and to translate documents as specified. Requires the clerk of the court to assign interpreters when needed to interpret in criminal and juvenile delinquency cases in the superior court, and in civil cases if an assignment can be made without causing the court to be unable to perform its obligations in criminal proceedings. Deletes the authorization for the collection of a fee, and would state that these provisions are declarative of existing law.

Nevada AB 153 Prohibits record of an arrest of a person to deny, refuse to renew, suspend or revoke a court interpreter certification or similar licenses/permits.

 

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First Hawaii, now Ireland, next maybe New Jersey: Legislatures look to remove constitutional guarantees not to reduce judicial salaries

October 31st, 2011

One of the items on the list of grievances in the Declaration of Independence against King George III was the linkage between his (dis)pleasure and judicial salaries

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

For this reason, among others, the U.S. Constitution assures federal judges are to “receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

Most (but not all) states have similar provisions in their constitutions. However, legislative efforts to overturn these clauses have been increasingly introduced as states cut budgets. Consider the following:

  • 79% of voters in Ireland last week approved a referendum to weaken their constitution’s protection of judicial salaries, allowing for laws to be passed reducing the pay of judges proportionately if the pay of public servants is being or has been reduced and that reduction is stated to be “in the public interest”.
  • New Jersey Governor Chris Christie’s plan to change the pension contributions for that state’s judges was also struck down as running afoul of that state’s guarantee that judicial salaries “shall not be diminished” (see prior post here). The Governor has vowed to introduce a constitutional amendment to curtail or eliminate the provision protecting judicial salaries.
  • In 2006, Hawaii voters voted to end the state’s judicial compensation commission and replace it with a compensation commission that would set salaries for most state elected officials. A lesser known provision of the amendment also stripped the constitutional guarantee that judicial salaries “shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State”. In 2009, all judicial salaries were “reduced by five per cent from what the salary [was] as of June 30, 2009, and shall remain at that salary rate until June 30, 2011″ (HB 1536 of 2009). The June 30, 2011 deadline has since been extended to June 30, 2013 (HB 575 of 2011).

Details of the various recent constitutional amendments below the fold.
» Read more: First Hawaii, now Ireland, next maybe New Jersey: Legislatures look to remove constitutional guarantees not to reduce judicial salaries

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Ohio Issue 1: Supreme Court Commissions? Courts of Conciliation? Thank (or blame) New York…

October 28th, 2011

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

Courts of Conciliation

Ohio Constitution (1851) Article 6, Section 19

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

New York Constitution (1846) Article 6, Section 23

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

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

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

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

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

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

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

Supreme Court Commissions

Ohio Constitution (1875) Article 6, Section 22

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

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

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

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

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

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

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

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

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

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

 

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2011 Western indigent defense legislation

September 16th, 2011

Law

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

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

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

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

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

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

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

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

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

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

Approved by one chamber

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

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

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

Died in committee

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

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

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

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

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

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

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

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

September 14th, 2011

New laws affecting the courts enacted or adopted by the Montana legislature in 2011, plus a referndun set to appear on the 2012 ballot, include the following:

SB 268 Referendum to require election of supreme court justices from districts. To appear on 2012 ballot.

HB 65 Provides that in criminal matters when a interpreter is appointed, the interpreter’s fee must be paid by the office of court administrator in accordance with judicial branch policy (currently paid out of the county general fund).

HB 70 Requires separate investment fund must be maintained for judges’ retirement system apart from any other retirement system.

HB 89 Provides candidates for district judgeship need not file certain documents with county election officials and are instead to file with the state-level commissioner of political practices.

HB 444 Creates budget database website for all judicial and other government budgets and expenditures.

HB 480 Provides a clerk of a justice’s court of record acting as a judge pro tempore may not preside over a trial but may preside over an initial appearance. Allows for temporary appointment of a justice of the peace of a court not-of-record into a justice of the peace court-of-record.

HB 587 Allows for office of associate water court judge.

SB 41 Allow cities to establish courts of record (currently may establish courts not of record).

SB 67 Directs office of court administrator temporarily suspend juvenile delinquency intervention program annual evaluation for one year and transfer funds to the general fund in lieu of conducting the evaluation.

SB 238 Increases jurisdictional limit for justice court from $7,000 to $12,000; for small claims from $3,000 to $7,000; for city court from $5,000 to $9,500.

SJR 26 Directs Joint Subcommittees on Appropriations monitor the Court Help Program and the Water Courts during interim.

SJR 29 Requests Legislative Council interim study of restorative justice.

 

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Montana Law and Justice Interim Committee to examine restorative justice, jail suicide prevention

September 2nd, 2011

The Montana Legislature’s Law and Justice Interim Committee is set to meet September 9. On the agenda is a review of restorative justice programs as directed by SJR 29 which was adopted in the 2011 session. Topics are set to include

  • community-based restorative justice programs
  • state restorative justice programs
  • jail suicide prevention
  • involuntary commitment standards

 

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Should legislatures be able to overturn court decisions on a 2/3rds vote? The Montana experience

August 25th, 2011

Welcome State Bar of Michigan Blog readers!

I noted yesterday the litany of bills introduced in New Jersey to allow two-thirds of that state’s legislature to override court decisions. Not a single one of those bills reached a committee hearing. Not so in Montana.

Montana

SB 397 (2005) / SB 334 (2009) / SB 323 (2011)

A decision of the Montana supreme court invalidating one or more statutes or parts of statutes may be overturned by a bill that is approved by a vote of at least two-thirds of the members of each house of the legislature and that is signed by the governor. The bill must specifically state the statutes or parts of statutes invalidated by the decision being overturned.

When first introduced in 2005, the amendment was part of a package of bills all introduced by Republican Sen. Joe Balyeat, including

  • SB 391 – sets term limits for judges similar or equal to that of state legislators (“If legislators want to legislate from the bench, they should be treated like legislators”)
  • SB 392 – sets  judicial pay as equal to that of legislators (“‘Legislating’ judges should be paid the same low rate…”)
  • SB 393 – ends nonpartisan races for judicial office
  • SB 394 – ends requirement judges be lawyers
  • SB 395 – elects supreme court by district, rather than statewide
  • SB 396 – sets supreme court campaign contribution limit as same a legislator
  • SB 398 – allows judges to be recalled from office for their decisions
  • SB 399 – applies open meetings law to judiciary
  • SB 400 – requires suits against legislature be brought in district of House Speaker or Senate President, rather than the capital

According to Sen. Balyeat’s 2005 testimony (no audio/video, minutes here) the Montana Supreme Court had failed to exercise “restraint” in various cases and was functioning as a “super legislature”. As in the New Jersey instance, court rulings on school funding were cited as a reason for the need to allow for an override of state supreme court decisions. Other proponents argued “it would put the people back in charge instead of the Court.” Ultimately, SB 397 was tabled on a 7-5 vote.

The bill returned in 2009 as SB 334. In his written testimony, which replicated the 2005 testimony almost identically, Sen. Balyeat had dropped all the other proposals except legislative override, supreme court election by district, and for suits against legislature to be brought in district of the House Speaker or Senate President, rather than the capital. This time the committee tied 6-6 on the bill and then voted 9-3 to table it. The audio (there was no video) is below. Note this exchange at about the 12:55 mark between Republican Senate Judiciary Vice-Chair Jim Shockley and Sen. Balyeat:

Sen. Shockley: Further questions? No. Just one from me Senator Balyeat. In effect, this is a constitutional, this allows the legislature in conjunction with the governor to amend the constitution, that’s basically it, right?

Sen. Balyeat: Um. Pretty close, yes. Although, it would also be limited to, with respect to a particular statute. Ok?

Sen. Shockley: Right. So it only says “Statute X is unconstitutional” we would in effect change the constitution so that that statute would be effective. So, we amend the constitution.

Sen. Balyeat: With respect to that narrow statutory provision.

Sen. Shockley: Thank you.

The third attempt at legislative override was in 2011 (SB 323). The same written testimony was once again submitted. This time the vote was 4-8 against legislative override (minutes here, audio here).

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2011 Western bail/pretrial release legislation

August 20th, 2011

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

Law

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

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

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

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

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

Introduced with committee and/or floor approval

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

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

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

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

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

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

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

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

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

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

Introduced with committee rejection

n/a

Introduced with other or no activity

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

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

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

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

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Special Edition: 2012 Ballot and the Courts

July 27th, 2011

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.

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A Gavel to Gavel first: Video Update!

June 28th, 2011

In a first for Gavel to Gavel, I am updating the blog with a video of legislative hearings related to just some of the bills I’ve been tracking in 2011. Hopefully this will be the first of many such efforts.

Let me know what you think.

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Posted in Admin, Other, Video

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