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Nevada considers intermediate appellate court; for NV voters would be 4th time in 4 decades to vote on subject

April 1st, 2013

Nevada is one of only 10 states (Delaware, Maine, Montana, Nevada, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming) + DC without an intermediate appellate court. Two years ago I noted that Nevada is once again attempting to get an intermediate appellate court for the state. The Senate version of that bill (SJR 14 of 2011) met was approved 16-5 in the Senate and 32-8 in the Assembly.

Because Nevada requires a constitutional amendment be passed by 2 legislatures, the bill has been resubmitted and retains the same number, now SJR 14 of 2013.

If approved, this would be the fourth time voters considered creating an intermediate appellate court.

In 1980 and 1992 voters rejected efforts to amend the constitution to create an intermediate appellate (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a Court of Appeals, District Courts…”)

The third attempt in 2010 (Question 2) would  have allowed  but not required the creation of the court (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, if established by the Legislature, District Courts…”)

The 2011/2013 version returns back to the language in which the court of appeals is created (“The Judicial power of this State shall be is vested in a court system, comprising a Supreme Court, a court of appeals, District Courts…”)

All three efforts have failed roughly 47-53 (1980: 106,131 to 118,933; 1992: 213,407 to 252,950; 2010: 356,357 to 313,769).

All three elections effectively had the same arguments for and against. Proponents argued that the creation of the court would alleviate backlog in the Supreme Court and allow for faster disposition of appeals. Opponents argued a new court would cost taxpayers and add costs to litigation.

What sets the 1980/1992 apart from the 2010/2013 versions is the jurisdiction of the court of appeals; the 1980/1992 version provided the legislature would set the jurisdiction, the 2010/2013 allows the Supreme Court to set it.

If approved by the 2013 session the question on a court of appeals would be on the 2016 ballot.

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Veterans Courts: 2013 legislatures are both encouraging them and trying to give the executive control over them

February 26th, 2013

I’ve been monitoring for the last several years legislative interest in veterans courts, and 2013 appears to bear out the continued interest in them. Many states already operate such courts through court rule or the calendar/docketing practices of individual judges, such as in Buffalo, New York where the a veterans court has operated for years.

What sets 2013′s bills apart is the shift in focus from establishment (such bills are still being introduced) to encouragement and control.

3 states (Kentucky HR 118, Oregon HCR 24, Washington State SB 5797) are considering bills or resolutions “encouraging” or “urging” veterans courts.

3 states (Oregon’s HB 3194 and HB 3195; Texas SB 462, South Carolina’s HB 3014) would transfer to or establish it is the executive branch, not the judiciary, that is to create veterans courts and/or set the rules for their operation.

Details and current status of the efforts below the fold. » Read more: Veterans Courts: 2013 legislatures are both encouraging them and trying to give the executive control over them

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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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Merit selection: comprehensive state-by-state review of efforts to modify or end existing systems

April 10th, 2012

The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.

Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.

Alabama – Circuit Court in select counties [interim only]: No activity

Alaska – Supreme Court, Court of Appeals, Superior Court: No activity

Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.

Colorado – Supreme Court, Court of Appeals, District Court: No activity

Connecticut – Supreme Court, Appellate Court, Superior Court: No activity

Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).

Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.

Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity

Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.

Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.

Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).

Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.

Montana – Supreme Court and District Court [interim only]-: Legislature not in session.

Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity

Nevada – Supreme Court and District Court [interim only]: Legislature not in session.

New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.

New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.

North Dakota – Supreme Court and District Court: Legislature out of session

Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.

Rhode Island – Supreme Court, Superior Court, Family Court, District Court : No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.

South Dakota – Supreme Court, Circuit Court [Interim only]: No activity

Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

HB 1017 / SB 82 Retains merit selection, but makes judicial nomination commission recommendations advisory; allows governor to ignore recommendations.

HB 1702 / SB 646 Requires judges selected via merit selection system receive 75% yes in retention election.

HB 3452 / SB 2794 Retains merit selection, but alters nomination process and adds confirmation.

HB 3691 / SB 3652 Requires House and Senate speakers appoint all nine members of the judicial evaluation commission since the judicial council no longer exists.

Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity

Vermont – Supreme Court, Superior Court, District Court: No activity

West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity

Wyoming – Supreme Court, District Court, Circuit Court: No activity

 

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

November 1st, 2011

Nevada’s legislature approved of one constitutional amendment related to the courts in 2011:

SJR 14 Creates intermediate appellate court. Must be approved by legislature elected in 2012 to appear on ballot.

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

AB 7 Extends from 2 days to 5 days time a judge whose recusal has been requested has in order to respond to affidavit for recusal. Clarifies days as used means judicial days.

AB 81 Increases filing fees to run for judicial and other offices. Provides for placement of supreme court candidates on ballot.

AB 121 Authorizes the Supreme Court, or a majority thereof, to designate as Bailiff of the Supreme Court certain persons who are appointed and employed by the Supreme Court to provide for the safety and security of the justices and employees of the Supreme Court and to carry out certain police duties at the direction of the Chief Justice of the Supreme Court. Provides that such persons appointed and employed by the Supreme Court have the powers of a category I peace officer when carrying out duties prescribed by the Chief Justice. Authorizes certain personnel of the Capitol Police Division of the Department of Public Safety to provide, under certain circumstances, security services to the justices of the Supreme Court while such justices are working at any location in the State of Nevada. Authorizes the Supreme Court to contract with independent contractors to provide security services for any facility or building that is owned by or leased to the Supreme Court and occupied by its employees.

AB 194 Amends state law to make it consistent with federal law by removing from state law an ambiguity that could have been construed to require persons with disabilities to pay for their own interpretive services in civil judicial proceedings.

AB 195 Requires that, before a court record is destroyed by the Clerk of the Supreme Court, a deputy clerk of the Supreme Court, a county clerk, the clerk of a district court or a deputy clerk of a district court, the clerk must place an image of the record on microfilm or save the image in an electronic recordkeeping system. Provides a deputy clerk of a justice court or a clerk of a municipal court may destroy a court record pursuant to a schedule for the retention and disposition of court records established by the Supreme Court without placing an image of the record on microfilm or saving the image in an electronic recordkeeping system. Details specifications for microfilm or recordkeeping systems.

AB 196 Requires district courts forward to the county treasurer the necessary information for the collection of the debt of a criminal defendant. Permits county unable to collect the debt to enter into a cooperative agreement with the Office of the State Controller for the purpose of assigning to the Office of the State Controller the responsibility for collecting the debt. Requires a defendant to pay costs and fees associated with the efforts to collect a debt.

AB 259 Transfers fees collected for transfer of cases between courts and recording of documents to legal services programs.

AB 261 Increases small claims cases from $5,000 to $7,500.

AB 276 Requires State Controller post all expenditures and revenues of the state “including, without limitation, the operation of the courts of this State.”

SB 5 Provides that in counties over 100,000 it is the court, not the sheriff, that summons prospective grand jurors.

SB 6 Authorizes the electronic reproduction of the seal of a court (current law requires either impressing the seal on the document or impressing the seal on a substance attached to the document) if the seal is reproduced in accordance with certain local court rules and rules adopted by the Supreme Court. Provides that a seal which is electronically reproduced has the same legal effect as a seal that is impressed.

SB 25 In a township whose population is less than 1,100,000, one justice of the peace is required for each 100,000 population of the township, or fraction thereof, until the township has four justices of the peace, and thereafter, one justice of the peace is required for each 125,000 population of the township, or fraction thereof, over a population of 300,000. In a township whose population is 1,100,000 or more, one justice of the peace is required for each 100,000 population of the township, or fraction thereof, up to a population of 1,100,000, and thereafter, one justice of the peace is required for each 125,000 population of the township, or fraction thereof, over a population of 1,100,000.

SB 94 Creates 10th judicial district and redistricts other districts accordingly.

SB 194 Urges the Nevada Supreme Court to amend the Nevada Rules of Civil Procedure to require an attorney in such class actions to all the disclosures required pursuant to F.R.C.P. 23 to each member of the class.

SB 436 Transfers the responsibility to deposit certain money for the purpose of paying pension benefits to justices of the Supreme Court or district judges from the State of Nevada to the Court Administrator.

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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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Posted in Qualification & Terms, Selection, Special Edition, Structure Changes

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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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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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Nevada State of the Judiciary: [T]he core function…of the Judicial Branch is to resolve disputes…in a fair, impartial, and timely manner

May 5th, 2011

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Chief Justice Michael J. Douglas delivered the Nevada State of the Judiciary address to a joint session of that state’s legislature on March 7. There was no formal resolution, only a motion in the Assembly to escort the Chief Justice and justices of the Supreme Court in and to invite the Senate to join them.

Highlights of the the Chief Judge’s speech (full text here) included:

I have been provided with a challenge and opportunity to provide you with thoughts from the Nevada Judiciary. Since the depression of the 1930’s, we have not seen a more challenging time for the people of the State of Nevada than right now…The Judicial Branch can not pass laws like the Legislature, and the Judicial Branch can not approve or veto laws like the Governor. The Judicial Branch interprets and honors laws as passed pursuant to our Constitution. To fulfill that responsibility, the Judicial Branch must be independent of politics and personalities and concerns as to public popularity. The Judicial Branch – the Court – has but one true allegiance – that is to the Constitution and the rule of law. That belief is captioned in the words of the pledge of allegiance, and you can find those words in the top of your Nevada Supreme Court rotunda – “liberty and justice for all.”

Thus, the core function, if you will, of the Judicial Branch is to resolve disputes under the rule of law – our Constitution – in a fair, impartial, and timely manner. That is the Judicial Branch’s responsibility under the Constitution, which is what we must do, despite the budget challenges we face today.

Thus, in light of our challenges, I will not offer you a new vision of Nevada’s judicial future. What I will do is state that your Judicial Branch will continue to do its part and look at how we can better deliver dispute resolution services to the people of Nevada.

Limited resources, increased work loads, greater case complexity, as well as more self represented parties in court, is just an overview of the issues. The nightly news provides pictures and sounds of the coming attractions for the courts. Stories on the news related to drug use and related violence, violent crimes, followed by stories of sagging business, unemployment, mortgage foreclosure, and child – domestic – and elder abuse, should give all of us pause as to the challenges of the State Judicial Branch.

In the criminal context, resolution might be a trip to a Specialty Court. So what is a Specialty Court? Specialty Courts use problem solving processes designed to address the root causes of some criminal activity… Specialty Courts benefit the county and State budgets by reducing time in jail at taxpayer expense, and allowing the individual to return to being a contributing member of our local communities.

In the civil context, before the Foreclosure Mediation Program, a desperate homeowner might have had a problem finding anyone in authority with his bank or lender willing to listen to his home payment problem; conversely the banks and the lenders were not getting responses from homeowners in default… The program uses no State funds and is run at its inception outside the courthouse, with both sides having a right of judicial review.

I end now, not because I am finished, but due to time. I would love to tell you more about the Judicial Branch, about: Law Day Live and texting, the Court Improvement Program – CIP – designed to help welfare families and foster kids, or Access to Justice, with private Bar pro bono attorneys helping poor Nevadans, or Nevada’s other program that has drawn national attention, related to improving Indigent Criminal Defense, or our use of Technology in the Courts – web cast, public information portals, E-filing, E-tickets, and more.

Remember, justice belongs to all the people, not to either political party, not to any special interest. A system of justice, the rule of law, is necessary to support our economy and to support our personal freedoms under our Constitution. A system of justice can only exist as long as the people have trust and confidence that dispute resolution will be fair, impartial, and timely.

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