Posts Tagged ‘New Jersey’

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As expected, push to remove constitutional protections for New Jersey judicial salaries introduced

November 15th, 2011

I mentioned several weeks ago the effort to remove the protections for judicial salaries found in the NJ constitution, a response to the hue and cry from the state’s governor when a court struck down his plans to alter the retirement and other judicial benefits because of these provisions.

The ideas have now been introduced as ACR 208 and SCR 241. Although the text of the constitutional amendments are not yet ready, the legislature’s bill tracking system indicates they are intended as “clarifying Legislature’s authority to pass laws requiring contributions from justices’ and certain judges’ salaries to help fund employee benefits.”

It is unclear how far, if at all, these efforts will get. The House and Senate are both Democratically controlled, while the bills’ sponsors are Republicans. Moreover, legislative leadership has indicated no interest in pursuing these bills (h/t Gavel Grab).

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Posted in Salary & Budget

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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: What other states tried to increase or remove their judicial retirement ages and how did they do?

October 27th, 2011

Ohio voters will head to the polls November 8 to decide the fate of Issue 1, marking the sixth time in 20 years the question of judicial retirement has been on the ballot (Hawaii 2006; Louisiana 1995 & 2003; Pennsylvania 2001; Texas 2007; Vermont 2002), with 4 victories to 2 defeats.

Four legislatures have adopted statutes to alter retirement (Indiana 2011; Kansas 2003 & 2010; North Carolina 1992; Vermont 2003). Moreover, Arizona has advanced a proposed change for the 2012 ballot while New York voters will probably address the issue in 2014. This marks a trend over the last several year in particular of state legislatures confronting judges living longer and the question of whether there should be any limits on service at all.

State by state breakdown below the fold.

» Read more: Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

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Posted in Qualification & Terms, Special Edition

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Why Senate reconfirmation for incumbent state judges? Why not House? Or joint? Or election?

October 24th, 2011

Several weeks ago I looked at the historical development of why some states have legislative involvement in judicial confirmation for their appellate courts and whether it was only the state’s senate that had a role or if it was a joint process. To reiterate, one of the big presses in the last year has been to put into place something akin to the “federal model” of senate (only) confirmation. But unlike the federal model, which includes life tenure, almost all these proposals include a reconfirmation at some point.

It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:

  • 6 give at least some appellate  judges a decade or more on the bench between reconfirmations: Delaware (12 years), Hawaii (10 years), South Carolina (10 years), Utah (Supreme Court: 10 years), Virginia (Supreme Court: 12 years),  and New York (Court of Appeals: 14 years)
  • 3 give reconfirmation to the House and Senate: Connecticut, South Carolina, and Virginia
  • 3 remove the legislature outright from reconfirmation: Hawaii (judicial nominating commission); Maryland and Utah (retention election)
  • 2 at least have the option of lifetime or near-lifetime appointment: Rhode Island (life) and New Jersey (until 70 after reconfirmation)

Roles of legislatures in appellate judicial re-confirmation

Connecticut: 8 year term for Supreme Court and Appellate Court. Judicial Selection Commission evaluates incumbent judge, with statutory presumption “that each incumbent judge who seeks reappointment to the same court qualifies for retention in judicial office” and provides burden on commission to demonstrate otherwise (see 51-44a (e) and (f), of the Connecticut General Statutes). Commission sends reappoint/don’t reappoint recommendation to Governor who renominates incumbent judge. Legislature jointly reconfirms.

Delaware: 12 year term for the Supreme Court. Governor renominates. Senate reconfirms.

Hawaii: 10 year term for Supreme Court and Intermediate Appellate Court. Judicial selection commission reappoints.

Maine: 7 year term for Supreme Judicial Court. Governor renominates. Joint House/Senate legislative committee recommends reconfirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

Maryland: 1 year (at least) initial term for Court of Appeals and Court of Special Appeals. Yes/no retention election. 10 year subsequent term.

New Jersey: 7 year initial term. Governor renominates. Senate reconfirms. Service until 70 for subsequent term.

New York (Court of Appeals, state’s court of last resort): 14 year term for Court of Appeals. Commission on Judicial Nomination resubmits names along incumbent’s to Governor. Governor renominates incumbent or nominates new person. Senate confirms or reconfirms.

NOTE: the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature in terms of reconfirmation. The Governor elevates and may reappoint to the Appellate Division from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”). For example, when his 14 year term in the trial court ended in 2011, the Hon. Henry J. Scudder had to run for re-election and then be reappointed back to the Appellate Division, Fourth Department (see story here).

Rhode Island: N/A (Serve for life)

South Carolina: 10 year term for the Supreme Court, 6 year term for the Court of Appeals. Judicial Merit Selection Commission evaluates incumbent judge and all others seeking position. Commission sends names to Legislature. Legislature jointly reappoints or appoints someone else. (See Title 2, Chapter 19 S.C. Code)

Utah: 3 year (at least) initial term. Yes/no retention election. 10 year subsequent term for Supreme Court, 6 year subsequent term for Court of Appeals.

 

Virginia: 12 year term for the Supreme Court, 6 year term for the Court of Appeals. Legislature jointly reappoints or appoints someone else.

 

 

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Posted in Selection, Special Edition

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Why Senate confirmation for state judicial nominees? Why not House? Or joint?

October 11th, 2011

Numerous state legislatures in 2011 that have a version of merit selection (Arizona, Florida, Oklahoma) or have considered adopting merit selection (Mississippi, Pennsylvania, Wisconsin) have put in provisions for Senate confirmation. Additionally, Rhode Island (HB 5675) considered removing the state senate’s existing confirmation power with respect to a trial court (Superior Court) and transferring the power to the house.

But the question arises: why Senate confirmation? There’s the case for reference to the U.S. Senate and its role in federal judicial confirmations. And this was consistent when a) state senators were elected by counties to represent the county as a whole (as in New Jersey) or clusters of counties (as in New York) and b) trial judges (and occasionally appellate judges) were picked by districts made up of clusters of counties.

Thanks to one person/one vote decisions by the U.S. Supreme Court over the years, the practice of Senate districts following county lines is over. The practice of appellate judges being chosen based on geography is also on the decline with only 10 states continuing to use the practice for courts of last resort and 17 of 40 states with intermediate appellate courts using district based selection (although Montana may buck the trend in 2012, Oregon voters rejected the idea 2-1 in 2006).

Moreover, as I noted in March, such proposals have fared much better in state senates than in state houses, and history bears this out. In short, when the power to confirm has been handed solely to the state senate, it has had mixed support in the state’s house. The only way it happens, normally, is when there is a litany of other issues in play.

When does Senate confirmation of appellate nominees come into a constitution?

  • Conventions changing entire constitution: Delaware, Hawaii, and New Jersey
  • Constitutional amendment changing most/entire Judiciary Article: Maryland (1970 attempt) and Utah
  • Constitutional amendment changing judicial selection only: Maryland (1976), New York
  • Constitutional amendment changing most/entire Executive Branch Article: Maine, Vermont

In the case of Maryland (1976) and New York (1977) the amendments to have Senate confirmation met with lower House approval as part of a package of bills related to the courts.

This institutional inertia may explain some 2011 activity. Consider the following:

  • The original Florida House proposal HJR 7111, introduced March 22, 2011 included nothing about Senate confirmation of justices of the planned modified supreme court with civil and criminal panels. The only mention of the Senate was a provision stripping the power of the court(s) to name their chief justice and giving it to the Governor with Senate confirmation. Six days later, SJR 1664 requiring Senate confirmation for the Supreme Court was passed by the Senate Judiciary Committee. On April 5, the Senate Governmental Oversight and Accountability Committee gave its approval of SJR 1664. By April 8, SCR 1046) and Oklahoma Senate (SB 621) did not fare as well. The Arizona bill went nowhere. The Oklahoma bill moved through the Senate and was not even brought up for a House committee hearing.

Roles of legislatures in appellate judicial selection

Both chambers

Connecticut: since the 1818 Constitution. An 1880 amendment (Article XXVI) allowed for the Governor to nominate, but still required confirmation by both chambers. A 1986 amendment added merit selection, permitting the Governor to nominate only from those names submitted by the Judicial Selection Commission.

Rhode Island: since the 1842 Constitution and kept as part of the 1986 constitution. A 1994 amendment added merit selection, permitting the Governor to nominate only from those names submitted by an independent non-partisan judicial nominating commission.

South Carolina: since the 1776 Constitution and kept as a part of the 1778, 1790, 1861, 1865 and 1868 constitutions, plus a 1973 revision to the judiciary article. A 1997 constitutional amendment added merit selection allowing the legislature to elect only from those names submitted by the Judicial Merit Selection Commission.

Virginia: since the 1776 Constitution and kept as part of the 1850, 1861, 1864, 1870, and 1902 constitutions.

Senate only

Delaware: since the 1897 Constitution. The 1776 Constitution specified a joint ballot of both chambers of the general assembly and the “president” (i.e. governor) of the state. The 1792 and 1831 Constitutions placed the power of appointment solely in the hands of the Governor.

Hawaii: since the 1949 Constitution.

Maryland: since a 1976 constitutional amendment. The 1776 Constitution gave appointment to the Governor with the Council “for the time being” and put it solely in the hands of the Governor via an 1837 amendment. Maryland’s 1864 Constitution provided for direct election of the judges of the top court (Court of Appeals), but provided the Governor with Senate confirmation would select the chief judge. The 1867 Constitution made 7 of the 8 chief judges of the state’s judicial circuits the state’s top court and provided the Governor with the confirmation of the Senate would select the chief judge of the Court of Appeals. This practice continued until a 1943 constitutional amendment separated the roles of chief circuit judge from judge of the Court of Appeals but still required direct election. A 1960 amendment reaffirmed direct election, while changing the geographic boundaries.

It should be noted that the Maryland proposal was initially rejected in 1970 (1970 version) and included most courts in the state (judges of the Court of Appeals, intermediate courts of appeal, Circuit Courts, and the Supreme Bench of Baltimore City), increased terms of office to 15 years, and made revisions to the power of the Commission on Judicial Disabilities which had just been created in 1966. The successful 1976 version focused exclusively on merit selection with Senate confirmation for appellate courts only.

New Jersey: since the 1844 Constitution. The 1776 Constitution made the Governor and Council the state’s top court (Court of Appeals). The current 1947 Constitution replicated the Governor-appoints-Senate confirms system of the 1844 Constitution, but with a significant change. Rather than being re-confirmed every 7 years, the justices would face only 2 Senate confirmations: one for their initial appointment and a second after 7 years. If reconfirmed a second time, they would remain in office until age 70.

New York Court of Appeals (state’s court of last resort): sporadically since the 1777 Constitution. Under the 1777 Constitution, a Council on Appointments made up of 4 Senators chosen by the Assembly, plus the Governor (to break ties) was used. The 1821 Constitution changed this to a Governor-appoints-Senate-confirms system. The 1846 Constitution created a bifurcated election system: 4 of the 8 judges would be elected by the statewide, the other 4 would be locally elected judges of the general jurisdiction court (confusingly called the “supreme court”) “having the shortest time to serve.” A new constitution was voted on, section by section, in 1869; the judicial article was the only one approved. That new article provided for statewide election. The 1894 Constitution and 1938 Constitution continued the statewide election system. A 1977 amendment that revamped much of the Judiciary Article created the present merit-selection-Senate-confirmation system.

10/24/11 update: Selection to the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature. The Governor alone elevates from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”).

Utah: since a 1984 constitutional amendment. The original 1895 constitution provided for statewide election. The 1984 amendment overhauling the entire Judiciary Article provided for the present merit-selection-Senate-confirmation system. A subsequent 1992 amendment increased the time for the Senate to consider nominations.

Vermont: since a 1971 constitutional amendment. The 1793 Constitution provide for joint election by the unicameral House and Executive Council, a practice that was continued when the Council was made the Senate via a 1836 amendment. An 1890 effort to shift this to the Senate alone was rejected by the Senate itself but was incorporated into the 1971 revision of the state’s entire Judiciary Article.

Hybrid

Maine: since a 1975 constitutional amendment (L.D. 25). The 1820 Constitution in place when Maine was separated from Massachusetts and became a state kept the Massachusetts practice of supreme court selection method of governor-appoints-and-executive-council-confirms. The 1975 amendment abolishing the Council created the current procedure for confirmation: the Governor nominates and a Joint House/Senate legislative committee recommends confirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

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2011 Northeast indigent defense legislation

September 12th, 2011

Law

Connecticut SB 38 Exempts from disclosure under the Freedom of Information Act (FOIA) personnel, medical, or similar files of current or former employees of the Division of Public Defender Services to people in the custody or supervision of the Department of Correction (DOC) or confined in a facility of the Whiting Forensic Division of Connecticut Valley Hospital. Requires public agencies to waive any fees for providing records requested under FOIA if the requestor is a member of the Division of Public Defender Services or court-appointed special assistant public defender and certifies that the records pertain to his or her duties. Specifies that, for purposes of FOIA, the Division of Public Defender Services is considered to be a judicial office. (By law, a judicial office is subject to FOIA only with respect to its administrative functions.)

Maine SB 182 Specifically states which decisions of the executive director of the Maine Commission on Indigent Legal Services must be subject to an appeal process for attorneys aggrieved by such decisions. Specifies method of appeal of such decisions by executive director.

Maine SB 189 Makes certain records in the possession of the Maine Commission on Indigent Legal Services confidential.

New York AB 7932 / SB 5474 Exempts legal aid societies and bureaus and other entities that provide indigent representation from the fees charged by the Department of Motor Vehicles for record searches and copies of documents.

Adopted Resolution

Maine HB 451 Grants emergency approval to changes to Eligibility Requirements for Specialized Case Types, as provisionally adopted by Maine Commission on Indigent Legal Service.

Approved by one chamber

New Jersey AB 3324 / SB 2233 Permits early termination of one-year terms of municipal court public defenders when two or more municipalities enter into agreements to establish joint municipal courts or shared municipal courts. Approved by full Senate. In Assembly Judiciary Committee.

New York AB 7857 / SB 3269 Authorizes public defenders, legal aid societies, and administrators of assigned counsel plans to have access to the Division of Criminal Justice Services’ criminal history records for use in connection with the representation of public defense clients. Approved by full Assembly. In Senate Finance Committee.

Active/Carried over into 2012

Massachusetts SB 748 Removes power of courts to approval fees/costs associated with defense in criminal cases, juvenile delinquency proceedings and youthful offender cases. Requires submission of costs to committee for public counsel services rather than clerk of court. Requires approval of costs associated with defense be made by committee for public counsel services.

Massachusetts HB 3359 / SB 898  Requires judiciary produce report of all criminal and delinquency cases initiated in the courts of the commonwealth during fiscal year 2011, including number of cases in which public defender appointed. Requires parity between funding of prosecutors and public defenders. Requires all criminal and delinquency cases be “weighted” based on case type to establish budgetary amounts that may be appropriated to the committee for public counsel services to pay for public defenders.

Massachusetts HB 1285 Repeals requirement that counsel appointed or assigned to represent indigents within the private counsel division, except any counsel appointed or assigned to represent indigents within the private counsel division in a homicide case, shall be prohibited from accepting any new appointment or assignment to represent indigents after he has billed 1400 billable hours during any fiscal year.

Massachusetts SB 1446 Converts law school tuition into tax credit if attorney serves as public defender or otherwise practices “public interest law” as defined.

Massachusetts SB 1861 Increases hourly compensation levels/amounts payable to indigent defense counsel by $3-$5 per hour, depending on activity.

Massachusetts SB 848 Repeals law with respect to providing legal services for indigents subject to the sex offender registry classification system.

New Hampshire HB 315 Declares an “impeachable offense” the appointment of an attorney or commitment of public funds for an attorney in connection with the representation of any person, whether indigent or not, except as specifically authorized by the New Hampshire constitution, federal or state law, or mandate of the New Hampshire supreme court. Provides such appointment shall be made only upon application of the person making the request and consistent with rules adopted by the New Hampshire supreme court. Prohibits appointment in any court other than the court in which the appointment is made, except to the extent necessary to preserve or perfect an appeal as mandated by the New Hampshire supreme court.

New Jersey SCR 148 (Constitutional Amendment) Creates Public Defender Services Commission established by the amendment.  Provides Commission to appoint Public Defender (currently, Governor with the advice and consent of the Senate). Locates the Public Defender within the courts but gives it independent status.

New Jersey SR 92 Requests New Jersey Supreme Court require attorneys to perform 50 hours of pro bono service per year or make a monetary contribution to Legal Services of New Jersey.

New Jersey AB 3844 / SB 2768 Prohibits the expenditure of State funds by the Office of the Public Defender or other attorney providing the same services, on cosmetic services for defendants in a criminal trial.

New Jersey SB 1812 Authorizes Office of Public Defender to provide legal representation for child in proceedings after parental rights have been terminated.

New York AB 1310 / SB 3261 Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel.

New York AB 2749 Establishes the New York state public defense commission to oversee the provision of public defense services in the state. Requires commission establish public defense services standards, provide financial assistance to local governments and public defense providers for expenses incurred in providing legal services to the indigent, provide training to persons in the public defense profession and oversee the provision of public defense services in the state.

New York AB 731 Authorizes any legal aid society or other legal services or non-profit organization that provides legal services to indigent clients to have access to EjusticeNY for the purposes of obtaining, where authorized by their clients, access to records necessary for understanding, correction and applying for Certificates of Rehabilitation.

New York AB 7867 Provides funding under the indigent legal services fund for the New York State Defenders Association.

New York SB 5143 Provides funding under the indigent legal services fund for the New York State Defenders Association (not identical to AB 7867)

Died in committee

Maine SB 225 Requires all new courthouses designs include adequate space for attorneys providing indigent legal services.

Vermont HB 232 Allows a municipal public body to go into an executive session in order to consider applications to or awards from a municipal fund for the poor or indigent.

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

August 24th, 2011

Welcome State Bar of Michigan Blog readers!

With his recent entrance into the 2012 presidential campaign, Texas Governor Rick Perry’s views on the U.S. Supreme Court have come into focus. One of his ideas, allowing Congress to override the Supreme Court with a two-thirds vote, in order to ensure “accountability.”

Two states in particular, Montana and New Jersey, have been considering such proposals with respect to their own state supreme courts in the last several years.

Today: a look at New Jersey. Tomorrow: Montana.

New Jersey

New Jersey’s efforts stem from the Abbott decisions involving spending on education under the state constitution’s guarantee that “[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” (N.J. Const. art. VIII, § 4, P 1.)

There have been two “versions” of the two-thirds override amendment. One was introduced a single time (ACR 187 of 2003) and specifically amended the aforementioned provision of the state constitution only (additions underlined)

a. The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years. Maintenance and support shall be provided through the enactment, from time to time, of laws prescribing the components of a thorough and efficient system of free public schools and the funding of a system of free public schools in the manner and to the extent the Legislature determines to be appropriate. No court shall issue any decision, whether under this section or otherwise, which shall have the effect of compelling the State or any of its subdivisions to expend additional funds on the support of public schools, or of restraining the expenditure thereof, without the express consent of the Legislature.


b. The Legislature may review the decision of any court on the provision of a thorough and efficient system of free public schools to determine if the decision violates the provisions of this section or is otherwise inconsistent with the intent of the Legislature and may invalidate the decision, in whole or in part, by a vote of a two-thirds majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation.

This limited version was referred to the Assembly Judiciary Committee, received no hearings, and died at the end of that session.

The second, and more resilient, version was first introduced as ACR 137 of 2000 and reintroduced as ACR 190 (2003), SCR 117 (2003), ACR 66 (2004), SCR 25 (2004) , ACR 88 (2006), SCR 19 (2006), ACR 118 (2008) , and SCR 63 (2008). It is currently pending in only the Assembly as ACR 12 (2010).

This version would add Section IX in the state constitution’s Judiciary Article (Article VI).

(a) As the people possess the exclusive authority to ordain or amend constitutions, all courts shall interpret this Constitution in a manner consistent with the intention of the people when ordaining or amending the same. Any court which declares an act of government contrary to the provisions of this Constitution shall do so in writing, setting forth in specific detail the section violated and the history of such provision which supports the decision. No court shall expand a constitution provision beyond, nor constrict a constitutional provision below, the scope actually intended by the people. As the power of the purse is solely that of the Legislature, no court shall issue any decision, whether under this Constitution or otherwise, which shall have the effect of compelling the State, or any of its subdivisions, to expend any money, or restraining the expenditure thereof, without the express consent of the Legislature. As the purpose of a Constitution is to establish and restrain government, the Judiciary shall not interpret this document so as to apply its provisions against private parties.


(b) The Legislature may review any decision to determine if the decision violates the provisions of subsection a. of this Constitutional Amendment or is otherwise inconsistent with the intent of the Legislature. The Legislature may invalidate the decision, in whole or in part, by a vote of a two thirds majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation.

Not a single iteration of this version has gotten to so much as a committee hearing.

 

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2011 Northeast bail/pretrial release legislation

August 15th, 2011

Law

Maine HB 1029  Adds a new provision addressing the preconviction limitations on a bail commissioner’s authority. Adds a provision requiring that in the preconviction context a bail commissioner specify a court date within 8 weeks of the date of the bail order when that bail order uses one or more release conditions not automatically included in every bail order for pretrial release. Requires that the court and not a bail commissioner set preconviction bail for a crime if: the condition of release alleged to be violated relates to new criminal conduct for a Class C or above crime or specified Class D and Class E crimes. Clarifies that a law enforcement officer may make a warrantless arrest related to anticipated bail revocation or violations of bail conditions.

Maine HB 774 Specifies that persons arrested for juvenile crimes, as well as persons under 18 years of age who are arrested for crimes outside of the Maine Juvenile Code, are not eligible for bail.

Maine HB 951 Allows a court to permit the use of medical marijuana while imposing conditions of a criminal sentence, bail, probation, continuance or other dispositional order.

Maine HB 961 Provides the Chief Judge of the District Court may adopt rules requiring a bail commissioner to appear and set bail regardless of whether the defendant is indigent and unable to pay the bail commissioner’s fee and  may also adopt rules governing the manner in which a bail commissioner is paid in the event an indigent person is released on bail and is unable to pay the bail commissioner’s fee.

New Hampshire SB 63 Amends the criteria for the list of bail bondsmen provided to the courts. Provides that a defendant released pending trial who fails to appear within 45 days of the date required shall forfeit all designated property held by the court to secure such defendant’s appearance.

New York AB 7388 & New York SB 3947 Adds a further, more streamlined, way to determine the value of real property used in a secured bail bond.

Introduced with committee and/or floor approval

New York AB 8158 &  New York SB 5734 Provides the legal definition and requirements for charitable bail organizations organized for the purpose of posting cash bail for poor persons.

New York SB 1414 Requires the court, when determining recognizance or bail in cases of domestic violence, to consider certain enumerated factors which could lead to intimidation or injury by the principal to the victim or witness.

New York SB 259 Allows the court to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail.

Introduced with committee rejection

Maine HB 312 Allows as a condition of bail that all firearms in the possession of the person arrested be relinquished to a law enforcement officer and that the person refrain from possessing a firearm or other specified dangerous weapons until further order of a court. Upon request of the defendant, such a bail condition must be heard by the court as expeditiously as possible.

New Hampshire HB 428 Establishes a procedure for cases in which a court recommends that a defendant participate in a pretrial supervision program at a county correctional facility. Amends the term “peace officer” to read “law enforcement officer” in the statute on default or breach of conditions of bail or recognizances.

New Hampshire HB 473 Imposes a $50 administrative fee on any defendant who fails to make payment of the bail commissioner’s fee within 30 days and requires that a hearing be held prior to the waiver of a fee.

New Hampshire HB 644 Disallows bail for persons in custody until their lawful presence can be verified.

Introduced with other or no activity

Connecticut HB 6171 Provides any bond set by a court as a condition of release for a person charged with a family violence offense shall be paid in full and a promissory note shall not be accepted as an assurance.

Maine HB 388 Establishes as a condition of bail for a person charged with violating a protection from abuse order that the person submit to supervision by an electronic tracking device with specific features.

Massachusetts HB 2155 (by request bill) relative to improving the bail review process

Massachusetts HB 2161 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts HB 2242 (by request bill) require only judges/justices to conduct bail hearings on certain arrested persons with multiple pending felony charges

Massachusetts HB 2243 (by request bill) restricting the issuance of bail for persons arrested as a result of a trial default warrant

Massachusetts HB 2828 (by request bill) increases bail fees

Massachusetts SB 706 (by request bill) relative to probation surrender and bail revocation

Massachusetts SB 791 (by request bill) legislation relative to pre-trial detention

Massachusetts SB 812 (by request bill) eliminate presumed personal recognizance for certain defendants

Massachusetts SB 813 (by request bill) relative to failing to appear in court after release on bail

Massachusetts SB 843 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 845 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 863 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts SB 899 (by request bill) legislation relative to improving the bail review and rendition process

Massachusetts SB 900 (by request bill) relative to bail review

New York AB 2216 & New York SB 829 Requires court review of domestic violence bail applications

New York AB 251 Directs the court to consider certain factors when determining the issuance of an order for recognizance or bail where a principal is charged with a crime against a family or household member, in matters where the court has discretion; and directs the court to consider the danger of intimidation or injury by the principal to a witness.

New York AB 2904 Denies bail for persons charged with driving while intoxicated in certain instances resulting in the death of another person.

New York AB 2976 Allows a superior court to order bail or recognizance for a defendant who has been convicted of a class A-II felony if the defendant is providing, or has agreed to provide material assistance

New York AB 3608 Directs courts to exonerate bail and order recognizance when no grand jury action has occurred for 45 days from arraignment, unless the people show good cause otherwise.

New York AB 4559 & New York SB 4799 Defines the crimes that would lead a defendant to be categorized as a “person who must be committed to the custody of the sheriff” and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances

New York AB 5013 Provides that where a criminal action is pending in a local criminal court or a superior court, the district attorney upon motion, may seek an order from the Appellate Division of the Department in which the action is pending to fix bail whenever he determines the amount of bail as fixed is inadequate or disproportionate.

New York AB 6705 Authorizes and directs courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community.

New York SB 2872 Requires the commissioner of insurance to conduct a study to identify problems and concerns regarding the bail bond business and to present his or her findings to the legislature.

New York SB 2930 Requires the incarceration of a defendant, pending a bail revocation hearing, upon filing of a statement alleging the intimidation of a victim or witness while such defendant was at liberty on bail; requires revocation hearing within 72 hours.

Pennsylvania HB 618 & Pennsylvania SB 510 Provides there shall be no right to bail pending appeal or sentencing for a defendant convicted of an sexual offense listed under section 9795.1 (relating to registration) if the victim of the offense was under 18 years of age at the time of its commission.

Pennsylvania SB 44 Establishes Bail Bond Enforcement Agent Act. Provides no person shall represent himself as or act in the capacity of a bail bond enforcement agent unless the person has met the requirements of the act.

Rhode Island HB 6155 &  Rhode Island SB 1005 Would require the court and the attorney general to take additional steps in order to forfeit a bail bondsman surety and gives the bail bondsman additional rights regarding the posting and terminating of bail.

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Are legislative changes to New Jersey’s judicial retirement plan retaliation for an unpopular state supreme court ruling? Lawsuit claims yes.

July 6th, 2011

Retaliation against judges for unpopular decisions is nothing new (consider the record number of impeachment efforts in 2011). But 29 states have constitutional provisions similar to the federal constitution that clearly prohibit the reduction of salaries for general-jurisdiction and appellate judges during their terms of office. A 30th, North Dakota, provides this protection only to members of the state’s supreme court. (h/t Survey of Judicial Salaries).

Do those protections extend to retirement/health benefits, however? Changes to New Jersey’s Judicial Retirement System, signed into law last week, are now the subject to a potential constitutional challenge under the state’s reduction-protection clause (h/t Gavel Grab).

SB 2937 of 2011 makes various changes to the manner in which the Judicial Retirement System (JRS) operates and to the benefits provisions of the system. According to the bill’s fiscal note, the new law:

  • Provides for increases in the employee contribution rates from 3 percent to 12 percent for JRS phased-in over seven years
  • Requires all public employees and certain public retirees to contribute toward the cost of health care benefits coverage based upon a percentage of the cost of coverage.

The New Jersey Constitution, however, includes the following provision (Article VI, Section 6)

The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment.

One unnamed judge told NJBIZ.com “The state constitution prevents the government from tampering with our compensation while we’re serving our term…We thought we would be exempt from [Governor Chris] Christie’s pension and health cutbacks, but this appears to be payback for the state Supreme Court’s Abbott District ruling.”

The Abbott District ruling(s) deal with financing for elementary education and levels of spending under the state’s constitutional guarantee that “[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” The latest decision, handed down in May 2011, found the state’s current funding structure had failed to fully fund the School Funding Reform Act of 2008. Governor Christie had announced he had considered ignoring the state supreme court decision, a position he later backed away from.

So, is the change to the judge’s retirement system “payback” and an unconstitutional one at that? Stay tuned….

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Posted in Salary & Budget

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First Massachusetts, now New Jersey’s legislature debates transferring probation out of the Judiciary

June 10th, 2011

New Jersey Assembly’s Law and Public Safety Committee is set to debate ACR 55, a plan to shift the state’s probation department from judiciary to the executive this Monday, June 13. Back in April, Massachusetts’ legislature debated a similar plan to combine the Probation Department from the judiciary and the Parole Department from the Executive Branch into new Department of Re-entry and Community Supervision (details here). However, unlike the Massachusetts plan, the New Jersey proposal will require a constitutional amendment.

According to the author’s explanation for ACR 55, the need for an amendment stems from a  New Jersey Supreme Court decision striking down a law that would have created a “Probation Officer Community Safety Unit” within the Administrative Office of the Courts with the authority to carry firearms and the power to apprehend and arrest probationers who violated the conditions of probation. In April 2006, the New Jersey Supreme Court ruled that law unconstitutional because it violated the separation of powers doctrine. The court stated that it is the responsibility of the Judiciary to define the duties of probation officers, not  the legislature. The court also reiterated its position that probation officers are not law enforcement officers, but impartial agents of the Judiciary. (Williams v. State of New Jersey).

Since that April 2006 opinion, there have been a series of proposal constitutional amendments to overturn the decision, starting with ACR 192 of 2006/2007, introduced just days after the decision, and including ACR 266 of 2006/2007, ACR 147 of 2008/2009, SCR 118 of 2008/2009, ACR 68 of 2008/2009, and SCR 37 of 2010/2011.

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Posted in Other, Structure Changes

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