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Ohio Year in Review: increasing penalties for attacks on judges/court staff, reducing number of Mayor’s courts in state

December 27th, 2012

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

HB 62 Increases penalties and fines for assaults against judges, magistrates, prosecutors, or court officials or employees.

HB 197 Authorizes a municipal, mayor’s, or county court to order community service in lieu of costs for an offender who is unable to pay costs and/or pay in installments. Authorizes courts to provide the Registrar of Motor Vehicles with information relative to the defendant’s failure to pay any court fines or costs when due and prohibits the Registrar from accepting an application for registration or transfer of registration of any motor vehicle owned or leased by the defendant until the court notifies the Registrar that the fines or costs have been paid in full. Requires that municipal and county courts send certain fees and other money they collect to the treasurer of the appropriate political subdivision by the 20th day of the month following the month in which the money is collected.

HB 247 Authorizes a court to cancel claims for amounts due the court if the amounts are uncollectible. Requires that a court give a criminal defendant notice of the consequences of a failure to pay a judgment for costs only if the court imposes a community control sanction or other nonresidential sanction. Gives a sentencing court continuing jurisdiction to waive, suspend, or modify the payment of the costs of prosecution by the defendant. Defines “case” for purposes of criminal costs statutes as the prosecution of all the charges that result from the same act, transaction, or series of acts or transactions and that are given the same case type designator and case number under Supreme Court rules.

HB 606 Increases from more than 100 to more than 200 the population necessary for a municipal corporation to have a mayor’s court unless the municipal corporation is located entirely on an island in Lake Erie.

SB 118 Expands the offense of “aggravated murder” to prohibit a person from purposely causing the death of a judge or magistrate whom the offender knows or has reasonable cause to know is a judge or magistrate when (1) the victim, at the time of the commission of the offense, is engaged in the victims duties, or (2) it is the offenders specific purpose to kill a judge or magistrate. Expands one of the aggravating circumstances used in sentencing persons convicted of aggravated murder to include that the victim of the offense was a judge or magistrate whom the offender had reasonable cause to know or knew to be a judge or magistrate, and either the victim, at the time of the commission of the offense, was engaged in the victims duties, or it was the offenders specific purpose to kill a judge or magistrate.

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Ohio House and Senate OK plan to increase penalties for assaults on judges, court staff; NY & WA approved similar plans in 2011

December 11th, 2012

Ohio looks poised to join New York and Washington State in increasing the penalties for assaulting judges and court staff during the 2011/2012 legislative cycle.

Under HB 52, an assault against judges, magistrates, prosecutors, or court officials or employees engaged in the performance of their duties would be automatically raised to a fifth degree felony. The bill had passed the House in mid-2011 but lay dormant in the Senate for over a year. It is now set to be sent to the governor.

Ohio’s HB 52 is similar to a new Washington law (HB 1794 of 2011) that adds to the assault in the third degree statute assaults on a judicial officer, court-related employee, county clerk, or county clerk’s employee while in they are performing their duties. Such an assault is automatically a Class C felony.

New York went a step further, creating the new, specific crime of assault on judge (AB 409 of 2011). Such an assault is automatically a Class C felony.

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Ohio looks to reduce the number of, but not end, mayor’s courts

December 7th, 2012

It was once not entirely uncommon in U.S. history for cities and town to allow their mayor’s to serve as judges for lower courts; New York City’s mayor is still referred to as “His Honor” to reflect the office’s former authority. Most states, however, have abandoned the practice, the most notable exceptions being Louisiana and Ohio. It appears however that Ohio is set to restrict the number of localities which are allowed to establish such courts.

HB 523, as passed by the Ohio House’s Judiciary & Ethics committee, would increase from 100 to 1,000 the minimum population a locality must have in order to establish a mayor’s court. According to the Akron Beacon Journal, this would eliminate 92 of 318 courts.

SB 254, which was approved by the Senate Judiciary committee, would increase the threshold from 100 to 200, closing no more than 6 courts. Again according to the Beacon, this increase appears to be focused on one particular town (Linndale, population 179).

This effort is just the latest effort in the last decade to eliminate or curtail the use of such courts:

2003: HB 24 and SB 25 required municipality have a population of at least 100 in order to establish a Mayor’s Court. Enacted.

2005: HB 621 required a municipality have a population of at least 500 in order to establish a Mayor’s Court. Died in House Committee.

2007: HB 154 and SB 252 abolished Mayor’s Courts effective January 1, 2009. Municipalities with a population of at least 1,600 or that met the definition of an “urban township” would be permitted to  create Community Courts, defined as courts of record presided over by magistrate judges who must be attorneys. The House version was approved by the House Judiciary Committee but died on the House floor. Senate version died in the Senate Judiciary – Civil Justice Committee.

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Election 2012: The losers lost big and what the losses portend for 2013/2014

November 15th, 2012

The 2012 election saw several attempts to “rein in” or otherwise assert control of the judiciary by the other branches of government. The four key amendments on the ballot not only all failed,  but failed in stunning fashion when compared to both other items on the ballot and historically.

Arizona Proposition 115 failed 27%-73%

The amendment had a variety of pieces: increased terms and mandatory retirement age, giving governor more power over the state’s merit selection commissions and requiring the commissions give governors more names to pick from, etc. What makes the Prop 115 loss even more interesting is that it was the single biggest loss among the 9 propositions on the ballot that night: the other losing propositions had closer tallies. It also failed to take a single county (closest was Apache where it got 32% of the vote: 6,976 to 14,835).

Proposition % yes
115 27
120 32
121 33
204 36
116 44
208 51
117 57
119 62
114 80

Florida Amendment 5 failed 37%-63%

Like Arizona it was an effort to tinker with the state’s merit selection system (plus rule making authority of the state supreme court) and touted as a way to “rein in judges”. Like Arizona it not only lost outright, but was the worst performer of the night in the state. It was able to carry in a single county: Sumter voted for it 52-48 (27,763 vs. 25,969).

Amendment % yes
5 37
3 42
12 42
4 43
6 45
8 45
10 45
1 49
11 61
9 62
2 63
There was no Amendment 7 n/a

Missouri Constitutional Amendment 3 failed 24%-76%

Amendment 3, like the Arizona and Florida efforts, would have given governors more power over the merit selection process, in Missouri’s case by giving effective control of the merit selection commission for the state’s appellate courts to the governor.  Proponents announced months ago they were abandoning the effort when they failed to get the ballot language they wanted, but have vowed to come back and try again, this time perhaps via a citizen’s initiative rather than a legislatively referred ballot item. Like the Arizona and Florida losses, Missouri’s Amendment 3 was the worst performer of election night ballot items in the state.

Amendment/Proposition % yes
Amend 3 24
Prop B 49
Prop E 62
Prop A 64

New Hampshire’s Question 2 failed 49-51%

Question 2 would have given the legislature a veto over rules established by the state’s supreme court.  The loss is remarkable for two reasons. First, despite the closeness of a 49-51% vote total, Question 2 was nowhere close the 67% needed for passage, making this effectively a blowout.  Second, an perhaps even more surprising, was the history of failures on this item. An amendment almost identical to 2012′s Question 2 was offered in 2002 and63% of the vote in favor, only losing because of the need to meet the 67% threshold. When it was put back on the ballot in 2004 it again got a majority (57%) but not the super-majority need. That this time the proposal failed to garner even a simple majority was surprising and, coupled with GOP loss of the New Hampshire House, indicates little chance of a return in 2013/2014.

Ohio’s Issue 2 lost 37%-63%

The amendment dealt would have created an independent redistricting commission and assigned Court of Appeals judges, picked by the Chief Justice, to vet proposed members of the commission. It lost every county in the state (except Athens). Although 19 states do provide for some involvement of judges in redrawing maps (other than hearing appeals or legal challenges from maps once created), the Ohio lopsided loss may caution against similar proposals. Moreover, the recent use of such a provision in Missouri’s constitution (map drawn by panel of appellate judges if legislature cannot come up with map) lead to proposals in that state to remove the map-by-judges provision of that state’s constitution.

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Ohio bill would require court proceedings be audio recorded and available to the public & parties

October 11th, 2012

The idea of a “court of record” predates the invention of electronic recording devices, but a bill recently introduced in Ohio may come close to making the old and new understandings of the term synonymous.

Under HB 592 as introduced last month, all “courts of record” in the state would be required to electronically record the audio of “every proceeding before the court.” The bill authorizes the clerk of the court or an employee of the clerk’s office to record the proceeding as needed.

The subsequent recording “is a public record” except where “the recording is a record to which public access is restricted by court rule or statute.” The parties and general public would be able to request the court provide a copy of the recording with the cost of the copy (or access to listening to a copy) to be determined by the court in accordance to the state’s Open Records Law.

The bill is currently in the House but not yet assigned to a committee.

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Ohio Issue 2: Putting the Supreme Court & Court of Appeals into the redistricting mix from the start

September 20th, 2012

It is not at all uncommon for redistricting/reapportionment plans to wind up before a state’s appellate courts, either as an appeal froPreview Changesm a trial court ruling on the matter or via an original proceeding filed directly with the court. Ohio’s Issue 2, however, would put the state’s Supreme Court and Court of Appeals into the mix when it comes to redistricting from the start.

Background

Issue 2, submitted to voters via signature gathered initiative, creates an independent redistricting commission. Under the plan:

  1. The state’s Chief Justice would select a panel of 8 Court of Appeals judges, only 4 of whom may be from the same party
  2. Those 8 judges would appoint an independent auditor and select potential members of the redistricting commission
  3. The 8-judge panel would submit 42 potential redistricting commission members (3 groups of 14; 1 from each of the two largest political parties + 1 group of independents) from all applicants. At least 5 of 8 judges must agree on each potential commissioner.
  4. House leadership (Speaker and minority leader) would strike 6 names each leaving 8 Republicans, 8 Democrats, and 8 Independents.
  5. From the 24 remaining, the Court of Appeals judges would select at random 3 from each grouping, leaving 9. Those 9 would then pick another 3 for a total of 12.

In addition to the selection process described above, Issue 2 also explicitly provides the Supreme Court with exclusive jurisdiction on redistricting and requires, if the commission unable to reach agreement on plan, the Supreme Court to pick from plans submitted to commission that meet criteria set elsewhere in amendment. Boundaries set by the Supreme Court are to last for a single election cycle and a new redistricting commission gets a chance to try and set new boundaries.

What do other states do?

It is not unheard of for state supreme courts or their chief justices to be constitutionally required to be involved in apportionment and reapportionment, although few put the judges into the process from the get-go as Ohio’s Issue 2 would do. Constitutional provisions from 19 states below the fold.

» Read more: Ohio Issue 2: Putting the Supreme Court & Court of Appeals into the redistricting mix from the start

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Trying to modify mayor’s courts in Ohio (again)

May 22nd, 2012

In the first 200 years of the United States, it was a relatively common practice for state constitutions or statutes to provide that local mayors could exercise judicial functions, sitting as courts for minor offenses and civil matters. Most states have repealed the provisions or retained them but opted not to use them. The two notable exceptions are Louisiana and Ohio. In Ohio, efforts in the 2008/2009 legislative session to outright end the courts met with failure, however a new effort to modify the courts appears to be starting.

Under existing law, Ohio cities or towns with more than 100 people can form mayor’s courts unless expressly prohibited by law. Under SB 254 the population threshold would increase to 200 for a mayor’s court. However, the bill provides an exception for any town “located entirely on an island in Lake Erie”. According to an analysis of the bill by the Ohio Legislative Service Commission, the village of Put-in-Bay has a population of 138 (according to the 2010 census) and is located entirely on South Bass Island in Lake Erie. A similar House bill (HB 523) would raise the population threshold from 100 to 1,000 for a mayor’s court.

Both bills are pending in committee.

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New public financing systems for judicial elections to be considered in Kentucky, Ohio & Wisconsin

January 18th, 2012

While much of the election focus for the 2012 will be on the Presidential races, numerous states will be electing members to the courts. At least three state legislatures are considering joining (and in the case of Wisconsin, rejoining) the list of states that allow for public financing of at least some of those judicial races.

I’ve mentioned Kentucky’s unique position: in 2014 the entire judiciary (save one or two judges) will be on the ballot. Over the last several years members of the state’s legislature have proposed public financing for the races, delivering speeches on the subject during the interim and trying to gather support.  A 2012 version (HB 230) specifies the funding would come from state tax refund designations made on tax forms and by permitting (but not requiring) bar members contribute via their bar dues.

Wisconsin had a public financing system for its supreme court races but it was zeroed out in the latest budget. A new plan, one that would include most state-level elected officials, was introduced in Fall 2011. Under AB 317 and SB 213 taxpayers could designate $1 of their state income taxes to an Election Campaign Fund. Whatever funds are in the Fund would be all that was available for that particular election year(s).

Ohio’s HB 413 focuses on creation of a public financing program for supreme court races only in that state, but does include a trigger provision allowing for expansion to include races for court of appeals if the fund ever reaches $6 million. Funding would come from a designation of tax refunds on tax forms.

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With increased interest in drug testing welfare recipients, several states consider drug testing judges

December 2nd, 2011

According to the National Conference of State Legislatures, 36 states in 2011 entertained proposals for drug testing applicants for welfare and food stamps. Arizona, Florida, and Missouri enacted such proposals, and at least one Presidential candidate has entertained the idea.

The last time the issue came up in the mid to late 1990s, several attempts were made to impose the same conditions on not only the legislators enacting such laws, but on judges as well.

In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

Undaunted, in 2006 an amendment to the Louisiana constitution (SB 274 of 2006) and bill (SB 361) were introduced that specifically targeted state judges for drug testing and that repeated almost verbatim the text of the law struck down by the federal courts, most particularly in the legislative declaration portion of the bills.

The legislature declares the interest of the state in ensuring that those who are elected to serve in public office as judges in any trial or appellate court within this state are persons who have a respect for the laws they are sworn to uphold and are persons of integrity, sound judgment, reliability, and seriousness of purpose. The legislature finds that judges are in a critical position to protect the citizens of the state of Louisiana from the numerous illegal activities associated with illegal drugs, and to ensure access to courts and other constitutional rights. The legislature finds that the use of illegal drugs by judges will put the citizens of the state of Louisiana in danger because judges who use illegal drugs cannot provide the state and its citizens with fair and impartial trials. The legislature finds that the use of illegal drugs which may impair the physical or mental ability of a judge to function effectively in all aspects of his duties cannot be condoned, and therefore the state has a compelling interest in establishing a requirement that all judges demonstrate that they do not use illegal drugs, without the necessity of showing any measure of individualized suspicion.

Interestingly, when Louisiana tried again in 2010 for a voluntary drug testing (and psychological evaluation) program for elected officials (HB 1352) it was focused only on statewide elected officials in the executive branch listed in Art. IV, Sec. 3 of the state constitution and legislators.

Several similar bills, either targeting judges in particular or sweeping them in as “elected officials”, have been introduced in state legislatures. Many seek to avoid the Fourth Amendment problems found by the O’Neill court by making the programs voluntary. Most recently South Carolina’s Senate in 2008 approved a voluntary plan for testing that state’s judges, however the bill died in the House Judiciary Committee and was apparently never reintroduced.

2011

Ohio HB 343 Mandatory drug testing for Supreme Court Justices, members of the General Assembly, the board of directors of JobsOhio, and recipients of Troubled Asset Relief Program money. Carried over into 2012 session.

Oklahoma SB 538 Mandatory drug testing for Temporary Assistance for Needy Families recipients and all “state elected officials”. Those declining must submit to substance abuse program. Carried over into 2012 session.

Puerto Rico PC 3215 Requires all individuals nominated for a judicial office submit a hair sample for drug testing (previously discussed here). Carried over into 2012 session.

2009

Oregon HB 2635 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2008

South Carolina SB 1070 Voluntary for any “popularly elected office or an office elected by the General Assembly”. (In South Carolina, judges are elected by the General Assembly). Approved by full Senate. Died in House.

2007

New Mexico SB 36 Voluntary drug testing for all “elected officials”. Died in committee.

Oregon HB 2306 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2006

Missouri HB 1646 Mandatory drug testing for “all state elected officials”. Died in committee.

Louisiana SB 274 (Constitutional Amendment) Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

Louisiana SB 361 Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

2005

New Mexico SB 20 Voluntary drug testing for all “elected officials”. Died in committee.

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

December 2nd, 2011

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

HJR 1 (Constitutional Amendment) Increases judicial retirement age from 70 to 75. Eliminates the General Assembly’s authority to establish courts of conciliation. Eliminates the Governor’s authority to appoint members to a Supreme Court Commission.

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

HB 5 Consolidates references to costs and fees, other than attorney fees, that apply in courts of record, generally organizes costs and fees according to the courts in which they apply, and cross-references the Revised Code sections that create the costs and fees. Requires the Ohio Judicial Conference to adjust each dollar amount set forth in the provision of law that specifies the amount of various types of property that is exempt from execution, garnishment, attachment, or sale to reflect the change in the consumer price index or other generally available comparable index. Requires the Ohio Judicial Conference to prepare a memorandum specifying those adjusted dollar amounts and to transmit that memorandum to the Director of the Legislative Service Commission who must publish that memorandum in the Register of Ohio. Allows the Ohio Judicial Conference to publish that memorandum in any other manner it concludes will be reasonably likely to inform persons who are affected by its adjustment of the dollar amounts.

 

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