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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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With efiling increasing in trial courts, legislatures consider how clerks are to create a record on appeal

January 25th, 2013

The advent of technology often requires revision to existing policies. The increased use of efiling in state trial courts is no exception. Often the solution can be found in the judiciary’s power to alter its rules of procedure or practice, but there are the occasional statutory impediments.

Oregon and Virginia are among the states looking at the subject this year. Oregon HB 2562 modifies existing laws on the filing of a transcript on appeal to allow for filing of an electronic, rather than a paper, version. Meanwhile Virginia HB 1654 would require a clerk of circuit court (the state’s general jurisdiction court) with an established electronic filing system to provide any appellate court the trial court record in electronic form. Both are pending in their respective chambers.

Louisiana in 2012 (HB 112) changed that state’s laws to allow for depositions made a part of a record on appeal to be attached in a reduced format or in an electronic format approved by the court.

In 2011,  Nebraska’s  LB 17  changed the law regarding what constitutes the “complete record” to include “those things maintained in the state’s electronic case management system.”

 

 

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Oregon Year in Review: Expanding the Court of Appeals, judicial security personnel training

December 31st, 2012

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

HB 4026 Increases Court of Appeals from 10 to 13 members, effective 2013. increases Court of Appeals from 13 to 16 members effective 2015.

HB 4163 Changes title of “court security officer” to judicial security marshal” and “court security personnel” to “judicial security personnel.” Requires the Department of Public Safety Standards and Training to train judicial security personnel, and for the Judicial Department to pay for the training.

HB 4167 Alters various fees/fines payable to Municipal or Justice Court Criminal Fine Account.

HB 4168 Alters numerous provisions related to fees in state court actions.

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Election 2012: The winners and what their victories portend for 2013/2014

November 13th, 2012

Maryland’s Question 1 & Question 2: Both approved

These amendments required the Orphans’ Court (read: probate court) judges in Prince George’s & Baltimore Counties, respectively, to be attorneys. Because of a quirk in the state constitution regarding amendments affecting only a single county, the Questions required majorities both statewide and in the county at issue itself. Both Questions met with 85%+ approval, about what a similar initiative applying to the City of Baltimore got in 2010 (83% statewide, 88% in the City itself).

The upshot is that in 2 of the state’s 4 counties with a population over 500,000 (plus the autonomous and independent City of Baltimore, population ~620k) attorneys of the probate court must be lawyers. The other counties: Montgomery & Anne Arundel.

New Jersey Constitutional Amendment 2 was approved 83% to 17%

The provision changes the state constitution’s prohibition on diminishing of judicial salaries while in office to provide it may not occur “for deductions from such salaries for contributions, established by law from time to time, for pensions as provided for under paragraphs 3 and 5 of Section VI of this Article, health benefits, and other, similar benefits.”

It is not clear what this means for future moves in New Jersey and it remains to be seen if the amendment, adopted after the state supreme court struck down a 2011 law that required judges pay more for their benefits and retirement, will be held to be prospective only, requiring the legislature re-pass the 2011 law.

New Mexico Constitutional Amendment 1 was approved 60% to 40%

The amendment adds magistrate judge and additional member of public to Judicial Standards Commission. The result is that the majority of the commission remains laypersons. I mentioned in 2011 there’s be a great deal of legislative interest in changing these commissions, mostly to add more lay persons or to convert the bodies into quasi-appellate courts in order to “punish” judges who reach the “wrong” opinions. While the New Mexico amendment did not appear to come with that sort of freight weighing it down, 2013/2014 legislatures may take (and in the case of Minnesota, will take) the subject up.

Oregon Measure 78 was approved 72% to 28%

Cleans up some confusing language that references two “branches” of the state legislature while the judiciary is referred to as both “the judicial department” and “judicial branch”. The very definition of a technical amendment, it still keeps at least a few references to “judicial department” in the document. It is not at all clear if there’s any interest in going back in for another clean-up bill and as I noted earlier in the election cycle it’s not at all unusual for state constitutions to refer to the judiciary as a “department”.

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Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

September 4th, 2012

We have been taught since grade school (hopefully) that there are “three branches of government” in the United States: the legislative, executive, and judicial. However, the Oregon Constitution and those in most states opt not to use the word “branch” or do so to reference some other concept. This fall voters in Oregon will get a chance via Measure 78 to redefine their existing “departments” as “branches”.

Background

The Oregon constitution adopted in 1857 in anticipation of statehood (in 1859) provided that

The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. (Art. III, Sec. 1)

The current constitution makes references to “departments” including the “Legislative Department (Art. IV), the Executive Department (Art. V), the Administrative Department (Art. VI) and the “Judicial Department” (Art. VII (Amended)) or elsewhere (Art. VII (Original)) “The Judicial Department”. However, it also references the “Department of Corrections” (Art. I, Sec. 41(12)), “Military Departments” (Art. V, Sec. 13), and “the Oregon Department of Administrative Services” (Art. XI, Sec. 15(4)).

To make matters somewhat more interesting, “branch” or “branches” are used to indicate the individual chambers of the Oregon Legislative Department, consistent with how the U.S. Constitution refers to state legislatures (“The [U.S.] House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”).

Thus Art. II, Sec. 15 reads (emphasis added)

Method of voting in legislature. In all elections by the Legislative Assembly, or by either branch thereof, votes shall be given openly or viva voce, and not by ballot, forever; and in all elections by the people, votes shall be given openly, or viva voce, until the Legislative Assembly shall otherwise direct. —

The reference of “branch” as chambers of the Legislative Department is repeated elsewhere (emphasis added)

General powers of Legislative Assembly. Each house shall have all powers necessary for a branch of the Legislative Department, of a free, and independant [sic] State.  (Art. IV,  Sec. 17)

Duties of Secretary of State. The Secretary of State shall keep a fair record of the official acts of the Legislative Assembly, and Executive Department of the State; and shall when required lay the same, and all matters relative thereto before either branch of the Legislative Assembly… (Art. VI,  Sec. 2)

Method of amending Constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, (Art. XVII,  Sec. 1)

There is a reference to the “judicial branch” in Art. XI, Sec. 15(7)(e) with respect to the legislature’s ability to enact taxes and a three-fifths requirement for same. Section 15(7)(e) specifies that “This section shall not apply to…Any requirement imposed by the judicial
branch of government.”

Oregon HJR 44 (of 2011), now known as Measure 78, amends three of these references to correct spelling errors and change “department” to read “branch” (Art. III, Sec. 1 & Art. VI, Sec. 2) and to make “branch” read “chamber” (Art. IV, Sec. 2). So, Art. III, Section 1 would go from this:

Sec. 1. The powers of the Government shall be divided into three seperate departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.-

To this

Sec. 1. The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

What do other states do?

Oregon’s constitution is not the only one that references the judicial “branch” as a “department” or alternates usage of the terms. A list of state constitutional references is below the fold.

» Read more: Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

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Time running out for judiciary-related initiatives in Colorado and Oregon

May 15th, 2012

There are already 9 judiciary-related items on the 2012 ballots this year (and a 10th was stricken). With most legislatures now out, the only remaining way to get things on the ballot is via initiative or referendum, and there there remains scant little time for that.

Presently, there appears to be only two items circulating and neither of them appear to be gathering signatures.

Colorado Proposed Initiative 2011-11 (DEADLINE: August 6) Changes term of office for the justices of the Colorado Supreme Court from ten years to two years. Prohibits a justice from serving as chief justice for more than one term. Prohibits a justice who is not retained as the result of a retention election, resigns from the Court, is removed from the Court, or fails to file a declaration under section 25 of article VI of the Colorado constitution from being reappointed to the Court for a period of ten years.

Oregon Proposal Initiative SP-2012-004 (DEADLINE: July 6) Prohibits labeling judge as “incumbent” on ballot if required study shows advantage to incumbent candidates.

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Posted in Other, Qualification & Terms, Selection

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Proposed legislative changes to court security funding, practices

February 14th, 2012

With legislation recently introduced in the U.S. Senate to provide federal assistance to state court security, several state legislatures are grappling with the same subject, in particular who should provide court security and how should it be paid for? Bills introduced already in 2012 include:

Hawaii HB 493 Transfers responsibility for judiciary security personnel from department of public safety to newly created office of the sheriff within the department of the attorney general. Carried over from 2011 session.

Minnesota HB 1607 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Minnesota HB 2000 Authorizes county boards to set and impose court security fees in civil and criminal matters for court security equipment and personnel. In House Judiciary Policy and Finance Committee.

Minnesota SB 1283 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Missouri HB 1416 For St. Louis County Courthouse only, exempts any licensed attorney from court security screening measures. In House (no committee).

New Jersey SB 264 Provides that while each county must provide “suitable courtrooms”, it is the county governing body that shall have final authority to determine expenditures for “suitably” securing courtrooms. In Senate Judiciary Committee.

New Jersey SB 652 Creates Court Security Enhancement Fund financed by increase of $5 to most court fees, assessments and penalties, to provide a continuous source of funding to assist counties and municipalities in providing and maintaining safe and secure court facilities. In Senate Judiciary Committee.

New York AB 3385 Provides a $5 fee to cover security costs in justice courts. Carried over from 2011 session.

New York AB 7325 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

New York SB 5177 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

Oklahoma SB 626 Repeals requirement that counties provide the courts attendants, fuel, lights and stationery, electricity, water, other utilities, toilet facilities and janitorial service, suitable and sufficient for the transaction of court business in such facilities. Provides county shall not be responsible for providing security, telephone, and utility service for the county courthouse or any annex thereto without an agreement with the Administrative Director of the Courts providing that the county will be reimbursed from the court fund for such services. Carried over from 2011 session.

Oregon HB 4163 Changes title of “court security officer” to “judicial security marshal” and “court security personnel” to “judicial security personnel.” Requires Department of Public Safety Standards and Training to certify individual members of judicial security personnel upon request of Security and Emergency Preparedness Office of Judicial Department, at office’s expense. In House Judiciary Committee.

Tennessee HB 1801 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Tennessee SB 1755 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Virginia HB 683 Increases from $10 to $15 the maximum sum that may be assessed as part of the costs in each criminal or traffic case in district or circuit court in which the defendant is convicted of a violation of any statute or ordinance, to be used to pay for courthouse and courtroom security. Tabled in House Courts of Justice, Civil Subcommittee 1/18/12.

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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: Oregon

November 30th, 2011

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

HJR 44 Redefines “judicial department” as “judicial branch”.

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

HB 2237 Recreates the Public Guardian and Conservator Task Force.

HB 2367 Allows governing body (currently county court) of counties with a population of 400,000 or less to offer law library services in lieu of acquiring, maintaining or operating law library through a contract with a law library association or other organization. Allows use of law library fees collected in circuit court to pay amounts agreed to under contract. Requires State Court Administrator to conduct biennial electronic survey of all county law libraries and law library services provided by counties.

HB 2403 Directs Judicial Department and other state branches/agencies to partner with Oregon Military Department to provide reintegration services for veterans

HB 2667 Specifies that court administrator is subject to direction of court in entering judgment for judgment by default. Updates statutory references to Oregon State Bar’s Lawyer Referral Service to include website address. Establishes, for declaratory judgment filings occurring on or after January 1, 2011, and before July 1, 2011, $117 filing fee. Requires, upon request, partial refund of any filing fee paid at higher rate on or after January 1, 2011, and before effective date of Act.

HB 2710 : Amends, creates, or redefines numerous laws related to court fees. Court Civil Revenues Account in General Fund and directs disbursement to state bar, to counties of law libraries, etc. Repeals Judicial System Surcharge Account.

HB 3102 Transfers authority over court appointed special advocates and CASA Volunteer Programs from State Commission on Children and Families to judicial branch.

HB 3525 Establishes Courthouse Capital Improvement Trust Fund. Appropriates moneys in the account to Oregon Department of Administrative Services, and limit uses of those moneys to payment of costs of capital improvements to county courthouses. Provides that 10 percent of amount awarded as punitive damages under verdict in civil action is payable to Attorney General for deposit in Courthouse Capital Improvement Trust Fund.

SB 360 Provides that prohibition on justice of the peace district including portion of city that is county seat, or portion of city in which circuit court regularly holds court, does not prevent justice of the peace from conducting arraignment for person in custody in city if accusatory instrument for offense was filed in justice court and offense was committed within boundaries of justice of the peace district.

SB 391 Specifies conditions under which tax court magistrate may hold outside office or position of profit or pursue outside calling or vocation.

SB 676 Directs Governor and Chief Justice to report to Legislative Assembly on plan to implement outcomes-based strategies.

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Oregon House and Senate Judiciary Committees meeting this week, will examine NICS compliance

November 17th, 2011

Oregon’s Interim committees are in full swing this week. Yesterday, it was the Senate Judiciary Committee. Today, it is the House Judiciary Committee. Both panels hear reports on:

  • Work Group Report: Sex Offender Registration – Improving Oregon’s Classification of Sex Offenders
  • Work Group Report: Expunction
  • Report on HB 2792: Relating to the State of Oregon’s compliance with the National Instant Criminal Background Check System
  • Work Group Report: Reciprocity
  • “Sexting” and displaying sexually explicit material of minors
  • Enforcing the ban on the sale of tobacco to minors
  • Discussion on SB 878: Do persons checking identification at the door for nightclubs, taverns or bars need to be certified by the Department of Public Safety Standards and Training

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