Posts Tagged ‘Tennessee’

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Tennessee legislator withdraws bill to end judicial review in the state

January 25th, 2012

A bill introduced by the chair of the Tennessee Senate’s Judiciary Committee that would have ended judicial review of state laws has been withdrawn. According to the Tennessee Bar Association’s TBA Today, the Senator’s proposal “to control out-of-control courts”  faced opposition from both sides of the aisle. Other bills withdrawn by the Senator along with the ban on judicial review were ones that exempted all Tennessee-made goods from federal regulation under the commerce clause and required all presidential candidates prove they are natural born citizens.

 

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Tennessee bill would end judicial review of all statutes, but loophole might allow Court of Appeals & Court of Criminal Appeals to hear such cases

January 13th, 2012

A Tennessee legislator is attempting to do by simple statute what New Hampshire legislators are attempting to do by state constitutional amendment, namely, ending judicial review of state statutes.

Under SB 2348 as introduced, the Supreme Court, Circuit Courts, and Criminal Courts “shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law in accordance with Article II, § 18 and Article III, § 18 of the Tennessee constitution.” A similar provision applies against the state’s Chancery Courts.

The bill is curious for two reasons.

First is the question of whether or not a mere statute can strip the courts of the power of judicial review (as noted, the New Hampshire parallel would be a state constitutional amendment).

The second is that while the state’s highest court (Supreme) and general jurisdiction trial courts (Circuit, Criminal, Chancery) are cited by name, the state’s intermediate appellate courts (Court of Appeals on the civil side and the Court of Criminal Appeals) are not.

For example, the change to the Supreme Court would be an amendment to Tennessee Code Annotated Section 16-3-201 which discusses the supreme court’s jurisdiction in general. Similarly cited are Section 16-10-101 (Circuit and Criminal Court – General Jurisdiction) and Section 4-5-225 (providing review of the validity or applicability of a statute lies in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute.)

Missing are any changes to the jurisdiction of the Court of Appeals (16-4-108) and the Court of Criminal Appeals (16-5-108).

In addition, absolutely no mention is made of the state’s other courts (General Sessions, Probate, Juvenile, and Municipal).

 

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Now Tennessee considers drug testing judges

January 12th, 2012

I noted several weeks ago the press by some elected officials to drug test welfare recipients is leading other legislators to want to drug test elected officials (including judges). Now Tennessee is considering such a proposal but, rather than citing to drug testing welfare recipients, is citing the state’s drug-free workplace laws.

Under Section 1 of HB 2432 as introduced, the speakers of the House and Senate would be required to create a drug-testing regime for members of the General Assembly “consistent with the provisions for a drug free workplace under title 50, chapter 9″ and specifically cites Tenn. Code Ann. § 50-9-106(a)(1), which authorizes private employers to conduct drug tests.

Section 2 of the bill goes on to require the Tennessee Ethics Commission “develop and implement a system for drug testing all persons who are elected to public office”, again citing 50-9-106(a)(1).

Because judges in Tennessee are “elected to public office” (through partisan or non-partisan election at the trial and a merit selection/retention election system at the appellate level) they would appear to be covered under Section 2 as “elected to public office.” Section 3, however, confusingly does not specifically require the Supreme Court administer such a program, but the court is “urged” to do so.

The Tennessee supreme court is urged to develop and implement a system for drug testing all persons who are elected to judicial office. The system should provide for the testing of elected public officials in a manner consistent with the provisions for a drug free workplace under title 50, chapter 9. The expenses of the system may be paid from applicable accounts of the judiciary for official purposes.

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Jury nullification bills: active in 2011, moving in 2012?

December 22nd, 2011

The issue of jury nullification has come back up into the news lately, but it has been peculating in state legislatures for the last several years. New Hampshire nearly passed a law in 2011 and may yet do so in 2012 that would have required judges instruct jurors about the power to nullify.

2012

Iowa HB 542 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

Iowa SB 318 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

New Hampshire HB 146 AS AMENDED: Provides in all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. Provides the court shall permit the defendant or counsel for the defendant to explain this right to the jury. Approved on  voice vote by full House 3/15/11. Rejected by Senate Judiciary Committee  on tie (2-2) vote 5/26/11. Rejected by full Senate 8-12 on 6/1/11. Re-referred to Senate Judiciary Committee. Carried over into 2012 session.

Tennessee HB 1831 Requires, in any criminal jury trial, the trial judge to inform jurors with the following statement, verbatim “In Tennessee and throughout America, jurors possess the responsibility and fundamental right to judge the facts and the law in any court. Jurors are empowered to decide if a law is just, moral, and constitutional. Additionally, jurors are empowered to decide if that law has been violated. A verdict of ‘Guilty’ condemns the defendant, and a verdict of ‘Not Guilty’ absolves the defendant of any wrongdoing. The juror’s conscience dictates the exercise of this power.” Carried over into 2012 session.

2011

Iowa HB 542 (see above) Carried over into 2012 session.

Iowa SB 318 (see above) Carried over into 2012 session.

Montana HB 332 Provides parties have the right to argue to the jurors that a law is unconstitutional, is unconstitutional as applied, or should be nullified for any other reason. Provides upon request by a party, the court in any jury trial shall inform the jurors that the jurors may judge both the facts and the law in the case. Provides denial of the instruction is reversible error. Tabled by House Judiciary Committee 18-2 on 2/21/11.

New Hampshire HB 146 (see above) Carried over into 2012 session.

Tennessee HB 1831 (see above) Carried over into 2012 session.

2010

New Hampshire HB 1347 Provides that in all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. Provides the court is also mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House Judiciary Committee 13-7 on 2/2/10. Rejected by full House 234-113 on 2/17/11.

2009

Alaska HB 140 Provides a defendant has the right to inform the jury of the jury’s power to judge the just application of the law and to vote on the verdict according to conscience. Further provides failure to allow the defendant to inform the jury of the jury’s power is grounds for a mistrial. Died in House Judiciary Committee.

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Bans on court use of sharia/international law: Pennsylvania bill introduced

November 28th, 2011

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. » Read more: Bans on court use of sharia/international law: Pennsylvania bill introduced

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Tennessee Government Operations Joint Subcommittee on Judiciary and Government examined judicial selection, judicial discipline

November 16th, 2011

Tennessee’s Government Operations Joint Subcommittee on Judiciary and Government met on November 15 to examine a variety of issues already discussed in previous interim meetings. The morning session examined:

  • The state’s Court of the Judiciary, the judicial disciplinary body for Tennessee
  • Judicial Nominating Commission
  • Judicial Performance Evaluation Commission

Media coverage indicated legislators intended on becoming very involved in all these bodies in the 2012 session.

The afternoon session focused on:

  • Tennessee Residence Commission
  • State Capitol Commission
  • Department of General Services
  • Tennessee Emergency Management Agency and Related Compacts

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Tennessee: Constitutional showdown over recusal statutes?

October 3rd, 2011

Greetings TBA Today readers!

According to this post from Gavel Grab, the Tennessee legislature is considering a legislative enactment regarding judicial recusal. For prior blog posts on events in Tennessee, click here and here. For a review of all recent efforts to make changes to Codes of Judicial Conduct, see Issue 5:31.

The Gavel Grab post cites this Knoxville News Sentinel article, as follows:

Legislators are eyeing repeal of the state law that allows keeping the admonishments wayward judges receive secret and imposing stricter rules concerning when judges must bow out of a case when accused of a conflict of interest.

…

Changing the rules for recusal of a judge, which are now established by the state Supreme Court, also is criticized on policy grounds. But it could also be a violation of the state constitution, according to Chris Craft, presiding judge of the Court of the Judiciary (COJ).

As I noted in my article “’The Legislature Must Save the Court From Itself?’: Recusal, Separation of Powers, and the Post-Caperton World” in the Drake Law Review, it is not unheard of for legislatures to try and impose by law recusal standards for state courts. Moreover, it is also not unheard of for the same courts to strike down the laws as a violation of the state constitution. I suggested four possible outcomes: Cooperation, Co-option, Comity, and Conflict.

Missouri had a similar instance in the late 1990s which was decidedly in the Conflict category. There, the legislature tried to expand a 1978 recusal statute (Mo. Ann. Stat. 105.464).

The expansion was struck down by the state’s Supreme Court on the grounds that its “‘general superintending control over all courts and tribunals’” and power to “‘establish rules relating to the practice, procedure, and pleading for all courts,’” rendered the expansion a “violat[ion of] constitutional principles concerning separation of legislative and judicial functions.”  (Weinstock v. Holden, 995 S.W.2d 408, 410–11 (Mo. 1999) (per curiam)).

A few weeks after Weinstock was handed down, the legislature adopted a repeal of the expansion, but kept in place the original 1978 statute that imposed criminal sanctions for judges who heard cases in which they were related to a party.

So, will Tennessee end up in Cooperation, Co-option, Comity, or Conflict? We’ll see when the legislature comes back on January 10 or even earlier if a bill is filed before session starts.

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Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

October 3rd, 2011

This post has been updated. Click here.

Since the last update of this list in August, two pieces of legislation have been introduced. Michigan’s SB 701 appears to be the Senate version of HB 4769, which has gone nowhere since its June introduction.

The other bill is Alabama SB 33 of 2012, a prefiled bill for the next session. SB 33 of 2012 is a constitutional amendment that looks more like HB 607 / SB 61 than HB 597 / SB 62 in that it does not specifically mention “sharia”.

It should be noted that at least some 2011 bills will make a return in 2012; roughly half of states allow bills to be “carried over” from one session to the next. Definitive answers as to which bills will return will be available as the legislatures come back into session in January.

Full roster of bills going back to 2010 after the jump.
» Read more: Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

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

September 30th, 2011

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

HB 2039 /SB 1775 Authorizes judges who complete certain firearms training to carry a weapon in courtrooms.

HB 1877 / SB 1798 Provides for revocation of driver license for nonpayment of litigation taxes, court costs or fines in certain circumstances. Provides payment plan option and hardship exemption.

HR 33 / SR 11 Approves amendments and revisions to the Tennessee Rules of Evidence promulgated by the Supreme Court of Tennessee.

HR 34 / SR 12 Approves amendments and revisions to the Tennessee Rules of Civil Procedure promulgated by the Supreme Court of Tennessee

HR 35 / SR 13 Approves amendments and revisions to the Tennessee Rules of Appellate Procedure promulgated by the Supreme Court of Tennessee.

HR 36 / SR 14 Approves amendments and revisions to the Tennessee Rules of Criminal Procedure promulgated by the Supreme Court of Tennessee.

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2011 Southern indigent defense legislation

September 14th, 2011

Law

Alabama HB 601 / SB 440 Repeals all existing laws with respect to indigent defense. Redefines “indigent defendant.” Provides for the unified administration of indigent defense services by the state. Ends practice of providing for indigent defense through the local presiding circuit judge, commission, or governing body administering the system. Creates statewide Office of Indigent Defense Services within the Finance Department and indigent defense advisory boards in each judicial circuit.

Arkansas HB 1004 Prohibits payment of attorney’s fees of privately retained attorneys for indigent persons.

Arkansas HB 2207 Provides funding for public defenders may come from a county’s administration of justice, general, public defender, indigent defense, or public defender investigator fund(s), or any other fund authorized by law for that purpose. Requires expenditures comply with an itemized, line-item budget.

Louisiana HB 178 Authorizes Dept. of Children and Family Services to transfer funds appropriated pursuant to existing law to unspecified entities for representation of children and indigent parents in child protection proceedings. Removes require that funds go only to those entities specified in existing law.

Mississippi HB 1302 / SB 2563 Consolidates Office of Capital Defense Counsel, Office of Indigent Appeals and Division of Public Defender Training into Office of State Public Defender. Repeals provision that Circuit Court may appoint local counsel in capital cases at the expense of the Capital Defense Counsel Special Fund.

Mississippi HB 506 Permits all public defenders to carry firearms in courthouses. (See also HB 881)

Mississippi HB 332 / SB 2697 Extends Public Defender Task Force until 2014.

Texas HB 1754 / SB 170 Creates within judicial branch the Texas Indigent Defense Commission. Transfers all powers and duties of Task Force on Indigent Defense  to Commission and abolishes Task Force. Designates Commission a permanent standing committee of the Texas Judicial Council and administratively attached to the Office of Court Administration, but provides commission is to prepare, approve, and submit a Legislative Appropriations Request and maintain a budget structure separate from that of OCA. Establishes membership of governing board of the Commission. Sets sunset date for commission as September 2023. Requires certain indigent defense information to be submitted by November 1st of each odd numbered year. Requires each law school receiving innocence project funding to submit annual reports regarding exonerations in criminal cases. Amends the Code of Criminal Procedure relating to the creation of public defender’s offices. Defines and authorizes local jurisdictions to establish managed assigned counsel programs as strictly a local option that would require both the judges and county commissioners court assent to implement. Repeals the “Indigent Representation Fund”, the court costs for which serve as a revenue stream to the Fair Defense Account, which serves the same purpose.

Texas HB 3323 / SB 1308 Allows for the review of attorneys who are no longer eligible to represent indigent defendants in capital cases due to a single finding of ineffective counsel. Provides determination will be made by the Regional Selection Committee, which includes an administrative law judge, a district judge, a representative from the local bar association, and a board-certified criminal attorney.

Adopted Resolution

Texas HCR 22 (Special Session) Commends the members of the Texas Supreme Court for their actions in support of legal aid services and honors them for their work in promoting access to justice for the state’s most vulnerable citizens.

Active/Carried over into 2012

Oklahoma SB 868 Specifies Indigent Defense System is only for indigents who are in custody. Provides a court may appoint legal representation for an indigent who is not in custody, in which case costs for such representation shall be paid from the local court fund.

Oklahoma HB 2175 Restricts use of the Oklahoma Indigent Defense System to defendants who are in custody. Provides a definition for “unable to employ counsel”.

Tennessee HB 1225 / SB 1279 Provides that if an attorney, post-conviction defender or district public defender in a criminal case is found to have provided ineffective assistance of counsel, that attorney cannot receive any further state funds for legal services until the attorney obtains continuing education, counseling or training that addresses the reason for the attorney being ineffective.

Tennessee HB 1623 / SB 1574 Removes the requirement that the Executive Director of the District Public Defenders Conference (DPDC) administer the accounts of the judicial branch of government relating to the DPDC; prepare, approve, and submit budget estimates and appropriations necessary for the maintenance and operation of the offices of district public defenders; approve all requisitions for the payment of public moneys appropriated for the maintenance and operation of the judicial branch of government; audit claims, and prepare vouchers for payment; and provide the district public defenders with minimum law libraries.

Approved by one chamber

Louisiana SB 270 Provides 10% of revenue generated from abandoned cars sold by court as result of littering conviction go toward indigent defender board. Approved by full Senate and House Natural Resources and Environment committee. Indefinitely postponed on House floor.

Mississippi SB 2945 Specifies public defender is authorized to assign the duties of all employees of the office without regard to the source of funding for those employees. Approved by full Senate, died in House Judiciary B committee.

Texas SB 1682 Authorizes the creation of a managed assigned counsel program by a locality with written approval of a judge of the juvenile court of a county or county court, statutory county court, or district court trying criminal cases. Approved by full Senate and House Criminal Jurisprudence committee. Died on House floor.

Died in committee

Arkansas HB 2146 Defines crime of “illegal disbursement of funds by a judge”. Makes illegal instances where judge makes payments for services rendered to a public defender, assistant public defender, prosecuting attorney, or deputy prosecuting attorney resulting from the exercise of that person’s official duties.

Arkansas SB 941 Provides public defenders must provide itemized bill with a detailed explanation of services rendered, time spent, and expenses incurred. Renames converts certificates of indigency into affidavits to be created by public defender commission. Increases from $100 to $250 maximum user fee payable to commission.

Arkansas SB 974 Designates public defender commission a criminal justice agency for purposes of access to the Arkansas Crime Information Center.

Mississippi HB 181 Sets hourly payment for indigent defense counsel as 80% of the hourly rate allowed in the Mississippi’s federal courts. Provides judge presiding in case may adjust the total requested payment to counsel in a case if the court finds that the number of hours claimed by counsel in that case is not reasonable.

Mississippi HB 153 Creates District Public Defender Pilot project.

Mississippi HB 978 Provides public defender salaries are to be same as county prosecutors.

Mississippi SB 2971 Authorizes loan forgiveness programs for education loans to encourage law students and other attorneys to choose careers in the area of public interest, including specifically public defenders and civil legal aid attorneys.

Texas HB 1475 Provides for longevity pay for assistant public defenders.

Texas HB 1392 Creates special $95 fee for sale of property at a foreclosure sale to pay for civil legal services to the indigent.

Texas HB 2174 / SB 726 Establishes judicial access and improvement account to provide funding for basic civil legal services, indigent defense, and judicial technical support through certain county service fees and court costs imposed to fund the account. (See also Special Session HB 34 / SB 23)

Texas HB 1918 / SB 1028 Requires a district court judge to appoint one attorney, rather than two, when a capital felony case is filed. Provides in cases where prosecutors do not seek the death penalty a second attorney will not be required to be appointed.

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