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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

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

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

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

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

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

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

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

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

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

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

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

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

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

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

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

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

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

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

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

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

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.

Alabama

In the last decade, Alabama’s House and Senate have at various times both passed constitutional amendments for the elimination of mandatory judicial retirement and rejected them as well.

Arizona

All efforts since 1990 to change the state’s mandatory retirement age of 70 have focused on increasing it to 75. The first round of bills (2002-2004) met with some success in the House but not the Senate. A second round (2005-2006) included a Senate effort to increase for the state’s main trial court judges (Superior Court) only. The Senate approved, the House balked. The third and continuing round (2007-2011) tied the increase to 75 with changes to the state’s merit selection system. Such a connective bill was passed in 2011 and is set to be voted on in 2012. Under SCR1001 the mandatory retirement age would go to 75, but the composition of the state’s merit selection commissions would be altered.

Florida

As with Arizona, the Florida interest in changing the mandatory retirement age was connected to changes to judicial selection. Bills introduced in 1994 and 1996 would have raised the limit or allowed the legislature to do so at a later date. The constitutional amendment that appeared on the ballot excluded the reference to the mandatory retirement age.

Hawaii

In 2005, Hawaii was faced with a Republican Governor (something which had not happened since 1962), a very Democratic legislature, and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a standalone constitutional amendment eliminating the retirement age which went down to a nearly 2-1 defeat. A 2008/2009 effort to increase the age to 80 for justices and judges appointed after November 4, 2008 (i.e. after the Republican governor would be term limited out of office) died in a conference committee.

Indiana

Kansas

Kansas had been considering a change to its statutes regarding mandatory judicial retirement at 70 for several years before a 2002 Supreme Court order reset the dynamics. In March of that year, in response to legislative cuts to the courts, the Supreme Court entered an order for emergency surcharges on various court filings, fees, and fines. The language of a 2000 bill was then reintroduced in 2003 to increase the mandatory retirement age for judges, even the Court of Appeals, except the Supreme Court. That version was enacted. It was not until 2010 that the law was further amended to include the Supreme Court in the increase.

Louisiana

Louisiana has had two efforts to increase the retirement ages of its judges. The first was in the early 1990s and sought an increase from 70 to 75. It was put up on the ballot in 1995, along with 14 other items, as Amendment 4. It was one of only 2 proposals to lose. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. It passed overwhelmingly 75%-25%, making the “mere” 62%-38% drubbing Amendment 4 took somewhat remarkable. Thereafter the issue lay dormant for almost a decade until 2003 when a change was proposed to allow judges to serve out the term in which they turned 70. Like its 1995 its counterpart it was one of 14 items on an October ballot. The 2003 effort, however, succeeded.

Michigan

Massachusetts

Minnesota

Missouri

Missouri is one of only a handful of states that have a different retirement age for trial and appellate judges. Moreover, municipal judges have a higher retirement age (75) than that of the judges of all the other courts (Circuit, Court of Appeals, and Supreme Court = 70).

North Carolina

New Jersey

New York

Ohio

Pennsylvania

Throughout the 1990s several attempts were made to extend judicial terms to the end of the calendar year a judge turned 70.The extension was added onto a bill related to reapportionment, but approved by the voters in a separate vote in May 2001 where it won on a 2-1 vote.

South Dakota

Texas

The 2007 Texas amendment noted below was the first effort in a decade to change the state’s judicial retirement. It was one of 16 ballot items voters cast ballots on in November 2007, all of which passed.

Virginia

For each of the past 5 years it appeared that Virginia General Assembly would raise the mandatory retirement age for judges and in each one of those years it failed, often at the last minute. Part of the challenge is the statutory placement of the law itself; Virginia Code 51.1-305(B1) not only sets 70 as the mandatory age for judges, but for members of the state Corporation Commission who are also members of the Judicial Retirement System. Trying to craft a bill that does, or does not, also change the retirement provisions for the members of the Commission has been a sticking point. The result has been numerous attempts, including three tie-vote-failures in committee.

Vermont

When originally proposed in the Vermont Senate, the bill to simply eliminate the retirement age. A committee amendment changed it to a range to be set by the legislature instead. The legislature would later opt for the high end, passing a statute in 2003 to set it as being the end of the calendar year the judge turns 90.

Washington

Wyoming

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.

• Maryland’s 1976 attempt for merit-selection-with-Senate-confirmation was part of a package of bills that included constitutional amendments guaranteeing every county would have at least 1 circuit judge (House Bill 1048), giving District Court juvenile jurisdiction (SB 219), and giving the state’s Chief Judge the power to recall retired judges back into service (SB 817). Voters approved 16 different items on the ballot that year.
• Similarly, New York’s 1977 shift to end elections and have merit-selection-with-Senate-confirmation was one of four judiciary-related constitutional amendments, including a revamp of the state’s entire judicial governance structure and the creation of a commission on judicial conduct. The fourth item, changes to the jurisdiction of town, village and (most) city courts, was rejected.

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.

HB 138 Repeals sunset on court diversion fees.

SB 1 Makes technical corrections to Judicial Restructuring Act of 2010.

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.

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.

Sections 32-34 of the Vermont Constitution establish the procedure for the filling of judicial vacancies in the state’s courts. Vacancies are filled by the Governor from a list of nominees presented by a judicial nominating body established by the General Assembly. The judges then must get Senate confirmation. They serve for six years and may then submit their names to the full General Assembly. The judges are automatically continued in office “unless a majority of the members of the General Assembly voting on the question vote against continuation in office.”

State statutes require a Joint Committee on Judicial Retention conduct at least two public hearings on the re-appointments by March 10 and that the General Assembly vote by March 17. The same statutes, however, allow for extensions of time, which is precisely what JRS 20 is intended to do, extending the deadline for the General Assembly’s vote to March 24.

JRS 20 was approved by the Senate on March 9 and is currently pending in the House.

HB 470 comes out of the recommendations of the state’s Commission on Judicial Operation which has said on its website that “Vermonters can no longer afford the inefficiencies of our outdated court system. ” The Commission itself was created at the request of the legislature to “reduce the judiciary’s budget and enhance the efficient and effective delivery of judicial services.”

The bill would consolidate judicial functions by eliminating the Probate, Family, and District Courts (click here for current court structure chart, courtesy of the NCSC Court Statistics Project) and “establish[ing] a unified court system under the administrative control of the Supreme Court.” This unified system would consist of the Supreme Court and Superior Court, the later to absorb the Probate, Family and District Courts. This new Superior Court would have four divisions: civil, criminal, family, and probate, which would have the same subject matter jurisdiction currently had by the current Superior, District, Family, and Probate courts. Additionally, the state’s probate and judicial districts would be redrawn with districts no longer drawn along county lines. Moreover, all judges of the new Superior Court would be required to be attorneys, a qualification currently not mandatory for Probate Court judges. Finally, the state’s “assistant judges” (non-attorneys who may serve as “side judges” on cases) would not longer be allowed  any judicial, adjudicative functions.

It remains to be seen whether this legislation will advance, and if so how far, before the legislature adjourns sometime in late April.