Posts Tagged ‘Virginia’

« Older Entries

Bans on court use of sharia/international law: 33 bills in 20 states to start 2012; review of all efforts since 2010

January 30th, 2012

2012 marks the third year in a row to see major legislative efforts to ban state courts from using sharia or international law. A recap:

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

  • Louisiana HB 785 & SB 460: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
  • Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
  • Tennessee HB 3768 & SB 3740: Defines “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

  • Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….a court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the united states or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

3 comments »

Posted in Jurisdiction, Other, Special Edition

Tags:

West Virginia considers creating an intermediate appellate court, Virginia considers getting rid of theirs

January 27th, 2012

Of the 50 U.S. states, 40 have an intermediate appellate court (IAC), generally (but not always) called the “Court of Appeals”. Two states have been actively trying to get their own IACs. The first, Nevada, has been trying for decades but has been unable to get voter support for a constitutional amendment to create or allow the legislature to create such a court.  A fourth attempt is currently in the works.

The other state is West Virginia. Creation of an IAC (tentatively entitled the “Intermediate Court of Appeals”) has bounced around the legislature since at least 1999 (HB 3008 of 1999; HB 200B of Second Special Session of 2003) but picked up a great deal of attention in 2010 (HB 3269; HB 4619; SB 589; SB 645) and 2011 (HB 3150; HB 3165) with the state’s senate approving one version (SB 307) that has been reintroduced as part of a larger “Civil Justice Reform Act” in 2012 (SB 420). Under this bill,  “all appeals shall be reviewed and a written decision on the merits issued by either the Supreme Court or Intermediate Court as a matter of right except for [certain appeals as specified in statute]…”

Meanwhile, in the name of cost savings, the Commonwealth of Virginia is considering abolishing their IAC. Under SB 630 the current Court of Appeals would end effective October 2012. According to the blog of the Virginia Lawyers’ Weekly, the change would keep the current judges in their respective offices until the end of their terms, but with no apparent work to do after October of this year. The prime sponsor told the VLW Blog “when the state is cutting services to children the judiciary ought not be immune from the budget ax” and criticized the court for having in his view few if any judges with experience in criminal, domestic or workers compensation practice prior to selection to the court.

No comments »

Posted in Structure Changes

Tags:

For the sixth year in a row Virginia’s General Assembly votes on whether to increase mandatory judicial retirement age

January 16th, 2012

I noted just before the 2011 sessions started that Virginia’s legislature has struggled mightily to agree on a plan to increase the state’s mandatory judicial retirement age of 70. Whereas most changes to mandatory judicial retirement ages have been approved, or at least sent to the voters, within 1 or 2 legislative years, Virginia is now entering Year 6 in its efforts to amend Virginia Code 51.1-305(B1) which 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. Each year since 2007, changes have been approved at the committee level, even obtaining one-chamber passage, only to be killed or left to die at the end of the session.

This year the two vehicles are HB 163 and SB 95 with both raising the retirement age from 70 to 73 and eliminating the special provisions related to the Corporation Commission. Earlier this morning the Senate Committee on Courts of Justice approved its version on an 11-3 vote. The House Committee on Courts of Justice, Civil Subcommittee is set to vote on it later this afternoon. This vote is critical as it was the civil subcommittee which killed the House version last year on a 5-5 tie vote (with 1 abstention). This year’s subcommittee may be more welcoming. Of the 9 members of the 2012 committee, 4 voted in favor of the 2011 plan, 2 voted against and 1 abstained. Assuming those 7 delegates vote the same way, that leaves the decision to two delegates first elected in 2011.

Update 1/16/12 @ 5:29 PM – The two newly elected delegates voted against, resulting once again in the bill’s failure to pass due to a tie vote (4-4, 1 abstention).

Details of prior years efforts below the fold.
» Read more: For the sixth year in a row Virginia’s General Assembly votes on whether to increase mandatory judicial retirement age

No comments »

Posted in Qualification & Terms

Tags:

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

October 27th, 2011

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

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

State by state breakdown below the fold.

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

1 comment »

Posted in Qualification & Terms, Special Edition

Tags:

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

October 24th, 2011

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

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

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

Roles of legislatures in appellate judicial re-confirmation

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

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

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

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

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

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

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

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

Rhode Island: N/A (Serve for life)

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

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

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

 

No comments »

Posted in Selection, Special Edition

Tags:

Virginia’s Committee on District Courts meeting 10/20, will look at legislative proposals by the Judicial Conference of Virginia

October 18th, 2011

Virginia’s Committee on District Court is set to meet on October 20. The Committee, made up of 14 members (8 legislators, 6 jurists) will examine:

  • Report of the District Court Forms Advisory Committee
  • Proposals Regarding Schedules of Prepayable Offenses
  • Legislative Proposals by the Judicial Conference of Virginia for District Courts
  • Request for Waiver of Magistrate Certification
  • Informational Items
  • Department of Judicial Services Visit Reports

 

No comments »

Posted in Interim Activities

Tags:

Florida and Virginia: Letting retired judges/justices appear as counsel & practice law in state courts

September 30th, 2011

Mandatory retirement ages plus increasing life expectancy is meaning more judges having years of potential active practice after they forced to relinquish their robes. In some states they may be potentially recalled as senior judges or appointed as hearing officers. However, in several states, retired judges and justices who are taking state retirement may not appear in a state court at all representing a client. Two states in particular, Florida and Virginia, have seen legislative activity to loosen the restriction.

Prior to the 2011 General Assembly session, Virginia retirement law (51.1-309) included the following:

§ 51.1-309. Appearance as counsel in certain forums prohibited.

A. No former justice or judge of a court of record of the Commonwealth and no former full-time judge of a court not of record of the Commonwealth, who is retired and receiving retirement benefits under the provisions of the Judicial Retirement System, shall appear as counsel in any case in any court of the Commonwealth. (bolding added)

The general prohibition in 51.1-309(A) remains, but SB 902 of 2011 added a limited exception for retired judges/justices doing pro bono work:

C. The provisions of subsection A shall not be applicable if (i) the retired justice or judge has been retired for at least two years and is not authorized for temporary recall by the Chief Justice of the Supreme Court, (ii) the retired justice or judge is appearing as counsel, pro bono, for an indigent person in a civil matter, (iii) such civil matter is assigned or referred to the retired justice or judge by a nonprofit legal aid program organized under the auspices of the Virginia State Bar, and (iv) the retired justice or judge is not an employee, officer, or board member of such nonprofit legal aid program. Nothing herein shall relieve the retired justice or judge from having obtained any license or meeting any requirement in connection with the appearance as counsel as required by law, rule, or regulation.

Florida’s current law is even more restrictive. Under 25.151 “No justice of the Supreme Court of Florida drawing retirement compensation as provided by any law shall engage in the practice of law.” In 2011, HB 7113  and HB 7199 would have outright repealed this ban. HB 7199 was the implementation legislation for HJR 7111 as originally introduced. That HJR, as readers may recall, would have divided up the state’s supreme court into civil & criminal panels, changed the court’s rule making powers, etc. (click here for posts on the subject)

HB 7113, however, had nothing to do with HJR. While it was approved by the full House it nevertheless but died in Senate Messages. HB 7113 has already been reintroduced and prefiled for 2012 as HB 4055 but not yet assigned to a committee.

 

No comments »

Posted in Other, Qualification & Terms

Tags:

Virginia’s judicial redistricting committee plan to be unveiled today

September 19th, 2011

I’ve previously mentioned the 2011 legislative effort to redistrict Virginia’s judicial districts. In sum, the bill was almost on the verge of passage when it was decided to refer the matter to the state’s Supreme Court,resulting in a committee appointed by the Chief Justice to look at the issue.

Today’s interim joint meeting of Virginia’s Committee on District Courts and Judicial Council on September 19 will see the committee’s recommendations released. The Committee’s 14 members include 8 legislators, including the chairs of the Committees for Courts of Justice in the Senate and House of Delegates. The chairs also serve as members of the Council as well.

According to the Virginia Lawyer’s Weekly, the committee will recommend against redistricting, instead suggesting a system of regional chief judges for assigning judges to fill workload gaps as needed.

The Committee/Council agenda is:

  1. Welcome and Comments by Chief Justice Kinser
  2. Overview of Committee Work and Committee Recommendations Judge Thomas D. Horne, Chairman Judicial Boundary Realignment Study Committee
  3. Review of Committee Realignment Models Dr. Cyril W. Miller, Jr. Director of Judicial Planning
  4. Legislative Proposal Ms. Katya N. Herndon Director of Legislative and Public Relations
  5. Adjournment

No comments »

Posted in Structure Changes

Tags:

2011 South-Atlantic indigent defense legislation

September 13th, 2011

Law

Florida HB 7067 / SB 1016 / SB 7018 Re-creates Indigent Civil Defense Trust Fund within Justice Administrative Commission without modification. Repeals provisions that would have terminated the trust fund in 2012. (see also HB 7065 / SB 1014 / SB 7016)

Florida HB 443 / HB 7199 / SB 170 Requires that each public defender implement a system to electronically file court documents with the clerk of the court. Requires Florida Public Defender Association report to the President of the Senate and the Speaker of the House of Representatives by a specified date on the progress made in implementing the electronic filing system.

Georgia HB 238 Reconstitutes and vacates all currently serving members of the Georgia Public Defender Standards Council. Provides for appointing new members. Alters powers and duties of the council and council director, council’s responsibility to set policy and standards, and the director’s responsibility to develop rules and regulations to efficiently administer the provisions of the law related to public defenders. Provides director to appoint circuit public defenders and requires two-thirds vote of council to remove the chairperson of the council or to overturn the director’s decision regarding the removal of a circuit public defender. Requires certain annual reports be prepared by the director, rather than the council, and a copy sent to the Supreme Court.  Changes provisions relating to the circuit public defender supervisory panel. Changes provisions relating to appointing attorneys in conflict of interest cases.

Maryland SB 515 Specifies that an individual whose assets and net annual income are less than 100% of the federal poverty guidelines may be determined eligible for services from the Office of the Public Defender (OPD) without an assessment. Clarifies that the District Court, a Circuit Court, and the Court of Special Appeals are prohibited from appointing an attorney through OPD to represent an indigent individual if (1) there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is being represented by or through OPD; or (2) OPD declines to provide representation to an indigent individual entitled to representation.

North Carolina HB 243 Provides fee charged by clerk for certificates under seal is waived for appointed attorneys representing indigent clients.

Virginia SB 902 Permits retired justices or judges to appear as counsel in cases in courts of the Commonwealth if (i) the retired justice or judge has been retired for at least two years and is not authorized for temporary recall by the Chief Justice of the Supreme Court, (ii) the retired justice or judge is appearing as counsel, pro bono, for an indigent person in a civil matter, (iii) such civil matter is assigned or referred to the retired justice or judge by a nonprofit legal aid program organized under the auspices of the Virginia State Bar, and (iv) the retired justice or judge is not an employee, officer, or board member of such nonprofit legal aid program.

Active/Carried over into 2012

Georgia HB 648 Implements HR 977 (Constitutional Amendment). Creates trust fund for indigent defense dollars collected by clerks. Provides and specifies certain fees and assessments are dedicated to funding legal services for indigent persons accused of crimes and delinquent acts. Provides such funds are to be remitted to the Georgia Public Defender Standards Council.

Georgia HB 977 (Constitutional Amendment) Creates trust fund for indigent defense dollars collected by clerks. Provides and specifies certain fees and assessments are dedicated to funding legal services for indigent persons accused of crimes and delinquent acts.

Approved by one chamber

West Virginia HB 3067 / SB 549 Increases certain civil filings fees currently collected by circuit courts, and impose a new docketing fee for unspecified civil appeals including family court appeals but not including Workers’ Comp cases or, presumably, actions in the Supreme Courts original jurisdiction, to be collected by the Court and paid, at its discretion, to either Legal Aid of West Virginia (LAWV) or into the Interest on Lawyer’s Trust Accounts (IOLTA) fund. Approved by full House, died in Senate Finance Committee.

West Virginia SB 568 Clarifies that an attorney from the public defender office shall be appointed by a judge in all cases where an attorney-at-law is required to be appointed for an eligible client. Approved by full Senate, died in House Judiciary Committee.

West Virginia SCR 79 Requests Joint Committee on Government and Finance study need for authorizing executive director of Public Defender Services control over public defender corporations. Approved by full Senate, died in House.

Died in committee

North Carolina SB 596 Expands state’s office of public defender system to every county in state. Realigns public defender districts accordingly.

Virginia HB 1570 / SB 908 Increases from $10 to $14 fee on most civil actions filed in trial courts to pay for free civil legal representation provided for the poor by a nonprofit legal aid program organized under the auspices of the Virginia State Bar. Changes from $9 to $13 the amount that, from such additional fee, is to be credited to the Virginia State Bar’s Legal Aid Services Fund.

West Virginia SB 482 Requires public defender corporations of all the judicial circuits to be centralized under the executive director of Public Defender Services and grants executive director rulemaking authority.

No comments »

Posted in Other, Special Edition

Tags:

Interim committee activity in Kentucky, Virginia

September 13th, 2011

The Kentucky Joint Interim Judiciary Committee will meet September 14. On the agenda: arrest, prosecution, and treatment of juveniles under 10.

Virginia’s Committee on District Courts is set to meet jointly with the state’s Judicial Council on September 19 in Richmond. The Committee’s 14 members include 8 legislators, including the chairs of the Committees for Courts of Justice in the Senate and House of Delegates. The chairs also serve as members of the Council as well.

1 comment »

Posted in Interim Activities

Tags: