Alabama: 2nd hearing today on plan to require legislature approve of judicial disciplinary proceeding that would remove a judge from office

In September of 2016 Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017 is a constitutional amendment that would require 2/3rds legislative approval of Supreme Court decisions to remove judges from office. The move comes after the suspension from office of Chief Justice Roy Moore. During the hearing on the bill the lead proponent complained that in the state’s Judicial Inquiry Commission “We have popularly elected judges, and we have a small, unelected body that takes them out.” Opponents expressed concern over separation of powers issues.

SB 8 also ends the practice where a judge or justice is suspended from office upon filing of a complaint by the Judicial Inquiry Commission.

State legislatures debating use of dogs in courtrooms to calm, assist witnesses; bills out of committee in several states, enacted in Idaho

I mentioned in 2016 that there’s been an increasing number of bills introduced to address the use of animals in court proceedings to calm and assist witnesses. The 2017 session has continued this trend. The bills often contend with two issues: who can have access to such animals (children only? others?) and in what kinds of cases can such an animal be used (criminal? any?)

Alabama HB 393 and SB 273 would permit at the judge’s discretion registered therapy dogs into courtrooms to assist any victim or witness “to reduce unnecessary emotional distress experience by a victim or witness and allow full and factual testimony.” The District Attorney would have to provide instructions on court protocol to the handler. The bills also deal with how to explain the presence of the dog to the jury and authorizes judges to use discretionary court funds to offset the costs for a registered handler for the therapy dog.

SB 273 was approved 7-0 by the Senate Health and Human Services Committee yesterday. HB 393 is in the House Public Safety and Homeland Security but has not yet come up for a hearing.

California AB 411 as amended focuses on 1) child witnesses in cases involving a serious or violation felony and 2) victims entitled under existing law to support persons. These individuals under the bill would be able to have access to a therapy or facility dog and defines these terms, subject to approval by a judge. The bill also deals with how to explain the presence of the dog to the jury.

AB 411 as amended was approved by the Assembly Committee on Public Safety on March 15 and is currently on the Assembly floor (3rd Reading Calendar).

Connecticut HB 6999 as filed would have authorized the use of therapy dogs for those under the age of 18 in criminal cases.

During testimony on the bill by the Connecticut Judicial Branch, it was noted that the state’s supreme court had recently ruled that judges already have the inherent authority to allow for a therapy dog for any witness, in any court proceeding, and that therefore the bill as filed might have the effect of limiting the court’s ability to make such accommodations.

HB 6999 as amended, instead provides the Judicial Branch shall maintain on its website a section providing information regarding the availability of an accommodation, granted at the court’s discretion, for the presence of a dog to provide comfort and support for a child under the age of eighteen during such child’s testimony in the criminal prosecution of an offense involving the alleged assault, abuse or sexual abuse of such child. it also directs that trial judges be trained on this issue.

HB 6999 as amended was approved by the Joint Committee on Children on March 2 and remains pending.

Florida HB 151 amends an existing law that allows the court to use service or therapy animals in proceedings involving a sexual offense to assist a child victim or witness or a sexual offense victim or witness.

As amended, HB 151

  1. Expands the list of proceedings in which support animals may be used to include any proceeding involving child abuse, abandonment, or neglect.
  2. Expands the categories of allowable animals to include a “facility dog”;
  3. Allows a court to set any conditions it finds just and appropriate when taking the testimony of a person who has an intellectual disability, including the use of a therapy animal or facility dog;
  4. Removes the requirement for evaluation and registration of an animal pursuant to national standards, and replaces it with a requirement that an animal be trained, evaluated, and certified according to industry standards; and
  5. Provides definitions for the terms “facility dog” and “therapy animal.”

HB 151 was approved by the full Senate yesterday and is on its way to the governor. The Senate’s similar bill (SB 416) addressed the same issues and was approved on committee, but was ultimately shelved in favor of HB 151.

Idaho SB 1089 as enacted provides when a child is summoned as a witness in any hearing in a noncriminal matter that involves the abuse, neglect or abandonment of the child, including any preliminary hearing, notwithstanding any other statutory provision, a facility dog shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony. The bill also defines what a “facility dog” is. SB 1089 was signed into law by the governor in March, with an effective date of July 1, 2017.

Maryland SB 77 amends a 2016 law (SB 1106) that created a pilot program for the use of both facility and therapy dogs with respect to child witnesses in criminal cases and limited the program to two counties (Anne Arundel and Harford). SB 77 would delete the word “criminal”, allowing for the use of such dogs in any case.

SB 77 was approved by the House on April 4 and is in back in the Senate pending transmission to the Governor.

Special Edition: Alabama fee/fine/cost legislation in the 2017 session

HB 380 Authorizes any municipal court judge to remit fines, court costs, fees, payments, and other charges in cases where the court determines that a defendant cannot afford to pay the full amount that would otherwise be required by law. In House Judiciary Committee.

SB 36Fairness in Enforcement of Fines and Fees Act.” In Senate Judiciary Committee.

Prohibits a person from being incarcerated for nonpayment of fines or fees without a prior indigency determination and would provide the person with certain notifications.

Requires a person charged with a traffic violation or minor misdemeanor be provided with adequate information, including the charges against him or her and the options he or she has for resolving the charges.

Requires a court to proportion all fines, fees, and costs imposed by the court when a sufficient showing of indigency has been made and would require the court to consider alternative sentencing, such as payment plan options or community service in lieu of paying fines and fees.

Requires notice regarding the waiver of posting certain bonds based on the inability to pay and would require meaningful notice and adequate representation, including counsel, in cases where the enforcement of fines and fees could result in imprisonment.

Prohibits the use of arrest warrants as a means of coercing payment of a court debt and prohibit arrest warrants from being issued in response to the inability of a person to pay a fine or fee.

Provides that if a defendant fails to make a court appearance the court would have to conduct a hearing on why a warrant should not be issued and include an assessment of the ability of the person to pay any pending fine or fee.

Provides that the failure of a person to appear or pay a fine in a case involving a traffic violation or minor misdemeanor may not be grounds for suspension of the driver’s license of the person and would provide for immediate reinstatement of the driver’s license of any person whose driver’s license has been suspended for failing to appear or pay a fine in such cases.

Requires a municipality to ensure the sufficient independence of its municipal judges to avoid impropriety and existing or potential conflicts of interest.

Requires courts and municipal or other governmental entities to provide appropriate training on safeguarding against unconstitutional practices by its staff and private contractors.

SB 37 Authorizes courts to order deferred or installment payments or community service for traffic violations and misdemeanors. Prohibits court from suspending driver’s license for failure to appear or pay fines or court costs. In Senate Judiciary Committee.

SB 38 Authorizes courts to order deferred or installment payments or community service for traffic violations and misdemeanors. Prohibits court from suspending driver’s license for failure to appear or pay fines or court costs if violator making payments. In Senate Judiciary Committee.

SB 39 Requires courts consider alternatives to incarceration for defendants unable to pay fines or court fees, to provide notice when enforcing fines and court fees, and to safeguard against unconstitutional practices by court staff and private contractors. Prohibits courts from incarcerating a person for nonpayment of fines or court fees without first conducting an indigency determination and establishing that the failure to pay was willful; from conditioning access to a judicial hearing on the prepayment of fines or court fees; from using arrest warrants or driver’s license suspension as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections; and from employing bail or bond practices that cause defendants to remain incarcerated solely because they cannot afford to pay for their release. In Senate Judiciary Committee.

SB 42  Prohibits suspension of driver’s license for for failure to pay fines, fees, or court costs. In Senate Judiciary Committee.

SB 162 Prohibits suspension or revocation of driver’s license for for failure or inability to pay fines, fees, or court costs. In Senate Judiciary Committee.

SB 281 Authorizes any municipal court judge to remit fines, court costs, fees, payments, and other charges in cases where the court determines that a defendant cannot afford to pay the full amount that would otherwise be required by law. In Senate Judiciary Committee.

Alabama: Senate approves Judicial Resources Allocation Commission with power to move judgeships; requires more uniformity in how cases are counted throughout state

Earlier this week the Alabama Senate approved SB 90 to provide for the creation of a Judicial Resources Allocation Commission. The bill, as approved by that chamber, is a follow-up to similar legislation introduced over the last several sessions discussed here, here, and here. Media reports here. Key provisions of the bill include:

Moving Judgeships

Based on a review and ranking system (see below) the Commission by 2/3rds vote could move a vacant judgeship from one circuit/district to another without having to rely on legislative approval. The movement of a judgeship by the Commission would be limited in several ways

  1. The move can only occur where the judgeship is vacant by death, resignation, mandatory retirement, forced removal, or similar case.
  2. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the circuit or county ranking list (see below).
  3. Every county is entitled to at least one District Judge.
  4. No circuit can lose more than 1 judgeship in any 2-year period.
  5. No change can be made until 3 years of data are available after the revision of criminal case-count factors in the Judicial Weighted Caseload Study (see below).

Membership

The Commission would include the Chief Justice of the Supreme Court as chair. Prior versions introduced in the House did not include the Chief Justice.

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • the Attorney General
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 2 attorneys picked by the president of the Alabama Bar
  • 1 attorney picked by the president of the Alabama Lawyers Association

Rankings/Criteria

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 5 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit, including whether there are specialized divisions
  4. Uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits; versions introduced in prior sessions did not include this provision
  5. Any other information the commission deems relevant

Addressing lack of uniformity in criminal data/case counts

In addition to the requirement for uniformity in the calculation of how civil, criminal, and domestic cases are accounted for between circuits, data/calculations are specifically called out especially in those areas that count each separate criminal charge against a criminal defendant as a separate criminal case. Under SB 90 the Alabama Supreme Court must “revise the factors considered in the Judicial Weighted Caseload Study to uniformly, fairly, and accurately account for criminal cases by counts brought against a defendant.”

SB 90 now goes to the House.

NC: So how many other states/courts elect their appellate judges in a partisan manner? It’s complicated.

Amid the debate on SB 4 today and the decision to switch North Carolina’s Supreme Court and Court of Appeals from nonpartisan to partisan races, there’s been a good amount of discussion of how many other states and appellate courts have partisan elections. Numbers have ranged widely. The reason for this is fairly straight forward in that for many states it is not a straight forward answer.

There are 8 states with 9 courts in which at one point or another justices of the supreme court/court of last resort show up with a party label somehow. It was 9 states with 10 courts until 2015 when West Virginia ended partisan races for their Supreme Court of Appeals.

  1. Alabama: partisan primaries and partisan general elections.
  2. Illinois: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Illinois Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 60% “yes to retain” vote.
  3. Louisiana: The state uses a “blanket primary” in which all candidates appear with party labels on the primary ballot. The two top votegetters compete in the general election. Thus in the general election, you could have two Republicans vying against each other for the seat, as occurred most recently in 2016 when Republican James “Jimmy” Genovese defeated fellow Republican Marilyn Castle for the 3rd Supreme Court District (Louisiana elects their justices by district, not statewide).
  4. Michigan: candidates for Supreme Court are nominated by political parties but the actual ballot in November is nonpartisan (i.e. no party labels).
  5. New Mexico: very complicated. When a vacancy occurs on the New Mexico Supreme Court, it is initially filled via merit selection (nominating commission sends list of names to governor, governor picks). The newly appointed justice must then run in a partisan primary and partisan general election but only for the first election. If a person does get elected to the New Mexico Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 57% “yes to retain” vote.
  6. Ohio: Partisan primaries, but nonpartisan general elections.
  7. Pennsylvania: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Pennsylvania Supreme Court, the next time they are up they are put into a yes/no retention election (50% “yes to retain” to remain in office).
  8. Texas: Everything is bigger in Texas, including their appellate courts. Texas has two “courts of last resort”: the Supreme Court for civil matters and the Court of Criminal Appeals. Both courts use partisan primaries and partisan general elections.

The Alabama judicial disciplinary system suspended Chief Justice Roy Moore from office, now members of the legislature want to get rid of the system or remove its powers

In September of this year Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017, as prefiled, would require legislative approval of any Court of the Judiciary decisions to remove a judge from office. Moreover, it would remove the exiting constitutional provision that “disqualifies” (suspends) a judge from office after the Judicial Inquiry Commission files charges until a final determination of the case against the judge.

SB 11 of 2017, as prefiled, goes further than SB 8 and simply abolishes both the Court of the Judiciary and the Judicial Inquiry Commission. There is no indication of what entity, if any, would replace them. The author of SB 11 described the proceedings against Chief Justice Moore as an “outrageous abuse of process.”

Also possibly coming up in 2017 will be legislation pushed for by the executive committee of the Alabama GOP to have all 9 members of the Judicial Inquiry Commission elected. Currently the commission is made up of

1 appellate judge appointed by the supreme court, but who can’t be supreme court justice

2 circuit judges appointed by the Circuit Judges’ Association

1 District Judge appointed by the Lt. Governor

3 persons who are non-lawyers appointed by the governor with confirmation by the Senate

2 members of the State Bar appointed by the Board of Bar Commissioners.

The Alabama legislature comes back into session in February.

Alabama bill would require judges give and post jury nullification instructions in courthouse or be arrested and impeached; “judges are the chief competition to the jury”

Last week the New Hampshire House approved a plan to require judges to give jury nullification instructions to jurors in that state. Now an Alabama lawmaker wants judges to post the information in courts and swear an oath to jury nullification.

Alabama HB 408 as filed yesterday provides for nearly 5 pages of rationale for the instructions/postings and warns that “While it is one thing for a Legislature to enact a statute, it is often another thing entirely to insure that the statute is properly administered free of judicial rewriting.” and “What judges today are careful to conceal from jury members is that judges are the chief competition to the jury.”

HB 408 provides that the following instructions are to be read in their entirety to every juror and posted in every courthouse

“The laws of this state are established by the vote of the duly elected representatives of your Legislature and are to be presumed as being representative of the will and purpose of the people of this state. As the will and purpose of the people change, our system of government assumes that the representatives of the people will adjust the laws governing the people accordingly. Sometimes, however, laws are passed that do not represent the will of the people, or laws are interpreted in ways that exceed the original scope and intention of the law when it was created. If you as the jury find the evidence shows the defendant violated the law, but you disagree with the law you are being asked to consider as part of your deliberations, and believe such a law should not be enforced, then you have the legal authority to return a verdict of not guilty on the ground of Jury Nullification.

“Jury nullification is nothing less than a rejection of a law of this state that has been passed by the state Legislature and signed by the Governor, and for this reason it should never be undertaken lightly. Nevertheless, jury nullification also provides an opportunity for you, as citizens of this state, to inform your government that the laws the defendant is charged with violating exceeds what you consider appropriate and acceptable in our society and should be either repealed or revised.

“If you choose to find the defendant not guilty by reason of jury nullification, then you should check the box marked jury nullification on the verdict form.”

Judges who failed to read/post this would be impeached, arrested and, if convicted, sentenced to a mandatory 3 days in jail.

Moreover, every judge in the state would be required to read a statement and swear an oath to uphold jury nullification.

Finally, “no Alabama State Supreme Court Justice, Appellate Court Judge, or Circuit Court Judge may interpret this statute.”

HB 408 has been filed but not yet assigned to a committee