States Expand Protections Against False Liens for Public Officials

During this legislative session, seven states passed measures that expand protections against the filing of false liens—a legal claim to property for unpaid debt—for public officials, and one other state is still considering such a measure. Over the past 20 years, an increasing number of individuals have taken to filing false liens against public officials, a form of harassment that the FBI has dubbed “paper terrorism.” The states have responded by allowing clerks and filing offices to reject such claims, as recommended by the National Association of Secretaries of State, and by increasing civil and criminal penalties.

In addition to the seven states that passed measures this year, there are a number of other states with existing protections. In 2012, this blog covered the efforts of six states (here and here) to pass such measures, three of which were ultimately successful. Similarly, there were eight states in 2013, and five states in 2014, that successfully passed such legislation. The following is a review of efforts in the states to protect judges and other public officials from false liens during the 2015 legislative session.

Passed
Indiana HB 1371 amends existing law prohibiting the filing of false liens to include those who do not currently hold office but have in the preceding four years and provides that liens will be voided if a suit has not commenced within 30 days.

Maryland SB 77 provides that if the filing office believes a claim to be false, they must notify the subject of the filing, state their reasons for believing it is false, and terminate it in 45 days unless the claimant files an affidavit under the penalties of perjury that provides for the claim’s validity. If the filing office still believes the claim to be false after receiving the affidavit, the office may terminate the claim in 45 days unless the claimant petitions for a judicial determination of its validity. (Note: The Governor vetoed HB 312 as duplicative).

Nevada SB 197 amends existing law to prohibit and classify as a category B felony the filing of a false lien or other encumbrance “against the real or personal property of a public officer, candidate for public office, public employee, or participant in an official proceeding, or a member of [their] immediate family” based on the performance of or failure to perform the duties relating to their office or employment. The subject of the fraudulent claim is permitted to bring civil suit against the claimant under this statute.

New Jersey AB 2481 authorizes the filing office to reject a claim it reasonably believes to be materially false or fraudulent because it is (1) filed against a current or former officer or employee of any federal, state, county, local, or other government unit; (2) relates to their performance or failure to perform the duties relating to their office or employment; and (3) “for which the filer does not hold a properly executed security agreement or judgment from a court of competent jurisdiction.” The statute allows the filing office to reject claims filed by incarcerated individuals. The official or employee against whom the claim is filed is also authorized to bring civil suit, and the court is authorized to grant awards up to $2000 or damages incurred and enjoin the defendant from filing any future liens, encumbrances, or court actions without the approval of the court. (Note: The existing statute already included the provision that the filing of a false lien against a public official or employee is a second degree crime).

North Carolina SB 83 amends existing law concerning the filing of false liens or encumbrances against the real or personal property of a public officer, public employee, or their immediate family. The measure authorizes the register of deeds or clerk of court to refuse to file a claim that they reasonably suspect to be fraudulent. The measure also provides an appeals process for denied filings.

North Dakota HB 1307 amends existing law to classify the threatening of a public servant, including the filing of false liens, as a class A misdemeanor for a first offense, and a class C felony for second and subsequent offenses.

Pending
California AB 1267 expands existing protections against false liens to apply to lawsuits and other encumbrances against public officials with the intent to harass. It also provides that the subject of the fraudulent claim can request an order directing the claimant to appear in court to defend the claim. AB 1267 was passed by both the House and Senate, but is still awaiting the Governor’s approval.

Pennsylvania SB 212 classifies the filing of a false lien, in addition to any other unlawful action that attempts to influence, intimidate, or hinder a public official or law enforcement officer from performing their duties, as a misdemeanor of the second degree. This bill is still pending in committee.

Despite being vetoed 3 times, California legislature debates bill regarding creation of veterans courts

Veterans courts in the United States are generally created in two manners: either the legislature enacts legislation authorizing (or mandating) their creation, or the courts/judiciary exercise their power to control their own dockets to create these specialized divisions. Several of California’s Superior Courts have created veterans courts using their own inherent powers, however the California legislature has 3 times passed bills on the subject, and 3 times governors have vetoed the bills as unnecessary or infringing on the judiciary’s power to control its dockets. Nevertheless, a new round in this discussion has now begun.

AB 963 of 2015 would require every Superior Court individually, or together with a neighboring county, create veterans courts. The bill spells out who would be eligible and how the veterans court would operate.

This mandate that the Superior Courts must create these courts in every county is a marked difference with the three prior vetoed efforts that merely authorized the creation.

AB 1925 of 2010: authorized Superior Courts to implement preguilty plea programs, deferred entry of judgment programs, and/or postguilty plea veterans court programs. Gov. Arnold Schwarzenegger vetoed that bill claiming it was unnecessary

[A]uthorizing legislation is not required for the superior courts to establish specialized courts with dedicated calendars. I would urge the Judicial Council to examine the need for veterans’ courts, however, and establish appropriate guidelines for the superior courts to follow.

AB 201 of 2011 repeated verbatim the previously vetoed AB 1925 of 2010. It too was vetoed, this time by Governor Jerry Brown.

While the provisions of this bill are well-intended, they create a clear expectation that our courts-already struggling with painful budget cuts–will establish a new program.

Given current budgetary constraints, the decision to adopt this kind of program-something already within the courts’ authority–is better left to the sound discretion of the judiciary.

AB 2611 of 2012 was again effectively a repeat of the prior legislation. It was vetoed again by Governor Jerry Brown for the same reasons.

I applaud the author’s interest in encouraging courts to focus on helping these offenders [who are veterans] rather than focusing solely on the punishment.

These matters, however, fall logically within the sound discretion of the courts. Veterans treatment courts operate today in 15 counties, including Los Angeles, Orange, San Diego and Ventura. Nine more counties are considering whether to establish one. A bill is not necessary. I urge courts to continue to explore ways to meet the needs of veterans who have served their nation, including establishing a veterans treatment court.

 

Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

Four Six states provide for the general designation of a judge as an incumbent on the election ballot: Arkansas, California, Michigan, and Minnesota. At the same time Texas is considering joining in on this practice, two bills filed in the last several weeks in Minnesota would end the practice in that state.

1/30/2017 update: 6 states, Georgia and Oregon included.

First, some background.

While all four six states mentioned use some sort of incumbent designation, they do so in four different manners. This is how it appears in Arkansas under A.C.A. § 7-7-305 (sample ballot from here). Note that in Arkansas you may use the word “Judge” even if running for a higher court (i.e. a Circuit Judge running for Supreme Court Justice). For example when she ran for the Supreme Court in 2014, Court of Appeals Judge Robin Wynne was identified on the ballot as “Court of Appeals Judge Robin Wynne.”

Untitled

And this from California under Election Code § 13107 (sample ballot from here)

UntitledIn Michigan several statutes depending on court type allow for the word “Incumbent Position” balloting, among them MCLS § 168.409b (Court of Appeals), § 168.424a (Circuit), § 168.426d (Municipal Courts of Record), § 168.433 (Probate), and § 168.467b (District). (UPDATE: A reader also points to this constitutional provision that “There shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office.”) The result is that a judge runs with their current office below their name, as for example from this sample ballot.

Ballot_2008_back[1]

Update 1/30/2017

Georgia law (21-2-285.1) provides that “The incumbency of a candidate seeking election for the public office he or she then holds shall be indicated on the ballot.” An example from this sample ballot.

Minnesota Statutes 204B.36(5) provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.” An example from this sample ballot.

election2014_RamseySampleBallot_p2[1]

Update 1/30/2017

Oregon law (ORS 254.125) provides that “The word “incumbent” shall follow the name of each candidate for the Supreme Court, Court of Appeals, Oregon Tax Court or circuit court who is designated the incumbent by the Secretary of State under ORS 254.085. ” An example from this sample ballot.

 

As for Minnesota, HB 676 and SB 1091 of 2015 would repeal this provision.

In the last two decades there have been dozens of attempts to remove the provision, none successful and most never advancing out of committee. Often the proposal was attached to some other provision, such as an effort to move to merit/commission selection or as part of a larger package of changes to the election laws. One interesting iteration that appeared only in 2011 provided that if the incumbent designation was repealed, the state’s mandatory judicial retirement age would be increased (discussed here).

Details below the fold.

Continue reading Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

California Legislative Year in Review: court interpreters, no more one-word opinions in some appellate cases

Law

AB 1657 Clarifies that notwithstanding any law, a court may provide an interpreter in any civil action or proceeding at no cost to the parties, regardless of the income of the parties. Provides that if sufficient funds are not budgeted to provide an interpreter to every party who needs one, the courts will prioritize actions and proceedings as specified. Clarifies that no party shall be charged a fee for the provision of interpreters so utilized. Stipulates that the foregoing shall not be construed to alter, limit or negate any right to an interpreter in a civil action or proceeding otherwise provided by state or federal law, or the right to an interpreter in criminal, traffic or other infraction, juvenile, or mental competency actions or proceedings. Requires that the provision of interpreters in civil cases shall not result in a reduction in staffing or compromise the quality of interpreting services in criminal, juvenile, or other types of matters in which interpreters are provided.

AB 1932 Provides a judgment of the appellate division of the Superior Court in an appeal shall contain a brief statement of the reasons for the judgment. Specifies a judgment stating only “affirmed” or “reversed” is insufficient.

AB 2370 Requires a judge, in any proceeding in which the court appoints an interpreter who does not hold an interpreter certificate for a designated language, or who is qualified to interpret using a nondesignated language but is not registered, to have stated on the record a finding that a certified or registered interpreter is not available, the name of the interpreter, and a statement that he or she meets the qualification requirements specified above, and that the interpreter’s oath was administered to the interpreter, as specified. Requires a judge in any court proceeding, when using a certified or registered court interpreter, to have stated on the record the name of the interpreter, his or her current interpreter certification or registration number, the language to be interpreted, a statement that the certified or registered interpreter’s identification has been verified by the court, and a statement that the interpreter’s oath was administered to him or her, or that he or she has an oath on file with the court, as specified. Requires certified or registered interpreters to state similar information for the record in depositions where a judge is not present, as specified.

Changing civil jurisdiction thresholds – Part 1

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result. This series examines the existing thresholds and the legislative efforts to change them over the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Alabama to Georgia below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 1

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Most state constitutions grant their court of last resort, typically called the “supreme court”, or their judicial council some degree of rulemaking authority. My colleagues here at the National Center have a listing of all such provisions here. In the last several years, however, legislatures have made efforts to amend or alter those provisions. This series will examine all such efforts and how they have fared.

Alabama to Georgia below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

CA: Vote today on bill to limit trial courts’ ability to contract out/”privatize” work; similar bill vetoed last year

The California Senate Judiciary is set to vote today on a bill that would restrict the ability of the state’s trial courts (Superior) to issued contracts for work. AB 2332 of 2014 lays out many of the same restrictions as AB 566 of 2013 which was vetoed; Governor Gerry Brown in his veto message express concern “it requires California’s courts to meet overly detailed and – in some cases – nearly impossible requirements when entering into or renewing certain contracts.”

Under AB 2332 of 2014 the courts would have to meet many of the same requirements as AB 566 of 2013 before being allowed to contract out services. According to the legislative analysis of the bill that would mean:

  • the trial court must clearly demonstrate that the contract will result in actual overall cost savings to the trial court for the duration of the entire contract as compared with the trial court’s actual costs of providing the same services, as specified;
  • the contract must not be approved solely on the basis that savings will result from lower contractor pay rates or benefits, except contracts are eligible for approval if the contractor’s wages are at the industry level and do not undercut trial court pay rates;
  • the contract cannot cause an existing trial court employee to incur a loss of his or her employment or employment seniority, a reduction in wages, benefits, or hours, or an involuntary transfer to a new location requiring a change in residence;
  • the contract cannot be approved if, in light of the services provided by trial courts and the special nature of the judicial function, it would be inconsistent with the public interest to have the services performed by a private entity;
  • the contract must be awarded through a publicized, competitive bidding process;
  • the contract must include specific provisions pertaining to the qualifications of the staff that will perform the work under the contract, as well as assurances that the contractor’s hiring practices meet applicable nondiscrimination standards;
  • the contract must provide that it may be terminated at any time by the trial court without penalty if there is a material breach of the contract and notice is provided within 30 days of termination;
  • the term of the contract shall not be more than five years from the date on which the trial court approves the contract; and
  • if the contract is for services over $100,000 annually, the contract must include certain audit-related provisions, and the trial court must (1) meet certain auditing requirements, as specified, and (2)require the contractor todisclosea description ofall of the following as part of its bid, application, or answer to arequest for proposal:
    • all charges, claims, or complaints filed against the contractor with a federal, state, or local administrative agency during the prior 10 years;
    • all civil complaints filed against the contractor in a state or federal court during the prior 10 years;
    • all state or federal criminal complaints or indictments filed against the contractor, or any of its officers, directors, or managers, at any time; and
    • any debarments of the contractor by a public agency or licensing body at any time.