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.”

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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.

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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.

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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.

Louisiana and California legislative committees approve bills to require courts report how often they are punishing lawyers for filing frivolous cases/pleadings

Plans in California and Louisiana to require courts report how often they are penalizing attorneys and parties for frivolous filings are advancing through the committee process.

The California proposal first discussed here takes the form of AB 2494 as amended. It would resurrect a statute the expired in 1994 (Code of Civil Procedure 128.5) regarding punishment and sanctions for frivolous “actions or tactics” and require the courts, through the state’s Judicial Council, report out on punishments.

On or before June 30, 2018, the Judicial Council shall submit a report to the Legislature examining the impact and effect of this act, including the number of motions made under both Sections 128.5 and 128.7 of the Code of Civil Procedure, the number of motions made pursuant to those sections resulting in an award of sanctions, the nature and amount of any sanctions awarded pursuant to those sections, and whether or not the enactment of Section 128.5 of the Code of Civil Procedure in this act has had a demonstrable effect on reducing the frequency and severity of bad faith actions or tactics that would not be subject  to sanction under Section 128.7 of the Code of Civil Procedure.

AB 2494 was approved by the Assembly Appropriations committee on a 17-0 vote on May 23.

The Louisiana legislative plan (HCR 137) first discussed here two weeks ago is similar to the California bill. HCR 137 requests the Judicial Council of the Supreme Court of Louisiana to gather information in order to determine the frequency and effectiveness of judicial enforcement of sanctions for filing
pleadings that violate Code of Civil Procedure Article 863(B). Where the original HCR 137 used the word “frivolous” three times in the text, the amended version dropped that word and replaced it with specific reference to CCP 863(B) which covers more than just “frivolous” filings and encompasses filings made for an “improper purpose”, that lack “evidentiary support”, or that fail to meet several other criteria. The amended bill was approved 14-0 by the House Judiciary Committee on May 22.

 

And now California’s Assembly wants a report from the courts on punishments for bad faith/frivolous filings, too

I mentioned just an hour or so ago about an effort in Louisiana to have the state’s courts report on how often parties or attorneys are punished for filing frivolous cases. California’s Assembly Judiciary Committee gave its approval earlier this week to a similar request.

AB 2494 as amended would resurrect an existing statute (Code of Civil Procedure 128.5) regarding punishment and sanctions for frivolous “actions or tactics…on or before December 31, 1994.” Another provision of law (Code of Civil Procedure 128.7) contends with what happened starting January 1, 1995.

AB 2494 bill would reinstate CCP 128.5 with modifications to authorize a court to award reasonable expenses incurred as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. The authorization would last only until 2018.

The amended version of AB 2494 also makes a call similar to the one in Louisiana for courts through the states respective Judicial Councils to the produce data on how often attorneys and parties are sanctioned for bad faith filings.

On or before June 30, 2018, the Judicial Council shall submit a report to the Legislature examining the impact and effect of this act, including the number of motions made under both Sections 128.5 and 128.7 of the Code of Civil Procedure, the number of motions made pursuant to those sections resulting in an award of sanctions, the nature and amount of any sanctions awarded pursuant to those sections, and whether or not the enactment of Section 128.5 of the Code of Civil Procedure in this act has had a demonstrable effect on reducing the frequency and severity of bad faith actions or tactics that would not be subject  to sanction under Section 128.7 of the Code of Civil Procedure.

Bills expanding use of court interpreters advancing in California, Illinois, and Rhode Island

Bills expanding the use of court interpreters have advanced in three states in the last 10 days.

In California the Assembly Judiciary Committee approved AB 1657, a bill that would expressly authorize the court to provide a court interpreter in any civil action or proceeding at no cost to the parties, regardless of the income of the parties. The bill would require interpreters to be provided in accordance with a specified order of priority, if sufficient funds are not appropriated to provide an interpreter to every party who needs one. AB 1657 was approved 10-0 by the Assembly Judiciary Committee on April 28 and 17-0 by the Assembly Appropriations Committee on May 7.

At almost the same time as the California Assembly Appropriations vote, the full Illinois Senate approved SB 977 to create a 2-year pilot program for the use of court interpreters for jurors in the state’s five largest counties (Cook, Lake, DuPage, Kane, and Will). The bill provides

if any juror’s predominant language is not English, the juror may be accompanied by an interpreter. In the case of a non-English speaking juror, the interpreter shall be available throughout the actual trial and may accompany and communicate with the juror throughout any period during which the jury is sequestered or engaged in its deliberations.

SB 977 then requires the court set reasonable fees for the interpreter out of county funds and that the Administrative Office of the Illinois Courts is to monitor and report out on the program.

The third item that recently moved was Rhode Island’s HB 7306. As approved by the House on April 30. HB 7306 rewrites three key provisions related to court interpreters.

The first modified a legislative policy declaration that favored court interpretation only in certain courts in dealing with criminal matters.

It is hereby declared to be the policy of the state of Rhode Island to guarantee the rights of persons who, because of a non-English speaking background, are unable to readily understand or communicate in the English language, and who consequently need the assistance of an interpreter be fully protected in legal proceedings in criminal matters before the Rhode Island superior court, the Rhode Island district court, and in juvenile matters in the Rhode Island family court unified state court system.

Other references throughout various statutes discussing interpretation only in the context of criminal proceedings would also be amended out or repealed.

The second removes references to “non-English speaking person” and replaces with a newly defined term “limited English proficient person”

Current law: A “non-English speaking person” means any person who can not readily speak or understand the English language and whose native language is either Spanish, Portuguese, Cape Verdean or Cambodian.

Proposed new law: A “limited English proficient person” means any person whose primary language is not English and who does not have the ability to adequately understand or communicate effectively in English.

The definition on “qualified interpreter” (as opposed to a certified interpreter) would also change from “a person who through experience and training is able to translate a particular foreign language into English but who does not have a state certification” to “a person who is able to interpret simultaneously and consecutively and sight translate from English into a foreign language and from said language into English but who is not certified.”

The third shifts responsibility for certification of interpreters. Presently “the state department of higher education in cooperation with the supreme court shall promulgate regulations which establish standards, criteria and testing methods for the certification of foreign language interpreters“. HB 7306 removes references to the state department of higher education, providing instead “the administrative office of the courts with the approval of supreme court shall promulgate standards, criteria and testing methods for the certification of foreign language interpreters…”

California Legislative Year in Review: Mandatory judicial training for LGBT issues, governor vetoed 2 court-related bills

Law

AB 1005 Requires governor and state bar report number of applicants for judicial office that are veterans or those with disabilities. Requires AOC report how many judges currently in office are veterans or disabled.

AB 1167 Includes as a “court record” a writ, subpoena, or other legal process that may be signed and verified using a computer or other technology.

AB 1293 Adds until 2019 a new $40 fee for filing a request for special notice in some probate matters.

AB 1352 Clarifies that time periods to destroy court documents and records commence after the date of final disposition of the case.

AB 868 Requires Judicial Council train judges and judicial officers on the effects of gender identity and sexual orientation on family law proceedings. Requires training on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth.

SB 13 Specifies that the Judges’ Retirement System I and the Judges’ Retirement System II are not required to adopt the defined benefit formula contained in other provisions for nonsafety and safety members.

Resolution

ACR 36 Encourages creation of veterans courts.

Vetoed

AB 566 Requires, until January 1, 2020, a court to comply with specified requirements before contracting out services currently or customarily performed by that court’s trial court employees. Provides requirements for contracting work and exceptions.

AB 1127 Requires that on or before March 1, 2014, the Judicial Council shall establish the California Language Access Task Force, which shall be responsible for developing a comprehensive statewide Language Access Plan (LAP) for use by courts to address the needs of limited-English-proficient individuals.

 

CA legislature mandates state judges learn about LGBT & gender identity issues; concern expressed over separation of powers

Yesterday California Governor Jerry Brown signed into law AB 868, a bill that requires all judges in family and juvenile law proceedings in the state be trained on the effects of gender identity and sexual orientation on such proceedings. It further requires judges receive training on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in such proceedings. The state’s Judicial Council is required to come up with the training and implement it.

A hearing occurred before the Senate Judiciary Committee on June 11. Proponents argued the need for judges to be aware of the unique challenges faced by LGBT youth. The state’s Judicial Council expressed no position on the bill but did raise separation of powers concerns over the legislature mandating specific judicial training programs and interfering in a co-equal branch.