California Senate approves plan for certification of electronic court records, destruction of paper ones

With the transition from paper-centric courts to ones focused on e-documents, about 700+ years of law and jurisprudence is coming up against modern technology. For court clerks, who’ve been focused on maintaining the paper record, this could mean the ability to economize space, but for the fact that most state statutes require paper. California’s on the verge of moving a step closer to allowing for move away from paper with adoption of AB 1352 of 2013.

The bill, as passed by the Senate on August 19, reduces the amount of time the clerk of court must hold onto physical paper documents. For example under current law (Government Code 68152(c)(7)) documents related to mental health must be kept for 30 years; under AB 1352 that drops to either 10 or 20 years.

AB 1352 also allows a court clerk to certify a copy of a trial court record by electronic or other technological means, provided the means reasonably ensures that the certified copy is a true and correct copy of the original record.

The Assembly passed a similar version of AB 1352 back on April 15; the Senate added some amendments which expand the list of documents that may be electronically signed or verified to include a writ, subpoena, or other legal process, and incorporate provisions of AB 1167 to that end. The Assembly approved AB 1167 as a stand alone bill on August 8, therefore it is likely they’ll approve AB 1352 which effectively consolidates the two.

California Assembly Committee approves limits on court contracts

Many trial courts contract out at least some services that would otherwise be performed by court staff. In California, the use of such contracts may be curtailed under AB 566 as approved by the Assembly Appropriations Committee last week.

Under the bill trial courts would only be allowed to contract “for any services that are currently or customarily performed by trial court employees” if a series of criteria were met, described in the bill’s official analysis as:

  • The contract may not be approved if, in light of the services provided by the 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 court clearly demonstrates that the contract will result in actual, overall cost savings to the court, considering specified factors
  • The contract savings are not the result of lower contractor pay rates or benefits, provided the contract is eligible for approval if the contractor’s wages are at the industry standard and do not undercut trial court pay rates
  • The contract does not cause existing trial court employees to lose employment
  • The contract is awarded through a competitive bidding process
  • The contract provides for qualified staff, and the contractor’s hiring practicing are nondiscriminatory
  • The contract allows for immediate termination by the trial court, without penalty, for material breach
  • For contracts over $100,000, requires the contract to (i) disclose specified information, (ii) provide measurable performance standards; and (iii) require a performance audit and a cost audit be done and considered prior to any contract renewal
  • The contract is limited to no more than five years

The bill was approved on a 7-2 vote in the Assembly Appropriations Committee on April 9.

California Assembly bill would require disclosure of demographic data on veterans, those with disabilities considered or appointed to judgeships

Starting in 2007, California has required some degree of information and disclosure regarding those who apply to fill a judicial vacancies. Under a new bill introduced in the Assembly, the type of demographic data collected would be expanded.

First, some background.

SB 56 of 2006 requires an annual, aggregated report from three different groups regarding judicial selection starting March 1, 2007

  1. from the governor, who appoints the judges
  2. from the state bar, who evaluates applicants
  3. from state administrative office of the courts, regarding the judges currently sitting in the state

The data was focused under SB 56 of 2006 to two primary categories: the ethnicity and gender of the appointee/applicant/judge.

Under AB 159 of 2007, the data collected was expanded to ethnicity, race, gender. In addition, the state bar was to release information on applicants’ areas of legal practice and employment.

SB 182 of 2012 expanded the data collected further: ethnicity, race, gender, gender identity, and sexual orientation, plus areas of legal practice and employment for the state bar data.

The latest data collection expansion is AB 1005 of 2013 which would require disclosure of data in the aggregate regarding disability (as defined by the Americans with Disabilities Act) and veteran status as defined under federal law (38 U.S.C. 101(2)) of the appointees/applicant/judges.

AB 1005 is currently pending in the Assembly Judiciary Committee.

 

 

Legislatures looking to take away or get involved in supreme courts’ power over bar admission & practice

There’s been a particular uptick in the number of bills and resolutions through which legislatures are attempting to influence of takeover outright who is admitted to practice law in the state. Some, such as the one adopted in California in 2012, merely urge or suggest. Others, such as the two prefiled in New York and South Carolina, change the rules or take the power of the Supreme Court to set them. While few such bills are proceeding out of committee, the increased activity is notable.

2013

New York SB 808 Requires judiciary accept into bar anyone who has graduated from an accredited law school, been admitted to the bar of another state, and has completed 1 year of externship under the direction of a NYS attorney. Prefiled in Senate Judiciary Committee.

South Carolina SB 152 Provides Supreme Court may make rules regarding South Carolina Bar subject to statute. Provides constitutional provision giving Supreme Court power to regulate practice of law is subject to statute. Provides any rule requiring attorney be a member of the South Carolina Bar is superseded and of no force and effect. Prefiled in Senate Judiciary Committee.

2012

California ACR 167 Declares an applicant’s immigration status should not be the determining factor in deciding whether to approve a license to practice law, would commend Sergio C. Garcia for his hard work and success, and would also commend the State Bar of California for its efforts to admit Sergio C. Garcia to the State Bar of California. Approved by Assembly & Senate (Governor’s signature not required).

Florida HB 4055 Repeals provisions prohibiting practice of law by retired justices of state Supreme Court. Approved by full House. Died in Senate.

New Hampshire HB 1474 Prohibits requiring membership in any bar association or other professional organization as a condition for practicing law or for appointment to certain positions. Referred to interim study by full Senate 5/16/12.

New York AB 10669 Requires judiciary accept into bar anyone who has graduated from an accredited law school, been admitted to the bar of another state, and has completed 1 year of externship under the direction of a NYS attorney. Died in committee.

2011

Florida HB 7113 Repeals provisions prohibiting practice of law by retired justices of state Supreme Court. Approved by full House. Died in Senate.

Florida SB 2212 Specifically authorizes Brian Pitts to practice law in the state. Died in committee.

New York AB 2013 Allows graduates of law schools who have achieved a juris doctorate from a law school accredited by a national accrediting agency and who have passed the bar exam and been admitted to practice in another state, to sit for the bar exam in New York State. Died in committee.

Washington HB 1664 / HJR 4216 Transfers all mandatory, regulatory, licensing, and disciplinary functions of the state bar association to the state supreme court. Died in committee.

2010

Florida SB 2696 Grants legislature power over admission and practice of law. Died in committee.

Florida SB 58 Specifically authorizes Brian Pitts to practice law in the state.

New Hampshire HB 1564 Establishes the authority and procedure for the regulation of attorneys by the Supreme Court. Removes the requirement in the election or appointment of the county attorneys that the person be a member of the state bar. Rejected by full House 3/11/10.

New York AB 11339 / SB 7792 Allows graduates of non-ABA accredited law schools admitted to the bar of another state to sit for NY bar exam. Died in committee(s).

2009

Georgia HR 72 Urges the Supreme Court of Georgia to disbar or disallow admission to the bar any attorney who is convicted of altering or backdating a legal document. Died in committee.

South Carolina SB 448 (Constitutional Amendment) Removes Supreme Courts power over the admission to the practice of law and discipline of attorneys. Transfers power to such body as may be created by the General Assembly. Died in committee.

Washington HB 2216 / SB 6025 Transfers all mandatory, regulatory, licensing, and disciplinary functions of the Washington state bar association to the state supreme court. Died in committee(s).

 

Will Texas’ legislature join Alabama & California in mandating judges recuse due to specific campaign contribution limits?

In 2009, the U.S. Supreme Court ruled in Capteron v. Massey that some campaign contributions to judicial candidates can be so high that due process requires the judge recuse. The high court failed to specify what amount would trigger recusal, but as I noted in “The Legislature Must Save the Court from Itself”?: Recusal, Separation of Powers and the Post-Caperton World, state legislatures have tried for decades to set specific limits. It now appears Texas’ legislature may join Alabama and California in setting specific recusal limits.

HB 129 of 2013 would require judges of state’s top appellate courts (Supreme Court and Court of Criminal Appeals) recuse if a party, attorney, lawfirm, etc. contributed $2,500 or more to judge’s campaign in last 4 years.

It further provides a way to address funds made via PAC: under a formula an individual’s contribution to the PAC would count as a contribution to the judicial campaign if the PACs total contributions made to all candidates meets (or fails to meet) certain thresholds.  This avoids individuals and firms barred by the $2,5000 limit from simply setting up a PAC which then funnels the money to a campaign anyway.

Five states now have specific contribution levels compelling recusal for at least some of the state’s judges, although most do so via rule of court and not statute.

  • Alabama Code § 12-24-2(c): $2,000 for trial judges, is $4,000 for appellate jurists during “election immediately preceding his or her new term in office”. The statute has never been enforced because no one has sought pre-clearance for the statute under the federal Voting Rights Act.
  • Arizona Code of Judicial Conduct Rule 2.11(A)(4): “The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous four years made aggregate contributions to the judge’s campaign in an amount that is greater than the amounts permitted pursuant to A.R.S. § 16-905.” This appears to mean a $872 limit.
  • California: By statute enacted in 2011 (Code of Civil Procedure 170.1) trial court judges must recuse if their campaign received $1,500 in support of the judge’s last election (if last election was in last 6 years) or in support of an upcoming election. A new rule adopted as Code of Judicial Conduct Rule 3E(5)(j) by the state’s Supreme Court in November 2012 applies a $5,000 limit to contributions for appellate justices.
  • Utah Code of Judicial Conduct Rule 2.11(A)(4):  $50 in prior 3 years. (“The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous three years made aggregate contributions to the judge’s retention in an amount that is greater than $50.”)
  • New York Rules of the Chief Administrative Judge 151: for trial judges, $2,500 from an individual party/attorney/firm OR $3,500 in the aggregate from all parties/attorneys/firms in the prior two years. The rule was adopted in early 2011.

 

 

California Legislative Year in Review: veterans courts & e-courts

One bill affecting the courts approved by the California legislature subsequently vetoed by the governor in 2012 was AB 2611  which would have authorized superior courts to develop and implement veterans treatment courts for eligible veterans of the United States military (details here).

New laws affecting the courts enacted by the California legislature in 2012 include the following:

AB 1529 Modifies provisions of law to reflect trial court restructuring. Deletes obsolete references to municipal courts and would specify the jurisdiction of a writ petition relating to a small claims case in the unified state court system.

AB 2073 ORIGINAL: Authorizes a trial court, by order and at the discretion of the presiding judge, to require parties to eligible civil actions, as specified, to electronically file and serve documents, subject to rules adopted by the Judicial Council and other specified conditions. AS AMENDED: Same, but limited to pilot project in Orange County.

California Governor vetoes veterans’ courts, saying authority to establish them is already in “sound discretion of the courts”

For the third time a California governor has vetoed a bill to create veterans courts in the state. As I mentioned previously similar bills passed by the legislature in 2010 and 2011 had been vetoed with then-Governor Arnold Schwarzenegger and later Governor Jerry Brown. Both cited the state court’s existing authority to create such courts without the need for legislation.

Governor Brown’s veto message on AB 2611 of 2012 reiterates some of those points

I applaud the author’s interest in encouraging courts to focus on helping these offenders 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.

The bill now goes back to the Assembly where it is unclear whether there are the votes for an override.

For third time California legislature approves of veterans courts: will this version get vetoed as well?

Over the course of the last decade, courts have been confronted with an influx of veterans not seen in decades. In order to address the specialized concerns facing vets, individual judges or courts have created “veteran’s courts”; specialized dockets to handle cases involving returning service-members. Simultaneous with such court efforts have been attempts by state legislatures to enact legislation authorizing, or in some cases requiring, the use of such courts.

Several California counties already have veterans courts, but efforts to have a statewide statute for them have been vetoed twice before.

2007

The first legislative attempt was in 2007’s SB 851. THis program authorized the state’s trial courts courts to develop and implement mental health courts, as specified, which may operate as a pre-guilty plea program and deferred entry of judgment program and allows parolee participation in mental health court, as specified. Although not specific to veterans, the bill did call for ensuring “that eligible parolees requiring veterans’ treatment and recovery services outside of their geographic location will be given consideration for those needed services on a case-by-case basis.” SB 851 was vetoed by Schwarzenegger who, while acknowledging the mental health courts were “an important component of public safety and for managing our criminal justice system” vetoed the bill because of the cost as well as his contention that it “allows people who have committed crimes to avoid punishment completely because of a mental health issue.” The Senate failed to override the veto.

2009

AB 1925 of 2009 was  more veteran-specific than the 2007 bill. This version would have authorized the state’s trial courts develop and implement preguilty plea programs, deferred entry of judgment programs, and/or postguilty plea veterans court programs. 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.

2010

AB 674 of 2010, was enacted. Not a statutory veterans court program authorization per se, it did authorize courts to order a defendant who suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of military service into a treatment program or veteran’s courts (already set up by the judiciary in certain counties, as noted above) for a period not to exceed that which the defendant would have served in state prison or jail.

2011

With the election of Jerry Brown as California Governor in 2010, proponents reintroduced AB 674 verbatim as 2011’s AB 201. Brown, like Schwarzenegger before him, vetoed the bill.

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.

2012

The legislation was once again introduced in February 2012 as AB 2611, again with language that was identical to AB 674 of 2009 and AB 201 of 2011. This legislation was given final approval by the legislature on August 27. There is no indication of the bill having been formally submitted to the governor yet or whether it will face the same veto-fate as the others before it.

California: Bill would prohibit the state supreme court from sitting outside Sacramento

Just after Hurricanes Katrina and Rita slammed into the southern U.S. I wrote a piece on a matter which had confronted the Louisiana Supreme Court: could it move and sit in a location other than New Orleans? Some state statutes do appear to restrict where the state’s appellate courts may sit, right down to which building, but California was not among them.

That may change if AB 2501 is adopted. The bill requires all state agencies have their primary administrative office on Sacramento “to the extent practicable”.

The Supreme Court, however, “shall only hear cases in the Sacramento metropolitan area” (defined as “the greater metropolitan Sacramento area, including the City of Sacramento, the County of Sacramento, and the eastern part of Yolo County”).

Even if enacted the bill gives the Supreme Court until 2025 to make the necessary adjustments.

AB 2501 is currently in the Assembly Business, Professions and Consumer Protection Committee.

Showdown in California Assembly over Judicial Council’s budgetary power over state’s courts set for next week

Angst and anger at the California Administrative Office of the Courts and the constitutionally-established Judicial Council will be coming to a head next week in the state’s Assembly. Under AB 1208, much of the Judicial Council’s power over local court budgeting and policy would be curtailed or ended with local courts given a veto over budget issues. According to an analysis written by the Assembly, AB 1208

  1. Deletes the existing provision of law that states that the Judicial Council shall retain the ultimate responsibility to adopt a budget and allocate funding for the trial courts and perform specified activities that best assure their ability to carry out their functions, promote implementation of statewide policies, and promote the immediate implementation of efficiencies and cost saving measures in court operations, in order to guarantee equal access to the courts.
  2. Deletes existing provisions which empower the Judicial Council to authorize a trial court to carry unexpended funds over from one fiscal year to the next, and instead provides that unexpended funds shall be the funds of that trial court, which may carry those unexpended funds over from one fiscal year to the next. Prohibits those funds from being reallocated or redirected without the consent of the management of the trial court.
  3. Requires the Judicial Council, or its designee, to allocate 100% of the funds appropriated for support of trial court operations according to each court’s share of statewide operational funding. Provides that all funds, once allocated, are funds of the trial court, and authorizes courts to transfer funds between functions, line items or programs as directed by management of the trial court.
  4. Deletes existing provisions relating to the manner in which the Judicial Council allocates funding for trial court operations, and instead requires that the amount allocated to each trial court from the amount appropriated for trial court operations be equal to the pro rata share of the prior fiscal year’s adjusted base budget, except as provided.
  5. Requires the Legislature, based on the information submitted in the Governor’s proposed budget, and prior to the allocation of funds to each local trial court, to specify, in each annual Budget Act, the funding amounts to be allocated for programs of statewide concern from the total funds appropriated for trial court operations by the Legislature.
  6. Prohibits the Judicial Council, or its designee, from withholding or expending any portion of the total funds appropriated for trial court operations by the Legislature for any statewide information technology or administrative infrastructure program that was not identified in the annual Budget Act, unless the Judicial Council, or its designee, first obtains the written approval of 66 2/3% of a proportional representation of all local trial courts as determined by the number of judges in each court.

Introduced in 2011, the bill has been stalled since May of last year, however time is running out. The state’s constitution (Art. IV, Sec. 10(c)) requires bills introduced in the first year of a legislative session be adopted by its originating house by January 31 of the second year. This is confirmed by the Assembly’s own deadline calendar as being Tuesday of next week.