State-by-State 2011 Legislative Year in Review: California

New laws or resolutions affecting the courts enacted or adopted by the California legislature in 2011 include the following:

AB 110 Deletes language that triggers reductions in existing civil filing fees when the General Fund transfer to the Trial Court Trust Fund decreases in excess of 10% from the amount appropriated in the 2010-11 fiscal year, as specified. Creates a responsive filing fee for appeals of $325, modeled after similar fees in other states, to support appellate court operations. Appellate courts are disproportionately impacted by the budget reductions, as past court budget mitigation has focused on offsetting impacts to trial courts. Delays a study on the “default prove-up” process, which pertains to collections cases, by 2 years (from September 30, 2011, until September 30, 2013).

AB 118 Shifts charge on all criminal convictions for court security to instead go towards funding court operations. Creates Local Revenue Fund 2011 in the State Treasury. Creates the Trial Court Security Account within the Local Revenue Fund 2011 to fund trial court security provided by county sheriffs.

AB 126 Would require each member of the designated agency of the State Bar responsible for evaluation of judicial candidates to complete a minimum of 60 minutes of training in the areas of fairness and bias in the judicial appointments process at an orientation for new members, and an additional 60 minutes of that training during his or her service on that agency if the member serves more than one term. Revises the provision requiring the Governor, the designated agency, and the Administrative Office of the Courts to collect and release specified demographic data annually, as described above, to specifically require that the information be for the prior calendar year. Requires, with respect to the collection and release of demographic data, the State Bar and the Administrative Office of the Courts to use specified ethnic and racial categories, as those categories are defined by the United States Census Bureau for the 2010 Census for reporting purposes.

AB 973 Requires a trial court to also provide notification by electronic distribution to individuals who have subscribed to the court’s electronic distribution service. Requires those required notifications to include information on how the public may provide written comments during the 60-day period on the court’s plan for closing a courtroom, or closing or reducing the hours of clerks’ offices. Requires the court to review and consider all public comments received and immediately provide notice to the public and to the Judicial Council if the court’s plan changes as a result of the comments received or for any other reason. Requires, until January 1, 2017, each trial court, prior to adopting a baseline budget plan for the fiscal year, to provide the public notice of, and an opportunity for input on, the trial court’s proposed budget plan, as specified. Requires the court to allow public input by the submission of written comments or by holding a public hearing on the trial court’s proposed baseline budget plan. Requires the court, prior to conducting a public hearing, to make the proposed baseline budget plan available to the public and to provide notice of the hearing date, time, and location, and the opportunity to submit written comment.

AB 1028 Clarifies that both service credit and compensation earnable will be calculated as if a furloughed trial court employee were not subject to furlough for the purpose of determining a retirement allowance.

AB 1102 Includes the Supreme Court, Court of Appeal, superior courts, and the Administrative Office of the Courts within the definition of state agency under the Whistleblower Protection Act. Provides, for purposes of Whistleblower Protection Act, “improper governmental activities” includes violations of a California Rule of Court.

SB 78 Requires Judicial Council report on California Case Management System annually until the completion and full implementation of the project. Requires Council hire outside reviewer to examine program. Creates California Judicial Branch Contract Law, which would apply specified provisions of the Public Contract Code applicable to state agencies and departments to specified contracts initially entered into or amended by judicial branch entities, as defined, on or after October 1, 2011, as provided. Requires contracts to be subject to review by the Bureau of State Audits and all administrative and infrastructure information technology projects of the Judicial Council to be subject to review by the California Technology Agency, as specified. Requires Judicial Council audits of trial courts determine compliance with the California Judicial Branch Contract Law. Keeps $40 fine in criminal proceedings for court security in place until 2013 when it would be reduced to $30. Deletes provisions allowing for additional decrease to $20 in future.

SB 92 AS AMENDED: Requires commencing no earlier than July 1, 2011, and no later than December 15, 2012, the State Auditor establish a pilot program to audit 6 trial courts, and based on the results of the pilot program, on or before December 15, 2013, commence audits of all trial courts, as provided. Requires that on or before December 15, 2013, and biennially thereafter, the State Auditor audit the Administrative Office of the Courts, the Habeas Corpus Resource Center, and the appellate courts. Provides these audits are in lieu of statutory requirement that the State Auditor on his or her assessment of the implementation of certain contracting provisions by the judicial branch.

SB 182 Adds gender identity and orientation to the list of demographic data provided by judicial applicants, nominees, appointees, justices, and judges required to be collected and released by the Governor, the Commission on Judicial Nominees Evaluation (JNE Commission) of the State Bar, and the Administrative Office of the Courts (AOC).

SB 221 Increases small claims from $7,500 (generally) to $10,000 (generally).

SB 264 Repeals requirement that local public agencies file a record of all known or reported injuries incurred by skateboarders in a public skateboard park with the Judicial Council and the Council report on them.

SB 731 Clarifies that the vexatious litigant statute also applies to the Courts of Appeal and that the presiding justice or presiding judge is authorized to designate another justice or judge to act on his or her behalf in exercising the authority and responsibilities under the statute. Authorizes the presiding justice or presiding judge, or his or her designee, to order the clerk to give notice of a vexatious litigant’s status if the clerk mistakenly files the litigation without a prefiling order. Permits a vexatious litigant to file an application to vacate a prefiling order and remove his or her name from the Judicial Council’s list of vexatious litigants, if certain procedural requirements are met.

Ohio Issue 1: Supreme Court Commissions? Courts of Conciliation? Thank (or blame) New York…

While much of the focus regarding Issue 1 has been on the proposed change to the judicial retirement age, Ohio voters will decide on the outright repeal of two sections of the state constitution’s Article 6. Both sections can be traced back to New York’s 1846 constitution.

Courts of Conciliation

Ohio Constitution (1851) Article 6, Section 19

The General Assembly may establish courts of conciliation, and prescribe their powers and duties; but such courts shall not render final judgment in any case, except upon submission, by the parties, of the matter in dispute, and their agreement to abide such judgment.

New York Constitution (1846) Article 6, Section 23

Tribunals of conciliation may be established, with such powers and duties as may be prescribed by law; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference, and agree to abide the judgment, or assent thereto, in the presence of such tribunal, in such cases as shall be prescribed by law.

Provisions for tribunals of conciliation or courts of conciliation can be found in the 1800s constitutions of not only Ohio (1851), but Wisconsin (1848), California (1849), Michigan (1850), Indiana (1851), and North Dakota (1889). They are all taken, almost verbatim, from the 1846 New York Constitution, which for its time was considered revolutionary in terms of judicial proceedings (and also was the genesis for the appellate commissions discussed below).

Courts of conciliation were akin to small claims courts (Minnesota’s small claims courts are still called “conciliation courts”) and arbitration or mediation (statutes in Arizona, California, Montana, and Nebraska reference conciliation courts that focus to amicably resolve martial and domestic relations issues). The report of the debates of the 1851 Ohio Constitutional convention note the intent behind these courts:

This plan of a court of conciliation has many advocates, who desire to see it established. It has been tried in other countries, with excellent effect—greatly diminish litigation and subduing a litigious spirit—a spirit which is the bane of a community. It sets neighbor against neighbor, brother against brother and even father against son, and son against father. Such litigation have I often witnessed, and in some cases seen it prosecuted with an embittered spirit, little short of devilish. Every means which promises only a mitigation if the evil should be employed. The expense and time wasted in such controversies, employing judges, jurors, witnesses, lawyers and suitors, is but a little of the mischief. The monstrous evil consists in the engendering and perpetuating of strife and contention among neighbors, begetting and nursing discord and hatred in families, and in disturbing the harmony and peace of society. A judicious peace loving and peace making officer of this kind may be more useful, far more useful than the first judge of your State, whom you propose to dignify with title of Chief Justice of Ohio.

It should be noted that despite the above ringing endorsement, the provision almost never happened. According to the reports of the debates at the 1851 Ohio Constitutional Convention, the vote to put in the provision was adopted 42-39.

All references to such courts can trace back (constitutionally speaking) to similar courts in Denmark and Norway, the “other countries” alluded to above. Although intended as separate and independent from regular courts, most courts of conciliation instead became divisions of existing courts. For example, a 1909 report indicates Cleveland’s Municipal Court had a Conciliation Division.

According to a history of the New York Constitution, the courts were seldom used because existing laws, with respect to arbitration, were already in place and accessible. In New York, it wasn’t until 1862 that an actual  tribunal of conciliation was set up in a judicial district. The statute authorizing the court was repealed 3 years later. As the Ohio Legislative Service Commission’s review of Measure 1 (then called HJR 1) indicates, Ohio too opted to put in mediation/conciliation practices rather than create free-standing courts.

Supreme Court Commissions

Ohio Constitution (1875) Article 6, Section 22

A commission, which shall consist of five members, shall be appointed by the governor, with the advice and consent of the senate, the members of which shall hold office for the term of three years from and after the first day of February, 1876, to dispose of such part of the business then on the dockets of the supreme court, as shall, by arrangement between said commission and said court, be transferred to such commission; and said commission shall have like jurisdiction and power in respect to such business as are or may be vested in said court; and the members of said commission shall receive a like compensation for the time being, with the judges of said court. A majority of the members of said commission shall be necessary to form a quorum or pronounce a decision, and its decision shall be certified, entered, and enforced as the judgments of the supreme court, and at the expiration of the term of said commission, all business undisposed of shall by it be certified to the supreme court and disposed of as if said commission had never existed. The clerk and reporter of said court shall be the clerk and reporter of said commission, and the commission shall have such other attendants not exceeding in number those provided by law for said court, which attendants said commission may appoint and remove at its pleasure. Any vacancy occurring in said commission, shall be filled by appointment of the governor, with the advice and consent of the senate, if the senate be in session, and if the senate be not in session, by the governor, but in such last case, such appointment shall expire at the end of the next session of the general assembly. The general assembly may, on application of the supreme court duly entered on the journal of the court and certified, provide by law, whenever two-thirds of such [each] house shall concur therein, from time to time, for the appointment, in like manner, of a like commission with like powers, jurisdiction and duties; provided, that the term of any such commission shall not exceed two years, nor shall it be created oftener than once in ten years.

New York Constitution (1869) Article 6, Section 4 & 5

Sec. 4 Upon the organization of the [new] Court of Appeals [New York’s top court], under this article, the causes then pending in the present Court of Appeals shall become vested in the Court of Appeals hereby established. Such of said causes as are pending on the first day of January, eighteen hundred and sixty-nine, shall be heard and determined by a Commission, to be composed of five Commissioners of Appeals, four of whom shall be necessary to constitute a quorum; but the Court of Appeals hereby established may order any of said causes to be heard therein. Such Commission shall be composed of the Judges of the present Court of Appeals, elected or appointed thereto, and a fifth Commissioner who shall be appointed by the Governor, by and with the advice and consent of the Senate; or, if the Senate be not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session.

Sec. 5 If any vacancy shall occur in the office of the said Commissioners, it shall be filled by appointment by the Governor by and with the advice and consent of the Senate; or if the Senate is not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session. The Commissioners shall appoint, from their number, a Chief Commissioner; and may appoint and remove such attendants as may be necessary. The reporter of the Court of Appeals shall be the reporter of said Commission. The decisions of the Commission shall be certified to, and entered and enforced, as the judgments of the Court of Appeals. The Commission shall continue until the causes committed to it are determined, but not exceeding three years; and all causes then undetermined shall be heard by the Court of Appeals.

We take for granted the system in place in 40 states of an intermediate appellate court (usually called the Court of Appeals), however the creation of these courts met with fierce resistance both from voters and, on occasion, state supreme courts. Consider, for example, that Nevada voters have three times in the last three decades rejected the creation of such a court, most recently in 2010 (a fourth attempt may be made in 2014). When Colorado’s legislature made an attempt to create such a court in 1886, the state’s supreme court issued an advisory opinion that the proposed Court of Appeal was an unconstitutional infringement on the Supreme Court’s role as the supreme court of the state (the Supreme Court upheld a different version of the Court of Appeals in 1891).

Ohio and other large states like Texas tried to grapple with this problem through the use of appellate commissions. The appointment of special judicial officers to hear certain motions or matters was, and is, not uncommon. To this day subordinate judicial officers in California trial courts are called “commissioners“.

What made the New York, Ohio, and Texas provisions unique was that they provided for panels of commissioners to sit and render judgments. This avoided the exceptionally untenable situation of creating an intermediate appellate court or adding judges to existing courts which, as noted, had no real political support. The commission idea, however, got the votes in 1869 as part of a massive overhaul of New York’s judiciary article. The provisions appear to have been for the most part duplicated in Ohio (1875) and Texas (1879 by statute) a few years later.

Eventually these commissions fell out of favor for two reasons. First, states large and small simply needed dedicated, permanent intermediate appellate courts to handle the caseload. Second, there was a very real possibility that decisions of the commissions would be in conflict with the courts.

New York got such a dedicated court (the Appellate Divisions) in its 1894 constitution. Ohio got Circuit Courts of Appeals in 1851 consisting of 1 Supreme Court Justice riding circuit and sitting with the judges of the courts of common pleas, but it was not until an 1883 amendment that the Circuit Courts of Appeals consisted of judges specifically elected to serve in those courts. These eventually were made into the modern District Courts of Appeals.

What appellate commissioners remain today (such as in Oregon) are hearing officers who handle motion practice, not panels. Perhaps the only remaining vestiges of the old system are in Ohio’s constitution and North Dakota’s “Court of Appeals” which, despite the name, functions much the same as the commissions did, with panels coming into existence or only being used when the state’s top court is overwhelmed.

 

2011 Western indigent defense legislation

Law

Arizona HB 2377 Continues the State Capital Postconviction Public Defender Office until July 1, 2016.

California AB 118 Defines public safety programs, including public defenders, as local responsibilities. Creates Local Revenue Fund 2011 with District Attorney and Public Defender Account.

Hawaii SB 1073 Increases the amount of the indigent legal services fee surcharge on court filing fees in civil actions. January  2012: trial level – $10 to $35; appellate courts – $25 to $50.  January 2014: trial level – $35 to $50; appellate courts – $50 to $65. Requires Hawaii Justice Foundation to review, on a biennial basis, whether the Indigent Legal Assistance Fund is meeting the civil legal needs of indigent persons, and report its findings.

Idaho SB 1048 Allows governor to select anyone, subject to senate confirmation, to serve as State Appellate Public Defender (currently, may only chose from list submitted by panel consisting of bar president, chairs of Senate and House judiciary committees, appointee of governor and, ex-officio, the chief justice). (see also SB 1117)

Montana HB 96 Allows state public defender to recover costs in cases involving involuntary commitment of a developmentally disabled person when the respondent is determined to have the financial ability to pay for a public defender and a judge orders payment.

Montana HB 97 Transfers supervision of Office of Appellate Defender from Chief Public Defender to Public Defender Commission.

Montana SB 187 Provides if the defendant desires assigned counsel because of financial inability to retain private counsel and the offense charged is a misdemeanor and incarceration is a sentencing option if the defendant is convicted, during the initial appearance the court may order that incarceration not be exercised as a sentencing option if the defendant is convicted. Further provides if the court so orders, the court shall inform the defendant that the assistance of counsel at public expense through the office of state public defender is not available and that time will be given to consult with an attorney before a plea is entered. Further provides if incarceration is waived as a sentencing option, a public defender may not be assigned.” Increases amount of fee to be paid by defendant for representation to various amounts depending on case outcome and severity of crime. Provides, during application and at other points in time, court advise defendant is subject to criminal charges for any false statement made regarding their finances, ability to pay, etc. on the financial statement. Requiring defendant sign affidavit and specifies affidavit must include statement regarding perjury and possible criminal prosecution for false statements regarding finances. Adds as a purpose of state public defender commission “ensure that clients of the statewide public defender system pay reasonable costs for services provided by the system based on the clients’ financial ability to pay”. Requires commission establish and oversee a conflicts office with a conflicts manager responsible for conflicts of interest and for ensuring that cases involving a conflict of interest are handled according to professional ethical standards. Provides new staff positions for the public defender commission may be added only when the public defender account received sufficient revenue pursuant maintain a balance in the account that would sustain any staff position approved by the commission for at least 1 year. Ends requirement that chief public defender serve as secretary to commission. Provides neither the chief public defender nor the chief contract manager may not maintain a client caseload. Requires commission limit number of contract attorneys so they may be meaningfully evaluated and requires commission establish biennial reviews.  Provides contract attorneys may not take any money or benefit from an appointed client or from anyone for the benefit of the appointed client.

Nevada AB 259 Authorizes certain fees to be charged and collected in civil actions be used to support legal services for the indigent in counties whose population is less than 100,000.  Provides in counties over 100,000, $10 of certain fees related to transfer of cases between courts, must be submitted to a program for legal services for the operation of programs for the indigent. Provides $5 collected at the time of recording a notice of default and election to sell must be submitted to a program for legal services for the operation of programs for the indigent.

Oregon HB 2710 Establishes Legal Aid Account in General Fund and directs state court administrator as to funding and distribution of account funds.

Utah HB 272 Requires the court, when making a determination of indigency for a defendant. consider the reasonableness of the fees and expenses charge by privately retained defense counsel.

Approved by one chamber

California AB 259 Allows the appointment to the office of public defender 1) a sitting or retired judge, and as a judge meets specified qualifications, or 2) a judicial commissioner, magistrate, or referee, or elected public official meeting specified qualifications.

Idaho HB 300 Establishes an Access to Justice Fund in the state treasury to assist Idaho Legal Aid Services in providing free legal representation for indigent persons in civil matters and to meet the costs of maintaining the operation of ILAS.  Provides for $10 fee on most civil cases filed in state to pay for Fund.

Nevada SB 26 Provides standards for determining whether the parent or guardian of a child for whom the juvenile court has appointed an attorney is  required to pay for such legal representation or reimburse the county or State for such legal representation.

Died in committee

Arizona HB 2375 Makes an assault on a public defender an aggravated assault.

Hawaii HB 1381 Increases the surcharges on court filing fees in civil actions used to fund indigent legal services : trial level – $10 to $35; appellate courts- $25 to $65.

Montana SB 147 Allows public defender access to jailed persons prior to court appointment.

Nevada AB 49 Establishes the Fund for Legal Defense of Indigent Persons and authorizes certain counties to apply to the Board of Trustees of the Fund for reimbursement of certain extraordinary costs of providing public defender services. Provides for additional administrative assessments or increase is existing assessments for guilty pleas in misdemeanors and in other instances to pay for Fund. Imposes additional sales and use tax and authorizes county commissioners to impose an additional sales and use tax for legal services to indigent persons.

Nevada AB 520 Requires all the compensation and expenses of a court-appointed attorney to be paid from the treasury of the county in which a court appointed the attorney.

Nevada SB 123 Moves Office of State Public Defender  from Department of Health and Human Services to the Office of the Governor.

New Mexico SB 106 Removes Public Defender Department as administratively attached to the Department of Corrections, making it a “stand alone” “adjunct” agency.

2011 Western bail/pretrial release legislation

Note: This was suppose to go out Friday, August 19. Sorry for the delayed posting.

Law

Arizona HB 2355 Redefines various “assessments” with respect to bail as “surcharges”.

Arizona SB 1023 Authorizes adult probation officers, in counties with more than two million, to serve warrants and make arrests on anyone who has violated a condition of pretrial release while under the supervision of the pretrial services division.

California SB 291 Provides that after a person has been brought back to the state by extradition proceedings, the person shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of bail appearing on the underlying arrest warrant. Specifies a 48-hour noticed bail hearing, excluding weekends and holidays, is required to deviate from this prescribed bail amount. Clarifies that nothing in this law is intended to preclude the existing ex parte process for raising bail through an affidavit of a law enforcement officer in a felony or specified misdemeanor domestic violence case, as specified.

Colorado HB 1189 Provides if a person is arrested for driving under the influence or driving while ability impaired and has been convicted of either offense at least
twice previously, the bill requires the court to impose participation in a substance abuse treatment program, electronic monitoring, drug or alcohol testing, and use of an interlock device (if appropriate) as bail conditions.

Wyoming SB 17 Provides that “conditional release” does not include release on bail; probation and parole agents will not supervise individuals on bail.

Introduced with committee and/or floor approval

Alaska HB 175 Makes corrections in the law to conform to the changes in the bail statutes adopted in 2010. Makes conforming amendments to statutes that are in conflict with the bail schedules in the court rules and directly and indirectly amends various rules of court, including the Alaska Rules of Criminal Procedure and Alaska Rules of Administration.

Arizona SB 1611 Prohibits a person from being admitted to bail if the proof is evident or the presumption great that the person is guilty of a class 5 or 6 felony if there is probable cause to believe that the person has entered or remained in the U.S. illegally.

California AB 178 Requires any person released from county jail before sentencing due to a court order or policy to relieve overcrowding to sign a release agreement, as specified; apply the same penalties to a person released under court order or policy to relieve overcrowding and who fails to appear as would apply to a person released on their “own recognizance”; and apply the same penalty enhancement to a person released due to a court order or policy to relieve overcrowding who commits a new felony offense while on release as would apply to a person who commits such an offense while on an “own recognizance” release.

Colorado HB 1088 Provides a law enforcement agency holding a defendant for a felony or class 1 or 2 misdemeanor whom the law enforcement agency has reasonable grounds to believe is present in the country illegally must notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. Requires a court, when considering the amount of bond to set, consider whether there are reasonable grounds to believe the defendant is present in the country illegally.

Colorado SB 186 Permits an alternative bond program to be established in any judicial district. Allows courts to provide the option of the alternative bond program to a defendant if there is such a program in that judicial district. Provides a law enforcement agency may work with an alternative bond program to secure the appearance of defendants in the program. Provides a pretrial services program with an alternative bond program is permitted to expend a portion of the moneys collected for pretrial services.

Hawaii HCR 140 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

Hawaii HR 122 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

New Mexico HJR 20 (Constitutional Amendment) Eliminates right to bail under state’s constitution. Provides bail may be granted or denied by a court based on the flight risk of the defendant, the nature and seriousness of the offense, the danger that would be posed to any person or the community by the defendant’s release, and other factors as provided by law. Eliminates the presumption of no bail in capital cases. Eliminates prohibitions against excessive bail, excessive fines, and cruel and unusual punishment. Eliminates requirement that courts give preference to an appeal from an order denying bail over all other matters.

Washington HB 1194 Provides when a person is arrested and detained for a class A or B felony, a judicial officer must make a bail determination on an individualized basis. Requires courts notify sureties of a defendant’s failure to appear within 14 calendar days of the date on which the defendant failed to appear, rather than 30 days. Provides a surety may surrender a client in a criminal case for good cause and if accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for surrender. Provides if the court finds that good cause does not exist for the surrender, the surety must return the premium paid as well as any recovery fee. Specifies good cause does not include circumstances in which the client failed to make timely payment to the surety for the bond premium. Requires presiding judge of a court notify the Administrative Office of the Courts (AOC) when the court revokes the justification or certification of a bail bond agent to post bonds in the court. Requires AOC notify superior courts and courts of limited jurisdiction statewide or revocation.

Washington SB 5056 Subject to the availability of funds, requires Administrator for the Courts provide superior courts and courts of limited jurisdiction access to the risk assessment tool developed by the Washington State Institute for Public Policy (WSIPP). Subject to the availability of funds, requires Washington State Center for Court Research (WSCCR) research, evaluate, monitor, and report on the validity of the risk assessment tool to ensure the predictive value of the tool. Requires every two years WSCCR submit a report and recommendations regarding the validity of the risk assessment tool to the Governor, the Supreme Court, and the Legislature. Provides a court may, in its consideration of pretrial release or detention, issue an order requesting information related to mental health services that a defendant has received. Limits information that may be requested to information related to violent acts. Provides court may delay the setting of bail pending receipt of the information, not to exceed 48 hours. Subject to the availability of funds, requires WSIPP develop and validate a pretrial risk assessment tool to assess whether an individual is likely to fail to appear at subsequent court hearings by December 1, 2011. Requires WSIPP submit a report, describing the methodology for developing and validating the pretrial risk assessment tool and the predictive value of the tool, to the Governor, the Supreme Court, and the Legislature by December 1, 2011. Provides presiding judge of a court must notify AOC when the court revokes the justification or certification of a bail bond agent to post bonds in the court. This notice must include the reasons for revocation. Provides once AOC receives the information it must notify superior courts and courts of limited jurisdiction statewide. Requires AOC develop a model form that law enforcement and jails may use to collect information about persons arrested or held in custody so that courts have more information at the bail hearing, including any history of domestic violence, protection orders known to law enforcement or the facility holding the person, and input from individuals reasonably believed to be a victim of the person in custody regarding pretrial release determinations.

Introduced with committee rejection

n/a

Introduced with other or no activity

California AB 1264 Repeals the uniform countywide schedule of bail. Establishes Statewide Bail Commission to prepare, adopt, and annually revise a statewide bail schedule for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.

Hawaii HB 401 Creates task force to reduce contact with the criminal justice system to examine various issues, including increasing options for cost-effective pretrial release, with consideration given to enrollment and participation in an appropriate social services or treatment program.

Idaho SB 1119 Requires bail agents to collect all of the premium on the surety bail bonds they write at the time the defendant is released from custody.

Nevada SB 217 Requires each pretrial release agency prepare a register to be made available to the public that contains certain information regarding the cases and defendants who are recommended for release by the pretrial release agency and submit an annual report containing certain statistical information regarding the operations of the pretrial release agency during the preceding calendar year.

California bills to emphasize, track judicial diversity advancing

A great deal of emphasis has placed on obtaining diversity of the U.S. Supreme Court bench with more and more interest being paid to state courts as well. Two bills seek to better quantify diversity for the California judiciary and those chosen (or not) to become a judge.

On the Assembly side, AB 126 of 2011 requires the Governor to post on his/her Web site the names of all persons to whom the Governor (or his/her representatives) has provided judicial application materials in order to determine whether to submit the applicant’s application to the State Bar for evaluation, or to assist the Governor in the decision of whether an applicant should be appointed as a judge after he/she has been evaluated by the State Bar. The bill also requires members of the State Bar’s Commission on Judicial Nominees Evaluation to complete a minimum of two hours of training annually in the areas of fairness and bias in the judicial appointments process. Finally, the bill requires the State Bar, in collecting and releasing statewide demographic data on all judicial applicants*, and the Administrative Office of the Courts, in collecting and releasing demographic data on justices and judges*, to use specified ethnic and racial categories.

AB 126 passed the Assembly May 23, the Senate Judiciary Committee June 14, and the Senate Appropriations Committee June 23. It is currently in the Senate third reading file.

On the Senate side, SB 182 of 2011 adds gender identity and sexual orientation to the list of self-reported demographic data required to be collected and released by the governor, the Judicial Nominations of the State Bar (JNE) Commission, and the Administrative Office of the Courts (AOC). As under existing law*, providing the specified information would be strictly voluntary, and any release of the data must be in the form of aggregated statistical data and cannot identify any individual applicant, appointee, justice, or judge. The bill also specifies that in the year following a general or recall election in which a new governor will take office prior to March 1, the departing governor must provide to the incoming governor all of the demographic data collected for the previous year. The bill would require that the incoming governor then becomes responsible for releasing that provided data as well as any demographic data collected by the incoming governor, if any, prior to March 1.

SB 182 passed the Senate on June 1, the Assembly Judiciary Committee June 21, and the Assembly Appropriations Committee July 6. It is currently in the Assembly third reading file.

*Existing law already requires the state’s governor and bar, when selecting nominees to fill judicial vacancies, record and report demographic data (Gov’t Code 12011.5(n))

(A) The Governor shall collect and release, on an aggregate statewide basis, all of the following:

(i) Demographic data provided by all judicial applicants relative to ethnicity, race, and gender.
(ii) Demographic data relative to ethnicity, race, and gender as provided by all judicial applicants, both as to those judicial applicants who have been and those who have not been submitted to the State Bar for evaluation.
(iii) Demographic data relative to ethnicity, race, and gender of all judicial appointments or nominations as provided by the judicial appointee or nominee.

(B) The designated agency of the State Bar responsible for evaluation of judicial candidates shall collect and release both of the following on an aggregate statewide basis:

(i) Statewide demographic data provided by all judicial applicants reviewed relative to ethnicity, race, gender, and areas of legal practice and employment.
(ii) The statewide summary of the recommendations of the designated agency of the State Bar by ethnicity, race, gender, and areas of legal practice and employment.

(C) The Administrative Office of the Courts shall collect and release the demographic data provided by justices and judges described in Article VI of the California Constitution relative to ethnicity, race, and gender, by specific jurisdiction.

California: What does the Judicial Council have to do with skateboard parks? Soon, maybe nothing.

Since 1995, California has enacted a series of laws related to the safety of its skateboard parks. The first, SB 1360 of 1995, prohibited a park operator from permitting skaters who did not wear a helmet, elbow pads, and knee pads. Starting in 1997, the Judicial Council became involved, when AB 1296 required local public agencies maintain a record of all known or reported injuries incurred by skateboarders in a public skateboard park and file them with the Judicial Council annually. The Council was then to submit a report this information to the legislature in March 2000. All provisions related to the Judicial Council were suppose to have been automatically repealed in 2003, by SB 994 of 2002 extended the filing requirements to 2008 and required another report in 2007 and SB 1179 of 2006 extended it again to 2012 with a report due in 2011.

SB 264 of 2011 seeks to end the nearly 15 years of involvement of the Judicial Council in skateboard parks. Instead, the records of injuries in  (and now, claims/lawsuits against) the skate parks would be  filed annually with the Assembly Committee on Judiciary and the Senate Committee on Judiciary.

SB 264, with amendments, was approved by the Senate Committee on Judiciary on May 2 and now goes to the Senate Committee on Appropriations.

Judicial Retirement Plans/Pensions 2011: Western States

California SB 503 Limits to one-time written election the option of a member of the The Judges’ Retirement System II to make contributions, and receive service credit for, all of the time he or she served as a full-time subordinate judicial officer, prior to becoming a judge, excluding any period of time for which the judge is receiving, or is entitled to receive, a retirement allowance from any other public retirement system. Authorizes the judge to make contributions to, and receive service credit for, any number of whole years or all of the time he or she served as a full-time subordinate judicial officer.

Hawaii HB 1038 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii HB 1142 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii SB 1265 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii SB 1341 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Michigan HB 4223 Requires Judges Retirement System invest at least 5% in Michigan businesses.

Michigan  HB 4484 Eliminates tax exemption for judicial pensions. Provides that distributions from employer contributions, earnings on those contributions, and distributions from employee contributions and earnings on those employee contributions would be subject to state tax, as of January 1, 2012. (Currently, they are exempt from state, county, municipal, or other local taxes.) Requires an employer to contribute four percent of salary to a participant’s Tier 2 (defined contribution system) account. Allows an employee to contribute up to three percent of salary to the account and requires the employer to match the amount contributed by the employee.

Minnesota HB 1256 & SB 813 Changes member contribution rates for judicial retirement system: 8% (present – July 2011), 11% (July 2011 onward). Changes employer contribution rates for judicial retirement system: 20.5% (present – July 2011), 17.5% (July 2011 onward).

Montana HB 70 Requires separate investment fund must be maintained for judges’ retirement system apart from any other retirement system.

Montana HB 608 Closes judicial and all other retirement systems and provide for annuity benefit program for judges elected after July 2012.

Nevada SB 436 Transfers the responsibility to deposit certain money for the purpose of paying pension benefits to justices of the Supreme Court or district judges from the State of Nevada to the Court Administrator.

New Mexico HB 58 ORIGINAL: Provides that certain amounts of the civil docket and jury fees be deposited into the General Fund. Provides contributions to judicial and magistrate retirement be provided from the General Fund. Increases contributions to judicial and magistrate retirement funds. AMENDED: Same, but strikes existing law that defines “judicial retirement fund” as including” docket and jury fees of metropolitan courts, district courts, the court of appeals and the supreme court.”

New Mexico HB 468 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico HB 628 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 88 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 248 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 268 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act pla

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.

Judicial Retirement Plans/Pensions: Western States

California AB 399 Requires, for the Judges’ Retirement System and the Judges’ Retirement System II, that calculations of retirement benefits and Extended Service Incentive Program benefits for any judge who voluntarily waives salary, as described above, include salary and contributions that would have been paid had the judge not done so, and that the state pay costs that result from the increased benefits and monetary credits. Signed into law by Governor 10/11/09.

California AB 590 Requires that a person who is retired under the Judges’ Retirement System who is again appointed or elected to serve as a judge reinstate from retirement and become a member of the system, as specified. Revises provisions governing the payment of accrued, unpaid allowances in both judges’ retirement systems to provide for their payment to either the estate of the deceased or the duly authorized representative of the estate when the court receives a court order appointing an executor, administrator, or personal representative. Provides if the estate does not require probate, the bill would also authorize the payment to be made to a successor trustee, or to a beneficiary of the deceased named in a valid will, as applicable. Signed into law by Governor 8/5/09.

Utah SB 130 Repeals allocation of certain small claims fees to the Judges’ Retirement Trust Fund. Signed into law by Governor 3/22/10.