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.

Special Edition: 2012 Ballot and the Courts

While a great deal of focus is already being drawn to the 2012 presidential elections, next year is set to be an incredibly busy year for ballot items related to state courts.

This special edition of Gavel to Gavel released today looks at those items as well as those currently circulating for signatures.

Colorado bill would create judicial public access system advisory board

Colorado’s Judiciary has had a Public Access System (PAS) and Electronic Filing System (EFS) for years. According to their website “Over the next two years, the Colorado Judicial Branch’s PAS/EFS team will build a new electronic filing system that will replace the Branch’s current e-filing vendor by January 2013.”

Enter Colorado HB 1282 of 2011.

The bill specifically provides a statutory obligation for the judicial department to provide a public access system for certain court records that direct-paying users and nonpaying users can access remotely. The bill prohibits the judicial department from restricting a direct-paying user from replicating the information on its system.

The bill also creates a Judicial Public Access System Advisory Board to govern the aforementioned system. The board would set the price schedule for access by direct-paying users and approve any changes to the schedule, determine what information will be available through the system and in what form it will be available, and address any other matter relevant to the system.

The board itself would consist of 9 members, including 4 legislators, 1 office of information technology (executive branch) staff member, 2 judicial department employees, and 2 vendors. The 2 judicial department employees (one of whom would chair the board) and 2 vendors would be selected by the chief justice.

The bill is currently pending in the House State, Veterans, & Military Affairs committee.

Cross-posted to Court Technology Bulletin.

Colorado Chief Justice delivers State of the Judiciary: “I have not come here today to present budgetary needs.”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

With the adoption of HJR 1103 of 2011 the Colorado House and Senate met in Joint Session on January 14 to hear the State of the Judiciary Address from Chief Justice Michael L. Bender.

Highlights of the Chief Justice’s speech (full text here) included:

[John] Adams’ point rings true today — to have a government that secures liberty and freedom, all branches of the government must be obedient to the law. Our government is not founded upon the good wishes and desires of individuals because, as Adams noted, individuals cannot be counted on to “prefer the public good before their own.”

As Chief Justice, I stand before you as representative of the seven justices, as well as the judiciary as a whole. I was elected to serve as chief by my peers and began a little less than six weeks ago, so the job is a little new to me.

Although adequate resources for court and probation functions are critical, I have not come here today to present budgetary needs. Instead, I will share some accomplishments, describe meeting the challenges posed by a struggling economy, and explain my goals for strengthening the judiciary.

Our greatest strength is our people—judges, magistrates, administrators, probation officers and clerks.

I would be remiss in not emphasizing that the resources provided by the General Assembly over the years have fully supported our mission. No matter how capable our judges, they cannot be effective unless adequate resources are provided. But there is no question that the economic downturn of the last few years has impacted all branches of government. Despite diminished resources and increasing demands, we have strengthened the operation of the courts by increasing efficiency.

As you know, we are in the process of building a statewide e-filing system for all cases, which will increase our efficiency and yield additional revenue. With your support, Colorado continues to lead the nation in court technology applications, as evidenced by the development and implementation of our public access system last year.

We continue to ensure quality and integrity within our court system. For example, we have been pioneers in the establishment of jury reform and the establishment of over 60 community problem solving courts across the state—these include veterans trauma, adult and juvenile drug, family dependence and neglect, DUI, adult and juvenile mental health, and truancy courts.

Access to the courts is also affected by the rapidly rising numbers of parties in marital dissolutions who cannot afford legal representation. These unrepresented parties, especially those with children, need legal advice and counseling.

Employee morale is critical. I don’t need to tell you how devastating job cuts and hiring freezes can be. The cuts we’ve made branch wide have fostered feelings that the work done in the local courts is not fully appreciated.

We, as judges, need to expand our efforts to educate the public about what we do and what the rule of law means to the Judiciary. The educational outreach program “Our Courts,” initiated by Court of Appeals Judge Russell Carparelli and Federal District Court Judge Marcia Krieger and supported by the Colorado Bar association and the Colorado Judicial Institute, needs our full support.

Before I close I want to talk a little about our new building. Thank you again General Assembly for your bipartisan support in championing this project. The Ralph L. Carr Colorado Judicial Center, which is being built without any general fund impact, will be finished in the spring of 2013. This center will house our appellate courts, the State Court Administrator’s Office, the Attorney General’s Office and other state legally related entities.

CO: Legislature asks for Supreme Court opinion on Citizens United

While generally courts are permitted to entertain only cases and controversies, several states allow their Supreme Court to issue advisory opinions. Colorado’s Constitution gives its Supreme Court the power to weigh in “upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives”.

Colorado’s Governor made such a request on February 9 in response to the U.S. Supreme Court’s decision in Citizens United. The request paid specific attention to a provision in Colorado’s constitution that states “it shall be unlawful for a corporation or labor organization to provide funding for an electioneering communication; except that any political committee or small donor committee established by such corporation or labor organization may provide funding for an electioneering communication.”

Although the governor alone could have asked for a Supreme Court advisory opinion, both chambers of the state’s legislature added their request through HJR 1011 on February 10. The joint resolution found the questions posed by the governor of “extreme importance and public interest [and] that it is essential that an immediate determination be secured…”