2011 Northeast indigent defense legislation

Law

Connecticut SB 38 Exempts from disclosure under the Freedom of Information Act (FOIA) personnel, medical, or similar files of current or former employees of the Division of Public Defender Services to people in the custody or supervision of the Department of Correction (DOC) or confined in a facility of the Whiting Forensic Division of Connecticut Valley Hospital. Requires public agencies to waive any fees for providing records requested under FOIA if the requestor is a member of the Division of Public Defender Services or court-appointed special assistant public defender and certifies that the records pertain to his or her duties. Specifies that, for purposes of FOIA, the Division of Public Defender Services is considered to be a judicial office. (By law, a judicial office is subject to FOIA only with respect to its administrative functions.)

Maine SB 182 Specifically states which decisions of the executive director of the Maine Commission on Indigent Legal Services must be subject to an appeal process for attorneys aggrieved by such decisions. Specifies method of appeal of such decisions by executive director.

Maine SB 189 Makes certain records in the possession of the Maine Commission on Indigent Legal Services confidential.

New York AB 7932 / SB 5474 Exempts legal aid societies and bureaus and other entities that provide indigent representation from the fees charged by the Department of Motor Vehicles for record searches and copies of documents.

Adopted Resolution

Maine HB 451 Grants emergency approval to changes to Eligibility Requirements for Specialized Case Types, as provisionally adopted by Maine Commission on Indigent Legal Service.

Approved by one chamber

New Jersey AB 3324 / SB 2233 Permits early termination of one-year terms of municipal court public defenders when two or more municipalities enter into agreements to establish joint municipal courts or shared municipal courts. Approved by full Senate. In Assembly Judiciary Committee.

New York AB 7857 / SB 3269 Authorizes public defenders, legal aid societies, and administrators of assigned counsel plans to have access to the Division of Criminal Justice Services’ criminal history records for use in connection with the representation of public defense clients. Approved by full Assembly. In Senate Finance Committee.

Active/Carried over into 2012

Massachusetts SB 748 Removes power of courts to approval fees/costs associated with defense in criminal cases, juvenile delinquency proceedings and youthful offender cases. Requires submission of costs to committee for public counsel services rather than clerk of court. Requires approval of costs associated with defense be made by committee for public counsel services.

Massachusetts HB 3359 / SB 898  Requires judiciary produce report of all criminal and delinquency cases initiated in the courts of the commonwealth during fiscal year 2011, including number of cases in which public defender appointed. Requires parity between funding of prosecutors and public defenders. Requires all criminal and delinquency cases be “weighted” based on case type to establish budgetary amounts that may be appropriated to the committee for public counsel services to pay for public defenders.

Massachusetts HB 1285 Repeals requirement that counsel appointed or assigned to represent indigents within the private counsel division, except any counsel appointed or assigned to represent indigents within the private counsel division in a homicide case, shall be prohibited from accepting any new appointment or assignment to represent indigents after he has billed 1400 billable hours during any fiscal year.

Massachusetts SB 1446 Converts law school tuition into tax credit if attorney serves as public defender or otherwise practices “public interest law” as defined.

Massachusetts SB 1861 Increases hourly compensation levels/amounts payable to indigent defense counsel by $3-$5 per hour, depending on activity.

Massachusetts SB 848 Repeals law with respect to providing legal services for indigents subject to the sex offender registry classification system.

New Hampshire HB 315 Declares an “impeachable offense” the appointment of an attorney or commitment of public funds for an attorney in connection with the representation of any person, whether indigent or not, except as specifically authorized by the New Hampshire constitution, federal or state law, or mandate of the New Hampshire supreme court. Provides such appointment shall be made only upon application of the person making the request and consistent with rules adopted by the New Hampshire supreme court. Prohibits appointment in any court other than the court in which the appointment is made, except to the extent necessary to preserve or perfect an appeal as mandated by the New Hampshire supreme court.

New Jersey SCR 148 (Constitutional Amendment) Creates Public Defender Services Commission established by the amendment.  Provides Commission to appoint Public Defender (currently, Governor with the advice and consent of the Senate). Locates the Public Defender within the courts but gives it independent status.

New Jersey SR 92 Requests New Jersey Supreme Court require attorneys to perform 50 hours of pro bono service per year or make a monetary contribution to Legal Services of New Jersey.

New Jersey AB 3844 / SB 2768 Prohibits the expenditure of State funds by the Office of the Public Defender or other attorney providing the same services, on cosmetic services for defendants in a criminal trial.

New Jersey SB 1812 Authorizes Office of Public Defender to provide legal representation for child in proceedings after parental rights have been terminated.

New York AB 1310 / SB 3261 Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel.

New York AB 2749 Establishes the New York state public defense commission to oversee the provision of public defense services in the state. Requires commission establish public defense services standards, provide financial assistance to local governments and public defense providers for expenses incurred in providing legal services to the indigent, provide training to persons in the public defense profession and oversee the provision of public defense services in the state.

New York AB 731 Authorizes any legal aid society or other legal services or non-profit organization that provides legal services to indigent clients to have access to EjusticeNY for the purposes of obtaining, where authorized by their clients, access to records necessary for understanding, correction and applying for Certificates of Rehabilitation.

New York AB 7867 Provides funding under the indigent legal services fund for the New York State Defenders Association.

New York SB 5143 Provides funding under the indigent legal services fund for the New York State Defenders Association (not identical to AB 7867)

Died in committee

Maine SB 225 Requires all new courthouses designs include adequate space for attorneys providing indigent legal services.

Vermont HB 232 Allows a municipal public body to go into an executive session in order to consider applications to or awards from a municipal fund for the poor or indigent.

2011 Northeast bail/pretrial release legislation

Law

Maine HB 1029  Adds a new provision addressing the preconviction limitations on a bail commissioner’s authority. Adds a provision requiring that in the preconviction context a bail commissioner specify a court date within 8 weeks of the date of the bail order when that bail order uses one or more release conditions not automatically included in every bail order for pretrial release. Requires that the court and not a bail commissioner set preconviction bail for a crime if: the condition of release alleged to be violated relates to new criminal conduct for a Class C or above crime or specified Class D and Class E crimes. Clarifies that a law enforcement officer may make a warrantless arrest related to anticipated bail revocation or violations of bail conditions.

Maine HB 774 Specifies that persons arrested for juvenile crimes, as well as persons under 18 years of age who are arrested for crimes outside of the Maine Juvenile Code, are not eligible for bail.

Maine HB 951 Allows a court to permit the use of medical marijuana while imposing conditions of a criminal sentence, bail, probation, continuance or other dispositional order.

Maine HB 961 Provides the Chief Judge of the District Court may adopt rules requiring a bail commissioner to appear and set bail regardless of whether the defendant is indigent and unable to pay the bail commissioner’s fee and  may also adopt rules governing the manner in which a bail commissioner is paid in the event an indigent person is released on bail and is unable to pay the bail commissioner’s fee.

New Hampshire SB 63 Amends the criteria for the list of bail bondsmen provided to the courts. Provides that a defendant released pending trial who fails to appear within 45 days of the date required shall forfeit all designated property held by the court to secure such defendant’s appearance.

New York AB 7388 & New York SB 3947 Adds a further, more streamlined, way to determine the value of real property used in a secured bail bond.

Introduced with committee and/or floor approval

New York AB 8158New York SB 5734 Provides the legal definition and requirements for charitable bail organizations organized for the purpose of posting cash bail for poor persons.

New York SB 1414 Requires the court, when determining recognizance or bail in cases of domestic violence, to consider certain enumerated factors which could lead to intimidation or injury by the principal to the victim or witness.

New York SB 259 Allows the court to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail.

Introduced with committee rejection

Maine HB 312 Allows as a condition of bail that all firearms in the possession of the person arrested be relinquished to a law enforcement officer and that the person refrain from possessing a firearm or other specified dangerous weapons until further order of a court. Upon request of the defendant, such a bail condition must be heard by the court as expeditiously as possible.

New Hampshire HB 428 Establishes a procedure for cases in which a court recommends that a defendant participate in a pretrial supervision program at a county correctional facility. Amends the term “peace officer” to read “law enforcement officer” in the statute on default or breach of conditions of bail or recognizances.

New Hampshire HB 473 Imposes a $50 administrative fee on any defendant who fails to make payment of the bail commissioner’s fee within 30 days and requires that a hearing be held prior to the waiver of a fee.

New Hampshire HB 644 Disallows bail for persons in custody until their lawful presence can be verified.

Introduced with other or no activity

Connecticut HB 6171 Provides any bond set by a court as a condition of release for a person charged with a family violence offense shall be paid in full and a promissory note shall not be accepted as an assurance.

Maine HB 388 Establishes as a condition of bail for a person charged with violating a protection from abuse order that the person submit to supervision by an electronic tracking device with specific features.

Massachusetts HB 2155 (by request bill) relative to improving the bail review process

Massachusetts HB 2161 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts HB 2242 (by request bill) require only judges/justices to conduct bail hearings on certain arrested persons with multiple pending felony charges

Massachusetts HB 2243 (by request bill) restricting the issuance of bail for persons arrested as a result of a trial default warrant

Massachusetts HB 2828 (by request bill) increases bail fees

Massachusetts SB 706 (by request bill) relative to probation surrender and bail revocation

Massachusetts SB 791 (by request bill) legislation relative to pre-trial detention

Massachusetts SB 812 (by request bill) eliminate presumed personal recognizance for certain defendants

Massachusetts SB 813 (by request bill) relative to failing to appear in court after release on bail

Massachusetts SB 843 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 845 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 863 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts SB 899 (by request bill) legislation relative to improving the bail review and rendition process

Massachusetts SB 900 (by request bill) relative to bail review

New York AB 2216 & New York SB 829 Requires court review of domestic violence bail applications

New York AB 251 Directs the court to consider certain factors when determining the issuance of an order for recognizance or bail where a principal is charged with a crime against a family or household member, in matters where the court has discretion; and directs the court to consider the danger of intimidation or injury by the principal to a witness.

New York AB 2904 Denies bail for persons charged with driving while intoxicated in certain instances resulting in the death of another person.

New York AB 2976 Allows a superior court to order bail or recognizance for a defendant who has been convicted of a class A-II felony if the defendant is providing, or has agreed to provide material assistance

New York AB 3608 Directs courts to exonerate bail and order recognizance when no grand jury action has occurred for 45 days from arraignment, unless the people show good cause otherwise.

New York AB 4559 & New York SB 4799 Defines the crimes that would lead a defendant to be categorized as a “person who must be committed to the custody of the sheriff” and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances

New York AB 5013 Provides that where a criminal action is pending in a local criminal court or a superior court, the district attorney upon motion, may seek an order from the Appellate Division of the Department in which the action is pending to fix bail whenever he determines the amount of bail as fixed is inadequate or disproportionate.

New York AB 6705 Authorizes and directs courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community.

New York SB 2872 Requires the commissioner of insurance to conduct a study to identify problems and concerns regarding the bail bond business and to present his or her findings to the legislature.

New York SB 2930 Requires the incarceration of a defendant, pending a bail revocation hearing, upon filing of a statement alleging the intimidation of a victim or witness while such defendant was at liberty on bail; requires revocation hearing within 72 hours.

Pennsylvania HB 618 & Pennsylvania SB 510 Provides there shall be no right to bail pending appeal or sentencing for a defendant convicted of an sexual offense listed under section 9795.1 (relating to registration) if the victim of the offense was under 18 years of age at the time of its commission.

Pennsylvania SB 44 Establishes Bail Bond Enforcement Agent Act. Provides no person shall represent himself as or act in the capacity of a bail bond enforcement agent unless the person has met the requirements of the act.

Rhode Island HB 6155 &  Rhode Island SB 1005 Would require the court and the attorney general to take additional steps in order to forfeit a bail bondsman surety and gives the bail bondsman additional rights regarding the posting and terminating of bail.

Connecticut State of the Judiciary: Access, efficient resolution of cases, fairness. “[S]ometimes fair and just decisions can also be very unpopular”

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

On April 13, 2011 the Connecticut House and Senate resolved (S.J. 36) to meet in joint convention, and “That a committee of two Senators and two Representatives be appointed to invite the Honorable Chase T. Rogers, Chief Justice of the Supreme Court, to attend the Joint Convention and to present to the Joint Convention any communication she might be pleased to make.” S.J. 37 directed “the remarks of the Chief Justice be printed in the journals of the Senate and House of Representatives and that a sufficient number of copies be printed for general distribution”

Later the same day Chief Justice Rogers did address the Joint Convention. Highlights of the Chief Justice’s speech (full text here) included:

I don’t have to tell you that we are all confronting the biggest deficit in our state’s history. The Judicial Branch is anything but immune from this crisis. In fact, for the past several years, as a partner with the Executive and Legislative Branches, we have shouldered our fair share of budget cuts and reductions.

Now, the budget is before you. Although we are hoping for the best, we also must prepare for the worst, and I will tell you that we are working on contingency plans to address whatever happens going forward. I feel it is important to let you know that, if there are ultimately more significant cuts or layoffs, the branch that we know today will look very different in the future. For example, the continuation of the initiatives that I highlight over the next several minutes may not be possible.

Regardless of the resources that are available, however, I can assure you that our commitment to three basic principles will remain intact. These principles are: Number one, access; Number two, the efficient resolution of cases; and Number three, fairness.

Starting with the first principle, we must provide access to everyone regardless of race, religion, age, sex, sexual preference, disability, marital status or national origin…While its charge is broad, a key area the Commission will address is one of our court system’s biggest challenges – providing access to self represented parties. If you aren’t aware of this troubling trend, the following numbers may surprise you. In 2010, an astounding 84 percent of all family cases and 27 percent of all civil cases had at least one party who was self-represented. The numbers are close to 90 percent in housing matters.
I am happy to say that we have taken great strides in making our courthouses easier to navigate. For example, by shifting resources we now have employees available in four of our busiest courthouses to greet and direct members of the public to where they need to go immediately upon entering the building. Since January 2010, this program has assisted over 8,000 court patrons. To further assist self represented parties, our court service centers and public information desks provide assistance in completing forms and also provide lawyers and others access to computers and fax machines, as well as other resources.

Of course, we could make all of these enhancements, but if a Judicial Branch employee is not helpful, then our efforts will be futile…Therefore, we are taking a hard look at how our Branch employees interact with the public. While the majority of our employees are professional and courteous, we know we can always do better.

In addition, we now have a team of employees who pose as members of the public and regularly visit our facilities to determine whether people are being treated professionally… As you can imagine, I was a little nervous about how this program would be received by staff. Interestingly, rather than resisting these efforts, the vast majority have welcomed the input they have received as a result of this program.

I would now like to turn to our second commitment – the timely and efficient resolution of cases. You should know that our courts are facing an increase in the number of cases filed. Over the past four years, we have seen an increase in the number of civil cases added to our dockets by 37 percent…I can’t tell you scientifically that these increases are due directly to the economy, but common sense tells us that it is certainly a significant factor.

Two years ago, a report was issued in Florida entitled “The Economic Impacts of Delays in Civil Trials in Florida’s State Courts Due to Under-Funding.” This report showed that a growing population and a growing foreclosure docket combined to create a civil case backlog. More important, it showed that this development severely affected Florida’s ability to create and keep jobs. This problem could become a reality in Connecticut and it is essential that we avoid a similar situation here.

To that end, one area of extensive review has been our Complex Litigation Docket…And to ensure that Connecticut has one of the strongest complex litigation dockets in the country, the Judicial Branch is committed to assigning judges with expertise in these matters to serve on the docket and to train all judges on issues relevant to commercial and business litigation.

We are also examining our court-sponsored Alternative Dispute Resolution programs that resolve civil matters short of trial and provide an off-ramp from full-blown litigation…We also plan to institute special land use dockets with dedicated judges and staff.

Through January of this year, over 9,400 homeowners have completed [the Foreclosure Mediation Program]. Of those, 79 percent reached a resolution and 64 percent were able to stay in their homes…The U.S. Department of Justice recently highlighted our program as a successful, results-based way to address the foreclosure crisis.

While jurors are absolutely essential to our system of government, it’s frustrating to receive a jury summons and to make the necessary arrangements only to find out the night before that your presence is not required…In response, we have been working hard to ensure the number of jurors summoned reflects the court’s actual need on any given day.

Now, I would like to turn your attention to the third commitment – fairness. Toward that goal, one of the most significant changes that has occurred has been at the appellate level.

Beginning with the 2009 term, the Supreme Court changed its longstanding policy regarding how it hears cases. Before that time, most cases were heard by panels of five of the seven justices. Now, the Court sits en banc in panels of all seven justices whenever possible. We believe this change enhances the confidence of the public in the rulings of our state’s highest court.

Finally, I want to talk for a moment about our superior court judges…A courthouse truly represents a microcosm of society’s problems and the public looks to our judges every day for resolution and justice. They do not have an easy task.

And, we know that sometimes fair and just decisions can also be very unpopular. Yet, the rule of law necessarily depends on independent courts where judges make decisions based on facts and law, not popular opinion.

Unfortunately, I am aware from speaking to my colleagues in other states of efforts to remove judges from office because a particular group disagrees with a ruling that is based on an interpretation of the law.

I am pleased to report that this is not the situation in Connecticut and I want to take this opportunity to thank you, on behalf of our state justices and judges, for your unwavering support.

The bottom line is that we need judges who are not afraid to do their job – which is to apply the law to the facts at hand, without fear or favor. The stakes in a democracy are that high…I hope that from just the few examples I have spoken of today, it is evident that the Branch is looking for every way possible to improve the state courts and, therefore, sustain the public’s confidence in our judiciary.

Connecticut Joint Judiciary Committee & Virginia’s Judicial Redistricting panel meet July 7

The Connecticut Joint Judiciary Committee will be holding a Public Hearing July 7 to focus on the state’s judiciary’s procurement code (agenda here), something required under a law passed in 2007 that revised the way the entire state government handled contracts (SB 1600, Special September Session). The legislature gave itself and the judicial branch until February 2011 to come up with their own procurement codes (Sec. 4e-12)

(a) On or before February 1, 2011, the judicial branch and the legislative branch shall each prepare a procurement code applicable to contracting expenditures, including, but not limited to, expenditures: (1) Involving contracting and procurement processes for purchasing or leasing of supplies, materials or equipment, consultant or consultant services, personal service agreements or purchase of service agreements; and (2) relating to contracts for the renovation, alteration or repair of any judicial branch or legislative branch facility in accordance with section 4b-1.

On that same day, the Virginia Supreme Court panel studying proposed new judicial circuits and districts will hold its first public comment session (h/t Virginia Lawyer’s Weekly), with additional hearings set for July 11, 13, 14, 18 and 21.

Connecticut bill would require state, in consultation with judicial branch, establish e-document standards and guidelines

Cross-posted to Court Technology Bulletin.

The question of standards for the authentication and storage of e-documents, in particular court documents, is getting more and more legislative attention. Connecticut’s HB 6600 of 2011 is a case in point.

Some background is in order. SB 501 of 2010 created a task force to study converting legislative documents from paper to electronic form. A similar but separate task force was created via HB 5435 of 2010 to study ways in which state agencies and departments could reduce or eliminate duplicative procedures and the amount of paper used and how, when practicable, technology can be employed to help in such reduction or elimination.

The judiciary testified before both task forces. Efforts to end transcription of legislative proceedings were opposed by the judiciary, as witnessed by the testimony of Deputy Chief Court Administrator Judge Patrick l. Carroll, III (page 79). Chief Court Administrator Judge Barbara M. Quinn submitted testimony to the state agency paper task force noting among other things the court’s use of e-filing and review of its business processes.

The resulting legislation, HB 6600, contains a litany of ways to avoid paper, such as reducing the number of copies of statutes that get distributed (the number going to the judiciary would decrease and probate courts would have to specifically request copies) and moving much of the legislative process online.

For the courts, another element of note is Section 28:

Not later than January 1, 2012, the State Librarian shall, in consultation with the Secretary of the Office of Policy and Management, the Commissioner of Administrative Services, the Chief Information Officer of the Department of Information Technology, the executive director of the Joint Committee on Legislative Management and the Chief Court Administrator of the judicial branch, establish standards and guidelines for the preservation and authentication of electronic documents. (emphasis added)

HB 6600 was approved by the Joint Government Administration and Elections Committee and is currently pending final action in the House and Senate.

You can adjudicate my case, but you can’t buy a beer: Legislative efforts to increase minimum ages for judges

Over the last several years, I’ve examine numerous efforts to increase or eliminate the mandatory retirement ages for judges. I have, however, paid less attention to the other end: minimum ages. Interestingly, most appellate courts do not have a minimum age to serve, however they do have minimum years of bar admission and/or active practice which would presumably get the person past the age of 21.

Many state trial courts, however, have relatively low minimum age requirements. In some cases this is offset by bar admission requirements. For example, to serve as an Alabama Municipal Court Judge one need only be a “qualified elector” (i.e. 18), but the same provision requires they “be licensed to practice law in this state” (Code of Ala. § 12-14-30). This would presumably get a person to at least 21 years of age, although there are rare exceptions. Virginia Pearcy reportedly became the youngest attorney in the US in 1998 after graduating from UC Berkeley’s Boalt Hall School of Law at age 20.

21 is not always the magic number to serve as a judge, however. Arizona Justices of the Peace need only be 18 and  a qualified voter and resident; they do not have to be attorneys. Similarly, Connecticut Probate Judges appointed prior to 2011 need only be electors setting the minimum for that court as 18 as well (a 2010 law mandates new Probate Judges be attorneys).

In addition to Connecticut’s de facto increase in age requirement in 2010, Pennsylvania’s HB 917 of 2010 which would have increased the age threshold from 21 to 25 for magisterial judges only. Pennsylvania HB 998 of 2011 would raise the minimum age for all judges from 21 to 25.

Similarly, New York’s AB 10945 of 2010, reintroduced as AB 5674 of 2011, would increase the minimum age for service as a town or village justice from 18 to 25.