Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

Ohio voters will head to the polls November 8 to decide the fate of Issue 1, marking the sixth time in 20 years the question of judicial retirement has been on the ballot (Hawaii 2006; Louisiana 1995 & 2003; Pennsylvania 2001; Texas 2007; Vermont 2002), with 4 victories to 2 defeats.

Four legislatures have adopted statutes to alter retirement (Indiana 2011; Kansas 2003 & 2010; North Carolina 1992; Vermont 2003). Moreover, Arizona has advanced a proposed change for the 2012 ballot while New York voters will probably address the issue in 2014. This marks a trend over the last several years in particular of state legislatures confronting judges living longer and the question of whether there should be any limits on service at all.

State by state breakdown below the fold.

Continue reading Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

Why Senate reconfirmation for incumbent state judges? Why not House? Or joint? Or election?

Several weeks ago I looked at the historical development of why some states have legislative involvement in judicial confirmation for their appellate courts and whether it was only the state’s senate that had a role or if it was a joint process. To reiterate, one of the big presses in the last year has been to put into place something akin to the “federal model” of senate (only) confirmation. But unlike the federal model, which includes life tenure, almost all these proposals include a reconfirmation at some point.

It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:

  • 6 give at least some appellate  judges a decade or more on the bench between reconfirmations: Delaware (12 years), Hawaii (10 years), South Carolina (10 years), Utah (Supreme Court: 10 years), Virginia (Supreme Court: 12 years),  and New York (Court of Appeals: 14 years)
  • 3 give reconfirmation to the House and Senate: Connecticut, South Carolina, and Virginia
  • 3 remove the legislature outright from reconfirmation: Hawaii (judicial nominating commission); Maryland and Utah (retention election)
  • 2 at least have the option of lifetime or near-lifetime appointment: Rhode Island (life) and New Jersey (until 70 after reconfirmation)

Roles of legislatures in appellate judicial re-confirmation

Connecticut: 8 year term for Supreme Court and Appellate Court. Judicial Selection Commission evaluates incumbent judge, with statutory presumption “that each incumbent judge who seeks reappointment to the same court qualifies for retention in judicial office” and provides burden on commission to demonstrate otherwise (see 51-44a (e) and (f), of the Connecticut General Statutes). Commission sends reappoint/don’t reappoint recommendation to Governor who renominates incumbent judge. Legislature jointly reconfirms.

Delaware: 12 year term for the Supreme Court. Governor renominates. Senate reconfirms.

Hawaii: 10 year term for Supreme Court and Intermediate Appellate Court. Judicial selection commission reappoints.

Maine: 7 year term for Supreme Judicial Court. Governor renominates. Joint House/Senate legislative committee recommends reconfirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

Maryland: 1 year (at least) initial term for Court of Appeals and Court of Special Appeals. Yes/no retention election. 10 year subsequent term.

New Jersey: 7 year initial term. Governor renominates. Senate reconfirms. Service until 70 for subsequent term.

New York (Court of Appeals, state’s court of last resort): 14 year term for Court of Appeals. Commission on Judicial Nomination resubmits names along incumbent’s to Governor. Governor renominates incumbent or nominates new person. Senate confirms or reconfirms.

NOTE: the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature in terms of reconfirmation. The Governor elevates and may reappoint to the Appellate Division from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”). For example, when his 14 year term in the trial court ended in 2011, the Hon. Henry J. Scudder had to run for re-election and then be reappointed back to the Appellate Division, Fourth Department (see story here).

Rhode Island: N/A (Serve for life)

South Carolina: 10 year term for the Supreme Court, 6 year term for the Court of Appeals. Judicial Merit Selection Commission evaluates incumbent judge and all others seeking position. Commission sends names to Legislature. Legislature jointly reappoints or appoints someone else. (See Title 2, Chapter 19 S.C. Code)

Utah: 3 year (at least) initial term. Yes/no retention election. 10 year subsequent term for Supreme Court, 6 year subsequent term for Court of Appeals.

Virginia: 12 year term for the Supreme Court, 6 year term for the Court of Appeals. Legislature jointly reappoints or appoints someone else.

 

 

Why Senate confirmation for state judicial nominees? Why not House? Or joint?

Numerous state legislatures in 2011 that have a version of merit selection (Arizona, Florida, Oklahoma) or have considered adopting merit selection (Mississippi, Pennsylvania, Wisconsin) have put in provisions for Senate confirmation. Additionally, Rhode Island (HB 5675) considered removing the state senate’s existing confirmation power with respect to a trial court (Superior Court) and transferring the power to the house.

But the question arises: why Senate confirmation? There’s the case for reference to the U.S. Senate and its role in federal judicial confirmations. And this was consistent when a) state senators were elected by counties to represent the county as a whole (as in New Jersey) or clusters of counties (as in New York) and b) trial judges (and occasionally appellate judges) were picked by districts made up of clusters of counties.

Thanks to one person/one vote decisions by the U.S. Supreme Court over the years, the practice of Senate districts following county lines is over. The practice of appellate judges being chosen based on geography is also on the decline with only 10 states continuing to use the practice for courts of last resort and 17 of 40 states with intermediate appellate courts using district based selection (although Montana may buck the trend in 2012, Oregon voters rejected the idea 2-1 in 2006).

Moreover, as I noted in March, such proposals have fared much better in state senates than in state houses, and history bears this out. In short, when the power to confirm has been handed solely to the state senate, it has had mixed support in the state’s house. The only way it happens, normally, is when there is a litany of other issues in play.

When does Senate confirmation of appellate nominees come into a constitution?

  • Conventions changing entire constitution: Delaware, Hawaii, and New Jersey
  • Constitutional amendment changing most/entire Judiciary Article: Maryland (1970 attempt) and Utah
  • Constitutional amendment changing judicial selection only: Maryland (1976), New York
  • Constitutional amendment changing most/entire Executive Branch Article: Maine, Vermont

In the case of Maryland (1976) and New York (1977) the amendments to have Senate confirmation met with lower House approval as part of a package of bills related to the courts.

This institutional inertia may explain some 2011 activity. Consider the following:

  • The original Florida House proposal HJR 7111, introduced March 22, 2011 included nothing about Senate confirmation of justices of the planned modified supreme court with civil and criminal panels. The only mention of the Senate was a provision stripping the power of the court(s) to name their chief justice and giving it to the Governor with Senate confirmation. Six days later, SJR 1664 requiring Senate confirmation for the Supreme Court was passed by the Senate Judiciary Committee. On April 5, the Senate Governmental Oversight and Accountability Committee gave its approval of SJR 1664. By April 8, SCR 1046) and Oklahoma Senate (SB 621) did not fare as well. The Arizona bill went nowhere. The Oklahoma bill moved through the Senate and was not even brought up for a House committee hearing.

Roles of legislatures in appellate judicial selection

Both chambers

Connecticut: since the 1818 Constitution. An 1880 amendment (Article XXVI) allowed for the Governor to nominate, but still required confirmation by both chambers. A 1986 amendment added merit selection, permitting the Governor to nominate only from those names submitted by the Judicial Selection Commission.

Rhode Island: since the 1842 Constitution and kept as part of the 1986 constitution. A 1994 amendment added merit selection, permitting the Governor to nominate only from those names submitted by an independent non-partisan judicial nominating commission.

South Carolina: since the 1776 Constitution and kept as a part of the 1778, 1790, 1861, 1865 and 1868 constitutions, plus a 1973 revision to the judiciary article. A 1997 constitutional amendment added merit selection allowing the legislature to elect only from those names submitted by the Judicial Merit Selection Commission.

Virginia: since the 1776 Constitution and kept as part of the 1850, 1861, 1864, 1870, and 1902 constitutions.

Senate only

Delaware: since the 1897 Constitution. The 1776 Constitution specified a joint ballot of both chambers of the general assembly and the “president” (i.e. governor) of the state. The 1792 and 1831 Constitutions placed the power of appointment solely in the hands of the Governor.

Hawaii: since the 1949 Constitution.

Maryland: since a 1976 constitutional amendment. The 1776 Constitution gave appointment to the Governor with the Council “for the time being” and put it solely in the hands of the Governor via an 1837 amendment. Maryland’s 1864 Constitution provided for direct election of the judges of the top court (Court of Appeals), but provided the Governor with Senate confirmation would select the chief judge. The 1867 Constitution made 7 of the 8 chief judges of the state’s judicial circuits the state’s top court and provided the Governor with the confirmation of the Senate would select the chief judge of the Court of Appeals. This practice continued until a 1943 constitutional amendment separated the roles of chief circuit judge from judge of the Court of Appeals but still required direct election. A 1960 amendment reaffirmed direct election, while changing the geographic boundaries.

It should be noted that the Maryland proposal was initially rejected in 1970 (1970 version) and included most courts in the state (judges of the Court of Appeals, intermediate courts of appeal, Circuit Courts, and the Supreme Bench of Baltimore City), increased terms of office to 15 years, and made revisions to the power of the Commission on Judicial Disabilities which had just been created in 1966. The successful 1976 version focused exclusively on merit selection with Senate confirmation for appellate courts only.

New Jersey: since the 1844 Constitution. The 1776 Constitution made the Governor and Council the state’s top court (Court of Appeals). The current 1947 Constitution replicated the Governor-appoints-Senate confirms system of the 1844 Constitution, but with a significant change. Rather than being re-confirmed every 7 years, the justices would face only 2 Senate confirmations: one for their initial appointment and a second after 7 years. If reconfirmed a second time, they would remain in office until age 70.

New York Court of Appeals (state’s court of last resort): sporadically since the 1777 Constitution. Under the 1777 Constitution, a Council on Appointments made up of 4 Senators chosen by the Assembly, plus the Governor (to break ties) was used. The 1821 Constitution changed this to a Governor-appoints-Senate-confirms system. The 1846 Constitution created a bifurcated election system: 4 of the 8 judges would be elected by the statewide, the other 4 would be locally elected judges of the general jurisdiction court (confusingly called the “supreme court”) “having the shortest time to serve.” A new constitution was voted on, section by section, in 1869; the judicial article was the only one approved. That new article provided for statewide election. The 1894 Constitution and 1938 Constitution continued the statewide election system. A 1977 amendment that revamped much of the Judiciary Article created the present merit-selection-Senate-confirmation system.

10/24/11 update: Selection to the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature. The Governor alone elevates from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”).

Utah: since a 1984 constitutional amendment. The original 1895 constitution provided for statewide election. The 1984 amendment overhauling the entire Judiciary Article provided for the present merit-selection-Senate-confirmation system. A subsequent 1992 amendment increased the time for the Senate to consider nominations.

Vermont: since a 1971 constitutional amendment. The 1793 Constitution provide for joint election by the unicameral House and Executive Council, a practice that was continued when the Council was made the Senate via a 1836 amendment. An 1890 effort to shift this to the Senate alone was rejected by the Senate itself but was incorporated into the 1971 revision of the state’s entire Judiciary Article.

Hybrid

Maine: since a 1975 constitutional amendment (L.D. 25). The 1820 Constitution in place when Maine was separated from Massachusetts and became a state kept the Massachusetts practice of supreme court selection method of governor-appoints-and-executive-council-confirms. The 1975 amendment abolishing the Council created the current procedure for confirmation: the Governor nominates and a Joint House/Senate legislative committee recommends confirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

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

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

HB 298 Exempts court interpreters who appear at the request of the circuit court, family court, or district court from parking violations for expired meters.

HB 301 Directs into the judiciary computer system special fund fees collected for electronic document certification, electronic copies of documents, and for providing bulk access to electronic court records and compilations of data.

HB 575 Extends the five per cent legislative salary decrease from June 30, 2011, to June 30, 2013. Applies the five per cent salary reduction to executive and judicial branch positions

HB 1038 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012.

HB 1333 Increases small claims jurisdiction from $3,500 to $5,000.

HR 171 Urges Judiciary expedite selection for Kona judiciary complex and consider La’i’Opua as a potential site.

HR 174 Requests Supreme Court study implementation of Hawaii Uniform Collaborative Law Act.

SB 1073 Increases the amount of surcharges for indigent legal fees. Requires biennial review and report by fund administrator.

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.

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.

Hawaii State of the Judiciary: “Justice is not something that should be rationed.”

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

Hawaii’s Legislature requested (SCR 1 of 2011) new Chief Justice Mark E. Recktenwald  deliver his State of the Judiciary Address on January 26. Chief Justice Recktenwald did so (full text here).

Highlights of the Chief Justice’s speech included:

Our core mission at the judiciary is to administer justice…But our role is not confined to deciding cases. Over the years, we have been given additional duties as well. We now play a role in addressing the problems that underlie those disputes, and in helping to alleviate their human impact…There is a common thread running through these broadened expectations. I believe it can be summed up as follows: our citizens want to be treated fairly and they want a justice system that works.

In the last two years, our general fund appropriation was reduced by $19.7 million, or more than 13%, while demand for our services has continued to increase….These reductions in our resources have had substantial negative effects throughout the judicial system. They have reduced, delayed, and in some cases, eliminated important services.

The time it typically takes to process an uncontested divorce has doubled…The number of pending civil cases in our district courts increased by almost 100% from FY2008 through FY2010…Not surprisingly, since the resources available to address that increased caseload have been reduced, the median age of pending civil cases in circuit court has increased by more than 40 percent.

Adequately funding the state court system is an investment in justice, and an investment in our community, that should not be compromised even during tough economic times.

Justice is not something that should be rationed. The costs of attempting to do so will be far higher in the long run, than any savings that can be realized now.

Across the judiciary, there is a real commitment to finding more efficient and effective ways to serve the public. The HOPE probation program, which is based on the simple premise of holding probationers immediately accountable when they use drugs or fail to report to their probation officer, has achieved remarkable results. Positive drug tests have been reduced by 83% among participants in HOPE probation, while recidivism has been cut in half.

Our other specialty court programs–such as mental health court, girls court, and juvenile drug court–continue to make great strides in addressing the needs of those specialized populations.

Our electronic case management system, called JIMS for short, has enabled us to address some long-standing, and seemingly intractable problems, such as delays in issuing bench warrants, and collecting traffic fines and assessments…Just this fall, we expanded JIMS to include filings in our appellate courts…In the years ahead we will bring electronic filing to the criminal courts, followed by the civil and then family courts.

It has become increasingly costly and time consuming to take a case to trial. Indeed, in FY 2010, more than 5,000 civil cases were filed statewide in the circuit courts, but only 14 civil cases were tried to a jury verdict.

Many of Hawaii’s low and moderate income families are unable to obtain the legal services that they need in the best of times, and the unmet need has become greater in these difficult economic conditions. The Access to Justice Hui concluded in 2007 that only about one in five low to moderate income Hawaii residents have their civil legal needs met…As a result of the recommendations of the Hui, the Hawaii Supreme Court formed the Access to Justice Commission in 2008…The challenges posed by access to justice illustrate a fundamental truth about the judiciary–in order to solve the many challenges we face, we must work collaboratively with other organizations and members of our community.

We are blessed with a strong volunteer program, which contributed 39,000 hours to the judiciary in the past fiscal year.

Although the judiciary must be completely independent and neutral when we decide cases, we must also engage the community in as many ways as possible to promote understanding of our constitution and our system of law. To further that goal, the supreme court has begun holding oral argument at different locations in the community, starting with Kapolei in December, and at the Richardson School of Law next month.

We know that there are many competing demands for our state’s scarce resources, and that we cannot reasonably seek a greater share of those resources without first ensuring that our own house is in order, and that we are using the resources we do have in the most effective and efficient way possible.

HI: One step closer to increasing small claims jursidiction

HB 2784 originally increased claims jurisdiction from $3,500 to $7,000. The House Judiciary Committee cut this down to $4,500 on 2/12/10 and on 2/22/10 the House Finance Committee OK’ed the $4,500 threshold. It now goes to the full House.

For more details on the nearly dozen efforts to increase small claims throughout the U.S. this year, check out the Focus piece of Issue 4:6 here.