State legislatures debating use of dogs in courtrooms to calm, assist witnesses; bills out of committee in several states, enacted in Idaho

I mentioned in 2016 that there’s been an increasing number of bills introduced to address the use of animals in court proceedings to calm and assist witnesses. The 2017 session has continued this trend. The bills often contend with two issues: who can have access to such animals (children only? others?) and in what kinds of cases can such an animal be used (criminal? any?)

Alabama HB 393 and SB 273 would permit at the judge’s discretion registered therapy dogs into courtrooms to assist any victim or witness “to reduce unnecessary emotional distress experience by a victim or witness and allow full and factual testimony.” The District Attorney would have to provide instructions on court protocol to the handler. The bills also deal with how to explain the presence of the dog to the jury and authorizes judges to use discretionary court funds to offset the costs for a registered handler for the therapy dog.

SB 273 was approved 7-0 by the Senate Health and Human Services Committee yesterday. HB 393 is in the House Public Safety and Homeland Security but has not yet come up for a hearing.

California AB 411 as amended focuses on 1) child witnesses in cases involving a serious or violation felony and 2) victims entitled under existing law to support persons. These individuals under the bill would be able to have access to a therapy or facility dog and defines these terms, subject to approval by a judge. The bill also deals with how to explain the presence of the dog to the jury.

AB 411 as amended was approved by the Assembly Committee on Public Safety on March 15 and is currently on the Assembly floor (3rd Reading Calendar).

Connecticut HB 6999 as filed would have authorized the use of therapy dogs for those under the age of 18 in criminal cases.

During testimony on the bill by the Connecticut Judicial Branch, it was noted that the state’s supreme court had recently ruled that judges already have the inherent authority to allow for a therapy dog for any witness, in any court proceeding, and that therefore the bill as filed might have the effect of limiting the court’s ability to make such accommodations.

HB 6999 as amended, instead provides the Judicial Branch shall maintain on its website a section providing information regarding the availability of an accommodation, granted at the court’s discretion, for the presence of a dog to provide comfort and support for a child under the age of eighteen during such child’s testimony in the criminal prosecution of an offense involving the alleged assault, abuse or sexual abuse of such child. it also directs that trial judges be trained on this issue.

HB 6999 as amended was approved by the Joint Committee on Children on March 2 and remains pending.

Florida HB 151 amends an existing law that allows the court to use service or therapy animals in proceedings involving a sexual offense to assist a child victim or witness or a sexual offense victim or witness.

As amended, HB 151

  1. Expands the list of proceedings in which support animals may be used to include any proceeding involving child abuse, abandonment, or neglect.
  2. Expands the categories of allowable animals to include a “facility dog”;
  3. Allows a court to set any conditions it finds just and appropriate when taking the testimony of a person who has an intellectual disability, including the use of a therapy animal or facility dog;
  4. Removes the requirement for evaluation and registration of an animal pursuant to national standards, and replaces it with a requirement that an animal be trained, evaluated, and certified according to industry standards; and
  5. Provides definitions for the terms “facility dog” and “therapy animal.”

HB 151 was approved by the full Senate yesterday and is on its way to the governor. The Senate’s similar bill (SB 416) addressed the same issues and was approved on committee, but was ultimately shelved in favor of HB 151.

Idaho SB 1089 as enacted provides when a child is summoned as a witness in any hearing in a noncriminal matter that involves the abuse, neglect or abandonment of the child, including any preliminary hearing, notwithstanding any other statutory provision, a facility dog shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony. The bill also defines what a “facility dog” is. SB 1089 was signed into law by the governor in March, with an effective date of July 1, 2017.

Maryland SB 77 amends a 2016 law (SB 1106) that created a pilot program for the use of both facility and therapy dogs with respect to child witnesses in criminal cases and limited the program to two counties (Anne Arundel and Harford). SB 77 would delete the word “criminal”, allowing for the use of such dogs in any case.

SB 77 was approved by the House on April 4 and is in back in the Senate pending transmission to the Governor.

Maryland: 3 very different plans put forth for how to limit or end Circuit Court judicial races; hearing set for Feb. 22

For the third session in a row Maryland legislative committees are set to hold hearings on plans to end contested races for Circuit Court in favor of a quasi-federal system. A hearing on the plans is set for the House Judiciary Committee on February 22.

This year’s proposals, so far, are repeats of bills from last year (discussed here) and are HB 579, HB 724, and HB 826. The first two are fairly similar, while HB 826 stands apart in many ways.

Initial appointment: governor nominates, senate confirms (majority or supermajority)

All three provide that when a vacancy occurs in the Circuit Court, the governor would appoint someone meeting the minimum legal, age, and residency requirements for the office.

In HB 579 and HB 724 the governor’s pick would then be subject to senate confirmation by simple majority vote.

HB 826 stands apart here. Under the terms of that plan the Senate would have two levels of confirmation

  • 80%+: nominee is confirmed. No further action required.
  • 50.1%-79%: nominee is only confirmed for 1 year and must face a contested election in the next general election.

The contested election under HB 826 also contemplates the candidates running against the sitting judge would be running to remove the judge from office but not necessarily for them to win the office itself. The “winning” candidate would only be able to force the judge out of office and create a new vacancy.

The approval or rejection of the judge by the registered voters shall be by contested election in which other candidates who are qualified for the office of circuit court judge may file as candidates. If the judge fails to win election in the general election, the office becomes vacant 10 days after certification of the election returns.

No default confirmation

Notable is the lack of default confirmation in the 3 plans. In light of the delays in federal judicial confirmations the states that have considered or enacted confirmation plans (such Kansas for its Court of Appeals & Tennessee’s for all its appellate courts) have provided for a default confirmation that would put the nominee in office if the legislature failed to approve or reject in a certain time period.

Lack of judicial nominating commissions

All 3 plans avoid using a merit/commission based system which would restrict the governor to a list of individuals chosen by a judicial nominating commission. Although various Maryland governors have created such advisory commissions in the past, they are now at the discretion of the current governor.

Additional terms in office: retention elections vs. reappointment & reconfirmation

The bills are not consistent in terms of how judges obtain additional terms in office. HB 579 and HB 724 call for yes/no retention elections. HB 826 provides that a judge is to be reappointed by the governor without the need for senate reconfirmation (“the reappointment of a judge under this subsection is not subject to confirmation by the senate.”)

Terms in office: keep 15 years or reduce down to 10 years

Another key difference between the bills is how long Circuit Judges would remain in office. HB 724 and HB 826 would keep the term at the current 15 years. HB 579 would reduce the term down to 10 years.

Maryland: Senate approves plan to increase mandatory judicial retirement age from 70 to 73, but sitting judges would need governor’s permission to get increase

A plan to increase Maryland’s mandatory judicial retirement age cleared the Maryland Senate 40-4 last week. SB 502 would, subject to voter approval, amend the state’s constitution to increase the age from 70 to 73 for new judges. As was the case in Virginia (noted here) there were efforts made to exempt currently sitting judges from the increase. As a result, SB 502 creates a two-tiered system for the increase

  1. All judges “first elected or appointed to office” after adoption of the amendment would get the increase to 73.
  2. Sitting judges in office at the time the amendment was adopted would be allowed the additional 3 years only if the governor permits it. (The judge “applies for, and is granted, an extension by the Governor to serve until the judge completes the judge’s term or attains the age of seventy-three years, whichever occurs first.”)

The bill is now pending in the House Rules and Executive Nominations Committee, however the legislature is set to adjourn on April 11 making it unclear if SB 502 will appear on the 2016 ballot.

Maryland: House committees reject all 4 bills seeking to end Circuit Court elections; Senate committee already rejected its version

Efforts to end elections for Maryland Circuit Courts were rejected by the Maryland House Judiciary Committee last week. HB 223, HB 224, HB 388, HB 448 discussed in detail here were all unfavorable reported by both the House Judiciary Committee and the House Ways and Means Committee (the bills were joint-assigned to both committees). The Senate had the week before rejected its version (SB 179, discussed here).

 

Maryland: Senate committee rejects 6-5 plan to end elections for Circuit Courts; focus now on 4 House bills

The Maryland Senate Judicial Proceedings on Thursday rejected an effort to end election for Circuit Court judges.

SB 179 was given an unfavorable recommendation on a 6-5 vote. The proposal had called gubernatorial appointment with senate confirmation for both initial terms and additional terms in office. Moreover, the plan had called for a reduction in terms in office from 15 years down to 10 years.

The focus on shifts to the House which has 4 separate proposals pending.

Maryland: comparing/contrasting 4 House bills seeking to change way Circuit Court judges are chosen; hearing this week

On Thursday the Maryland House Judiciary Committee is set to hear debate on 4 different constitutional amendments (HB 223, HB 224, HB 388, HB 448) to change the way the state’s Circuit Court judges are chosen. While all 4 move away from elections and towards a quasi-federal system, they differ in terms of mechanics.

Initial appointment: governor nominates, senate confirms (majority or supermajority)

All four provide that when a vacancy occurs in the Circuit Court, the governor would appoint someone meeting the minimum legal, age, and residency requirements for the office. In HB 224, HB 388, and HB 448, the governor’s pick would then be subject to senate confirmation by simple majority vote.

HB 223 stands apart here. Under the terms of that plan the Senate would have two levels of confirmation

  • 80%+: nominee is confirmed. No further action required.
  • 50.1%-79%: nominee is only confirmed for 1 year and must face a contested election in the next general election. Of the 13 states that use some form of legislative confirmation (House, Senate or both) none have a supermajority confirmation requirement.

The contested election under HB 223 also contemplates the candidates running against the sitting judge would be running to remove the judge from office but not necessarily for them to win the office itself. The “winning” candidate would only be able to force the judge out of office and create a new vacancy.

The approval or rejection of the judge by the registered voters shall be by contested election in which other candidates who are qualified for the office of circuit court judge may file as candidates. If the judge fails to win election in the general election, the office becomes vacant 10 days after certification of the election returns.

No default confirmation

Also notable is the lack of default confirmation in the 4 plans. In light of the delays in federal judicial confirmations the states that have considered or enacted confirmation plans (such Kansas for its Court of Appeals & Tennessee’s for all its appellate courts) have provided for a default confirmation that would put the nominee in office if the legislature failed to approve or reject in a certain time period.

Lack of judicial nominating commissions

All 4 plans avoid using a merit/commission based system which would restrict the governor to a list of individuals chosen by a judicial nominating commission. Although various Maryland governors have created such advisory commissions in the past, they are now at the discretion of the current governor. Only HB 448 discusses a commission and include a proviso that if a governor opts to create such a commission, “the commission or body shall reflect the demographic diversity of the state of the judicial circuit for which the commission or body is charged with proposing nominees.”

Additional terms in office: retention elections vs. reappointment & reconfirmation

The bills split on how judges would remain in office. HB 223 and HB 448 provide for reappointment & reconfirmation. HB 224 and HB 388 provide for yes/no retention elections in each county or the City of Baltimore (which is its own independent autonomous city not within any county).

Terms in office: keep 15 years or reduce down to 10 years

Another key difference between the bills is how long Circuit Judges would remain in office. Only HB 224 would keep the term at the current 15 years. The HB 223, HB 338, and HB 448 would reduce the term down to 10 years.

 

Maryland: Last year Senate President vowed to end Circuit Court elections; bill to do just that up for hearing next week

Last year after a House plan to end elections for Maryland Circuit Court judges was killed in committee, Senate President Thomas V. Mike Miller vowed “We’re going to pass it next year.” The Senate has now released its 2016 plan as SB 179. It is set for a hearing next Thursday (February 4).

Currently the Maryland Constitution (Art. IV, Sec. 3) requires the election of Circuit Judges to 15 year terms. The general elections are nonpartisan, however candidates for Circuit Court appear on partisan primary ballots (such as these races in 2014).

The Senate plan calls for

  • The Governor to appoint anyone meeting the minimum criteria (over 30, admitted to practice of law, state resident 5 years, circuit resident for 6 months)
  • Senate confirmation
  • Serve for term of 10 years (down from the present 15 years) or until age 70 (if the judge hits the mandatory retirement age midterm)
  • Reappointment by Governor after 10 year term
  • Reconfirmation by Senate

The House version rejected last year would have kept 15 year terms and replaced reappointment/reconfirmation with yes/no retention elections.

SB 179 contemplates, but does not require, creation of a judicial nominating commission or similar body to make recommendations to the governor. If such a commission is created SB 179 calls for the group to “reflect the demographic diversity of the state or the judicial circuit.”