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

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

HB 3395 Reorganizes governance of state’s entire judicial system. Renames the CJAM the “chief justice of the trial court” (CJTC) & transfers much of the CJAM’s power to a new “court administrator” and deputy court administrators for each division of the trial court. Transfers “business functions” to court administrator, “judicial management” to the CJTC. Creates an office of court management under the court administrator. Provides CJTC and newly created court administrator would serve 5 year terms. Removes restriction that CJTC is removable only for “malfeasance, misfeasance or nonfeasance”. Prohibits court administrator from being a judge and requires administrator significant leadership experience in the fields of management and finance. Provides the CJTC “shall have general superintendence of the judicial policy of the trial court [currently administration of the trial court], including, without limitation, the improvement of the administration of such courts and the securing of their proper and efficient administration” but that the court administrator is “administrative head of the trial court of the commonwealth [a distinction held currently by the CJTC].”

2011 Northeast court interpreters legislation

Active

Massachusetts HB 2163 Increases penalties for individuals threatening or committing bodily harm on court employees, including court interpreters. In Joint Committee on the Judiciary.

Massachusetts HB 2238 Increases penalties for individuals threatening or committing bodily harm on court employees, including court interpreters. In Joint Committee on the Judiciary.

Massachusetts SB 1319 Adds court interpreters as part of Group 2 of the state’s retirement system. In Joint Committee on the Judiciary.

Massachusetts SB 867 Increases penalties for individuals threatening or committing bodily harm on court employees, including court interpreters. In Joint Committee on the Judiciary.

New York SB 1870 Requires orders of protection issued in family court or in cases of family offenses in criminal court to be translated into the native language of the parties. In Senate Judiciary Committee.

New York SB 275 Allows certain courts of record to fix the compensation of a temporary appointed interpreter at not more than two hundred fifty dollars per day. In Senate Judiciary Committee.

New York SB 1094 Establishes standards for court interpreters. Requires court interpreter file affidavit or affirmation that he/she will make a true and impartial interpretation of the proceedings and follow the standards set forth in the New York State Unified State Court System’s Interpreter Manual and the Court Interpreter Canons of Professional Responsibility. Provides procedure for waiver of a non-English speaking person’s right to an interpreter in any proceeding. In Senate Judiciary Committee.

New York AB 4697 (not identical to SB 1094) Establishes standards for court interpreters. Requires court interpreter file affidavit or affirmation that he/she will make a true and impartial interpretation of the proceedings and follow the standards set forth in the New York State Unified State Court System’s Interpreter Manual and the Court Interpreter Canons of Professional Responsibility. Provides procedure for waiver of a non-English speaking person’s right to an interpreter in any proceeding. In Assembly Judiciary Committee.

New York AB 6113 / SB 1870 Requires court to direct a court appointed interpreter who is present in court to assist in a proceeding, to direct the interpreter to translate on the record the essential terms outlined clearly by the court of any temporary or final order of protection issued by a court. Assembly version: Approved by full Assembly 3/29/11. Senate version: In Senate Finance committee.

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?

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.

Massachusetts legislature approves overhaul of state’s judicial governance structure

I’ve mentioned before (here and here) the press in Massachusetts to restructure the governance structure of the state’s judiciary as well as the question of transferring probation out and into the executive branch.

According to a story by the Boston Globe, a final bill (HB 3644) for the restructuring was approved Friday. Particularly noted was the shift of many of the functions  of the state’s “chief justice for administration and management” (CJAM) to  a new officer (court administrator) who, unlike the CJAM, is not appointed to a fixed term and need not be a sitting judge. The office of CJAM would remain with oversight of judicial scheduling matters.

The bill now goes to the Governor for his approval.

Massachusetts constitutional convention coming back into session, may look at changes to judicial selection

Massachusetts hold constitutional conventions every year or nearly so. This year there has already been one session (May 11) during which Proposal 12 was introduced to end life tenure for judges and replace it with 7 years terms and reconfirmation (details in this post).

The next session is July 13. Proposal 12 is back, along with some others affecting how the commonwealth picks its judges. The state uses a unique feature where the governor nominates and an independently elected Executive Council confirms the appointment. Of particular note:

  • Proposal 2 (SB 14 in regular session) would require the Executive Council “establish and maintain its own official website. The content of the Executive Council’s website shall contain, at minimum, such information including, without limitation, prior to confirmation, information on judge designates and all others seeking confirmation before the Executive Council substantially similar in quality to that utilized by the Executive Council in making its confirmation decisions…”
  • Proposal 3 (SB 15 in regular session) would end the Executive Council outright. Judges would  be subject to senate confirmation instead.
  • Proposal 8 (HB 511 in regular session) would end the Executive Council, but unlike Proposal 3, would transfer all powers held by the Council to the senate.

The proposals may take on new momentum after the Lt. Gov. had to break a tie of the Council on a recent judicial appointment.

Return of a reader fav: Hearings today on bills to declare failure to fly U.S. & Massachusetts flags in courtroom due process violation

Readers may recall a post I did in March on a set of unique bills (HB 1325 and SB 643 of 2011) in Massachusetts that would declare failure to to fly the U.S. & Massachusetts flags in a courtroom “shall constitute a violation of due process.” The post was picked up the The Volokh Conspiracy and a load of discussion was had. The consensus: Massachusetts’ constitution allows anyone to file a bill with the legislature and that the mere fact a bill was filed did not mean much of anything.

They are not merely filed anymore. The bills are set for a hearing today before the legislature’s Joint Committee on the Judiciary.

The testimony, if there is any, may be available via the legislature’s video page.

Massachusetts “by request bill” debated today would ban attorneys on Judicial Nominating Commission & Commission on Judicial Conduct from appearing in any court in the commonwealth

The Massachusetts constitution allows anyone in the state to file a bill by request (such as providing that a failure to fly the U.S. & Massachusetts flags in a courtroom is a due process violation). However, one such bill is getting more than just filed; SB 1562 is set for a hearing before the Joint Committee on State Administration and Regulatory Oversight later today. If enacted, SB 1562 would effectively prohibit attorneys in the state from appearing in any court in the state if they serve on the state’s judicial selection or disciplinary commissions.

Existing Massachusetts law (M.G.L. 268A(4)) provides

No state employee shall otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation from anyone other than the commonwealth or a state agency, in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest.

SB 1562 would add two additional restrictions to 268A(4)

No member of the Judicial Nominating Commission may make an appearance in a representative capacity or receive a financial compensation or benefit from a partner, associate or other member of a firm who has filed an appearance in a representative capacity, for compensation, before a court of the commonwealth.

No member of the Commission on Judicial Conduct may make an appearance in a representative capacity or receive a financial compensation or benefit from a partner, associate or other member of a firm who has filed an appearance in a representative capacity, for compensation, before a court of the commonwealth.

The Commission on Judicial Conduct is a creature of statute (M.G.L. 211C) made up of nine members including three members of the bar appointed by the chief administrative justice of the trial court. The Judicial Nominating Commission is, however, an entirely different matter.

Unlike most states that use Judicial Nominating Commissions under a statutory or constitutional requirement, Massachusetts’ JNCs have been in place since 1975 entirely based on the executive orders of the various governors. Apparently, there is currently not even a reference to the commission in statute. The Massachusetts constitution itself allows the governor to pick anyone to serve as a judge, subject to confirmation by an independently elected council. Governors have voluntarily opted to put into place their own minimum qualifications (see current-Governor Deval Patrick’s Executive Order setting the Commission and the qualifications here) and as the Supreme Judicial Court itself held in an advisory opinion to the Council in 1975, the practice is constitutional precisely because a Governor can revoke the commission at will.

Putting aside the statute vs. executive order distinction, the bill at least appears to be even broader than the legislative mandatory recusal bans considered in other states I discussed in my Drake Law Review article last year, which would prohibit Attorney X (or Firm X) from appearing before Judge Y based on a campaign contribution. To my untrained eye (and readers are encouraged to make comments below) SB 1562 looks to:

  1. Prohibit the individual attorney serving on the commission from filing or making an appearance in any state court
  2. Prohibit the individual attorney from receiving compensation from any firm that files or makes appearances in any state court, effectively meaning the attorney can’t be a part of a firm, unless it is as an unpaid partner/associate.

While the bill may not have the proverbial snow ball’s chance in Hades, the testimony for/against it (if any) will be worth watching here.

Massachusetts’ court governance revamp running into snags

I mentioned last week the Massachusetts’ House passing major revisions to the way the state’s (excuse me, commonwealth’s as someone corrected me after last week’s post) courts are governed. HB 3395 is having a tough slog in the Senate, however.

First, the Senate Ways & Means Committee opted to replace it with a new bill (SB 1907) which, while apparently adopting most of the text of HB 3395, does make some major additional changes with respect to the judiciary’s control and operation of the probation department.

Additionally, according Massachusetts Lawyers Weekly‘s The Docket, the 4 Senate Republicans (out of 40 Senators) wanted additional amendments added onto the bill once it reached the floor today, many of which were approved. Among the dozen amendments were:

Rejected

Amendment #3: Require the trial court chief justice to provide the Legislature with a cost and budgetary analysis of the proposed reorganization’s impact prior to implementation
Amendment #4: Provide for an annual independent audit of the trial court by the State Auditor and Inspector General, beginning in 2013

Adopted

Amendment #5: Allow for use of credit cards to pay all court fees/fines with processing surcharge
Amendment #6: Require the advisory committee on personnel standards to use merit-based standards for hiring court personnel, and to post these standards on the trial court’s website
Amendment #8: Require applicants for any trial court position to be certified as meeting the merit-based considerations for employment prior to the consideration of any letters of recommendation submitted on behalf of the applicant
Amendment #9: Expand the membership of the proposed advisory board charged with offering recommendations on the management of the probation office to include an active member of the Massachusetts Bar and an experienced probation officer
Amendment #18: Require the trial court chief justice and the court administrator to submit a report to the Legislature 90 days before the temporary closure or relocation of any courthouse

Left Pending

Amendment #2: Allow for the transfer of funds within the trial court
Amendment #14: Strikes “An officer or employee whose appointment is subject to this section may be removed for cause by the appointing authority. Every removal of an officer or employee whose appointment was subject to this section shall be reviewed by the [advisory committee on personnel standards], and no such removal shall be final until approved by the [advisory committee on personnel standards]. If any such officer or employee has served 3 full years in a position, appointment to which is subject to the provisions of this section, the officer or employee shall have the right to appear personally before the [advisory committee on personnel standards] before the committee reaches its decision as to whether or not to affirm the officer’s or employee’s removal.” to read “Subject to the terms of applicable collective bargaining agreements, any officer or employee whose appointment is subject to the provisions of this section may be removed by the appointing authority, in accordance with the standards promulgated by the committee.”

In addition to the GOP amendments, several Democratic ones were proposed and adopted, including one by the Senate Judiciary Committee chair (Amendment #17) that would alter the effective dates for various provisions in the bill.

The bill, as amended, was approved and sent back to the House on a 39-0 vote.