Missouri bill would allow judges more power to name clerks of court

In most states, the same practice used in one location/circuit/district/county to select the clerk of court is used in all other such geographic areas. Missouri, however, is one of a few exceptions to this rule, and a new bill would make it even more, er, exceptional.

Section 483.015(1), RSMo establishes the general rule: circuit clerks are be elected by the qualified voters of each county.

483.105(3) allows for what amounts to a county opt-out. An amendment to a county charter can allow for either a) the appointment of a court administrator to perform the duties of a circuit clerk or b) the appointment of a circuit clerk. Similarly, 483.105(2) establishes that the court administrator for Jackson County and the director of judicial administration and the circuit clerk of St. Louis County shall be selected as provided in their various charters. Finally, 483.105(4) provides the circuit clerk in the sixth judicial circuit (Platte County) and in the seventh judicial circuit (Clay County) are appointed and removed by a majority of the circuit judges and associate circuit judges of the circuit.

Into this mix comes HB 884 of 2011. It effectively expands the appointment-by-judges provisions of 483.105(4) to the twenty-second and twenty-eighth circuits, plus Scott County (only) in the thirty-third judicial circuit.

The bill is currently pending in the House without a committee assignment.

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Citing Heller, Illinois legislators consider explicitly permitting judges to carry concealed firearms into courthouses

The U.S. Supreme Court decision in District of Columbia v. Heller, which specifically found an individual right to keep and bear arms, has lead to a massive review of state statutes as they pertain to firearms. Illinois is no exception: it was the case of McDonald v. Chicago that applied Heller to the states via the 14th Amendment. For judges on a more personal level, however, Heller and McDonald may mean more discretion in carrying their own firearms into their courts.

At present, Illinois law and rules of court are relatively silent on whether judges explicitly may (or may not) bring firearms into courthouses or courtroom. The only apparently relevant statute is 720 ILCS 5/24-1. Sections (a) and (b) define the offense of unlawful use of weapons and provide for sentences depending on the particular actions. (a)(4)-(9) in particular deal with the carrying of firearms.

Section 720 ILCS 5/24-1(c) however provides enhanced sentences for carrying a firearm in public places, such as parks and courthouses (defined as “any building that is used by the Circuit, Appellate, or Supreme Court of this State for the conduct of official business.”). Illinois, unlike most states, does not provide elsewhere that such courthouse restrictions do not apply to judges.

HB 1403 and SB 2150, however, would modify the restrictions. Concealed firearms permits would not allow a person to carry into “Any courthouse solely occupied by the Circuit, Appellate, or Supreme Court or a courtroom of any of those courts, or court proceeding.” However “nothing in this Section shall preclude a judge, or State’s Attorney holding a concealed firearms permit, from carrying a concealed firearm within a courthouse.” (emphasis added)

Surrounding states take slightly different tacks with respect to courthouse carrying.

Missouri (§ 571.107 R.S.Mo.) bans firearms generally (and in the same section specifically exempts judges from the ban) in “Any courthouse solely occupied by the circuit, appellate or supreme court, or any courtrooms, administrative offices, libraries or other rooms of any such court whether or not such court solely occupies the building in question…The.. supreme court… may by rule..prohibit or limit the carrying of concealed firearms by endorsement holders in that portion of a building owned, leased or controlled by that unit of government.”

Kentucky’s (KRS § 237.110) has a similar clause banning generally the carrying of a firearm  in “Any courthouse, solely occupied by the Court of Justice courtroom, or court proceeding.” but then (KRS § 237.020) exempts active, retired, and senior status justices and judges with a handgun permit. In fact, Kentucky active, retired, and senior staus judges with a permit may carry “at all times and at all locations within the Commonwealth of Kentucky” exception detention facilities, which specifically “does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.”

Illinois HB 1403 is in the House Agriculture & Conservation Committee while SB 2150 is currently in the Senate Assignments Committee awaiting designation to a subject matter committee.

Missouri State of the Judiciary: “we continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity.”

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

The annual Missouri State of the Judiciary address was, under HCR 2 of 2011, suppose to have been delivered on February 2 of this year. However, a snow storm forced the legislature to suspend operations: the House never met and the Senate had a pro forma session.

The speech by Chief Justice William Ray Price, Jr., himself a former state legislator, (update: when the Chief Justice referred to having “served here for nearly 18 years”, the “here” meant was the Supreme Court, not the legislature) was ultimately delivered on February 9 to joint legislative session (HCR 24 directed a joint session for that date).

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

I never have seen a more challenging time for our state. Regardless of political philosophy, one thing is clear. Significant cuts have been made and will be made to Missouri’s budget. To the extent necessary and possible, the courts have shared and will continue to share in spending reductions without complaint.

There are two specific concerns I want to talk with you about. I spoke about them last year, and they are still the two most important issues that we face together for the future of Missouri. One calls for action; one does not.

First, we continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity. The result is a state that is not as safe as we want it to be and a waste of taxpayer dollars….Punishment is a necessary part of our criminal justice system. But our real goal for nonviolent offenders is to teach them their lesson so they can become productive law-abiding members of our society. The goal is not to lock them into a life of crime, to make them permanent wards of the state on an installment program of incarceration after incarceration, at $16,400 per year.
Drug courts are one of the best examples of tough, effective, local alternatives to prisons. Depending on the study, between 60 and 80 percent of people in prison are there for drug-related crimes or have drug or alcohol issues…With your help, we have expanded drug courts and DWI courts across Missouri. Unfortunately, they are still underfunded by half. We barely have scratched the surface with family drug courts and reentry courts.
From a moral, a fiscal and a law-and-order perspective, drug courts, DWI courts, juvenile diversion programs, veterans courts, reentry courts and community supervision strategies are better investments of taxpayer money, for their target populations, than prisons.

The second major issue that I want to talk with you about is a fair and impartial judiciary.
It is not easy finding justice. Justice is not a physical thing that you can touch or hold or measure. Often it is shaped by the eye of the beholder and, often, relative to the beholder’s particular point of view. What seems just to one may seem unjust to another. A good judge must have the courage to accept that not all people will see justice as he or she does. Sometimes, a good judge must have the courage to risk the anger of the majority, to protect the rights of the individual ? rights that we prize and that are guaranteed by our national and state constitutions.
Our job is different than yours. You serve the majority. You make broad policy decisions that apply to everyone. You make campaign promises and are expected to uphold them…Our job is more limited. We rule individual case by individual case. Whether it is a case for a business fighting for its economic life, a crippled plaintiff who no longer can support himself or his family, parents fighting for the custody of a loved child, or a person accused of a crime with his liberty or life at stake, we rule individual case by individual case, with each individual having only that one chance for justice. In every case, someone loses. Fairness, impartiality and a level playing field, not subject to outside influence or manipulation, not dependent on a preexisting promise, are the absolute necessity.
With this in mind, we need to talk about the Missouri Plan for selecting judges. The plan was adopted by the people of Missouri by initiative petition in 1940. It was in response to the Pendergast political machine’s attempt to control the Supreme Court of Missouri. It was a plan established by the people to protect their courts from political manipulation and control…The brilliance of the Missouri Plan is that it balances the need for legal ability, everyday common sense and responsibility to the people, in a way that preserves the integrity and the fairness and the impartiality of the judge.
The worst alternative is direct elections of judges. The reason is simple. Money. The amount of money involved in conducting statewide races will destroy the public’s perception, and perhaps the actual integrity, of our judicial system….Another suggestion is to adopt a plan modeled after the federal system. That, too, is problematic. Federal judges have life tenure; they are not subject to retention votes.
In the past two years, the Court has taken great strides to increase the transparency of the Missouri Plan to make it more open to the people. Last year, we amended the rules to release the names of the applicants. This year, we amended the rules to open the interview process to the public, to release the final vote for the panel of nominees and to encourage nominations directly from the public.

Justice is sacred but fragile. It belongs to the people, not to either political party, not to any special interest. A system of justice is necessary to support our economy and to preserve our individual rights and freedoms. A system of justice can exist only so long as the people have trust and confidence that it is fair and impartial. Any proposed change to the Missouri Plan should be considered only with the greatest care and caution. I am afraid that it is more likely that any change will bring more harm than good.

MO judges may get salary boost after all

Missouri’s compensation system for most elected officials is fairly straightforward: the Missouri Citizens’ Commission on Compensation for Elected Officials makes a recommendation which goes into effect unless overridden by two-thirds of the legislature by a set date. In 2009 it was in fact overridden (HCR 5) and things looked less than promising when the Senate Rules committee appeared last week to reject the increases in light of the economy. However, in a twist, the Senate Rules committee on a 4-3 vote rejected advancing a resolution of disapproval (SCR 3). Moreover, the Commission’s policy to set state judicial salaries as a fixed percentage of federal salaries appears to have gained legislative support.

However, according to the Associated Press, money for the raises would have to be included in the state budget. The leader of the state Senate’s Republican majority says he hopes lawmakers won’t fund them.

Judicial Retirement Plans/Pensions: Missouri

A reader alerts me to Missouri SB 714 which creates an entirely different retirement plan for any judge entering service on or after January 1, 2011.

Judges will be required to reach age sixty-seven and have at least twelve years of service or reach age sixty-two and have twenty years of service before they are eligible for normal retirement. If a judge retires at age sixty-seven with less than twelve years of service, or at sixty-two with less than twenty years service, their retirement compensation will be reduced proportionately. Judges in this retirement plan will be required to contribute four percent of their compensation to the retirement system. Judges will not be able to purchase credit in the retirement plan for their past non-federal full-time public employment or their military service. Judges under this plan who continue to work after their normal retirement date will not have cost-of-living increases added to their retirement compensation for the period of time between their eligibility for retirement and their actual retirement date. When a retired judge under this plan dies, their beneficiary will not receive an amount equal to fifty percent of the judge’s retirement compensation. Instead, judges will make a choice at retirement among the benefit payment options, that includes options for the amount received by the beneficiary. The employee contribution rate, the benefits under the judicial retirement plan, and any other provision of the judicial retirement plan may be altered, amended, increased, decreased, or repealed, but such change will only apply to service or interest credits after the effective date of the change.

This act prohibits a retired judge who becomes employed after January 1, 2011, as an employee eligible to participate in the Missouri State Employees Retirement System retirement plan from receiving their judicial retirement benefits while they are employed. Any judge who serves as a judge while he or she is receiving their judicial retirement is prohibited from receiving their judicial retirement while serving as a judge. A judge who serves as a senior judge or senior commissioner while receiving judicial retirement will continue to receive judicial retirement and additional credit and salary for their service.