Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.

Maryland hearing on usage and authorization for court facility dogs: bills in 6 other states pending/enacted recently

Over the last several years courts have grappled with when, and how, to allow the use of court facility dogs to assist witnesses and victims in giving testimony. A hearing set for today in Maryland’s Senate will examine the subject, while 6 other states have in the 2015/2016 legislative cycle either debated or in the case of Arkansas enacted statutes regarding facility dog usage.

Arizona: criminal cases, victim under 18, jury instruction required

HB 2375 of 2016 provides a court shall afford a victim who is under eighteen years of age the opportunity to have a facility dog accompany the victim while testifying in court. The court would be obligated to inform the jury “the facility dog is a trained animal, is not a pet owned by the victim witness and that the presence of the facility dog may not be interpreted as reflecting on the truthfulness of the testimony that is offered.”

HB 2375 cleared the House Judiciary Committee on January 20 and the House Rules Committee on January 25.

Arkansas: criminal cases, witness under 18, “appropriate jury instructions” required

HB 1855 of 2015 provided, subject to the Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence, or other rule of the Supreme Court, if requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated, a child witness of the party shall be afforded the opportunity to have a certified facility dog accompany him or her while testifying in court. “In a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.”

HB 1855 was enacted as Act 957 of the 2015 session.

Connecticut: criminal cases, violent crime victim, nothing on jury instructions

HB 5364 of 2015 provided that that in any criminal prosecution involving an alleged violent crime and testimony from a victim of such crime, such victim shall be permitted to be accompanied by a therapy dog while testifying in the criminal prosecution, provided such dog is not visible to the jury.

HB 5364 was filed in 2015 but never advanced out of committee.

Hawaii: any “judicial proceeding”, “vulnerable witness”, jury instructions “to the extent necessary”

HB 1668 of 2016 and the identical SB 2112 provide a court may permit the use of a facility dog involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of the vulnerable witness. “To the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings.”

Both bills are pending in their respective Judiciary Committees.

Maryland: criminal proceedings, child witness, nothing on jury instructions

SB 55 of 2016 provides a court may allow a facility dog or therapy dog to accompany a child witness. There is no mention of jury instructions.

SB 55 is pending before the Senate Judicial Proceedings Committee and it set for a hearing today (January 26).

New York: criminal proceedings, “vulnerable witness”, lengthy jury instruction

AB 389 of 2015 and the identical SB 231 provide that a court shall permit the use of a facility dog when, in a criminal proceeding involving the testimony of a vulnerable witness, the court determines by a preponderance of the evidence that it is likely that such witness will be unable to effectively communicate if required to testify without the presence of such facility dog and that the presence of such facility dog will facilitate such testimony. Both bills include a lengthy jury instruction statement

A jury instruction shall be given both before and after the appearance of the facility dog with the witness and at the conclusion of the trial. Such instruction shall include that the dog is a highly trained professional who is properly referred to as a “courthouse facility dog.” Included in this shall be the emphasis that the dog is not a pet, is not owned by the witness and is equally available to both the prosecution and defense under certain circumstances. Such instruction shall include that the presence of the facility dog is in no way to be interpreted as reflecting on the truthfulness of the testimony offered. Such instruction shall also include that the presence of the dog is a reasonable accommodation to the witness in allowing them to fulfill the obligation of testifying in a court of law.

Neither bill advanced out of committee in the 2015 session and were carried over into the 2016 session.

Tennessee: any civil or criminal proceeding, witness fitting criteria, nothing on jury instructions

HB 1987 of 2016 and the identical SB 1618 provide a court may allow the use of a courthouse facility dog for any civil or criminal proceeding for a witness. The court, in deciding on whether to permit the usage, may consider

  1. The age of the witness
  2. The nature of the witness’s relationship to the events giving rise to the proceeding
  3. Whether the witness suffers from any disability
  4. The rights of the parties to the proceeding
  5. Any other factors that the court deems relevant in facilitating the effective communication of information by the witness and protecting the rights of the parties to the proceeding.

HB 1987 has been filed but not yet assigned to a committee. SB 1618 is in the Senate Judiciary Committee.

 

Across country, state legislatures consider altering number of nominees judicial nominating commissions must release

One particular aspect of judicial selection legislatures have had a keen interest has been the number of names that advance through judicial nominating commissions (JNCs). 2016 looks to be no exception; in Missouri SJR 30 prefiled for the new year would eliminate the restriction that the state’s JNCs send only three names to the governor. Moreover, an examination of legislation over the last two decades shows a marked uptick in interest outside of Missouri over the last several years.

Alaska

The state’s constitution provides the state’s JNC send “two or more persons” to the governor when a vacancy occurs in either the Supreme or Superior Court; statutes require “two or more persons” for Court of Appeals (Alaska Stat. § 22.07.070) and District Court (§ 22.15.170) vacancies. No recent attempt has been made to alter these provisions.

Arizona

The state’s constitution provides that if the vacancy is on the Supreme Court, Court of Appeals, or Superior Court (in counties that use a commission system) the governor is to receive the names of “not less than three persons.” Several efforts have been made to amend this provision. SCR 1038 of 2005 would have increased this to 6 names for appellate vacancies and 7 for Superior Courts. In 2011 proposals were submitted (SCR 1040, SCR 1046, and SCR 1049) that would have increased the list to 6 names for appellate vacancies and 7 for Superior Courts.

The proposal that eventually made it on the ballot was SCR 1001 of 2011: 8 names for both trial and appellate vacancies. SCR 1001 also included several other changes to give governors more power over the JNCs. When it appeared on the 2012 ballot as Proposition 115 it received only a 27% yes vote. Undaunted by the loss, the legislature in 2013 passed HB 2600. Rather than amend the constitution, the legislature tried to force by statute the JNCs to provide governors “the names of at least five persons” for trial and appellate vacancies. In September 2013 the state’s supreme court held that law unconstitutional.

Colorado

The state’s constitution provides the JNCs in the state are to provide “a list of three nominees for the supreme court and any intermediate appellate court, and… a list of two or three nominees for all other courts of record…” No recent attempt has been made to alter these provisions.

Connecticut

Connecticut adopted a commission based system in 1986: governors nominate from a list provided by the state’s judicial selection commission but the constitution is silent as to the number. State law (Conn. Gen. Stat. § 51-44a) provides that the commission is to provide the governor a list of all “qualified candidates”. No recent attempt has been made to alter these provisions.

Florida

The state adopted a merit/commission system in 1972 for the state’s trial and appellate courts. The original provision required the JNCs to submit a list of “not fewer than three persons”. For the appellate courts, this was amended in 1976 to precisely 3 (“one of three persons nominated”). For trial courts, commission appointment was eliminated, but was made optional under a 1998 amendment that allowed voters to opt in for each county in the 2000 election. Under the 1998 trial court opt-in provision “not fewer than three” names were to go to the governor. No county opted into this system for its trial courts.

For the appellate courts, several efforts were made in the 1990s to change the “not fewer than three persons” language. The first was to change it to precisely “three persons” (SJR 18 of 1992). Eventually the legislature settled on “Not fewer than three persons nor more than six persons” (HJR 1415 and SJR 978 of 1996). The expansion to 3-6 names was approved by voters as Amendment 3 in November 1996.

By 2000 another round of efforts were made to expand the list, this time by dropping any numerical requirements and providing the JNCs were to send a list of all applicants (HB 923 of 2000) or a list of all persons eligible to fill the vacancy (HB 627, HB 827, SB 1794, and SB 1860 of 2001). None of the proposals advanced and the issue has appeared to have remained dormant since.

Hawaii

The state adopted a commission based appointment system in the 1978. Originally the commission was required to submit a “list of not less than six nominees” for each vacancy in the state’s appellate and trial courts. A 1994 amendment (SB 2294) modified this to “a list of not less than four, and not more than six” for the Supreme, Intermediate Appellate, and Circuit Courts; District Courts remained at “not less than six nominees”.

There the matter lay for over a decade until a 2005 effort (SB 1166) would have provided the lists for all courts were to be made up of “not less than three.” In 2007 a measure to change the threshold down to 3-5 names for all courts was introduced. SB 948 was approved by the full Senate and advanced through the House Judiciary Committee before ultimately dying when the legislature adjourned.

Indiana

The state’s constitution provides the judicial nominating commission must submit “a list of three nominees” to the governor for vacancies on the Supreme Court or Court of Appeals. No recent attempt has been made to alter these provisions.

Iowa

The state’s constitution provides that the judicial nominating commission is to provide “three nominees” for Supreme Court vacancies and “two nominees” for District Courts; a statute (Iowa Code § 46.14A) with respect to the Court of Appeals repeats the “three nominees” language.

With respect to the constitutional provision, there were several efforts (SJR 2006 of 2010; SJR 6 and SJR 7 of 2011) to allow the governor to reject the list of three names provided for Supreme Court vacancies and requiring the commission submit a list of three new names. None advanced.

With respect to the Court of Appeals, the statute creating the court in 1976 required the nominating commission provide the governor a list of 3 names for vacancies on that court (former § 46.15). That number was expanded to five when the state’s judiciary was reorganized in 1983. The number was reverted back to 3 when portions of section Iowa Code § 46.15 were recodified as § 46.14A (SF 381 of 2007).

Kansas

The state’s constitution specifies that with respect to the Supreme Court the Supreme Court Nominating Commission is to provide the governor a list of “three persons.” The state’s Court of Appeals had until 2013 also be selected in like fashion via a statutory system (Kan. Stat. Ann. § 20-3005) that required a list of “three nominees”. In addition District Courts in those judicial districts that have opted into the commission-select system have their vacancies filled from a list of “not less than two nor more than three persons for each office which is vacant” (§ 20-2909).

With respect to the Supreme Court, there was an effort to allow governors to reject the list of 3 names and be provided a second list of 3 new names for a total of 6 (HCR 5005 of 2009) or to simply have the commission submit 6 names on the first list (SCR 1619 of 2007 & SCR 1612 of 2009). Another (HCR 5027 of 2013) would have provided the commission submit all qualified persons to the governor.

With respect to the Court of Appeals no effort was made to expand the list the commission was required to provide, the commission system was simply eliminated in 2013 and the governor permitted to appoint any qualified person subject to senate confirmation.

With respect to the District Courts, no recent effort appears to have been made to modify the current practice of 2-3 names.

Missouri

Since adoption of its commission-based plan the Missouri constitution has specified that commissions are to submit “three persons” to fill vacancies in the Supreme Court, Court of Appeals, and specified Circuit Courts. Although a 1976 constitutional revision moved the location of the language (from Art. V, Sec. 29(a) to the new Art. V, Sec 25(a)) the 3-persons provision was unchanged.

Much of the focus in this area has been for a 4/8 or 5/10 plan. Under the proposals the initial list submitted to the governor would be made up of 4 or 5 names (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.

The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011.

The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.

The latest iteration prefiled for the 2016 session (SJR 30) would simply eliminate the 3-name provision.

Nebraska

The state’s constitution provides vacancies in the state’s Supreme and District Courts must be filed from a list of “of at least two nominees” presented to the governor. Various statutes extend this practice to the Court of Appeals (Neb. Rev. Stat. § 24-1101), County Courts (§ 24-820) and Juvenile Courts (§ 43-2,114) and incorporate the constitutional provision by reference. No recent attempt has been made to alter these provisions.

New Mexico

New Mexico uses a unique two-step process for judicial selection. When a vacancy occurs one of three JNCs (appellate judges, district court judges, or metropolitan court judges commissions) meets and submits to the governor a list of all “persons qualified for judicial office and recommended for appointment”. The governor can then ask for a second list of names. Whoever is picked, however, must then face off in partisan elections at the next general election.

While the constitution does not provide for a minimum or maximum number of names, one bill did seek to put such a provision in place after a single name was submitted in 2006 to the state’s governor to fill a District Court vacancy and no additional names sent when he asked for a second list. SB 1075 of 2007 would have required JNCs provide at least two names per vacancy. The bill never proceeded out of committee.

New York

New York’s constitution since 1977 requires vacancies for the state’s top court (called the Court of Appeals) be filled via a commission on judicial nomination, but gives the legislature power to set the organization and procedure of the commission. State law on this subject (Judiciary Law § 63) specifies the list to fill associate judgeship must contain “at least three persons and not more than seven persons.” Interestingly, the chief judgeship must be made up of at least 7 persons (“In recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration, for a vacancy in the office of chief judge the commission shall recommend to the governor seven persons.”)

In 1993 an effort (AB 916) was made to raise the 7-name limit for chief judge to 11 names and automatically put all serving associate judges on that list. The bill was reintroduced for several sessions thereafter (AB 3699 of 1995 & AB 2148 of 1997).

In 2009 an attempt was made to eliminate the numerical restrictions and require the commission send all qualified names to the governor. AB 3866 of that year failed to advance but was reintroduced in the 2011 session as AB 309.

Also in 2009 an attempt was made to increase the limits from 3-7 to 5-9 (associate judge) and from 7 to 9 (chief judge). It too failed to advance.

Oklahoma

The state’s constitution provides that vacancies in the state’s two top courts (Supreme Court and Court of Criminal Appeals) are to be filled from a list of “three (3) nominees” submitted to the governor. A statute (Okla. Stat. tit. 20, § 30.17) extends this practice to the state’s intermediate appellate court (Court of Civil Appeals). No recent attempt has been made to alter these provisions.

Rhode Island

In 1994 the state’s constitution was amended to provide vacancies in the Supreme Court were to be filled from a list provided by a judicial nominating commission to be established by the legislature and confirmed by the House and Senate. Lower court vacancies (Superior, Family, and District) were also to be filled by commission-based appointment but required only Senate confirmation. A statute (R.I. Gen. Laws 8-16.1-6) provides that the list provided by the commission is to be made up of between 3-5 names.

From 2008 to 2015 governors were not limited to just those 3-5 names. Under laws enacted annually from 2008 to 2014 (HB 7829 of 2008, HB 5567 of 2009, SB 2645 of 2010, SB 686 of 2011, HB 8043 of 2012, SB 471 of 2013, and HB 8006 of 2014) anyone vetted and approved by the JNC for a judgeship would be eligible for any other judgeship of the same court for 5 years. The program lapsed on July 1, 2015 when HB 6307 failed to be enacted to give the program yet another 1-year extension.

South Carolina

South Carolina is one of only two states (Virginia is the other) in which the legislature elects judges with no involvement by the governor. In 1997 the state’s constitution was amended to require the creation of a “Judicial Merit Selection Commission” to recommend nominees to the legislature for the Supreme Court, Court of Appeals, Circuit Court, and Family Court. The commission’s membership and processes were left up to the legislature to set. The law enacted to implement the constitutional provision (S.C. Code Ann. § 2-19-80) requires the release by the commission of “the three candidates whom it considers best qualified.”

There have been over two dozen pieces of legislation to alter the number of names released by the commission. Almost all focused on the release of all qualified names, with “qualified” meaning either a) that the individual meets the minimum requirements for the position (age, attorney, etc.) or b) the person was “qualified” to serve in the opinion of the commission.

The practice for the better part of a decade was for the House to pass the “all qualified names” provision and for the Senate to either reject it or amend it to “no more than 3 qualified names” but with a provision that more than 3 names could be sent if two-thirds of the commission approved. This House/Senate split occurred in the 2003/2004 (HB 4734), 2005/2006 (HB 2079), and 2007/2008 (HB 3463 & SB 40) sessions. The Senate passed its own standalone version (3 names, more if two-thirds of commission approved) in 2007 (SB 40) that the House failed to act on.

The matter lay dormant until the 2015/2016 session when again the House passed an “all qualified” names bill (HB 3979); the Senate has yet to act on the legislation.

South Dakota

The state’s constitution was amended in 1980 to provide that vacancies in the Supreme Court are to be filled from a list of “two or more persons” nominated by the judicial qualifications commission. No recent attempt has been made to alter these provisions.

Utah

The state’s constitution was amended in 1985 to provide for a commission-system with senate confirmation for all courts of record (Supreme, Court of Appeals, District and Juvenile). The list given to the governor for these courts must consist “of at least three nominees.” A statutory change in 2008 (SB 72) brought the state’s other courts (Justice) into a commission system. The Justice Court Commission was required to submit “at least two names to the appointing authority.”

For the courts of record, a 1995 statute (former Utah Code § 20A-12-105, recodified in 2008 as § 78A-10-104) provided the appellate commission was to provide the governor at least 5 names for each vacancy while trial court commissions were to provide at least 3 names. In 2010 this was further amended (SB 289) to provide that the appellate court commission is to submit 7 names to the governor, while the trial court commissions are to send 5. SB 108 of the same year had similar provisions. A 1998 effort (SJR 3) would have allowed the governor to reject a list of names from the commission and request a new list. There was no limit to the number of rejections.

For the Justice Courts, a 2015 proposal (SB 141) increased the number of names from “at least two” to “at least three” for the local appointing authority to choose from. The bill was signed into law in March of this year.

Vermont

The state’s constitution provides the governor is to nominate Supreme Court and other judges (other than Probate judges) from a list provided by a judicial nominating body to be created by the legislature. A state statute (4 VSA 602) provided that the Judicial Nominating Board is to submit all “candidates” to the governor for consideration; this was amended in 2009 (HB 470) to “qualified candidates”. Other than the 2009 amendment, no recent attempt has been made to alter these provisions.

Wyoming

The state’s constitution as amended in 1972 provides for a judicial nominating commission for the supreme court, district courts and any other courts the legislature decides. The commission is to give the governor “a list of three nominees” for vacancies. No recent attempt has been made to alter these provisions.

New York Legislative Year in Review: Expanding mandatory e-filing in state’s courts

Law

A8083 Vests the Chief Administrative Judge with authority, provided the local County Clerk agrees, to implement mandatory e-filing in a county and in most classes of cases. Continues present authorization for the use of e-filing, both consensual and mandatory, in criminal superior courts and Family Court. Continues permanently, without change, programs of consensual and mandatory e-filing in Surrogate’s Court and the New York City Civil Court. Authorizes use of e-filing in the Appellate Divisions at the discretion of each Judicial Department.

2015 efforts to changing civil jurisdiction thresholds: Nevada and Washington enact

Last year around this time I noted a trend towards increasing civil jurisdiction thresholds for some limited jurisdiction courts.

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result.

This year saw 5 efforts to raise these limits, including 2 states where changes were enacted.

Maryland: District Courts have exclusive original civil jurisdiction in specified civil cases up to $30,000 (Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 4-401). The threshold was $25,000 but was increased in 2007 (HB 1109). No other efforts to increase the threshold were made in the past decade until 2015. HB 461 would have increased the jurisdiction of the District Court to $50,000 while HB 719 would have raised the jurisdiction to $50,000 but only for first-party motor vehicle insurance benefits for uninsured motorist coverage. Both bills were withdrawn by their respective authors.

Nevada: Nevada’s Justice Courts had jurisdiction in civil cases up to $10,000 since a 2003 law (AB 100) increased the threshold from $7,500 (Nev. Rev. Stat. Ann. § 4.370(1)(a)). Since then there have been no efforts to change the provisions until 2015. AB 66 as enacted now increases that threshold from $10,000 to $15,000 effective January 1, 2017.

South Carolina: Magistrate Court is effectively the state’s small claims court, with a concurrent jurisdiction with the Circuit Court up to only $7,500 (S.C. Code Ann. § 22-3-10). Nearly a dozen efforts had been made in the past decade and 2015 was no exception. SB 53 would have increased the jurisdiction to $10,000 and required mediation for cases below $5,000. SB 325 would have simply provided an increase from $7,500 to $10,000. Neither bill advanced out of committee.

New York: There are five types of limited jurisdiction courts with civil jurisdiction, each with its own threshold:

  • $25,000 for NYC Civil Court and County Courts (NY CLS NYC Civil Ct Act § 201 & NY CLS Jud § 190(1))
  • $15,000 for City and District Courts (NY CLS UCCA § 202 & NY CLS UDCA § 201)
  • $3,000 for Town and Village Courts (NY CLSUJCA § 201(a))

AB 1935 would have raised the jurisdiction of the Town and Village Courts to $5,000. As all prior efforts introduced in the last decade, it never advanced out of committee.

Washington: The state’s District Courts had civil jurisdiction in cases up to $75,000 (Rev. Code Wash. (ARCW) § 3.66.020). The threshold had previously been $50,000, but that was increased in 2008 (HB 2557). A prior effort to increase to $75,000 had previously died in committee without a hearing (SB 5322 of 2005). This year saw two efforts in increase the limit, with one reaching enactment.

  • SB 5125 raises the limit from $75,000 to $100,000. It met with unanimous approval in House and Senate committees and on the floors of each chamber and was signed into law by the governor with an effective date of July 24, 2015.
  • HB 1248 would have raised the limit from $75,000 to $100,000 but also adjusted the threshold for mandatory arbitration from $15,000 to $75,000 in the Senate amended version. The bill was approved 78-19 in the House and was approved as amended by the Senate Law & Justice Committee but died on the Senate floor.

Jury Nullification in New Hampshire, Massachusetts, Oregon, and New York

This year, four states introduced measures that addressed the issue of jury nullification. Even though all measures failed, it still reveals a greater level of attention towards the power of juries to nullify than it has historically received. Although two of these measures have been reviewed in previous posts, below is a collection and summary of the measures addressing jury nullification in the state legislatures this session.

New Hampshire

Over the past decade there have been efforts in New Hampshire to codify the right of juries to nullify the law, and to require that juries be informed of that right. These efforts culminated in the enactment of HB 146 in 2012, which was viewed by some proponents of jury nullification instructions as a victory, but by others as too watered down to be meaningful; and so efforts have continued.

Two bills were introduced in the New Hampshire House of Representative this session. Both HB 246 and HB 470 were responses to a New Hampshire Supreme Court ruling in October 2014, discussed in a previous post. This ruling significantly narrowed the scope of RSA 519:23-a, the statute created by HB 146, by declaring that it does not provide a right to jury nullification instructions. RSA 519:23-a, reads:

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Both measures attempted to circumvent that ruling by amending the statute to more explicitly provide for jury nullification instructions.

HB 246 was discussed in the previous post mentioned above, and would have added an additional provision to RSA 519:23-a that the refusal by a judge to administer jury nullification instructions be considered maladministration, an impeachable offense. This bill was killed by the House Judiciary Committee in February.

However, this was not the only jury nullification measure introduced in the New Hampshire House of Representatives this session. Another bill, HB 470 , proposed to repeal RSA 519:23-a and replace it with language that would make clear the jury’s right to nullify the law and the defendants right to inform them of this power. Specifically, the language of HB 470 read:

In all court proceedings, the court shall instruct the jury of its inherent right to judge the law as well as the fact and to nullify any and all actions it finds to be unjust. The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

HB 470 was killed by the House Judiciary Committee in late February. The language of this bill is almost identical to the introduced version of HB 146 of the 2012 session, the enacted version of which created RSA 519:23-a. However, HB 146 was amended by both the House and the Senate, and by the time it was enacted no longer included any explicit reference to jury nullification.

HB 246 and HB 470 are not the first bills since the enactment of HB 146 aimed at expanding the provisions of that bill. In 2014, the House considered HB 1452 (discussed here) which proposed to replace the language of RSA 519:23-a and more explicitly require that the jury be informed of the concept of jury nullification. The measure also proposed that a mistrial be declared if the court failed to provide such instructions. This bill was killed by the House Judiciary Committee. In 2012, the same session in which HB 146 was passed, two other bills, HB 1247 and HB 1397, were also considered that included more explicit provisions for jury nullification instructions. Both were killed by the House Judiciary Committee.

Massachusetts

Although with a much less contentious history, a measure was introduced in the Massachusetts House of Representative that required judges to permit the defense to inform the jury of their right to nullify the law. The language of this bill was very similar to HB 470 of New Hampshire. HB 1544 read:

In all criminal proceedings, the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to the facts by providing a specific nullification instruction to the jury. The instruction shall further inform jurors of their right to refuse to enforce unjust or unjustly applied laws.

Although referred to the Joint Committee on the Judiciary, no action was ever taken. This legislation was the first attempt to establish jury nullification instructions in Massachusetts in recent years.

Oregon

HB 3381 was introduced in the Oregon House of Representatives. This bill was also discussed in a previous post. HB 3381 proposed to amend ORS 136.325, which governs what information juries may and may not be given in criminal cases requiring mandatory minimum sentences and/or the adult prosecution of juveniles. The jury nullification instructions would have read:

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty.

The bill was referred to the House Judiciary Committee, but no further action was taken. This was the first attempt to establish jury nullification instructions in Oregon in recent years.

New York

New York also introduced legislation regarding jury nullification. However, rather than attempting to inform juries of their ability to nullify, as the other measures reviewed in this post did, this measure attempted to restrict the nullification power of juries by informing them of a reason for which they may not nullify the law. Introduced as AB 6381 in the Assembly, and SB 1724 in the Senate, this bill proposed a requirement that judges deliver certain instructions to juries in criminal proceedings, including the instruction that:

It is against public policy for a defendant to be acquitted of a charged offense or convicted of a lesser included offense based upon an appeal to the societal bias that may be possessed by members of a jury.

Although introduced in both the Assembly and the Senate and referred to their Committees on Codes, no action was ever taken on the bill. This legislation was the first attempt to address jury nullification instructions in New York in recent years.

NY: Trial judges would have 9 months to make decisions or be forced out of office

A deadline-to-decide bill filed in the New York Assembly last year (AB 8408 of 2014 discussed here) has been reintroduced as AB 701 of 2015. If adopted, the bill would compel trial judges to make decisions within 9 months or face removal from office.

Under the bill judges considering motions or verdicts in non-jury trials would have 9 months from submission of the motion/case to render an opinion. Failure to meet the 9 month deadline would result in the clerk of the court reporting the delay to the state’s State Commission on Judicial Conduct. The Commission would be required to remove a judge from office if

  • the judge failed to meet the 9-month deadlines 5 times or more
  • took longer than 2 years to render a decision in any one case/motion

In addition if passed AB 701 would give all judges 6 months from enactment to render decisions in all pending matters over the new 9-month deadline.

AB 701 is currently before the Assembly Judiciary Committee.