North Dakota State of the Judiciary: “access to the courts and the ability to participate in one’s own case are key concepts in delivering justice”

The National Center for State Courts has an archive of current and prior State of the Judiciary addresses located here.

Chief Justice Gerald W. VandeWalle gave his State of the Judiciary to a joint session of the North Dakota legislature on January 9. No formal resolution appears to have been adopted, instead a motion was made on the floors to convene in joint session for the speech. See the respective House and Senate journals. The text of the speech is here.

Highlights below the fold.

Continue reading North Dakota State of the Judiciary: “access to the courts and the ability to participate in one’s own case are key concepts in delivering justice”

Bills to allow more guns into courthouses advance in six states

A litany of legislation has been introduced in the 2013 to allow more people to carry firearms into U.S. state courthouses. Today I’ll be looking at the bills that have moved or are moving in this regard.

Arizona

Current law in Arizona leaves the question of carrying of weapons to the presiding judge of the particular court, with some exceptions. One in particular is that a peace officer or retired peace officer may only carry if a) they have the presiding judge’s permission or b) they are in the court to provide court security or respond to an emergency (A.R.S. § 38-1102)

HB 2516 Effectively removes the presiding judge’s authority in this area and specifically allows peace officers acting in an official capacity and carrying official peace officer identification to carry firearms in court. A floor amendment added a proviso: a presiding judge may establish rules or policies consistent with the new law enforcement carry authorization provision “for the protection of the court”.

The bill as amended was approved by the full House on February 28 and the Senate Judiciary Committee March 11.

Georgia

I mentioned a few weeks ago the situation in Georgia; by law, firearms are not generally permitted inside the state’s courthouses and there is a specific crime of carrying in a courthouse (O.C.G.A. § 16-11-127(b)(2)), but there are 16 categorical exceptions for people like law enforcement, certain judges, certain retired judges, prosecutors, etc.

HB 512 would effectively allow anyone with a concealed weapons permit to carry into a courthouse UNLESS the court provided security screening at the doorway. Specifically, it provides

A license holder shall be authorized to carry a weapon in a government building or courthouse where ingress into such building or courthouse is not restricted or screened by security personnel during the hours the government building or courthouse is open for business. A person who is not a license holder and who attempts to enter a government building or courthouse with a weapon shall be guilty of a misdemeanor. A person who enters or attempts to enter a government building or courthouse where ingress is restricted or screened by security personnel shall be guilty of a misdemeanor; provided, however, that a person who exits such building or courthouse or leaves such location upon his or her observation that such building or courthouse has security personnel restricting or screening ingress into such building or courthouse shall not be guilty of violating this subsection

HB 512 was met with surprise by judges, who have now come out in opposition. Despite the protest by judges, the bill was approved by the full House on March 7.

In addition to HB 512, HB 60 amends an existing categorical exemption and would allow all retired state and federal judges to carry. It was approved by the full House February 13.

Kansas

Like Georgia, Kansas provides a general prohibition and a specific crime of carrying of firearms into courthouses, with specific exception for certain judges and some others (K.S.A. § 21-6309 & 75-7c10).

HB 2055, echoing Georgia’s language, would effectively allow anyone with a concealed carry permit to enter a courthouse unless the court provides “adequate security” defined as screening at the front door.

“Adequate security measures” means the use of electronic equipment and personnel at public entrances to detect and restrict the carrying of any weapons into the state or municipal building, including, but not limited to, metal detectors, metal detector wands or any other equipment used for similar purposes to ensure that weapons are not permitted to be carried into such building by members of the public.

An amendment to re-establish the ban on courthouse carrying failed 60-61 on the House floor.

North Dakota

Existing law makes it a crime to carry a weapon into “publicly owned or operated buildings”, including courthouses, with several exceptions for certain judges, law enforcement, etc. (North Dakota Code 62.1-02-05)

Like the other bills, HB 1366 would effectively allow anyone with a concealed carry permit to enter a courthouse.

Unlike the Georgia and Kansas bills, there is no exception for instances where the court provides screening at the door. Also unlike the other bills, this one would appear to allow out-of-state residents to carry in to North Dakota courthouses.

This section [prohibiting carrying into “publicly owned or operated buildings”] does not apply to…An individual possessing a valid concealed weapons license from this state or who has reciprocity under section 62.1-04-03.1 authorizing the individual to carry a firearm concealed…

HB 1366 was approved by the full House February 27 and has a hearing before the Senate Judiciary Committee March 19.

Another North Dakota bill (SB 2145) would allow all municipal court judges in the state to carry firearms into their courthouses (currently, only municipal court judges who are licensed attorneys may do so). SB 2145 was approved by the full Senate on January 23 and is set for a hearing before the House Judiciary Committee on March 20.

Oklahoma

Existing law (21 Okl. St. § 1277) provides a general ban on carrying firearms into a “structure, building, or office space which is owned or leased by a city, town, county, state, or federal governmental authority for the purpose of conducting business with the public” such as a courthouse.  There are categorical exemptions for judges, law enforcement, etc.

HB 1723 as introduced expands the list of judges who may carry into a courthouse to include municipal court judges. As amended however, the bill goes farther, allowing peace officers on active duty to carry their weapons anywhere in the state and making other changes to where and when off-duty peace officers may carry. The bill, as amended, was approved by the full House March 14.

Wyoming

State law (Wyo. Stat. § 6-8-104) provides a concealed carry permit does not allow a person to carry into “any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in the courtroom”. There is no specific penalty for violation of this provision. In 2012, a local judge issued an administrative order banning all weapons from the courthouse, not just his courtroom.

HB 216, was introduced to make it a felony to carry a firearm into a courtroom, provides a presiding judge may carry a weapon into courtroom and waive the prohibition on carrying in the courtroom. The bill, however, makes no mention of carrying into a courthouse and proponents are  clear they intended the bill to continue to allow for courthouse carrying.

 

Merit selection: comprehensive state-by-state review of efforts to modify or end existing systems

The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.

Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.

Alabama – Circuit Court in select counties [interim only]: No activity

Alaska – Supreme Court, Court of Appeals, Superior Court: No activity

Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.

Colorado – Supreme Court, Court of Appeals, District Court: No activity

Connecticut – Supreme Court, Appellate Court, Superior Court: No activity

Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).

Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.

Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity

Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.

Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.

Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).

Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.

Montana – Supreme Court and District Court [interim only]-: Legislature not in session.

Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity

Nevada – Supreme Court and District Court [interim only]: Legislature not in session.

New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.

New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.

North Dakota – Supreme Court and District Court: Legislature out of session

Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.

Rhode Island – Supreme Court, Superior Court, Family Court, District Court : No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.

South Dakota – Supreme Court, Circuit Court [Interim only]: No activity

Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

HB 1017 / SB 82 Retains merit selection, but makes judicial nomination commission recommendations advisory; allows governor to ignore recommendations.

HB 1702 / SB 646 Requires judges selected via merit selection system receive 75% yes in retention election.

HB 3452 / SB 2794 Retains merit selection, but alters nomination process and adds confirmation.

HB 3691 / SB 3652 Requires House and Senate speakers appoint all nine members of the judicial evaluation commission since the judicial council no longer exists.

Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity

Vermont – Supreme Court, Superior Court, District Court: No activity

West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity

Wyoming – Supreme Court, District Court, Circuit Court: No activity

 

Ohio Issue 1: Supreme Court Commissions? Courts of Conciliation? Thank (or blame) New York…

While much of the focus regarding Issue 1 has been on the proposed change to the judicial retirement age, Ohio voters will decide on the outright repeal of two sections of the state constitution’s Article 6. Both sections can be traced back to New York’s 1846 constitution.

Courts of Conciliation

Ohio Constitution (1851) Article 6, Section 19

The General Assembly may establish courts of conciliation, and prescribe their powers and duties; but such courts shall not render final judgment in any case, except upon submission, by the parties, of the matter in dispute, and their agreement to abide such judgment.

New York Constitution (1846) Article 6, Section 23

Tribunals of conciliation may be established, with such powers and duties as may be prescribed by law; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference, and agree to abide the judgment, or assent thereto, in the presence of such tribunal, in such cases as shall be prescribed by law.

Provisions for tribunals of conciliation or courts of conciliation can be found in the 1800s constitutions of not only Ohio (1851), but Wisconsin (1848), California (1849), Michigan (1850), Indiana (1851), and North Dakota (1889). They are all taken, almost verbatim, from the 1846 New York Constitution, which for its time was considered revolutionary in terms of judicial proceedings (and also was the genesis for the appellate commissions discussed below).

Courts of conciliation were akin to small claims courts (Minnesota’s small claims courts are still called “conciliation courts”) and arbitration or mediation (statutes in Arizona, California, Montana, and Nebraska reference conciliation courts that focus to amicably resolve martial and domestic relations issues). The report of the debates of the 1851 Ohio Constitutional convention note the intent behind these courts:

This plan of a court of conciliation has many advocates, who desire to see it established. It has been tried in other countries, with excellent effect—greatly diminish litigation and subduing a litigious spirit—a spirit which is the bane of a community. It sets neighbor against neighbor, brother against brother and even father against son, and son against father. Such litigation have I often witnessed, and in some cases seen it prosecuted with an embittered spirit, little short of devilish. Every means which promises only a mitigation if the evil should be employed. The expense and time wasted in such controversies, employing judges, jurors, witnesses, lawyers and suitors, is but a little of the mischief. The monstrous evil consists in the engendering and perpetuating of strife and contention among neighbors, begetting and nursing discord and hatred in families, and in disturbing the harmony and peace of society. A judicious peace loving and peace making officer of this kind may be more useful, far more useful than the first judge of your State, whom you propose to dignify with title of Chief Justice of Ohio.

It should be noted that despite the above ringing endorsement, the provision almost never happened. According to the reports of the debates at the 1851 Ohio Constitutional Convention, the vote to put in the provision was adopted 42-39.

All references to such courts can trace back (constitutionally speaking) to similar courts in Denmark and Norway, the “other countries” alluded to above. Although intended as separate and independent from regular courts, most courts of conciliation instead became divisions of existing courts. For example, a 1909 report indicates Cleveland’s Municipal Court had a Conciliation Division.

According to a history of the New York Constitution, the courts were seldom used because existing laws, with respect to arbitration, were already in place and accessible. In New York, it wasn’t until 1862 that an actual  tribunal of conciliation was set up in a judicial district. The statute authorizing the court was repealed 3 years later. As the Ohio Legislative Service Commission’s review of Measure 1 (then called HJR 1) indicates, Ohio too opted to put in mediation/conciliation practices rather than create free-standing courts.

Supreme Court Commissions

Ohio Constitution (1875) Article 6, Section 22

A commission, which shall consist of five members, shall be appointed by the governor, with the advice and consent of the senate, the members of which shall hold office for the term of three years from and after the first day of February, 1876, to dispose of such part of the business then on the dockets of the supreme court, as shall, by arrangement between said commission and said court, be transferred to such commission; and said commission shall have like jurisdiction and power in respect to such business as are or may be vested in said court; and the members of said commission shall receive a like compensation for the time being, with the judges of said court. A majority of the members of said commission shall be necessary to form a quorum or pronounce a decision, and its decision shall be certified, entered, and enforced as the judgments of the supreme court, and at the expiration of the term of said commission, all business undisposed of shall by it be certified to the supreme court and disposed of as if said commission had never existed. The clerk and reporter of said court shall be the clerk and reporter of said commission, and the commission shall have such other attendants not exceeding in number those provided by law for said court, which attendants said commission may appoint and remove at its pleasure. Any vacancy occurring in said commission, shall be filled by appointment of the governor, with the advice and consent of the senate, if the senate be in session, and if the senate be not in session, by the governor, but in such last case, such appointment shall expire at the end of the next session of the general assembly. The general assembly may, on application of the supreme court duly entered on the journal of the court and certified, provide by law, whenever two-thirds of such [each] house shall concur therein, from time to time, for the appointment, in like manner, of a like commission with like powers, jurisdiction and duties; provided, that the term of any such commission shall not exceed two years, nor shall it be created oftener than once in ten years.

New York Constitution (1869) Article 6, Section 4 & 5

Sec. 4 Upon the organization of the [new] Court of Appeals [New York’s top court], under this article, the causes then pending in the present Court of Appeals shall become vested in the Court of Appeals hereby established. Such of said causes as are pending on the first day of January, eighteen hundred and sixty-nine, shall be heard and determined by a Commission, to be composed of five Commissioners of Appeals, four of whom shall be necessary to constitute a quorum; but the Court of Appeals hereby established may order any of said causes to be heard therein. Such Commission shall be composed of the Judges of the present Court of Appeals, elected or appointed thereto, and a fifth Commissioner who shall be appointed by the Governor, by and with the advice and consent of the Senate; or, if the Senate be not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session.

Sec. 5 If any vacancy shall occur in the office of the said Commissioners, it shall be filled by appointment by the Governor by and with the advice and consent of the Senate; or if the Senate is not in session, by the Governor; but in such case, the appointment shall expire at the end of the next session. The Commissioners shall appoint, from their number, a Chief Commissioner; and may appoint and remove such attendants as may be necessary. The reporter of the Court of Appeals shall be the reporter of said Commission. The decisions of the Commission shall be certified to, and entered and enforced, as the judgments of the Court of Appeals. The Commission shall continue until the causes committed to it are determined, but not exceeding three years; and all causes then undetermined shall be heard by the Court of Appeals.

We take for granted the system in place in 40 states of an intermediate appellate court (usually called the Court of Appeals), however the creation of these courts met with fierce resistance both from voters and, on occasion, state supreme courts. Consider, for example, that Nevada voters have three times in the last three decades rejected the creation of such a court, most recently in 2010 (a fourth attempt may be made in 2014). When Colorado’s legislature made an attempt to create such a court in 1886, the state’s supreme court issued an advisory opinion that the proposed Court of Appeal was an unconstitutional infringement on the Supreme Court’s role as the supreme court of the state (the Supreme Court upheld a different version of the Court of Appeals in 1891).

Ohio and other large states like Texas tried to grapple with this problem through the use of appellate commissions. The appointment of special judicial officers to hear certain motions or matters was, and is, not uncommon. To this day subordinate judicial officers in California trial courts are called “commissioners“.

What made the New York, Ohio, and Texas provisions unique was that they provided for panels of commissioners to sit and render judgments. This avoided the exceptionally untenable situation of creating an intermediate appellate court or adding judges to existing courts which, as noted, had no real political support. The commission idea, however, got the votes in 1869 as part of a massive overhaul of New York’s judiciary article. The provisions appear to have been for the most part duplicated in Ohio (1875) and Texas (1879 by statute) a few years later.

Eventually these commissions fell out of favor for two reasons. First, states large and small simply needed dedicated, permanent intermediate appellate courts to handle the caseload. Second, there was a very real possibility that decisions of the commissions would be in conflict with the courts.

New York got such a dedicated court (the Appellate Divisions) in its 1894 constitution. Ohio got Circuit Courts of Appeals in 1851 consisting of 1 Supreme Court Justice riding circuit and sitting with the judges of the courts of common pleas, but it was not until an 1883 amendment that the Circuit Courts of Appeals consisted of judges specifically elected to serve in those courts. These eventually were made into the modern District Courts of Appeals.

What appellate commissioners remain today (such as in Oregon) are hearing officers who handle motion practice, not panels. Perhaps the only remaining vestiges of the old system are in Ohio’s constitution and North Dakota’s “Court of Appeals” which, despite the name, functions much the same as the commissions did, with panels coming into existence or only being used when the state’s top court is overwhelmed.

 

2011 Midwestern indigent defense legislation

Law

North Dakota HB 1023 Strikes provision that certain court fees must be used to contract for indigent defense.

North Dakota HB 1065 Clarifies that the cities are responsible for indigent defense services in all prosecutions for violations of city ordinances, whether in city court, district court, or on appeal.

Vetoed

Minnesota HB 988 Requires the court, prior to appointing a public defender, to inquire whether a prosecutor intends to certify a misdemeanor as a petty misdemeanor. Provides that if an offense is certified as a petty misdemeanor, a defendant would not be eligible for a public defender. Clarifies that only those persons with a statutory right to a public defender under law may request appointment of a public defender. Establishes criteria to determine eligibility for public defender representation based on the offense level charged and the defendant’s income: misdemeanor 125% of federal poverty guideline; gross misdemeanor 150%; felony 175%. Maintains current language allowing the court to also determine eligibility based on defendant’s ability to pay for private counsel with current income and liquid assets. Strikes language limiting applicant’s duty to disclose information about changes in financial circumstances that is only relevant to eligibility for a public defender; language that allows only the public defender representing the applicant to see information in the application; and language providing that the court has the sole duty to conduct a financial inquiry, not the public defender. Requires all district courts to use financial statement forms furnished by the state public defender. Authorizes the court to reduce the $75 copayment for public defender representation. Provides that the court shall not appoint a public defender if a defendant: is financially able to retain counsel but refuses to do so; refuses to execute the required financial statement or provide information; or waives appointment of a public defender. Provides that the chief appellate public defender represents persons pursuing an appeal or post-conviction relief and the district public defender represents persons in all other statutorily defined cases. Strikes language mandating continued representation of an arrested individual and maintains permissive language allowing the public defender discretion in such cases. Eliminates restrictions on how reimbursements collected from defendants may be used by a district public defender’s office. Adds language requiring a defendant who is or becomes able to make partial payments to reimburse the state for the cost of the public defender. Strikes language referring to reimbursement guidelines (which is repealed in section 9). Directs the court, in determining a defendant’s payment schedule, to consider the defendant’s financial statement application. Requires the court to evaluate a defendant’s ability to make partial payments if the court originally determined that the defendant was financially unable to afford counsel due to the private retainer fee. Provides that the Board of Public Defense must fund all items and services necessary to satisfy its obligations law. Provides that a county is not responsible for public defender costs, expect for costs currently paid by Hennepin County.

Active/Carried over in 2012

Michigan HB 4742 Creates statewide public defense commission. Require commission develop, implement, and administer public defense system. Specifies manner for attorney representation of indigent criminal and juvenile defendants and standards for the appointment of legal counsel.

Ohio HB 49 Provides that specified fees, costs, and fines that currently are deposited into the state treasury to the credit of funds that help pay for the defense of indigent criminal defendants be deposited instead into the municipal treasury to help compensate counsel appointed by the court to represent indigent defendants if the court that imposed the fees, costs, or fines is a municipal court that is not a county?operated municipal court and that appoints counsel for indigent defendants in a manner other than that in law.

Died in committee

Indiana HB 1454 Establishes a statutory right to counsel for a child who is alleged or adjudicated to be a child in need of services or the subject of a parent- child termination proceeding. Establishes the office of the state juvenile public defender. Provides for representation of indigent children in cases filed in a juvenile court under a plan developed by the office of the state juvenile public defender and approved by the supreme court. Provides for counties to distribute to the state the average net amount (after deducting certain reimbursements) that the counties spent for these services over a five year period.

Indiana HB 1456 Provides that if a person is represented by a public defender in a probation violation hearing and the court determines the person is able to pay for part of the costs of the representation, the court shall order the person to pay $100. Provides that a court may make a finding of ability to pay the costs of representation for a probation violation hearing.

Indiana SB 253 Specifies that 20% of the late surrender fees collected under the Indiana bail law must be deposited in the county supplemental public defender services fund. (see also SB 518)

Iowa HB 602 Provides that legal services for indigent persons contracted through the state public defender may be paid based on other than an hourly rate, including a fixed rate basis. Provides for the handling of appeals for indigent persons by the state appellate defender or by transfer of the case to a person under contract with the state public defender. Provides that the expenses of the public defender in determining the amount of restitution for a case include all expenses approved by the state public defender together with the attorney fees for the public defender. Specifies an exception to payment of fees for appointed counsel by the person filing or on whose behalf a petition for termination of parental rights is filed.

Kansas HB 2197 Allows a public defender to withdraw from a court-appointed case when the defender determines a conflict of interest exists or when the defender’s current caseload would preclude them from providing adequate representation to new or existing clients. Requires withdrawal be communicated to Chief Judge of the District Court. Provides any public defender, with the approval of the Executive Director of the State Board of Indigents Defense Services, would be allowed to accept misdemeanor or juvenile appointments not covered by contract or agreement in the district county of jurisdiction. Requires public defender keep a record of time spent on a case and submit the timesheet to the Executive Director of BIDS and the Clerk of the District Court of the county in which the case was heard.

Kansas HB 2305 Reduces the number of members of the State Board of Indigents Defense Services from nine to seven. Reduces the number of members required to be lawyers from five to four and the number required not to be lawyers from four to three. Allows a member to represent both a congressional district and a county with a population of over 100,000.

Minnesota HB 987 Eliminates restrictions on use of reimbursements received by the Board of Public Defense.

Minnesota SB 1027 Authorizing counties and contiguous county groups to withdraw from the statewide public defense system for a certain specified period and allowing renewal of election to withdraw. Requires state board of public defense and commissioner of management and budget notification. Requires withdrawing counties to agree to provide court-ordered representation of indigent people Requires advisory board formation for comprehensive plan development. Requires state board of public defense to transfer a portion of state funding to withdrawing counties. Requires continued chief appellate public defender continued representation in appeals.

Missouri SB 89 Abolishes the state public defender system and requires circuit courts to provide legal defense for indigents.

Nebraska LB 214 In those areas where public defenders are elected, converts election from partisan to nonpartisan.

North Dakota SB 2105 Requires Commission on Legal Counsel for Indigents to provide legal counsel services to persons who refuse to retain their own counsel, if the court has determined that they are incompetent to represent themselves.

State-by-State 2011 Legislative Year in Review: North Dakota

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

HB 1064 Strikes provision that certain court fees must be used to contract for indigent defense.

HB 1108 Extends Temporary Court of Appeals authorization from 2012 to 2016.

HB 1365 Directs legislative management study statutes of limitation and venue requirements for civil actions in North Dakota.

HCR 3036 Directs legislative management to study the trial by jury rights of a person charged with the commission of a misdemeanor, including the extent to which jury trials are conducted in the state for cases involving misdemeanor offenses; the costs of jury trials for misdemeanor offenses; the feasibility and desirability of eliminating the sentencing option of imprisonment for Class B misdemeanors; a review of the jury trial process of other states; and the feasibility and desirability of eliminating a jury trial right for civil traffic tickets.

SB 2108 ORIGINAL: For judge’s retirement system, requires member contributions increase by one percent of the judge’s monthly salary beginning with the monthly reporting period of January 2012, and increase annually thereafter by an additional one percent, with the final increase taking place beginning with the reporting period of January 2013.

SB 2305 Directs legislative management study the extension of juvenile court jurisdiction and the extent of juvenile court jurisdiction in other states.

SCR 4001 Directs legislative management study the imposition of fees by courts at sentencing and other fees that are imposed upon offenders.

SCR 4010 Directs legislative management study the adequacy of governmental services, including judicial services, to respond to issues relating to an aging population, including veterans, and to study the efficacy of statutes governing public administrator services and methods for the timely and effective delivery of guardianship and public administrator responsibilities and services.

 

2011 Midwestern bail/pretrial release legislation

Law

Iowa SB 165 / SB 292 Provides that any fine, court costs, surcharge, or other penalty previously paid by the defendant, including an unsecured appearance bond, may be refunded to the defendant or upon subsequent conviction applied to the newly assessed fine, court costs, surcharge, or other penalty.

Illinois HB 1295 Provides that a municipality may impose a bail processing fee up to $20 against any person arrested for violating a bailable municipal ordinance or a State or federal law.

Indiana SB 590 Requires a judicial officer in setting bail to consider that the defendant is a foreign national who has not been lawfully admitted to the United States as relevant to the risk of nonappearance. Establishes certain bond requirements if bail is set for a defendant who is a foreign national unlawfully present in the United States.

Illinois HB 2581 Provides that the payment of the $75 fee assessed by the court against an accused upon his or her admission to bail for failure to appear in certain cases in which a court appearance is required shall be a condition of release unless otherwise ordered by the court. Provides that if the Department of State Police is the arresting agency, $70 of the fee assessed shall be remitted by the clerk of the court to the State Treasurer within one month after receipt for deposit into the State Police Operations Assistance Fund.

Kansas HB 2118 Allows courts, as a condition of bond release, to order offenders who are charged with a felony to submit to drug and alcohol abuse examinations. Gives courts the authority to impose the full amount of unpaid costs associated with the conditions of release of an appearance bond when a person has been found guilty of a crime.

Introduced with committee and/or floor approval

Kansas SB 176 Requires courts, when considering the release of a person on appearance bond, to take into account whether a defendant is lawfully present in the United States.

Missouri SB 387 Allows circuit court to adopt a local rule allowing for the pretrial release on electronic monitoring in lieu of confinement for anyone charged with a crime who can afford to pay the costs of electronic monitoring.

Introduced with committee rejection

n/a

Introduced with other or no activity

Indiana SB 40 Provides that an undertaking for bail expires 36 months after the undertaking is posted for the release of a defendant from custody if: (1) the defendant fails to appear as required; and (2) the court fails to make an adjudication concerning the defendant, including refusing to extradite the defendant; during the 36 month period. Requires sureties and bail agents to establish and maintain electronic mail addresses before June 1, 2011. Provides that if a defendant does not appear as provided in a bond and the court orders the bail agent and the surety to surrender the defendant to the court, the clerk may send notice of the order by electronic mail to the bail agent and surety. Reduces the amount of time that a surety and bail agent have to produce a defendant or provide a valid reason for the defendant’s failure to appear from 365 days to 180 days. Provides that a court must release the bail agent and surety from liability from a bond if a defendant is arrested before the court enters judgment on the forfeiture of the bond and the court has actual knowledge that the defendant was or is in the custody of the United States pending deportation from the United States. Changes the period used to assess late surrender fees against a surety and bail agent. Specifies the late surrender fee is equal to 80% of the face value of the bond. Provides that costs resulting from a defendant’s failure to appear may not be assessed against a bail agent or surety. Provides that the court in which a bond is posted retains late surrender fees instead of the fees being deposited in police pension trust funds and county extradition funds. Specifies that the retained fees must be used by a court to defray the costs of operating the court, extraditing criminal defendants, and operating diversion programs. Repeals the law establishing county extradition funds on July 1, 2013.

Indiana SB 518 Provides that every surety for the release on bail of a person who executes a bail bond by depositing cash or securities in an amount not less than 10% of the bail must be: (1) an insurer represented by a bail agent; or (2) a person who is at least 18 years of age, a United States citizen, a resident of Indiana, related to the person for whom release on bail is sought within the third degree of affinity, and the owner of real or tangible personal property in Indiana with a net asset value that is acceptable to the authority approving the bond. Provides that, for purposes of the Indiana bail law, a cause is determined when: (1) a judgment of conviction or acquittal is entered; (2) judgment is withheld; or (3) the defendant has been ordered or admitted to a diversion program. Requires a court to waive a late surrender fee assessed against a bail agent or surety, or extend the period for payment beyond the statutorily permitted period, or both, if: (1) a written request is filed with the court and the prosecutor; and (2) the surety or bail agent provides evidence satisfactory to the court that diligent efforts were made to locate the defendant. Specifies that 40% of the late surrender fees collected under the Indiana bail law must be deposited in the police pension trust fund, 40% must be deposited in the county extradition fund, and the remaining 20% must be deposited in the county supplemental public defender services fund. Provides that if the combination of requirements a court imposes on a defendant to admit the defendant to bail includes the requirement that the defendant execute a bail bond with sufficient solvent sureties, the amount of the bail bond must be at least 50% of the total amount of the bail. Provides that if a person charged with a felony under IC 35-42 (offenses against the person) is admitted to bail, the person: (1) shall be admitted to bail by executing a bail bond with sufficient solvent sureties, depositing cash or securities in an amount equal to the bail, executing a bond secured by certain real estate, or posting a real estate bond; and (2) may not be admitted to bail under the statute that allows admission to bail by executing a bail bond by depositing cash or securities in an amount not less than 10% of the bail.

Kansas HB 2259 Requires magistrates to articulate certain findings when setting amounts of appearance bonds. Requires magistrates articulate the documentation that demonstrates the qualifications to allow a person to make a cash deposit for 10.0 percent of the bond. Provides if the magistrate does not have a factual basis for each of the qualifications, then the magistrate may not permit the bond deposit. Limits limit the conditions under which courts may determine that a person who has been charged with a crime may be released on the person’s own recognizance.

Minnesota HB 1502 / SB 1341 Provides anyone on e pretrial release to a county probation officer subject to unannounced searches by officer.

Missouri HB 159 Specifies that any person charged with a bailable nonviolent offense who does not post bail prior to his or her appearance before a judge may be placed on house arrest.

 

 


North Dakota Interim Judiciary Committee to look at variety of issues

July 26 the North Dakota legislature’s interim judiciary committee will examine a variety of issues, including background information, testimony, and committee discussion concerning:

  • a study of statutes of limitation and venue requirements for civil actions in North Dakota (HB 1365)
  • a study of the eligibility requirements for the veterans’, charitable, educational, religious, fraternal, civic and service, public safety, and public-spirited organizations that conduct charitable gaming (SB 2042)
  • a study of the feasibility and desirability of adopting the Uniform Electronic Recording of Custodial Interrogations Act (SB 2125)
  • a study of the issue of juvenile court jurisdiction and the adult court transfer process and whether any additional juvenile court jurisdictional extensions would serve the best interests of the child and the public in cases in which the child is close to the age of majority (SB 2305)
  • a study of the feasibility and desirability of adopting the Revised Uniform Limited Liability Company Act (HCR 3011)

 

 

Judicial Retirement Plans/Pensions 2011: Midwestern States

Illinois HB 146 Caps the highest salary for annuity purposes, final rate of earnings, final average compensation, and final average salary for current members, participants, and participating employees of the Judges’ Retirement System at $106,800 (Current Circuit Judge’s Salary: $178,835), Authorizes that amount to be annually increased by the lesser of 3% or one-half of the annual percentage increase in the consumer price index-u. Requires employee contributions to also be based on these capped amounts.

Illinois HB 1447 Provides that, for persons who first become participants of Judges’ Retirement System after the effective date of the Act: (i) the automatic annual increases in participant and survivor annuities shall be at the rate of 3% or one-half the annual unadjusted percentage increase (but not less than zero) in the consumer price index-u, whichever is less, of the originally granted retirement annuity (rather than at the rate of 3% or the annual unadjusted percentage increase in the consumer price index-u, whichever is less, of the annuity then being paid) and (ii) the annual increases in highest salary for annuity purposes and final average salary shall be at the rate of the lesser of 3% or one-half the annual unadjusted percentage increase (but not less than zero) in the consumer price index-u (rather than at the rate of the lesser of 3% or the annual unadjusted percentage increase in the consumer price index-u).

Illinois HB 1959 Allows persons who first became or become members of Judges’ Retirement System on or after January 1, 2011 to elect to participate in a self-managed program of retirement benefits instead of the program of reformed retirement benefits currently offered. Provides that a self-managed plan shall authorize a participant to accumulate assets for retirement through a combination of employer and employee contributions that may be invested at the participant’s direction in mutual funds, collective investment funds, or other investment products and used to purchase annuity contracts. Requires the Judges’ Retirement System to make the self-managed plan available within 6 months after the effective date of the Act. Provides that, to the extent that the changes made by the Act are determined to be a new benefit increase under the new benefit increase provisions, the changes are exempt from the 5-year expiration provision.

Illinois HR 31 Urges the Commission on Government Forecasting and Accountability (COGFA) to (i) competitively bid for an auditing firm to conduct an audit of the Judges’ Retirement System and all other State-funded Pension and Retirement Systems, (ii) report the auditing firm’s findings to the General Assembly and Governor within 1 year after the adoption of the resolution, and (iii) publish the auditing firm’s findings on the COGFA website.

Illinois HR 101 Directs the Auditor General to conduct an audit of the Judges’ Retirement System and all other State-funded retirement systems to discover (i) what the anticipated savings to those systems will be as a result of the pension reforms enacted last year and (ii) whether any employees or officers of those systems have made false or materially misleading public statements about those anticipated savings.

Illinois HR 149 Directs Commission on Government Forecasting and Accountability study the impact of time and interest on the underfunding of the Judges’ Retirement System and all other State-funded retirement systems.

Illinois SB 29 For those already members of Judges’ Retirement System, adds provisions concerning the annuity rate of accrual, annuity calculations, automatic annual increases, and survivors’ annuities. With respect to later entrants (members who first become members on or after July 1, 2011), adds provisions concerning creditable service, conditions for eligibility, amount of annuities, automatic annual increases, survivors’ annuities, and refunds. Defines “salary”, “earnings”, “compensation”, and “wages” for periods of service on and after July 1, 2011 for any Judges’ Retirement System member.

Illinois SR 83 Urges the Commission on Government Forecasting and Accountability (COGFA) to (i) competitively bid for an auditing firm to conduct an audit of the Judges’ Retirement System and all other State-funded Pension and Retirement Systems, (ii) report the auditing firm’s findings to the General Assembly and Governor within 1 year after the adoption of the resolution, and (iii) publish the auditing firm’s findings on the COGFA website.

Indiana HB 1048 Establishes a defined contribution plan (plan) as an option for new state employees. A state employee who does not elect to become a member of the plan becomes a member of the public employees’ retirement fund (PERF). Requires the PERF board of trustees (PERF board) to establish the same investment options for the plan that are available for the investment of a PERF member’s annuity savings account. Provides that a member’s contribution to the plan is 3% of the member’s compensation and is paid by the state on behalf of the member. Provides that the state’s employer contribution rate for the plan is equal to the state’s employer contribution rate for PERF. Provides that the amount credited from the employer’s contribution rate to the member’s account shall not be greater than PERF’s normal cost with any amount not credited to the member’s account applied to PERF’s unfunded accrued liability. Establishes a minimum state employer contribution of 3% of the members’ compensation. Establishes a five year vesting schedule for employer contributions, and requires a member who terminates state employment before the member is fully vested to forfeit amounts that are not vested. Requires that the PERF board specify by rule the interest rate credited to a participant’s contributions for the judges’ retirement system. Provides that a judge or a magistrate who is a participant in the judges’ retirement system and who purchases prior PERF service credit waives credit for the PERF service only for the amount of PERF service purchased.  Urges the legislative council to assign to the pension management oversight commission the study of whether to create a defined contribution plan as an option for new employees of political subdivisions that participate in PERF and for new employees who are eligible to become members of the teachers’ retirement fund.

Indiana SB 12 Requires, after December 31, 2011, that an employer of participants in the judges’ retirement system submit contributions, reports, and records electronically. Authorizes the PERF board of trustees to establish due dates for contributions, reports, and records submitted by an employer.

Indiana SB 76 Requires that the board of trustees of the public employees’ retirement fund (PERF) specify by rule the interest rate credited to a participant’s contributions for: the judges’ retirement system. Provides that a judge or a magistrate who is a participant in the judges’ retirement system and who purchases prior service credit in PERF waives credit for the PERF service only for the amount of PERF service purchased.

Indiana SB 549 Establishes the Indiana public retirement system (system) to administer and manage judges’ retirement fund, public employees’ retirement fund, and either other funds. Provides that each retirement fund continues as a separate fund managed by the board. Creates a nine member board of trustees (board) for the system appointed by the governor (none need be judges). Establishes transition provisions for trustees/boards of other existing systems. Provides that new hires of the system become public employees’ retirement fund members, unless the system director expressly determines otherwise. Allows the board to establish contribution rate groups for PERF, and removes the requirement that each employer have a separate account within the retirement allowance account.

Nebraska LB 251 Increases court fees by $20. Directs some of additional funds to Retirement Fund for Judges.

Nebraska LB 509 Modifies language in the Judges Retirement Act to clarify that members receive the highest cost-of-living (COLA) method identified in current statutes. Creates new section in the Judges’ Retirement Act that reorganizes current cost-of-living provisions and places all the existing language into one section.

Nebraska LB 679 Provides all new judges elected/appointed after July 1, 2011 are members of the State Employees Retirement System (i.e the State Cash
Balance Plan,) instead of the current judges defined benefit plan.

North Dakota SB 2108 ORIGINAL: For judge’s retirement system, requires member contributions increase by one percent of the judge’s monthly salary beginning with the monthly reporting period of January 2012, and increase annually thereafter by an additional one percent, with the final increase taking place beginning with the reporting period of January 2015. AMENDED: Same, but changes January 2015 date to January 2013.

Wisconsin AB 11 (Special Session) (For prior blog post on subject, see here)

North Dakota State of the Judiciary

Chief Justice Gerald W. VandeWalle gave his State of the Judiciary to a joint session of the North Dakota legislature earlier today. (Update: No formal resolution appears to have been adopted, instead a motion was made on the floors to convene in joint session for the speech. See the respective House and Senate journals). The text of the speech is here. Here are some highlights:

The North Dakota Constitution requires the Governor to “present information on the condition of the state, together with any recommended legislation, to every regular and special session of the legislative assembly.” N.D. Const. art. V, § 7. By contrast, the Chief Justice appears before the Assembly to present the state of the Judiciary by invitation of the Legislative Assembly. I perhaps should not tell you this, but it may surprise you to learn that delivering a State of the Judiciary message is not a privilege all of my colleagues in other states share. I do not take this privilege for granted and I recognize your already heavy schedule. The invitation to speak to you today is indicative of the spirit of cooperation and respect that our three branches of government in our state share. I thank you for that.

For the Judicial Branch, the State of the Judiciary is an opportunity to pose to the Legislature and the Executive the operations and goals of the Judiciary and the opportunity for you to examine those goals and operations. But that is but a small part of the interbranch relationship. For example, during the year we have the benefit of the wisdom and advice of legislators and executive branch representatives on court committees. The advice and input we receive from representatives of the other branches are invaluable to our policy-making decisions. In turn, several judicial branch officials serve on and advise legislative and executive branch committees; and issues arise within the other two branches of government that require the attention, consideration and cooperation of the Judicial Branch to resolve.

I take a few minutes now to update you on these projects and to touch upon some other areas of concern.

Task Force To Study Racial and Ethnic Bias in the Courts

Mediation Pilot Program

Parenting Coordinator Program

Problem Solving Courts

Study Resolution on Elder Issues

Supreme Court Facilities

Cost-Sharing for District Court Space

Case Management System