Looking at Ohio Issue 1 all week

On November 8, 2011 voters in Ohio will be faced with three ballot questions. Issue 1 (called HJR 1  when it was initially introduced in the Ohio House) would amend the state’s constitution with respect to the judiciary in three ways:

  1. Increase the maximum age for assuming elected or appointed judicial office from seventy to seventy-five.
  2. Eliminate the General Assembly’s authority to establish courts of conciliation.
  3. Eliminate the Governor’s authority to appoint members to a Supreme Court Commission.

Over the course of the next week, Gavel to Gavel will look at Issue 1 as follows:

Monday: Video of Legislative Proponents
Tuesday: Video of Legislative Opponents
Wednesday: Other states- What courts/states have mandatory retirement and at what age?
Thursday: Other states- In the last 20 years, what states tried to increase or remove their retirement ages, and how did they do in the legislature or at the ballot box?
Friday: The other provisions- What are (or were) “conciliation courts” and “appellate commissions”?

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.

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.

 

 


Ohio House approves increase for mandatory judiciary retirement: If 70 is the new 65, is 75 the new 70?

A tip from a Gavel to Gavel reader.

A recent news article suggested that, with respect to retirement, “70 is the new 65.” For judicial retirement, however, Ohio’s House is joining several other states in considering if 75 is the new 70.

For at least the last three years the Ohio legislature has grappled with proposals to increase or eliminate the state’s constitutional mandatory judicial retirement age of 70.

No person shall be elected or appointed to any judicial office if on or before the day when he shall assume the office and enter upon the discharge of its duties he shall have attained the age of seventy years.

An outright removal (HJR 16 of 2010) went nowhere, as did a Senate effort (SJR 10 of 2010) to increase the retirement age from 70 to 75. HJR 9 of 2009, also a 70-to-75 increase, fared better, making it out of the House Judiciary Committee at almost the last minute in December 2010, but it died when the legislature adjourned.

Picking up where that effort left off, HJR 1 of 2011 passed the House on April 12. The change in age could have a big impact in the Buckeye State: The Ohio Supreme Court says nearly 40 percent of judges in Ohio are age 60 or older. (hat tip, WKSU).

Arizona came close to increasing its age from 70 to 75 in 2010 (SCR 1040) but despite approval by the full Senate it died on the House floor. Similarly, Alabama’s HB 573 of 2010 made it through House but died on the Senate floor.

In 2011, Alabama’s bill is back, this time as senate constitutional amendment (SB 26) while New Jersey has a 70-to-75 constitutional amendment/statute combo pending (ACR 70 and AB 611).