Pennsylvania: bill would require drug testing of judges and other elected officials; similar drug-testing-judges law struck down in 1998

Over the last several decades there has been a push to drug test those who are on any kind of public assistance and, in response, efforts by state legislators to put the same sort of drug testing requirements on public officials, including in many instances judges (I discussed this phenomena at length here and here and here).

This year’s version comes from Pennsylvania as HB 1655 which would require candidates who seek to serve as judges to, along with their nomination petitions, submit to a drug test. The same requirement would be imposed on anyone seeking to be elected to local, state, or federal office from or in Pennsylvania.

If enacted, HB 1655 is likely to face a court challenge. In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

 

Pennsylvania: constitutional amendment would require non-attorneys pass exam before they can even run for judicial office; currently they can run and be elected, but can’t assume office

The Pennsylvania Constitution currently provides that justices of the peace (referred to in statute as magisterial district court judges) are to be elected. For non-attorneys election is only the first step, they must then “complete a course of training and instruction in the duties of their respective offices and pass an examination prior to assuming office.”

This presents a problem: what happens if the non-attorney doesn’t pass the exam? Or take the course at all?

Back in the 1970s the state legislature tried to require non-attorneys take the exam prior to running for office to avoid this, but it was struck down as unconstitutional by the state’s Supreme Court (Flegal v. Dixon, 472 Pa. 249, 372 A.2d 406 (1977))

The Act’s imposition of the additional requirement that the instruction and examination be completed before filing nominating petitions is therefore unconstitutional.

Now, members of the Pennsylvania House wants to amend the constitution to in effect overturn Flegal.

Under HB 1645 as introduced a non-attorney would have to take the course and pass the exam prior to even being nominated or running for office.

HB 1645 has been filed in the House Judiciary Committee.

This isn’t the first time legislators have attempted amend the state’s constitution to require non-attorney pass the exam before they can run for office. Similar efforts were made on the Senate side (SB 521 of 2015; SB 170 of 2013; SB 57 of 2011; SB 1119 of 2009; SB 696 of 2007), none of which advanced out of committee.

Pennsylvania: House Judiciary Committee approves merit/commission selection for appellate courts with Senate confirmation; con amendment would have to go on a general election ballot

A plan to change the way Pennsylvania’s appellate judges are picked has cleared the House Judiciary Committee, with amendments, earlier this week.

HB 111 of 2017 would amend the state’s constitution to create a merit selection/commission based process.

An Appellate Court Nominating Commission would be created made up of 13 members (8 bar members, 5 non-bar members)

  • 5 appointed by the Governor (4 bar members, 1 non-bar)
  • 2 appointed by the Senate Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the House Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)

The composition of the Commission has been a source of debate for prior iterations of this bill introduced over the last decade and discussed here.

When a vacancy occurs on an appellate court the Commission would submit to the Governor a list of “five of the most qualified individuals”; the Commission would be required in making that list to consider the geographic, racial, ethnic, gender and other diversity of the state. Nominees would also be required to have at least 10 years of legal experience.

The Governor would select from among the list of five names a nominee who would then be subject to Senate confirmation. Under the bill as introduced the Senate would have to give 2/3rds approval; that was amended in committee down to a simple majority.

If the Senate failed to confirm or reject a nominee within a set number of days the person would be automatically confirmed (“the nominee shall take office as if the appointment had been consented to by the Senate.”)

After Senate confirmation, the judge would have an initial term of four years before standing for a yes/no retention election for a full 10 year term.

In addition to amending the Senate confirmation down from 2/3rds to a simple majority, the committee made another key amendment: if HB 111 goes to the voters it must appear on a General Election ballot and not a primary or municipal (spring) ballot.

HB 111 now goes to the full House. If approved by the House and the full Senate, it would have to be re-approved by the 2019/2020 legislature before going to voters.

Pennsylvania: bill making it a misdemeanor to audio/video record in or near a courtroom without judge’s permission clears committee unanimously

A bill that would make it a crime to make an audio or video recording in or around Pennsylvania courtrooms without a judge’s permission has cleared the House Judiciary Committee on a 26-1 vote.

Under HB 149

A person commits a misdemeanor of the second degree if the person in any manner and for any purpose uses or operates a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a hearing room, courtroom or the environs of a hearing room or courtroom without the approval of the court or presiding judicial officer or except as provided by rules of court…”environs” means the area immediately surrounding any entrance or exit.

The lead proponent notes that existing witness intimidation laws don’t cover such courtroom or near-courtroom recordings.

The 2015/2016 version of the bill (HB 1682) pass the House unanimously with a 200-0 vote, but the Senate never took it up.

HB 149 has been sent to the full House.

Special Edition: Pennsylvania fee/fine/cost legislation in the 2017 session

HB 236 Provides court may, at sentencing, assign an amount not greater than 25% of the defendant’s gross salary, wages or other earnings to be used for the payment of court costs, restitution or fines. Approved by full House 3/20/17.

HB 510

  • Provides a judge shall (currently may) conduct hearing to determine whether defendant who defaults in paying fines, court costs, or restitution is financially able to pay.
  • Provides judge shall (currently may) provide for installment payment plans or community service if defendant unable to financially pay “without causing manifest hardship.”
  • Provides community service is to be credited as $20 per hour against unpaid balance of the fine or costs.
  • Defines “manifest hardship” to mean
    • The defendant is involuntarily unemployed.
    • The defendant’s household income is less than 200% of the Federal poverty level.
    • The defendant is receiving any kind of public assistance.
    • The defendant presents evidence to the judge during the hearing that would cause a reasonable person to believe paying the full amount of the penalty would cause manifest hardship to the defendant or their dependents.
  • Provides maximum monthly payments under installment plans
    • $100 for defendant whose household income is less than or equal to 100% of federal poverty level.
    • $150 if more than 100% but less than 150% of federal poverty level.
    • $200 if more than 150% but less than 200% of federal poverty level.

In House Judiciary Committee.

HB 615 For Vehicle Code violations, provides upon proof defendant is without financial means to pay fine or cost, court may order community service in lieu of payment up to 50% of the original fine or costs. In House Transportation Committee.

Pennsylvania: bill would make it a misdemeanor to audio/video record in or near a courtroom without judge’s permission; 2016 version passed House 200-0

A bill that would make it a crime to make an audio or video recording in or around Pennsylvania courtrooms without a judge’s permission has been refiled for the 2017 session.

Under HB 149

A person commits a misdemeanor of the second degree if the person in any manner and for any purpose uses or operates a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a hearing room, courtroom or the environs of a hearing room or courtroom without the approval of the court or presiding judicial officer or except as provided by rules of court…”environs” means the area immediately surrounding any entrance or exit.

The lead proponent notes that existing witness intimidation laws don’t cover such courtroom or near-courtroom recordings.

The 2015/2016 version of the bill (HB 1682) pass the House unanimously with a 200-0 vote, but the Senate never took it up.

HB 149 has been filed in the House Judiciary Committee.

NC: So how many other states/courts elect their appellate judges in a partisan manner? It’s complicated.

Amid the debate on SB 4 today and the decision to switch North Carolina’s Supreme Court and Court of Appeals from nonpartisan to partisan races, there’s been a good amount of discussion of how many other states and appellate courts have partisan elections. Numbers have ranged widely. The reason for this is fairly straight forward in that for many states it is not a straight forward answer.

There are 8 states with 9 courts in which at one point or another justices of the supreme court/court of last resort show up with a party label somehow. It was 9 states with 10 courts until 2015 when West Virginia ended partisan races for their Supreme Court of Appeals.

  1. Alabama: partisan primaries and partisan general elections.
  2. Illinois: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Illinois Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 60% “yes to retain” vote.
  3. Louisiana: The state uses a “blanket primary” in which all candidates appear with party labels on the primary ballot. The two top votegetters compete in the general election. Thus in the general election, you could have two Republicans vying against each other for the seat, as occurred most recently in 2016 when Republican James “Jimmy” Genovese defeated fellow Republican Marilyn Castle for the 3rd Supreme Court District (Louisiana elects their justices by district, not statewide).
  4. Michigan: candidates for Supreme Court are nominated by political parties but the actual ballot in November is nonpartisan (i.e. no party labels).
  5. New Mexico: very complicated. When a vacancy occurs on the New Mexico Supreme Court, it is initially filled via merit selection (nominating commission sends list of names to governor, governor picks). The newly appointed justice must then run in a partisan primary and partisan general election but only for the first election. If a person does get elected to the New Mexico Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 57% “yes to retain” vote.
  6. Ohio: Partisan primaries, but nonpartisan general elections.
  7. Pennsylvania: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Pennsylvania Supreme Court, the next time they are up they are put into a yes/no retention election (50% “yes to retain” to remain in office).
  8. Texas: Everything is bigger in Texas, including their appellate courts. Texas has two “courts of last resort”: the Supreme Court for civil matters and the Court of Criminal Appeals. Both courts use partisan primaries and partisan general elections.