Merit selection bills introduced in Pennsylvania and Wisconsin

The summer/interim months have seen only a marginal reduction in the amount of activity surrounding judicial selection. Merit selection proponents have 3 new bills in two states to point to in their efforts.

On August 22, Pennsylvania HB 1815 (Constitutional Amendment) and HB 1816 providing for a merit selection system for appellate judges (Supreme, Superior, and Commonwealth courts) was introduced. Under the constitutional amendment, the Governor would select a name from a list of 5 provided from an Appellate Court Nominating Commission for Senate confirmation. Moreover, the amendment spells out the criteria the Commission must use to examine the candidates and establishes the composition of the 15 member commission, with 4 chosen by the Governor who must not be lawyers and 4 by legislative leaders who must be lawyers but must not be judges. The remaining 7 are:

  1. dean of one of the law schools located in Pennsylvania
  2. designee from bar associations
  3. designee from business organizations designee
  4. designee from civic organizations
  5. designee from professional associations
  6. designee from public safety organizations
  7. designee from unions

HB 1816 spells out details of how each of the above groups is defined, their designee chosen, and details about the commission’s operations.

About a month later on September 29, Wisconsin SJR 42 was introduced. The constitutional amendment would establish a merit selection system for that state’s appellate judges (Supreme Court and Court of Appeals).

It is similar to Pennsylvania HB 1815 in that it provides for the Governor to select a name from a list of 5 provided by a commission and requires the person chosen be subject to Senate confirmation. Unlike Pennsylvania HB 1815, it leaves the commission membership entirely up to the legislature and makes no mention of whether judges are to be retained via retention election or otherwise. In that sense it looks more like the proposal in Tennessee to put that state’s merit selection system explicitly in the state’s constitution (SJR 183, see prior post here).

Pennsylvania House Interim Judiciary Committee to examine settlements for small estates, HIV-testing sex offenders

The Pennsylvania House’s interim Judiciary Committee will meet next week to review three bills:

  • HB 1324 providing for settlement of small estates on petition, for estates not exceeding $25,000 and for when guardian unnecessary
  • HB 1596 authorizing and directing the Pennsylvania State Police to establish and maintain the Pennsylvania Officer Down Advisory
  • HB 1794 providing for HIV-related testing for certain sex offenders

Pennsylvania Senate Interim Judiciary Committee to examine death sentences in cases of mental retardation

The Pennsylvania Senate’s interim Judiciary Committee will meet on September 27 to review three bills:

  • SB 397 Prohibiting the imposition of the death sentence in cases of mental retardation
  • SB 775 Regarding collection and DNA samples from criminal defendants and the processing of the samples once collected
  • SB 1220 Expungement of criminal history records

Oregon, Pennsylvania, and Maine Judiciary Committees hold interim meetings next week

On September 20, the Pennsylvania Senate Judiciary Committee will meet to receive the report of the Joint State Government Commission’s Advisory Committee on Wrongful Convictions and to consider SB 733 (responsibility of parents and guardians and for pretrial diversion program), SB 883 (consolidating provisions on administrative procedure and rulemaking), and SB 1167 (providing for modification of existing orders and for child custody proceeding during military deployment and providing for assignment of custody rights during military deployment and expedited or electronic hearing).

The Oregon Senate Judiciary Committee will meet jointly with the House Judiciary Committee September 22. The original posting of their agenda indicated they would be meeting separately on September 21. On the new agenda*:

  • HB 3241 Funeral protests, excluding those protesting from streets and sidewalks adjacent to or near a military funeral.
    Requiring a parent or legal guardian to report the death of a child to law enforcement. Making the failure to do so a felony. Requiring a parent or legal guardian to report to law enforcement a missing child. Making it a crime to fail to do so.
  • Review of the relationship between the Oregon Youth Authority (OYA) and the counties concerning supervision of youth after release from an OYA facility.
  • Review of the Oregon State Bar’s policy in addressing complaints against attorney’s for failure to adequately represent clients based on the clients’ race, ethnic origin, religion, gender, or gender preference. Update on the 1992 Oregon Supreme Court’s Task Force on Racial and Ethnic Issues in the Judicial System relating to the Bar.

Also on the 22nd, the Maine Joint Judiciary Committee meets to consider various judicial nominations as well as nominees to boards and commissions.

*Updated 9/19/11 @ 2:30 PM to reflect updated Oregon Senate Judiciary agenda and that the 9/22 meeting is a joint one.

2011 Northeast indigent defense legislation

Law

Connecticut SB 38 Exempts from disclosure under the Freedom of Information Act (FOIA) personnel, medical, or similar files of current or former employees of the Division of Public Defender Services to people in the custody or supervision of the Department of Correction (DOC) or confined in a facility of the Whiting Forensic Division of Connecticut Valley Hospital. Requires public agencies to waive any fees for providing records requested under FOIA if the requestor is a member of the Division of Public Defender Services or court-appointed special assistant public defender and certifies that the records pertain to his or her duties. Specifies that, for purposes of FOIA, the Division of Public Defender Services is considered to be a judicial office. (By law, a judicial office is subject to FOIA only with respect to its administrative functions.)

Maine SB 182 Specifically states which decisions of the executive director of the Maine Commission on Indigent Legal Services must be subject to an appeal process for attorneys aggrieved by such decisions. Specifies method of appeal of such decisions by executive director.

Maine SB 189 Makes certain records in the possession of the Maine Commission on Indigent Legal Services confidential.

New York AB 7932 / SB 5474 Exempts legal aid societies and bureaus and other entities that provide indigent representation from the fees charged by the Department of Motor Vehicles for record searches and copies of documents.

Adopted Resolution

Maine HB 451 Grants emergency approval to changes to Eligibility Requirements for Specialized Case Types, as provisionally adopted by Maine Commission on Indigent Legal Service.

Approved by one chamber

New Jersey AB 3324 / SB 2233 Permits early termination of one-year terms of municipal court public defenders when two or more municipalities enter into agreements to establish joint municipal courts or shared municipal courts. Approved by full Senate. In Assembly Judiciary Committee.

New York AB 7857 / SB 3269 Authorizes public defenders, legal aid societies, and administrators of assigned counsel plans to have access to the Division of Criminal Justice Services’ criminal history records for use in connection with the representation of public defense clients. Approved by full Assembly. In Senate Finance Committee.

Active/Carried over into 2012

Massachusetts SB 748 Removes power of courts to approval fees/costs associated with defense in criminal cases, juvenile delinquency proceedings and youthful offender cases. Requires submission of costs to committee for public counsel services rather than clerk of court. Requires approval of costs associated with defense be made by committee for public counsel services.

Massachusetts HB 3359 / SB 898  Requires judiciary produce report of all criminal and delinquency cases initiated in the courts of the commonwealth during fiscal year 2011, including number of cases in which public defender appointed. Requires parity between funding of prosecutors and public defenders. Requires all criminal and delinquency cases be “weighted” based on case type to establish budgetary amounts that may be appropriated to the committee for public counsel services to pay for public defenders.

Massachusetts HB 1285 Repeals requirement that counsel appointed or assigned to represent indigents within the private counsel division, except any counsel appointed or assigned to represent indigents within the private counsel division in a homicide case, shall be prohibited from accepting any new appointment or assignment to represent indigents after he has billed 1400 billable hours during any fiscal year.

Massachusetts SB 1446 Converts law school tuition into tax credit if attorney serves as public defender or otherwise practices “public interest law” as defined.

Massachusetts SB 1861 Increases hourly compensation levels/amounts payable to indigent defense counsel by $3-$5 per hour, depending on activity.

Massachusetts SB 848 Repeals law with respect to providing legal services for indigents subject to the sex offender registry classification system.

New Hampshire HB 315 Declares an “impeachable offense” the appointment of an attorney or commitment of public funds for an attorney in connection with the representation of any person, whether indigent or not, except as specifically authorized by the New Hampshire constitution, federal or state law, or mandate of the New Hampshire supreme court. Provides such appointment shall be made only upon application of the person making the request and consistent with rules adopted by the New Hampshire supreme court. Prohibits appointment in any court other than the court in which the appointment is made, except to the extent necessary to preserve or perfect an appeal as mandated by the New Hampshire supreme court.

New Jersey SCR 148 (Constitutional Amendment) Creates Public Defender Services Commission established by the amendment.  Provides Commission to appoint Public Defender (currently, Governor with the advice and consent of the Senate). Locates the Public Defender within the courts but gives it independent status.

New Jersey SR 92 Requests New Jersey Supreme Court require attorneys to perform 50 hours of pro bono service per year or make a monetary contribution to Legal Services of New Jersey.

New Jersey AB 3844 / SB 2768 Prohibits the expenditure of State funds by the Office of the Public Defender or other attorney providing the same services, on cosmetic services for defendants in a criminal trial.

New Jersey SB 1812 Authorizes Office of Public Defender to provide legal representation for child in proceedings after parental rights have been terminated.

New York AB 1310 / SB 3261 Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel.

New York AB 2749 Establishes the New York state public defense commission to oversee the provision of public defense services in the state. Requires commission establish public defense services standards, provide financial assistance to local governments and public defense providers for expenses incurred in providing legal services to the indigent, provide training to persons in the public defense profession and oversee the provision of public defense services in the state.

New York AB 731 Authorizes any legal aid society or other legal services or non-profit organization that provides legal services to indigent clients to have access to EjusticeNY for the purposes of obtaining, where authorized by their clients, access to records necessary for understanding, correction and applying for Certificates of Rehabilitation.

New York AB 7867 Provides funding under the indigent legal services fund for the New York State Defenders Association.

New York SB 5143 Provides funding under the indigent legal services fund for the New York State Defenders Association (not identical to AB 7867)

Died in committee

Maine SB 225 Requires all new courthouses designs include adequate space for attorneys providing indigent legal services.

Vermont HB 232 Allows a municipal public body to go into an executive session in order to consider applications to or awards from a municipal fund for the poor or indigent.

Pennsylvania House Judiciary Committee to hold second joint meeting with House Veterans Affairs committee on Veterans’ Courts

I mentioned last week the Pennsylvania House Judiciary Committee is set to meet jointly with the Veterans Affairs and Emergency Preparedness Committee on September 7 for a joint public hearing on the development of veterans’  courts across the state.

A second meeting joint informational meeting/presentation is set for September 8. This meeting will occur at the Chester County Justice Center in West Chester, PA and include probation and parole officers, public defenders, district attorney’s  office and the court on their current veteran’s court programs.

Pennsylvania House Judiciary Committee to meet jointly with House Veterans Affairs committee on Veterans’ Courts

The Pennsylvania House Judiciary Committee is set to meet jointly with the Veterans Affairs and Emergency Preparedness Committee on September 7 for a joint public hearing on the development of veterans’  courts across the state. The hearing will occur at Valley Forge Military Academy College in Wayne, PA.

2011 Northeast bail/pretrial release legislation

Law

Maine HB 1029  Adds a new provision addressing the preconviction limitations on a bail commissioner’s authority. Adds a provision requiring that in the preconviction context a bail commissioner specify a court date within 8 weeks of the date of the bail order when that bail order uses one or more release conditions not automatically included in every bail order for pretrial release. Requires that the court and not a bail commissioner set preconviction bail for a crime if: the condition of release alleged to be violated relates to new criminal conduct for a Class C or above crime or specified Class D and Class E crimes. Clarifies that a law enforcement officer may make a warrantless arrest related to anticipated bail revocation or violations of bail conditions.

Maine HB 774 Specifies that persons arrested for juvenile crimes, as well as persons under 18 years of age who are arrested for crimes outside of the Maine Juvenile Code, are not eligible for bail.

Maine HB 951 Allows a court to permit the use of medical marijuana while imposing conditions of a criminal sentence, bail, probation, continuance or other dispositional order.

Maine HB 961 Provides the Chief Judge of the District Court may adopt rules requiring a bail commissioner to appear and set bail regardless of whether the defendant is indigent and unable to pay the bail commissioner’s fee and  may also adopt rules governing the manner in which a bail commissioner is paid in the event an indigent person is released on bail and is unable to pay the bail commissioner’s fee.

New Hampshire SB 63 Amends the criteria for the list of bail bondsmen provided to the courts. Provides that a defendant released pending trial who fails to appear within 45 days of the date required shall forfeit all designated property held by the court to secure such defendant’s appearance.

New York AB 7388 & New York SB 3947 Adds a further, more streamlined, way to determine the value of real property used in a secured bail bond.

Introduced with committee and/or floor approval

New York AB 8158New York SB 5734 Provides the legal definition and requirements for charitable bail organizations organized for the purpose of posting cash bail for poor persons.

New York SB 1414 Requires the court, when determining recognizance or bail in cases of domestic violence, to consider certain enumerated factors which could lead to intimidation or injury by the principal to the victim or witness.

New York SB 259 Allows the court to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail.

Introduced with committee rejection

Maine HB 312 Allows as a condition of bail that all firearms in the possession of the person arrested be relinquished to a law enforcement officer and that the person refrain from possessing a firearm or other specified dangerous weapons until further order of a court. Upon request of the defendant, such a bail condition must be heard by the court as expeditiously as possible.

New Hampshire HB 428 Establishes a procedure for cases in which a court recommends that a defendant participate in a pretrial supervision program at a county correctional facility. Amends the term “peace officer” to read “law enforcement officer” in the statute on default or breach of conditions of bail or recognizances.

New Hampshire HB 473 Imposes a $50 administrative fee on any defendant who fails to make payment of the bail commissioner’s fee within 30 days and requires that a hearing be held prior to the waiver of a fee.

New Hampshire HB 644 Disallows bail for persons in custody until their lawful presence can be verified.

Introduced with other or no activity

Connecticut HB 6171 Provides any bond set by a court as a condition of release for a person charged with a family violence offense shall be paid in full and a promissory note shall not be accepted as an assurance.

Maine HB 388 Establishes as a condition of bail for a person charged with violating a protection from abuse order that the person submit to supervision by an electronic tracking device with specific features.

Massachusetts HB 2155 (by request bill) relative to improving the bail review process

Massachusetts HB 2161 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts HB 2242 (by request bill) require only judges/justices to conduct bail hearings on certain arrested persons with multiple pending felony charges

Massachusetts HB 2243 (by request bill) restricting the issuance of bail for persons arrested as a result of a trial default warrant

Massachusetts HB 2828 (by request bill) increases bail fees

Massachusetts SB 706 (by request bill) relative to probation surrender and bail revocation

Massachusetts SB 791 (by request bill) legislation relative to pre-trial detention

Massachusetts SB 812 (by request bill) eliminate presumed personal recognizance for certain defendants

Massachusetts SB 813 (by request bill) relative to failing to appear in court after release on bail

Massachusetts SB 843 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 845 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 863 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts SB 899 (by request bill) legislation relative to improving the bail review and rendition process

Massachusetts SB 900 (by request bill) relative to bail review

New York AB 2216 & New York SB 829 Requires court review of domestic violence bail applications

New York AB 251 Directs the court to consider certain factors when determining the issuance of an order for recognizance or bail where a principal is charged with a crime against a family or household member, in matters where the court has discretion; and directs the court to consider the danger of intimidation or injury by the principal to a witness.

New York AB 2904 Denies bail for persons charged with driving while intoxicated in certain instances resulting in the death of another person.

New York AB 2976 Allows a superior court to order bail or recognizance for a defendant who has been convicted of a class A-II felony if the defendant is providing, or has agreed to provide material assistance

New York AB 3608 Directs courts to exonerate bail and order recognizance when no grand jury action has occurred for 45 days from arraignment, unless the people show good cause otherwise.

New York AB 4559 & New York SB 4799 Defines the crimes that would lead a defendant to be categorized as a “person who must be committed to the custody of the sheriff” and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances

New York AB 5013 Provides that where a criminal action is pending in a local criminal court or a superior court, the district attorney upon motion, may seek an order from the Appellate Division of the Department in which the action is pending to fix bail whenever he determines the amount of bail as fixed is inadequate or disproportionate.

New York AB 6705 Authorizes and directs courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community.

New York SB 2872 Requires the commissioner of insurance to conduct a study to identify problems and concerns regarding the bail bond business and to present his or her findings to the legislature.

New York SB 2930 Requires the incarceration of a defendant, pending a bail revocation hearing, upon filing of a statement alleging the intimidation of a victim or witness while such defendant was at liberty on bail; requires revocation hearing within 72 hours.

Pennsylvania HB 618 & Pennsylvania SB 510 Provides there shall be no right to bail pending appeal or sentencing for a defendant convicted of an sexual offense listed under section 9795.1 (relating to registration) if the victim of the offense was under 18 years of age at the time of its commission.

Pennsylvania SB 44 Establishes Bail Bond Enforcement Agent Act. Provides no person shall represent himself as or act in the capacity of a bail bond enforcement agent unless the person has met the requirements of the act.

Rhode Island HB 6155 &  Rhode Island SB 1005 Would require the court and the attorney general to take additional steps in order to forfeit a bail bondsman surety and gives the bail bondsman additional rights regarding the posting and terminating of bail.

Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

Welcome Gavel Grab readers!

The (probably?) single biggest year in history for efforts to impeach state judges has just gotten one bill bigger.

On May 4, Missouri House member Rochelle Walton Gray filed HR 3102, articles of impeachment against St. Louis Circuit Judge John A. Ross. The articles were filed the same day Judge Ross was set to testify before the U.S. Senate Judiciary Committee as it considered his nomination for an appointment to the federal bench for the Eastern District of Missouri.

The articles accuse Judge Ross of “judicial activism” and racial discrimination in the case of Buchek v. Washington, et. al., Cause No. 09SL-CC04530, for failure  to follow legal precedence (and specifying the cases allegedly not followed) and other accusations related to the Northeast Ambulance and Fire Protection District, whose board membership the articles claim is made up of black elected officials. The district’s former attorney, Elbert Walton Jr., is the father of Rochelle Walton Gray, the Missouri House Representative that authored HR 3102.

The articles of impeachment read very much like the letter sent by Missouri Rep. Lacy Clay in opposition to Judge Ross’ appointment to the federal bench (as per this article in the Missouri Lawyer’s Weekly).  The Clay letter contained as an attachment a letter (described by local media as “meandering”) from “Citizens for Fairness in the Appointment of Judges” (led by Elbert Walton, Jr. and Rep. Walton Gray) to Sen. Claire McCaskill, sections of which appear to have been repeated verbatim in HR 3102.

During the Senate Judiciary Committee hearing Judge Ross denied the statements in the Clay letter, suggesting it “contains significant inaccuracies.”

Despite being filed on May 4, HR 3102 was not referred to a committee (House Judiciary) until May 13, the day the legislature concluded floor sessions. Formal adjournment sine die will occur May 26 or 27. Because Missouri bills do not carry over from session to session, it appears no action will take place regarding HR 3102.

An updated list of pending impeachment/judicial removal efforts can be found below the fold:

Continue reading Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

Oklahoma now in tie with Massachusetts for most legislative efforts to remove judges from office in 2011

I mentioned in March that 2011 was on track to have most efforts to remove judges from office in recent memory with efforts lodged against 10 judges by various state legislatures. Since then Pennsylvania was added (see post here). Now, Oklahoma’s legislature, which already had three such efforts, has added a fourth. HR 1024 petitions the Trial Division of the Court on the Judiciary to assume jurisdiction and institute proceedings for the removal of District Judge Tom Lucas for failing to disqualify himself from hearing cases prosecuted by the Office of the District Attorney of Cleveland County. The ABA Journal and The Oklahoman have a full recap of the events surrounding the DA’s blanket recusal motion (filed under seal) and the judge’s (very public) denial. In short, the DA’s office contends that Lucas is prejudiced against the prosecution in all criminal cases due to an active child molestation investigation in which a member of the judge’s family is involved.

Below is an updated list of pending impeachment/judicial removal efforts:

State Bill Form of removal Target Reason for removal request Status
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown Pending
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown Pending
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases Investigation approved by House
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases Investigation approved by House
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases Request for resignation or impeachment approved by Senate
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case Pending
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban Pending
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim Pending
Oklahoma HR 1024 Request for removal by judicial disciplinary commission District Judge Tom Lucas Denial of blanket recusal motion by DA Pending
Pennsylvania HR 124 Impeachment Court of Common Pleas Judge Willis W. Berry, Jr. Use of his office and judicial secretary for a decade to “assist him in the day-to-day operations concerning his properties.” Pending