2011 Southern indigent defense legislation

Law

Alabama HB 601 / SB 440 Repeals all existing laws with respect to indigent defense. Redefines “indigent defendant.” Provides for the unified administration of indigent defense services by the state. Ends practice of providing for indigent defense through the local presiding circuit judge, commission, or governing body administering the system. Creates statewide Office of Indigent Defense Services within the Finance Department and indigent defense advisory boards in each judicial circuit.

Arkansas HB 1004 Prohibits payment of attorney’s fees of privately retained attorneys for indigent persons.

Arkansas HB 2207 Provides funding for public defenders may come from a county’s administration of justice, general, public defender, indigent defense, or public defender investigator fund(s), or any other fund authorized by law for that purpose. Requires expenditures comply with an itemized, line-item budget.

Louisiana HB 178 Authorizes Dept. of Children and Family Services to transfer funds appropriated pursuant to existing law to unspecified entities for representation of children and indigent parents in child protection proceedings. Removes require that funds go only to those entities specified in existing law.

Mississippi HB 1302 / SB 2563 Consolidates Office of Capital Defense Counsel, Office of Indigent Appeals and Division of Public Defender Training into Office of State Public Defender. Repeals provision that Circuit Court may appoint local counsel in capital cases at the expense of the Capital Defense Counsel Special Fund.

Mississippi HB 506 Permits all public defenders to carry firearms in courthouses. (See also HB 881)

Mississippi HB 332 / SB 2697 Extends Public Defender Task Force until 2014.

Texas HB 1754 / SB 170 Creates within judicial branch the Texas Indigent Defense Commission. Transfers all powers and duties of Task Force on Indigent Defense  to Commission and abolishes Task Force. Designates Commission a permanent standing committee of the Texas Judicial Council and administratively attached to the Office of Court Administration, but provides commission is to prepare, approve, and submit a Legislative Appropriations Request and maintain a budget structure separate from that of OCA. Establishes membership of governing board of the Commission. Sets sunset date for commission as September 2023. Requires certain indigent defense information to be submitted by November 1st of each odd numbered year. Requires each law school receiving innocence project funding to submit annual reports regarding exonerations in criminal cases. Amends the Code of Criminal Procedure relating to the creation of public defender’s offices. Defines and authorizes local jurisdictions to establish managed assigned counsel programs as strictly a local option that would require both the judges and county commissioners court assent to implement. Repeals the “Indigent Representation Fund”, the court costs for which serve as a revenue stream to the Fair Defense Account, which serves the same purpose.

Texas HB 3323 / SB 1308 Allows for the review of attorneys who are no longer eligible to represent indigent defendants in capital cases due to a single finding of ineffective counsel. Provides determination will be made by the Regional Selection Committee, which includes an administrative law judge, a district judge, a representative from the local bar association, and a board-certified criminal attorney.

Adopted Resolution

Texas HCR 22 (Special Session) Commends the members of the Texas Supreme Court for their actions in support of legal aid services and honors them for their work in promoting access to justice for the state’s most vulnerable citizens.

Active/Carried over into 2012

Oklahoma SB 868 Specifies Indigent Defense System is only for indigents who are in custody. Provides a court may appoint legal representation for an indigent who is not in custody, in which case costs for such representation shall be paid from the local court fund.

Oklahoma HB 2175 Restricts use of the Oklahoma Indigent Defense System to defendants who are in custody. Provides a definition for “unable to employ counsel”.

Tennessee HB 1225 / SB 1279 Provides that if an attorney, post-conviction defender or district public defender in a criminal case is found to have provided ineffective assistance of counsel, that attorney cannot receive any further state funds for legal services until the attorney obtains continuing education, counseling or training that addresses the reason for the attorney being ineffective.

Tennessee HB 1623 / SB 1574 Removes the requirement that the Executive Director of the District Public Defenders Conference (DPDC) administer the accounts of the judicial branch of government relating to the DPDC; prepare, approve, and submit budget estimates and appropriations necessary for the maintenance and operation of the offices of district public defenders; approve all requisitions for the payment of public moneys appropriated for the maintenance and operation of the judicial branch of government; audit claims, and prepare vouchers for payment; and provide the district public defenders with minimum law libraries.

Approved by one chamber

Louisiana SB 270 Provides 10% of revenue generated from abandoned cars sold by court as result of littering conviction go toward indigent defender board. Approved by full Senate and House Natural Resources and Environment committee. Indefinitely postponed on House floor.

Mississippi SB 2945 Specifies public defender is authorized to assign the duties of all employees of the office without regard to the source of funding for those employees. Approved by full Senate, died in House Judiciary B committee.

Texas SB 1682 Authorizes the creation of a managed assigned counsel program by a locality with written approval of a judge of the juvenile court of a county or county court, statutory county court, or district court trying criminal cases. Approved by full Senate and House Criminal Jurisprudence committee. Died on House floor.

Died in committee

Arkansas HB 2146 Defines crime of “illegal disbursement of funds by a judge”. Makes illegal instances where judge makes payments for services rendered to a public defender, assistant public defender, prosecuting attorney, or deputy prosecuting attorney resulting from the exercise of that person’s official duties.

Arkansas SB 941 Provides public defenders must provide itemized bill with a detailed explanation of services rendered, time spent, and expenses incurred. Renames converts certificates of indigency into affidavits to be created by public defender commission. Increases from $100 to $250 maximum user fee payable to commission.

Arkansas SB 974 Designates public defender commission a criminal justice agency for purposes of access to the Arkansas Crime Information Center.

Mississippi HB 181 Sets hourly payment for indigent defense counsel as 80% of the hourly rate allowed in the Mississippi’s federal courts. Provides judge presiding in case may adjust the total requested payment to counsel in a case if the court finds that the number of hours claimed by counsel in that case is not reasonable.

Mississippi HB 153 Creates District Public Defender Pilot project.

Mississippi HB 978 Provides public defender salaries are to be same as county prosecutors.

Mississippi SB 2971 Authorizes loan forgiveness programs for education loans to encourage law students and other attorneys to choose careers in the area of public interest, including specifically public defenders and civil legal aid attorneys.

Texas HB 1475 Provides for longevity pay for assistant public defenders.

Texas HB 1392 Creates special $95 fee for sale of property at a foreclosure sale to pay for civil legal services to the indigent.

Texas HB 2174 / SB 726 Establishes judicial access and improvement account to provide funding for basic civil legal services, indigent defense, and judicial technical support through certain county service fees and court costs imposed to fund the account. (See also Special Session HB 34 / SB 23)

Texas HB 1918 / SB 1028 Requires a district court judge to appoint one attorney, rather than two, when a capital felony case is filed. Provides in cases where prosecutors do not seek the death penalty a second attorney will not be required to be appointed.

Tennessee’s Ad Hoc Joint Committee on the Court of the Judiciary to meet September 21 & 22

I mentioned several weeks ago the formation of Tennessee’s Ad Hoc Joint Committee on the Court of the Judiciary. The committee is set to meet September 21 & 22 to examine the Court of the Judiciary (the state’s judicial disciplinary body) and its functions.

 

 

Tennessee: Ad-Hoc Joint Committee on the Court of the Judiciary formed; Senate to put legislation on judicial discipline on 1st calendar of 2012

Welcome TBA Today readers!

While a great deal of attention has been directed at the state’s merit selection system for judges (promises of a legislative “slobberknocker” in 2012 are in print this week, h/t Gavel Grab), Tennessee’s first big wave of legislative activity in 2012 may be focused on its statuatorily-created judicial disciplinary commission called the Court of the Judiciary (COJ). See Issue 5:11 for additional details and similar efforts in other states in 2011.

An Ad-Hoc Joint Committee on the Court of the Judiciary has been established to examine what legislators describe as a “clearly broken” system, including accusations the COJ ignores when judges refuse to recuse in cases where a conflict of interest exists, right down to the name of the body itself. At least one legislator has voiced concern with calling it a “court”, although the word “court” is used for similar bodies in Alabama, Delaware, and Oklahoma. h/t to the Twitter feed for the Tennessee Bar for news on the Ad-Hoc Joint Committee.

During the 2011 session a flurry of bills were introduced, debated, and advanced (details after the jump) and the state’s Lt. Gov. in a press release announced that one bill (SB 1088) is set to be on the 1st calendar when the legislature returns in January. In Tennessee bills not sent to the governor in odd-numbered years are automatically carried over into the even-numbered year session.

Continue reading Tennessee: Ad-Hoc Joint Committee on the Court of the Judiciary formed; Senate to put legislation on judicial discipline on 1st calendar of 2012

2011 Southern bail/pretrial release legislation

Law

Alabama HB 56 Requires determination if defendant is unlawfully present in U.S. prior to bail determination and, if determined not lawfully present, denial of bail. (see also SB 256).

Kentucky HB 463 / SB 161 Establishes pretrial release and considerations for persons based on risk of flight and danger before trial and require credit toward bail based on time spent in jail before trial. Requires the Supreme Court to create guidelines for judges to use when considering pretrial release and monitored conditional release. Directs the courts to develop guidelines for pretrial release decision making, and directs judges to use these guidelines in making those decisions. Requires those on pretrial release to use GPS monitoring. Provides a maximum bail is not to exceed the amount of fine and court costs for specified crimes. Requires Department of Corrections to provide training on evidence-based practices to employees of pretrial services.

Louisiana HB 216 Provides failure to to make probable cause determination within 48 hours of arrest, resulting in release, does not preclude the defendant’s rearrest and resetting of bond for the same offense or offenses upon the issuance of an arrest warrant based upon a finding of probable cause by a magistrate.

Mississippi SB 2239 Clarifies that domestic violence bail bond fee is to be refunded to defendant who is not finally convicted.

Oklahoma HB 1347 Creates Wildlife Bail Procedure Act, setting procedures for persons arrested for violation of any section of the Oklahoma Wildlife Conservation Code.

Tennessee HB 703 / SB 861 Directs that a defendant released on a pre-trial bond continue on release pending the trial under the same terms and conditions unless the court determines other terms and conditions or termination of the bond is necessary. Authorizes a court to revoke a defendant’s bond and order defendant held without bail pending trial if the defendant violates a release condition; is charged with an offense committed during release; or engages in conduct that obstructs the orderly and expeditious progress of the trial or other proceedings.

Tennessee HB 718 / SB 1269 Provides, in certain DUI-related cases,defendant may not be released with another bail “until the judge or judicial commissioner sets conditions on the bond to attempt to eliminate the danger posed by the defendant” instead of “unless the court first determines the defendant is no longer a danger to the community.”

Tennessee HB 962 / SB 802 Directs issuance of a capias warrant for a criminal defendant who forfeits bond. If circumstances require, authorizes use of a duplicate copy of the capias until a certified copy of the capias can be obtained from the clerk’s office.

Texas HB 1070 / SB 972 Allows a county jailer to take a defendant’s bail bond.

Texas HB 1658 Specifies that a defendant may be refunded a bail bond on order of the court and only after the defendant complies with the conditions of the bond.

Texas HB 1822 Specifically authorizes a partial release of security when the amount of security remaining would meet certain requirements.

Texas HB 1823 Harmonizes provisions related to bail bond business in Code of Criminal Procedure with related provisions under the Occupations Code.

Texas HB 3077 / SB 877 Requires a sheriff, prosecuting attorney, or clerk of the court to verify an affidavit from a surety stating the accused is in custody of another governmental entity before discharging the surety’s liability on a bail bond. Requires a sheriff to place a detainer on the accused and notify both appropriate officials in the jurisdiction in which the accused is incarcerated and the court or magistrate for which prosecution is pending. Requires magistrate then direct the court to issue a capias for the arrest of the accused if deemed necessary.

Introduced with committee and/or floor approval

Tennessee HB 1312 / SB 1862 Removes the requirement that a court determine whether a defendant is a danger to the community prior to releasing the defendant on bail for being charged with vehicular assault, vehicular homicide or driving under the influence.

Tennessee HB 1380 / SB 780 Specifies that when determining the amount of bail, if it is determined that the defendant is unlawfully present in the United States, then there would be a presumption that the defendant is a flight risk.

Texas HB 770 Enhances the penalty for bail jumping and failure to appear as a condition of being released from custody from a Class A misdemeanor to a felony of the first degree if the offense for which the actor’s appearance was required is an offense of murder or capital murder.

Texas HB 875 Requires the sheriff or other officer to notify the judge or magistrate authorized to grant or deny the defendant’s release on bail if the sheriff or officer determines that the defendant was not lawfully admitted to the United States or, although lawfully admitted, the defendant’s lawful status has expired. Requires the Commission on Jail Standards to prepare and issue guidelines and procedures to ensure compliance with these provisions. Establishes a rebuttable presumption at any proceeding before the judge or magistrate concerning the defendant’s release on bail that the defendant presents a risk of flight from prosecution if a sheriff or other officer notifies a judge or magistrate that a defendant was not lawfully admitted to the United States or that, although lawfully admitted, the defendant’s lawful status has expired.

Texas HB 1784 Allows a court to refund any cash funds to a defendant after the defendant complies with the bond conditions. Allows a defendant, as part of a plea bargain or deferred prosecution agreement, to request funds to be withheld for outstanding fines, court costs, or amounts of restitution, but not to repay attorney’s fees.

Texas HJR 86 (Constitutional Amendment) Denies bail to certain persons who are unlawfully present in the United States and are taken into custody for committing a felony.

Texas HJR 98 (Constitutional Amendment) Denies bail to certain persons charged with a violent or sexual offense after having been previously convicted of a violent or sexual offense.

Texas SB 878 Prohibits a court or a magistrate from authorizing a defendant to deposit cash less than the full amount of bail set by the court or magistrate, nor require money or other security as a condition of bond for release.

Introduced with committee rejection

Alabama HB 481 / SB 276 Requires as condition for bail after an arrest for a second or subsequent DUI violation that a defendant have an ignition interlock device installed.

Alabama SB 291 Requires as condition for bail after an arrest for DUI violation that a defendant have an ignition interlock device installed.

Tennessee HB 1501 / SB 1987 Makes a person who is charged with sexual exploitation of a minor ineligible for suspension of prosecution and pretrial diversion.

Texas HB 1686 Require a judge or magistrate in whose court a criminal action is pending to discharge a surety’s liability on a bail bond under the following conditions: the surety files with the judge or magistrate an affidavit stating that more than five years have elapsed since the date on which the surety posted the bond, that the surety no longer wishes to be a surety on the bond, and that the surety will give the prosecuting attorney notice of the affidavit; and the surety gives such notice of the affidavit to the prosecuting attorney. Requires a judge or magistrate who discharges a surety’s liability in that manner, if an indictment or information remains pending against the defendant, to issue a capias for the defendant.

Introduced with other or no activity

Alabama HB 481 Requires as condition for bail after an arrest for a second or subsequent DUI violation that a defendant have an ignition interlock device installed.

Arkansas HB 1245 Modifies existing law regarding issuance of warrants for failure to appear for those held on bond. Provides a judgment entered when the defendant has been surrendered, apprehended, or arrested within one hundred twenty (120) days of receipt of written notification to the surety of the defendant’s failure to appear is void.

Arkansas HB 1246 Permits financing of bail bonds.

Arkansas HB 2169 “Affirmatively clarifies” financing of bail bonds is prohibited.

Mississippi HB 54 Establishes rebuttable presumption defendant presents a risk of flight if not lawfully admitted to the United States.

Mississippi HB 1266 Imposes a 1% increase on fee charged for bail bonds to be deposited in the State Treasury for Department of Mental Health.

Mississippi HCR 14 Prohibits issuance of bail for sex offenses.

Mississippi SB 2474 Clarifies procedures by which ail is set by municipal court. Provides bail set is payable to municipality.

Mississippi SB 2505 In cases of domestic violence, requires Protective Order Registry be checked before granting bail on another charge.

Oklahoma SB 705 Changes numerous laws with respect to personal recognizance, forfeiture of bail, release on personal recognizance, posting bail, and suspension of driving privilege. Modifies certain arraignment requirements. Removes requirement for release on personal recognizance under specified circumstances.

Tennessee HB 1578 / SB 770 Specifies that when determining the amount of bail, if it is determined that the defendant is unlawfully present in the United States, then there would be a presumption that the defendant is a flight risk.

Texas HB 168 Requires that a bail bond state an expiration date of not later than the third anniversary of the date the principal signed the bond.

Texas HB 532 Establishes a rebuttable presumption at any proceeding before the judge or magistrate concerning the defendant’s release on bail that the defendant presents a risk of flight from prosecution if a sheriff or other officer notifies a judge or magistrate that a defendant was not lawfully admitted to the United States or that, although lawfully admitted, the defendant’s lawful status has expired.

Texas HB 2467 Authorizes a surety to relieve the surety of the surety’s undertaking by delivering an affidavit to the prosecuting attorney and the county court clerk stating that the accused is incarcerated, unless the accused is not a United States citizen and is unlawfully present in the United States.

Texas SB 881 Allows a defendant and a defendant’s sureties to be exonerated from liability upon forfeiture if before the final judgment, there was a death of the principal or the principal was deported from the United States.

Texas SB 909 Relating to the discharge of a surety’s liability on a bail bond in a criminal case.

New Tennessee law allows for license revocation for failure to pay fees/fines due to courts

July 1 marked start of the new fiscal year and with it new fiscal problems for many state courts. Tennessee’s legislature in May approved a bill (HB 1877 / SB 1798) to help alleviate this for the courts by forcing people to pay debts owed to the judiciary.

The new law requires the Department of Safety (DOS) to revoke the driver license of persons who have not paid all of their litigation taxes, court costs, and fines assessed as the result of any criminal offense within one year of the disposition date.

For those unable to pay the costs entirely, the law allows for the individual and court to agree to a payment plan to have the license reinstated.

The fiscal note attached to the House version of the bill estimated an increase in state revenue of $6,141,900 (vs. $984,500 in increased expenditures), plus an additional $6,473,500 increase in local revenue.

 

 

3 Tennessee bills set the stage for 2012 merit selection showdown

The Tennessee legislature just had the earliest adjournment in 13 years, ending late Sunday night. Before leaving, however, it left pending several items on judicial selection that are set for a return January 10, 2012.

I noted previously the dilemma: The state’s merit selection system depends on two commissions (the Judicial Selection Commission and the Judicial Performance Evaluation Commission) statutorily set to automatically sunset June 30, 2012. The last time something like this happened was in 2008, when the sunset deadline was passed and the commissions were almost at the end of their one-year “wind down” in June 2009 before legislation was adopted to keep them going. Thus if nothing happens, merit selection ends and there is some degree of ambiguity of there is any way to appoint or elected appellate judges after. The state’s Attorney General in 2009 issued an opinion (09-43) that with the commissions gone and no explicit statutory language for conducting direct elections, sitting judges would simply remain in office indefinitely due to a constitutional provision (Article VII, §5) that provides a judge “shall hold his office until his successor is elected or appointed, and qualified.”

While all bills not presented to the Governor in 2011 are automatically carried over in 2012, the bills that actually moved in 2011 and will probably set the baseline for 2012 negotiations are:

HB 173 / SB 127 ends the existing merit selection system and requires all judges be elected in partisan elections. The House bill was approved by the House Judiciary Committee, General Subcommittee on 4/20/11. The Senate version was approved by the full Senate Judiciary Committee 3/29/11 and ended the session in the Senate Finance, Ways and Means Committee.

The other bill, SJR 183, was detailed in this post here. It would explicitly include language specifically authorizing “merit selection” for judges, but with the option of retention elections at the legislature’s discretion. That bill was approved by the full Senate Judiciary Committee 4/26/11 and ended the session in the Senate Finance, Ways and Means’ General Subcommittee.

Tennessee “judicial activism” amendment could be up for debate today

Legislative efforts to specify what state judges and justices may or may not look to or at in making their determinations  did not start or end with the recent influx of sharia/international law bans (see here for latest list of such bills). Tennessee already adopted such a sharia/international law ban last year (HB 3768/SB 3470 of 2010) and is now set to consider a ban on “judicial activism”, at least for federal courts.

SJR 141 requests Congress “restrict judicial activism” by submitting the following amendment to the U.S. Constitution to states for ratification

In deciding cases under the Constitution and Laws of the United States, the Supreme Court of the United States and all other federal courts exercising authority under Article III of the United States Constitution shall strictly construe the enacted text of any constitutional provision and any statute or other law in interpreting or applying the law of the United States. The text of this Constitution shall be interpreted according to its meaning at the time of its enactment, which meaning shall remain the same until changed pursuant to Article V. This article shall apply to judgments, orders, and opinions of Federal courts made on or after one year after the date of ratification of this article of amendment ___.

An almost identical bill, SJR 142, would actually amend the Tennessee constitution to put similar language in order to “restrain judicial activism of state judges.”

In deciding cases under the Constitution and Laws of the State of Tennessee, the Supreme Court of Tennessee and all other inferior state courts exercising authority under Article VI [of the Tennessee Constitution] shall strictly construe the enacted text of any constitutional provision and any statute or other law in interpreting or applying the law of Tennessee. The text of this Constitution shall be interpreted according to its meaning at the time of its enactment, which meaning shall remain the same until changed pursuant to Article XI, Section 3.

Unlike SJR 141, SJR 142 would take effect immediately rather than one-year after ratification.

Interestingly, while the state amendment/SJR 142 was sent to the Senate Judiciary Committee and has so far has not been brought up for a hearing, the request to Congress/SJR 141 was assigned to the Senate Finance, Ways and Means Committee and yesterday (May 17) was put on the calendar for today (May 18). However, it should be noted that that same calendar has 102 other pieces of legislation, so it is unclear why the proposal was put on now this late in the session and its precise chances of debate today.

Does a merit selection system for judicial selection require retention elections? Tennessee Senate Judiciary committee says: maybe.

Since its implementation in the 1970s, the “Tennessee Plan” of selection for appellate court judges has been subject to numerous lawsuits and contentions. Among the issues: does a merit selection appointment system plus yes/no retention elections meet the requirement under Tennessee’s Constitution that appellate judges be “elected by the qualified voters of the state” (Art VI. Sec. 3)? Litigation surrounding the subject has said that yes, a yes/no retention election does qualify in State ex rel. Higgins v. Dunn (496 S.W.2d 480 (1973)). Several additional lawsuits were filed over the years challenging the findings, but none succeeded.

SJR 183 of 2011 purports “to unequivocally authorize the general assembly, by statute, to establish a system of merit-based appointments with retention elections for appellate court judges.” The original text of the amendment was to have amended Art. VI, Sec. 3 to include

As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts.

However, what came out of the Senate Judiciary committee on April 26 was amended to make doubly clear retention elections in particular were merely an option at the legislature’s discretion (click here and here for news reports of the meeting). The provision would now read

As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with or without retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts.

Thus, the potential for a future legislature to authorize merit selection for initial terms but require contested elections for subsequent terms, or to scrap the whole lot and shift to all contested elections at every stage/step.

These efforts are in addition to two other legislative options. The first (SB 127/HB 173) would expressly do away with retention elections and appointment and require elections. The Senate version cleared the Judiciary Committee on April 20; the House version cleared the House Judiciary’s General Subcommittee back in March.

The second is simply to wait the merit selection system out, as almost occurred two years ago. The legislation authorizing the state’s Judicial Selection Commission automatically sunsets automatically every few years. The Commission was listed under Tennessee Code 4-29-229 as set to expire June 30, 2008 (+ 1 year “wind down” to June 30, 2009).

A heavily modified commission with new membership criteria was approved at literally the last minute (June 25, 2009) as SB 1573. However, this mere extended the life of the Judicial Selection Commission and the Judicial Performance Evaluation Commission (which reviews judges prior to retention elections) until June 30, 2012, as per 4-29-233. With a one year wind down, this still means the legislature must re-authorize the Commissions by June 30, 2013.

The legislature is expected to adjourn sometime in early June.

Judicial Retirement Plans/Pensions 2011: Southern States

Alabama HB 414 Provides for increases in employee contributions for retirement to Judicial Retirement Fund:  7.25% of salary (May 2011 – October 2011); 8.4% (October 2011 – October 2012); 9% (October 2012 onward).

Florida HB 1139 & SB 290 Provides after July 2011, all judges/justices are to receive judicial retirement credit of 2% (currently 3.33%) of average final compensation for each year of creditable service as a judge/justice.

Florida HB 1405 Changes employer contribution rates for judges/justices from 20.65% to 7.26%. Reduces the disability rate for justices and judges to one third of his or her monthly compensation. AMENDED: Changes employer contribution rates for judges/justices from 20.65% to 15.19%. Establishes additional employer contribution rates for the purpose of funding the unfunded actuarial liabilities: 0.39% (effective July 2011) and 12.05% (effective July 2012). Removes reduction and maintains the current disability benefit for justices and judges.

Georgia HB 250 Provides Georgia Judicial Retirement System member who rejected survivor’s benefits may elect such benefits by paying the actuarial cost. For those becoming members allows one-time election to convert the retirement allowance otherwise payable to him or her into a modified retirement allowance of equivalent actuarial value and designate a natural person to receive. Provides for the event of death or divorce of member of system and for the payment of the remainder of a member’s accumulated contributions.

Georgia HB 344 Provides juvenile court judges and other members of Georgia Judicial Retirement System may obtain creditable service for prior service as a full-time associate juvenile court judge.

Georgia HB 533 Permits transfer of funds from the Employees’ Retirement System of Georgia to the Georgia Judicial Retirement System by judges and to obtain creditable service. Expands transfer of funds authority to include juvenile court judges.

Georgia HB 542 Permits transfer of funds from the Georgia Judicial Retirement System to the Employees’ Retirement System of Georgia and to obtain creditable service. Expands transfer of funds authority to include juvenile court judges.

Kentucky HB 480 ORIGINAL: Requires members of the Judicial Form Retirement System and other specified retirement systems who are not subject to legislative or judicial branch code of ethics shall be subject to the executive branch code of ethics. Requires the audit of the Judicial Form Retirement System by the Auditor of Public Accounts at least once every five years and require the system to pay all costs of the audit. Prohibits members of the Judicial Form Retirement System from serving more than three consecutive terms of office on the board and prohibits the board chairman from serving more than six consecutive years as chairman. Prohibits assets of the Judicial Form Retirement System from being used to pay placement agents. Requires the Judicial Form Retirement System to make system expenditures and employee salaries available on a Web site. Establishes conflict-of-interest provisions applicable to trustees and employees of the Kentucky Judicial Form Retirement System. AMENDED: Deletes measures affecting the Judicial Form Retirement System board term limits, board chair term limits, expand or establish conflicts of interest requirements for board members and employees of the board; require the Auditor of Public Accounts to conduct the system financial audit.

Kentucky SB 2 Closes Judicial Retirement Plan to new members effective July 1, 2012. Allows those in Judicial Retirement Plan with less than 5 years of service to transfer their membership and account balance to the Public Employees Retirement System.

Maryland SB 6 Provides that, on or after July 1, 2011, an individual not already a member of the Judges’ Retirement System may not join.

Maryland SB 735 Provides that, on or after July 1, 2011, an individual not already a member of the Judges’ Retirement System may not join.

Mississippi HB 464 & SB 2154 Includes all remuneration or amounts paid (except mileage allowance) to Justices of the Supreme Court and Judges of the Court of Appeals as “earned compensation” for retirement fund purposes.

Oklahoma HB 1005 Creates the Task Force on Pension Benefit Funding and Security to examine Judges and Justice Retirement System and other systems.

Oklahoma HB 1006 Creates Task Force on Pension Benefit Funding and Security to examine judge’s retirement system and other retirement systems.

Oklahoma HB 1010 AS AMENDED: Modifies provisions related to normal retirement age for members entering the Uniform Retirement System for Justices and Judges on or after January 1, 2012. Eliminates the provision whereby a member with 8 years of judicial service may retire when the sum of their age and years of service equals or exceeds 80. Decreases the multiplier used to calculate the retirement benefit for members entering  on or after January 1, 2012 from 4% to 2%.

Oklahoma HB 2057 Prohibits cost of living adjustment for Uniform Retirement System for Justices and Judges unless system has a funded ratio which equals or exceeds85%

Oklahoma HB 2132 Modifies judicial and other retirement systems funding ratios and cost of living adjustments. Changes the definition of a “nonfiscal retirement bill” by removing the provision that allows a cost-of-living increase to be considered nonfiscal. Stipulates that any retirement bill having a fiscal impact is subject to the statutory requirements related to concurrent funding.

Oklahoma SB 53 Eliminates provision allowing up to five years of prior military service to be entered as credit towards the Uniform Retirement System for Justices and Judges.

Oklahoma SB 310 Creates the Uniform Retirement System for Justices and Judges Reform Act of 2011 (placeholder).

Oklahoma SB 311 Creates the Uniform Retirement System for Justices and Judges Reform Act of 2011 (placeholder).

Oklahoma SJR 19 (Constitutional Amendment) Requires the Uniform Retirement System for Justices and Judges to have a funded ratio which equals or exceeds 90%.

South Carolina HB 3568 & SB 531 Closes state retirement system for judges and solicitors to future judges and requires they enroll in state’s retirement investment plan instead.

Tennessee HB 1622SB 1498 Revises retirement provisions for general sessions judges from Group 1 to Group 4 level.

Texas HB 390 & SB 1223 Modifies service retirement annuity for appellate judges under the Judicial Retirement System Plan Two.

An examination of 2011 sharia law & international law bans before state legislatures

This post has been updated. Click here and here.

Welcome Thinkprogress.org, Stateline, Opinio Juris and HLPR readers! Enjoy and sign up for Gavel to Gavel the weekly edition here.

In 2010, several states proposed bans on the use of sharia or international law (prior blog posts here and here; Gavel to Gavel the publication special focus issue here). The Oklahoma version (which was limited to the state’s courts) was approved by voters in the state in November 2010, but a restraining order has been issued as part of a Federal lawsuit against the state constitutional amendment. The relevant portions (another part renamed the State Industrial Court to the State Worker’s Compensation court) read:

The Courts provided for in subsection A of this section [i.e. Oklahoma’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Constitutional Amendments

Undaunted by the Federal court action, Wyoming has introduced its own version (HJR 8):

When exercising their judicial authority the courts of this state shall uphold and adhere to the law as provided in the constitution of the United States, the Wyoming constitution, the United States Code and federal regulations promulgated pursuant thereto, laws of this state, established common law as specified by legislative enactment, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not consider the legal precepts of other nations or cultures including, without limitation, international law and Sharia law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Texas also has a proposed constitutional amendment (HJR 57):

A court of this state shall uphold the laws of the Constitution of the United States, this Constitution, federal laws, and laws of this state. A court of this state may not enforce, consider, or apply any religious or cultural law.

Arizona’s proposed constitutional amendment (SCR 1010 of 2011)  is a modified version of various 2010 bills (HB 2379, SB 1026, SB 1396) that would have made statutory changes only:

In making judicial decisions, the courts provided for in subsection A [i.e. Arizona’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the constitution of this state, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this state and rules adopted pursuant to the laws of this state and, if necessary, the laws of another state of the United States provided the law of the other state does not include international law.  The courts shall not look to the legal precepts of other nations or cultures.  The courts shall not consider international law.

South Dakota’s House is also considering adding the following to their constitution (HJR 1004)

No such court [i.e. South Dakota state court] may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.


Statutes


While Oklahoma was amending its constitution, Tennessee (HB 3768/SB 3470) *and Louisiana (HB 785) adopted statutes in 2010 that addressed the use of international law. That law* has been introduced almost verbatim in 2011 in Arkansas (SB 97), Kansas (HB 2087), Nebraska (LB 647), and Oklahoma (HB 1552). Interestingly, the Tennessee law and its variations in the other states are not specifically limited to state courts, only.

As used in this act, “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States Constitution and the [name of state] Constitution.

*Update: there was a Louisiana version as well in 2010, HB 785 prefiled 3/18/2010 that was enacted.

“Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.

However, the Tennessee version was filed 2/2/2010 in the House and 1/28/2010 in the Senate. Therefore, I still think it valid to call it the Tennessee version.

Alaska (SB 88), Georgia (HB 45), Indiana (SJR 16), Mississippi (HB 301 and HB 525), South Carolina (SB 444) and Texas (HB 911) have variations on the Tennessee version, although only Mississippi HB 301 specifically mentions sharia law:

Alaska: A court, arbitrator, mediator, administrative agency, or enforcement agency may not apply a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution….In this section, “foreign law” means a law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States and the territories of the United States.

Georgia: As used in this Code section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Indiana: A court may not enforce a law, rule, or legal code or system established and either used or applied in a jurisdiction outside the states of the United States, the District of Columbia, or the territories of the United States if doing so would violate a right guaranteed by this constitution or the Constitution of the United States.

Mississippi HB 301: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States including Sharia Law…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Mississippi HB 525: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Nebraska: For purposes of this section, foreign law, legal code, or system means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, an international organization or tribunal, and applied by such jurisdiction’s courts, administrative bodies, or other formal or informal tribunals…A court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska.

South Carolina: As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.

Texas: In this chapter, “foreign law” means a law, rule, or legal code of a jurisdiction outside of the states and territories of the United States…A ruling or decision of a court, arbitrator, or administrative adjudicator may not be based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.