Utah: Senate committee approves bill to remove personal information off court’s online search if criminal case dismissed; case number searching still allowed

The Utah Senate’s Judiciary, Law Enforcement, and Criminal Justice Committee last week approved SB 106 as amended. The bill provides that where a criminal case is dismissed the defendant may move the court for an order to remove the link between the person’s personal identifying information from the dismissed case in any publicly searchable database of the Utah state courts.

“Personal identifying information” is defined as current name, former name, nickname, alias, or date of birth.

The case would not be entirely removed, however for the court’s online search system. A case history, unless expunged, remains public and accessible through a search by case number even if not searchable by the person’s personal identifying information.

SB 106 now goes to the full Senate.

Texas becomes 4th state to consider bill to permit/require judges give jury nullification instructions; Utah House rejected plan 29-45

Texas this week becomes the 4th state this legislative session to consider a bill to permit or require judges give a jury nullification instruction.

HB 3911 as filed would amend Government Code 23 (General Provisions for Trial Courts). The new subchapter would require a judge’s charge to a jury instruct the members of the jury of their duty to:

  1. judge the law to determine whether the law is unjust or unjustly applied to a party in a case
  2. determine the validity of the evidence and
  3. vote on the jury verdict according to the members’ consciences.

The Texas bill is similar to one filed in Utah (HB 332). That bill would have required judges inform jurors of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

The bill was rejected by the full Utah House on a 29-45-1 vote earlier this month.

The other two bills (Oregon 924 discussed here and New Hampshire HB 133 discussed here) have not advanced in the last several weeks.

 

Oregon becomes 3rd state to consider bill to permit/require judges give jury nullification instructions; bill includes exact wording to be used

Efforts to permit or require judges in criminal cases give jury nullification instructions (discussed here) have now been introduced in a third state this session.

Oregon SB 924 would not only require judges give a jury nullification instruction in criminal cases but the bill provides the exact and specific wording to be used.

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.

This is similar to the bill approved in the New Hampshire House in that it requires the judge use wording directed by the legislature. This issue came up in that state after the legislature adopted a jury-nullification law several years ago and the courts ruled that the judiciary’s existing jury instructions were sufficient.

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The Utah bill doesn’t include exact wording, only that defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

Oregon SB 924 has been filed in the Senate Judiciary Committee.

Utah: House bill to ban consideration of diversity in judicial nominating process killed after Senate tries to put “background and experience” in

A bill designed to ban considerations of diversity in Utah’s judiciary when vacancies occurred has been killed in a Senate committee.

HB 93 would have removed the Commission on Criminal and Juvenile Justice’s power to set evaluation criteria. At one time that list of criteria included diversity on the bench, but was removed after criticism by legislators. Instead, HB 93 as approved by the House would have specifically provided the list of criteria to be used, and diversity was specifically excluded. The lead proponent of the bill called the use of diversity criteria “discrimination.

The bill then went to the Senate where an amendment was added in the Senate Judiciary Committee to put some diversity consideration back into the process.

For diversity on the bench, when deciding among applicants whose qualifications appear in all other respects to be equal, it is relevant to consider the background and experience of the applicants in relation to the current composition of the bench for which the appointment is being made.

The diversity language was approved 4-0 with 3 members absent, however the overall bill with Senate amendment was then rejected 2-3 with 2 members absent.

Jury nullification legislation: pending on Utah House floor; cleared New Hampshire House & pending in Senate committee

Efforts to require judges give, or allow, jury nullification information in criminal cases have cleared legislative hurdles in Utah while the New Hampshire version remains pending in the Senate after House approval.

Utah HB 332 as amended provides that in all criminal cases, defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

HB 332 cleared the House Judiciary Committee on a 7-4-1 vote on February 24 and the House Rules committee on February 28. It is now pending on the House 3rd Reading Calendar.

Meanwhile, the 2017 New Hampshire jury nullification bill (HB 133), that includes the specific wording/language judges are to use in instructing a jury, was approved in mid-February by the House (discussed here) and remains pending in the Senate Judiciary Committee.

 

Utah: bill to end use of race, gender, and other forms of diversity for judgeships clears House

The Utah House this week approved a bill to remove the power of an executive branch agency to set evaluation criteria for the state’s Judicial Nominating Commission (JNC), discussed here. The Commission on Criminal and Juvenile Justice (CCJJ) sets evaluation criteria for the JNC and had at one point included diversity as one criteria.

HB 93 was filed with an eye towards prohibiting the Commission from factoring in diversity in considering nominees for judgeships. Opponents claimed “diversity considerations take us away from choosing judges on the basis of merit” and that the consideration of race or gender was illegal. Opponents argued that the state’s judges did not reflect the diversity of the state’s population.

UPDATE: An amendment to the bill added on the floor specifies exactly what evaluation criteria are allowed to be used, and diversity is absent. What is included:

  1. legal knowledge and ability
  2. judicial temperament
  3. training
  4. professional experience
  5. integrity
  6. impartiality
  7. work ethic
  8. financial responsibility
  9. public service
  10. ability to perform the work of a judge

HB 93 is now in the Senate Rules Committee.

Utah: House member “diversity considerations take us away from choosing judges on the basis of merit.”

Who gets to set the criteria for the Utah Judicial Nomination Commissions when evaluating judicial nominees? Under a bill (HB 93) recently passed by the House Government Operations Committee that answer might be the legislature alone.

First, some background.

Prior to 2010, the state’s Judicial Council enacted “evaluation criteria for the selection of judicial nominees.” In 2010 that power was transferred to the executive branch’s Commission on Criminal and Juvenile Justice (CCJJ) as part of HB 289 although the Judicial Council was to be “consulted” regarding the rules.

The criteria now include:

(a) integrity;

(b) legal knowledge and ability;

(c) professional experience;

(d) judicial temperament;

(e) work ethic;

(f) financial responsibility;

(g) public service;

(h) ability to perform the work of a judge; and

(i) impartiality.

Diversity was struck last year after lawmakers expressed concerns.

Under HB 93 neither the Judicial Council nor the Commission on Criminal and Juvenile Justice would have the power to set “evaluation criteria for the selection of judicial nominees.”

During debate, the author indicated his concerns over efforts at attaining a diverse bench in the state (starting at 44:10)

My concern is that when CCJJ adds gloss and additional considerations to what we have in the statute they necessary drift away from and dilute the standards that we have set up to find the best judges based only on merit. As we’ve talked about, the diversity considerations take us away from choosing judges on the basis of merit.

Opponents were concerned that the judicial nomination processes “wasn’t broke” and therefore this bill was unnecessary.

After a motion to hold the bill in committee failed, it was approved 5-4 and sent to the full House.

Utah: bill heading to governor requires judges be law school graduates, but doesn’t require they be admitted to practice law; Judicial Council must now approve new Justice Court positions in larger counties

A plan to require Justice Court judges in Utah’s largest counties graduate law school but not have to be admitted to the practice of law has passed its final legislative hurdle and is on its way to the governor.

HB 160 discussed here provides in operative part.

Effective May 10, 2016, a justice court judge is not required to be admitted to practice law in the state as a qualification to hold office but in counties of the first and second class, a justice court judge shall have a degree from a law school that makes one eligible to apply for admission to a bar in any state

This avoids a constitutional amendment that prohibits the legislature from requiring admission to the practice of law as a requirement for these judgeship.

Judges of courts not of record shall be selected in a manner, for a term, and with qualifications provided by statute. However, no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.

The Senate approved the bill with several additional amendments that the House later agreed to

  • When a vacancy occurs if there are not at least three people who apply to the local justice court nomination commission that have graduated law school, the position will be re-advertised and the law-school-graduate requirement and residency rules waved. Moreover, the Administrative Office of the Courts would be required to notify every attorney in that county and adjacent county of the open judicial position.
  • Political subdivisions in counties of the first and second class would be placed under restrictions in terms of creating and eliminating judgeships.
    • Political subdivisions may only add a new justice court judge if the Judicial Council, after considering the caseload of the court, approves creation of the position.
    • Political subdivisions with multiple justice court judges may only eliminate a judgeship if a) the weighted caseload per judge is lower than 0.60 as determined by the Administrative Office of the Courts and b) only remove the position at the end of a judge’s term of office.

Utah: bill requires judges be law school graduates, but doesn’t require they be admitted to practice law; state constitutional language at issue

Is there a distinction between requiring a judge graduate from law school vs. a judge who is “admitted to the practice of law”? In Utah, there might be under a bill (HB 160) that is heading towards passage.

As previously noted, when Utah the state rewrote its Judiciary Article in 1985 Supreme Court Justices and all judges of “courts of record” were required to be “admitted to practice law in Utah.” However, judges of courts not of record were given a specific constitutional exemption

Judges of courts not of record shall be selected in a manner, for a term, and with qualifications provided by statute. However, no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.

HB 160 as introduced required admission to the practice of law for justice court judges, subject to a constitutional amendment repealing this section (HJR 1).

HB 160 as amended leaves the constitutional provision, but requires that justice court judges in larger counties (first and second class) graduate from law school. No mention is made of “admitted to the practice of law.”

Effective May 10, 2016, a justice court judge is not required to be admitted to practice law in the state as a qualification to hold office but in counties of the first and second class, a justice court judge shall have a degree from a law school that makes one eligible to apply for admission to a bar in any state

Opponents argue that this provision violates at least the spirit of the state constitution and that it is a loophole. Proponents argue the provision will help improve the processes in the justice courts.

HB 160 was approved 3-1 yesterday (March 2) by the Senate Judiciary Committee. If approved by the full Senate it would have to go back to the full House for approval with Senate amendments added in committee.

OK: state supreme court has struck down several laws as unconstitutional 7-2, so legislator wants to force court to be 9-0 or 8-1 in the future

Recently the Oklahoma Supreme Court has struck down several laws passed by the state’s legislature on 7-2 votes. Of particular note was the July 2015 decision by the court that resulted in the removal of a Ten Commandments display from the State Capitol Grounds as well as a 2013 ruling that struck down the legislature’s tort reform package for violating the state constitution’s “single subject” rule.

The result: a 2016 proposal to require at least an 8-1 or 9-0 vote to overturn state laws.

Under HJR 1063 as prefiled for the 2016 session

in any case in which the constitutionality of legislation enacted by the Legislature is at issue, the vote of the Supreme Court must be unanimous or there must not be more than one dissenting vote for the legislation to be declared unconstitutional. If the vote of the Supreme Court is not unanimous and there is more than one dissenting vote , the legislation shall not be held to be unconstitutional.

Interestingly, the bill does not apply to the state’s other court of last resort (Court of Criminal Appeals).

Only Nebraska (5/7) and North Dakota (4/7) require specific vote totals to find a law unconstitutional by the state’s court of last resort. A few states have quorum-minimums that require a majority of all justices of the court (as opposed to just a majority of the panel of justices hearing the case) are needed to strike down a law.

Arizona

The state’s constitution provides the Supreme Court may sit together (“in banc”) or in panels of 3 judges, however “the court shall not declare any law unconstitutional except when sitting in banc.” (Art. VI, Sec. 2)

Nebraska

The state’s constitution provides “No legislative act shall be held unconstitutional except by the concurrence of five [out of seven] judges.” (Art. V, Sec. 2)

This came up most recently in 2015 regarding a law that allowed “major oil pipeline” carriers to bypass the  regulatory procedures of the Public Service Commission.  (Thompson v. Heineman, 289 Neb. 798; 857 N.W.2d 731). Four judges ruled 1) appellees had standing and 2) the statute in question was unconstitutional. Three dissenting judges found that the five-judge requirement applied to both the questions of standing/jurisdiction and the merits and because there were not 5 votes on standing/jurisdiction the case should have been dismissed.

North Dakota

The state’s constitution provides “the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.” (Art. VI, Sec. 4)

This came up most recently in a 2014 case regarding a 2011 statute that addressed medication-induced abortions. (MKB Mgmt. Corp. v. Burdick, 2014 ND 197; 855 N.W.2d 31) The court fractured in a unique pattern

  • Two justices (one regular justice and a trial judge filling in due to a vacancy on the court) found the statute in question violated the ND constitution. Two justices found the statute constitutional under the ND constitution. One justice found the question did not need to be decided under the ND constitution. (2-2-1)
  • Three justices (two regular justices plus the fill-in trial judge) found the statute also violated the Federal constitution. One justice found the statute constitutional under the Federal constitution. One justice found the question was not properly before the court.  (3-1-1)

The court ultimately found “The effect of the separate opinions in this case is that [the statute] is not declared unconstitutional by a sufficient majority…”

Utah

The state’s constitution provides “The Supreme Court by rule may sit and render final judgment either en banc or in divisions. The court shall not declare any law unconstitutional under this constitution or the Constitution of the United States, except on the concurrence of a majority of all [five] justices of the Supreme Court. (Art. VIII, Sec. 2)

Virginia

The state’s constitution is similar to Utah’s: “The Court may sit and render final judgment en banc or in divisions as may be prescribed by law…[N]o law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.” (Art. VI, Sec. 2)