2011 Western bail/pretrial release legislation

Note: This was suppose to go out Friday, August 19. Sorry for the delayed posting.

Law

Arizona HB 2355 Redefines various “assessments” with respect to bail as “surcharges”.

Arizona SB 1023 Authorizes adult probation officers, in counties with more than two million, to serve warrants and make arrests on anyone who has violated a condition of pretrial release while under the supervision of the pretrial services division.

California SB 291 Provides that after a person has been brought back to the state by extradition proceedings, the person shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of bail appearing on the underlying arrest warrant. Specifies a 48-hour noticed bail hearing, excluding weekends and holidays, is required to deviate from this prescribed bail amount. Clarifies that nothing in this law is intended to preclude the existing ex parte process for raising bail through an affidavit of a law enforcement officer in a felony or specified misdemeanor domestic violence case, as specified.

Colorado HB 1189 Provides if a person is arrested for driving under the influence or driving while ability impaired and has been convicted of either offense at least
twice previously, the bill requires the court to impose participation in a substance abuse treatment program, electronic monitoring, drug or alcohol testing, and use of an interlock device (if appropriate) as bail conditions.

Wyoming SB 17 Provides that “conditional release” does not include release on bail; probation and parole agents will not supervise individuals on bail.

Introduced with committee and/or floor approval

Alaska HB 175 Makes corrections in the law to conform to the changes in the bail statutes adopted in 2010. Makes conforming amendments to statutes that are in conflict with the bail schedules in the court rules and directly and indirectly amends various rules of court, including the Alaska Rules of Criminal Procedure and Alaska Rules of Administration.

Arizona SB 1611 Prohibits a person from being admitted to bail if the proof is evident or the presumption great that the person is guilty of a class 5 or 6 felony if there is probable cause to believe that the person has entered or remained in the U.S. illegally.

California AB 178 Requires any person released from county jail before sentencing due to a court order or policy to relieve overcrowding to sign a release agreement, as specified; apply the same penalties to a person released under court order or policy to relieve overcrowding and who fails to appear as would apply to a person released on their “own recognizance”; and apply the same penalty enhancement to a person released due to a court order or policy to relieve overcrowding who commits a new felony offense while on release as would apply to a person who commits such an offense while on an “own recognizance” release.

Colorado HB 1088 Provides a law enforcement agency holding a defendant for a felony or class 1 or 2 misdemeanor whom the law enforcement agency has reasonable grounds to believe is present in the country illegally must notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. Requires a court, when considering the amount of bond to set, consider whether there are reasonable grounds to believe the defendant is present in the country illegally.

Colorado SB 186 Permits an alternative bond program to be established in any judicial district. Allows courts to provide the option of the alternative bond program to a defendant if there is such a program in that judicial district. Provides a law enforcement agency may work with an alternative bond program to secure the appearance of defendants in the program. Provides a pretrial services program with an alternative bond program is permitted to expend a portion of the moneys collected for pretrial services.

Hawaii HCR 140 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

Hawaii HR 122 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

New Mexico HJR 20 (Constitutional Amendment) Eliminates right to bail under state’s constitution. Provides bail may be granted or denied by a court based on the flight risk of the defendant, the nature and seriousness of the offense, the danger that would be posed to any person or the community by the defendant’s release, and other factors as provided by law. Eliminates the presumption of no bail in capital cases. Eliminates prohibitions against excessive bail, excessive fines, and cruel and unusual punishment. Eliminates requirement that courts give preference to an appeal from an order denying bail over all other matters.

Washington HB 1194 Provides when a person is arrested and detained for a class A or B felony, a judicial officer must make a bail determination on an individualized basis. Requires courts notify sureties of a defendant’s failure to appear within 14 calendar days of the date on which the defendant failed to appear, rather than 30 days. Provides a surety may surrender a client in a criminal case for good cause and if accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for surrender. Provides if the court finds that good cause does not exist for the surrender, the surety must return the premium paid as well as any recovery fee. Specifies good cause does not include circumstances in which the client failed to make timely payment to the surety for the bond premium. Requires presiding judge of a court notify the Administrative Office of the Courts (AOC) when the court revokes the justification or certification of a bail bond agent to post bonds in the court. Requires AOC notify superior courts and courts of limited jurisdiction statewide or revocation.

Washington SB 5056 Subject to the availability of funds, requires Administrator for the Courts provide superior courts and courts of limited jurisdiction access to the risk assessment tool developed by the Washington State Institute for Public Policy (WSIPP). Subject to the availability of funds, requires Washington State Center for Court Research (WSCCR) research, evaluate, monitor, and report on the validity of the risk assessment tool to ensure the predictive value of the tool. Requires every two years WSCCR submit a report and recommendations regarding the validity of the risk assessment tool to the Governor, the Supreme Court, and the Legislature. Provides a court may, in its consideration of pretrial release or detention, issue an order requesting information related to mental health services that a defendant has received. Limits information that may be requested to information related to violent acts. Provides court may delay the setting of bail pending receipt of the information, not to exceed 48 hours. Subject to the availability of funds, requires WSIPP develop and validate a pretrial risk assessment tool to assess whether an individual is likely to fail to appear at subsequent court hearings by December 1, 2011. Requires WSIPP submit a report, describing the methodology for developing and validating the pretrial risk assessment tool and the predictive value of the tool, to the Governor, the Supreme Court, and the Legislature by December 1, 2011. Provides presiding judge of a court must notify AOC when the court revokes the justification or certification of a bail bond agent to post bonds in the court. This notice must include the reasons for revocation. Provides once AOC receives the information it must notify superior courts and courts of limited jurisdiction statewide. Requires AOC develop a model form that law enforcement and jails may use to collect information about persons arrested or held in custody so that courts have more information at the bail hearing, including any history of domestic violence, protection orders known to law enforcement or the facility holding the person, and input from individuals reasonably believed to be a victim of the person in custody regarding pretrial release determinations.

Introduced with committee rejection

n/a

Introduced with other or no activity

California AB 1264 Repeals the uniform countywide schedule of bail. Establishes Statewide Bail Commission to prepare, adopt, and annually revise a statewide bail schedule for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.

Hawaii HB 401 Creates task force to reduce contact with the criminal justice system to examine various issues, including increasing options for cost-effective pretrial release, with consideration given to enrollment and participation in an appropriate social services or treatment program.

Idaho SB 1119 Requires bail agents to collect all of the premium on the surety bail bonds they write at the time the defendant is released from custody.

Nevada SB 217 Requires each pretrial release agency prepare a register to be made available to the public that contains certain information regarding the cases and defendants who are recommended for release by the pretrial release agency and submit an annual report containing certain statistical information regarding the operations of the pretrial release agency during the preceding calendar year.

State-by-State 2011 Legislative Year in Review: Utah

New laws affecting the courts enacted by the Utah legislature in 2011 include the following:

HB 21 Changes some reports required of the Administrative Office of the Courts and the Judicial Council to be provided at the option of the Judiciary Interim Committee.

HB 74 Changes the retention election requirements for municipal justice court judges entire county to the municipality where the judge sits. Clarifies that a justice court judge standing for retention in more than one location who is retained in one location and not retained in another does not lose both offices.

HB 2001 (2nd Special Session) Provides Justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established. Provides Justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the criteria established when the Judicial Performance Evaluation Commission was created in 2008.

HB 376 Allows a defendant in an action in district court to remove it to small claims court if it fits the jurisdictional amounts.

HB 477 Prohibits a court from releasing certain protected records via means of a balancing test unless it is determined, by a preponderance of the evidence, that the public interest favoring access to the record outweighs the interest favoring restriction of access to the record.

SB 143 Makes numerous changes to state’s justice courts. Permits a person to be a candidate for more than one justice court judge office. Requires an appointee or a candidate to more than one justice court office to pay a filing fee for each office and identify on the declaration of candidacy all of the courts included in the general election. Allows a declaration of candidacy in one county to be valid in any other county in which the candidate may be appointed or elected. Requires the ballot title to include the name of a court created by interlocal agreement. Removes the requirement that all registered voters in a county vote in the retention election of a county justice court judge. Removes the requirement that the governing bodies of a county and a municipality within that county both concur when a justice court judge is permitted to hold office as both a county and a municipal justice court judge. Allows any court, without a jury, to determine questions of fact and law and any constitutional issue presented in the pleadings. Removes the authorization for a justice court judge to order administrative traffic checkpoints and issue search warrants.

SB 212 Allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge. Removes litigants from the judicial performance evaluation survey. Reduces the number of categories to be included in the performance evaluation survey. Allows survey respondents to supplement responses to survey questions with written comments. Establishes a clear minimum performance standard. Establishes that the judicial performance evaluation survey is to be reported in three categories: legal ability, judicial temperament and integrity, and administrative abilities. Allows only a judge who is the subject of an unfavorable retention recommendation to meet with the commission about its recommendation.

SB 274 Allows Justice Court Technology, Security, and Training Account to also cover expenditures for justice court audit expenditures. Adds information technology to the list of expenditures permitted by the Court Reporter Technology Account.

SB 318 Establishes that justice courts may not be created or certified by the Judicial Council unless the justice court operates a recording device in each court room.

Utah legislature to meet in special session 7/20 during interim meetings; will look at Judicial Performance Evaluation Commission evaluations

Last week Utah Governor Gary R. Herbert issued a proclamation convening the Utah Legislature in a Special Session on July 20 to address six legislative issues and confirm appointments. The first item listed:

To consider amending Utah Code Section 78A-7-202 to modify the requirements under which the Judicial Performance Evaluation Commission must evaluation part-time justice court judges for the 2012, 2014, and 2016 elections and to make technical and conforming amendments.

The bill introduced, HB 2001 (2nd Special Session) reads very similar to HB 392 from the regular session (see my previous blog post on the regular session bill here), as amended but failed to pass before the legislature adjourned. Both bills provide, for the 2012, 2014, and 2016 retention elections only, the Judicial Performance Evaluation Commission is to evaluate justice court judges under two different standards:

  • justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established
  • justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the new criteria established when the Judicial Performance Evaluation Commission was created.

As testimony earlier this summer indicated the bill needs to be considered in a special session because the Judicial Performance Evaluation Commission (JPEC) is unable to comply with the current code and that most of the requirements of the current statute cannot be applied to part-time justice court judges. An effort to allow justice court judges to be removed for cause by the original appointing authority or applicable municipality failed.

The session is set to “piggy back” on interim meetings already schedule. The Judiciary, Law Enforcement, and Criminal Justice Interim Committee agenda items include:

  1. Use of Criminal Surcharges and Fines to help fund drug task forces
  2. Prisoners released without having basic identifying documentation.
  3. Multi-agency strike force to combat violent and other major felony crimes associated with illegal immigration and human trafficking.
  4. Forfeited Property Report
  5. Jail Reimbursement and Contracting
  6. Making a more accessible Sex and Kidnap Offender Registry

Utah House moves bills to keep state’s retention elections and modify state’s judicial performance evaluation system

Last week I noted the Kansas House had voted to end merit selection for the state’s Court of Appeals. This week’s changes are in Utah, where today that state’s House rejected efforts to delay the transition of the state’s justice courts to retention elections. HB 392 as introduced, would have delayed the use of judicial retention elections for justice court judges until the 2018 general election. Under current law, such retention elections will go into effect upon the expiration of a justice court judge’s current term of office. Moreover, justice court judges would have been subject to the state’s judicial performance evaluation program starting in 2014.

As amended, however, HB 392 (Substitute) allows justice court judges to be evaluated for the 2012, 2014, and 2016 retention elections under two different standards.

  • Justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established
  • Justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the criteria established when the Judicial Performance Evaluation Commission was created in 2008

HB 392 (Substitute) was approved on a 69-0 earlier today.

Also today the House Judicial Committee approved, SB 212 (Substitute). It passed the Senate last week on a 25-0 vote and was approved by the House committee today on a 10-0 vote.

In its present form, the bill

  • allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge
  • requires that any record of an individual commissioner’s vote be a protected record not subject to public inspection under the state’s Government Records Access and Management Act
  • removes litigants from the judicial performance evaluation survey
  • allows survey respondents to supplement responses to survey questions with written comments;
  • establishes that the judicial performance evaluation survey is to be reported in three categories: legal ability, judicial temperament and integrity, and administrative abilities
  • establishes a clear minimum performance standard of at least 65% in each survey category
  • allows only a judge who is the subject of an unfavorable retention recommendation to meet with the commission about its recommendation
  • allows the judicial performance evaluation commission to only report public discipline that a judge has received

Additionally, the bill changes the four survey “topics” into  three “categories” through the merger of judicial temperament and integrity and, as noted above, requires a 65% rating or better in each category (the existing standard is an average score of at least a 3.0 [on a 5 point scale] on at least 80% of the questions).

Proposed survey “categories”

legal ability

  1. demonstration of understanding of the substantive law and any relevant rules of procedure and evidence;
  2. attentiveness to factual and legal issues before the court
  3. adherence to precedent and ability to clearly explain departures from precedent
  4. grasp of the practical impact on the parties of the judge’s rulings, including the
  5. effect of delay and increased litigation expense
  6. (new) ability to write clear judicial opinions
  7. (new) ability to clearly explain the legal basis for judicial opinions

judicial temperament and integrity

  1. demonstration of courtesy toward attorneys, court staff, and others in the judge’s court; maintenance of decorum in the courtroom
  2. demonstration of judicial demeanor and personal attributes that promote public trust and confidence in the judicial system
  3. preparedness for oral argument
  4. avoidance of impropriety or the appearance of impropriety
  5. display of fairness and impartiality toward all parties
  6. (modified language) ability to clearly communicate, including the ability to explain the basis for written rulings, court procedures, and decisions

administrative performance

  1. management of workload
  2. sharing proportionally the workload within the court or district
  3. issuance of opinions and orders without unnecessary delay

Utah State of the Judiciary: “state courts are the foundational institutions of our system of justice”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Utah Chief Justice Christine Durham delivered her State of the Judiciary Address on the opening day of the Utah Legislature on January 24.  There was apparently no formal resolution, only a motion at the appointed time for the Legislature to resolve itself into a Committee of the Whole for the purpose of hearing the address.

Highlights of the Chief Justice’s speech (full text here) included:

I would like to use my time today to say a few words about the context in which state courts in general are functioning, and then to focus on our situation in Utah. I would be remiss, however, if I did not begin by emphasizing the degree to which we in the judiciary understand and appreciate the history of collaboration and support between our branch and yours in recent years.

In the last several decades, the almost exclusive focus in this country on study of the federal courts, which began in the middle of the last century, has shifted. It is increasingly understood that the state courts are the foundational institutions of our system of justice…State courts decide where children will live after divorce and how much is due for their support, whether a tenant is evicted, whether a small business can collect its unpaid accounts, whether a property owner gets a zoning variance.

Courts are not perfect; they are human institutions subject to the frailties of all such institutions. But in our constitutional democracy Americans have placed in them our best hopes for preserving a system of justice and the rule of law.

I do not want today to talk about our budget; instead I want to talk with you about our management of the public’s resources…. Our view is that good government implies, and the public demands, that we organize ourselves efficiently, that we focus our resources on functions that directly benefit the public, that we take advantage of the best research, information and technology to change and adapt our system to best practices, that we measure our productivity, and that we hold ourselves accountable to these principles. We believe that we have done all of these things, that we are an example of good government.

We have in the past two to three years made the significant permanent cuts necessary to balance our budget, and we have identified a strategy to use what remains so as to achieve the greatest possible system efficiencies. In fact, we are in the process of making fundamental changes in almost every part of our court system.

We have a comprehensive set of performance measures that we use as a “dashboard” to indicate our speed, direction and productivity….We also did away with the archaic practice of compensating clerks based on simple longevity, and instead now pay them based on demonstrated competency and skill acquisition. This has enabled us to provide the same service to more court users with fewer people.

It would be extremely difficult, I think, to find any operation more paper intensive than courts; tens of millions of pieces of paper are handled multiple times by multiple people in Utah’s courts annually. This is about to change radically and rapidly as we move to what we are calling “e-everything.”…The electronic record project, amazing as it is, is only part of “e-everything.” The courts have already launched e-filing of civil cases, e-payment of fees, fines and restitution, e-documents, e-warrants and e-citations. All of these systems have been initiated statewide, so that even when a case is not filed electronically, its documents are being scanned for the creation of an electronic record.

The next area I wanted to mention has to do with reforms in the arena of civil litigation. The Supreme Court’s Advisory Committee on the Rules of Civil Procedure has been working for the past two years on a radical restructuring of the process and theory of discovery in civil lawsuits.

As we have traveled the state meeting with many of you in your districts, one topic that came up in every area is drug courts. Out of curiosity, by a show of hands, how many of you have attended a drug court or spoken at a drug court hearing or graduation? For those who haven’t done so, you have an open invitation to attend one at any time. I promise you that you will feel your time was well spent.

Our system for selecting judges provides our state with an outstanding judiciary. They are being relied upon to handle more and more cases, and are working hard not to let the additional work result in delay. Our judges and staff have responded in a way we can all be proud of. The major transitions in progress would be challenging in the best of times, and these are not the best of times. The complete transition will take several years, but we are well underway, with all the major components in place.

Last year I reported that the state of our judiciary was strong, but challenged. This year I would amend that assessment by reporting that we are responding to the challenge by relying on the strength of our people and on a willingness to critique and change how we conduct court business.

Judicial Retirement Plans/Pensions: Western States

California AB 399 Requires, for the Judges’ Retirement System and the Judges’ Retirement System II, that calculations of retirement benefits and Extended Service Incentive Program benefits for any judge who voluntarily waives salary, as described above, include salary and contributions that would have been paid had the judge not done so, and that the state pay costs that result from the increased benefits and monetary credits. Signed into law by Governor 10/11/09.

California AB 590 Requires that a person who is retired under the Judges’ Retirement System who is again appointed or elected to serve as a judge reinstate from retirement and become a member of the system, as specified. Revises provisions governing the payment of accrued, unpaid allowances in both judges’ retirement systems to provide for their payment to either the estate of the deceased or the duly authorized representative of the estate when the court receives a court order appointing an executor, administrator, or personal representative. Provides if the estate does not require probate, the bill would also authorize the payment to be made to a successor trustee, or to a beneficiary of the deceased named in a valid will, as applicable. Signed into law by Governor 8/5/09.

Utah SB 130 Repeals allocation of certain small claims fees to the Judges’ Retirement Trust Fund. Signed into law by Governor 3/22/10.