Virginia: last year’s House/Senate fight over mandatory judicial retirement age might be over; House votes 99-0 to increase age for all judges

A plan to increase the mandatory judicial retirement age for all Virginia judges passed the House yesterday, possibly the end of a decade-long process to increase mandatory retirement ages for all judges in the state.

Virginia spent the better part of 9 years debating whether or not to increase its mandatory retirement age. In 2016 the disagreement involved which judges would be eligible. The Senate wanted all judges to see an increase from 70 to 73. The House insisted on a three-tiered plan that was ultimately enacted (HB 1984 / SB 1196 of 2015)

  • all appellate judges effective July 1, 2015 would get the increase to 73
  • trial judges elected or appointed after July 1, 2015 would get the increase to 73
  • trial judges elected or appointed prior to July 1, 2015 would still have to retire at 70

The House yesterday unanimously approved HB 1245 which repeals the 2015 three-tier plan entirely and provides all judges, whenever elected or appointed would be eligible for increase in the retirement age.

The bill now goes to the Senate.

Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.

Virginia: proposal for e-filing system for District Courts killed in committee; modified bill passed House yesterday

A plan to require the Virginia District Courts to create an electronic filing system was recently killed in a House committee. HB 64 as introduced provided the state court administrator’s office (in Virginia called the Executive Secretary of the Supreme Court) “shall establish an electronic filing system for use in the general district courts.” The bill also provided judges or clerks of the general district courts were to transmit to the appellate court all documents required on appeal in electronic form.

The Executive Secretary of the Supreme Court shall establish an electronic filing system for use in the general district courts. The judge or clerk of a general district court shall provide to the appropriate clerk of any appellate court the original warrant or warrants or other notices or pleadings with the judgment endorsed thereon, together with all pleadings, exhibits, and other papers filed in the trial of the case, in electronic form. The clerk of the appellate court shall accept the official civil or criminal record in electronic form as otherwise required by law.

As amended in committee and ultimately passed by the House yesterday 99-0, any mention of a required electronic filing system was deleted. Discussion of electronic transmission of case documents to the appellate court was also heavily modified.

Upon agreement between the chief judge of the general district court and the clerk of the appellate court, the case papers shall be transmitted to the appellate court by an electronic method approved by the Executive Secretary of the Supreme Court, with the exception of any exhibit that cannot be electronically transmitted. In the jurisdictions where an agreement pursuant to this section is in effect for the electronic submission of case papers to the appellate court, the appellate court may transmit the case papers back to the general district court by electronic submission where the case is to be returned to the general district court under applicable law. Electronic case papers, whether originating in electronic form or converted to electronic form, shall constitute the official record of the case. Such electronic case papers shall also fulfill any statutory requirement requiring an original, original paper, paper, record, document, facsimile, memorandum, exhibit, certification, or transcript if such electronic case papers are in an electronic form approved by the Executive Secretary of the Supreme Court.

HB 64 now goes to the Senate.

Under what conditions/provisions should active and retired judges be allowed to carry firearms? South Carolina and Virginia debating plans to expand where and when judges can carry guns

Many states permit the judges of their courts to carry firearms without a permit and/or into places that the general public could not possess a firearm. Georgia, for example, enacted in 2014 an expansion in the number and types of retired judges who could carry (HB 60). Now legislatures in South Carolina and Virginia are debating where, when, and how active and retired judges should be allowed to carry weapons.

South Carolina: Present law (21-31-240) allows active judges and justices who possess a concealed carry permit the ability to “carry a concealable weapon anywhere within this State, when carrying out the duties of their office.” SB 1023 of 2016 would replace “active” with “active or retired” and drop the “carrying out the duties” language.

SB 1023 has been filed in the Senate Judiciary Committee.

Virginia: Present law (18.2-308) details the state’s concealed carry permit process and then lists those who are not required to obtain such a permit in order to carry anywhere in the state. HB 332 (as introduced) and the identical SB 544 would add both active and retired judges to the list.

Except as provided in subsection A of § 18.2-308.012, [carrying a concealed handgun while under the influence of alcohol or illegal drugs] this section shall not apply to…Any judge or retired judge of the Commonwealth, wherever such judge may travel in the Commonwealth.

At this point however the chambers are split. The Senate approved 40-0 this original language; SB 544 is now pending in the House Militia, Police and Public Safety Committee.

The House on the other hand adopted amended language for HB 332 that tied carrying closer to the discharge of judges’ official duties or while in transit to them.

This section shall also not apply to any of the following individuals while in the discharge of their official duties, or while in transit to or from such duties…in addition to the provisions of subdivision D 3, any judge, justice, or retired judge or justice of the Commonwealth who possesses a valid concealed handgun permit may carry a concealed handgun wherever such judge or justice may travel in the Commonwealth.

The House language was approved 97-0 on February 3; media coverage here. The bill was sent to the Senate Courts of Justice 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)

 

Virginia: bill would create judicial nominating commissions; VA one of only two states where legislature elects judges

Virginia is one of only two states (South Carolina is the other) where the legislature alone elects judges; the governor plays no role other than to fill temporary vacancies. Since 1997 South Carolina has made use of a nominating commission to make recommendations to the legislature and now Virginia may be getting its own version.

SB 355 as introduced would create a 15-member Judicial Nominations Commission to help fill vacancies in the state’s appellate courts. The Commission would be chosen by the legislature and each of the state’s 11 congressional districts would be ensured at least 1 seat. No more than 5 of the 15 members could be current or former attorneys. Unlike the South Carolina model which is made up mostly of legislators, the Virginia version would prohibit members of the General Assembly from serving.

The commission would review candidates and release the names of “not more than three persons”. As I have previously noted several states including South Carolina have made numerous efforts to try and raise their existing 3-names restrictions.

At the local level, SB 355 offers two options to fill trial vacancies:

  1. Creation of local judicial nominating committees: Each member of the General Assembly who represents any portion of the Judicial Circuit in question would be allowed to name 2 committee-members. No more than 30% of the committee could be made up of lawyers. As with the appellate version, the list of names would be limited to no more than three. The list of names would be sent to the House and Senate clerks for submission to the legislature.
  2. Local legislators’ option: the local House and Senate members can come up with their own system for finding candidates to fill vacancies, if they can certify that their alternate system “ensures participation of each delegation member and participation by the general public in the nomination process.”

SB 355 has been filed in the Senate Courts of Justice Committee.

Virginia Legislative Year in Review: increase to mandatory judicial retirement age, but only for some judges

Law

HB 1506 Requires that the guidelines for conditions of all deferred or installment payment agreements for the payment of court-ordered fines or other penalties be reduced to writing as well as posted in the clerk’s office and on the court’s website, if a website is available.

HB 1984 / SB 1196 For appellate judges, increases mandatory judicial retirement age 70 to 73. For trial judges, increases mandatory judicial retirement age 70 to 73 only for those trial judges elected or appointed after July 1, 2015.

SB 789 Permits the Committee on District Courts to adopt an official seal and authorize its use by district court clerks and deputy district clerks.

SB 1048 Provides Capitol Police may provide protection to members of the Court of Appeals (Supreme Court already covered in existing law).