Bills in three states have been filed in the last month to require state courts (in particular the various administrative offices of the courts) to develop text reminder system.
Colorado SB 36 appears to be a revised version of HB 1081 of 2018.
Under the 2019 bill, the state court administrator would have to roll out a text reminder program in four of the state’s judicial districts by January 1, 2020. “In administering the program, the state court administrator shall prioritize the use of text messages to remind criminal defendants with the capacity to receive text messages, unless and until a more effective technological means of reminding defendants becomes available.”
It is not clear from the text whether defendants would opt-in or opt-out of such text messages.
Tennessee’s legislature is considering legislation (SB 740 and HB 1104) that appears to be almost a cut-and-paste of Colorado’s HB 1081 of 2018 and/or SB 36 of 2019.
The third state (Massachusetts) is placing its proposed text messaging system for courts as part of a larger omnibus pretrial release package (HB 66) which is itself a repeat of a 2018 proposal (HB 4903).
In this 2019 iteration, there is an explicit opt-out provision and confidentiality provision (“such information may not be used in any proceeding”) but these have exceptions:
1) A judge can order a defendant to participate in the text message system as part of a pre-trial release order.
2) “The fact that a defendant did or did not participate in this system shall be marked on the docket and may be used in a proceeding if otherwise admissible.”
Many states, concerned over the threats made to judges/judicial officers, provide protections for the personal information and prohibit public records laws from being used to obtain that information. Court employees, however, are not always covered by such statutes. Florida is considering extending such protections to “judicial assistants” in the state.
HB 635 / SB 746 as filed cites concerns that the information related to these current and former assistants can be used to target them for false liens and other acts of revenge. It would protect from public disclosure information related to them and their families in the same way that similar information regarding judges and their families are protected.
The bills have been filed but neither have been assigned to a committee.
As I’ve noted over the years, there’s been more and more of an effort to expand where people can carry firearms into courthouses, but the traditional (and in some states constitutional) boundary is the courtroom door. But what is a “courtroom”? And what about law enforcement?
What is a courtroom?
In Mississippi this issue came up most recently as the result of litigation. The state legislature had previously enacted a law to allow for courthouse carry for those with enhanced licenses, but specifically exempted courtrooms. Several Mississippi judges attempted to create by administrative order a gunfree zone that encompassed portions of their courthouse. In June of last year the Mississippi Supreme Court struck down that policy (Ward v. Winston Colom) but did uphold the courtroom ban.
The debate did not stop there, however. Enter HB 1581, which would specifically defined “courthouse” and “courtroom” for purposes of the carrying statute, and provide that a “courtroom” includes “judges’ chambers, witness rooms and jury rooms. ” However, explicitly excluded from “courtroom” is ” hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding, the grassed areas, cultivated flower beds, sidewalks, parking lots, or other areas contained within the boundaries of the public land upon which the courthouse is located.”
HB 1581 was approved by the House Judiciary B committee on February 5.
Does law enforcement have a “right” to carry into a courtroom?
The other question is whether a judge could prohibit law enforcement from coming into a courtroom armed. When the New Hampshire legislature tried to force this issue in the 1970s, that state’s high court ruled against a statute that required judges let law enforcement come in armed (State v. LaFrance, 124 N.H. 171, 471 A.2d 340, 1983 N.H. LEXIS 377 (1983). The provision in RSA 490:4-a (“Notwithstanding any other rule, regulation or order to the contrary, law enforcement officers shall be permitted to wear firearms in any courtroom in the state.”) struck as unconstitutional. Violates the separation of powers doctrine provided by part 1, article 37 of the Constitution of New Hampshire.)
Mississippi law already provides “A law enforcement officer, as defined in Section 45-6-3, shall be authorized to carry weapons in courthouses in performance of his official duties” but what about courtroom carry? HB 1019 would have specifically put into law that the existing statute did not apply where the officer was “instructed by the judge of that court in that judge’s courtroom” to leave the weapon. The bill went nowhere in the House.
Arkansas is debating a similar courtroom-carry-by-law-enforcement bill. Arkansas law already contains a provision that law enforcement “is permitted to possess a handgun in the courtroom.” SB 197 as originally filed would have allowed for both on-duty and off-duty certified law enforcement to courtroom carry.
This was amended, however, with a proviso: an off-duty officer may not courtroom carry if he or she is “a party to or a witness in a civil or criminal matter unless the law provides otherwise.”
SB 197 is set for a hearing in the Arkansas Senate City, County, and Local Affairs Committee tomorrow (2/12).
An effort to increase security at courthouses and other public buildings in Illinois has been filed in the state’s legislature.
HB 191 as filed would, among other things, require all Illinois sheriffs to provide a walk-through metal detector at each point of entry into the courthouse. All members of the public would be subject to search, however “employees of the county or individuals who display proper credentials” would be exempt. The Department of State Police would make grants to counties/courthouses to pay for the detectors.
The bill includes similar entrance screening requirements for schools, institutions of higher learning, and hospitals.
HB 191 has been filed in the House Rules Committee.
A plan to impeach members of the Pennsylvania Supreme Court for their decision in a gerrymandering case discussed here has now become official.
Justices David N. Wecht, Debra McCloskey Todd, Christine Donohue, and Kevin M. Dougherty are all officially charged with misbehavior in office for their opinion in League of Women Voters of PA, et. al. v. The Commonwealth of PA, et. al., No. 159 MM 2017. The U.S. Supreme yesterday declined to take up a challenge in the case.
HR 766 (David N. Wecht)
HR 767 (Debra McCloskey Todd)
HR 768 (Christine Donohue)
HR 769 (Kevin M. Dougherty)
UPDATE: The main author of the resolutions was quoted by The Hill as saying
“This is basically 7th grade civics class all over again, the separation of powers and the authority of the legislature,” Dush told The Hill. “The courts basically are there to interpret when there’s conflict in the law, and they don’t have any sovereignty.”
The Mississippi Legislature has unanimously advanced to the governor a bill to expand the power of the state’s Chief Justice to appoint “special judges” to help clear up case backlogs.
State law already allows the Chief Justice, with the consent of a majority of the Supreme Court, to make such appointments for the Court of Appeals, Chancery Court, or Circuit Court. Now the Chief Justice could name such temporary special judges to County Courts.
Additionally, rather than simply appointing the temporary judge to a court, the Chief Justice could give the temporary judge particular assignments (“The Chief Justice, in his discretion, may appoint the special judge to hear particular cases, a particular type of case, or a particular portion of the court’s docket.”)
A plan to put all nonconfidential criminal case information in Virginia online by July 1, 2019 has been signed in law. Among other things HB 780 / SB 564
- Defines “confidential court records,” “court records,” and “nonconfidential court records”
- Requires the Executive Secretary of the Supreme Court to make available to the public an online case information system of nonconfidential information for criminal cases by July 1, 2019. This information will cover circuit courts participating in the Executive Secretary’s case management system and all general district courts.
- Provides that requests for reports of aggregated, nonconfidential case data fields that are viewable through the online case information systems maintained by the Executive Secretary of the Supreme Court shall be made to the Office of the Executive Secretary. Such reports of aggregated case data shall not include the name, date of birth, or social security number of any party and shall not include images of the individual records in the respective case files. However, nothing in this section shall be construed to permit any reports or aggregated case data to be sold or posted on any other website or in any way redistributed to any third party. The Executive Secretary, in his discretion, may deny such request to ensure compliance with these provisions. However, such data may be included in products or services provided to a third party, provided that such data is not made available to the general public.
- Provides a clerk of court or the Executive Secretary of the Supreme Court shall make nonconfidential court records or reports of aggregated, nonconfidential case data available to the public upon request.
- Specifies that such records or reports shall be provided no later than 30 days after the request.
- Provides that the clerk may charge a fee for responding to such request that shall not exceed the actual cost incurred in accessing, duplicating, reviewing, supplying, or searching for the requested records.
A set of bill to put civil case information online in similar fashion (SB 980) cleared the Senate but was held in the House Courts of Justice Committee until the 2019 session.
A bill approved last week by the Florida Senate Judiciary Committee and set for a full Senate vote soon effectively merges several bills into one with potential major ramifications for the courts.
SB 1396 as it presently reads includes
- A new section of law regarding the role and responsibility of sheriffs to provide court security and the authority of chief judges in this area. The language appears to be similar if not identical to portions of HB 7089 discussed here.
- Increases the civil jurisdiction for the state’s County Courts from $15,000 to $50,000 effective 2020.
- Authorizes a Supreme Court justice who resides outside of Tallahassee to maintain his or her headquarters in a district court of appeal courthouse, a county courthouse, or other appropriate facility in the justice’s district and be reimbursed for travel and subsistence while in Tallahassee.
- The addition of judges to certain Circuits
This last item may prove a sticking point. Under the state’s constitution the supreme court “certifies” the number of judges needed in each Circuit Court or County Court. If the legislature wants to alter the supreme court’s numbers up or down, it must have “a finding of two-thirds of the membership of both houses of the legislature.”
Earlier this week the Wyoming legislature approved SF 24, an attempt to specify the responsibilities for court information technology equipment between the state judicial branch and county governments.
Key elements of the bill include:
- Defines “Court information technology equipment” (hardware equipment located in state court facilities necessary to meet, but not exceed, court information technology equipment standards adopted by the board of judicial policy and administration)
- Defines “State court facility” to include circuit and district courtrooms, circuit and district court jury rooms, circuit and district court judges’ chambers and the offices of circuit court clerks. Wyoming does have municipal courts, but these are not discussed.
- Implementation of court information technology equipment that requires alteration of a county building requires consultation with the board of county commissioners or the board’s appointed designee.
- The supreme court shall install court information technology equipment in all state court facilities in a phased approach. Upon installation of court information technology equipment in a state court facility, the supreme court shall maintain and support the equipment installed by the supreme court.
- Each county shall provide and maintain infrastructure to ensure the proper function of court information technology equipment including, but not limited to, requisite power outlets, network drops, audio and visual drops and associated wiring for connectivity of all endpoints and peripherals associated with court information technology equipment.
SF 24 now goes to the governor.
Two bills filed last week address the need for courts to make plans for disasters and other emergencies.
California SB 1208 as filed amends the state’s existing Judicial Emergency statute (Government Code 68115). Among other things, SB 1208
- Expands instances where the Chief Justice, as Chair of Judicial Council, may exercise emergency powers due to disaster/emergency. Currently that power is limited to “war, insurrection, pestilence, or other public calamity” but would be changed to “war, an act of terrorism, public unrest or calamity, epidemic, natural disaster, or other substantial risk to the health and welfare of court personnel or the public.” The Chief Justice could also act where the President or the Governor declared a state of emergency.
- Allows civil cases to be move to another county; currently the power is limited to an adjacent county. However, a transfer “shall not be made” (currently “may be made”) except with the consent of all parties to the case or upon a finding by the court that extreme or undue hardship would result unless the case is transferred for trial.
- Provides certain civil time limits related to trials are to be extended only to fewest days necessary, however the Chief Justice may make extensions of time on the request of the presiding judge from granting further extensions if circumstances warrant relief.
Minnesota HF 2809 as filed is broader than the California bill and addresses emergency operations and continuity of government for all three branches. As filed, HF 2809 requires the Supreme Court adopt and maintain an emergency operations and continuity of government plan to ensure the secure, continued operation of the judicial branch in the event of a disaster, emergency, or “declared emergency” (defined as “a national security or peacetime emergency declared by the governor under section 12.31.”)
At minimum, the plan must include
- identification of at least three suitable locations within the state at which the Supreme Court, Court of Appeals, and central administrative functions of the judicial branch could operate in the event of a disaster or declared emergency that make its regular location unsafe or inaccessible, with one location designated as a primary alternate location and two designated as backup alternate locations if the primary location is unsafe or inaccessible;
- plans to provide timely and secure communications regarding a disaster, emergency, or declared emergency to all affected personnel, including alternate methods of communication if a primary method is unavailable;
- plans to securely transport affected justices, judges, designated personnel, and necessary equipment and records to an alternate location and begin judicial operations at that location in a timely manner;
- plans to ensure reasonable public notice of the judicial branch’s operations and access to its proceedings and records in-person or by electronic, broadcast, or other means as the rules of the court require and the circumstances of the emergency allow;
- plans to ensure the rights and protections guaranteed by the federal and state constitutions to criminal defendants, petitioners, and civil litigants are preserved;
- procedures for the orderly return of judicial branch operations to their regular location, as soon as circumstances allow; and
- policy decisions that address any other procedures or protocols recommended for inclusion by the state director of emergency management.