Three state legislatures consider programs to require courts notify defendants by text of upcoming court hearings

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.”

Tennessee becomes latest state to consider ending partisan judicial races; incumbent judges would be guaranteed to have their name first on the ballot

Tennessee has joined a growing list of states considering an end to partisan judicial races.

Tennessee, like a great many states, does not just rely on 1 method of judicial selection. The state’s appellate courts are chosen in a quasi-federal system (governor appoints, House/Senate confirm, followed by retention elections). Trial courts are picked in any number of ways, including partisan election, nonpartisan, and appointment by local officials (such as in Municipal Courts).

For those courts/counties that use partisan judicial elections, HB 1494 / SB 1063 would end them in favor of nonpartisan judicial races. In those races, incumbents would have the right to have their name first on the ballot.

Several other bills have been introduced with a county-specific focus.
HB 1183 / SB 990 would focus on judicial races and require they be nonpartisan in Shelby and Davidson Counties along with local legislative races.

SB 411 has the same end (nonpartisan judicial and legislative races in Shelby and Davison) but with slightly different language that includes the incumbent-name-first aspect of HB 1494 / SB 1063.

In 2017 Texas created “Public Safety Employees Treatment Courts”, now Tennessee considering similar “First Responder Treatment Courts”

In the 2017 Texas enacted HB 3391 which created “Public Safety Employees Treatment Courts.” Based on the existing 2009 law that created veteran’s treatment courts, the new Public Safety Employees Treatment Courts were designed “for public safety employees such as peace officers, firefighters, detention officers, county jailers or EMS service employees who have been charged with a criminal offense due to job-related PTSD or other work-related mental issues.”

Now Tennessee is considering a similar move.

HB 2417 / SB 2414 takes the existing language from the state’s veterans treatment court statute (T.C.A. § 16-6-101 – § 16-6-106) and replicates it, replacing the word “veteran” with “first responder”, defined as “paid, full-time law enforcement officers, firefighters, and emergency medical services personnel who are employed by the state or a local government in this state.”

HB 2630 / SB 2325 appear to be almost identical; the only difference appears to be minor (placing three first responder treatment court advisory committee member positions on the drug court advisory committee).

Funding would come from a $50 fee for drug-related criminal convictions in counties establishing or operating a first responder treatment court program.

The House bills are pending in the Civil Justice Committee; the Senate bills are pending in Government Operations.

Tennessee: bills create Court Fee and Tax Advisory Council, calls for court fees and taxes to go only towards court/court clerk operations

Bills (HB 880 / SB 1084) filed in the Tennessee legislature earlier this month seek to address the issue of court fees and taxes, their amounts, and use.

The bills as introduced begin with explanatory clauses including declaring it “the policy of this state that court fees and taxes shall be imposed only for the expenses related to the operation of the courts and the operations of the court clerks” and expressing concern that court fees and taxes are becoming “a burden.”

If enacted, the bills require the creation of a Court Fee and Tax Advisory Council. The council would be responsible for

  1. annually compiling all the various court taxes and fees and recommending whether to continue them
  2. reviewing pending state legislation to create new court taxes and fees or amend existing ones

The Council would be made up of three groups: judges, lawyers, and clerks.

  • 3 judges, one from each of the state’s general jurisdiction courts (Chancery, Circuit, Criminal), chosen by the Supreme Court
  • 1 General Sessions Court judge, picked by the General Sessions Courts Judges’ Conference
  • 1 Juvenile Court judge, picked by the Council of Juvenile and Family Court Judges
  • 2 attorneys, one picked by House Speaker and other by Senate Speaker
  • 2 court clerks (1 civil + 1 criminal) picked by the State Court Clerks’ Conference

In addition, the Administrative Director of the Courts would serve ex officio.

The Tennessee council appears similar to the Louisiana Supreme Court’s Judicial Council’s review of new or increased court fees/costs (SB 253 of 2003 now codified as LSA-R.S.62). The Louisiana Judicial Council created a Court Cost/Fee Committee as a result.

Notably that 2003 law required the Louisiana Judicial Council to weigh in on increases or new fees/costs for all trial courts (“district court, family court, juvenile court, city court, parish court, municipal court, mayor’s court, justice of the peace court, and traffic court.”) A 2011 amendment (HB 522) removed the Council’s power to review fee/cost changes in mayor’s and justice of the peace courts. That same 2011 amendment, however, required the council to review and recommend whether the fee or cost was “reasonably related to the operation of the courts or court system.”

Tennessee is the only state that lets the court of last resort (Supreme Court) pick the Attorney General. Legislators are (again) trying to remove that power.

Tennessee’s constitution is unique among states in that it provides that the state’s Attorney General is neither elected by the voters nor appointed by the Governor and/or Legislature but is instead appointed by the state’s court of last resort (Supreme Court). Since 1997 over 2 dozen bills have been introduced to remove the supreme court’s power and provide for a statewide election or in some cases appointment by the legislature and 2017 is no exception.

SJR 57 as filed earlier this week would provide for the election of the Attorney General starting in November 2024. It also sets the requirements to be AG (at least 30, licensed attorney, etc.) and sets a limit of two consecutive terms.

While as I noted there have been 2 decades worth of efforts to remove the Supreme Court’s power, none have ever made it out of the legislature with the Senate passing several versions only to the have the House kill the bills or fail to take them up. Among notable attempts:

Direct Election

SJR 123 of 2013/2014 Senate failed to reach 2/3rds majority, vote failed 15-14 (22 needed).

SJR 63 of 2015/2016 Approved by full Senate 23-9. Died in House committee.

Legislative appointment

HJR 804 of 2011/2012 Approved by House Judiciary Committee on voice vote. Died in House Finance Committee.

SJR 196 of 2013/2014  Approved by full Senate 22-9. Died in House committee.

Gubernatorial appointment with confirmation

SJR 693 of 2011/2012 (House and Senate confirmation) Senate failed to reach 2/3rds majority, vote failed 16-15-2 (22 needed).

Tennessee: state’s supreme court picks attorney general, now Senate wants court to vote in public

Tennessee is unique in that the state’s Supreme Court, not the governor or legislature or voting public at large, names the state’s Attorney General (Art. VI, Sec. 5)

An Attorney General and Reporter for the State, shall be appointed by the Judges of the Supreme Court and shall hold his office for a term of eight years.

Since 1997 over a dozen constitutional amendments have been introduced into the state’s legislature to remove this power from the Supreme Court as detailed here and here. This year, however, lawmakers appear to be taking a new approach; require the Supreme Court vote on the AG in public.

SB 1269 scheduled for a hearing March 1 before the Senate Judiciary Committee would provide

Prior to appointing the attorney general and reporter, any meeting in which the justices of the supreme court vote for a candidate for the office shall be subject to the open meetings law…

Part of impetus may be a recent move by the state’s Supreme Court to appoint the Republican Governor’s legal counsel as the new Attorney General, rejecting an effort by the serving Attorney General to obtain another term in office.

This marks the second attempt in the last year to force a state court of last resort to deliberate in public. Montana’s legislature narrowly rejected on a 48-52 vote a proposal to subject that state’s Supreme Court to open meetings requirements for all its deliberations as detailed here.

(original post discussing the House version here)

Citing “state sovereignty”, Arizona House cmte to vote this week to prohibit state courts from enforcing/recognizing federal court decisions; MO & TN considering similar bans

Citing the state’s “sovereign authority”, members of the Arizona, Missouri, and Tennessee legislatures are attempting to prohibit state judges from enforcing U.S. Supreme Court and/or federal courts decision. An Arizona House committee is set to vote on two such proposals this week.


Under HB 2024 as introduced U.S. Supreme Court decisions could only be deemed valid in Arizona if they were “affirmed” by Congress and signed into law.

1-274.  Sovereign authority; United States supreme court opinions

Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with an opinion of the supreme court of the United States that is not in pursuance of the constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.

Similar provisions would also ban enforcement or acknowledgment of presidential executive orders (1-272) and federal agency policies (1-273).

HB 2201 would operate in a similar manner. The statute defines any cooperation with a “ruling issued by a court of the United States” as “commandeering” state judges and allows it only if the ruling has been “affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”

HB 2024 and HB 2201 are set for a vote on February 10 in the House Federalism and States’ Rights committee.


HJR 62 is constitutional amendment directed broadly to any “federal law.” The state legislature could send to the ballot, or the general public could via referendum, any “federal law” for a vote as to its constitutionality. If approved by voters, the “federal law” would be valid. If not, “the courts of this state shall be stripped of jurisdiction to enforce such a particular federal law…”

HJR 62 has been filed in the House Government Oversight and Accountability Committee.


HB 1828 and the identical SB 1790 both repeat many of the same provisions of the Arizona bills, but with one difference. Where the Arizona bills required Congress “affirm” U.S. Supreme Court and/or federal court decisions before state courts can enforce them, the Tennessee version requires the Tennessee General Assembly consent to the federal court decisions first.

This state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer, or cooperate with the implementation, regulation, or enforcement of any opinion of the United States supreme court unless such has been first expressly implemented by the general assembly by law as the public policy of the state.

HB 1828 is in the House State Government Committee. SB 1790 is the Senate Judiciary Committee.

Tennessee: should legislature set terms for trial court judges? All 50 states put terms in state constitution for main trial courts, but House member wants the power to set.

Last year around this time I noted a proposal submitted to the Tennessee House (HJR 91) that would repeal the constitutional clause that judges of Tennessee’s main trial courts would serve for 8 years. The plan is now back and set for a hearing before a subcommittee of the House Civil Justice Committee tomorrow (February 3)

At present the state’s constitution specifies an 8 year term for the state’s main trial courts (i.e. courts other than Municipal Courts).

The Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every judge of such courts shall be thirty years of age, and shall before his election, have been a resident of the state for five years, and of the circuit or district one year. His term of service shall be eight years.

The proposal deletes the last sentence and replaces it with.

The term of service shall be set by the general assembly.

When it comes to state general jurisdiction courts, no state gives unrestricted power to the legislature to set the terms. 48 state constitutions give specific terms of office. 2 states (Iowa and Ohio) set minimum terms and theoretically allow the legislature to set even longer terms (Iowa: “shall not be less than six years”; Ohio: “for terms of not less than six years”.) A 50 state examination of such provisions is below the fold.

Continue reading Tennessee: should legislature set terms for trial court judges? All 50 states put terms in state constitution for main trial courts, but House member wants the power to set.

Tennessee: legislature comes to agreement on how to confirm appellate judges; one-chamber rejection system is unique

I mentioned that the Tennessee legislature was unable to agree on a bill as to how to confirm appellate judges in the state. Earlier today, however, the House agreed to a plan that will now go to the governor (h/t to Brenda Gadd from the Tennessee Bar who posted a comment on this).

SB 1 has three key elements:

The House and Senate will meet jointly but with votes tabulated separately. The (99 member) House had at one point wanted a joint vote, which could have meant that chamber overwhelming the (33 member) Senate.

There are four possible scenarios contemplated in SB 1.

  1. Confirmation: both houses vote to CONFIRM the appointee by a majority of all the members to which each house is entitled (50/99 House, 17/33 Senate).
  2. Two-chamber rejection: both houses vote to REJECT the appointee by a majority of all the members to which each house is entitled (50 House, 17 Senate).
  3. One-chamber rejection: a majority of one house votes to confirm, but two-thirds of the other body votes to reject. Thus 66 House members or 22 Senate members can scuttle a nomination.
  4. No action, 60 day clock runs: If the votes do not result in a confirmation, two-chamber rejection, or one-chamber rejection, nothing happens. There can be a revote or, if no action takes place within 60 days, the nominee is confirmed by default.

The system for confirmation is very unique: only 6 states involve both chambers in confirmations (or reconfirmations) and none have a one-chamber rejection with 2/3rds vote provision.

SB 1 now goes to the governor for his signature.

Maryland hearing on usage and authorization for court facility dogs: bills in 6 other states pending/enacted recently

Over the last several years courts have grappled with when, and how, to allow the use of court facility dogs to assist witnesses and victims in giving testimony. A hearing set for today in Maryland’s Senate will examine the subject, while 6 other states have in the 2015/2016 legislative cycle either debated or in the case of Arkansas enacted statutes regarding facility dog usage.

Arizona: criminal cases, victim under 18, jury instruction required

HB 2375 of 2016 provides a court shall afford a victim who is under eighteen years of age the opportunity to have a facility dog accompany the victim while testifying in court. The court would be obligated to inform the jury “the facility dog is a trained animal, is not a pet owned by the victim witness and that the presence of the facility dog may not be interpreted as reflecting on the truthfulness of the testimony that is offered.”

HB 2375 cleared the House Judiciary Committee on January 20 and the House Rules Committee on January 25.

Arkansas: criminal cases, witness under 18, “appropriate jury instructions” required

HB 1855 of 2015 provided, subject to the Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence, or other rule of the Supreme Court, if requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated, a child witness of the party shall be afforded the opportunity to have a certified facility dog accompany him or her while testifying in court. “In a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.”

HB 1855 was enacted as Act 957 of the 2015 session.

Connecticut: criminal cases, violent crime victim, nothing on jury instructions

HB 5364 of 2015 provided that that in any criminal prosecution involving an alleged violent crime and testimony from a victim of such crime, such victim shall be permitted to be accompanied by a therapy dog while testifying in the criminal prosecution, provided such dog is not visible to the jury.

HB 5364 was filed in 2015 but never advanced out of committee.

Hawaii: any “judicial proceeding”, “vulnerable witness”, jury instructions “to the extent necessary”

HB 1668 of 2016 and the identical SB 2112 provide a court may permit the use of a facility dog involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of the vulnerable witness. “To the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings.”

Both bills are pending in their respective Judiciary Committees.

Maryland: criminal proceedings, child witness, nothing on jury instructions

SB 55 of 2016 provides a court may allow a facility dog or therapy dog to accompany a child witness. There is no mention of jury instructions.

SB 55 is pending before the Senate Judicial Proceedings Committee and it set for a hearing today (January 26).

New York: criminal proceedings, “vulnerable witness”, lengthy jury instruction

AB 389 of 2015 and the identical SB 231 provide that a court shall permit the use of a facility dog when, in a criminal proceeding involving the testimony of a vulnerable witness, the court determines by a preponderance of the evidence that it is likely that such witness will be unable to effectively communicate if required to testify without the presence of such facility dog and that the presence of such facility dog will facilitate such testimony. Both bills include a lengthy jury instruction statement

A jury instruction shall be given both before and after the appearance of the facility dog with the witness and at the conclusion of the trial. Such instruction shall include that the dog is a highly trained professional who is properly referred to as a “courthouse facility dog.” Included in this shall be the emphasis that the dog is not a pet, is not owned by the witness and is equally available to both the prosecution and defense under certain circumstances. Such instruction shall include that the presence of the facility dog is in no way to be interpreted as reflecting on the truthfulness of the testimony offered. Such instruction shall also include that the presence of the dog is a reasonable accommodation to the witness in allowing them to fulfill the obligation of testifying in a court of law.

Neither bill advanced out of committee in the 2015 session and were carried over into the 2016 session.

Tennessee: any civil or criminal proceeding, witness fitting criteria, nothing on jury instructions

HB 1987 of 2016 and the identical SB 1618 provide a court may allow the use of a courthouse facility dog for any civil or criminal proceeding for a witness. The court, in deciding on whether to permit the usage, may consider

  1. The age of the witness
  2. The nature of the witness’s relationship to the events giving rise to the proceeding
  3. Whether the witness suffers from any disability
  4. The rights of the parties to the proceeding
  5. Any other factors that the court deems relevant in facilitating the effective communication of information by the witness and protecting the rights of the parties to the proceeding.

HB 1987 has been filed but not yet assigned to a committee. SB 1618 is in the Senate Judiciary Committee.