AN ACT CONCERNING JUDICIAL BRANCH OPENNESS.

This bill changes the procedures that judges must follow to adopt and modify court rules. It requires the chief justice to submit new rules or changes to rules regulating pleadings, practice, and procedure to the General Assembly at the start of each regular session for a hearing before the Judiciary Committee and makes any rule or part of one disapproved by a resolution of the General Assembly void and without effect.

The bill requires the Judicial Selection Commission (JSC) to evaluate incumbent state referees seeking reappointment in the same general way that they evaluate judges seeking reappointment.

The bill makes a number of changes to the procedures of the Judicial Review Council (JRC). These include (1) opening to the public records from a JRC hearing held after finding probable cause that a judge, compensation commissioner, or family support magistrate committed a violation; (2) requiring it to comply with Freedom of Information Act (FOIA) provisions on meeting notices and agenda availability; (3) authorizing a civil penalty as discipline for a judge, compensation commissioner, or family support magistrate; and (4) eliminating the requirement that the JRC submit recommendations about judges who are reappointed or nominated to a different court and compensation commissioners and family support magistrates who are reappointed.

The bill specifies that the term of the chief court administrator and probate court administrator is until the appointing chief justice ceases to hold office or until a successor is appointed. It also expands who is eligible to be the probate court administrator.

It defines “administrative functions” as used in FOIA to identify Judicial Branch records and meetings subject to the act.

It makes a number of other changes including changes to court practices, primarily opening court records and proceedings to the public. Among these, it (1) requires the Judicial Branch to post more conviction information on its website, (2) makes public certain alternative incarceration assessments and requests by prosecutors to seal an affidavit in support of a search warrant, and (3) sets circumstances where a competency evaluation can be disclosed.

1. replaces the bill's provisions on judges submitting court rules to the Judiciary Committee for comment and instead requires all court rules to be submitted and subject to disapproval by the General Assembly,

2. removes requirements for JSC and JRC websites (which currently exist) but requires the Judicial Branch to include a link to them on its home page,

3. eliminates requirements that the JSC post meeting notices and agendas,

4. removes authority of the JRC to issue advisory opinions and provides that any ethics advisory opinions from the Judicial Branch cannot be considered in a JRC proceeding,

5. changes the test for disclosing information about a JRC investigation before a probable cause finding,

6. eliminates a provision making an admonishment a public record,

7. eliminates a provision requiring the chief justice to submit her nomination for probate court administrator to the General Assembly,

8. alters the definition of Judicial Branch “administrative functions” for FOIA,

9. limits the chief court administrator's responsibility for reviewing complaints to those in writing, and

10. eliminates a requirement that the Commission on Official Legal Publications put all state agency regulations on the Internet.

EFFECTIVE DATE: July 1, 2008, except that the provisions on (1) the JSC and JRC, (2) conviction information on the Judicial Branch website, (3) alternative incarceration assessments, (4) search warrant affidavits, and (5) competency evaluations, are effective on October 1, 2008.

1. judges of the Supreme, Appellate, and Superior Court adopt, modify, and repeal rules and forms on pleadings, practice and procedure in the courts and

2. statutes on pleadings, practice, and procedure existing on July 1, 1957 are deemed to be court rules and rules adopted by the judges to change them must be reported by the chief justice to the General Assembly at the start of each regular session, referred to the Judiciary Committee for a hearing, and any rule or part of one disapproved by a resolution of the General Assembly is void and has no effect.

The bill subjects all rules adopted, promulgated, modified, superseded, or suspended by the judges of the Supreme, Appellate, or Superior Court to the procedures described above under number two that currently apply to rules changing statutes that existed on July 1, 1957.

By law, the judges or one of their committees hold hearings on proposed rules and rule changes after reasonable notice in the Connecticut Law Journal, including publishing the new rule or change. There must be at least one public hearing each year that allows members of the public to bring matters to the attention of the judges.

The bill requires the JSC to evaluate incumbent state referees seeking reappointment and forward the names of those it recommends to the governor (see BACKGROUND). The commission must establish its evaluation criteria in regulations.

The procedure the bill requires for evaluating state referees is very similar to the one the commission follows to evaluate judges seeking reappointment to the same court. The commission must:

1. consider each referee's legal ability, competence, integrity, character, temperament, and any other relevant information;

2. apply a rebuttable presumption that a referee is qualified for reappointment;

3. investigate and interview each referee;

4. hold a hearing if a preliminary examination indicates further inquiry is necessary;

5. subpoena witnesses if relevant to the inquiry;

6. notify the referee of the date, time, and place of any commission hearing to consider his or her reappointment and of any claims against him or her;

7. vote, by a majority plus one, to deny recommendation of a referee for reappointment; and

8. submit any recommendation to the governor.

The governor may not nominate an incumbent state referee denied a recommendation by the commission.

Under current law, the commission's vote on an incumbent judge may be by secret ballot. The bill makes open to the public the total affirmative or negative votes to recommend reappointment of an incumbent judge to the same court or appointment to a different court or to recommend reappointment of an incumbent state referee.

By law, the commission submits an annual report to the Judiciary Committee on the number of judicial candidates interviewed and recommended for nomination, broken down by race, gender, national origin, religion, and years of experience. The bill requires the commission to include the same information on incumbent state referees in the report.

By law, the commission must compile a list of qualified attorneys seeking judicial appointments and judges seeking appointments to different courts. The bill requires the commission to keep the list confidential, except that the names of qualified candidates for associate judge and chief justice of the state Supreme Court must be publicly available.

By law, the JRC investigates complaints against judges, compensation commissioners, and family support magistrates. If it finds probable cause that such an official violated certain standards of conduct, it holds a hearing. If the JRC finds the official guilty of the conduct, it can impose discipline.

The bill requires the JRC to provide notice of its meetings and make agendas available to the public as required by FOIA (see BACKGROUND). It provides that a public agenda cannot contain personally identifiable information that might identify the subject of a complaint unless the JRC has already found probable cause that the person engaged in conduct that could be grounds for removal, suspension, or censure. (By law, investigations by the JRC are confidential until it finds probable cause. )

The bill requires the JRC to post notices and agendas on its website and give copies to the Judiciary Committee chairmen.

The bill prohibits the JRC from considering any ethics advisory opinion issued by the Judicial Branch or one of its committees in any proceeding about a judge or family support magistrate. The JRC also cannot ask whether the judge or magistrate sought or received an ethics advisory opinion.

Under current law, an investigation to determine whether there is probable cause for a violation is confidential, and any individual who provides information to the JRC cannot disclose knowledge of the investigation to others until the JRC makes a decision that there is probable cause. But the person who is the subject of the investigation may request that the investigation be open, and information known independently is not confidential. The bill allows the council, on request and after giving the subject of the investigation the opportunity to be heard, to disclose that an investigation is being conducted if (1) the essential underlying facts have been widely made public and (2) preserving public confidence in the administration of justice outweighs the subject's privacy.

The law requires the JRC to hold a hearing and publish its findings after it finds probable cause. The bill specifies that the council must determine whether the individual is guilty of violating the standards of conduct after all evidence and arguments are presented at the hearing.

By law, all hearings are open. The bill makes the entire record of the proceedings open to public inspection, including any complaint, transcripts, statements, and documents introduced into evidence during the proceedings. But information exempt from disclosure under FOIA must be removed or redacted.

The law requires the JRC to conduct an expedited investigation and hearing when a complaint is pending within the final year of a judge's, compensation commissioner's, or family support magistrate's term. Under current law, the JRC must do so to complete its duties within sufficient time to make its recommendation to the Judicial Selection Commission or governor, whichever is required. The bill instead requires the JRC to finish with sufficient time to submit its report about the complaint to the governor, Judicial Selection Commission, and Judiciary Committee.

The law allows the JRC to publicly censure a judge, compensation commissioner, or family support magistrate; suspend a judge, compensation commissioner, or family support magistrate for up to one year; refer a judge or magistrate to the Supreme Court recommending a suspension of more than one year or removal; and refer a compensation commissioner to the governor recommending removal.

The bill also gives the JRC the option of imposing a civil penalty of up to $ 10,000 per violation, in place of suspending a judge, compensation commissioner, or family support magistrate for up to one year.

The bill eliminates requirements that the JRC submit recommendations about judges who are reappointed or nominated to a different court and compensation commissioners and family support magistrates who are reappointed.

Regarding judges, the bill eliminates the required recommendations to the governor, JSC, and Judiciary Committee, and provisions on when the JRC may and must refuse to recommend a judge. Just as it can under current law, the JRC must report on any complaint filed about the judge, dispositions of complaints, and any investigations. By law, the JRC must make all complaint files available to the Judiciary Committee. For complaints resulting in admonishment, public censure, or suspension, (1) information from the complaint, investigation, and disposition cannot be removed, redacted, or withheld and (2) any information about the judge requested by the committee chairmen in writing must be provided. The bill also applies these rules to complaints that resulted in a civil penalty.

Regarding family support magistrates, the bill still requires the JRC to report on any investigation of the magistrate and adds that it must report on any complaints filed against the magistrate and their dispositions.

Regarding compensation commissioners, the bill eliminates the required recommendation to the governor and Judiciary Committee. But it still requires the JRC to report on any investigations and also requires a report of any complaints filed and their dispositions.

By law, a judge or family support magistrate aggrieved by a decision of the JRC can appeal it to the Supreme Court. The bill requires the court to conduct a new review of the JRC's legal conclusions and, when reviewing its factual findings, to determine whether there was substantial evidence to support those findings.

Under current law, the Supreme Court chief justice appoints a chief court administrator who serves at the chief justice's pleasure. The bill provides that the chief court administrator can serve until the appointing chief justice ceases to hold office or the administrator's successor is chosen.

Under the bill, if the chief court administrator is also a judge, ending the term as administrator does not affect his or her term as a judge.

Current law requires the probate court administrator to be a probate judge. The bill also allows a nominee to be a former probate judge or an attorney with at least eight years of probate law experience.

By law, the chief justice appoints the probate court administrator. Under the bill, the administrator serves at the pleasure of the appointing chief justice and until the appointing chief justice ceases to hold office or the administrator's successor is chosen.

The bill specifies that if the probate court administrator is a probate judge, the fact that a term as administrator ends does not affect his or her term as a probate judge.

By law, FOIA applies to the Judicial Branch, but only with respect to its administrative functions. However, “administrative functions” are not currently defined in statute (see BACKGROUND).

For judicial offices, officials, bodies, and committees, the bill defines “administrative functions” as those matters relating to the management of the internal institutional operations of the Judicial Branch, including, but not limited to, budgeting, accounting, personnel, facilities, physical operations, contracting, docketing, and scheduling.

The bill requires the chief court administrator to review any written complaint of judicial misconduct that he or she receives to determine if it warrants a referral to the JRC for further investigation. If so, the administrator must refer the complaint. By law, council investigations are confidential; however, if it finds probable cause that a judge's behavior subjects him or her to removal, suspension, or censure, any further hearings are open to the public. A finding that a judge acted in a manner that gives the appearance of impropriety may result in an admonishment of which the council notifies the Judiciary Committee but does not otherwise disclose.

Under the bill, if the chief court administrator, in consultation with the chief justice, determines that the complaint is (1) without merit, (2) properly the subject of review through an existing adjudicatory procedure, or (3) otherwise not within the purview of the Office of the Chief Court Administrator, the complaint cannot be publicly disclosed. If, however, they determine that the complaint warrants administrative action, but not a referral to the JRC, the chief court administrator may admonish the judge by recommending a change in conduct or practice, as appropriate. The admonishment must be a part of the judge's performance evaluation, which is not publicly disclosed. However, the bill makes admonishments public records.

The bill requires the Judicial Branch to make conviction information and the Superior Court's criminal docket available to the public on its Internet website.

The law defines “conviction information” as court records and other criminal history information used to identify criminal offenders that have not been erased. The bill requires the branch to include this information on its website and specifically requires case docket numbers and each defendant's name and birth year, arrest date, charges, and disposition, including any fine and term in prison and on probation. The website cannot include the defendant's address or driver's license number. The information must be searchable by defendant's name, birth year, and docket number. Conviction information relating to misdemeanors must be removed from the Judicial Branch and all public agencies' websites five years after the conviction date.

The posted docket information must include the docket number and charge and the defendant's name and birth year.

The Judicial Branch currently posts docket information and conviction information on its website.

The bill requires the Judicial Branch to include a link on its Internet home page to the websites of the JRC and JSC.

The bill requires that a police report become part of the court file and open to the public if it is used during a court hearing to determine probable cause. But the bill authorizes the court to order all or a portion of the report sealed for up to seven days for good cause. The requirement applies regardless of whether probable cause is found.

If the court grants a motion to seal the report, the party that requested the report to be sealed may make a recommendation, within seven days, about the details of the sealing order including its duration. If no recommendation is made, the report is public after seven days.

By law, the state can bring an action to abate a public nuisance. The court may grant a temporary ex parte order to abate the nuisance if the state asks for it. The court must direct the state to notify the defendant and provide him or her with a copy of the order. At a court hearing, a defendant may show why the abatement order should be modified or vacated. An ex parte order may be granted only if it appears from the specific facts shown by affidavit and complaint that there is probable cause to believe that a public nuisance exists and the temporary relief requested is necessary to protect public health, welfare, or safety. The show cause hearing must be scheduled within five business days after service of the order.

The bill eliminates the court's discretion to seal the affidavit upon a finding that the state's interest in non-disclosure substantially outweighs the defendant's right to disclosure.

The bill extends, from 72 hours to three business days, the deadline for individuals to appeal a court order (1) banning them from a court session or (2) sealing or limiting the disclosure of any files, affidavits, documents, or other material on file with the court or filed in connection with a court proceeding. The extension, like the underlying law, does not apply to juvenile delinquency or youthful offender proceedings or records.

The bill extends the right to appeal to people banned from any other session or prohibited from accessing any other records that the court may lawfully prohibit people from attending or accessing, respectively.

By law, courts may order defendants convicted of certain felonies and any misdemeanor to participate in an alternative incarceration program instead of going to prison. If the court decides to consider the program for a defendant, it first must order the Judicial Branch's Court Support Services Division to assess the desirability of the placement. If the division recommends placement, it must submit a proposed alternative incarceration plan to the court.

The bill makes the plan or the portion of it that the court ordered a public record if the court orders participation in an alternate incarceration program based on the plan.

The bill makes public any request a prosecutor makes after an arrest to extend an order sealing an affidavit in support of a search warrant as to an owner, occupant, or person. It requires the court to extend the order if it finds that the order is necessary to preserve an interest that is determined to override the public's interest in viewing the affidavit, or for good cause shown.

The bill specifies that an oral representation by the prosecuting authority may be sufficient to establish good cause if (1) the personal safety of a confidential informant would be jeopardized, (2) the search is part of a continuing investigation that would be adversely affected, or (3) the unsealing of the affidavit would require disclosure of information or material prohibited from being disclosed by law. Any such extension must be to a specific date, not more than 90 days from the date of the request. The bill authorizes a prosecutor to seek more than one extension, but no single extension can exceed 90 days.

The bill requires sealing a written report concerning a criminal defendant's competency to stand trial from the public and prohibits disclosure of the report's contents, except during an evidentiary hearing about the defendant's competency when a participant relies on the contents as the basis for testimony, questioning of witnesses, arguments to the court, judicial findings, or as allowed to be disclosed by a psychiatrist under the psychiatrist-patient privilege. The bill also requires that the court state on the record its reasons for its finding that the defendant is competent or not competent.

By law, the state, a defendant, or a court can raise the issue of a criminal defendant's competency to stand trial. If the court determines that the defendant should be examined, it may appoint a psychiatrist or order the mental health and addiction services commissioner to conduct the examination. The examiner must submit a written report to the court, which then holds a competency hearing.

In 1974, the Connecticut Supreme Court held that the legislature had no power to establish procedural rules for the courts unless the courts acquiesced. It held unconstitutional, under the state constitution's separation of powers provision, a statute authorizing a criminal defendant to demand certain exculpatory information from the prosecutor. There was no specific court rule, but under the common law the defendant had to ask the court to exercise its discretion to order prosecutors to turn over their information (State v. Clemente, 166 Conn. 501 (1974)). The Supreme Court reaffirmed Clemente in 1982 holding that a court rule rather than a statute on joinder of indictments or information's in a criminal trial against the same defendant or different defendants would be followed (State v. King, 187 Conn. 292).

In 1989, the Supreme Court held that statutory rules of evidence do not fall within the Clemente holding of exclusive judicial jurisdiction over matters of court administration, practices, and procedure (State v. James, 211 Conn. 555 (1989)).

In deciding whether one branch's actions violate the state constitution's separation of powers provision, courts consider if the action constitutes: (1) an assumption of power that lies exclusively under another branch's control or (2) a significant interference with the orderly conduct of the essential functions of another branch (Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-553 (1995)). The courts have recognized, however, that governmental powers can overlap and the separation of powers provision cannot always be rigidly applied to render mutually exclusive the roles of each branch of government (Massameno).

Any judge or senior judge who reaches the mandatory retirement age of 70 automatically becomes a state referee for the remainder of his or her term as judge, and is eligible for reappointment as a state referee for the remainder of his or her life. Although the law specifies that state referees may be reappointed “in the manner prescribed by law for the appointment of a judge of the court of which he is a member,” neither the Judicial Selection Commission nor the Judicial Branch has interpreted it as requiring referees to go through the Judicial Selection Commission's process (CGS § 52-434).

The law requires state agencies to file notices of their regular meetings with the Office of the Secretary of the State by January 31^st each year. A special meeting may be called by filing a notice at least 24 hours before the meeting time. An emergency meeting may be held without complying with notice requirements.

Where practicable, the agency must mail a notice of its meetings at least a week before the meeting date (or less, if the meeting is called on less than a week's notice) to anyone who has requested written notification.

An agency must make every regular meeting agenda available at least 24 hours before the meeting.

In Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission, 278 Conn. 28 (2006), the state Supreme Court held that records related to the Judicial Branch's adjudicatory functions are categorically exempt from public disclosure and “administrative functions” are those relating to the branch's budget, personnel, facilities, and physical operations of the courts.