Loading...
H/5. Municipal Judge Qualifications - 1st ReadingCity of Kalispell f rF �y,. Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758 6H FROM: Mayor Pamela B. Kennedy and Kalispell City Council Rich Hickel, Adjutant City Attorney Chris Kukulski, City Manager Amendments to K.C.C. §2-60 and §2-62. MEETING DATE: June 16, 2003 BACKGROUND: The 2003 State Legislature passed House Bill 358 which amends provision of the state law governing qualifications for Municipal Judges. These revisions necessitate amendments to Ordinance No. 1246 which established the Municipal Court for the City of Kalispell. H.B. 358, a copy of which is attached, becomes effective July 1, 2003. The changes will impact sections 2-60 and 2-62 of the Kalispell City Code. (copies attached) Section 3 of the new law changes the number of years in the practice of law in Montana, before an attorney may become eligible to serve as a Municipal Court Judge. As of July 1, an attorney must have been licensed to practice law in this state for three years. The current requirement of two years is set forth in K.C.C. §2-60. Section 3 also changes �the residency requirement for Municipal Judges. After July 1, the residency requirement will be changed to provide that the Judge reside in the county in which the court is located, thereby eliminating the city residency requirement. This again, will affect K.C.C. §2-60. Section 4 provides other options for a Judge Pro Tem. A Pro Tem Judge is one who is called in to preside in matters in which the Judge has been disqualified or is otherwise unable to serve, as in a temporary absence. Currently, §2-62 of the City Code provides that a "qualified practicing attorney" shall be called upon to serve in the Judge's absence. H.B. 358, expands the list of qualified appointees to include, "a justice of the peace for a justice's court established as a court of record, another municipal judge, a retired justice of the peace for a justice's court established as a court of record, a retired municipal court judge, or an attorney of the county in which the court is located." RECOMMENDATION: The City Attorney's Office recommends the above sections of Ordinance No. 1246 be amended to comply with the new State law, which becomes effective July 1, 2003. FISCAL EFFECTS: No adverse fiscal effects are anticipated. Respectfully submitted, ichr M. HiHide aid Adj. City Attorney A Chris Kukulski City Manager ORDINANCE NO.1465 AN ORDINANCE AMENDING ORDINANCE 1246 (CHAPTER 2, ADMINISTRATION, SECTION 2-60 AND 2-62, KALISPELL CITY CODE), AUTHORIZING THE CITY ATTORNEY TO RECODIFY THIS ORDINANCE, AND DECLARING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS FOLLOWS: SECTION I. That Chapter 2, Administration, Kalispell City Code is hereby amended to read as follows: 2-60. QUALIFICATIONS. A municipal court judge must have the same qualifications as a judge of a district court, as set forth in Article VII, section 9, of the 1972 Montana constitution, except that a municipal court judge need only be admitted to the practice of law in the state for at least three (3) years prior to the date of appointment or election. A municipal court judge must be a resident and voter in Flathead County at the time of election. 2-62. QUALIFICATIONS OF JUDGE PRO TEM. When a judge of a municipal court has been disqualified or is sick or unable to act, the judge shall call in a justice of the peace for a justice's court established as a court of record provided for in M.C.A. 3-10-101, another municipal court judge, a retired justice of the peace for a justice's court established as a court of record, a retired municipal court judge, or an attorney of the county in which the court is located, to act as a judge pro tempore. The judge pro tempore has the same power and authority as the municipal court judge. SECTION II. That all parts and portions of Chapter 2, Administration, Kalispell City Code, not amended hereby remain unchanged. SECTION III. That this Ordinance shall take effect thirty (30) days from and after its passage and adoption by the City Council. Pamela B. Kennedy Mayor Theresa White City Clerk i Page 1 of 8 2003 Montana Legislature About Bill -- Links HOUSE BILL NO. 358 INTRODUCED BY LANGE, NOENNIG, LASZLOFFY AN ACT GENERALLY REVISING THE LAWS GOVERNING MUNICIPAL COURTS AND JUSTICES' COURTS; REVISING THE QUALIFICATIONS AND TRAINING REQUIREMENTS FOR MUNICIPAL COURT JUDGES; ALLOWING A COUNTY TO ESTABLISH A JUSTICE'S COURT AS A COURT OF RECORD; PROVIDING THAT THE QUALIFICATIONS AND TRAINING REQUIREMENTS FOR A JUSTICE OF THE PEACE SERVING IN A JUSTICE'S COURT ESTABLISHED AS A COURT OF RECORD ARE THE SAME AS FOR A MUNICIPAL COURT JUDGE; PROVIDING THAT APPEALS FROM A JUSTICE'S COURT ESTABLISHED AS A COURT OF RECORD ARE ON THE RECORD AND NOT DE NOVO; AUTHORIZING A MUNICIPAL COURT JUDGE OR A JUSTICE OF THE PEACE FOR A JUSTICE'S COURT ESTABLISHED AS A COURT OF RECORD TO ACT AS A JUDGE PRO TEMPORE IN A DISTRICT COURT; PROVIDING A GRANDFATHER CLAUSE FOR EXISTING JUSTICES OF THE PEACE; AMENDING SECTIONS 3-5-114, 3- 6-102, 3-6-202, 3-6-204, 3-10-101, 3-10-203, 3-10-207, 25-33-301, AND 46-17-311, MCA; AND PROVIDING AN EFFECTIVE DATE. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Section 3-5-114, MCA, is amended to read: 113-5-114. Qualifications. Any of the following individuals may act as a judge pro tempore: (1) a member of the bar of the state who meets the qualifications for judge of the district court as provided in 3-5-202; (2) a retired judge of the district court; (33) a justice of the peace for a justice's court established as a court of record, provided for in 3-10-101: http://data.opi.state.mt.us/bills/2003ibillhtml/M0358.htm 5/19/2003 0 0 Page L or zs a municipal court judge; or k2)05 a retired justice of the supreme court." Section 2. Section 3-6-102, MCA, is amended to read: "3-6-102. Abolition of city court. (1) In cities in which a municipal court is established, the office of city judge is abolished. (2) Except as provided in 3-6-101(2), a city judge whose office is abolished shall serve as a municipal court judge in the same city in which #e the iudge served as city judge for the remainder of #is the judge's term and until the office of municipal court judge is filled by election, as provided under 3-6-201 eH�"�=." Section 3. Section 3-6-202, MCA, is amended to read: 113-6-202. Qualifications -- certification -- training. (1) A municipal court judge must have the same qualifications as a judge of a district court, as set forth in Article VII, section 9, of the 4972 Montana constitution, except that a municipal court judge need only be admitted to the practice of law in Montana for at least . 3 years prior to the date of appointment or election. (2) A municipal court judge His eleet+eR shall reside in the county in which the court is located and shall meet the residency requirements provided in 3-10-204. eause. (3) The commission on courts of limited jurisdiction, upon finding compliance with subsections (1) and (2), shall issue a certificate as required in 3-1-1502, prior to the municipal court iudge assuming office. The certificate must be conditioned upon continued compliance with the minimum judicial education requirements provided for in this section. The certificate must be filed with the clerk and recorder as provided in 3-1-1502. http://data.opi.state.mt.us/bills/2003/billhtmIlMO358.htm 5/ 19/2003 Page 3 of 8 (4) A municipal court judge shall complete a minimum of 15 hours of continuing judicial education requirements each year or a greater number established by the supreme court. Attendance at the two annual training sessions under 3 10-203 may fulfill the requirement provided for in this subsection. U Completion of a course approved for continuing judicial or legal education hours applies to the judicial education requirements under subsection (4). (6) A municipal court iudge is entitled to reimbursement by the city in which the judge holds or will hold court for all actual and necessary expenses and costs incurred in attending a continuing iudicial or legal education course. U On or before December 31 of each year, a municipal court iudge shall file an affidavit of compliance with the continuing iudicial education requirements established in this section with the commission on courts of limited jurisdiction The supreme court may sanction a municipal court judge or declare a vacancy in the office of the judge for failure to meet the training requirements established in this section." Section 4. Section 3-6-204, MCA, is amended to read: "3-6-204. Disqualification -- judge pro tempore. When a judge of a municipal court has been disqualified or is sick or unable to act, tie the judge shall call in a justice of the peace for a justice's court established as a court of record provided for in 3-10-101 another municipal court judge a retired justice of the peace for a justice's court established as a court of record a retired municipal court iudge, or seffle pffietieiRg an attorney of the county in which #its the court is located, whe-shall to act as a judge pro tempore The judge pro tempore wit4i has the same power and authority as the municipal court judge of tdie-eauFC" Section 5. Section 3-10-101, MCA, is amended to read: "3-10-101. Number and location of justices' courts -- authorization to combine with city court justice's court established as court of record. (1) There must be at least one justice's court in each county of the state, which must be located at the county seat. The board of county commissioners shall designate the number of justices in each justice's court. (2) The board of county commissioners of each county of the state may establish: (a) one additional justice's court located anywhere in the county; and (b) one additional justice's court located in each city having a population of over 5,000, as provided in subsection (3). (3) A city having a population of over 5,000 may, by resolution, request the board of county commissioners to constitute a justice's court in the city. A justice's court must be established in the city if the http://data.opi.state.mt.us/bills/2003/billhtnil/FMO358.htm 5/19/2003 0 rage 4 or u i board of county commissioners approves the request by resolution. (4) A justice of the peace of a court established pursuant to subsection (3) may act as the city judge upon passage of a city ordinance authorizing the action and upon approval of the ordinance by resolution of the board of county commissioners. If the ordinance and resolution are passed, the city and the county shall enter into an agreement for proportionate payment of the justice's salary, as established under 3-10-207 and 3-11- 202, and for proportionate reimbursement for the use of facilities. (5) A county may establish the justice's court as a court of record. If the justice's court is established as a court of record it must be known as a justice's court established as a court of record and, in addition to the provisions of this chapter, is also subject to the provisions of [sections 8 through 101. The court's proceedings must be recorded by electronic recording or stenographic transcription and all papers filed in a proceeding must be included in the record. A justice's court established as a court of record may be established by a resolution of the county commissioners or pursuant to 7-5-131 through 7-5-137." Section 6. Section 3-10-203, MCA, is amended to read: "3-10-203. Orientation course -- annual training. (1) Under the supervision of the supreme court, a course of study must be presented as soon as is practical following each general election. Actual and necessary travel expenses, as defined and provided in 2-18-501 through 2-18-503, and the costs of registration and books and other materials s#a+l must be paid to the elected or appointed justice of the peace for attending the course by the county in which #e the justice of the peace holds or will hold court and &he4 must be charged against that county. (2) Thefe-mil Subject to subsection (4), there must be two mandatory annual training sessions supervised by the supreme court for all elected and appointed justices of the peace. One of the training sessions may be held in conjunction with the Montana magistrates' association convention. Actual and necessary travel expenses, as defined and provided in 2-18-501 through 2-18-503, and the costs of registration and books and other materials &hel+ must be paid to the elected or appointed justice of the peace for attending the sessions by the county in which #e the justice of the peace holds or will hold court and s4E44 must be charged against that county. (3) Eaeh Except as provided in subsection (4), each justice of the peace shall attend the training sessions provided for in subsection (2). Failure to attend disqualifies #+ff} the justice of the peace from office and creates a vacancy in the office. However, the supreme court may excuse a justice of the peace from attendance because of illness, a death in the family, or any other good cause. (4) A justice of the peace for a justice's court established as a court of record, provided for in 3-10-101, must meet the requirements provided for in [section 10]_" http://data.opi.state.mt.usibills/2003/billhtnil/1-M0358.htm 5/ 19/2003 w. 9 01 Page 5 of 8 Section 7. Section 3-10-207, MCA, is amended to read: 113-10-207. Salaries. (1) T4e Subject to subsections (22) through (4), the board of county commissioners shall set salaries for justices of the peace by resolution and in conjunction with setting salaries for other officers as provided in 7-4-2504(1). (2) The salary of the justice of the peace may not be less than the salary for the district clerk of the court in that county. (3) If the justice's court is not open for business full time, the justice's salary must be commensurate to the workload and office hours of the court. The salary of a justice of the peace may not be reduced during the justice's term of office. The salary of theJustice of the peace for a justice's court established as a court of record may not exceed 90% of the salary of a district court judge determined as provided in 3-5-21 V' Section 8. Appeal to district court from justice's court established as court of record -- record on appeal. (1) A party may appeal to district court from a justice's court established as a court of record judgment or order. The appeal is confined to review of the record and questions of law, subject to the supreme court's rulemaking and supervisory authority. (2) The record on appeal to district court consists of an electronic recording or stenographic transcription of a case tried, together with all papers filed in the action. (3) The district court may affirm, reverse, or amend any appealed order or judgment and may direct the proper order or judgment to be entered or direct that a new trial or further proceeding be had in the court from which the appeal was taken. (4) Unless the supreme court establishes rules for appeal from a justice's court established as a court of record to the district court, the Montana Uniform Municipal Court Rules of Appeal to District Court, codified in Title 25, chapter 30, apply to appeals from the justice's court established as a court of record to district court. Section 9. Disqualification of justice of peace for justice's court established as court of record -- judge pro tempore. When a justice of the peace for a justice's court established as a court of record has been disqualified or is sick or unable to act, the justice shall call in another justice of the peace for a justice's court established as a court of record, a municipal court judge, a retired justice of the peace for a justice's court established as a court of record, a retired municipal court judge, or an attorney of the county in which the court is located to act as a judge pro tempore. The judge pro tempore has the same power and authority as the justice of the peace for the justice's court established as a court of record. http://data.opi.state.mt.us/bills/2003ibillhtml/FM0358.htm 5/19/2003 ti Page bot8 Section 10. Minimum judicial education requirements -- justice of peace for justice's court established as court of record. (1) The commission on courts of limited jurisdiction shall issue a certificate, as required in 3-1-1502, prior to the justice of the peace for a justice's court established as a court of record assuming office. The certificate must be conditioned upon continued compliance with the minimum judicial education requirements provided for in this section. The certificate must be filed with the clerk and recorder as provided in 3-1-1502. (2) A justice of the peace for a justice's court established as a court of record, provided for in 3-10-101, shall complete a minimum of 15 hours of continuing judicial education requirements each year or a greater number established by the supreme court. Attendance at the two annual training sessions under 3-10-203 may fulfill the requirement provided for in this subsection. (3) Completion of a course approved for continuing judicial or legal education hours applies to the judicial education requirements under subsection (2). (4) A justice of the peace for a justice's court established as a court of record is entitled to reimbursement by the county in which the justice of the peace holds or will hold court for all actual and necessary expenses and costs incurred in attending a continuing judicial or legal education course. (5) On or before December 31 of each year, a justice of the peace for a justice's court established as a court of record shall file an affidavit of compliance with the continuing judicial education requirements established in this section with the commission on courts of limited jurisdiction. The supreme court may sanction a justice of the peace for a justice's court established as a court of record or declare a vacancy in the office of the justice of the peace for failure to meet the training requirements established in this section. Section 11. Section 25-33-301, MCA, is amended to read: "25-33-301. Trial de novo -- pleadings; _ conduct of trial. (1) A44 Except as provided in subsection (3), all appeals from justices' or city courts must be tried anew in the district court on the papers filed in the justice's or city court unless the court, for good cause shown and on Seeh terms as Ffley be that are just, eliew allows other or amended pleadings to be filed in styli the action. The court may order new or amended pleadings to be filed. Each party has the benefit of all legal objections made in the justice's or city court. (2) When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. The provisions of this code as to trials in the district courts are applicable to trials on appeal in the district court. (3) The appeal from a iustice's court established as a court of record pursuant to 3-10-101 is on the record as provided in [section 8J." http://data.opi.state.mt.us/bills/2003/billhtml/BB0358.htm 5/ 19/2003 - O rage / of zs Section 12. Section 46-17-311, MCA, is amended to read: "46-17-311. Appeal from justices', municipal, and city courts. (1) Except as provided in subsection (4) and except for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justice's or city court must be tried anew in the district court and may be tried before a jury of six selected in the same manner as for other criminal cases. An appeal from a municipal court to the district court is governed by 3-6-110 and an appeal from a justice's court established as a court of record is governed by [section 81. (2) The defendant may appeal to the district court by filing written notice of intention to appeal within 10 days after a judgment is rendered following trial. In the case of an appeal by the prosecution, the notice must be filed within 10 days of the date that the order complained of is given. The prosecution may appeal only in the cases provided for in 46-20-103. (3) Within 30 days of filing the notice of appeal, the court shall transfer the entire record of the court of limited jurisdiction to the district court. (4) A defendant may appeal a justice's court other than a justice's court established as a court of record, or city court revocation of a suspended sentence to the district court. The district court judge shall determine whether the suspended sentence will be revoked. A jury trial is not available in a sentence revocation procedure." Section 13. Grandfather clause. An incumbent justice of the peace on [the effective date of this act], in a county in which a justice's court established as a court of record is established, who meets the minimum education requirements for a justice of the peace is eligible to run for the justice of the peace for a justice's court established as a court of record in that county at the next and subsequent elections held for the justice of the peace for the justice's court established as a court of record unless the justice of the peace has a break in service. Section 14. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act]. Section 15. Codification instruction. [Sections 8 through 101 are intended to be codified as an integral part of Title 3, chapter 10, and the provisions of Title 3, chapter 10, apply to [sections 8 through 10]. Section 16. Effective date. [This act] is effective July 1, 2003. http://data.opi.state.mt.us/bills/2003/blllhtmVHB0358.htm 5/ 19/2003 0 rarc o vi o Latest Version of HB 358 (HB0358.ENR) Processed for the Web on April 11, 2003 (7:27am) New language in a bill appears underlined, deleted material appears stricken. Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of this bill for the bill's primary sponsor. Status of this Bill 12003 Legislature I Leg. Branch Home This bill in WP 5.1 1 All versions of all bills in WP 5.1 Authorized print version w/line numbers (PDF format) Prepared by Montana Legislative Services (406) 444-3064 http://data. opi. state.mt.us/bills/2003/billhtml[M03 5 8. htm 5/19/2003 2-60: QUALIFICATIONS: A Municipal Court Judge must have the same qualifications as a judge of a District Court, as set forth in article V11, section 9 of the 1972 Montana constitution, except that a Municipal Court Judge need only be admitted to the practice of law in the State for at least two (2) years prior to the date of appointment or election. A Municipal Court Judge must be a resident and voter in the City at the time of election. (Ord. 1246 § 2-60) 2-62: QUALIFICATIONS OF JUDGE PRO TEM: When a Judge of the Municipal Court has been disqualified or is sick or unable to act, the Judge shall call in a qualified practicing attorney of the County who shall be Judge pro tem with the same powers for the purposes of the cause as the Judge of the Municipal Court. (Ord. 1246 § 2-62)