Missouri Senate committee approves bill that nullifies federal gun laws and prohibits state courts from enforcing them; allows for suits against state judges who enforce such laws

April 16th, 2014 by Bill Raftery

Yesterday the Missouri Senate General Laws Committee gave its approval to HB 1439, a bill that unilaterally declares void “federal statutes, executive orders, administrative orders, court orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms.”

While such attempted nullification bills have become more commonplace in state legislatures in recent years, Missouri’s HB 1439 includes provisions that prohibit state court judges from recognizing such laws or federal court orders: “It shall be the duty of the courts…of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined in section 1.322.”

No “public officer or employee” would be permitted to enforce or attempt to enforce those federal gun laws/court orders. Additionally, were a judge to do so he or she “shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress…Neither sovereign nor official or qualified immunity shall be an affirmative defense in such cases.”

The bill now likely goes to the Senate Rules Committee before advancing to the floor.


Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?

April 15th, 2014 by Bill Raftery

The 2014 efforts to ban state court use of international or foreign laws in general, and sharia law in particular, are effectively over save for two states. Since I last updated this in early March the only movement has been in Florida and Missouri, setting the stage for a possible repeat of 2013.

Florida: The Florida House and Senate bills are presently on the floors of their respective chambers and could be voted on any day. However, when this occurred last year the House was able to pass its version on April 18, 2013. The Senate on the other hand did not have the votes to pass either its version or the House bill and wound up tabling (i.e. killing) a combined House/Senate bill in May 2013.

Missouri: Just like in 2013, the 2014 effort came out of the Senate General Laws committee. However, last year’s version was vetoed by the state’s governor citing among other things the possibility that the language was so broad it would void or at least jeopardize foreign adoptions. The 2013 veto was overridden by the Senate but failed to be overridden by the House by a single vote (108 out of 109 needed).

List of bills below the fold
» Read more: Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?

Alaska: effort to alter merit selection withdrawn in Senate, effectively dead in the House

April 14th, 2014 by Bill Raftery

The effort to change the makeup of the Alaska Judicial Council, which serves as both the judicial nominating commission and the judicial evaluation commission in the state, appears dead. The author of the lead bill (SJR 21) withdrew the bill Saturday April 12 after announcing he was unable to get the 2/3rds vote (14 out 20 senators) needed for approval. The plan would have allowed the governor to pick 6 out 10 members of a revised Judicial Council (details here). Meanwhile, the House version (HJR 33) had been dormant pending the outcome of the Senate’s actions on its version. It now appears unlikely that bill will come back up this session.

Louisiana House approves plan to create human trafficking courts

April 11th, 2014 by Bill Raftery

On April 8 the Louisiana House unanimously approved  HB 569, a bill to authorize the creation of “human trafficking courts”in the state. Current state law permits District Courts to create specialized divisions for “criminal, civil, drug court, driving while intoxicated court, mental health court, misdemeanor, traffic, juvenile, violent crimes or homicides, or other specialized subject matter jurisdiction.” HB 569 would add human trafficking court to that list.

Should such a special division/section of the District Court be created, the judge assigned to the court would be required to have training in issues related to human trafficking and support services available.

HB 569 is now in the Louisiana Senate where it has been assigned to the Judiciary B committee.

Oklahoma House committee approves on 6-1 party vote plan to strip state bar of power to name merit selection commissioners, but is it constitutional?

April 10th, 2014 by Bill Raftery

Yesterday the Oklahoma House Judiciary Committee gave its approval to a heavily modified version of SJR 21 based on the House’s reading of the state’s constitution. News coverage can be found here.

Under SJR 21 as passed by the Senate in March 2013 ended merit selection in the state and replaced with a quasi-federal system (governor to appoint any qualified person, judicial nominating commission allowed to make only advisory recommendation, Senate confirmation.)

The House amended version of SJR 21 converts the bill from a constitutional amendment to a bill/proposed statute. SJR 21 as amended keeps the merit selection element (i.e. the governor is allowed to pick only from a list selected by the judicial nominating commission) and changes the commission membership. The 6 attorney members, rather than being selected by the state bar as is presently the case would be chosen instead 3 by the Senate President (from Congressional Districts 1, 2, and 5) and 3 by the House Speaker (Districts 3, 4, and 6). It also vacates the current 6 attorney members from the commission.

The bill claims the power to change the makeup of the judicial nominating commission without resorting to a constitutional amendment based on language from Art. VII-B Sec. 3(a)(2) that identifies the 6 commission seats for attorneys (emphasis added)

six (6) members, one (1) from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article who are, however, members of the Oklahoma Bar Association and who have been elected by the other active members of their district under procedures adopted by the Board of Governors of the Oklahoma Bar Association, until changed by statute

It is not clear of “until changed by statute” refers to the legislature’s ability to change in its entirety of 3(a)(2), only “procedures adopted by the Board of Governors of the Oklahoma Bar Association”, or some combination of some elements in 3(a)(2) or others.

Alaska: change to merit selection stalling on Senate floor unable to get 2/3rds needed

April 9th, 2014 by Bill Raftery

The effort to change the makeup of the Alaska Judicial Council, which serves as both the judicial nominating commission and the judicial evaluation commission in the state, appears to be stalling.

As I noted the House version (HJR 33) was scheduled for a hearing last week which was cancelled. The Senate version (SJR 21) was forwarded to the Senate floor for a possible vote on Monday April 7, but news reports indicate that some Republicans were refusing to commit to vote yes. Because of the 2/3rds vote (14/20) needed for a constitutional amendment, every Republican (13/20) would need to vote for it and proponents would have to get one of the two Democrats who caucus with the Republicans to vote in favor (1 Democratic Senator did vote to get the bill out of committee). The Senate vote set for Monday was pulled and the Tuesday vote was also postponed. The bill is not scheduled for a possible vote today (Wednesday April 9).

There is very recent precedent for pulling a constitutional amendment from the Alaska Senate floor; a proposed amendment to allow public funds to be used on private and religious schools was yanked last month.


Minnesota: bills to repeal withholding of judicial pay for decisions longer than 90 days advance

April 8th, 2014 by Bill Raftery

A century old law to require Minnesota judges render their decisions within 90 days or forfeit their pay looks to be on its way towards repeal. The Senate Judiciary Committee on March 28 approved SB 2718, a bill that would eliminate the 90-days-or-no-pay statute that had been around since at least 1905 (prior discussion here). Testimony (2:45:00) was heard that the provision had never been used in 45 years.

SB 2718, as amended, keeps the 90 days for a disposition language, but provides that the judiciary’s Board of Judicial Standards is to adopt rules for compliance. In the event that the Board of Judicial Standards fails to do so, the bill lays out an enforcement mechanism. That mechanism, again if the Board doesn’t adopt an alternative, would be:

  • The Board of Judicial Standards and the chief justices of the judicial districts would review judge’s compliance monthly, not at least annually
  • A first infraction would result in notification to the chief judge of the judicial district
  • A second infraction within 5 years would result in the chief judge and the judge who committed the infraction developing a written plan with the judge to remedy the current non-compliance and avoid future ones. A failure to comply with the plan would be sent to the Board by the chief judge.
  • A third infraction within 5 years of the first would result in the Board taking immediate action without referral to the chief judge (the chief judge would be notified).
  • Nothing in this would preclude the chief judge to take appropriate action under the Code of Judicial Conduct.
  • Should the Board receive a complaint alleging a serious violation of the time standard, the statute would not limit the Board’s ability to act on it.

Meanwhile a similar House bill HB 2687 was approved by the House Judiciary Committee on March 11 and the House Civil Law Committee on March 19.

Alabama: will governor sign bill to create rebuttable presumption for judicial recusal for campaign contributions? Pocket veto?

April 8th, 2014 by Bill Raftery

The Alabama bill to create a rebuttable presumption for judicial recusal for campaign contributions (HB 543) was approved April 3 on a 32-0 vote in the Senate having cleared the House 81-12 earlier in the session and sent to Governor Robert Bentley at 7:33pm of the same day. The legislature then adjourned sine die. That date and time are important as the clock is now ticking for the governor to sign or pocket veto the bill is now fast approaching. From the Alabama legislature’s own website:

Bills that reach the Governor less than five days before the end of the session may be approved by him within ten days after adjournment. Bills not approved within that time do not become law. This is known as a “pocket veto”. It is the most conclusive form of veto, for the Legislature, having adjourned, has no chance to reconsider the vetoed measure.

That gives the governor until April 13 to decide on whether or not to sign off on the law or allow it to die.

As a recap, the House bill creates a sliding scale that there is a “rebuttable presumption” recusal is needed where a “party” (defined a party to a suit, the attorney, or even more broadly the attorney’s lawfirm) gave a certain percentage of all funds received by the judge in his or her last judicial race

  • 10% for statewide appellate races (Supreme, Court of Civil Appeals, Court of Criminal Appeals)
  • 15% for Circuit Court races (state’s general jurisdiction court)
  • 25% for District Court races (state’s main limited jurisdiction court)

Kansas: judiciary will get more funding, provided it doesn’t strike down certain laws as unconstitutional

April 7th, 2014 by Bill Raftery

Late Friday the Kansas House approved on a 66-57 vote a plan to tie additional funding of the state’s judiciary on the condition the state’s courts do not strike down certain laws as unconstitutional.

I mentioned previously here, here, and here, the situation in Kansas involving HB 2338. In sum the fiscal portions of the bill provide $2 million for funding of the state’s judiciary and increase various court fees. Beyond the fiscal, HB 2338 also includes provisions to strip the state supreme court’s power over local court budgets and the selection of local chief judges, powers it has had since the 1970s when the state constitution was amended to give “general administrative authority over all courts in this state” to the supreme court. The Chief Justice of the state not only wrote to the legislature in opposition but took to the oped pages against the plan.

The $2 million in funding contains a non-severability clause; if the Kansas courts strike down the provisions stripping the supreme court’s powers as unconstitutional the entire bill, including the $2 million, falls. Efforts on the House floor to try and extract the court stripping provisions and/or the non-severability portions failed.

As I mentioned previously, hanging over this is the legislature’s displeasure at the Kansas Supreme Court’s recent decision regarding K-12 financing and there is a directly (linguistic) link between the effort to strip the Supreme Court of power and the K-12 financing decision. Prior to HB 2338, the only time non-severability language like this has been used in Kansas in the last decade has been in bills/laws that were enacted in response to the Supreme Court’s K-12 funding decisions.

HB 2338 now goes to the governor for approval.


Merit selection: changes to merit selection moving in Alaska and Florida; AK Judicial Council compared to Board of Barbers and Hairdressers

April 4th, 2014 by Bill Raftery

A follow-up to last week’s posting, as anticipated changes to merit selection in Alaska and Florida moved this week.


Both HJR 33 and SJR 21 alter the state’s Judicial Council, which serves as both the merit selection commission and the judicial performance evaluation commission which issues its recommendations prior to retention elections. They both would expand the existing 7 member Council (3 lawyers picked by bar, 3 nonlawyers picked by governor and confirmed by legislature, 1 chief justice) to 10 members by giving the governor a 6:3 advantage. Where they differed was in the confirmation process: HJR 33 wanted all bar-picked lawyers to be subject to legislative confirmation (they aren’t currently); SJR 21 was silent on the issue.

A March 31 Senate Finance Committee hearing dealt with amendments to SJR 21 including one to require legislative confirmation of bar members. Proponents claimed the lack of legislative confirmation was an “oversight” by the Alaska Constitutional Convention, testimony was heard that it wasn’t an oversight but deliberately done to keep partisan politics out of the selection of the bar members. This caused one Senator to claim as “arrogance” the notion that Council members should not be “accountable” to the general public and made a parallel between the attorney members of the state’s Judicial Council and the barber/hairdresser members of the state’s Board of Barbers and Hairdressers, the members of which must be approved by the legislature.

The Senate Finance Committee amendment also put in a requirement for a 7/10 quorum of the Council; proponents claim it is to prohibit the chief justice from having a tie breaking vote against the public members of the committee against a judicial nominee. The House version allows for a quorum of 5.

The Senate Finance Committee vote on March 31 on SJR 21 as amended was a 5-0-1 vote. The 5 votes came from 4 Republicans plus 1 Democrat (Olson) who caucuses with the Republicans. One Republican (Bishop) voted no recommendation. Yesterday (April 3) the Senate Rules Committee procedurally advanced SJR 21 to the Senate Floor Calendar for April 4. As I noted last week, SJR 21 could go through on a near-party line vote in the Senate. The Republicans have 14 Senate seats, one shy of the two-thirds needed in that chamber, plus 2 Democrats who caucus with them one of whom voted for the bill to come out of committee.

In the meantime, HJR 33 remained in limbo; a House Finance Committee hearing set for April 2 was cancelled.


On a 26-14 party line vote the Florida Senate advanced a constitutional amendment (SJR 1188) that allows for governors to make “prospective appointments” via the state’s merit selection system for appellate court vacancies that haven’t occurred yet. The issue is key since the only 3 Democrat-appointed justice of the state supreme court all have their terms expire on the same day in January 2019; if reelected and if SJR 1188 is approved by voters Republican Governor Rick Scott could fill all 3 seats even though he has to leave office that exact same day due to term limits.

There is no version of SJR 1188 in the House, however the Speaker of the House has said “I do believe it’s something that our body should consider.”