Nominate Gavel to Gavel for ABA Journal’s Top 100 law blogs of 2015; deadline 8/16/15!

Thanks to your support Gavel to Gavel the blog has been named one of the ABA Journal Top 100 Blawgs (law blogs) three years in a row.

The ABA Journal is seeking nominations again this year starting today and running through Friday, Aug. 16, 2015.

If you enjoy Gavel to Gavel and would like to show your support, visit the ABA Journal Law Blog Amici page and suggest Gavel to Gavel.

Thank you!

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

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States Expand Protections Against False Liens for Public Officials

During this legislative session, seven states passed measures that expand protections against the filing of false liens—a legal claim to property for unpaid debt—for public officials, and one other state is still considering such a measure. Over the past 20 years, an increasing number of individuals have taken to filing false liens against public officials, a form of harassment that the FBI has dubbed “paper terrorism.” The states have responded by allowing clerks and filing offices to reject such claims, as recommended by the National Association of Secretaries of State, and by increasing civil and criminal penalties.

In addition to the seven states that passed measures this year, there are a number of other states with existing protections. In 2012, this blog covered the efforts of six states (here and here) to pass such measures, three of which were ultimately successful. Similarly, there were eight states in 2013, and five states in 2014, that successfully passed such legislation. The following is a review of efforts in the states to protect judges and other public officials from false liens during the 2015 legislative session.

Passed
Indiana HB 1371 amends existing law prohibiting the filing of false liens to include those who do not currently hold office but have in the preceding four years and provides that liens will be voided if a suit has not commenced within 30 days.

Maryland SB 77 provides that if the filing office believes a claim to be false, they must notify the subject of the filing, state their reasons for believing it is false, and terminate it in 45 days unless the claimant files an affidavit under the penalties of perjury that provides for the claim’s validity. If the filing office still believes the claim to be false after receiving the affidavit, the office may terminate the claim in 45 days unless the claimant petitions for a judicial determination of its validity. (Note: The Governor vetoed HB 312 as duplicative).

Nevada SB 197 amends existing law to prohibit and classify as a category B felony the filing of a false lien or other encumbrance “against the real or personal property of a public officer, candidate for public office, public employee, or participant in an official proceeding, or a member of [their] immediate family” based on the performance of or failure to perform the duties relating to their office or employment. The subject of the fraudulent claim is permitted to bring civil suit against the claimant under this statute.

New Jersey AB 2481 authorizes the filing office to reject a claim it reasonably believes to be materially false or fraudulent because it is (1) filed against a current or former officer or employee of any federal, state, county, local, or other government unit; (2) relates to their performance or failure to perform the duties relating to their office or employment; and (3) “for which the filer does not hold a properly executed security agreement or judgment from a court of competent jurisdiction.” The statute allows the filing office to reject claims filed by incarcerated individuals. The official or employee against whom the claim is filed is also authorized to bring civil suit, and the court is authorized to grant awards up to $2000 or damages incurred and enjoin the defendant from filing any future liens, encumbrances, or court actions without the approval of the court. (Note: The existing statute already included the provision that the filing of a false lien against a public official or employee is a second degree crime).

North Carolina SB 83 amends existing law concerning the filing of false liens or encumbrances against the real or personal property of a public officer, public employee, or their immediate family. The measure authorizes the register of deeds or clerk of court to refuse to file a claim that they reasonably suspect to be fraudulent. The measure also provides an appeals process for denied filings.

North Dakota HB 1307 amends existing law to classify the threatening of a public servant, including the filing of false liens, as a class A misdemeanor for a first offense, and a class C felony for second and subsequent offenses.

Pending
California AB 1267 expands existing protections against false liens to apply to lawsuits and other encumbrances against public officials with the intent to harass. It also provides that the subject of the fraudulent claim can request an order directing the claimant to appear in court to defend the claim. AB 1267 was passed by both the House and Senate, but is still awaiting the Governor’s approval.

Pennsylvania SB 212 classifies the filing of a false lien, in addition to any other unlawful action that attempts to influence, intimidate, or hinder a public official or law enforcement officer from performing their duties, as a misdemeanor of the second degree. This bill is still pending in committee.

Delaware and North Carolina legislatures address whether state supreme courts can sit outside of the capital

While a variety of state courts of last resort meet from time to time outside of their normal chambers in the state’s capital, there remains statutes, and in some cases constitutional provisions, that effectively tie the high courts to a particular city or place. As I pointed out in this item after Hurricane Katrina, it was and is somewhat of an open question in a variety of states whether the courts can move. This year legislatures in Delaware and North Carolina passed legislation to address this issue.

In Delaware, an 1852 statute specifies the “The Supreme Court shall be held at Dover“. However, the Supreme Court has been hearing oral arguments in locations other than Dover since at least the 1980s.

HB 113 of 2015 provides specifically that the Supreme Court may meet outside of Dover “when the Court determines that the education of the Bar or law students, or the public interest would be advanced by having a special session of the Court in another location.” The bill was approved unanimously in the House June 18 and unanimously in the Senate June 30. It is set to be transmitted to the governor.

North Carolina’s Supreme Court may be having a “Back to the Future” moment with legislation this year allowing it to return to sit in Morganton for the first time in 150 years. A 1997 law (HB 954) already allowed the Supreme Court to sit twice annually in Old Chowan County Courthouse in the Town of Edenton, the colonial capital of North Carolina. HB 283 and SB 161 both allow the Supreme Court “by rule [to] hold sessions not more than twice annually in the City of Morganton; unless a more suitable site is identified by the court, the court shall meet in the Old Burke County Courthouse, the location of summer sessions of the Supreme Court from 1847?1862.” This article written in 1919 on the 100th anniversary of the court details some of the sittings. The Senate version of the bill was signed into law by that state’s governor on June 19.

Impeachment of state judges: OK- impeachment for court decision, PA- impeachment for judicial misconduct

Threats to impeach state judges have ramped up in the last month, but for two very different reasons.

The Pennsylvania House Judiciary Committee in late June unanimously approved HR 389, a resolution authorizing an impeachment investigation into Magisterial District Judge Kelly S. Ballentine. Judge Ballentine is facing criminal and judicial ethics charges that she fixed parking tickets issued against her (for which she was suspended from office) as well as other charges of misconduct related to her (unlicensed) shoe store and accusations she failed to pay sale taxes.

This marks the second time in two years the House has considered judicial impeachment. In 2013 a resolution (HR 159) would have impeached Supreme Court Justice Joan Orie Melvin for her criminal wrongdoing in in using state employees to help in political campaigns. Melvin was later convicted and forced to resign her office.

On the other side of the spectrum of impeachment threats were efforts lodged by the Oklahoma legislature after that state’s top civil court (Supreme Court) ruled that a Ten Commandments market placed on state Capitol grounds violated the Oklahoma constitution (h/t Gravel Grab for the articles). This marks the second attempt in as many years to impeach justices of the Oklahoma Supreme Court. In 2014 the House considered impeachment after the Supreme Court issued a stay of execution order in a death penalty case, one that the state’s governor refused to acknowledge (discussed here).

Jury Nullification in New Hampshire, Massachusetts, Oregon, and New York

This year, four states introduced measures that addressed the issue of jury nullification. Even though all measures failed, it still reveals a greater level of attention towards the power of juries to nullify than it has historically received. Although two of these measures have been reviewed in previous posts, below is a collection and summary of the measures addressing jury nullification in the state legislatures this session.

New Hampshire

Over the past decade there have been efforts in New Hampshire to codify the right of juries to nullify the law, and to require that juries be informed of that right. These efforts culminated in the enactment of HB 146 in 2012, which was viewed by some proponents of jury nullification instructions as a victory, but by others as too watered down to be meaningful; and so efforts have continued.

Two bills were introduced in the New Hampshire House of Representative this session. Both HB 246 and HB 470 were responses to a New Hampshire Supreme Court ruling in October 2014, discussed in a previous post. This ruling significantly narrowed the scope of RSA 519:23-a, the statute created by HB 146, by declaring that it does not provide a right to jury nullification instructions. RSA 519:23-a, reads:

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Both measures attempted to circumvent that ruling by amending the statute to more explicitly provide for jury nullification instructions.

HB 246 was discussed in the previous post mentioned above, and would have added an additional provision to RSA 519:23-a that the refusal by a judge to administer jury nullification instructions be considered maladministration, an impeachable offense. This bill was killed by the House Judiciary Committee in February.

However, this was not the only jury nullification measure introduced in the New Hampshire House of Representatives this session. Another bill, HB 470 , proposed to repeal RSA 519:23-a and replace it with language that would make clear the jury’s right to nullify the law and the defendants right to inform them of this power. Specifically, the language of HB 470 read:

In all court proceedings, the court shall instruct the jury of its inherent right to judge the law as well as the fact and to nullify any and all actions it finds to be unjust. The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

HB 470 was killed by the House Judiciary Committee in late February. The language of this bill is almost identical to the introduced version of HB 146 of the 2012 session, the enacted version of which created RSA 519:23-a. However, HB 146 was amended by both the House and the Senate, and by the time it was enacted no longer included any explicit reference to jury nullification.

HB 246 and HB 470 are not the first bills since the enactment of HB 146 aimed at expanding the provisions of that bill. In 2014, the House considered HB 1452 (discussed here) which proposed to replace the language of RSA 519:23-a and more explicitly require that the jury be informed of the concept of jury nullification. The measure also proposed that a mistrial be declared if the court failed to provide such instructions. This bill was killed by the House Judiciary Committee. In 2012, the same session in which HB 146 was passed, two other bills, HB 1247 and HB 1397, were also considered that included more explicit provisions for jury nullification instructions. Both were killed by the House Judiciary Committee.

Massachusetts

Although with a much less contentious history, a measure was introduced in the Massachusetts House of Representative that required judges to permit the defense to inform the jury of their right to nullify the law. The language of this bill was very similar to HB 470 of New Hampshire. HB 1544 read:

In all criminal proceedings, the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to the facts by providing a specific nullification instruction to the jury. The instruction shall further inform jurors of their right to refuse to enforce unjust or unjustly applied laws.

Although referred to the Joint Committee on the Judiciary, no action was ever taken. This legislation was the first attempt to establish jury nullification instructions in Massachusetts in recent years.

Oregon

HB 3381 was introduced in the Oregon House of Representatives. This bill was also discussed in a previous post. HB 3381 proposed to amend ORS 136.325, which governs what information juries may and may not be given in criminal cases requiring mandatory minimum sentences and/or the adult prosecution of juveniles. The jury nullification instructions would have read:

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty.

The bill was referred to the House Judiciary Committee, but no further action was taken. This was the first attempt to establish jury nullification instructions in Oregon in recent years.

New York

New York also introduced legislation regarding jury nullification. However, rather than attempting to inform juries of their ability to nullify, as the other measures reviewed in this post did, this measure attempted to restrict the nullification power of juries by informing them of a reason for which they may not nullify the law. Introduced as AB 6381 in the Assembly, and SB 1724 in the Senate, this bill proposed a requirement that judges deliver certain instructions to juries in criminal proceedings, including the instruction that:

It is against public policy for a defendant to be acquitted of a charged offense or convicted of a lesser included offense based upon an appeal to the societal bias that may be possessed by members of a jury.

Although introduced in both the Assembly and the Senate and referred to their Committees on Codes, no action was ever taken on the bill. This legislation was the first attempt to address jury nullification instructions in New York in recent years.