Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:

Continued reference to sharia in particular

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.

Missouri HJR 69 of 2016

The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States, provided the law of the other state does not include sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.

Oklahoma HJR 1056 of 2010

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law , in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Threat of impeachment

Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)

List of proposals and their current status below the fold.

Bill Key Provision Status
Georgia HB 171 Any tribunal ruling shall be void and unenforceable if the tribunal bases its ruling in whole or in part on any foreign law that would deny the parties the rights and privileges granted under the United States Constitution or the Georgia Constitution In House Judiciary Committee. Carried over from 2015 session.
Hawaii SB 2716 A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Hawaii and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision any of the fundamental liberties, rights, and privileges granted under the Hawaii Constitution or the United States Constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage. In Senate Judiciary and Labor Committee
Indiana SB 29 A court may not apply, enforce, or grant comity, res judicata, claim preclusion, or issue preclusion to a foreign law, ruling, or judgment if doing so would violate the fundamental liberties, rights, and privileges guaranteed by the Constitution of the United States or the Constitution of the State of Indiana of the person against whom the foreign law, ruling, or judgment is being applied or enforced. The fundamental liberties, rights, and privileges to which this section applies include due process, freedom of religion, freedom of speech, and freedom of the press. In Senate Judiciary Committee
Kentucky HB 46 A court, arbitrator, administrative agency, or other adjudicative body or authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States. In House Judiciary Committee.
Minnesota HB 2489 A court ruling or decision violates the public policy of this state and is void and unenforceable if the ruling or decision in the matter at issue in whole or in part is based on a law, legal code, or system of jurisprudence that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States Constitution or Minnesota Constitution, including due process; freedom of religion, speech, or press; and any right of privacy or marriage as specifically defined by the Minnesota Constitution. Prefiled for 2016 session.
Missouri HJR 69 (Constitutional Amendment) The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations promulgated pursuant thereto, and if necessary the law of another state of the United States, provided the law of the other state does not include sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression. In House (no committee)
New Jersey AB 1724 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 by the Constitution of this State or of the United States or conflict with the laws of the United States or of this State. In Assembly Judiciary Committee.
Ohio HB 339 No court, administrative agency, or arbitrator shall base any ruling or decision in whole or in part on any statutory or other law of a system of foreign law that does not grant the parties affected by the ruling or decision all of the liberties, rights, and privileges granted to United States citizens or legal resident aliens under the constitution of this state or the United States, including, but not limited to, the following:
(a) Equal protection of the laws;
(b) Due process of law;
(c) Freedom of religion;
(d) Freedom of speech;
(e) Freedom of the press;
(f) Any right of privacy or marriage.
In House Judiciary Committee.
Pennsylvania HB 1288 A tribunal shall not consider a foreign legal code or system which does not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States Constitution and the Constitution of Pennsylvania. This subparagraph includes due process, freedom of religion, freedom of speech, freedom of press and a right of privacy or marriage as specifically defined by the Constitution of Pennsylvania. In House State Government Committee. Carried over from 2015 session.
South Carolina HB 3521 (AS AMENDED) Any court, arbitration, tribunal, or administrative agency ruling or decision in a matter at issue shall violate the public policy of this State and be void and unenforceable to the extent that any such ruling or decision is based upon any foreign law that would not grant the parties affected by the ruling or decision, at a minimum, the fundamental liberties, rights, and privileges granted under the United States and South Carolina Constitutions including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy as specifically defined by the Constitution of the United States, or of this State. Approved with House amendment to remove word “sharia” by full House 2/2/16. To Senate to concur with House amendment
South Carolina SB 101 A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law. In Senate Judiciary Committee. Carried over from 2015 session.
South Carolina SB 948 A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.
Washington HB 1246 A court, arbitrator, administrative agency, and any other adjudicative, mediation, or enforcement authority may not enforce a foreign law if doing so would violate any right guaranteed by the Constitution of this state or of the United States In House Judiciary Committee. Carried over from 2015 session.
Washington SB 5192 Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Washington state Constitutions. In Senate Law & Justice Committee. Carried over from 2015 session.
West Virginia HB 2956 It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Constitution of the State of West Virginia or the United States Constitution or any statute or decision under those Constitutions In House Judiciary Committee.
West Virginia HB 2994 (b) A court may not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:
(1) Controlling or influential authority; or
(2) Precedent or the foundation for any legal theory.
(c) Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.