Bans on court use of sharia/international law: Montana governor vetoes state’s version; claims bill is really “Sharia law ban” and would “open a dark chapter in our state’s history”

Montana’s governor has vetoed that state’s bill that would ban state court use of foreign or international law. Governor Steve Bullock’s veto message for SB 97 cites four main reasons.

  1. Despite protests that SB 97 was not driven by anti-Muslim sentiment, Bullock found the bill was driven by “Sharia law bans” tried in other states.
  2. Foreign law has infused the American legal system for centuries and in particular Montana’s legal system. The Governor here cites an 1871 law that “the common law of England, so far it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, is the rule of decision in all the courts of this state.” That law remains on the books as 1-1-109 MCA.
  3. The law itself is so broad that it would effectively make void and unenforceable almost all contracts that rely on a foreign legal system.
  4. There is no need for the bill since the U.S. and Montana constitutions already protect Montana residents, ” protections that our courts are sworn to uphold.”

The veto message concludes that with a “nation-wide surge in hate crimes” the bill “would open a dark chapter in our state’s history.”


Maine: bill ends state’s judicial compensation commission and merges with other salary commission; Connecticut went in opposite direction in 2012

Since 1995 Maine has had a Judicial Compensation Commission  the makes non-binding recommendations to the legislature regarding judicial salary, benefits and retirement. Now a bill has been introduced to end the Commission and transfer its powers to an existing commission.

Currently the Maine State Compensation Commission makes recommendations for salaries for legislators and top executive branch officials (Attorney General, the Secretary of State, the Treasurer of State and the State Auditor). Under HP 1006 the Judicial Compensation Commission would end; the State Compensation Commission would make recommendations for judicial salaries plus recommendations for the salary of the state’s governors.

The Maine bill is effectively the opposite of what occurred in Connecticut in 2012 where that state’s legislature created a stand-alone judicial compensation commission and pulled judicial salary issues out of the existing Compensation Commission for Elected State Officers and Judges.

HP 1006 has been filed in the Joint Committee on State and Local Government.

Delaware: final approval on constitutional amendment to give governor & senate more time to consider judicial nominees, allow for prospective appointment

A constitutional amendment discussed here and here to give Delaware’s governor and senate more time to consider judicial nominations cleared its final hurdle. With 39-0 House approval, the constitutional amendment will now go into effect (Delaware doesn’t require voter approval of constitutional amendments).

Currently, the constitution provides the governor makes nominations and the Senate confirms for the state’s top courts (all but Alderman’s). Since 1977 every governor has used an advisory Judicial Nominating Commission. The governor and senate, however, are on a timetable:

  • The governor must submit a name to the Senate within 60 days after the occurrence of a vacancy.
  • The Senate, if in session, takes up the name. If not in session, the Governor must within 60 days convene the Senate to take up the nomination.
  • If an incumbent judge remains in office, they can holdover up to 60 days after the expiration of their term.

SB 25 of 2017 would effectively extend these deadlines and allow for prospective appointments if a vacancy is set to occur; the current constitution is silent on the matter.

  • The governor could submit a name to the Senate “from 30 days before to 90 days after” the vacancy happens.
  • The Senate could also be called back into session “from 30 days before to 90 days after” the vacancy happens.
  • Incumbent judges could holdover in office up to 90 days.

The constitutional amendment (then called SB 275 of 2016) was approved unanimously by both chambers last year.

Colorado: Senate committee advances bill repealing 2015 law linking legislative salaries to judicial salaries; executive salaries would still be linked

A 2015 law that links the salaries of Colorado’s state legislators and top executive officials to judicial salaries could be heading for a partial repeal.

SB 288 of 2015, discussed here, made the link for both legislators and top executive branch officials (Governor, Lt. Governor, Attorney General, Secretary of State, and State Treasurer). Legislators received an amount equal to 25% of the total annual salary paid to the judges of the county court in a Class B county.

SB 288 of 2017 effectively decouples the salaries for legislators. 25% of current salaries for county court in a Class B county would serve as the base-point for legislative salaries starting in 2019. Thereafter, there would be inflation adjustments to the legislative salaries starting in 2025.

SB 288 was approved by the Senate Appropriations Committee and floor amended earlier this week. It is currently on the Senate’s April 17 floor calendar.

Montana: Legislature declares new ABA model rule being considered by state’s supreme court banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Legislature has declared “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state. Senate Joint Resolution 15 was approved by the full House earlier this week, having cleared the Senate in February.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power.”


Oklahoma: House and Senate appear to near agreement on restructuring state’s supreme court seats; bills specify 2 at-large justices come from counties with a population under 75,000

A plan to redistrict the Oklahoma Supreme Court appears nearing House and Senate agreement, with the House’s plan to require justices from more rural counties winning the day.

Currently the 9 members of the Supreme Court are appointed from 9 districts, but run statewide for yes/no retention elections.

HB 1925 as approved by the House last month and by the Senate Judiciary committee earlier this week would provide that starting in November 2017

  • 5 justices would be appointed, 1 for each Congressional District as constituted on November 1, 2017. For transition purposes, the current seats from Districts 1, 3, 4, 5, and 6 would turn into Congressional-District based seats.
  • 4 justices appointed at-large, however 2 justices must come from counties with a population of less than 75,000. The current seats from Districts 2, 7, 8, and 9 would transition to at-large.

The justices would still run statewide for yes/no retention elections.


Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Efforts to ban state courts from using or referencing foreign/international law in general, and sharia law in particular, continue apace with two legislatures approving versions while a bill in North Dakota was rejected.

Arkansas enacted a ban (HB 1041). An earlier version noted here would have re-declared that marriage in Arkansas was limited to a man and a woman, despite a U.S. Supreme Court decision saying the opposite. The amended/enacted HB 1041 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as “marriage” is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.

Meanwhile the Montana legislature approved a version (SB 97) that is currently pending on the governor’s desk that reads in operative part

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana 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 the fundamental liberties, rights, and privileges granted under the Montana 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.

Finally, North Dakota’s House approved HB 1425 in February, but in late March the Senate rejected the proposal. At issue was the situation similar to Arkansas, namely, that the bill would have attempted to re-establish a ban on same-sex marriage. Senators objected to the marriage provision and amended it out, but also worried this was an “insult to our judges” and assumes North Dakota judges would violate the U.S. and North Dakota Constitutions without this bill.

Full list of bills below the fold.

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