Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

Readers may recall that I have examined efforts to prohibit state courts from using or referencing sharia or international law (see here and here). Last week some of these bills began to move through the legislative process, so an update seemed in order: Continue reading Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

Montana: There’s (electronic) gold in them thar…contempt of court proceedings?!?

Over the last several months, states including Virginia and South Carolina have considered bills to allow for or require the use of gold in state transactions. In 2009, Montana considered a similar idea (HB 639). This year, Montana has turned its attention back to gold use via HB 513 and in so doing carved special provisions for the state’s courts.

Section 7 provides “the state may not require but shall allow a person to recognize, receive, pay out, deliver, promise to pay, or otherwise use or employ gold and silver coin or electronic gold currency as media of exchange.” It extends this allowance to court judgments, decrees, and orders, however:

If the court, agency, or tribunal finds that a payment of gold and silver coin or electronic gold currency is not just compensation, the court, agency, or tribunal shall require:

(a) specific performance of the contract or other agreement then before the court, agency, or tribunal by other than the payment of money;

(b) specific restitution of property other than money;

(c) payment of some medium of exchange other than gold and silver coin, pursuant to a requirement for the payment in a contract or other agreement then before the court, agency, or tribunal; or

(d) other relief, similar to the relief described in subsection (5)(a) through (5)(c).

Thus, an individual generally has the option of using gold, silver, or “electronic gold” in addition to “legal tender of the United States”.

Even more interesting for purposes of the court’s internal workings is section 12, requiring damages, awards, payments, fines, penalties and other monetary forfeitures be determined and certified by the court “in both legal tender of the United States and electronic gold currency.”

The options are even more limited in criminal cases, contempt of court cases, cases involving violation of court rules, or any case in which the state is entitled to receive payment. There “the person against whom monetary damages or an award, payment, fine, penalty, or other monetary forfeiture is assessed shall pay the amount of the monetary damages, award, payment, fine, penalty, or other monetary forfeiture in electronic gold currency.” There appears to be no other option but for payment to the court for a contempt in the form of electronic gold.

A hearing on the bill set for February 16 before the House State Administration Committee was canceled. No word on when it is to be rescheduled.

Wisconsin’s woes and a ramification particular to the state’s jurists

A large amount of media attention has been turned towards Wisconsin and a bill being advanced by the state’s governor to require state employees to pay more for their benefits and to limit collective bargaining rights in the state (Special Session AB 11, the “Budget Repair Bill.”) In the ensuing fight between protesters, the governor, and the legislature (a large portion of whom appear to have fled the state to avoid making a quorum for action), less attention has been paid to provisions related to retirement and benefit changes and their unique and specific implications for the third branch and its employees.

Of particular note is a proposed change to the pension calculation/multiplier for judges and other elected officials. Changes to these judicial calculations “appl[y] to creditable service that is performed on the day on which the next supreme court justice, court of appeals judge, or circuit court judge assumes office after the effective date of this paragraph.” (This is the normal effective date for changes in compensation for the judiciary.) A similar provision applies to other elected officials.

However, whereas most Wisconsin officials are elected in even years and would therefore not be subject to this until January 2013 or 2015, Wisconsin judges are elected in April elections each year. This year alone, there are one supreme court justice, two court of appeals judges, and 41 circuit court judges up for election on April 5. Therefore, it is anticipated this provision for Wisconsin’s judiciary will become effective when they take office this year (i.e on or before August 1, 2011.)

AZ: Chief justice not asked about plan to expand state’s supreme court

Normally, either through constitutional provision, statutory requirement, or courtesy, legislative efforts to change the number of judges or justices in a state must receive some degree of input from the state’s supreme court, judicial council, or chief justice. A recent effort (SB 1481 of 2011) in Arizona to expand the state’s supreme court from 5 to 7 members was therefore curious in that it failed to include the chief justice in the development.

Chief Justice Rebecca White Berch, after being initially misidentified as being only a member of the state’s judicial council and not the state’s chief justice, (video here, four minutes from 1:06:30-1:10:30) said:

Actually I am the chief justice of the Supreme Court and I had hoped I was signed in in that capacity. And in that capacity, I was surprised by the bill and surprised to be surprised by the bill. Here’s a bill that proposes to change my court and no one asked me about it. Had I been asked, here’s what I might have said…

She noted that, perhaps unique among all governmental entities, the Arizona Supreme Court was current with its workload and that it would cost $1 million per year for the additional two justices.

The author later explained his bill: “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.” The bill was ultimately rejected by the committee, but on a 3-4 vote.

This is the second effort to change the composition of state supreme courts this year. Montana considered reducing the size of its supreme court to force it into tort reform.

Issue 5:7 is out

Issue 5:7 (February 11) is here and features:

  • New format and reader survey results
  • Small claims increases moving in California, Hawaii, Kentucky, Maryland, Montana, and Utah
  • Wyoming’s chief justice may soon have the power to call back into service retired circuit court judges
  • Systemic changes to judicial retirement systems, including closing the systems to new members, proposed or advance in Arizona, Georgia, Indiana, Maryland, Montana, New Jersey, North Dakota, and South Carolina
  • Nonpartisan elections: North Carolina considers getting rid of them, while Missouri considers adopting them
  • Tennessee bill to require judges/justices get at least 75% in retention elections is withdrawn
  • Bills in Missouri, Nevada, and Virginia would reset some or all of the state’s judicial districts/circuits
  • Court security bills introduced or advance in Pennsylvania, Nevada, New Mexico, and New York

Just who exactly gets to administer the oath of office to a judge? Maryland and Arkansas grapple with the question.

It may sound relatively mundane, but in many states judges of various courts may only be sworn into office by specific office holders. The issue came to a head in Maryland recently. In November 2010, state voters approved a constitutional amendment requiring Orphan’s Court judges in Baltimore City be attorneys. At the same election, Baltimore City residents voted into office as an Orphan’s Court judge non-attorney Laudette Ramona Moore Baker. The state’s governor did not issue her a commission and the circuit clerk, who under existing Maryland law administers the oath personally or through a designated deputy, declined to swear her in.

Enter HB 410 of 2011, which would expand the list of those who could administer a judicial swearing in to include “any officer whose office is established in the Maryland Constitution”. The bill is set for a hearing on February 23 before the House Health and Government Operations Committee.

At the same time, Arkansas is also recodifying who gets to swear in judicial and other elected officials via SB 156. Current law provides Supreme Court, Court of Appeals, Circuit Court, and District Court judges have a choice of taking their oath before

  1. the Governor
  2. a Supreme Court Justice
  3. a Circuit Court Judge
  4. the clerk of the county court or
  5. the clerk of the circuit court.

SB 156 keeps these 5 but adds judges of the Court of Appeals to the list. SB 156 was approved by the full Senate February 14 and is currently pending in the House State Agencies and Government Affairs Committee where it had a hearing earlier today (February 16).