Wyoming: Efforts to strip state courts of jurisdiction to hear K-12 funding lawsuits reintroduced; courts could declare funding system unconstitutional but could not order more funding

Last year the Wyoming Senate approved a constitutional amendment that would have prohibited courts from hearing K-12 funding lawsuits brought under the state constitution’s clause that the legislature is to “create and maintain a thorough and efficient system of public schools.” In 2018 several constitutional amendments were filed in this area, with one advancing to committee.

SJR 4 as filed was allowed to be introduced (normally, sessions in even number years are limited to budget issues only, but the House or Senate can vote to allow other items in). The constitutional amendment contains three key sections.

  1. The legislature alone is to decide funding levels and to “rationally determine” what those levels are
  2. The legislature alone is to equitably allocate funding among the school districts in order to have adequate, thorough and efficient schools
  3. The judiciary may declare a system of public school funding in violation of the constitution, but cannot order the legislature to take any action to generate revenue, through taxation or otherwise in order to fulfill its duties to fully fund the public school system.

SJR 4 is similar to HJR 9, which failed to advance to committee. I simply declared no court could order/require imposition of any tax or tax increase, nor require any other provision of funding for schools beyond what the legislature approved.

Iowa: Bills would require supermajority of state Supreme Court (5/7) to declare laws unconstitutional; similar provisions in Nebraska and North Dakota

Iowa’s Constitution provides that “the supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe…

Citing this provision, members of the Iowa legislature want to impose a supermajority requirement on the Iowa Supreme Court for at least some of its decisions.

HF 2106 and SF 2153  provide no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five 5 justices of the supreme court of Iowa. The court is made up currently of 7 justices.

There are two state courts of last resort that require supermajorities to strike down laws, but both are because of a constitutional provision, not a mere statute.

North Dakota Supreme Court (4/5): “The supreme court shall consist of five justices…A majority of the supreme court shall be necessary to constitute a quorum or to pronounce a decision, provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide…” (Art. VI, § 2, 4)

Nebraska Supreme Court (5/7): “The Supreme Court shall consist of seven judges…No legislative act shall be held unconstitutional except by the concurrence of five judges.” (Art. V, § 2)

Hawaii: bills in House/Senate would change state supreme court’s jurisdiction back to old “deflector” system; force Supreme Court to decide some cases in 15 days

Hawaii’s Supreme Court and Intermediate Court of Appeals had, for decades, operated using a “deflector” system: appeals were filed with the Supreme Court which then either kept the case or “deflected” it down to the Intermediate Court of Appeals. The system ended in 2006 and now appeals can be filed directly with the Intermediate Court of Appeals, but some legislators want a return to the old system and add a 15 day deadline for others.

HB 2191 / SB 3040 effectively repeal the 2006 changes and re-establish the deflector system.

HB 2194 / SB 3019 would add to the Supreme Court’s docket as well. The bills provide that a court of inferior jurisdiction may certify to the Hawaii Supreme Court a question or proposition of law on which the court of inferior jurisdiction seeks instruction for the proper decision of a remanded case. Finally they require the Supreme Court to answer the question within 15 calendar days.

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.”


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.

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

New Mexico: constitutional amendment to give legislature more discretion to set appellate jurisdiction of courts by statute heading to ballot in 2018

A constitutional amendment discussed here to give the New Mexico legislature more discretion in setting the appellate jurisdiction of the state’s courts in general, and the District Court in particular, is heading to the 2018 ballot.

Currently the state’s constitution has three particular provisions when it comes to appeals

  1. District Court cases involving sentences of death or life imprisonment go directly to the state’s Supreme Court (Art. 6, Sec. 2).
  2. The District Courts themselves have “appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts.” (Art. 6, Sec. 13)
  3. Finally, the constitution provides “Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.” (Art. 6, Sec. 27)

SJR 1 as approved by the House addresses items 2 and 3.

  1. The provision for death/life imprisonment cases going directly to the Supreme Court would remain. The Senate wanted remove the direct-to-the-Supreme-Court provision but the House struck that change.
  2. District Courts would not have appellate jurisdiction over “all” cases originating in inferior courts and tribunals in their respective district.
  3. The provision that probate/inferior court appeals go “to the district courts, and in all such appeals, trial shall be had de novo” would be struck.

SJR 1 now goes to the ballot in November 2018.

Washington: modified version of 2015 bill to create Tax Court refiled, this time with a constitutional amendment

A 2015 plan to create a Tax Court in Washington (discussed here) composed of sitting Court of Appeals judges was hobbled with concerns that the state’s constitution didn’t give the legislature the power to create such a court. Now the 2017 version of the plan is back, this time with a constitutional amendment and some changes.

SJR 8209 amends the state’s judiciary article to authorize the creation of a Tax Court and spells out in general its jurisdiction. It provides that decisions of the Tax Court would go directly to the state supreme court. Finally, it provides that the number, election, terms, and compensation of Tax Court judges would be left to the legislature.

SB 5866 fleshes out SJR 8209’s provisions and appears to be similar to the 2015 plan. It abolishes the existing State Board of Tax Appeals in favor of the new Tax Court.

The Court would be made up of two “departments”.

  • The Main Department would consist of 3 judges who may individually or as a panel hear tax appeals. All decisions of the Main Department would have to be rendered within 6 months of submission, although the court could extend this for good cause an additional 3 months.

Unlike the 2015 plan, which called for using Court of Appeals judges, the 2017 plan would have the 3 judges elected to the Court in their own right to 6 year terms. It appears the judges would be elected by Court of Appeals district.

The judges would have to have “at least five years’ experience as an attorney practicing in Washington state and local tax law.” A similar provision created some controversy in 2015 when it was questioned who would determine whether a person met this requirement.

  • The Commissioner Department would be for “cost-effective and informal” reviews and would include a voluntary mediation system. Commissioners would be appointed by the judges of the Main Department.

A hearing on the implementing legislation (SB 5866) is set for tomorrow (March 14) in the Senate Law & Justice Committee. A hearing on both the bill and constitutional amendment are set for March 16.