With budget shortfalls anticipated well into the next two years, many states are considering making more use of quasi-judicial officials.
Since the adoption of its original constitution in 1889, Wyoming’s district court commissioners have been limited in the services they may perform: they may take depositions and perform other tasks assigned by law, but they cannot perform “chamber business” unless either a) the district judge is out of the county or b) it is improper for the the district judge to act in a given case. However, in Summer 2010 in testimony before the state’ legislature’s Joint Interim Judiciary Committee, then-Chief Justice Barton Voigt “observed that the commissioners are acting even when a district court judge is present in violation of the constitution and statute and he believes that that a constitutional change is needed.”
HJR 1 of 2011 would remove those prohibitions (and delete the word “chamber” from “chamber business”). If adopted, a district court commissioner could perform duties assigned by a district court judge, even if the judge is not absent from the jurisdiction of the court or recused/disqualified, subject to any restrictions the legislature may impose by law upon the authority of district court commissioners. The bill is currently pending in the House but is not yet assigned to a committee.
Georgia’s history with its Supreme Court is one of note. For nearly 75 years of statehood, there was no appellate review: a new trial before a new jury in the local court was the only procedure available for the correction of judicial error.
Enter HR 5 of 2011, a constitutional amendment being considered in the 2011 session that would remove the state’s constitutional provisions making state supreme court (and court of appeals) decisions binding on lower courts. The resolution’s preamble also makes it clear the decisions of the appellate courts would not be binding on any other party other than those involved in the judicial action at hand.
Late last week, Oklahoma’s House voted to amend the state constitution to ban court references to sharia law and international law. HJR 1056 would enact the “Save Our State Amendment” and would include the following as a new paragraph of the state’s Judiciary Article (Article VII):
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, and the Oklahoma Statutes and rules promulgated pursuant thereto 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. (emphasis added)
The bill, as originally introduced, read:
The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law, international law, the constitutions, laws, rules, regulations, and decisions of courts or tribunals of other nations, or conventions or treaties, whether or not the United States is a party. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
The original language was approved by the House Rules Committee but amended on the floor. The bill, as amended, passed on a 91-2 vote.
While generally courts are permitted to entertain only cases and controversies, several states allow their Supreme Court to issue advisory opinions. Colorado’s Constitution gives its Supreme Court the power to weigh in “upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives”.
Colorado’s Governor made such a request on February 9 in response to the U.S. Supreme Court’s decision in Citizens United. The request paid specific attention to a provision in Colorado’s constitution that states “it shall be unlawful for a corporation or labor organization to provide funding for an electioneering communication; except that any political committee or small donor committee established by such corporation or labor organization may provide funding for an electioneering communication.”
Although the governor alone could have asked for a Supreme Court advisory opinion, both chambers of the state’s legislature added their request through HJR 1011 on February 10. The joint resolution found the questions posed by the governor of “extreme importance and public interest [and] that it is essential that an immediate determination be secured…”
HB 2784 originally increased claims jurisdiction from $3,500 to $7,000. The House Judiciary Committee cut this down to $4,500 on 2/12/10 and on 2/22/10 the House Finance Committee OK’ed the $4,500 threshold. It now goes to the full House.
For more details on the nearly dozen efforts to increase small claims throughout the U.S. this year, check out the Focus piece of Issue 4:6 here.
Efforts to strip courts of jurisdiction over case types, such as taxation and school funding, are nothing new. See, for example, Kansas’ SCR 1613 which would prohibit the judicial branch from directing the legislative branch make any appropriation of money or to redirect the expenditure of funds.
2010 however is perhaps the first time a state legislature has tried to stop the use of karma by the courts (although it is not clear any courts are presently using it). Arizona’s HB 2379 and SB 1026 prohibits courts from implementing, referring or incorporating or using “a tenet of any body of religious sectarian law” and specifically includes sharia law, canon law, halacha, and karma. Decisions that make use of a body of religious sectarian law or foreign law are declared void and such usages declared to be grounds for impeachment. Moreover, the bills are not just targetting Arizona’s state courts; the same legislation declares these provisions apply to Federal courts sitting in diversity jurisdiction and requires any court that construes the statutes must do so in a way to confine the power of Congress and the federal judiciary.
A similar bill in Oklahoma, HJR 1056, would amend that state’s constitution to prohibit the courts from “look[ing] to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law…” That bill was approved by the House Rules Committee on February 4.