Florida House Judiciary Committee to take up nine bills that would reshape the state’s judicial branch

I’ve noted several bills that have been pressed by Florida’s House Speaker and their prior hearing dates, including March 17 (see here), along with delays on the Senate side on their versions (see here). Tomorrow, April 7 may prove a fateful day for such efforts. Among the bills on the committee’s agenda:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future Supreme Court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms. This had previously been approved by the Civil Justice Subcommittee on March 17.

HJR 7025, a constitutional amendment that repeals the Supreme Court’s power, and that of any court, to adopt rules for the practice and procedure. Instead, the Supreme Court could recommend such rules to the legislature, which would have the power to adopt, amend, or reject any proposed or existing rule by law.

HB 7027 is a bill with statutory changes related to HJR 7025. In addition to specifying how the supreme court’s recommendations to the legislature would be handled, it would also create a judicial conference made up of the chief justice, the chief judge of each district court of appeal, and circuit judges and gives it broad oversight over the state’s judiciary.

HJR 7037, a constitutional amendment that provides all records, materials, & proceedings related to complaints & investigations of Judicial Qualifications Commission not otherwise exempt from disclosure are public upon filing of formal charges against judge or upon determination by commission or investigative panel that formal charges will not be filed. This is similar, but not identical, to SJR 1704 approved by the Senate Judiciary Committee on April 4.

HJR 7039, a constitutional amendment that requires justices or judges receive at least 60% of vote to be retained in office starting with 2012 election.

HB 7101, a statutory change that replaces entirely the state’s existing judicial nominating commissions. New commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The bill sets terms of the commission members concurrent with the governor and retains provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

HJR 7111 a constitutional amendment that would rename the existing Supreme Court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing Supreme Court would transfer to the new Supreme Court of Criminal Appeal and the existing Supreme Court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

HB 7119, repeals statutory provisions relating to requirement that district court sit in three judge panels & have majority for decision & requirement that clerk of district court perform duties prescribed by rule of court. This had been noticed for hearing and action previously on March 24 and March 30, but the bill was never taken up for consideration.

HB 7199 would change numerous statutes putting HJR 7111 into effect.

FL: Bills to split supreme court and change judicial elections up for hearing on March 17

Tomorrow’s (March 17) House Judiciary Committee, Civil Justice Subcommittee promises to be very active with respect to the state’s judicial structure and election. A podcast of the hearing will be available here and video here.

On the agenda already are:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future supreme court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms.

PCB CVJS 11-06, a constitutional amendment that would rename the existing supreme court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing supreme court would transfer to the new Supreme Court of Criminal Appeal and the existing supreme court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

PCB CVJS 11-07 would change numerous statutes putting CVJS 11-06 into effect.

PCB CVJS 11-08 would replace the state’s existing judicial nominating commissions. The new commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The terms of the commission members would be concurrent with the governor, meaning a new governor would be able to pick all new commissions (currently, serve for 4 years). The bill does retain provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

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

NH: Legislator seeks to declare void state supreme court decisions from the 1800s

It is relatively common for state legislatures to, effectively, overturn court decisions which relate to statutory interpretation by either changing the wording of the statute or repealing it outright. This even extends to efforts to overturn state supreme court interpretations of the state constitution by adopting state constitutional amendments.

What is uncommon is New Hampshire’s attempts to achieve the same effect by targeting certain decisions and retroactively declaring them void.

For example, HCR 17 of 2011 declares the 1868 case of Copp v. Henniker (55 NH 179) and the opinions which subsequently relied upon Copp “void and of no force.” In Copp, the state’s supreme court (then known as the Superior Court of Judicature), referencing a similar Wisconsin case (Meade v. Walker 17 Wis. 189 (1863)) held that the state constitutional right to a trial by jury applied if that was the case when the state constitution was ratified. The reference to the Wisconsin case is specifically criticized by HCR 17. The concurrent resolution ends with a two part declaration that the opinion in Copp “is repugnant to the Constitution of New Hampshire” and that “the opinions which subsequently rely upon Copp versus Henniker to deny the right to trial by jury in new types of civil cases are utterly void and of no force.”

HCR 18 declares an even older case (Merrill v. Sherburne, 1 NH 199 (1819)) void as well. There, Merrill (as executor for the estate of a man named Ward) had lost at trial and on appeal a probate case against Ward’s heirs that would have granted Merill the entire estate. In 1817 Merrill petitioned the legislature for another trial and the legislature adopted a special law for him to that effect later in the year. The heirs moved to quash the proceedings. The state’s Superior Court of Judicature did quash, citing the U.S. Constitution, “The Spirit of Laws” by Montesquieu, several of the Federal Papers, Thomas Jefferson’s “Virginia Papers”, and similar documents. Specifically, the court held that the state legislature had exceeded its constitutional authority and, in effect, exercised judicial powers.

HCR 18, on the other hand, declares the listed documents were deliberately edited to mislead readers. Moreover, referencing a state constitutional provision that “the Legislature shall assemble for the redress of public grievances and for making such laws as the public good may require”, the resolution declares Merrill and subsequent decisions relying on it “repugnant to the Constitution of New Hampshire…utterly void and of no force.”

The author’s writings on the subject of these cases can be read more fully here.

AZ: Effort to ban court use of sharia law, canon law, halacha, and karma (under threat of impeachment) reintroduced

This post has been updated. Click here.

Welcome Think Progress readers!

While several bills have been introduced as of late to ban the use of international and/or sharia law in state courts, I mentioned last year Arizona’s unique twist. The 2010 “Arizona Foreign Decisions Act” has been reintroduced in 2011 as HB 2582. Among other (statutory) provisions:

  • Declares the acceptance of Arizona into the Union was a “compact”.
  • Declares “Congress has no authority to preempt state regulation of state courts.”
  • 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.
  • Exempts from the above prohibitions decisions based on Anglo-American legal tradition, laws or case law from Great Britain prior enactment of the statute, or the definition of marriage as between one man and one woman, “and the principles on which the United States was founded.”
  • Prohibits use of any case law or statute from a non-U.S. jurisdiction or “foreign body”, including the United Nations.
  • Declares decisions that make use of a body of religious sectarian law or foreign law declared void and usages declared to be grounds for impeachment.
  • Declares these provisions apply to Federal courts sitting in diversity jurisdiction.
  • Requires any state or Federal court that construes this statute must do so in a way to confine the power of Congress and the federal judiciary.

Last year’s version had 15 sponsors, was assigned to the Judiciary Committee, and ultimately never taken up. This year’s has fewer sponsors (6 so far) but the Primary Sponsors include the freshman Vice-Chair of the Judiciary Committee, Chair of the Government Committee, and Vice Chair of both the Rules and Finance Committee.

An examination of 2011 sharia law & international law bans before state legislatures

This post has been updated. Click here and here.

Welcome Thinkprogress.org, Stateline, Opinio Juris and HLPR readers! Enjoy and sign up for Gavel to Gavel the weekly edition here.

In 2010, several states proposed bans on the use of sharia or international law (prior blog posts here and here; Gavel to Gavel the publication special focus issue here). The Oklahoma version (which was limited to the state’s courts) was approved by voters in the state in November 2010, but a restraining order has been issued as part of a Federal lawsuit against the state constitutional amendment. The relevant portions (another part renamed the State Industrial Court to the State Worker’s Compensation court) read:

The Courts provided for in subsection A of this section [i.e. Oklahoma’s state courts], 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 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.

Constitutional Amendments

Undaunted by the Federal court action, Wyoming has introduced its own version (HJR 8):

When exercising their judicial authority the courts of this state shall uphold and adhere to the law as provided in the constitution of the United States, the Wyoming constitution, the United States Code and federal regulations promulgated pursuant thereto, laws of this state, established common law as specified by legislative enactment, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not consider the legal precepts of other nations or cultures including, without limitation, international law and 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.

Texas also has a proposed constitutional amendment (HJR 57):

A court of this state shall uphold the laws of the Constitution of the United States, this Constitution, federal laws, and laws of this state. A court of this state may not enforce, consider, or apply any religious or cultural law.

Arizona’s proposed constitutional amendment (SCR 1010 of 2011)  is a modified version of various 2010 bills (HB 2379, SB 1026, SB 1396) that would have made statutory changes only:

In making judicial decisions, the courts provided for in subsection A [i.e. Arizona’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the constitution of this state, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this state and rules adopted pursuant to the laws of this state and, if necessary, the laws of another state of the United States provided the law of the other state does not include international law.  The courts shall not look to the legal precepts of other nations or cultures.  The courts shall not consider international law.

South Dakota’s House is also considering adding the following to their constitution (HJR 1004)

No such court [i.e. South Dakota state court] may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.


Statutes


While Oklahoma was amending its constitution, Tennessee (HB 3768/SB 3470) *and Louisiana (HB 785) adopted statutes in 2010 that addressed the use of international law. That law* has been introduced almost verbatim in 2011 in Arkansas (SB 97), Kansas (HB 2087), Nebraska (LB 647), and Oklahoma (HB 1552). Interestingly, the Tennessee law and its variations in the other states are not specifically limited to state courts, only.

As used in this act, “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be 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 foreign 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 Constitution and the [name of state] Constitution.

*Update: there was a Louisiana version as well in 2010, HB 785 prefiled 3/18/2010 that was enacted.

“Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…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.

However, the Tennessee version was filed 2/2/2010 in the House and 1/28/2010 in the Senate. Therefore, I still think it valid to call it the Tennessee version.

Alaska (SB 88), Georgia (HB 45), Indiana (SJR 16), Mississippi (HB 301 and HB 525), South Carolina (SB 444) and Texas (HB 911) have variations on the Tennessee version, although only Mississippi HB 301 specifically mentions sharia law:

Alaska: A court, arbitrator, mediator, administrative agency, or enforcement agency may not apply a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution….In this section, “foreign law” means a law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States and the territories of the United States.

Georgia: As used in this Code section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal 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.

Indiana: A court may not enforce a law, rule, or legal code or system established and either used or applied in a jurisdiction outside the states of the United States, the District of Columbia, or the territories of the United States if doing so would violate a right guaranteed by this constitution or the Constitution of the United States.

Mississippi HB 301: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States including Sharia Law…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.

Mississippi HB 525: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…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.

Nebraska: For purposes of this section, foreign law, legal code, or system means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, an international organization or tribunal, and applied by such jurisdiction’s courts, administrative bodies, or other formal or informal tribunals…A court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska.

South Carolina: As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….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.

Texas: In this chapter, “foreign law” means a law, rule, or legal code of a jurisdiction outside of the states and territories of the United States…A ruling or decision of a court, arbitrator, or administrative adjudicator may not be based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.