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.

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).

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.

NM: Two pieces of legislation to restrict or end court e-filing

Cross posted at the Court Technology Bulletin blog

Numerous state legislatures have been exceptionally active in promoting or advancing bills to permit or require e-filing in state courts. New Mexico’s Senate, however, may be the first state legislative chamber be to actively working against such efforts.

SB 328 repeals the judiciary’s “electronic services fund” and transfers the balance to the state’s general fund. According to the fiscal impact note prepared by the Legislative Finance Committee, “SB 328 would effectively end the ability of courts to implement efiling in New Mexico.”

The same senator that authored SB 328 has also introduced this week SB 388 which declares the state’s courts “shall not charge an electronic services fee to persons who choose not to use electronic services and shall allow persons to file and access documents without using electronic services.”

SB 328 is in the Senate Judiciary Committee, while SB 388 is in the Senate Public Affairs Committee.

New/old effort to impeach New Hampshire Marital Master

Last year I noted the effort in New Hampshire to remove Marital Master Philip Cross (details here) via a bill of address. Such bills allow, in cases where there “shall not be a cause which is a sufficient ground for impeachment”, for a majority of both houses of the legislature to ask the state’s governor and executive council to remove a judge or judicial officer. The bill of address method was used to try and remove Cross, another martial master, and a judge last year. Those efforts failed, however Cross’ was the “closest” vote (6-3 in committee against recommending removal; 170-127 against in the full House).

Citing testimony from the 2010 bill of address hearings, HR 7 of 2011 has been introduced directing the House Judiciary Committee to investigate Cross “and/or any justice of the New Hampshire superior court” for impeachment. Under the state constitution, the committee would have to find instances of “bribery, corruption, malpractice or maladministration in office” for impeachment to proceed.

MT: Prosecuting judges for enforcing federal laws and court decisions

Article VI of the U.S. Constitution provides “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This restriction, however, has not prohibited several bills in the Montana legislature to provide that if a state judge is “bound thereby” he or she will be prosecuted.

HB 381makes it a misdemeanor to enforce any federal firearms law “that conflicts with the provisions of Title 30, chapter 20, part 1 [of the Montana Code]”. That provision, the Montana Firearms Freedom Act was enacted in 2009 and declares, in relevant part:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

HB 443 makes a similar statement with respect to interstate commerce as it relates to food (possibly in an effort to directly challenge Wickard v. Filburn, in which the U.S. Supreme Court held a farmer raising wheat on his own farm to feed the chickens on his farm was engaged in interstate commerce). The bill declares as a violation of the U.S. Constitution:

any federal regulation, rule, or policy promulgated after [the effective date of this act], and any executive order issued by the president of the United States after [the effective date of this act] that seeks, purports, or is otherwise intended to regulate, in any way, the manufacture, production, processing, packing, exposure, offer, possession, and holding of food for sale, the sale, dispensing, and giving of food, and the supplying or applying of food intended to remain in this state and not intended to enter interstate commerce

While the descriptor portion of the law is limited to federal “regulation, rule, policy…[or]…executive order”, the punishment provisions are more expansive: any federal OR state judge that attempts to enforce or attempt to enforce an act, order, law, executive order, court decision, or regulation of the United States government in violation of the above is guilty of a felony.

SB 150 creates the civil tort and crime of “Official oppression” to include “arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or deni[al] or imped[ing] another in the exercise or enjoyment of any right, privilege, power, or immunity”. The bill permits recovery of damages from judges individually and personally, with no indemnification from the government, unless the judge functioned in a “normal and usual judicial capacity” and in includes judges and other officials “of the federal government or of another nation or an organization of nations.”