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

This post has been updated. Click here and here.

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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.

Hawaii State of the Judiciary: “Justice is not something that should be rationed.”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Hawaii’s Legislature requested (SCR 1 of 2011) new Chief Justice Mark E. Recktenwald  deliver his State of the Judiciary Address on January 26. Chief Justice Recktenwald did so (full text here).

Highlights of the Chief Justice’s speech included:

Our core mission at the judiciary is to administer justice…But our role is not confined to deciding cases. Over the years, we have been given additional duties as well. We now play a role in addressing the problems that underlie those disputes, and in helping to alleviate their human impact…There is a common thread running through these broadened expectations. I believe it can be summed up as follows: our citizens want to be treated fairly and they want a justice system that works.

In the last two years, our general fund appropriation was reduced by $19.7 million, or more than 13%, while demand for our services has continued to increase….These reductions in our resources have had substantial negative effects throughout the judicial system. They have reduced, delayed, and in some cases, eliminated important services.

The time it typically takes to process an uncontested divorce has doubled…The number of pending civil cases in our district courts increased by almost 100% from FY2008 through FY2010…Not surprisingly, since the resources available to address that increased caseload have been reduced, the median age of pending civil cases in circuit court has increased by more than 40 percent.

Adequately funding the state court system is an investment in justice, and an investment in our community, that should not be compromised even during tough economic times.

Justice is not something that should be rationed. The costs of attempting to do so will be far higher in the long run, than any savings that can be realized now.

Across the judiciary, there is a real commitment to finding more efficient and effective ways to serve the public. The HOPE probation program, which is based on the simple premise of holding probationers immediately accountable when they use drugs or fail to report to their probation officer, has achieved remarkable results. Positive drug tests have been reduced by 83% among participants in HOPE probation, while recidivism has been cut in half.

Our other specialty court programs–such as mental health court, girls court, and juvenile drug court–continue to make great strides in addressing the needs of those specialized populations.

Our electronic case management system, called JIMS for short, has enabled us to address some long-standing, and seemingly intractable problems, such as delays in issuing bench warrants, and collecting traffic fines and assessments…Just this fall, we expanded JIMS to include filings in our appellate courts…In the years ahead we will bring electronic filing to the criminal courts, followed by the civil and then family courts.

It has become increasingly costly and time consuming to take a case to trial. Indeed, in FY 2010, more than 5,000 civil cases were filed statewide in the circuit courts, but only 14 civil cases were tried to a jury verdict.

Many of Hawaii’s low and moderate income families are unable to obtain the legal services that they need in the best of times, and the unmet need has become greater in these difficult economic conditions. The Access to Justice Hui concluded in 2007 that only about one in five low to moderate income Hawaii residents have their civil legal needs met…As a result of the recommendations of the Hui, the Hawaii Supreme Court formed the Access to Justice Commission in 2008…The challenges posed by access to justice illustrate a fundamental truth about the judiciary–in order to solve the many challenges we face, we must work collaboratively with other organizations and members of our community.

We are blessed with a strong volunteer program, which contributed 39,000 hours to the judiciary in the past fiscal year.

Although the judiciary must be completely independent and neutral when we decide cases, we must also engage the community in as many ways as possible to promote understanding of our constitution and our system of law. To further that goal, the supreme court has begun holding oral argument at different locations in the community, starting with Kapolei in December, and at the Richardson School of Law next month.

We know that there are many competing demands for our state’s scarce resources, and that we cannot reasonably seek a greater share of those resources without first ensuring that our own house is in order, and that we are using the resources we do have in the most effective and efficient way possible.

Utah State of the Judiciary: “state courts are the foundational institutions of our system of justice”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Utah Chief Justice Christine Durham delivered her State of the Judiciary Address on the opening day of the Utah Legislature on January 24.  There was apparently no formal resolution, only a motion at the appointed time for the Legislature to resolve itself into a Committee of the Whole for the purpose of hearing the address.

Highlights of the Chief Justice’s speech (full text here) included:

I would like to use my time today to say a few words about the context in which state courts in general are functioning, and then to focus on our situation in Utah. I would be remiss, however, if I did not begin by emphasizing the degree to which we in the judiciary understand and appreciate the history of collaboration and support between our branch and yours in recent years.

In the last several decades, the almost exclusive focus in this country on study of the federal courts, which began in the middle of the last century, has shifted. It is increasingly understood that the state courts are the foundational institutions of our system of justice…State courts decide where children will live after divorce and how much is due for their support, whether a tenant is evicted, whether a small business can collect its unpaid accounts, whether a property owner gets a zoning variance.

Courts are not perfect; they are human institutions subject to the frailties of all such institutions. But in our constitutional democracy Americans have placed in them our best hopes for preserving a system of justice and the rule of law.

I do not want today to talk about our budget; instead I want to talk with you about our management of the public’s resources…. Our view is that good government implies, and the public demands, that we organize ourselves efficiently, that we focus our resources on functions that directly benefit the public, that we take advantage of the best research, information and technology to change and adapt our system to best practices, that we measure our productivity, and that we hold ourselves accountable to these principles. We believe that we have done all of these things, that we are an example of good government.

We have in the past two to three years made the significant permanent cuts necessary to balance our budget, and we have identified a strategy to use what remains so as to achieve the greatest possible system efficiencies. In fact, we are in the process of making fundamental changes in almost every part of our court system.

We have a comprehensive set of performance measures that we use as a “dashboard” to indicate our speed, direction and productivity….We also did away with the archaic practice of compensating clerks based on simple longevity, and instead now pay them based on demonstrated competency and skill acquisition. This has enabled us to provide the same service to more court users with fewer people.

It would be extremely difficult, I think, to find any operation more paper intensive than courts; tens of millions of pieces of paper are handled multiple times by multiple people in Utah’s courts annually. This is about to change radically and rapidly as we move to what we are calling “e-everything.”…The electronic record project, amazing as it is, is only part of “e-everything.” The courts have already launched e-filing of civil cases, e-payment of fees, fines and restitution, e-documents, e-warrants and e-citations. All of these systems have been initiated statewide, so that even when a case is not filed electronically, its documents are being scanned for the creation of an electronic record.

The next area I wanted to mention has to do with reforms in the arena of civil litigation. The Supreme Court’s Advisory Committee on the Rules of Civil Procedure has been working for the past two years on a radical restructuring of the process and theory of discovery in civil lawsuits.

As we have traveled the state meeting with many of you in your districts, one topic that came up in every area is drug courts. Out of curiosity, by a show of hands, how many of you have attended a drug court or spoken at a drug court hearing or graduation? For those who haven’t done so, you have an open invitation to attend one at any time. I promise you that you will feel your time was well spent.

Our system for selecting judges provides our state with an outstanding judiciary. They are being relied upon to handle more and more cases, and are working hard not to let the additional work result in delay. Our judges and staff have responded in a way we can all be proud of. The major transitions in progress would be challenging in the best of times, and these are not the best of times. The complete transition will take several years, but we are well underway, with all the major components in place.

Last year I reported that the state of our judiciary was strong, but challenged. This year I would amend that assessment by reporting that we are responding to the challenge by relying on the strength of our people and on a willingness to critique and change how we conduct court business.

VA: Increase to District Court monetary jurisdiction advances

The Virginia General Assembly advanced several bills that would increase the monetary jurisdiction of its limited jurisdiction District Courts from $15,000 to $25,000. HB 1446 was already incorporated into HB 1590. It was HB 1590 that was approved by the House Committee for Courts of Justice last week. The full House adopted a committee amendment on January 24, putting it on the path towards adoption by that chamber as early as this week. On the Senate side, SB 774 was approved by the Senate Committee for Courts of Justice with an amendment on the 24th as well. That bill is not yet on the floor, having been referred to the Senate Finance committee instead.

If adopted, the $25,000 maximum for limited jurisdiction court would be similar to the limits in the states that border Virginia (the District of Columbia has no separate limited jurisdiction trial court).

Maryland District Court $30,000 (exclusive to $5,000)
Tennessee General Sessions Court $25,000 (exclusive up to $50)
Virginia District Court (current) $15,000 (exclusive)
North Carolina District Court $10,000 (exclusive)
West Virginia Magistrate Court $5,000 (exclusive up to $2,500)
Kentucky District Court $4,000 (exclusive)

Idaho State of the Judiciary: “the judiciary is still fulfilling its constitutional responsibilities to the people”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

In what may prove to unique among the State of the Judiciary addresses, Idaho Chief Justice Daniel T. Eismann delivered his speech to the Idaho House and Senate separately. On January 19, the Chief Justice spoke first to House members (no resolution, only an introduction to the House by the chair of the Judiciary, Rules, and Administration committee) and about an hour later to the Senate (again, no resolution, only a motion to escort the Chief Justice into the chamber).

Highlights of the Chief Justice’s speech(s), (full text here) included:

In spite of the challenges resulting from the economic downturn, the judiciary is still fulfilling its constitutional responsibilities to the people.

The emergency surcharge on infractions, misdemeanors, and felonies enacted last year has enabled the Judicial Branch of government to continue to fulfill its constitutional responsibilities. One of our judges did his part by receiving a traffic ticket the first day the surcharge went into effect.

One of the challenges in domestic violence cases is the victim being pressured to dismiss the case or refuse to testify. Domestic violence courts provide victims with early access to advocacy and services. We have seen a decrease in dismissed cases and a 20% increase in guilty pleas, with 87% of the offenders doing so.

The domestic violence courts are just one type of our problem-solving courts. We also have 56 drug and mental health courts throughout the state, which include DUI courts. The current prison population is significantly below the projection made several years ago, and I believe that our drug and mental health courts are partly responsible.

We will be proposing a modification to the statutory eligibility guidelines for drug and mental health courts to allow us to provide additional help for our returning veterans.

In July 2009, we implemented an expedited appellate process for [termination of parental rights and adoptions] cases, with the appeals going directly from the magistrate court to the Supreme Court. Now, it takes on average 126 days from the entry of judgment in the magistrate court to oral argument on appeal in the Supreme Court or Court of Appeals.

Last year, I wrote to various state agencies and nongovernmental entities offering to meet with them to discuss any suggestions, complaints, or other issues they may have with the judiciary, and I met with those who responded. I have also traveled to over half of the counties to meet with county officials seeking the same input…The primary issue raised by the counties was the cost of the criminal justice system, including prosecution, public defenders for indigent defendants, and county jails.

We have also seen an increased need for foreign language interpreters in the trial courts. In addition to providing due process for criminal defendants who are not proficient in the English language, the courts must also comply with federal and state statutory mandates applicable in both criminal and civil cases.

However, court assistance offices and online interactive forms are not an effective replacement for legal counsel in many domestic relations cases, especially those involving children. There is a need to provide assistance for many litigants in such cases who cannot afford an attorney. One possible solution would be to increase the cost of a marriage license by $20, which would generate about $280,000 a year that could be used to provide legal assistance in civil cases involving children and families.

As I mentioned last year, in the 1980’s you funded the statewide case management system known as ISTARS, which was the first system in the nation that included every trial court case filed in the state…ISTARS also identifies those people who owe more than $50 and sends that information electronically, along with identifying information, to the State Tax Commission. Last year, the Commission intercepted over $3.2 million dollars in income tax refunds which were used to make payments of restitution to crime victims, fines, and court costs that were past due in over 16,000 cases statewide

We are continually seeking ways to use technology to increase productivity and reduce costs. We intend to implement electronic filing of documents in trial courts so that attorneys and private citizens can file documents over the internet.

We have also seen an increased difficulty in attracting qualified candidates to apply for district judge positions. The last two district judge openings attracted only two qualified applicants, one for each position.

Part-time senior judges have played a critical role in enabling the judiciary to dispose of cases in a timely manner. Last year, the days worked by senior judges were the equivalent of almost nine judicial positions, which translates into significant savings to the citizens of Idaho and the general fund.

Nebraska State of the Judiciary: “The courts are not just another agency line item in the state’s budget”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Nebraska Chief Justice Michael Heavican delivered his State of the Judiciary Address to the unicameral Nebraska legislature on January 20. There was apparently no formal resolution, only a motion at the appointed time for a committee to escort the Chief Justice to the rostrum. (update: added link)

Highlights of the Chief Justice’s speech (full text here) included:

The Courts have a constitutional mandate to provide access to justice for all of Nebraska’s citizens. Of special concern are the needs of the elderly and the young who become wards of our county courts when they cannot protect themselves… We have a duty to those who need such protection to not let the very court processes designed to protect them become an opportunity for embezzlement or further abuse.

Children in the Courts

I spoke to you last year about one of these programs, the Nebraska Juvenile Service Delivery Project, which began as a pilot in Omaha in January 2009. The project is a collaborative effort with the Department of Health and Human Services and is designed to safely supervise court-adjudicated delinquent children in their homes rather than in in-patient treatment facilities.
The Court’s Office of Probation Administration is also focusing on truancy intervention programs in order to reduce the number of children entering the juvenile justice system due to habitual truancy.
We also continue to work to improve the court system with respect to abused and neglected children through partnerships with the Department of Health and Human Services and the Department of Education.

Technology Advances

In past years I have spoken to you about increasing the use of technology in the courts to improve productivity. I am pleased to report that our electronic payment system collected over $5 million in traffic fines in 2010, as well as over $2 million in other costs and fines. In addition, electronic filing is gaining momentum as lawyers become more acclimated to the use of technology. At this time over 50% of our new civil filings in county court systems statewide are made electronically.
In the past I have also spoken to you about the growing demand for interpreters in our courts and the consequential need for budget increases to compensate for those interpreter demands. Without going into detail, by using technology to provide long-distance interpreter services, where appropriate our courts have limited the need for ever-larger budget increases for interpreters.
Technological advances are also allowing us to improve access to the courts for those who may not be able to afford legal services.
We have also begun a cooperative effort with the Nebraska Library Commission. Our Administrative Office was asked to serve as a key project partner with the Library Commission in a multi-million dollar grant project with the Bill and Melinda Gates Foundation.

Long-Range Planning
I frequently tell people that technology is the future of the courts. That, however, is an oversimplification. Technology is the future of the courts, but it must be coupled with long-range planning in anticipation of the court system’s future need for resources.

The Court’s Budget
Having updated this body with respect to the Court’s use of technology to improve efficiency, as well as the Court’s use of long-range planning, I have reached an appropriate point in this presentation to discuss funding for the courts. The courts are not just another agency line item in the State’s budget. Our courts are a constitutional branch of government, co-equal with the Legislative Branch and the Executive Branch.
Over 95% of the Court’s general fund budget is allocated for those employee expenses. Any cut in the Court’s budget, whether it is 10% or 5% or 1%, means operating with fewer employees.
No judges or court employees will receive a cost of living increase next year. We will continue to not fill or delay filling vacancies. Depending on the extent of cuts in our budget, furloughs are likely.