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Oklahoma becomes third state this year to consider stripping its state Supreme Court of power of judicial review

February 2nd, 2012

First it was New Hampshire, then Tennessee, now Oklahoma’s legislature is considering removing the power of its state courts to strike down statutes as unconstitutional.

Under the recently introduced SJR 84, the state’s Supreme Court would be banned from reviewing any law enacted by the legislature. However, unlike the other states, this proposal does allow for an “Ad Hoc Court of Constitutional Review” to rule on. The amendment, in full, reads:

The Supreme Court shall not have the power of judicial review over the constitutionality of laws enacted in this state. An Ad Hoc Court of Constitutional Review shall be created to rule on the constitutionality of such enacted laws.

There is no indication of how this “Ad Hoc Court of Constitutional Review” would be formed, its membership, or any other details.

The amendment has been prefiled in the Senate awaiting the legislature’s return to session next week.

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Bans on court use of sharia/international law: 33 bills in 20 states to start 2012; review of all efforts since 2010

January 30th, 2012

2012 marks the third year in a row to see major legislative efforts to ban state courts from using sharia or international law. A recap:

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

  • Louisiana HB 785 & SB 460: “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.
  • Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
  • Tennessee HB 3768 & SB 3740: Defines “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…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

  • Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….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 or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

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Tennessee legislator withdraws bill to end judicial review in the state

January 25th, 2012

A bill introduced by the chair of the Tennessee Senate’s Judiciary Committee that would have ended judicial review of state laws has been withdrawn. According to the Tennessee Bar Association’s TBA Today, the Senator’s proposal “to control out-of-control courts”  faced opposition from both sides of the aisle. Other bills withdrawn by the Senator along with the ban on judicial review were ones that exempted all Tennessee-made goods from federal regulation under the commerce clause and required all presidential candidates prove they are natural born citizens.

 

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New Mexico bill would allow appeals from limited jurisdiction courts to go directly to Court of Appeals

January 24th, 2012

Like in many states, New Mexico provides that its primary general jurisdiction court (District Court) has appellate jurisdiction over the lower, limited jurisdiction courts in the state. And like in most states, New Mexico, has a provision that requires all appeals from the lower courts go to the District Court first (Art. VI, Sec. 1).

The district court shall have original jurisdiction in all matters and causes not excepted in this constitution, and such jurisdiction of special cases and proceedings as may be conferred by law, and appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts…

Other states, however, allow at least some appeals from limited jurisdiction courts to bypass the general jurisdiction court and go directly to an intermediate appellate court.

SJR 1 of 2012 looks to move New Mexico into the latter category, by modifying the above constitutional provision to allow for at least some cases to go from New Mexico’s Municipal, Magistrate, Probate, and/or Metropolitan Courts directly to the state’s Court of Appeal (and possibly the Supreme Court).

The district court shall have original jurisdiction in all matters and causes not excepted in this constitution, and such jurisdiction of special cases and proceedings as may be conferred by law, and appellate jurisdiction of cases originating in inferior courts as provided by law…

The bill is currently in the Senate Rules Committee.

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Missouri courts may be prohibited from enforcing federal law, court orders; may be required to use only “originalist” interpretations

January 17th, 2012

The U.S. Constitution provides in Article VI

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.

Known commonly as the supremacy clause, it is unique in that it specifically mentions state courts, or more specifically the judges thereof, by title. Missouri’s legislature, however, is on the verge of adopting a state constitutional amendment that would direct its state judges to disregard numerous federal laws.

Initially introduced in 2011 as HJR 26 and SJR 15 and approved by their respective committees, the proposal has been reintroduced as SJR 45 of 2012. If approved by Missouri voters, the amendment would:

  • Prohibit the Missouri judicial branch from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.
  • Prohibit Missouri courts from recognizing, enforcing, or acting in furtherance of any federal actions that
    • restrict the right to bear arms
    • legalize or fund abortions, or the destruction of any embryo from the zygote stage
    • require the sale or trade of carbon credits or impose a tax on the release of carbon emissions
    • involve certain health care issues
    • mandate the recognition of same sex marriage or civil unions
    • increase the punishment for a crime based on perpetrator’s thoughts or designate a crime as a hate crime
    • interpret the establishment clause as creating a wall of separation between church and state
    • restrict the right of parents or guardians to home school or enroll their children in a private or parochial school or restrict school curriculum
  • Requires Missouri courts interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. Further provides amendments to the U.S. Constitution shall be interpreted based on their language and the intent of the congressional sponsor and co-sponsors of the amendment
  • Grants standing to Missouri citizens to sue in state court to enforce the provisions of the amendment and that enforcement of the amendment applies to federal actions taken after the amendment is approved by the voters, federal actions specified in the amendment, and any federal action, regardless of when it occurred, that the Missouri Supreme Court determines to exceed the powers enumerated and delegated to the federal government by the U.S. Constitution.

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Tennessee bill would end judicial review of all statutes, but loophole might allow Court of Appeals & Court of Criminal Appeals to hear such cases

January 13th, 2012

A Tennessee legislator is attempting to do by simple statute what New Hampshire legislators are attempting to do by state constitutional amendment, namely, ending judicial review of state statutes.

Under SB 2348 as introduced, the Supreme Court, Circuit Courts, and Criminal Courts “shall have no jurisdiction to determine the constitutionality of a statute which has been properly enacted by the general assembly and become law in accordance with Article II, § 18 and Article III, § 18 of the Tennessee constitution.” A similar provision applies against the state’s Chancery Courts.

The bill is curious for two reasons.

First is the question of whether or not a mere statute can strip the courts of the power of judicial review (as noted, the New Hampshire parallel would be a state constitutional amendment).

The second is that while the state’s highest court (Supreme) and general jurisdiction trial courts (Circuit, Criminal, Chancery) are cited by name, the state’s intermediate appellate courts (Court of Appeals on the civil side and the Court of Criminal Appeals) are not.

For example, the change to the Supreme Court would be an amendment to Tennessee Code Annotated Section 16-3-201 which discusses the supreme court’s jurisdiction in general. Similarly cited are Section 16-10-101 (Circuit and Criminal Court – General Jurisdiction) and Section 4-5-225 (providing review of the validity or applicability of a statute lies in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute.)

Missing are any changes to the jurisdiction of the Court of Appeals (16-4-108) and the Court of Criminal Appeals (16-5-108).

In addition, absolutely no mention is made of the state’s other courts (General Sessions, Probate, Juvenile, and Municipal).

 

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New Hampshire: Constitutional amendment would prohibit all judicial review of legislation, allow legislature to determine constitutionality of its own acts

January 4th, 2012

Legislators often have a problem with courts striking down the laws they enact as unconstitutional. Several members of the New Hampshire House, however, believe they have struck on a solution: end judicial review of laws.

CACR 28 is a constitutional amendment that provides the legislature alone shall determine the constitutionality of legislative acts. It does permits the state supreme court to exercise judicial review as to the constitutionality of “judicial acts”.

To decide upon the legality of claims and conduct made in the course of determining cases in controversy between persons arising under laws previously established is a judicial act. The supreme court shall have final authority on the constitutionality of judicial acts. To make a new general rule of prospective effect for the regulation of new controversies for the general benefit and welfare of the state is a legislative act. The general court shall have final authority on the constitutionality of legislative acts.

This is not the first time such an effort has been attempted in the state, but it may be the best chance such a bill has had. When first introduced in 2005 (CACR 16) it failed 8-13 in committee and 67-259 in the full House. It did better when reintroduced in 2007 (CACR 2) failing 5-15 in committee but by only 104-208 in the full House.

A similar, but not identical effort was also lodged in 2003. CACR 11 of that year would have declared

Every act of the [legislature] enacted in accordance with the procedures set forth in this constitution and the rules of the senate and house of representatives shall be conclusively presumed to be constitutional as the expression of the will of the sovereign people of this state, and every court of this state shall enforce every such act faithfully in accordance with its terms and intent, and shall neither make any order nor establish any rule contrary thereto or in hindrance thereof.

That version failed 2-13 in committee and never made it to the floor.

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2011 Year in Review: Banning courts from using sharia law/international law

December 27th, 2011

For 2012 legislation, click here.

Perhaps no single issue drew more attention to Gavel to Gavel this year than coverage of the efforts to ban courts from using  sharia law and/or international law. Since the 2010 adoption of a sharia/international law ban by Oklahoma voters, the issue has become particularly active. However, that effort was struck down by Federal courts only a day or two after the election (Awad v. Ziriax). That may explain why all told, only one such bill was enacted in 2011, a watered down version (the original banned not only sharia law, but canon law, halacha and karma) in Arizona:

12-3101. Definition of foreign law
In this chapter, unless the context otherwise requires, “foreign law” means any law, rule or legal code or system other than the constitution, laws and ratified treaties of the United States and the territories of the United States, or the constitution and laws of this state.

12-3102. Application
A. This chapter applies only to actual violations of the constitutional rights of a person or actual conflict with the laws of this state caused by the application of the foreign law.
B. This chapter does not apply to a corporation, partnership or other form of business association.

12-3103. Prohibited enforcement of foreign 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 or conflict with the laws of the United States or of this state.

If some version of the 2010 Oklahoma constitutional amendment is upheld by the 10th Circuit Court of Appeals, expect to see several such laws in 2011. Even if the 10th Circuit ultimately finds against the Oklahoma version, some other iteration, one that like Arizona does not specify sharia by name, will almost certainly be on enacted or on various state ballots next year.

2011 bills below.

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Bans on court use of sharia/international law: Pennsylvania bill introduced

November 28th, 2011

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. » Read more: Bans on court use of sharia/international law: Pennsylvania bill introduced

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Video: New Hampshire House “repudiates” state supreme court advisory opinion

October 13th, 2011

Greetings Andrew Cohen readers!

As promised, here are video excerpts from the New Hampshire House floor activity on HR 13 on October 12 (all prior posts on subject found here). The video after the fold is the entire floor proceeding.

» Read more: Video: New Hampshire House “repudiates” state supreme court advisory opinion

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