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Bans on court use of sharia/international law: Killed in Alabama, legislatively approved in Kansas, withdrawn in New Jersey, sent to study committee in New Hampshire

May 14th, 2012

With most legislatures now out of session, the last month saw little activity on legislation dealing with bans on court use of sharia/international law, but what there was was all in the last week:

May 7: Kansas’ House approves unanimously (120-0)  SB 79 as amended by the House, a statute to ban the use of foreign or international law.

May 8: New Hampshire’s Senate Judiciary Committee recommended referring that state’s version (HB 1422) to an interim summer study.

May 9: Alabama’s Senate voted to indefinitely postpone and effective kill proposed constitutional amendment SB 84.

May 10: New Jersey’s AB 919, which the author had previously noted would be withdrawn, was formally removed from the legislature.

May 11: Kansas’ Senate approved SB 79 on a 33-3 vote. Proponents went out of their way during the debate to note the word “sharia” was not included in the bill, however news reports indicate that sharia was the focus of the bill when introduced and was specifically mentioned during debate.

Full roster of 41 bills introduced and their statuses after the jump.
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Missouri and other state legislatures consider compelling state courts to ignore Affordable Care Act, prosecute judges and federal officials who enforce

May 11th, 2012

There’s been a great deal of state legislative activity in the last 2 years to voice opposition to the Patient Protection and Affordable Care Act. While the federal courts, and currently the U.S. Supreme Court, have contended with the constitutionality of the subject, state legislatures have issued resolutions in opposition and/or adopted laws prohibiting state agencies from participating in implementation.

Several states, most notably Missouri, have taken this a step further and considered prosecuting in state court federal and state officials for implementing the law.  Moreover, the bills would direct state courts to ignore its provisions of the federal law. The one that has advanced the furthest is Missouri’s HB 1534 of 2012. It was approved by the full House (108-44) and apparently by a Senate committee and could be voted on shortly by the full Senate.

HB 1534:

  1. declares the Patient Protection and Affordable Care Act void in Missouri
  2. provides for criminal prosecution in state court for federal officials who enforce the law
  3. provides for criminal prosecution in state court for any “public officer or employee”, including the state’s judges, that would enforce the statute
  4. provides for a civil action against state or federal officials that attempt to enforce the law

A full list of all such bills below the jump

» Read more: Missouri and other state legislatures consider compelling state courts to ignore Affordable Care Act, prosecute judges and federal officials who enforce

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Alabama Senate and Delaware House consider asking their supreme courts for advisory opinions

May 9th, 2012

As I noted last year in Gavel to Gavel publication, legislatures in 10 states are permitted to ask their supreme court for an advisory opinion on a given legal issue or particular bill. Two states appear poised to exercise that option this year.

The first is Alabama’s SR 86 and asks specifically as to the constitutionality of a piece of legislation being considered (SB 563 of 2012):

WHEREAS, there is now pending in the Legislature Senate Bill 563 which provides and directs the appropriation and distribution of funds received by Jackson County as its portion of the in-lieu-of tax payments received by the State of Alabama from the Tennessee Valley Authority and which specifically provides in part for a portion of the fund to be appropriated to the Jackson County Discretionary Board consisting of the Chair of the Jackson County Commission, the senator, and two representatives, respectively, that are legislators representing all or part of Jackson County…

The resolution asks the court whether the bill violates the state’s constitution in any one of three ways: separation of powers (Article III, Sections 42 and 43),  payment of public funds (Article IV, Section 72), or enactment of local laws (Article IV, Section 105).

The resolution was reported out of the Senate Rules Committee yesterday. Under state law, the House or Senate may separately ask for an advisory opinion, thus only Senate approval is required here.

Delaware’s HCR 42 deals not with a particular piece of current legislation but on a legal situation. According to the resolution, the sheriff of Sussex County is claiming the power to make arrests as “a Conservator of the Peace.” The Office of Attorney General has twice issued opinions concluding sheriffs may not make arrests, but adding most recently that the legislature should clear the matter up. HCR 42 poses the question of “whether or not the county sheriffs and their deputies have the authority to arrest under any provision in the Constitution of this State.”

Unlike in Alabama, Delaware’s statutes require both House and Senate approval of the resolution before it may be submitted to the Supreme Court.

 

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Missouri activity: changes to merit selection pass House committee, bill prohibiting state courts from enforcing Affordable Care Act up for hearing

May 8th, 2012

Yesterday, the Missouri House Special Standing Committee on Judicial Reform approved SJR 51. As previously noted, this constitutional amendment would:

  • Increase the number of individuals that the Appellate Judicial Commission nominates for vacancies in the Supreme Court or Court of Appeals from three to four
  • Replace the Supreme Court member who currently serves as commission chair with additional person chosen by Governor
  • Allows Supreme Court to appoint a former Supreme Court or Court of Appeals judge to serve as a nonvoting member of the commission if the former judge has not been removed for cause or failed to be retained in a retention election
  • Provides members appointed by the Governor no longer must be non-bar members
  • Provides appointed members will serve terms of four years, staggered so that a Governor will appoint two when taking office and two during the middle of his or her term.

That bill is now before the House Rules Committee, which next meets today (May 8th) at 4 PM.

The other piece of activity of note is HB 1534. This bill would prohibit judges and other public officers/employees from enforcing federal Patient Protection and Affordable Care Act. It further declares any U.S. government employee who attempts to enforce law is guilty of class A misdemeanor. It was approved by the full House April 19 and is set for a hearing before the Senate General Laws Committee on tomorrow May 9.

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Arizona Governor vetoes increase to small claims jursidiction limit; override seems unlikely

April 18th, 2012

In many states, efforts to increase small claims limits take years of introduction and re-introduction before actual passage. Arizona’s effort (SB 1310) took only one year to be adopted, but has now run smack into a gubernatorial veto.

SB 1310 would have increased the small claims of justice of the peace courts from $2,500 to $10,000. It was amended down to $5,000 on the Senate floor. The bill’s author noted in committee the history of the proposal: a constituent had sued in small claims court and when the defendant company appeared it did so both with an attorney and a counter-claim large enough to force it into the regular justice of the peace court, requiring that the constituent hire an attorney.

Governor Jan Brewer issued her veto on April 4. In her veto letter, Governor Brewer noted the case, but also noted “Arizona Revised Statute 22-504 allows either party to object to a small claims proceeding and transfer the case to justice court to preserve the right to appeal and there is no monetary threshold a party must meet  to transfer the case. This legislation does not solve the stated concern and is contrary to the purpose of the small claims division.”

The bill is now back in the Senate, but it is unclear if there are the votes for an override. The Senate passed the bill 20-10, just barely the 2/3rds (20 out of 30 senators) needed to override. The House passed it 34-22 (4 not voting), less than the 40 (out of 60) needed for an override there.

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Missouri looks to compel state judges use original intent interpretation of federal constitution, nullify federal laws & court decisions

April 16th, 2012

Just a day after the Chief Justice of the Iowa Supreme Court published an op-ed arguing in favor of a “living constitution”, Missouri’s Senate may be voting to explicitly enshrine in that state’s constitution a rejection of the concept.

SJR 45 is a lengthy amendment that would, among other things:

  • Prohibits the Missouri legislative, executive, and judicial branches of government from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.
  • Provides the state’s courts shall not recognize, enforce, or act 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 state courts interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. 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.
  • “Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a “living, breathing document”, or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government.”
  • Declares that Missouri citizens have standing to enforce the provisions of the amendment in state court.
  • Provides enforcement of the amendment applies to:
    • federal actions taken after the amendment is approved by the voters
    • federal actions specified in the amendment
    • any federal action, regardless of when it occurred, that the general assembly or the Missouri Supreme Court determines to exceed the powers enumerated and delegated to the federal government by the U.S. Constitution.

This is the third year in a row such a bill has been introduced.

In 2010, HJR 88 was approved by the Missouri House and made it to the Senate floor before dying due to adjournment.

In 2011, HJR 26 made it out of committee and died on the House floor, while the similar SJR 15 met a similar fate on the Senate side.

The 2012 version was approved by the Senate General Laws Committee 4/3/12 and may be voted on as early as today (April 16).

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Bans on court use of sharia/international law: Activity in Missouri, Kansas tries to tie to Citizens United

April 9th, 2012

This post has been updated, click here.

The last several weeks in the examination bans on court use of sharia/international law have seen two notable pieces of activity.

The first was in Kansas. As noted in the last update SB 79, as originally introduced, had nothing to do with international law or sharia. The House changed the bill entirely, substituting the language of HB 2087 for the original bill. When brought to the full House, a further amendment was offered to, in effect, declare the U.S. Supreme Court’s decision in Citizens United void.

Except as expressly provided by law, no corporation shall be deemed to hold the same rights and privileges possessed by natural persons.

That amendment failed 46-74. The House substitute language was approved March 28 and sent to a House/Senate conference committee.

The second piece of activity was in Missouri. There, HB 1512 (the “Civil Liberties Defense Act”) was approved by full House on March 27. A similar Senate bill was approved in committee in February and could be taken up for a Senate floor vote as early as tomorrow (April 10).

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: Activity in Missouri, Kansas tries to tie to Citizens United

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Louisiana: Constitutional amendment up for committee debate would require courts use “strict scrutiny” when it comes to firearms cases

April 2nd, 2012

Those familiar with U.S. Supreme Court decisions will find the phrase “strict scrutiny” familiar. In short, strict scrutiny requires the court to examine any law or governmental act and determine

  • it meets a compelling governmental interest
  • it is narrowly tailored to achieve that goal or interest, and
  • it is the least restrictive means for achieving that interest

The concept and language is one derived and devised by the courts: a review of existing state statutes and constitutions finds the phrase seems to appear in only 3 places*:

  • Florida Stat. § 163.3215 (Regarding land use, “The standard of review applied by the special master in determining whether a proposed development order is consistent with the comprehensive plan shall be strict scrutiny in accordance with Florida law.”)
  • Louisiana R.S. 12:130.1 (Regarding shareholder’s rights, “Any transaction that is executed during the safeguard period which involves the assets of a safeguarded entity shall be subject to judicial review under the standard of strict scrutiny.”)
  • New Hampshire RSA 676:4 (“Jurisdiction of the courts to review procedural aspects of planning board decisions and actions shall be limited to consideration of compliance with applicable provisions of the constitution, statutes and regulations. The procedural requirements specified in this section are intended to provide fair and reasonable treatment for all parties and persons. The planning board’s procedures shall not be subjected to strict scrutiny for technical compliance.”)

*Update 4/2/12 5:56 – While “strict scrutiny” appears only in 3 statutes, a reader notes that the concept exists in various state laws. My point with the above was to note the lack of usage of the phrase. I’ve bolded to make my point clearer.

Louisiana may, however, add a fourth reference to strict scrutiny if its voters approve SB 303, a constitutional amendment which would modify the state’s version of the Second Amendment to the U.S. Constitution.

The provision currently reads:

§11. Right to Keep and Bear Arms

Section 11. The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

SB 303 would change it to:

§11. Right to Acquire, Keep, Possess, Transport, Carry, Transfer, and Bear Arms

Section 11. The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

The amendment is set for a hearing tomorrow (April 3) before Louisiana Senate’s Judiciary C Committee.

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In shocking turn of events, Kansas House narrowly rejects constitutional amendment to strip courts of jurisdiction on funding issues

March 28th, 2012

A plan to strip the courts of jurisdiction on funding issues that passed a procedural vote in Kansas’ House with 91 votes has just been narrowly rejected.

As previously mentioned, under HCR 5006 the judicial branch is prohibited from directing the legislative branch to make any appropriation of money or to redirect an appropriation or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law. A provision that read “or as may be required by the constitution of the United States” was deleted in committee.

The Kansas constitution requires 2/3rds of the House and Senate approve any constitutional amendments; in the 125 member House that means 83 Yes votes. HCR 5006 received only 79 Yes votes to 44 No with 2 members absent or not voting. This was a huge turn around from a day before, when the measure was approved by the committee of the whole 91 to 31.

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Kansas House committee removes provision requiring state courts order funding as required by the U.S. Constitution

March 22nd, 2012

Yesterday I noted with respect to a Minnesota bill that it was common for legislators to propose constitutional amendments to prohibit state courts from ordering funds to be expended. Late last week Kansas’ House Judiciary Committee advanced just such a bill, but with an interesting change.

HCR 5006, a state constitutional amendment introduced in January 2011 read

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law or as may be required by the constitution of the United States.

It was amended in February 2012 to add a single phrase (in bold)

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect an appropriation or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law or as may be required by the constitution of the United States.

The bill lay dormant for the year until March 16 when the House Judiciary Committee took up the bill again, this time removing a provision (strikeout).

The executive and judicial branches shall have no authority to direct the legislative branch to make any appropriation of money or to redirect an appropriation or limit in any fashion an appropriation already made by law, except as the legislative branch may provide by law or as may be required by the constitution of the United States.

The bill now advances to the House floor where it is on the calendar for March 26.

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