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Time running out for judiciary-related initiatives in Colorado and Oregon

May 15th, 2012

There are already 9 judiciary-related items on the 2012 ballots this year (and a 10th was stricken). With most legislatures now out, the only remaining way to get things on the ballot is via initiative or referendum, and there there remains scant little time for that.

Presently, there appears to be only two items circulating and neither of them appear to be gathering signatures.

Colorado Proposed Initiative 2011-11 (DEADLINE: August 6) Changes term of office for the justices of the Colorado Supreme Court from ten years to two years. Prohibits a justice from serving as chief justice for more than one term. Prohibits a justice who is not retained as the result of a retention election, resigns from the Court, is removed from the Court, or fails to file a declaration under section 25 of article VI of the Colorado constitution from being reappointed to the Court for a period of ten years.

Oregon Proposal Initiative SP-2012-004 (DEADLINE: July 6) Prohibits labeling judge as “incumbent” on ballot if required study shows advantage to incumbent candidates.

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Bans on court use of sharia/international law: Killed in Alabama, legislatively approved in Kansas, withdrawn in New Jersey, sent to study committee in New Hampshire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May 10: New Jersey’s AB 919, which the author had previously noted would be withdrawn, was formally removed from the legislature.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.
» Read more: 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

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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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Posted in Jurisdiction, Other, Special Edition

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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Hawaii legislature improperly approved constitutional amendment allowing CJ to call retired judges back into service, corrects error

May 2nd, 2012

I mentioned back in early April Hawaii’s SB 650, a constitutional amendment that would allow the state’s chief justice to call retired judges and justices back into service after retirement.

The bill had met with some opposition. The original bill passed by the Senate 25-0 on March 6 allowed judges to be recalled to serve as “mentors”. That language was amended out by the House, which then went on to approve the modified version on a voice vote. The Senate approved the House change on April 12 and gave what should have been final approval, again unanimously, on April 13.

The problem appears to have been with the House passage. Under the state’s constitution the final language was to have been sent to the governor 10 days prior to passage. The legislature sent that notice on April 10, thus the April 13 vote was premature. The Senate on April 20, figuring out the mistake, adopted SCR 176, requesting the Governor send the amendment back.

WHEREAS, article XVII, section 3, of the Hawaii State Constitution requires that the Legislature give the Governor at least ten days’ written notice of the final form of the proposed amendment prior to the final reading of the proposed amendment to the Hawaii State Constitution; and

WHEREAS, notice of the final form of Senate Bill No. 650, H.D. 1, was transmitted to the Governor on April 10, 2012, and the ten days pursuant to article XVII, section 3, of the Hawaii State Constitution has not yet expired; and

…

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2012, the House of Representatives concurring, that the Governor of the State of Hawaii is requested to return Senate Bill No. 650, H.D. 1, to the Senate for proper correction…

The House approved the resolution as well and the Governor returned SB 650 on April 24.

The Senate then readopted the amendment, again unanimously, May 1. The House must now re-pass the amendment for it to go onto the ballot.

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Louisiana Senate committee approves bill to create new crime of filing false liens on judges, court staff

May 1st, 2012

States have in the past several years been grappling with the issue of litigants and others filing false liens on judges and court staff. Some states, like Arkansas in 2011, increased the penalties in existing law. Others, such as Louisiana, are considering creating a new crime that would specifically contend with instances where the false documents are filed against judges, court staff, and law enforcement.
The Louisiana bill, HB 616, was previously approved by the House. The video below is from the Senate Judiciary C committee’s hearing on the matter. It was approved on a voice vote by the committee.

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California: Bill would prohibit the state supreme court from sitting outside Sacramento

April 20th, 2012

Just after Hurricanes Katrina and Rita slammed into the southern U.S. I wrote a piece on a matter which had confronted the Louisiana Supreme Court: could it move and sit in a location other than New Orleans? Some state statutes do appear to restrict where the state’s appellate courts may sit, right down to which building, but California was not among them.

That may change if AB 2501 is adopted. The bill requires all state agencies have their primary administrative office on Sacramento “to the extent practicable”.

The Supreme Court, however, “shall only hear cases in the Sacramento metropolitan area” (defined as “the greater metropolitan Sacramento area, including the City of Sacramento, the County of Sacramento, and the eastern part of Yolo County”).

Even if enacted the bill gives the Supreme Court until 2025 to make the necessary adjustments.

AB 2501 is currently in the Assembly Business, Professions and Consumer Protection Committee.

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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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