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Bans on court use of sharia/international law: Killed in Alabama, legislatively approved in Kansas, withdrawn in New Jersey, sent to study committee in New Hampshire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May 10: New Jersey’s AB 919, which the author had previously noted would be withdrawn, was formally removed from the legislature.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» Read more: Bans on court use of sharia/international law: Killed in Alabama, legislatively approved in Kansas, withdrawn in New Jersey, sent to study committee in New Hampshire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

April 11th, 2012

Yesterday I looked at efforts to get rid of or modify existing merit selection systems in the 30 states that have them for initial and/or interim judicial vacancies. Today, I’ll be looking at the efforts to get them into places/states that do not already have them created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Minnesota HB 1666 / SB 1465 – These constitutional amendments would establish a merit selection system with retention elections for judges. Terms of office would be extended from six to eight years. Additionally, a judicial performance commission would be formed, which must issue in the judge’s retention election year a retention evaluation of “well-qualified,” “qualified,” or “unqualified”. There was a hearing on the House bill in May 2011 and they were carried over into the 2012 session.

This is the 5th year in a row such a bill has been considered: prior iterations made it out of committee but never advanced beyond their chambers of origin. The closet was SF 3129 of 2008 which would have taken the existing merit selection system in place to temporarily fill interim vacancies in District Court and applied it to the appellate courts. It passed 55-12 in the Senate but failed to move in the House.

North Carolina HB 325 and SB 458 – There were several hearings in 2011 on the prospect of creating some sort of merit selection system in North Carolina, but instead of using retention elections providing that the person chosen and the person not selected by the governor would face off in an election after. For a review of the hearings, check out the coverage from Gavel Grab. In terms of actual legislation the two bills were introduced in 2011 and carried over into 2012.

Pennsylvania HB 1815 / SB 843 – These constitutional amendments and their corresponding statutory changes (HB 1816 / SB 842) would create a merit selection system with Senate confirmation for the state’s 3 appellate courts. The constitutional amendments also broadly describe the composition of the merit selection commission. A hearing was conducted in November 2011 and other in March 2012.

Wisconsin SJR 42 – Submitted in September 2011 for the 2012 session, the constitutional amendment, like the Minnesota example, gave no specificity as to membership of the commission that would submit names to fill appellate court vacancies to the governor. There were no hearings on the bill and it died when the legislature adjourned.

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Merit selection: comprehensive state-by-state review of efforts to modify or end existing systems

April 10th, 2012

The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.

Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.

Alabama – Circuit Court in select counties [interim only]: No activity

Alaska – Supreme Court, Court of Appeals, Superior Court: No activity

Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.

Colorado – Supreme Court, Court of Appeals, District Court: No activity

Connecticut – Supreme Court, Appellate Court, Superior Court: No activity

Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).

Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.

Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity

Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.

Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.

Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).

Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.

Montana – Supreme Court and District Court [interim only]-: Legislature not in session.

Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity

Nevada – Supreme Court and District Court [interim only]: Legislature not in session.

New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.

New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.

North Dakota – Supreme Court and District Court: Legislature out of session

Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.

Rhode Island – Supreme Court, Superior Court, Family Court, District Court : No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.

South Dakota – Supreme Court, Circuit Court [Interim only]: No activity

Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

HB 1017 / SB 82 Retains merit selection, but makes judicial nomination commission recommendations advisory; allows governor to ignore recommendations.

HB 1702 / SB 646 Requires judges selected via merit selection system receive 75% yes in retention election.

HB 3452 / SB 2794 Retains merit selection, but alters nomination process and adds confirmation.

HB 3691 / SB 3652 Requires House and Senate speakers appoint all nine members of the judicial evaluation commission since the judicial council no longer exists.

Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity

Vermont – Supreme Court, Superior Court, District Court: No activity

West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity

Wyoming – Supreme Court, District Court, Circuit Court: No activity

 

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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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Bans on court use of sharia/international law: Bills withdrawn in Minnesota and New Jersey, Kansas House attaches ban to unrelated bill

March 20th, 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 something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright.

Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV:

Before the bill was even introduced, the author, Republican Dave Thompson pulled it. “It was never my intent to introduce legislation that was being targeted to any one group,” said Thompson.

The second bill was New Jersey’s AB 919 (introduced in the 2010/2011 session as AB 3496). Introduced January 10 of this year, the bill was withdrawn last week. The NJ Assembly Republicans blog on March 13 quotes the bill’s author (GOP Assemblywoman Holly Schepisi):

In the climate of what has been transpiring in the Muslim community in New Jersey, they were concerned it would further, in their view, portray Muslims in a negative light. After sitting and listening to their concerns, I agreed to withdraw it.

The legislature’s website, however, does not yet show the bill has having been formally withdrawn. (No direct link to bill status page, follow this link and search for bill AB 919).

The other activity was in Kansas. SB 79, as originally introduced, had nothing to do with international law or sharia. Instead, it made a modification to an existing state program that helped courts recover fees/fines owed. That bill passed the Senate unanimously.

Yesterday (March 19) the House changed the bill entirely. The House substitute for SB 79 simply replicates the language of HB 2087, which the House had passed in 2011 and the Senate had declined to advance.

Readers may recognize this tactic on the part of the Kansas House. When the House approved bills to end merit selection for the state’s Court of Appeals, bills the Senate did not take up, the House started to add provisions to unrelated bills (see here, here, and here). The difference here is that rather than tacking on the new provision to the existing bill, this effort simply replaces the text of the bill entirely.

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: Bills withdrawn in Minnesota and New Jersey, Kansas House attaches ban to unrelated bill

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Bans on court use of sharia/international law: South Dakota governor signs, dead in Florida, failing to advance in any other states

March 13th, 2012

This post has been updated. Click here.
If February was the active month for legislative bans on court use of sharia/international law, March may turn out to be the quiet month.

Yesterday (March 12) South Dakota’s governor signed into law HB 1253 which reads “No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.”

The other activity, or lack thereof, was in Florida where that state’s multiple efforts failed to advance before that legislature adjourned. (Missouri’s Rules Committee passage was more procedural than substantive).

The possibility of any other state advancing such bans is diminishing; already many proposals have failed to meet internal legislative deadlines to advance out of their committees or chambers of origin (so-called “crossover” days).

Full roster of 39 40 bills introduced and their statuses after the jump.

Update 3/13/12 10:40 a.m.: Minnesota SB 2281 added
» Read more: Bans on court use of sharia/international law: South Dakota governor signs, dead in Florida, failing to advance in any other states

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Bans on court use of sharia/international law: On South Dakota governor’s desk; advancing in legislative committees in Alabama, Florida, Georgia, Missouri, New Hampshire

March 2nd, 2012

This post has been updated. Click here.

Like the two weeks before it, these last two weeks since my last update in this area have been particularly busy. Of note:

  • Three new bills introduced: Georgia SR 926 (Constitutional Amendment), Iowa SB 2158 (the Senate version of HB 575 introduced last year and still pending), and Mississippi HB 698. The Mississippi bill is interesting; despite the Court of Appeals for the Tenth Circuit decision in January 2012 that overturned a similar Oklahoma initiative because it cited sharia by name, HB 698 specifically cites to sharia as well in its definition of “foreign law” the use of which is prohibited in the state’s courts by the bill.
  • South Dakota’s heavily modified version (“No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.”) was approved by both chambers and is now on the desk of the state’s Governor.
  • Bans in Alabama, Florida, Georgia, Missouri, and New Hampshire met with committee approval, while Florida HB 1209 was approved by the full House yesterday (March 1).

Full roster of 39 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: On South Dakota governor’s desk; advancing in legislative committees in Alabama, Florida, Georgia, Missouri, New Hampshire

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Bans on court use of sharia/international law: Introduced in Mississippi and Kentucky, advancing in Florida & South Dakota, dying in Virginia

February 13th, 2012

This post has been updated. Click here.

The two weeks since my last update in this area have been particularly busy. Of note:

  • Mississippi’s introduction of HB 2 and Kentucky’s HB 386 brings to 22 (versus 24 states in 2011) the number of states to have a bill banning the use of international law/sharia by state courts in 2012
  • South Dakota has heavily modified their bills and achieved committee approval with a single sentence statute: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.”
  • Virginia’s bans, while initially appearing to be advancing, were deferred into the 2013 legislative session.

Full roster of 36 bills introduced and their statuses after the jump.

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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

This post has been updated. Click here.

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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