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 by Bill Raftery

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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Posted in Jurisdiction, Other, Special Edition

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Showdown in California Assembly over Judicial Council’s budgetary power over state’s courts set for next week

January 27th, 2012 by Bill Raftery

Angst and anger at the California Administrative Office of the Courts and the constitutionally-established Judicial Council will be coming to a head next week in the state’s Assembly. Under AB 1208, much of the Judicial Council’s power over local court budgeting and policy would be curtailed or ended with local courts given a veto over budget issues. According to an analysis written by the Assembly, AB 1208

  1. Deletes the existing provision of law that states that the Judicial Council shall retain the ultimate responsibility to adopt a budget and allocate funding for the trial courts and perform specified activities that best assure their ability to carry out their functions, promote implementation of statewide policies, and promote the immediate implementation of efficiencies and cost saving measures in court operations, in order to guarantee equal access to the courts.
  2. Deletes existing provisions which empower the Judicial Council to authorize a trial court to carry unexpended funds over from one fiscal year to the next, and instead provides that unexpended funds shall be the funds of that trial court, which may carry those unexpended funds over from one fiscal year to the next. Prohibits those funds from being reallocated or redirected without the consent of the management of the trial court.
  3. Requires the Judicial Council, or its designee, to allocate 100% of the funds appropriated for support of trial court operations according to each court’s share of statewide operational funding. Provides that all funds, once allocated, are funds of the trial court, and authorizes courts to transfer funds between functions, line items or programs as directed by management of the trial court.
  4. Deletes existing provisions relating to the manner in which the Judicial Council allocates funding for trial court operations, and instead requires that the amount allocated to each trial court from the amount appropriated for trial court operations be equal to the pro rata share of the prior fiscal year’s adjusted base budget, except as provided.
  5. Requires the Legislature, based on the information submitted in the Governor’s proposed budget, and prior to the allocation of funds to each local trial court, to specify, in each annual Budget Act, the funding amounts to be allocated for programs of statewide concern from the total funds appropriated for trial court operations by the Legislature.
  6. Prohibits the Judicial Council, or its designee, from withholding or expending any portion of the total funds appropriated for trial court operations by the Legislature for any statewide information technology or administrative infrastructure program that was not identified in the annual Budget Act, unless the Judicial Council, or its designee, first obtains the written approval of 66 2/3% of a proportional representation of all local trial courts as determined by the number of judges in each court.

Introduced in 2011, the bill has been stalled since May of last year, however time is running out. The state’s constitution (Art. IV, Sec. 10(c)) requires bills introduced in the first year of a legislative session be adopted by its originating house by January 31 of the second year. This is confirmed by the Assembly’s own deadline calendar as being Tuesday of next week.

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Posted in Rule Making Authority, Salary & Budget, Structure Changes

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West Virginia considers creating an intermediate appellate court, Virginia considers getting rid of theirs

January 27th, 2012 by Bill Raftery

Of the 50 U.S. states, 40 have an intermediate appellate court (IAC), generally (but not always) called the “Court of Appeals”. Two states have been actively trying to get their own IACs. The first, Nevada, has been trying for decades but has been unable to get voter support for a constitutional amendment to create or allow the legislature to create such a court.  A fourth attempt is currently in the works.

The other state is West Virginia. Creation of an IAC (tentatively entitled the “Intermediate Court of Appeals”) has bounced around the legislature since at least 1999 (HB 3008 of 1999; HB 200B of Second Special Session of 2003) but picked up a great deal of attention in 2010 (HB 3269; HB 4619; SB 589; SB 645) and 2011 (HB 3150; HB 3165) with the state’s senate approving one version (SB 307) that has been reintroduced as part of a larger “Civil Justice Reform Act” in 2012 (SB 420). Under this bill,  “all appeals shall be reviewed and a written decision on the merits issued by either the Supreme Court or Intermediate Court as a matter of right except for [certain appeals as specified in statute]…”

Meanwhile, in the name of cost savings, the Commonwealth of Virginia is considering abolishing their IAC. Under SB 630 the current Court of Appeals would end effective October 2012. According to the blog of the Virginia Lawyers’ Weekly, the change would keep the current judges in their respective offices until the end of their terms, but with no apparent work to do after October of this year. The prime sponsor told the VLW Blog “when the state is cutting services to children the judiciary ought not be immune from the budget ax” and criticized the court for having in his view few if any judges with experience in criminal, domestic or workers compensation practice prior to selection to the court.

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Vote to change way Wisconsin picks its chief justice is now back on committee agenda

January 27th, 2012 by Bill Raftery

In early January I noted an expected vote in the Wisconsin Assembly Committee on Judiciary and Ethics on a plan to change the way the state’s chief justice was selected (currently, most senior justice serves). I also noted the near last-minute cancellation of that vote.

The latest agenda for that Assembly committee, however, indicates the vote is now back on for Thursday, February 2.

 

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Posted in Coming Week, Selection

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Despite already passing ballot item for 2012 election, Arizona legislature takes up debate over judicial elections/merit selection again

January 27th, 2012 by Bill Raftery

2011 proved highly contentious when it comes to judicial elections. One state that had presumably settled the issue (legislatively speaking) was Arizona, which sent to the November 2012 a proposal to revise the state’s merit selection system, increase judicial terms, and increase the mandatory retirement age for judges.

SCR 1001 of 2011 was approved in April, before the state’s Supreme Court overturned an effort by the state’s governor and senate to remove from office the chair of the state’s redistricting commission.

Early indications are that SCR 1001 may now be taken off the ballot and replaced with something different. Already introduced by the chair of the Senate Appropriations Committee is SCR 1034 of 2012, a constitutional amendment to outright end merit selection in the state. In addition to ending the state’s merit selection system, it would also undo the provisions of SCR 1001 extending judicial terms and mandatory retirement ages.

The amendment is currently pending in the Senate Judiciary Committee.

 

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Posted in Qualification & Terms, Selection

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Issue 6:4 is out

January 26th, 2012 by Bill Raftery

Issue 6:4 is here.

  • Jury nullification makes it out of New Hampshire Senate and back to House
  • Oklahoma tries again to increase small claims jurisdiction
  • Plans to raise mandatory judicial retirement ages advance in FL, die in VA
  • Virginia may split $5 court technology fee with $4 staying locally
  • Florida tackles issue of e-filing and e-storage
  • West Virginia tries to come up with new ways to pay of public financing of supreme court races
  • Latest bill to abolish Tennessee’s existing judicial disciplinary body

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Posted in Weekly Edition

South Dakota State of the Judiciary: “South Dakota, however, continues to weather the financial storm while still providing its citizens necessary access to its courts.”

January 26th, 2012 by Bill Raftery

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

Through an unnumbered report adopted by both the House and Senate, the South Dakota legislature met in joint session January 11 for the purposes of hearing the State of the Judiciary Address of Chief Justice David Gilbertson.

Highlights of the Chief Justice’s speech (full text here) below the fold.

» Read more: South Dakota State of the Judiciary: “South Dakota, however, continues to weather the financial storm while still providing its citizens necessary access to its courts.”

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Posted in State of the Judiciary

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Tennessee legislator withdraws bill to end judicial review in the state

January 25th, 2012 by Bill Raftery

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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Posted in Jurisdiction

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

January 24th, 2012 by Bill Raftery

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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Will West Virginia magistrate court judges have to possess a college degree?

January 23rd, 2012 by Bill Raftery

West Virginia is one of only a few states which has a Magistrate’s Court with judicial officers named Magistrates (as opposed to many states in which magistrates are quasi- or subordinate judicial officers appointed by judges).

Current West Virginia law (§50-1-4) requires only that those seeking to be elected a Magistrate Judge have “a high school education or its equivalent.”

Several attempts have been made in the last three years to increase that minimum education requirement, with odds looking promising for 2012.

In 2009, HB 2840 and SB 609 would have required all magistrates have a baccalaureate degree from an accredited college or have four years of experience as a magistrate. Neither advanced out of committee.

In 2010, SB 495 repeated the 4-year-degree or 4-years-experience language of the 2009 bills and like them failed to advance. HB 4292 set a different standard and fared better. Under it, new magistrates would have to have a bachelor’s degree or two years’ experience. Those already holding office could remain as magistrates under the old high-school-only requirement. That plan advanced through the House but died in the Senate.

2011 saw a flurry of activity. The session started with a plan (HB 2540 and SB 195) to allow for three options for new magistrates:

  • A bachelor degree from an accredited college
  • An associate’s degree in criminal justice from an accredited college, or
  • A minimum of four years of experience as a magistrate

Current magistrates with only a high school education could remain in office. This plan met with Senate approval and House committee approval, but died on the House floor. Additionally, SB 412 added yet a fourth option: 10 years of certified experience as a law enforcement officer. It went nowhere.

Coming into 2012, SB 108 picks up where HB 2540 / SB 195 of 2011 left off and is currently assigned to the Senate Judiciary Committee.

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