In debate on the House floor on February 1, 2012 proponents argued that the 1966 put too much power into the hands of the judiciary, “fractured the balance of power” between the branches and that the supreme court was a “super power”, not a co-equal branch. Proponents argued that it would “subordinate” the judiciary to the legislature.

The video below is from the floor debate on CACR 25. The final vote was 251 in favor, 47 opposed (all Republicans).

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.

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.

Under the constitutional amendment (CACR 25) the two courts would no longer be specifically established by the state’s constitution, allowing them to be disbanded and reestablished (with new judges) based on passage of a simple statute. As a technical matter, it would repeal Article 72-a,  a 1966 amendment to the state’s 1784 constitution that added the following:

The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2.

One co-sponsor argues to the Huffington Post this amendment would allow for a legislative check on the judiciary that he feels has been absent since the 1966 amendment. Another proponent cites prior state Supreme Court rulings on education funding saying “With certain issues they have not taken direction from the legislature.” He argues the ability to disband the courts is necessary to give them “legislative direction on certain issues”.

Full disclosure: I am cited in the Huffington Post article as follows:

Bill Rafferty [sic], an analyst for the National Center for State Courts, said both proposals were unusual. There have been no proposals in recent years to raise the minimum judicial age, but there have been pushes to raise the retirement age for state court judges, he said. Many states require judges to retire at 70.

Unusual indeed. If adopted, New Hampshire would be the sole state without a court of last resort specified in its state constitution.

Moreover, when states have either adopted new constitutions or created new courts of last resort, they have rarely simply disbanded the court and ejected the existing judges/justices. Much more typical is what occurred in the spate of new constitutions adopted in the 1970s and early 1980s: justices of the pre-existing court of last resort were carried over onto the new court and/or allowed to serve out their existing term and then be elected/appointed to the new court.

• Georgia (1983 Constitution) Each judge holding office on the effective date of this article shall continue in office until the expiration of the term of office, as a judge of the court having the same or similar jurisdiction.
• Louisiana (1974 Constitution) A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.
• Montana (1973 Constitution) Supreme court justices, district court judges, and justices of the peace holding office when this Constitution becomes effective shall serve the terms for which they were elected or appointed.
• North Carolina (1971 Constitution) Except as otherwise specifically provided, the adoption of this Constitution shall not have the effect of vacating any office or term of office now filled or held by virtue of any election or appointment made under the prior Constitution of North Carolina and the laws of the State enacted pursuant thereto.
• Virginia (1971 Constitution) Unless otherwise provided herein or by law, nothing in this revised Constitution shall affect the oath, tenure, term, status, or compensation of any person holding any public office, position, or employment in the Commonwealth, nor affect the date of filling any State or local office, elective or appointive, which shall be filled on the date on which it would otherwise have been filled…The requirement of Article VI, Section 7, that justices of the Supreme Court and judges of courts of record shall, at least five years prior to their election or appointment, have been members of the bar of the Commonwealth, shall not preclude justices or judges who were elected or appointed prior to the effective date of this revised Constitution, and who are otherwise qualified, from completing the term for which they were elected or appointed and from being reelected for one additional term.
• Illinois (1970 Constitution) All officers filling any office by election or appointment shall continue to exercise the duties thereof, until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or laws enacted pursuant thereto.

The last time I can find of a state disbanding its court of last resort and, in effect, firing all the existing justices was New York in 1869 and then the court was disbanded only because a) it was grossly behind in its docket and b) since half its membership was trial judges, it meant that trial judges were sitting on appeals from their own decisions below (See page 13 of this history of the New York courts). Even then the judges of the older court were not simply shown the door; the 4 members of the pre-existing court elected statewide were established as a “Commission on Appeals” to finish up the cases on their docket.

2012

Iowa HB 542 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

Iowa SB 318 Establishes the right of the jury to be absolute and not to be limited by the rules of civil or criminal procedure, the juror’s oath, a court order, or a procedure or practice of the court. Permits party to present evidence relating to the merit, intent, constitutionality, or applicability of the law in a case; the motive, moral perspective, or circumstances of the defendant; the degree and direction of guilt or actual harm done in the case; and the punishment or sanction which may be applied to the losing party in the case. Carried over from 2011 session.

New Hampshire HB 146 AS AMENDED: Provides in all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. Provides the court shall permit the defendant or counsel for the defendant to explain this right to the jury. Approved on  voice vote by full House 3/15/11. Rejected by Senate Judiciary Committee  on tie (2-2) vote 5/26/11. Rejected by full Senate 8-12 on 6/1/11. Re-referred to Senate Judiciary Committee. Carried over into 2012 session.

Tennessee HB 1831 Requires, in any criminal jury trial, the trial judge to inform jurors with the following statement, verbatim “In Tennessee and throughout America, jurors possess the responsibility and fundamental right to judge the facts and the law in any court. Jurors are empowered to decide if a law is just, moral, and constitutional. Additionally, jurors are empowered to decide if that law has been violated. A verdict of ‘Guilty’ condemns the defendant, and a verdict of ‘Not Guilty’ absolves the defendant of any wrongdoing. The juror’s conscience dictates the exercise of this power.” Carried over into 2012 session.

2011

Iowa HB 542 (see above) Carried over into 2012 session.

Iowa SB 318 (see above) Carried over into 2012 session.

Montana HB 332 Provides parties have the right to argue to the jurors that a law is unconstitutional, is unconstitutional as applied, or should be nullified for any other reason. Provides upon request by a party, the court in any jury trial shall inform the jurors that the jurors may judge both the facts and the law in the case. Provides denial of the instruction is reversible error. Tabled by House Judiciary Committee 18-2 on 2/21/11.

New Hampshire HB 146 (see above) Carried over into 2012 session.

Tennessee HB 1831 (see above) Carried over into 2012 session.

2010

New Hampshire HB 1347 Provides that in all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. Provides the court is also mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House Judiciary Committee 13-7 on 2/2/10. Rejected by full House 234-113 on 2/17/11.

2009

Alaska HB 140 Provides a defendant has the right to inform the jury of the jury’s power to judge the just application of the law and to vote on the verdict according to conscience. Further provides failure to allow the defendant to inform the jury of the jury’s power is grounds for a mistrial. Died in House Judiciary Committee.

HB 150 Clarifies that for judicial branch employees who transfer without a break in service from the judicial branch to state service in the executive branch or the legislative branch, the rate of accrual of annual and sick leave shall be according to continuous years worked and, upon the employee’s transfer, the rate of accrual shall be the rate of accrual of the receiving branch.

HB 299 Allows the annual contribution for unfunded accrued liability of the judicial retirement plan to be calculated over a 30-year period or the maximum period allowed, whichever is less.

HB 511 Clarifies that retired judges over 70 years of age shall not serve as judges in any judicial capacity except as judicial referees.

HB 609 Consolidates probate courts, district courts, and judicial branch family division into new circuit court.

HR 7 Directs house judiciary committee to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court.

HR 13 “Repudiates” state Supreme Court advisory opinion regarding constitutionality of bill requiring Attorney General join in lawsuit against health care law. Urges Senate to pass bill compelling AG to joint suit.

SB 65 Clarifies court facilities rents are to be negotiated and paid for by the department of administrative services and not the administrative office of the courts.

Some background:

New Hampshire’s Constitution gives two ways to remove a judge from office. The first is an Article 73 “bill of address”

The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature, provided nevertheless that the cause for removal shall be stated fully and substantially in the address and shall not be a cause which is a sufficient ground for impeachment, and provided further that no officer shall be so removed unless he shall have had an opportunity to be heard in his defense by a joint committee of both houses of the legislature.

The second is impeachment under Article 38

The senate shall be a court, with full power and authority to hear, try, and determine, all impeachments made by the house of representatives against any officer or officers of the state, for bribery, corruption, malpractice or maladministration, in office…

2006: McHugh

The first recent attempt in New Hampshire to remove a judge from office for his opinions was via the Bill of Address route. In 2006, HA 1 of 2006 was filed against Superior Court Justice Kenneth R. McHugh for a decision the judge had rendered against an ex-husband in 1999. Justice McHugh testified before the Joint Committee of Address as per Article 73′s “opportunity to be heard” clause. The joint committee decided on a 12-0 vote to reject the effort to remove the judge, determining that the ex-husband had not been completely honest with the court at the time or the joint committee, and chastising the legislators that had introduced the bill of address in the first place.

While the committee understands the sponsor’s concern for judicial accountability, it firmly believed that the serious nature of an address should not be used as a means by which aggrieved litigants can express their disagreement or dissatisfaction with a single ruling in an isolated case, particularly where significant legal and factual questions exist as to the validity of the litigant’s claims.  The committee also believed that legislative sponsors should attempt to verify and corroborate the claims of a private proponent of an address to ensure that this serious procedure is not subject to abuse by litigious and recalcitrant individuals.

2010: Garner, Sadler, Cross

A second round of efforts to remove New Hampshire judges and judicial officers for their decisions, again by bill of address, was prefiled in late 2009 and taken up by the House in early 2010.

HA 1, filed against Marital Master Michael Garner, accused him of “recommended[ing] to the presiding justice (Judge Sadler, see below) an order removing a child from an educational setting on the basis of religious prejudice.” The case surrounded a divorce case and a child, identified only as “Amanda,” who was being home schooled by her mother, while her father wanted the child placed in public school. According to media reports, Garner evaluated the home schooling situation. On July 13, 2009, he issued his recommendation, stating “The Court is extremely reluctant to impose on parents a decision about a child’s education” but ultimately deciding, based on the testimony of the parents and a Guardian Ad Litem, that it was in “Amanda’s best interests to attend public school.”

HA 2 was lodged against District Court Judge Lucinda Sadler for her role in the homeschooling order. Sadler was also cited for her role in as many as 6 other child support and custody cases.

HA 3 focused on Marital Master Philip Cross. Details were not provided as to specific case number or names in the bill of address.

In 2010, the Joint Committee of Address voted 8-3 to reject HA 1 and voted 6-3 to reject HA 3 against Marital Master Cross. The majority held the bill of address clause of Article 73 did not apply because Martial Masters were not “commissioned officers”.

In 2000, when Michael Garner became a marital master, appointments to the position were made solely by the judicial branch.  Michael Garner has continued as an at-will employee of the judicial branch to this day.  He has never been commissioned by the Governor and Council.  He has never held a commission of any kind.  Under the plain meaning of the language of Article 73, he cannot be subject to address. Moreover, the purpose of Article 73 is to allow for the removal, when necessary, of judges who cannot be removed from office except by impeachment or address.  This is not the case with marital masters.  Under the family division court rules, the administrative judge may at any time respond to a complaint against a marital master and “take whatever action is appropriate, including termination.”

Additionally, the Joint Committee held the testimony against Cross failed to meet the threshold for a bill of address and noted the proper course of action is an appeal not an attempt to remove the martial master from office.

With respect to whether the bill states a reasonable cause for removal, the bipartisan majority finds it does not.  The numerous actions complained of in the bill of address arise out of only three of the hundreds of divorce cases that Master Cross has heard since his appointment in 2004.  The voluminous filings in the bill of address and the testimony of the litigants complaining against Master Cross give some insight into the incredibly difficult task marital masters face in contentious cases.  The combined number of docket entries in these three cases total an astounding 2,045 entries as of the week before the bill was heard.  On the day after the bill was heard, one of the litigants requested copies of the Joint Committee’s records in the matter with the intent of filing further proceedings in the family court, based on what occurred at the Joint Committee hearing.  While members of the majority believed that some of the allegations stated in the bill of address might, if fully proven, give grounds for concern, the allegations were such that the appropriate remedy is an appeal to the Supreme Court for review and possible reversal.  The majority finds that the requirement that the address state a reasonable cause for removal is not met. The bill alleges that the Master issued an order that held a parent in criminal contempt after a hearing noticed as a civil contempt hearing.  There is no finding of criminal contempt.  The complaining party concludes that he was held in criminal contempt on the basis of the terms of the order.  An alternative reading of the order is that at the hearing, a determination of ability to pay the bail was made, precisely as required in an action for civil contempt.

Similarly, in the case of Garner, the Joint Committee found that the proper course of action with respect to the decision on home schooling was an appeal, not an attempt at removal from office.

The majority notes that the issues complained of in the decision are ones of first impression in this state, and the decisions are currently on appeal before the Supreme Court.  The Supreme Court may ultimately find that the decisions were made in error.  In that case, the remedy is reversal of the decision.  Any further sanction for the master would be inappropriate.  The majority is concerned that the serious nature of an address should not be used as a means by which litigants can express their disagreement or dissatisfaction with the rulings in discrete cases, particularly when significant legal or factual questions exist as to the validity of the litigant’s claims.  The majority finds that the requirement that the Address state a reasonable cause for removal is not met.

The Joint Committee also voted 6-4 to reject HA 2 against Judge Sadler, holding “A majority of the Joint Committee has already voted that the orders of the marital masters were not reasonable cause for them to be removed.  It follows that the actions of the judge who read and approved those orders are likewise not reasonable cause for removal.”

In June of 2010, the full New Hampshire House upheld the Joint Committee’s determinations: 220-106 for Garner and 204-137 for Sadler, but only 187-155 for Cross.

2011: Cross and “any justice of the New Hampshire Superior Court”

Undaunted, several representatives introduced HR 7 in 2011 based on the testimony from the 2010 bill of address hearings against Marital Master Cross. The resolution, however, is much more expansive, authorizing an impeachment investigation of every single justice of the state’s Superior Court. The House Judiciary Committee:

acting as a whole or by any subcommittee thereof appointed by the chairman for the purposes hereof and in accordance with the rules of the house and rules which may be adopted by the committee, to investigate whether grounds exist, based on the public hearing of 2010, HA3, and any information arising out of the judiciary committee investigation, for the house of representatives to exercise its constitutional power to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court

The full House approved HR 7 on a 242-105 vote in March 2011.

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.