2011 Western bail/pretrial release legislation

Note: This was suppose to go out Friday, August 19. Sorry for the delayed posting.

Law

Arizona HB 2355 Redefines various “assessments” with respect to bail as “surcharges”.

Arizona SB 1023 Authorizes adult probation officers, in counties with more than two million, to serve warrants and make arrests on anyone who has violated a condition of pretrial release while under the supervision of the pretrial services division.

California SB 291 Provides that after a person has been brought back to the state by extradition proceedings, the person shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of bail appearing on the underlying arrest warrant. Specifies a 48-hour noticed bail hearing, excluding weekends and holidays, is required to deviate from this prescribed bail amount. Clarifies that nothing in this law is intended to preclude the existing ex parte process for raising bail through an affidavit of a law enforcement officer in a felony or specified misdemeanor domestic violence case, as specified.

Colorado HB 1189 Provides if a person is arrested for driving under the influence or driving while ability impaired and has been convicted of either offense at least
twice previously, the bill requires the court to impose participation in a substance abuse treatment program, electronic monitoring, drug or alcohol testing, and use of an interlock device (if appropriate) as bail conditions.

Wyoming SB 17 Provides that “conditional release” does not include release on bail; probation and parole agents will not supervise individuals on bail.

Introduced with committee and/or floor approval

Alaska HB 175 Makes corrections in the law to conform to the changes in the bail statutes adopted in 2010. Makes conforming amendments to statutes that are in conflict with the bail schedules in the court rules and directly and indirectly amends various rules of court, including the Alaska Rules of Criminal Procedure and Alaska Rules of Administration.

Arizona SB 1611 Prohibits a person from being admitted to bail if the proof is evident or the presumption great that the person is guilty of a class 5 or 6 felony if there is probable cause to believe that the person has entered or remained in the U.S. illegally.

California AB 178 Requires any person released from county jail before sentencing due to a court order or policy to relieve overcrowding to sign a release agreement, as specified; apply the same penalties to a person released under court order or policy to relieve overcrowding and who fails to appear as would apply to a person released on their “own recognizance”; and apply the same penalty enhancement to a person released due to a court order or policy to relieve overcrowding who commits a new felony offense while on release as would apply to a person who commits such an offense while on an “own recognizance” release.

Colorado HB 1088 Provides a law enforcement agency holding a defendant for a felony or class 1 or 2 misdemeanor whom the law enforcement agency has reasonable grounds to believe is present in the country illegally must notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. Requires a court, when considering the amount of bond to set, consider whether there are reasonable grounds to believe the defendant is present in the country illegally.

Colorado SB 186 Permits an alternative bond program to be established in any judicial district. Allows courts to provide the option of the alternative bond program to a defendant if there is such a program in that judicial district. Provides a law enforcement agency may work with an alternative bond program to secure the appearance of defendants in the program. Provides a pretrial services program with an alternative bond program is permitted to expend a portion of the moneys collected for pretrial services.

Hawaii HCR 140 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

Hawaii HR 122 Urges criminal justice system provide additional rights to victims, including right to be notified and heard regarding pretrial release/bail.

New Mexico HJR 20 (Constitutional Amendment) Eliminates right to bail under state’s constitution. Provides bail may be granted or denied by a court based on the flight risk of the defendant, the nature and seriousness of the offense, the danger that would be posed to any person or the community by the defendant’s release, and other factors as provided by law. Eliminates the presumption of no bail in capital cases. Eliminates prohibitions against excessive bail, excessive fines, and cruel and unusual punishment. Eliminates requirement that courts give preference to an appeal from an order denying bail over all other matters.

Washington HB 1194 Provides when a person is arrested and detained for a class A or B felony, a judicial officer must make a bail determination on an individualized basis. Requires courts notify sureties of a defendant’s failure to appear within 14 calendar days of the date on which the defendant failed to appear, rather than 30 days. Provides a surety may surrender a client in a criminal case for good cause and if accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for surrender. Provides if the court finds that good cause does not exist for the surrender, the surety must return the premium paid as well as any recovery fee. Specifies good cause does not include circumstances in which the client failed to make timely payment to the surety for the bond premium. Requires presiding judge of a court notify the Administrative Office of the Courts (AOC) when the court revokes the justification or certification of a bail bond agent to post bonds in the court. Requires AOC notify superior courts and courts of limited jurisdiction statewide or revocation.

Washington SB 5056 Subject to the availability of funds, requires Administrator for the Courts provide superior courts and courts of limited jurisdiction access to the risk assessment tool developed by the Washington State Institute for Public Policy (WSIPP). Subject to the availability of funds, requires Washington State Center for Court Research (WSCCR) research, evaluate, monitor, and report on the validity of the risk assessment tool to ensure the predictive value of the tool. Requires every two years WSCCR submit a report and recommendations regarding the validity of the risk assessment tool to the Governor, the Supreme Court, and the Legislature. Provides a court may, in its consideration of pretrial release or detention, issue an order requesting information related to mental health services that a defendant has received. Limits information that may be requested to information related to violent acts. Provides court may delay the setting of bail pending receipt of the information, not to exceed 48 hours. Subject to the availability of funds, requires WSIPP develop and validate a pretrial risk assessment tool to assess whether an individual is likely to fail to appear at subsequent court hearings by December 1, 2011. Requires WSIPP submit a report, describing the methodology for developing and validating the pretrial risk assessment tool and the predictive value of the tool, to the Governor, the Supreme Court, and the Legislature by December 1, 2011. Provides presiding judge of a court must notify AOC when the court revokes the justification or certification of a bail bond agent to post bonds in the court. This notice must include the reasons for revocation. Provides once AOC receives the information it must notify superior courts and courts of limited jurisdiction statewide. Requires AOC develop a model form that law enforcement and jails may use to collect information about persons arrested or held in custody so that courts have more information at the bail hearing, including any history of domestic violence, protection orders known to law enforcement or the facility holding the person, and input from individuals reasonably believed to be a victim of the person in custody regarding pretrial release determinations.

Introduced with committee rejection

n/a

Introduced with other or no activity

California AB 1264 Repeals the uniform countywide schedule of bail. Establishes Statewide Bail Commission to prepare, adopt, and annually revise a statewide bail schedule for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.

Hawaii HB 401 Creates task force to reduce contact with the criminal justice system to examine various issues, including increasing options for cost-effective pretrial release, with consideration given to enrollment and participation in an appropriate social services or treatment program.

Idaho SB 1119 Requires bail agents to collect all of the premium on the surety bail bonds they write at the time the defendant is released from custody.

Nevada SB 217 Requires each pretrial release agency prepare a register to be made available to the public that contains certain information regarding the cases and defendants who are recommended for release by the pretrial release agency and submit an annual report containing certain statistical information regarding the operations of the pretrial release agency during the preceding calendar year.

Bans on court use of sharia/international law: ABA House of Delegates opposes “blanket prohibitions”, state legislatures out of session

This post has been updated. Click here.

Earlier today, the American Bar Association House of Delegates approved Resolution 113A:

RESOLVED, That the American Bar Association opposes federal or state laws imposing blanket prohibitions on consideration or use by courts or arbitral tribunals of foreign or international law.

FURTHER RESOLVED, That the American Bar Association opposes federal or state laws imposing blanket prohibitions on consideration or use by courts or arbitral tribunals of the entire body of law or doctrine of a particular religion.

Clearly geared towards efforts to ban court use of sharia/international law, the resolution comes at a time when the state legislatures are out of session and silent. Since the July update, no legislative activity has occurred, although the Michigan bill remains technically pending (the legislature sits year-round).

Full roster of 49 bills introduced in 2011 in 22 states and their statuses after the jump.

Continue reading Bans on court use of sharia/international law: ABA House of Delegates opposes “blanket prohibitions”, state legislatures out of session

What’s in a name? Alaska (sorta) changes title for state court administrator, and why it matters historically speaking

I noted in Issue 5:30 that the Conference of Chief Justices (CCJ) was meeting this week in Atlanta, GA. Also meeting at the same time is the Conference of State Court Administrators (COSCA). While some states make use of the title “Court Administrator” or “State Court Administrator”, most do not. Alaska, for example, makes reference to an “administrative director”, but of what precisely? “Courts” or “the Alaska Court System”? And, aside from semantics, does it matter?

SB 61 of 2011, a set of corrective amendments to the Alaska Statutes as recommended by the revisor of statutes, was enacted earlier this year. According to testimony delivered in the Senate State Affairs Committee on February 15, 2011 and the Senate Judiciary Committee on February 28, the single biggest change made by SB 61 relates to the administrative director of the Alaska Court System, formerly known as the administrative director of courts. In Alaska, the position is established by the constitution (Art. IV, Sec. 16)

The chief justice shall, with the approval of the supreme court, appoint an administrative director to serve at the pleasure of the supreme court and to supervise the administrative operations of the judicial system.

However, as noted in committee, the Alaska constitution does not establish a title. According to the revisor’s office, at some point, the court system changed its usage from “administrative director of the courts” to “administrative director of the Alaska Court System”, but not all the statutes did so. SB 61 fixed that by making them all uniformly “administrative director of the Alaska Court System.”

So why does this matter? Consider that, until the 1950s and in some states as late as the 1970s, the concept of state (vs. local) court administration was almost unheard of and local judges and other officials were only too happy to keep it that way. At the second meeting of the Conference of Chief Justices in 1950, Virginia’s then-Chief Justice Edward W. Hudgins noted that it was the title of the office that kept it from getting legislative approval. (PDF page 27, warning large PDF)

The bill for a judicial administrator was defeated largely because they used the wrong word to describe him. If they had called him an executive secretary they might have gotten it through, but to the legislators a “judicial administrator” sounded like a dictator or a snooper, and the bill was killed in committee. (Underline in original)

And thus, to this day, the state court administrator for the Commonwealth of Virginia is the Executive Secretary of the Supreme Court.

Bans on court use of sharia/international law: Michigan becomes 22nd state to consider, Texas House tries again to get Senate to adopt

This post has been updated. Click here.

With Alabama, Iowa, and North Carolina all set to adjourn in June, it looked as if there would not be any additional sharia/international law bans introduced or debated in 2011. However, in mid-June Michigan introduced a bill (HB 4769) co-sponsored by 42 of 63 Michigan House Republicans that copied much of the language from the versions introduced in Iowa, Kansas, Maine, Missouri, South Dakota, and West Virginia, in particular the use of the term “informal tribunals” or “informal administrative body” in all of these versions, something that does not appear in the others.

Meanwhile, Texas in its special session reintroduced one of theirs from the regular session. I went into the details of the legislative machinations in May in Texas in my last update. In sum, the ban was limited to family law/Family Code cases by a House committee (HB 911), was added onto the “losers pays” tort reform bill at the last minute on the House floor (Amendment #6 to HB 274), and stripped out by a Senate committee.

June proved to be a repeat of May’s efforts. The original HB 79A, a bill for the implementation of the judiciary budget, did not include the ban. Instead, it was again floor amended in (Amendment #12), over the objections of a least one member of the House who attempted to have the amendment ruled not germane to the bill. The amendment was ruled germane and adopted on a 105-29-2 vote. Once again, a Senate committee (this time the Jurisprudence Committee) stripped the provision out and the bill was sent to the governor without the ban on June 29.

Full roster of 49 bills introduced in 2011 in 22 states and their statuses after the jump.

Continue reading Bans on court use of sharia/international law: Michigan becomes 22nd state to consider, Texas House tries again to get Senate to adopt

Alaska State of the Judiciary: Learning to get comfortable with the term “cost-effective”

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

Chief Justice Walter L. Carpeneti gave  the Alaska State of the Judiciary on March 9. Under the Legislature’s Uniform Rule 51, a joint session may be called by agreement of the presiding officers of both houses or by either house by motion adopted by a majority vote of the full membership of the house. Such an invitation appears to have been extended by the presiding officers, as there is no record of a separate resolution.

Highlights of the the Chief Justice’s speech (full text here) included:

I have served as Alaska’s Chief Justice for nearly two years, and from where I stand I believe our mutual commitment to a justice system that is fair, efficient and effective is stronger than ever. So while I’m here to report on where we have been and where we are going, I’m also here to thank you—for your support, for your dedication, and, most of all, for your enduring vision of a government that gives true meaning to the promise of justice for all.

When I spoke before you last year, I emphasized the theme of inter-branch cooperation and collaboration—the need for all three branches to work together to solve the problems facing Alaska’s citizens, and the many benefits gained when we do so. The past year has only underscored the value of working together, as we have successfully navigated a number of difficult challenges through common effort…I have to admit that it has taken me a while to get comfortable with using the term “cost-effective” in the justice context, because I’ve associated it with cost benefit analysis in the business world…In our justice system, we are learning that many of the cases that fill our court dockets — on both the criminal and civil side — can benefit from a similar principle: We need to reserve the most intense (and costly) services for the most intense cases, and to fully explore alternative, less intensive problem-solving solutions for cases that don’t demand full-throttle attention.

In criminal cases, the Criminal Justice Working Group continues to take the lead in examining ways to ensure the highest and best use of limited resources across the agencies and institutions involved in the criminal justice system. The Efficiencies Committee of the working group has made remarkable progress in addressing a perennial vexing problem that I mentioned to you last year: delay in criminal proceedings. We have all heard the phrase “justice delayed is justice denied,” and we can all appreciate the far-reaching costs of delay, not only to those who stand accused and their families, but to victims and their families, witnesses, the attorneys and agencies involved, and the court system itself. So it’s very exciting to learn that the committee initiatives I mentioned to you last year appear to be bearing fruit. First, a pilot project to facilitate the exchange of discovery in criminal cases is being instituted here in Juneau. Once in place, the project will enable law enforcement agencies to provide discovery to defense attorneys electronically, through a server based in the Department of Law…Second, the committee began a pilot project in Kenai to implement a shorter pre-sentence report, which gives judges the information they need to sentence criminal defendants..And third, over the past year the committee successfully addressed a long-standing problem at the Anchorage jail: the limited opportunities for defense attorneys to meet with their clients in advance of court proceedings…With these advances now under way, the Efficiencies Committee is beginning to address several other key challenges.

The Criminal Justice Working Group’s second major group, the Prevention- Recidivism Committee, chaired by Commissioner of Corrections Joe Schmidt, also had a productive and promising year…But I think the good news is that there are promising new approaches to criminal justice that are achieving goals once thought impossible. Today, we’re learning that jails and long jail terms — the most expensive tools in our corrections toolkit — can be focused on those offenders for whom other mechanisms to ensure public safety and accountability won’t work. For other offenders, we’re learning that alternative sentencing and corrections policies and practices, based on sound research and solid evidence, are effectively reducing crime rates at much lower cost.

As public officials who study the criminal justice system, members of the Criminal Justice Working Group know there is no one-size-fits-all response to the problems we confront. Offenders are all different, and communities are all different. But both our own experience and the national research give us new hope that we can slow down the revolving doors of our jails, and that this change can be lasting. We have a long way to go, but we are more confident than ever that we are heading in the right direction, with two new major initiatives now underway.

In July 2010, a pilot program was commenced in Anchorage to more effectively monitor probationers with substance abuse and addiction problems…Using the coercive power of the courts to hold probationers responsible for even the most minor violations helps keep them on the path to recovery and ultimately makes them better prepared to succeed on their own…Also new this year was the formation of the Reentry Task Force, a group charged with exploring ways to better ensure the successful reintegration of offenders back into their communities…Both the [pilot] program and the Reentry Task Force reflect the recognition that Alaskans are not well served by a justice system that returns offenders to their communities with little hope or likelihood that they will succeed, and with every likelihood that they will again commit harmful acts of crime.

Over 8200 family law cases were filed statewide in the last year alone. Of these about 67% involved at least one party without a lawyer. The commitment of judicial resources to these disputes is enormous, especially when couples have no legal counsel to help them navigate what is inevitably an emotional and stressful process. So against this backdrop, two new projects of the court’s Family Law Self-Help Center offer to not only provide improved information and assistance to self-represented litigants, but to significantly increase the number of cases that settle before trial, alleviating the strain contested proceedings place on court resources. First, the center will soon be making is popular Hearing and Trial Preparation Course available online through YouTube…A second promising initiative of the Family Law Self-Help Center is the new Volunteer Lawyer Assisted Early Resolution Project.

The court system’s Child Custody and Visitation Mediation Program has been tremendously successful in helping families reach amicable settlements. But today, as it celebrates its tenth anniversary, it is becoming a victim of its own success. In recent years, referrals to the program have risen dramatically, causing a 250% cost increase that exceeds available federal grant funding.

If there is a common theme to our recent family law efforts, it is one of matching family cases with the appropriate level of judicial intervention.

Apart from the improvements we are pursuing in both the criminal and civil areas, I’m delighted to report to you recent achievements in the technology arena that serve the goal of cost-effective justice. About ten years ago, the court system began the very tough job of implementing a statewide computerized case management system…Today, all 44 court locations statewide are connected to the network through CourtView, which has revolutionized not only the way courts communicate with each other, but the way courts communicate with the public. For the first time since Statehood, case information is available online to anyone, anywhere, at any time.

I would like to close these remarks with a note about a topic that in recent years has become, I believe, central to our democracy: the need to foster civic education and engagement in America — not just for the adults who face the responsibilities of citizenship today, but for the young people who will carry them forward into the future.

As I mentioned at the beginning of my remarks, the three branches of government can do little of lasting benefit working alone. This is as true with civic education as it is with justice delivery. Ensuring a strong future for this great country and great state of ours is a goal that we must pursue together. Thomas Jefferson said that “the qualifications for self-government are not innate . . . . [T]hey are the results of habit and long training.” As we work together to advance cost-effective justice, we must remember that the greatest guarantee of a strong future for all three branches of government is a citizenry that understands and embraces the fundamental principles of democracy.

Bans on court use of sharia/international law: 38 of 47 bills died or rejected this session; only 1 enacted into law

This post has been updated. Click here.

With most state legislatures going out of session, May proved to relatively inactive for bills seeking to ban court use of sharia/international law. In the May update (located here) there were 44 bills in 21 states. In June, the number of bills climbed to 47 in 21 states. As of today, the status of the 47 breaks down as follows:

38 died due to adjournment or had been rejected by their respective legislatures.

1 was signed into law (Arizona’s HB 2064 on April 12).

8 remain at least theoretically active: 4 in Alabama; 3 in Iowa; 1 in North Carolina.

Texas was the focus of much of the May activity. On May 9, the text of the House Committee on Judiciary & Civil Jurisprudence ban (HB 911) approved in April was floor-amended (Amendment #6) into the so-called “loser pays” tort reform bill (HB 274). This version, as amended in committee, was much more limited than others and specified it applied in matters “arising under the Family Code” only and then only if “the application of that [foreign] law would violate a right guaranteed by the United States Constitution or the constitution or a statute of this state.” Amendment 6 was approved by a 112-31 vote in the House, but was removed by the Senate State Affairs committee and failed to be enacted when the final version of HB 274 was signed into law May 30.

Meanwhile, on (May 10) the House Select Committee on State Sovereignty advanced a broader version (HB 1240) of a sharia/international law ban

“foreign or international law or doctrine” means a law, rule, legal code, or principle of a jurisdiction outside the legal traditions of the states and territories of the United States, including international laws, that do not have a binding effect on this state or the United States…A court, arbitrator, or administrative adjudicator may not base a ruling or decision on: (1) a foreign or international law or doctrine; or (2) a prior ruling or decision that was based on a foreign or international law or doctrine.

HB 1240 proceeded to the House Calendars committee, where it died when the legislature adjourned.

Full roster of bills introduced in 2011 and their status after the jump.

Continue reading Bans on court use of sharia/international law: 38 of 47 bills died or rejected this session; only 1 enacted into law

Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

This post has been updated. Click here.

In the April update (located here) there were 44 bills in 21 states seek to ban court use of sharia/international law. There have been no new bills, but almost all existing ones have either died or failed to advance in the last several weeks. As of today, the status of the 44 break down as follows:

20 died due to adjournment or had been rejected by their respective legislatures.

11  failed to make it out of committee in their originating house before the legislature’s internal deadline.

1 failed to make it out of committee in the second house before the legislature’s internal deadline (Oklahoma HB 1552).

1 was signed into law (Arizona’s HB 2064 on April 12).

11 remain at least theoretically active.

Of the active, only three moved in the last month.

  • Texas: One of the House bills was approved in committee, but with a massive shift in wording. HB 911 was originally a broad-based ban on the use of foreign law “if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.” As amended, however, the ban applies only “on a matter arising under the Family Code.” As amended, the bill passed the House Committee on Judiciary & Civil Jurisprudence on April 18.
  • Missouri: The House approved one of its versions (HB 708). The Senate committee scrapped the House bill in favor of its own (SB 308).

Both use the same definition of “foreign law”

As used in this section, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including but not limited to international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.

Both use nearly identical wording for what is banned (differences in bold).

House: Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and shall be void and unenforceable if such court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the constitutions of this state and the United States.

Senate: Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Missouri constitutions.

The big difference appears to be in the provisions related to contracts. The Senate version waives the ban on the use of “foreign law” where the clause is “capable of segregation” from the rest of the contract.

Minor differences include a provision in the House version that declares “The general assembly fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed in accordance with the state’s interest to protect and promote rights and privileges granted under the constitutions of this state and the United States.” Moreover, the House version would amend Missouri Revised Statutes Chapter 1 (Laws in Force and Construction of Statutes) while the Senate version adds to Chapter 506 (Commencement of Actions and General Provisions).

Full roster of bills introduced in 2011 and their status after the jump.

Continue reading Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Welcome New York Times readers!

This post has been updated. Click here.

In the March update (located here) there were 42 bills introduced in 2011 in 20 states seeking to ban court use of sharia/international law. That number is now up to 44 bills in 21 states.

  • Arizona’s “new” bill was really a strike-all amendment to a completely unrelated bill HB 2064. The resulting bill was approved April 7 and is currently sitting on Governor Jan Brewer’s desk.
  • North Carolina HB 640 was introduced April 5 and is currently pending in the House Committee on Judiciary, Subcommittee C.

In addition to Arizona, bills in 6 other states advanced out of their committees or chambers, including Alabama SB 61 and SB 62, Alaska HB 88,  Florida SB 1294, Kansas HB 2087, Missouri HB 708, and Oklahoma HB 1552. Additionally, hearings were conducted in Texas and Missouri. All 2011 activity is in bold below the fold.

Continue reading Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

An examination of 2011 sharia law & international law bans before state legislatures

This post has been updated. Click here and here.

Welcome Thinkprogress.org, Stateline, Opinio Juris and HLPR readers! Enjoy and sign up for Gavel to Gavel the weekly edition here.

In 2010, several states proposed bans on the use of sharia or international law (prior blog posts here and here; Gavel to Gavel the publication special focus issue here). The Oklahoma version (which was limited to the state’s courts) was approved by voters in the state in November 2010, but a restraining order has been issued as part of a Federal lawsuit against the state constitutional amendment. The relevant portions (another part renamed the State Industrial Court to the State Worker’s Compensation court) read:

The Courts provided for in subsection A of this section [i.e. Oklahoma’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Constitutional Amendments

Undaunted by the Federal court action, Wyoming has introduced its own version (HJR 8):

When exercising their judicial authority the courts of this state shall uphold and adhere to the law as provided in the constitution of the United States, the Wyoming constitution, the United States Code and federal regulations promulgated pursuant thereto, laws of this state, established common law as specified by legislative enactment, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not consider the legal precepts of other nations or cultures including, without limitation, international law and Sharia law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

Texas also has a proposed constitutional amendment (HJR 57):

A court of this state shall uphold the laws of the Constitution of the United States, this Constitution, federal laws, and laws of this state. A court of this state may not enforce, consider, or apply any religious or cultural law.

Arizona’s proposed constitutional amendment (SCR 1010 of 2011)  is a modified version of various 2010 bills (HB 2379, SB 1026, SB 1396) that would have made statutory changes only:

In making judicial decisions, the courts provided for in subsection A [i.e. Arizona’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the constitution of this state, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this state and rules adopted pursuant to the laws of this state and, if necessary, the laws of another state of the United States provided the law of the other state does not include international law.  The courts shall not look to the legal precepts of other nations or cultures.  The courts shall not consider international law.

South Dakota’s House is also considering adding the following to their constitution (HJR 1004)

No such court [i.e. South Dakota state court] may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.


Statutes


While Oklahoma was amending its constitution, Tennessee (HB 3768/SB 3470) *and Louisiana (HB 785) adopted statutes in 2010 that addressed the use of international law. That law* has been introduced almost verbatim in 2011 in Arkansas (SB 97), Kansas (HB 2087), Nebraska (LB 647), and Oklahoma (HB 1552). Interestingly, the Tennessee law and its variations in the other states are not specifically limited to state courts, only.

As used in this act, “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…Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States Constitution and the [name of state] Constitution.

*Update: there was a Louisiana version as well in 2010, HB 785 prefiled 3/18/2010 that was enacted.

“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.

However, the Tennessee version was filed 2/2/2010 in the House and 1/28/2010 in the Senate. Therefore, I still think it valid to call it the Tennessee version.

Alaska (SB 88), Georgia (HB 45), Indiana (SJR 16), Mississippi (HB 301 and HB 525), South Carolina (SB 444) and Texas (HB 911) have variations on the Tennessee version, although only Mississippi HB 301 specifically mentions sharia law:

Alaska: A court, arbitrator, mediator, administrative agency, or enforcement agency may not apply a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution….In this section, “foreign law” means a law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States and the territories of the United States.

Georgia: As used in this Code section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal 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.

Indiana: A court may not enforce a law, rule, or legal code or system established and either used or applied in a jurisdiction outside the states of the United States, the District of Columbia, or the territories of the United States if doing so would violate a right guaranteed by this constitution or the Constitution of the United States.

Mississippi HB 301: “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 including Sharia Law…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.

Mississippi HB 525: “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.

Nebraska: For purposes of this section, foreign law, legal code, or system means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, an international organization or tribunal, and applied by such jurisdiction’s courts, administrative bodies, or other formal or informal tribunals…A court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska.

South Carolina: As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.

Texas: In this chapter, “foreign law” means a law, rule, or legal code of a jurisdiction outside of the states and territories of the United States…A ruling or decision of a court, arbitrator, or administrative adjudicator may not be based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.