Georgia House (again) considers “informing” Chief Justice Georgia is not a “democracy”

Last year in her first state of the judiciary address, Chief Justice Carol Hunstein referred to Georgia as a “democracy”. As I noted at the time, this did not sit well with some members of the Georgia House, who prepared a resolution to “inform” the Chief Justice the state was a republic, not a democracy (see post here). The resolution went nowhere, legislatively speaking.

Undaunted, Chief Justice Hunstein gave her 2011 state of the judiciary and made use of the term “democracy” five times (see post here). Equally undaunted, the Georgia House is considering “informing” her via HR 340 of 2011.

WHEREAS, most synonymous with majority rule, democracy was condemned by the Founding Fathers of the United States, who closely studied the history of both democracies and republics before drafting the Declaration of Independence and the Constitution…

WHEREAS, in 1928, the War Department of the United States defined democracy in Training Manual No. 2000-25 as a “government of the masses” which “[r]esults in mobocracy,” communistic attitudes to property rights, “demagogism,…agitation, discontent,  [and] anarchy.”

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body recognize the difference between a democracy and a republic and inform Georgia Supreme Court Chief Justice Carol W. Hunstein that the State of Georgia is a republic and not a democracy.

BE IT FURTHER RESOLVED that the Clerk of the House of Representatives is authorized and directed to transmit appropriate copies of this resolution to Georgia Supreme Court Chief  Justice Carol W. Hunstein, all Justices of the Georgia Supreme Court, and all Judges of the Georgia Court of Appeals.

Presumably the decision to forward the resolution (if adopted) to the justices of the supreme court and court of appeals is because they were invited to attend the state of the judiciary address (HR 19 of 2011) and heard the reference to “democracy.”

The resolution is currently pending in the House Committee on the Judiciary.

GA State of the Judiciary: “Our courts are like the emergency room of society. We must take all cases the law requires.”

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

The Georgia State of the Judiciary address was delivered by Chief Justice Carol Hunstein on February 16. Under the terms of HR 19, the legislature met in joint session and invited any and all members of the supreme court and court of appeals to attend the speech.

Chief Justice Hunstein’s speech last year caused a minor legislative kerfuffle when, in referencing the United States, she described it as a “democracy” prompting a resolution “informing” her that the U.S. was a republic and not a democracy (that resolution went nowhere and no resolution was introduced against the governor’s reference to the U.S. as a “democracy” in his 2010 state of the state address). This year, she mentioned “democracy” five time in her speech.

Other than the “democracy” references, highlights of the Chief Justice’s speech (full text here) included:

This traditional invitation from the legislative branch to the Chief Justice underscores your interest in Georgia’s judicial system and the respect we hold for each other as separate, co-equal branches of government. At this important milestone in our new year, I welcome this opportunity to share with you today the judiciary’s accomplishments of the last year, the challenges we face, and our plans for a bright and solid future in fulfilling our duty to uphold the Constitutions of this state and our country and guarantee justice to all Georgians through fair and impartial courts.

The fall-out from the recent recession has created challenges of historic proportions. We who are government leaders sense we have entered a new era…Keeping our citizens safe is one of government’s fundamental obligations. Indeed our Georgia Constitution requires the government to protect the public safety. The courts play a crucial role in doing so.

Today, Georgia stands on the brink of making significant reform in how it sentences criminal offenders. A national wave of sentencing reform is sweeping the country, and it holds bright promise for Georgia…We are looking at alternatives to incarceration for certain offenders with two goals in mind – to improve the public safety, and to save taxpayer dollars. Georgia’s judges need more discretion in the courtroom to ensure that the sentence fits the crime.

One of our greatest successes has been our specialty courts. If we hope to save precious taxpayer dollars while protecting the public safety, the criminal justice system must change the way it has historically handled offenders with drug and alcohol addictions and mental illness…A recent report by the Georgia Department of Audits found that drug courts in this state have resulted in lower sentencing costs and lower recidivism rates. The report found that drug courts cost up to 80 percent less than the average daily cost of other traditional sentencing options.


Veterans courts, like drug and mental health courts, address our veterans and soldiers who have risked their lives in battle and come back with addictions and mental health issues that lead them into homelessness and crime…That state audit I mentioned identified 4,000 individuals who were sitting in state prison in August 2009, who potentially could have been diverted to drug court. If only 20 percent of those eligible prisoners had entered drug court, the state would have saved as much as $8 million.


Another type of specialty court we hope to pilot this year is domestic violence courts…Ladies and Gentlemen, these courts save lives, reunite families, protect the public and save money. Our goal should be to spread them to every judicial circuit of our state. As former Georgia Congressman Newt Gingrich recently said to The Atlanta Journal-Constitution: “If I can be safer and it’s less expensive and we have citizens who are now dedicated, productive taxpaying citizens – which part of that is bad?”

Another promise for the future is a new way of compiling lists of citizens who are eligible to serve on juries. This effort has been seven years in the making and is led by my colleague, Justice Hugh Thompson. The purpose of this change is to protect everyone’s constitutional rights to equal protection and a jury of his or her peers.

Just as our juries must reflect the populace, so should our judges. Our citizens’ confidence in the courts depends on their assurance that they will receive equal justice. This is an area that needs improvement, as around the country, the diversity of judges lags far behind the population. I urge the newly appointed Judicial Nominating Commission to seek out the most highly qualified jurists, while keeping in mind the importance of having a judiciary that reflects the population.

In addressing the State of our Judiciary, I would be remiss to fail to mention that this past year marked an unprecedented number of investigations into the misconduct of a number of our judges. Since 2008, the Judicial Qualifications Commission’s investigations have resulted in the resignation or removal of 22 judges. However, I consider this a sign that the JQC, a constitutionally mandated agency under the new leadership of Jeff Davis, is aggressively pursuing its duty to identify those judges who have proven themselves unqualified to serve. The good news is that with 1800 Georgia judges, the vast majority are well qualified and fulfill their constitutional duties with the utmost integrity. The JQC is an important agency that must be fully funded to do its work.

Despite budget cuts, we have the duty to protect access to justice for all. We have the duty to uphold the Constitutions of our state and nation and the laws that you pass. We have the duty to protect individuals’ rights. The courts are one leg in the stool of our democracy that provides an essential balance in our government. Once again this year, I emphasize that the entire judicial branch receives less than 1 percent of the entire state budget. At the same time, last year we generated more than $544 million in fees, with nearly $90 million of that returned to the state general fund.

Our courts are like the emergency room of society. We must take all cases the law requires. Not surprisingly, in tough economic times, caseloads have increased in most classes of courts.

Let me be clear about the tipping point. Our state and U.S. Constitutions guarantee criminal defendants the right to a speedy trial. That means that if there are not enough judges to clear the backlog, people charged with some of the most heinous crimes will walk free – not by judicial discretion but as a matter of law.

Backlogs and delays also add to the cost of doing business in Georgia. A recent study by the Washington Economics Group of Georgia’s courts shows just how dire the effects of underfunded courts are on our economy. The study concluded that delays in resolving civil cases due to budget cuts have had adverse impacts on business proceedings throughout Georgia and affect this state’s ability to create and retain jobs and to attract and expand industries.

In closing, I invite you – as representatives of the people of this state – to familiarize yourselves with your local courts and with the appellate and Supreme Court. Your local judges would welcome your interest. I would welcome your interest. I believe you would be proud of what you saw. So please visit. And watch democracy unfold.

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.

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.

GA: Constitutional amendment would make Supreme Court decisions nonbinding

Georgia’s history with its Supreme Court is one of note. For nearly 75 years of statehood, there was no appellate review: a new trial before a new jury in the local court was the only procedure available for the correction of judicial error.

Enter HR 5 of 2011, a constitutional amendment being considered in the 2011 session that would remove the state’s constitutional provisions making state supreme court (and court of appeals) decisions binding on lower courts. The resolution’s preamble also makes it clear the decisions of the appellate courts would not be binding on any other party other than those involved in the judicial action at hand.

Judicial Retirement Plans/Pensions: Southern States

Georgia HB 202 Authorizes the boards of all public retirement systems operating under Title 47 of O.C.G.A to adopt any rules which are required to meet the necessary federal compliance standards. It requires all systems to comply with mandatory distribution requirements that are included in the Internal Revenue Code. Clarifies provisions relating to rollovers from public retirement systems to other qualified plans, and revises language relating to maximum benefits payable to ensure the language is consistent with the Internal Revenue Code.

Georgia HB 210 Amends provisions relating to membership in the Georgia Judicial Retirement System. Clarifies that certain attorney‘s employed by the office of Legislative Counsel or the Department of Law on June 30, 2005, shall retain all rights and obligations as exist on that day. Those in this group shall be subject to all provisions of this chapter applicable to solicitors-general of the state courts, and Employer contributions shall be paid by respective employers under such Code sections.

Georgia HB 452 Provides that members of the Georgia Judicial Retirement System who become members on or after July 1, 2009, not be entitled to receive any postretirement benefit adjustments.

Georgia SB 109 Provides for each of the following Councils to pay their respective employer contributions for retirement: Superior Court Judges, State Court Judges, Juvenile Court Judges and the Prosecuting Attorneys. Requires  that each of these Councils be authorized, and directed to pay from funds appropriated or otherwise available in additional amount equal to the 5% contribution of the member plus an additional 20% so that the state contribution is in accordance with the Employees’ Retirement System of Georgia

Georgia SB 177 Provides that appellate court judges who become members of the Employees’ Retirement System of Georgia, and persons who become members of the Georgia Judicial Retirement System on or after July 1, 2009, not be entitled to Survivors benefits.

Kentucky HB 182 Permits the Judicial Form Retirement System board of trustees to promulgate administrative regulations to conform with federal statutes and regulations and to meet the qualification requirements under 26 U.S.C. Section 401(a).

Kentucky HB 289 Judicial Retirement Plan to honor qualified domestic relations orders if the orders meet the requirements established by the retirement systems or plan and by these sections

North Carolina HB 1507 & SB 703 Permits assets of Consolidated Judicial Retirement System and systems to may be invested in securities traded on a public securities exchange or market organized and regulated pursuant to the laws of the jurisdiction of such exchange or market (previously limited to “preferred or common stock”) . Signed into law by governor 6/11/09.

North Carolina HB 649 & SB 691 Specifies Treasurer’s responsibilities and duties regarding Consolidated Judicial Retirement System and other retirement systems. Signed into law by Governor 7/10/09.

Oklahoma HB 1110 (2009) Requires Oklahoma Public Employees Retirement System deliver two reports of the fiscal activities of  the State Judicial Retirement Fund for the fiscal year to the Legislative Service Bureau. House and Senate conference committee unable to come to agreement 5/27/09.

Oklahoma HB 2357 (2010) Requires Oklahoma Public Employees Retirement System deliver two reports of the fiscal activities of  the State Judicial Retirement Fund for the fiscal year to the Legislative Service Bureau. Approved by full House 2/10/10. Approved with Senate amendment by full Senate 3/29/10. To House to concur with amendment.

Oklahoma SB 1059 Makes various modifications to employer contribution rates for Uniform Retirement System for Justices and Judges. Requires certain funds be transferred to the Judicial Retirement Fund.  Approved by full Senate 3/9/09. Died in House.

Oklahoma SB 212 Specifies that the funded ratio for the State Judicial Retirement Fund should be at or near 90%  (previously 100%) or be receiving sufficient contributions to amortize any unfunded liability of the fund according to the adopted amortization schedule.  Modifies the Board of Trustees ability to raise employer contribution rates. Signed into law by Governor 5/26/09.

Virginia HB 1189 & SB 232 Changes member contributions for those under the Judicial Retirement System or other specified plans. Institutes a new service weight schedule based on the judge’s age at the time he or she is appointed or elected to an original term commencing July 1, 2010 Changes the requirements for unreduced early retirement benefits from 50 years of age and 30 years of creditable service, to the “Rule of 90” (combination of age and service equals 90). Approved by House and Senate 3/11/10. To Governor for approval.

House considers “informing” Chief Justice Georgia is not a “democracy”

Most states allow their chief justices to offer State of the Judiciary addresses to the legislature or legislative and executive branch leaders.  (A collection of the 2010 State of the Judiciary speeches and archive of past ones is available here.)

Georgia did so via a formal resolution (HR 1682) inviting Chief Justice Carol Hunstein to “address a joint session” on March 16. The Chief Justice did so and in her address noted, “The separation of powers is the very bedrock of our nation’s democracy” and, citing Judge Learned Hand, that “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”

The reference to “democracy” did not sit well with several members of the House, at least 6 of whom introduced a resolution (HR 1770) on March 26 to “inform Georgia Supreme Court Chief Justice Carol W. Hunstein that the State of Georgia is a republic and not a democracy.”

However, in his January State of the State address, Governor Sonny Perdue made three separate references to the U.S. and/or Georgia as being a “democracy”.

No word on any similar resolution having been introduced for his references.

More push-pull legislation on court funding

Readers may recall the Florida House bills proposed several weeks ago that would provide the courts guaranteed funding, but only if judicial immunity and a list of other changes made to the way courts and judges operate. Now the Senate has introduced identical bills (SB 2636 and SB 2640).

Georgia, meanwhile, is also considering tying additional funding to changes in court structure. SB 429 would add a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. This additional funding comes, however, only if the Supreme Court is increased from 7 to 9 justices and the Court of Appeals from 12 to 15. Unlike in most states where a change to the number of Supreme Court justices would require a constitutional amendment,Article VI Section VI of Georgia’s Constitution allows the legislature to set the number so long as it is below 9 (interestingly, there appears to be no minimum). Gavel to Gavel readers may recall a similar effort to expand the Supreme Court in 2007. This, from Gavel to Gavel’s first edition

Georgia media reports legislation may be considered to increase from 7 to 9 the number of seats on that state’s high court. Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.”

Changes to the appellate courts are rare, especially courts of last resort. Since 1990, only 2 states have had such changes. Nevada’s Supreme Court grew from 5 to 7 members in 1999 (AB 343 of 1997). In that same year, Iowa’s Supreme Court shrank from 9 to 7 as 3 judges were added to the state’s Court of Appeals (HF 2471 of 1998).

Emergencies and the courts

How courts operate, or don’t, post-disaster has been of considerable concern since 9/11 and all the more so after Hurricanes Katrina and Rita. Several states have tackled the matter. For example, Delaware’s SB 25 of 2009 provides for the operation of the courts in the event of an emergency and grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities with such order limited to an initial duration of 30 days but renewable for 30 day periods. It allows the Chief Justice to order the conducting of courts outside their normal county, extend statutes of limitations, and similar measures.

In 2010, several states are looking at similar measures.

Georgia’s HB 185 authorizes the Chief Justice to extend the duration of a judicial emergency order when a public health emergency exists until the emergency ends (currently there is a maximum of 60 days).

Virginia’s HB 883 sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. The bill permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

No more non-attorney judges?

While no longer as popular as in the past, many states continue to retain non-attorney judges. Trial judges in at least 27 states, most in probate, justice of the peace, or other similar limited jurisdiction courts, are not required to be attorneys. Several states, however, are trying to eliminate this practice.

Georgia’s HB 478 requires municipal court judges be attorneys unless already serving as municipal court judge. It was approved by the House Committee on Governmental Affairs on February 4.

Indiana’s SB 122 would require City and Town judges be attorneys as well.

Maryland HB 417 would require Orphan’s Court judges, in the city of Baltimore only, be attorneys. Prior versions (such as HB 387 and SB 293 of 2008) would have required most if not all of the state’s Orphan’s Court judges be attorneys. The Senate version made it through that chamber in 2008 (42-4), while the House version failed to achieve the three-fifths majority needed (failed 84-50, with 85 votes needed).