Hawaii: hearing today on plans to change judicial selection in state; bills call for Senate re-confirmation at end of judicial terms in office

The Hawaii Senate’s Judiciary and Labor committee has scheduled a hearing today on plans to change the way the state selects its judges.

As previously discussed here there are two main proposals in the Senate.

Hawaii’s current system is made up of 2 elements:

  • Election for initial terms: Currently a list of nominees is sent by the Judicial Selection Commission to the governor (supreme court, intermediate appellate court, circuit court) or chief justice (district court) to select from. After a nominee is chosen he or she is subject to senate confirmation.
  • Additional terms: Currently judges seeking to remain in office go back before the Judicial Selection Commission for evaluation and re-approval; neither the governor nor the chief justice nor the senate is involved.

SB 673 Provides that the Senate must reconfirm any judge or justice for additional terms. In addition, it would change the default deadlines for confirmation; currently there is a default approval if the senate fails to act for the state’s higher courts (supreme, intermediate appellate, circuit) but default rejection for the lowest court (district).

SB 328 Provides that the Senate must reconfirm any judge or justice for additional terms.

Hawaii: stage set for new attempts to change merit/commission selection of judges in state; focus appears to be on reconfirmation by Senate

Last year I noted a flurry of activity in Hawaii in the area of judicial selection. 2017 looks to be picking up where 2016 left off.

Hawaii’s current system is made up of 2 elements:

  • Election for initial terms: Currently a list of nominees is sent by the Judicial Selection Commission to the governor (supreme court, intermediate appellate court, circuit court) or chief justice (district court) to select from. After a nominee is chosen he or she is subject to senate confirmation.
  • Additional terms: Currently judges seeking to remain in office go back before the Judicial Selection Commission for evaluation and re-approval; neither the governor nor the chief justice nor the senate is involved.

HB 1 / SB 673 Provides that the Senate must reconfirm any judge or justice for additional terms. In addition, it would change the default deadlines for confirmation; currently there is a default approval if the senate fails to act for the state’s higher courts (supreme, intermediate appellate, circuit) but default rejection for the lowest court (district). HB 1 also gives the legislature more time (90 days, up from 30) to consider confirmations.

SB 328 Provides that the Senate must reconfirm any judge or justice for additional terms.

 

 

 

Hawaii: one change to merit/commission selection system passed Senate unanimously, other proposed changes stalled

Efforts to make major changes to Hawaii’s merit/commission selection system for judges appear to be stalling, while a technical amendment regarding the timing cleared the state’s Senate unanimously.

SB 2498: when does the nomination and default confirmation clock(s) start?

Hawaii’s judicial selection system is very time-focused. Under the state constitution the state’s Judicial Selection Commission sends a list to the governor (higher courts) or chief justice (district court) to select from. This starts a series of timed events.

  1. Upon presentation of the list, the governor or chief justice must make an appointment within 30 days. If they fail to do so, the judicial selection commission makes the pick.
  2. Upon selection by the governor, chief justice, or commission, the senate has 30 days to confirm. If the senate fails to reject any appointment within 30 days, “it shall be deemed to have given its consent to such appointment.”

In 2012 this became an issue when the governor announced at a press conference 5 days before the 30 day deadline his pick for the state’s supreme court but did not formally send the name to the senate until a week later, 2 days after the deadline. The state’s attorney general found that the 30 day window had been satisfied at the press conference.

SB 2498 would clarify the 30-day deadline for confirmation requires written notice to the senate, not just press conferences. Moreover, the deadline would start with the “senate’s receipt of written notice of the appointment.”

SB 2498 was approved 24-0 by the Senate yesterday (March 9) and now goes to the House.

SB 2239: end merit/commission select and replace with elections (initial term) and senate confirmation (additional terms)

SB 2239 would simply ends merit selection of judges and replace it with elections for their initial 6-year terms (a reduction from the current 10 years for higher courts). Rather than running again at the end of the term, the judge would be subject to confirmation by the senate for subsequent judicial terms. After broad based opposition to the plan a vote set for February in the Senate Judiciary and Labor Committee was deferred until March 2 and then deferred indefinitely.

SB 2420: senate must reconfirm judges at end of their term; default reconfirmation in 90 days

Unlike SB 2239 which would have ended the state’s merit/commission based selection system, SB 2420 keeps the system but alters how judges are retained in office. Currently at the end of a term a judge goes back before the Judicial Selection Commission who must reapprove the judge. There is no role for either the governor or the senate.

SB 2420 would require judges must be reapproved by commission and confirmed by senate. Moreover, it keeps the idea of default confirmation in place, but gives the senate 90 days (rather than 30 days) for default reconfirmation.

SB 2420 was approved by the Senate Judiciary and Labor Committee in February. However, a Senate floor amendment set the effective date for the constitutional amendment as January 7, 2059. Typically setting such dates indicates the legislature is delaying or stalling a bill for possible study or outright defeat.

Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

The latest iterations of efforts to ban state courts from using foreign or international law in general, and sharia law in particular, appear to be stalling in most states. Since last month’s update there have been three pieces of activity, within only 1 bill moving.

Georgia: The House yesterday passed a heavily amended version of HB 171. As introduced, the bill provided

Any tribunal ruling shall be void and unenforceable if the tribunal bases its ruling in whole or in part on any foreign law that would deny the parties the rights and privileges granted under the United States Constitution or the Georgia Constitution.

As amended the bill adds to an existing list of items (O.C.G.A. 9-10-31.1) to be considered by a court when considering the issue of venue and the doctrine of forum non conveniens.

In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors

whether the forum outside of this state provides for impartial tribunals and procedures that are consonant to the requirements of due process of law as required by the Constitutions of the United States and the State of Georgia.

The bill was approved 165-0.

In Mississippi, which already enacted a foreign law ban in 2015, legislators attempted to enhance the existing law. SB 2400 would have allowed courts to award attorney’s fees to any party opposing recognition or enforcement of foreign law. SB 2595 specifically targeted the use of sharia law in divorce and child custody cases. Both bills died in committee.

Finally, a bill was introduced in Missouri (HB 2507) that dealt with the subject as well.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

Hawaii: vote on bill for election of judges put on hold until March 2, but Senate reconfirmation advances out of committee

The Hawaii Senate Judiciary and Labor committee met yesterday to take up several bills that would change the state’s merit/commission based system of appointment of judges. While a plan to move towards elections met with fierce opposition (per media reports) and a decision on that bill was delayed, other proposals did advance.

As a reminder Hawaii’s current system is made up of 2 elements:

  • Election for initial terms: Currently a list of nominees is sent by the Judicial Selection Commission to the governor (supreme court, intermediate appellate court, circuit court) or chief justice (district court) to select from. After a nominee is chosen he or she is subject to senate confirmation.
  • Additional terms: currently judges seeking to remain in office go back before the Judicial Selection Commission for evaluation and re-approval; neither the governor nor the chief justice nor the senate is involved.

Approved

  • SB 2238 requires the judiciary, office of elections, and campaign spending commission to study appropriate methods of implementing a judicial election system in the state and submit a written report, including proposed legislation, to the legislature.
  • SB 2420 a constitutional amendment that retains merit selection of judges but provides judges seeking additional terms in office must be reapproved by the judicial selection commission and reconfirmed by the senate (currently only need be reapproved by judicial selection commission). Moreover the plan provides that if the senate fails to act within 90 days, the judge is returned to office by default.
  • SB 2498 a constitutional amendment that addresses the issue of Senate confirmation. The bill requires written notice of an appointment to the senate for advice and consent concurrent with the governor, judicial selection commission, or chief justice’s making of the appointment. The amendment clarifies that the senate’s thirty-day period to reject a judicial appointment begins on the senate’s receipt of written notice of the governor’s, chief justice’s, or judicial selection commission’s appointment.

Delayed until March 2

  • SB 2239 a constitutional amendment that ends merit selection of judges. Instead, justices and judges would be initially elected to serve six-year terms and be subject to the consent of the senate for subsequent judicial terms.

Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:

Continued reference to sharia in particular

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.

Missouri HJR 69 of 2016

The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations 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 law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.

Oklahoma HJR 1056 of 2010

The Courts provided for in subsection A of this section, 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 law 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.

Threat of impeachment

Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)

List of proposals and their current status below the fold.

Continue reading Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

Hawaii: bills would end merit/commission selection of judges in state, replace with elections and senate confirmations; for first time has Democrats as co-sponsors

Over the last several years there have been no sustained efforts to alter Hawaii’s merit/commission selection system for selecting judges. The two proposals that were introduced were done so by the Senate’s only Republican member (Sen. Sam Slom). In 2016, however, several Democratic members of the Hawaii Senate want to see an end to merit/commission selection in the state.

First, some background

SB 423 of 2005 Provided for elections for the state’s supreme court only. The bill was introduced by the Senate’s only Republican member (Slom). The identical SB 798 of 2013 was again introduced by the Senate’s only Republican member (Slom). Neither bill was ever taken up in committee.

There the matter lay until this year with HB 2139 of 2016 and the identical SB 2239 of 2016. Both bills begin by citing to a “December 2013 article for the National Center for State Courts” regarding trends in judicial selection. In full disclosure, that article was written by me.

The bills go on to eliminate the state’s merit/commission based system and replace it with a two step approach:

Election for initial terms: Currently a list of nominees is sent by the Judicial Selection Commission to the governor (supreme court, intermediate appellate court, circuit court) or chief justice (district court) to select from. After a nominee is chosen he or she is subject to senate confirmation.

HB 2139 and SB 2239 replace this system with direct elections. (“The justices and judges shall be elected by the qualified voters of this State at a general election as provided by law.”)

Additional terms: currently judges seeking to remain in office go back before the Judicial Selection Commission for evaluation and re-approval; neither the governor nor the chief justice nor the senate is involved. (“If the judicial selection commission determines that the justice or judge should be retained in office, the commission shall renew the term of office of the justice or judge for the period provided by this section or by law.”)

HB 2139 and SB 2239 would not require judges run for re-election again; instead they would have to come before the senate who “shall hold a public hearing and vote to consent or not consent to retention of each petitioning justice or judge.”

Terms in office: in addition to change the method of selection/retention, the bills cut judge’s terms in office. Currently judges of the state’s top courts serve for 10 year terms; district court terms are set by statute at six years.

The bills would set the term of office for all judges at six years.

HB 2139 is pending in the House Judiciary Committee. SB 2339 is pending in the Senate Judiciary and Labor Committee.