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

This post has been updated. Click here and here.

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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.

Indiana’s Chief Justice gives his twenty-fourth State of the Judiciary address

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

Pursuant to HCR 1 of 2011 Chief Justice Randall Shepard presented the Indiana State of the Judiciary earlier today to a joint session of the legislature, his twenty-fourth such speech. As noted in HCR 1, Chief Justice Shepard’s address is one of the only State of the Judiciary speeches in the nation to be constitutionally based (Art. 7, Sec 3.)

The Chief Justice shall have prepared and submit to the General Assembly regular reports on the condition of the courts and such other reports as may be requested.

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

The Mortgage Foreclosure Crisis

The first is a genuine crisis on which all three branches of Indiana government have worked:  mass foreclosures.  Foreclosure filings were even higher last year than in 2009.  While Indiana may no longer be near the top of the national list, that’s little comfort to the 43,000 new families facing loss of their homes. You recently passed legislation giving every homeowner the right to a settlement conference and the chance to negotiate for a modified loan.

The Indiana Foreclosure Prevention Network led by Lieutenant Governor Skillman, the lenders, Attorney General Zoeller, the Housing and Community Development Authority, and our Division of State Court Administration have been perfecting techniques to maximize the possibility of success.  We now use these techniques in counties that have 60 percent of the foreclosures and we’ll cover the rest of the state by year’s end.  We do it all without any claim on the state’s General Fund because you’ve authorized a user’s fee on foreclosure case.s

The Smartest Sentencing Possible

Are we capable of devising a new, more reliable tool to help sort out who needs to go to prison and who probably does not?  The answer’s been yes, and last Monday a new generation risk assessment became mandatory in every criminal court and delinquency court.  We have trained and tested 2300 probation and corrections officers, drug and alcohol staff, and judges in using it.

Tackling Technology

If there’s a field where Indiana’s courts have proven themselves capable of identifying an opportunity or a problem, devising a plan to address it and executing on the plan, it is technology.

You’ll know that at your direction, every county now uses a system built by our Judicial Technology and Automation Committee (called “JTAC”) to notify law enforcement immediately when a court enters a protective order on behalf of victims of domestic violence… At your direction, JTAC has created an electronic system for notifying law enforcement when someone is adjudicated mentally ill.  Last week alone, names of 39 people adjudicated mentally ill were transmitted through the FBI so that police and gun dealers could do their part in keeping firearms out of the hands of the mentally ill. We collaborated with the Department of Revenue to build a system for transmitting tax warrants directly to local courts…All of these achievements are the result of collaboration between the judiciary and agencies like the Indiana Office of Technology, the BMV, the Department of Revenue, the Criminal Justice Institute, DCS and the State Police.  None of these could have been accomplished by the judiciary alone or by anybody else alone.

Does this matter to citizens?  If you build it, they will come. Rather than driving to the courthouse or hanging on the phone, our constituents were seeking court information this morning at the rate of more than 3400 an hour.  I’m proud that Indiana’s courts are creating a 21st Century system.

Plain English Jury Instructions

People come to the courthouse by the tens of thousands to make possible that jewel of the Bill of Rights, trial by jury.  During those trials, lawyers and judges explain the law that applies to the case jurors are being asked to decide.  Too often, we have talked to jurors about this in legalese. Committed to doing better, the Indiana Judges Association began work on what we decided to call “Plain English Jury Instructions.”  The drafting committee, led by Judges John Pera of Lake County and Carl Heldt of Evansville, and an English teacher, spent three years revising the traditional instructions. The new instructions were issued during the fall.

How Good is What We’re Doing?

In short, Indiana’s judiciary is one that keeps its feet planted firmly on Hoosier soil while keeping its eyes on the horizon.  They are men and women of high ambition who are capable of confronting a problem, devising a plan, and executing on the plan.

Why Does This Matter?

Whether we can build a better system of justice matters first and foremost to the individual citizens who come to court as part of the two million cases we hear every year.  Our first duty is give them a full and fair hearing. But whether we run a respectable court system also matters for people who have never seen the inside of a courtroom because a reliable court system is part and parcel of a decent government and a crucial element of a healthy and productive economy

Judicial Retirement Plans/Pensions: Midwestern States

Indiana HB 1205 AMENDMENT TO BILL: Establishes the Indiana public retirement system to administer and manage the Judges’ Retirement Fund and nine other retirement funds. Creates an 11-member board of trustees for the system. Provides that each retirement fund continues as a separate fund managed by the board. Amendment approved by Senate 2/23/10. House rejected amendment.

Indiana SB 298 Establishes the Indiana public retirement system to administer and manage the Judges’ Retirement Fund and nine other retirement funds. Creates an 11-member board of trustees for the system. Provides that each retirement fund continues as a separate fund managed by the board. Approved by full Senate 2/2/10.

Indiana SB 397 Establishes the Indiana public retirement system to administer and manage the Judges’ Retirement Fund and nine other retirement funds. Creates an 11-member board of trustees for the system. Provides that each retirement fund continues as a separate fund managed by the board. Approved by Senate Committee on Pensions and Labor 1/28/10.

Indiana SB 98 Eliminates references to the Treasurer of State’s duties concerning the Judges’ Retirement System and other named retirement funds. Approved by full Senate 1/19/10.

Michigan HB 4073 Creates an irrevocable trust for each of the State’s five retirement systems, including the judges retirement act of 1992,  pursuant to Section 115 of the Internal Revenue Code, 26 USC 115. Approved by full House 3/4/09. Approved by Senate Appropriations Committee 12/19/09.

Michigan HB 4078 Amends the Judges Retirement Act to specify that, as of July 1, 2009, the Department of Management and Budget would be responsible for authorizing and administering the group retiree health insurance plan (hospitalization and medical coverage) and dental and vision plan.  (Currently this is a function of the Civil Service Commission, which has recently become an autonomous entity within DMB since the abolition of the Department of Civil Service in 2007.)  Approved by full House 3/4/090. In Senate Appropriations Committee.

Michigan SB 132 Amends law related to the health insurance premium payments under the Judges Retirement Act:  For participants with four years of service, the State is required to pay 50% of the cost of health insurance coverage by eliminating health care coverage for retired judges and elected officials specified in the bill who are elected after November 1, 2010. Specifies this elimination would not have an impact on currently elected or appointed officials, but would be prospective by affecting those elected or appointed after November 1, 2010. Approved by full Senate 2/24/10.

Nebraska LB 403 Prohibits participation in the Judges Retirement System unless the employees is a U.S. citizen of qualified alien lawfully present in the U.S. Signed into law by Governor 4/8/09.

Nebraska LB 414 Provides that from  July 1, 2009, until July 1, 2014, a judge shall contribute an additional one percent of his or her monthly compensation to the judges retirement fund. Increases fund fee from $5 to $6 during same period. Signed into law by Governor 5/19/09.

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).