Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Efforts to ban state courts from using or referencing foreign/international law in general, and sharia law in particular, continue apace with two legislatures approving versions while a bill in North Dakota was rejected.

Arkansas enacted a ban (HB 1041). An earlier version noted here would have re-declared that marriage in Arkansas was limited to a man and a woman, despite a U.S. Supreme Court decision saying the opposite. The amended/enacted HB 1041 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as “marriage” is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.

Meanwhile the Montana legislature approved a version (SB 97) that is currently pending on the governor’s desk that reads in operative part

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage.

Finally, North Dakota’s House approved HB 1425 in February, but in late March the Senate rejected the proposal. At issue was the situation similar to Arkansas, namely, that the bill would have attempted to re-establish a ban on same-sex marriage. Senators objected to the marriage provision and amended it out, but also worried this was an “insult to our judges” and assumes North Dakota judges would violate the U.S. and North Dakota Constitutions without this bill.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Iowa: Plan to give governor near-total control of judicial nominating commissions & removing attorneys as voting members clears Senate subcommittee

A plan to give Iowa governors near-total control of the state’s main judicial nominating commissions (State Nominating Commission for appellate courts & District Nominating Commissions for District Court judges) cleared its first legislative hurdle.

SF 327 was approved by a Senate Judiciary subcommittee on March 1. The bill removes all attorney-members selected by attorneys in the state (or judicial district), save for one non-voting advisory member.

Instead, the governor would be allowed to appoint effectively all voting members of the commissions. The judge-member would continue to serve as chair only be allowed to vote in case of a tie.

Proponents have argued for the need to remove lawyers as having too much sway over the non-attorney members of the commissions.

SF 327 is just one of several efforts filed this year to curtail or end the state’s merit/commission based system of judicial selection.

The bill now goes to the full Senate Judiciary Committee.

Iowa: raft of legislation attempts to curtail or end merit/commission selection of judges in state; give governor total control of voting commissioners, make lawyers nonvoting advisory members or simply remove them

I mentioned a few weeks ago an effort to remove all bar-selected members of Iowa’s judicial selection commissions. Now the latest efforts have come forward with a focus on ending merit/commission selection or allowing the governor total control over the process.

As a reminder, Iowa’s merit/commission system for judicial selection is based on 3 nominating commissions: a State Nominating Commission for appellate courts, various District Nominating Commissions for District Court judges, and County Magistrate Appointing Commissions for district associate judges, associate juvenile or probate judges, and magistrates. All have the same basic structure as set out (at least for the State and District commission) in the state’s constitution (Art. V, Sec. 16) but subject to statutory changes (“unless otherwise provided by law” as Art. V, Sec. 16 puts it).

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

HJR 6: end the commissions outright, move to quasi-federal system

HJR 6 as filed covers a litany of issues related to the Court of Appeals (currently a creature/creation by statute). It also, perhaps most critically, simply ends the state’s commission/merit selection system and replaces it with a quasi-federal one. Governors would nominate individuals subject to senate confirmation for Supreme Court, Court of Appeals, and District Court vacancies. It does keep the constitutional provision for yes/no retention elections.

SF 263: remove all the lawyers

Identical to HF 173 which I discussed here, it would simply remove all attorney-selected members of all 3 nominating commissions and replace them with individuals elected by the district/county affected.

SF 327: reduce lawyers to 1 nonvoting/advisory member, give governor total control of voting commissioners

With proponents arguing that lawyers have too much sway over the non-attorney members of the commissions, SF 327 reduces the number of lawyer-selected members on the State Nominating Commission and the District Nominating Commissions to 1 non-voting advisory member and gives the governor total control over the voting members.

Currently, the 17-member State Nominating Commission looks like

  • 8 members of the bar “elected by the resident members of the bar” of the state
  • 8 non-lawyers appointed by the governor subject to senate confirmation
  • 1 voting justice of the supreme court (other than the chief justice) as chair

SF 327 would completely revamp this and give the governor total control over the voting commissioners

 

  • 1 non-voting advisory member elected by the bar; sitting bar members would be converted to non-voting advisory members and phased out
  • 16 voting members (4 per congressional district) appointed by the governor subject to senate confirmation
  • 1 non-voting justice of the supreme court (other than the chief justice) as chair; the justice could vote only to break a tie

 

 

 

Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

The 2017 legislative session appears poised to pick up where the 2015/2016 sessions left off with respects to attempts to ban state courts from using or making reference to foreign/international law in general and sharia law in particular. Among the legislation:

Oregon SB 479 specifically targets sharia by name. As I mentioned when this came up in 2015, the Oregon bill’s specific naming and targeting sharia is similar to an Oklahoma effort that was struck down by federal courts as a violation of the First Amendment.

Arkansas HB 1041 approved by the House last week 63-24 provides

A court ruling or decision violates the public policy of this state and is void and unenforceable if the court bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision one (1) or more of the following fundamental rights, liberties, and privileges granted under the Arkansas Constitution or the United States Constitution

Among those rights listed is the “right to marry, as “marriage” is defined by Arkansas Constitution, Amendment 83.” Amendment 83 provides “Marriage consists only of the union of one man and one woman.” The lead sponsor of the bill indicated he believed “that marriage is between a man and a woman, not between the same sexes.

The other bill to advance so far was Montana’s SB 97 which cleared the Senate 27-21 on February 3. It too mentions marriage, but does not explicitly limit it to one man and one woman.

A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of Montana and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage.

Full list of bills below the fold.

  1. Continue reading Bans on court use of sharia/international law: 16 bills in 12 states to start 2017; Arkansas House and Montana Senate versions differ on constitutionality of same sex marriage.

Iowa: bill removes bar-elected members of judicial nominating commissions, but fails to amend state’s constitutional provision in this area

Iowa’s merit/commission system for judicial selection is based on 3 nominating commissions: a State Nominating Commission for appellate courts, various District Nominating Commissions for District Court judges, and County Magistrate Appointing Commissions for district associate judges, associate juvenile or probate judges, and magistrates. All have the same basic structure as set out (at least for the State and District commission) in the state’s constitution (Art. V, Sec. 16) but subject to statutory changes (“unless otherwise provided by law” as Art. V, Sec. 16 puts it).

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

Now a bill in the Iowa legislature would remove the power of the bar to elect Commission members and instead require they be elected by the registered voters in their respective districts/counties, but without amending the constitution.

Under HF 173 the existing lawyer-elected members would be forced out of their seats this year and replaced with individuals elected by voters this November.

Past efforts to change the power of the state’s attorneys with respect to the commissions have focused on diluting their votes. The last such effort was in 2011, when both HF 343 and HF 416 would have made the members elected by attorneys non-voting advisory commissioners. In addition a constitutional amendment was offered up that year (SJR 13) to end the merit/commission system outright for the Supreme Court and replace with contested elections.

HF 173 has been filed in the House Judiciary Committee.

Iowa: House Appropriations Committee approves plan to let supreme court set all judicial salaries, move and create judgeships; bill described as a “sea change”

The Iowa House Appropriations Committee has approved a plan that would restructure the way the Iowa judiciary operates and functions in what is being called a “sea change“. (h/t to the Iowa State Bar for the pointer)

Key provisions of HF 2409 include:

  1. Judicial salaries would not longer be set by the legislature but the supreme court (for active judges) or the chief justice (for senior judges) and paid from the general operating moneys appropriated to the judicial branch.
  2. If a vacancy occurs in the office of a district judge, district associate judge, associate juvenile judge, or associate probate judge and the chief justice finds disparity in the allocation of such judicial officers, the chief justice may apportion the vacancy if a majority of the supreme court approves the apportionment (currently the state’s judicial council must approve the move).
  3. Currently, the supreme court prescribes a formula to determine the number of district judges who will serve in a district, subject to certain restrictions. The bill eliminates four such restrictions relating to the filling of vacancies including in particular the restriction that the number of district judges shall not exceed 116.
  4. Currently, the number and apportionment of district associate judges is provided based on population. The bill requires the supreme court to prescribe a formula determining the number of district associate judges serving in each judicial election district based on a model that measures and applies an estimated case-related workload formula of judicial officers and that accounts for administrative duties, travel time, and other judicial duties.
  5. Currently, 206 magistrates are required to be apportioned among the counties. The bill eliminates the specific number of magistrates that must be apportioned. 

     

Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.