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)

KS State of the Judiciary: judiciary is a “core function” of government. Blue ribbon commission & weighted caseload study ongoing.

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 5014 of 2011, the Kansas House and Senate met in joint session on February 15. Interestingly, and perhaps uniquely,the resolution called the joint session “for the purpose of hearing a message from the Supreme Court on the judicial branch of government”, and direct the House and Senate form a committee “to wait upon the Supreme Court Justices.” The chief justice was not specified by name or title.

It was however Chief Justice Lawton Nuss that delivered the address. Highlights of the Chief Justice’s speech (full text here) included:

[I]t is especially important for all of us here — members of the different branches of Kansas government — to combine our unique experiences and perspectives to work for the benefit of those whom ALL of us serve: the people of Kansas.

I saw a wonderful example of this “work for the people of Kansas” last spring when the Supreme Court had closed all Kansas state courts and sent employees home without pay for lack of money, for the first time in Kansas history. Legislators then asked me, “Exactly how much money will it take to keep Kansas courts open in FY 2011?” I consulted my colleagues and advisers; we tightened our belts — again — and told you precisely how much, in a short letter. Writing and then hand delivering such a letter to all 165 legislators may also have been a “for the first time in Kansas history.” To your everlasting credit, for which all Kansans should be grateful, you agreed to provide these funds.

Now, here we all are again, in the 2011 legislative session, where economic times are not just hard: they are harder. And where hundreds of requests, if not outright demands, are made upon you for slices of the shrinking Kansas monetary pie. The judicial branch of government is included among those groups requesting funds.

Let me start by acknowledging many have said that Kansas government needs to be reduced to performing only its “core functions.” I express no opinion about the wisdom of that goal. But in the words of Shakespeare, let me speak “what I do know.”…And I do know — that if we talk about the core functions of Kansas government, then it likewise makes sense that we start with the Kansas Constitution…As a result, I respectfully suggest to you that the judicial branch was created to perform some of the original functions of Kansas government. Your Kansas judges and their staffs have proudly been performing these original governmental functions — like the administration of justice — for the last 150 years.

Like you, we in the judicial branch have been well aware of the condition of the Kansas economy. For example, when you had asked how much money was required to keep courts open, you also asked us to “be realistic.” At that time we had been maintaining a hiring freeze for 18 months. We had been doing so because about 97 % of our judicial branch budget is for salaries; therefore much of our significant cost-cutting unfortunately comes at the expense of our personnel.

We agreed with two fundamental suggestions in your Legislative Post Audit: (1) the absolute need for a Blue Ribbon Commission to study the operations of the judicial branch, and (2) the absolute need for a “weighted case load study” to be funded by the Legislature. We recognize that sheer numbers of cases do not tell the full story of judicial and staff workloads. A valid study must take into account the driving time for judges in multi-county districts and the complexity of certain cases. For example, a trial for first-degree murder takes longer than one for simple theft. In other words, we need to compare apples to apples.

We decided to do some long-range planning. We decided we would try to be more efficient; to make the best use of taxpayer money; and hopefully to even save some money. So we started with your Legislative Post Audit study recommendation: we first looked at a weighted case load study. We learned that such a study had first been recommended in Kansas in 1944 — 67 years ago — and had been recommended many times since. But no legislative funding has ever been authorized. Nevertheless, in August of 2010, we signed a contract with the National Center for State Courts for a weighted caseload study of judges and staff workloads.

In the meantime, several months ago the Supreme Court appointed a Blue Ribbon Commission of 24 members. Here, we were also following the recommendation of your Legislative Post Audit study. This Commission will consider the results of the weighted case load study and will also review the operations of the judicial branch. It is authorized to consider issues like the number of court locations needed to provide Kansans access to justice (we are currently required by statute to have one judge per county); consider the services to be provided at each court location and the hours of operation; and consider the appropriate use of technology, cost containment or reductions, and flexibility in the use of human resources. This Commission has been asked to make recommendations to the Supreme Court for possible changes.

Together, the weighted caseload study and the Blue Ribbon Commission are called Project Pegasus (after the winged horse of Greek mythology)…I also want to emphasize that Project Pegasus has the potential for the most dramatic change in the judicial branch since court unification in 1977. It is additionally important that any changes be the right ones because these changes, like court unification in 1977, may be with us for many years to come. Why do I provide this detailed and probably painful explanation? The answer is: to tell you how extensive this project is; to tell you how significant its changes can be; and to tell you how committed our judicial branch people are to it. But it is also to ask you to allow us to finish it without interruption for the benefit of Kansas.

We ask that you return to the spirit that moved you last spring when you courageously decided to provide funding to keep Kansas courts open. We ask you to preserve that funding for the rest of this fiscal year and provide the funding we have requested for all of 2012. Such funding will allow us to receive our Pegasus reports and start considering needed improvements to the judicial branch. Less than that means closing courts — very quickly.

Loss of funding also jeopardizes electronic case filing, otherwise known as “e-filing.” E-filing, as its name suggests, allows lawsuits and related legal documents to be filed with the courts electronically from office or home, with no gas used in driving to the courthouse. After initial start-up costs, such filing systems in other states and at the federal level in Kansas have demonstrated efficiencies that save both the public and the judiciary considerable time and resources. It is designed with the basic business philosophy: spend money now to save more money in the future. An incredible amount of time and federal grants have already been spent; that investment would be lost without further funding.

During your legislative session, I am confident that you will take fair account of the needs of the judicial branch as we provide our core functions of Kansas government in administering justice to our citizens. And finally, for all the good work you have done and continue to do for the people of our state in these difficult times, I want to express my gratitude and bid you Godspeed. Thank you.

Kansas: House votes to end merit selection for Court of Appeals

Unlike most state supreme courts, whose selection methods are typically placed into the state constitution, intermediate appellate courts (such as the Kansas Court of Appeals) are creations of statute, including their selection method.

After several attempts to push for constitutional amendments to alter the state’s Supreme Court merit selection system failed, opponents of the selection system instead focused on the state’s Court of Appeals, resulting in passage in the House today of HB 2101 on a 66-53 vote. Under the bill, instead of a judicial nominating commission selecting three names to forward to the governor for selection, the governor would be free to chose anyone otherwise meeting the basic eligibility (such as 10 years practice in law) subject to senate confirmation.

In the original version of the bill, the person confirmed would serve for life, however Article 15 of the state constitution prohibits terms of more than four years unless the constitution itself sets another term (for example, the same constitution gives the supreme court six year terms). As a result, the bill was amended to put retention elections back in.

Initial reports indicate the 66-53 was bipartisan with 48 Republicans joining 18 Democrats to approve the bill and 20 Republicans voting in opposition along with 33 Democrats.

Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

Readers may recall that I have examined efforts to prohibit state courts from using or referencing sharia or international law (see here and here). Last week some of these bills began to move through the legislative process, so an update seemed in order: Continue reading Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

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.

Legislation to ban the use of Karma, Sharia, and Canon Law by Courts

Efforts to strip courts of jurisdiction over case types, such as taxation and school funding, are nothing new. See, for example, Kansas’ SCR 1613 which would prohibit the judicial branch from directing the legislative branch make any appropriation of money or to redirect the expenditure of funds.

2010 however is perhaps the first time a state legislature has tried to stop the use of karma by the courts (although it is not clear any courts are presently using it). Arizona’s HB 2379 and SB 1026 prohibits courts from implementing, referring or incorporating or using “a tenet of any body of religious sectarian law” and specifically includes sharia law, canon law, halacha, and karma. Decisions that make use of a body of religious sectarian law or foreign law are declared void and such usages declared to be grounds for impeachment. Moreover, the bills are not just targetting Arizona’s state courts; the same legislation declares these provisions apply to Federal courts sitting in diversity jurisdiction and requires any court that construes the statutes must do so in a way to confine the power of Congress and the federal judiciary.

A similar bill in Oklahoma, HJR 1056, would amend that state’s constitution to prohibit the courts from “look[ing] to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law…” That  bill was approved by the House Rules Committee on February 4.