In situation almost identical to Wyoming in 2013, Mississippi House debating whether judges can extend courtroom gun bans to cover courthouses

Over the last several years various states have debated prohibitions on courthouse carry; should the public in general, or concealed carry permit holders in particular, be allowed to bring their guns to court? Mississippi in 2011 opted for a broad carry policy, one that it is in the process of debating again.

In 2011 Mississippi enacted HB 506, a law allowing anyone with a concealed carry permit who took a gun safety court to carry their guns into courthouses (discussed here).

A person licensed under Section 45-9-101 to carry a concealed pistol, who has voluntarily completed an instructional course in the safe handling and use of firearms offered by an instructor certified by a nationally recognized organization that customarily offers firearms training, or by any other organization approved by the Department of Public Safety, shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding… (emphasis added)

The law also allows judges to ban guns in courtrooms (“This section shall in no way interfere with the right of a trial judge to restrict the carrying of firearms in the courtroom.”)

The issue came to a head recently when the Lowndes County Chancery Court in late 2015 issued an order extending the courtroom ban to 200 feet outside the courtroom during judicial proceedings (news on issue here and here).

Two bills are looking to alter these provisions.

HB 561 repeals the 2011 provisions allowing for courthouse carry entirely.

HB 571 keeps the existing law, but defines what is a “courthouse” and a “courtroom” very narrowly. A “courtroom” for example would not include “hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

The situation is almost identical to one that occurred in 2012 in Wyoming. There, existing law provided for a courtroom ban, which a local judge by administrative order extended to cover the entire courthouse. The Wyoming legislature then passed a law (HB 216 of 2013) which narrowly defined courtroom and explicitly allowed for courthouse carry (discussed here).

Both HB 561 and HB 571 have been filed in the House Judiciary B Committee.

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.

Mississippi Legislative Year in Review: ban on state court use of foreign laws

Law

HB 177 Provides “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 to a natural person by the United States Constitution or the Mississippi Constitution of 1890.”

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

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 to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

Continue reading Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

Election 2015: Mississippi initiative would grant, not strip, courts of power to enforce K-12 funding

With so much focus in Kansas (various) and Texas (SJR 53) to strip courts of the power to order K-12 funding, Mississippi voters will in November 2015 decide on whether to explicitly grant that power to the courts.

Initiative 42, set to appear on the November 2015 ballot thanks to signatures gathered and a court ruling last week, would amend Section 201 of the state’s constitution to read

To protect each child’s fundamental right to educational opportunity, The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

An alternative (42-A) submitted by the legislature would simply add “effective” to the existing provision.

The Legislature shall, by general law, provide for the establishment, maintenance and support of an effective system of free public schools upon such conditions and limitations as the Legislature may prescribe.

Thus in November under Mississippi’s unique voting system on initiatives, voters will cast two votes:

  1. Supporting either or neither measure and then
  2. Voting for a preferred choice: Initiative 42 or Initiative 42-A

 

What trial court has jurisdiction to hear a challenge to state laws/actions? The one in the capital county, or any county? States debating venue.

The question of what state court has venue or jurisdiction to hear challenges to state laws and/or state actions has come up a great deal recently. Some states require the suit be filed in the county that contains the capital. Wisconsin (Dane County, discussed here) and Michigan (Ingham County, discussed here) for example had something like this until they changed their law to get these cases moved out of the capital county. North Carolina’s effort last year disallows challenges to the constitutionality of state laws be tried in any county, instead specifically allowing the Chief Justice to pick three judges from anywhere in the state.

This year there have been three movements in various directions on this score.

Kansas: SB 58 amends the state’s Judicial Review Act to require all judicial review of agency actions be moved into the capital county (Shawnee), rather than the current practice of filing “in the county in which the order or agency action is entered or is effective…” That bill was approved by the Senate Judiciary Committee on February 5.

Kentucky: SB 178 moves legal/constitutional challenges under 100 different statutes out of the capital county (Franklin) and into any county. That bill is pending in the Senate Judiciary Committee.

Mississippi: Attempting to get cases challenging state laws and agency actions moved out of the capital county (Hinds) HB 710 instead allows the Chief Justice to designate a Circuit Judge from anywhere in the state to hear the case and to have the hearings and proceedings moved to any courthouse in the state (discussed here). That bill was approved by the full House on February 4.

 

 

 

 

Mississippi: House approves plan to let Chief Justice pick judges to hear challenges to constitutionality of state statutes; fifth state to consider changing the way state statues are held unconstitutional

In what is becoming something of a trend the Mississippi House last week approved a bill to provide challenges to state statutes or involving state officers must go to judge(s) chosen by the Chief Justice. News reports indicate this is an effort to bypass judges in Hinds County, where the capital is located.

HB 710 as approved by the House provides that the Circuit Courts alone will have jurisdiction over all complaints filed against the state and its offices, agencies, employees, elected or appointed officials, etc.

When such a complaint is filed the Circuit Court clerk is to notify the Chief Justice, the Governor, the Attorney General, and the House and Senate leaders. The Chief Justice is then personally to designate a judge to hear the matter from a list the Chief Justice had previously compiled. The judge may then designate any Circuit Court in the state for the location of the hearing and trial.

The bill is similar to those discussed in Texas, North Carolina (enacted), Michigan, Oklahoma, and Wisconsin that changes the venue for challenges to state laws and, at least in some cases, gives the state’s Chief Justice the power to personally pick the judge to hear the case.

HB 710 is now pending in the Senate Judiciary A Committee.