Missouri: Changes to state’s merit/commission selection system for judges clear Senate committee; Senate leader decries courts that have “gone rogue”

A plan to change the way Missouri’s merit/commission system of judicial selection has cleared the Senate General Laws Committee. At the same time, the leader of the state’s senate has indicated he may move to simply eliminate the merit/commission system entirely accusing the state’s supreme court of “going rogue” and his desire to see more conservatives on the bench.

Currently the nominating commissions for the state’s appellate courts and select Circuit Courts must send “three persons” to the governor.

the governor shall fill such vacancy by appointing one of three persons possessing the qualifications for such office, who shall be nominated and whose names shall be submitted to the governor by a nonpartisan judicial commission

An introduced, SJR 11 eliminated the “three persons” language.

As approved by the committee, however, the language now requires the commissions send “all qualified nominees”.

Such list of names shall include all qualified nominees and shall not be limited in number, but shall contain at least three nominees.

SJR 11 now goes to full Senate.

Missouri becomes 3rd state this year to consider bills to prohibit state courts from enforcing/recognizing federal laws or court decisions

I mentioned the proposals in Arizona and Idaho that would prohibit state court judges from enforcing federal laws or federal court decisions. The latest such effort has now been filed in Missouri.

HJR 41 of 2017 appears to be identical to HJR 62 of 2016 originally discussed here.

The constitutional amendment is directed broadly to any “federal law.” The state legislature could send to the ballot, or the general public could via referendum, any “federal law” for a vote as to its constitutionality. If approved by voters, the “federal law” would be valid. If not, “the courts of this state shall be stripped of jurisdiction to enforce such a particular federal law…”

HJR 41 has been filed but not yet assigned to a committee.

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.

Missouri: committee hearing on plan to change number of names Nonpartisan Judicial Commissions submit to governor

Missouri, the proverbial home of the “Missouri plan” of merit/commission based judicial selection, has long had a “three-person provision”: the state’s Nonpartisan Judicial Commissions are to give the governor three names for a judicial vacancy,

the governor shall fill such vacancy by appointing one of three persons possessing the qualifications for such office, who shall be nominated and whose names shall be submitted to the governor by a nonpartisan judicial commission

SJR 11, as introduced, would simply delete the “three persons” language. That constitutional amendment is before the Senate General Laws Committee today. It’s a repeat of SJR 30 of 2016 which had a hearing before the Senate Judiciary committee but never advanced.

Over the last several years there have been numerous efforts to remove or alter the three-person provision. As I noted when this came up in 2015/2016 these mostly focused on 4/8 or 5/10 plans. Under the proposals the initial list submitted to the governor would be made up of 4 or 5 persons (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.

Missouri: House constitutional amendment calls for state judges to ignore SCOTUS same-sex marriage decision; related bill calls for possible impeachment of SCOTUS for “judicial activism”

A state constitutional amendment filed yesterday in the Missouri House would prohibit that state’s judges from enforcing the U.S. Supreme Court’s 2015 same-sex marriage decision.

HJR 110 amends the state’s existing constitutional ban on same-sex marriage.

To be valid and recognized in this state, a marriage shall exist only between a man and a woman.

To explicitly reject the Supreme Court’s decision in Obergefell and prohibits state court decisions that uphold that case (additions in bold)

That to be valid and recognized in this state, a marriage shall exist only between a man and a woman, regardless of any court decision to the contrary. Any court decision, including Obergefell v. Hodges, 135 S.Ct. 2584 (2015), purporting to strike down marriage, as provided in this section, is unauthoritative, void, and of no effect.

HCR 119 filed along with HJR 110 lists Obergefell and other cases recently decided by the U.S. Supreme Court as “judicial activism” and asks the U.S. House to investigate possible impeachment of the justices in those cases.

Both bills were filed in the House yesterday but not yet assigned to a committee.

Missouri: Senate plan calls for impeachment of judges who don’t interpret constitution in certain ways; threshold for any government act would be “beyond a reasonable doubt”

A member of the Missouri Senate wants to impeach judges in the state that make certain decisions that fail to interpret the state’s constitution as originally understood by voters.

SJR 42 as introduced provides for a three step system for all judicial decisions.

  1. Any interpretation of a state constitutional provision “shall be resolved by determining how each word of phrase in the relevant provision most likely would have been understood by the voters at the time they ratified that provision.”
  2. Any government “law, regulation, or policy” is hereafter presumptively unconstitutional.
  3. The presumption of unconstitutionality can only be overcome if the government proves beyond a reasonable doubt the law, regulation, or policy is both a) necessary for the prevention of a specific, nonspeculative threat to the public health and safety and b) the least restrictive means of preserving public health and safety.

The plan then threatens with impeachment any judge who fails to use the three step test.

Any other provision of this constitution notwithstanding, a judge’s failure to comply with the terms of this section shall be grounds for impeachment of that judge.

SJR 42 has been filed in the Senate but not yet assigned to a committee.

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