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

Missouri: bill makes legislators serving 2 years attorneys, eligible to become judges; similar bills introduced in 2005 and 2007

A bill introduced this week would make any member of the Missouri General Assembly who had served at least 2 years both and attorney and eligible to sit as a circuit court judge in the state. HB 2610 provides

21.085. A person who has served at least two years as a member of the Missouri general assembly shall:

(1) qualify such person to practice law as an attorney in the state of Missouri; and

(2) satisfy any requirements for a person to become an associate or circuit court judge in the state of Missouri.

Section (2) is likely a reference to the state’s constitution, which provides “Every supreme, appellate, circuit, and associate circuit court judge shall be licensed to practice law in this state.”

This in not the first time a member of the Missouri General Assembly has proposed letting legislators become lawyers without going to law school. SB 531 of 2005 and HB 1168 of 2007 would have amended Missouri Supreme Court Rule 8.07 to allow any legislator serving 8 years to sit for the bar exam.

An applicant who has served at least eight years as a member of the Missouri general assembly shall be permitted to take the bar examination.

Neither bill advanced out of committee.

 

Missouri Senate bill would require governor receive unlimited number of names from judicial nominating commissions; could a 1-name list appear as in New Mexico?

Back in December I noted a pattern emerging in more and more states with merit/commission based systems: legislatures and governors want more names making their way to the governor’s desk. Today a Missouri Senate committee will be debating the latest proposal, SJR 30.

Under the current system when a vacancy occurs “the governor shall fill such vacancy by appointing one of three persons” from a list send by a judicial nominating commission the Appellate Judicial Commission or the various Circuit Judicial Commissions). SJR 30 would strike “three persons” but without specification of another number, thereby allowing for an unlimited number of nominees.

However, without a minimum could a commission send a single name? It has happened; in 2006 New Mexico’s merit/commission system resulted in a 1-name list given to that state’s governor to fill a District Court vacancy. When the governor asked for a second list with more names, none were provided. The Governor then sued the commission in the state supreme court and requested the commission meet again, which the supreme court ordered (State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm’n, 141 N.M. 657 (N.M. 2007)). When the commission again came up with a 1-name list the governor demanded the supreme court force the commission to send him every name they considered, a request the supreme court rejected. Ultimately the Governor refused to appoint anyone and the selection defaulted to the Chief Justice. A similar 1-name list scenario also occurred in 2012 as well.

SJR 30 marks a departure from prior efforts in Missouri which had focused on 4/8 or 5/10 plans under which an initial list would be made up of 4 or 5 names (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.

The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011. The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.

Citing “state sovereignty”, Arizona House cmte to vote this week to prohibit state courts from enforcing/recognizing federal court decisions; MO & TN considering similar bans

Citing the state’s “sovereign authority”, members of the Arizona, Missouri, and Tennessee legislatures are attempting to prohibit state judges from enforcing U.S. Supreme Court and/or federal courts decision. An Arizona House committee is set to vote on two such proposals this week.

Arizona

Under HB 2024 as introduced U.S. Supreme Court decisions could only be deemed valid in Arizona if they were “affirmed” by Congress and signed into law.

1-274.  Sovereign authority; United States supreme court opinions

Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with an opinion of the supreme court of the United States that is not in pursuance of the constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.

Similar provisions would also ban enforcement or acknowledgment of presidential executive orders (1-272) and federal agency policies (1-273).

HB 2201 would operate in a similar manner. The statute defines any cooperation with a “ruling issued by a court of the United States” as “commandeering” state judges and allows it only if the ruling has been “affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”

HB 2024 and HB 2201 are set for a vote on February 10 in the House Federalism and States’ Rights committee.

Missouri

HJR 62 is constitutional amendment 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 62 has been filed in the House Government Oversight and Accountability Committee.

Tennessee

HB 1828 and the identical SB 1790 both repeat many of the same provisions of the Arizona bills, but with one difference. Where the Arizona bills required Congress “affirm” U.S. Supreme Court and/or federal court decisions before state courts can enforce them, the Tennessee version requires the Tennessee General Assembly consent to the federal court decisions first.

This state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer, or cooperate with the implementation, regulation, or enforcement of any opinion of the United States supreme court unless such has been first expressly implemented by the general assembly by law as the public policy of the state.

HB 1828 is in the House State Government Committee. SB 1790 is the Senate Judiciary Committee.

Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

As I noted last July 2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of sharia or foreign/international law. 2016 looks to pick up where 2015 left off with a raft of new legislation introduced in 12 states. Of note:

Continued reference to sharia in particular

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (South Carolina HB 3521 as introduced; Missouri HJR 69). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. Perhaps as a result the version adopted by the South Carolina House last week eliminated the word “sharia”. That ruling has not stopped Missouri’s proposal, which is practically a verbatim copy of the Oklahoma 2010 proposal struck down by the Tenth Circuit.

Missouri HJR 69 of 2016

The courts provided for in this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of Missouri, the United States Code, federal regulations 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 law or sharia law. The provisions of this section shall apply to all cases before the respective courts, including but not limited to cases of first impression.

Oklahoma HJR 1056 of 2010

The Courts provided for in subsection A of this section, 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 law 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.

Threat of impeachment

Also of note is a West Virginia version of this bill which threatens impeachment for any judge who violates the provision (“Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is void, is appealable error and is grounds for impeachment and removal from office.”)

List of proposals and their current status below the fold.

Continue reading Bans on court use of sharia/international law: reintroduced or active in 12 states; bill moves in SC; threat of impeachment against judges in WV

Missouri: legislator wants impeachment investigation of judge in child sodomy case; judge dismissed charges due to speedy trial violation

In October 2015 Missouri Circuit Judge Patricia Joyce dismissed forcible sodomy charges involving a five month old against Aaron Fisher due to a speedy trial violation. Now at least one member of the Missouri House wants the judge investigated for possible impeachment on the grounds of “incompetency.”

News reports indicate that Judge Joyce ordered the charges against Fisher dismissed after prosecutors failed to proceed to trial against Fisher for 6 years.

[Joyce’s order] says, “Missouri courts have found that delay of greater than 8 months is presumptively prejudicial.”

Joyce explains that after hearing evidence, the court concluded since charges were filed in October 2009, the state has failed to bring Fisher to trial without any reason.

The order shows that the only evidence of the defendant’s delay is on continuance request from May 23, 2011.

Fisher filed a motion for a speedy trial in February 2011, and the former Miller Co. prosecutor had 5 jury trial settings. No record was made to protect or address Fisher’s rights to a speedy trial, therefore the court can’t conclude that his rights were considered.

Immediately after the decision a local state legislator called for a House investigation of Judge Joyce. Rep. Rocky Miller has now introduced that investigation resolution (HR 5) which includes citations to caselaw and alluding to possible impeachment of Judge Joyce.

NOW THEREFORE BE IT RESOLVED that the Missouri House of Representatives, Ninety-eighth General Assembly, Second Regular Session, requests that the House Judiciary Committee investigate the alleged actions by Judge Patricia Joyce related to the dismissal of charges against Aaron Michael Fisher for two counts of forcible sodomy involving a five-month-old child indicating she acted incompetently and which may constitute an impeachable offense under the Missouri Constitution.

HR 5 makes two references to Joyce as having “acted incompetently.” The state’s constitution provides that “incompetency” is a basis for impeachment.

All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.

This marks the third time in the last decade a Missouri legislator has threatened impeachment against a state judge for a ruling.

HR 5 has been filed but not yet assigned to a committee.