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

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.