Bans on court use of sharia/international law: Montana governor vetoes state’s version; claims bill is really “Sharia law ban” and would “open a dark chapter in our state’s history”

Montana’s governor has vetoed that state’s bill that would ban state court use of foreign or international law. Governor Steve Bullock’s veto message for SB 97 cites four main reasons.

  1. Despite protests that SB 97 was not driven by anti-Muslim sentiment, Bullock found the bill was driven by “Sharia law bans” tried in other states.
  2. Foreign law has infused the American legal system for centuries and in particular Montana’s legal system. The Governor here cites an 1871 law that “the common law of England, so far it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, is the rule of decision in all the courts of this state.” That law remains on the books as 1-1-109 MCA.
  3. The law itself is so broad that it would effectively make void and unenforceable almost all contracts that rely on a foreign legal system.
  4. There is no need for the bill since the U.S. and Montana constitutions already protect Montana residents, ” protections that our courts are sworn to uphold.”

The veto message concludes that with a “nation-wide surge in hate crimes” the bill “would open a dark chapter in our state’s history.”

 

Montana: Legislature declares new ABA model rule being considered by state’s supreme court banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Legislature has declared “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state. Senate Joint Resolution 15 was approved by the full House earlier this week, having cleared the Senate in February.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power.”

 

Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Efforts to ban state courts from using or referencing foreign/international law in general, and sharia law in particular, continue apace with two legislatures approving versions while a bill in North Dakota was rejected.

Arkansas enacted a ban (HB 1041). An earlier version noted here would have re-declared that marriage in Arkansas was limited to a man and a woman, despite a U.S. Supreme Court decision saying the opposite. The amended/enacted HB 1041 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:
(1) The right to due process;
(2) The right to equal protection;
(3) Freedom of religion;
(4) Freedom of speech;
(5) Freedom of the press;
(6) The right to keep and bear arms;
(7) The right to privacy; or
(8) The right to marry, as “marriage” is defined by the Arkansas Constitution, to the extent that the definition of marriage does not conflict with federal law or a holding by the United States Supreme Court.

Meanwhile the Montana legislature approved a version (SB 97) that is currently pending on the governor’s desk that reads in operative part

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.

Finally, North Dakota’s House approved HB 1425 in February, but in late March the Senate rejected the proposal. At issue was the situation similar to Arkansas, namely, that the bill would have attempted to re-establish a ban on same-sex marriage. Senators objected to the marriage provision and amended it out, but also worried this was an “insult to our judges” and assumes North Dakota judges would violate the U.S. and North Dakota Constitutions without this bill.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: 19 bills in 14 states; Arkansas enacts, North Dakota rejects as an “insult to our judges”

Montana: “Supreme Court Candidate Public Forum Program” killed; effort at public funding for court races but opponents worried about using court fees to pay for it

A plan discussed here to create publicly funded public forums to hear from candidates for Montana’s non-partisan Supreme Court races is dead for the session.

HB 636 would have directed the Secretary of State hold public forums throughout the state and invite all candidates for the high court participate. The funding from the program would have come, in part, from an increase in filing fees in appellate and civil cases. Opponents (audio here starting at 1:50) expressed concern that the increase in fees would be problematic from an access-to-justice perspective and that while the forums should be encouraged, community groups should be taking care of them. They also objected to candidates having their travel expenses to the forums being paid for via the forum.

The bill was heard in the House Judiciary Committee on March 28 and left in the committee. A motion to pull it out of committee and bring it to the floor was rejected by the full House on March 29 41-58.

Montana: bill calls for creation of “Supreme Court Candidate Public Forum Program” to help inform voters

A plan to expand public information about Montana Supreme Court races has been filed in that state’s House.

First, some background.

Montana uses a unique election system for their Supreme Court.

  • For initial terms, justices run for a particular seat (e.g. Associate Justice #2, Chief Justice) in a non-partisan race.
  • For additional terms, if a justice runs in a contest race, it is again non-partisan. If the justice runs unopposed, the justice must still go before voters, but in a yes/no retention election. So, for example, in 2016 Chief Justice Mike McGrath ran unopposed, so had to go up for a retention vote (he won with an 82% yes vote).

Under HB 636 as filed the Montana Secretary of State would administer the Supreme Court Candidate Public Forum Program and invite all candidates to participate. The program is designed to provide increased public access to information about candidates for justice and chief justice of the Montana supreme court.

The Program would pay for candidates to travel to forums across the state and pay for the space needed to host, publicize, and broadcast the events. The Secretary of State would “arrange forums in a manner that emphasizes and respects the nonpartisan nature of the supreme court while providing electors important information about candidates.”

Funds for the Program would come from 2 sources

  • An increase in filing fees in appellate and civil cases
  • Voluntary income tax refund contributions up to $5 (individual) or $10 (joint) from state income tax forms. Those who owe taxes could contribute $1.

HB 636 has been assigned to the House Judiciary Committee.

Montana: Senate hearing on plan to declare new ABA model rule banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Senate Judiciary committee is set to hold a hearing tomorrow on Senate Joint Resolution 15 to declare “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

While rules of procedure are “subject to disapproval by the legislature”, the rules governing bar admission and conduct aren’t. That is not stopping members of the Montana Senate from trying.

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power,”

 

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.

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