Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

This post has been updated. Click here.

In the April update (located here) there were 44 bills in 21 states seek to ban court use of sharia/international law. There have been no new bills, but almost all existing ones have either died or failed to advance in the last several weeks. As of today, the status of the 44 break down as follows:

20 died due to adjournment or had been rejected by their respective legislatures.

11  failed to make it out of committee in their originating house before the legislature’s internal deadline.

1 failed to make it out of committee in the second house before the legislature’s internal deadline (Oklahoma HB 1552).

1 was signed into law (Arizona’s HB 2064 on April 12).

11 remain at least theoretically active.

Of the active, only three moved in the last month.

  • Texas: One of the House bills was approved in committee, but with a massive shift in wording. HB 911 was originally a broad-based ban on the use of foreign law “if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.” As amended, however, the ban applies only “on a matter arising under the Family Code.” As amended, the bill passed the House Committee on Judiciary & Civil Jurisprudence on April 18.
  • Missouri: The House approved one of its versions (HB 708). The Senate committee scrapped the House bill in favor of its own (SB 308).

Both use the same definition of “foreign law”

As used in this section, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including but not limited to international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.

Both use nearly identical wording for what is banned (differences in bold).

House: Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and shall be void and unenforceable if such court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the constitutions of this state and the United States.

Senate: Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Missouri constitutions.

The big difference appears to be in the provisions related to contracts. The Senate version waives the ban on the use of “foreign law” where the clause is “capable of segregation” from the rest of the contract.

Minor differences include a provision in the House version that declares “The general assembly fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed in accordance with the state’s interest to protect and promote rights and privileges granted under the constitutions of this state and the United States.” Moreover, the House version would amend Missouri Revised Statutes Chapter 1 (Laws in Force and Construction of Statutes) while the Senate version adds to Chapter 506 (Commencement of Actions and General Provisions).

Full roster of bills introduced in 2011 and their status after the jump.

Continue reading Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Welcome New York Times readers!

This post has been updated. Click here.

In the March update (located here) there were 42 bills introduced in 2011 in 20 states seeking to ban court use of sharia/international law. That number is now up to 44 bills in 21 states.

  • Arizona’s “new” bill was really a strike-all amendment to a completely unrelated bill HB 2064. The resulting bill was approved April 7 and is currently sitting on Governor Jan Brewer’s desk.
  • North Carolina HB 640 was introduced April 5 and is currently pending in the House Committee on Judiciary, Subcommittee C.

In addition to Arizona, bills in 6 other states advanced out of their committees or chambers, including Alabama SB 61 and SB 62, Alaska HB 88,  Florida SB 1294, Kansas HB 2087, Missouri HB 708, and Oklahoma HB 1552. Additionally, hearings were conducted in Texas and Missouri. All 2011 activity is in bold below the fold.

Continue reading Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Judicial Retirement Plans/Pensions 2011: Western States

California SB 503 Limits to one-time written election the option of a member of the The Judges’ Retirement System II to make contributions, and receive service credit for, all of the time he or she served as a full-time subordinate judicial officer, prior to becoming a judge, excluding any period of time for which the judge is receiving, or is entitled to receive, a retirement allowance from any other public retirement system. Authorizes the judge to make contributions to, and receive service credit for, any number of whole years or all of the time he or she served as a full-time subordinate judicial officer.

Hawaii HB 1038 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii HB 1142 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii SB 1265 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Hawaii SB 1341 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012. Modifies extent to which prior service as a judge may be applied to other retirement system(s) and calculation of years of service for retirement purposes.

Michigan HB 4223 Requires Judges Retirement System invest at least 5% in Michigan businesses.

Michigan  HB 4484 Eliminates tax exemption for judicial pensions. Provides that distributions from employer contributions, earnings on those contributions, and distributions from employee contributions and earnings on those employee contributions would be subject to state tax, as of January 1, 2012. (Currently, they are exempt from state, county, municipal, or other local taxes.) Requires an employer to contribute four percent of salary to a participant’s Tier 2 (defined contribution system) account. Allows an employee to contribute up to three percent of salary to the account and requires the employer to match the amount contributed by the employee.

Minnesota HB 1256 & SB 813 Changes member contribution rates for judicial retirement system: 8% (present – July 2011), 11% (July 2011 onward). Changes employer contribution rates for judicial retirement system: 20.5% (present – July 2011), 17.5% (July 2011 onward).

Montana HB 70 Requires separate investment fund must be maintained for judges’ retirement system apart from any other retirement system.

Montana HB 608 Closes judicial and all other retirement systems and provide for annuity benefit program for judges elected after July 2012.

Nevada SB 436 Transfers the responsibility to deposit certain money for the purpose of paying pension benefits to justices of the Supreme Court or district judges from the State of Nevada to the Court Administrator.

New Mexico HB 58 ORIGINAL: Provides that certain amounts of the civil docket and jury fees be deposited into the General Fund. Provides contributions to judicial and magistrate retirement be provided from the General Fund. Increases contributions to judicial and magistrate retirement funds. AMENDED: Same, but strikes existing law that defines “judicial retirement fund” as including” docket and jury fees of metropolitan courts, district courts, the court of appeals and the supreme court.”

New Mexico HB 468 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico HB 628 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 88 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 248 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act plans.

New Mexico SB 268 Makes numerous temporary and permanent changes to employee and employer contribution rates for those under Judicial Retirement Act and Magistrate Retirement Act pla

Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

Welcome ABA Journal readers! This post has been updated, here.

We are about half way through the 2011 state legislative season and so far there have been 42 bills in 2011 to ban or otherwise restrict court references or use to sharia/international law.

Prior 2011 posts on the subject can be found here, here, and here.

Below is an update on the current (as of 3/14/11) status of such efforts. Hearings coming up this week include Alaska HB 88, Missouri HB 708, Missouri SB 308, and Nebraska LB 647.

Interestingly, some of the most recently filed bills (Iowa HB 489 filed March 2;  Maine HB 811 filed March 15; West Virginia HB 3220 filed February 21) now provide that foreign law cannot be the “primary factor which a court…shall consider”.

Continue reading Mid-session update: 42 bills in 20 states seek to ban court use of sharia/international law (with list and links)

NM State of the Judiciary: “Furlough closures of backlogged courts don’t save a dime for the taxpayer or for the government.”

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

New Mexico Chief Justice  Charles W. Daniels delivered his State of the Judiciary address to a joint session of the New Mexico Legislature on January 27. Interestingly, unlike in most states, the Governor of the state was in attendance for the speech.

Highlights of the Chief Justice’s speech (full text here) included:

Sometimes we refer to ourselves as independent branches of government, and in a lot of ways, that’s true… But we can’t forget that the three branches are also dependent on each other. We have to work together to provide the government the people need, the government they created in the constitution. The biggest example of the dependence of the judicial branch is that we’re dependent on the other two branches for the resources we need to sustain the system of justice required by the constitution.

To keep the flame of justice burning, we have to come to you for the necessary fuel.

We’ve been working hard to cut costs wherever we can do it without violating our obligations to the law and to the people of New Mexico. Senator John Arthur Smith [Senate Finance Committee Chair -ed.] went out of his way to publicly recognize our cost-cutting efforts when the [Legislative Finance Committee] released its budget recommendations a couple of weeks ago, and we thank him for that.

After this financial crisis became obvious, we started meeting to deal with it on both a statewide and a local level. We realized that the immediate challenge was to keep the justice system functioning right now, but at the same time we had to plan for the future, to provide better services and to do it with the least cost…To survive in the short term, we’ve had to make hard and sometimes painful cost-cutting decisions…But we’ve found the courts can’t really save enough money by cutting costs in equipment and supplies. Providing justice is a personnel-intensive kind of work. Between 90 and 95% of each court’s budget is in personnel.

We’ve tried to avoid the superficial solution of sending workers home without pay, a practice that is euphemistically called furloughs, because we need them at work. Without people at work, the courts have to close. That violates the state’s constitutional obligation to keep the doors of justice open. Spacing it out a few hours here and a few hours there is just violating the constitution on the installment plan.

But the practical reality is this: Furlough closures of backlogged courts don’t save a dime for the taxpayer or for the government. It’s not like a furlough closure of a museum or a park or a tourist train, where you can actually save money by cutting services to the public on a given day. The work of busy courts just gets even more backed up and still takes the same resources, the same employee time, the same expense to process. That murder trial or DWI sentencing or custody hearing or even the paperwork processing doesn’t go away. It’s a case of pay me now or pay me later.

So we’ve had to cut back on important programs to keep the doors open to do the work the constitution requires us to do. Let me give you one example, our DWI and Drug and other problem-solving courts…These cuts may help us survive within our court budgets, but they don’t really save money for the taxpayers who pay the bills. You can see in black and white how cuts in the DWI and drug courts increase costs for prisons and jails and law enforcement and public defenders and [New Mexico Children, Youth and Families Department] and other tax-funded agencies.

On the bright side, in addition to keeping our doors open, we’ve found ways to increase revenue to the state through credit card use, collection agencies to go after wrongdoers who won’t pay, and new warrant enforcement approaches….We’re brainstorming every possible way to operate a constitutional justice system better and faster and more economically, and we’re willing to give up old familiar ways to do it. We’ve been expanding the use of videoconferencing for such things as meetings, arraignments, and other proceedings. We’re installing and training our people in a new kind of statewide case management system where information is being completely computerized instead of being buried in paper court files and where it can be accessed instantly from the judge’s bench and other locations. We’re now setting up remote electronic filing, so you can file documents or get them remotely 24 hours a day without having to go stand in line at the court and so court staff won’t have to spend so much time handling the papers. In fact, if someone wants to come to the court and file a paper document, we scan it and put it into the electronic system and don’t have to deal with the paper any more. Anyone who wants a paper copy can just print it off.

With their input, we’ve created our own ad hoc Judicial Reengineering Commission, similar to the Legislature’s Government Restructuring Task Force that studied other parts of government. The Commission has representation from the judiciary, the Senate, the House, lawyers with civil and criminal and prosecution experience, and even from the business community. We’ve invited the Governor to name a member.

It’s going to take a lot of serious thought and a lot of hard work, but I’m confident that we’ll work together in the interests of the people of New Mexico. And I’m convinced that we will all do whatever it takes to make sure the flame of justice never dies.

NM: Two pieces of legislation to restrict or end court e-filing

Cross posted at the Court Technology Bulletin blog

Numerous state legislatures have been exceptionally active in promoting or advancing bills to permit or require e-filing in state courts. New Mexico’s Senate, however, may be the first state legislative chamber be to actively working against such efforts.

SB 328 repeals the judiciary’s “electronic services fund” and transfers the balance to the state’s general fund. According to the fiscal impact note prepared by the Legislative Finance Committee, “SB 328 would effectively end the ability of courts to implement efiling in New Mexico.”

The same senator that authored SB 328 has also introduced this week SB 388 which declares the state’s courts “shall not charge an electronic services fee to persons who choose not to use electronic services and shall allow persons to file and access documents without using electronic services.”

SB 328 is in the Senate Judiciary Committee, while SB 388 is in the Senate Public Affairs Committee.

KY: Public financing for judicial elections?

Perhaps in anticipation of an expected 2012 Supreme Court election in the state, or as a reaction to judicial elections in other states, the Kentucky legislature will be considering a bill (HB 21) this year to create a public financing system for all judges in the state, paid for in part by a $25 annual assessment on all members of the Kentucky Bar Association. If adopted, Kentucky’s public financing system for judicial races might be the most expansive in the nation. Similar programs in Wisconsin, North Carolina, and New Mexico are limited to appellate courts only. A fourth program (West Virginia) adopted in 2010 is limited to only the state’s 2012 Supreme Court race.