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.

North Dakota: plan for military take over of Judicial Conduct Commission fails

A plan put forth in the North Dakota House to have the state’s military take over the Judicial Conduct Commission which has the power to discipline the judges in the state has failed.

HB 1313 as introduced (and discussed here) would have removed the state’s 7 member Judicial Conduct Commission, made up of judges, lawyers, and nonlawyers chosen by judges, the bar, and the governor respectively.

Under HB 1313 the commission would instead have been made up of 7 active or retired members of the military chosen by the state’s Adjutant General who serves as the commander of the state’s National Guard.

During committee hearings this proposal was rejected and instead amended to focus on the Commission’s hearing panel. Currently, that panel is made up of 4 commissioners of which at least 2 must be nonlawyers. The amendment would have expanded the hearing panel to 5 with at least 3 nonlawyers. Even with the amendment the House Judiciary committee recommended rejecting the bill as amended on a 9-5 vote. The full House rejected the amended bill on a 5-84 vote last week.

North Dakota: House plan to put Judicial Conduct Commission under military control set for hearing next week

I mentioned earlier this week the proposal in the North Dakota House to put the state’s Judicial Conduct Commission under the control of the state’s military, specifically the Adjutant General who serves as the commander of the state’s National Guard. The Adjutant General would select all members of the Commission (currently they are chosen by the District Court judges, the state bar’s board of governors, and the Governor).

HB 1313 has been set for a hearing before the House Judiciary Committee on January 23 at 11:20 local time.

North Dakota: Newly elected House member proposes (literal) military takeover of Judicial Conduct Commission

A bill filed yesterday by a newly elected member of North Dakota’s House would provide for the state’s military to take over the North Dakota Judicial Conduct Commission.

Currently the 7-member commission is made up of 2 District Court judges chosen by their fellow judges, 1 lawyer picked by the state bar’s board of governors, and 4 citizens who aren’t judges, retired judges, or lawyers picked by the governor.

Under HB 1313 the commission would instead be made up of 7 active or retired members of the military chosen by the state’s Adjutant General who serves as the commander of the state’s National Guard.

HB 1313 has been forwarded to the House Judiciary Committee.

OK: state supreme court has struck down several laws as unconstitutional 7-2, so legislator wants to force court to be 9-0 or 8-1 in the future

Recently the Oklahoma Supreme Court has struck down several laws passed by the state’s legislature on 7-2 votes. Of particular note was the July 2015 decision by the court that resulted in the removal of a Ten Commandments display from the State Capitol Grounds as well as a 2013 ruling that struck down the legislature’s tort reform package for violating the state constitution’s “single subject” rule.

The result: a 2016 proposal to require at least an 8-1 or 9-0 vote to overturn state laws.

Under HJR 1063 as prefiled for the 2016 session

in any case in which the constitutionality of legislation enacted by the Legislature is at issue, the vote of the Supreme Court must be unanimous or there must not be more than one dissenting vote for the legislation to be declared unconstitutional. If the vote of the Supreme Court is not unanimous and there is more than one dissenting vote , the legislation shall not be held to be unconstitutional.

Interestingly, the bill does not apply to the state’s other court of last resort (Court of Criminal Appeals).

Only Nebraska (5/7) and North Dakota (4/7) require specific vote totals to find a law unconstitutional by the state’s court of last resort. A few states have quorum-minimums that require a majority of all justices of the court (as opposed to just a majority of the panel of justices hearing the case) are needed to strike down a law.

Arizona

The state’s constitution provides the Supreme Court may sit together (“in banc”) or in panels of 3 judges, however “the court shall not declare any law unconstitutional except when sitting in banc.” (Art. VI, Sec. 2)

Nebraska

The state’s constitution provides “No legislative act shall be held unconstitutional except by the concurrence of five [out of seven] judges.” (Art. V, Sec. 2)

This came up most recently in 2015 regarding a law that allowed “major oil pipeline” carriers to bypass the  regulatory procedures of the Public Service Commission.  (Thompson v. Heineman, 289 Neb. 798; 857 N.W.2d 731). Four judges ruled 1) appellees had standing and 2) the statute in question was unconstitutional. Three dissenting judges found that the five-judge requirement applied to both the questions of standing/jurisdiction and the merits and because there were not 5 votes on standing/jurisdiction the case should have been dismissed.

North Dakota

The state’s constitution provides “the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.” (Art. VI, Sec. 4)

This came up most recently in a 2014 case regarding a 2011 statute that addressed medication-induced abortions. (MKB Mgmt. Corp. v. Burdick, 2014 ND 197; 855 N.W.2d 31) The court fractured in a unique pattern

  • Two justices (one regular justice and a trial judge filling in due to a vacancy on the court) found the statute in question violated the ND constitution. Two justices found the statute constitutional under the ND constitution. One justice found the question did not need to be decided under the ND constitution. (2-2-1)
  • Three justices (two regular justices plus the fill-in trial judge) found the statute also violated the Federal constitution. One justice found the statute constitutional under the Federal constitution. One justice found the question was not properly before the court.  (3-1-1)

The court ultimately found “The effect of the separate opinions in this case is that [the statute] is not declared unconstitutional by a sufficient majority…”

Utah

The state’s constitution provides “The Supreme Court by rule may sit and render final judgment either en banc or in divisions. The court shall not declare any law unconstitutional under this constitution or the Constitution of the United States, except on the concurrence of a majority of all [five] justices of the Supreme Court. (Art. VIII, Sec. 2)

Virginia

The state’s constitution is similar to Utah’s: “The Court may sit and render final judgment en banc or in divisions as may be prescribed by law…[N]o law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.” (Art. VI, Sec. 2)

 

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.