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)

OK: Bill would require judicial candidates post all written opinions online 60 days before election

Oklahoma’s legislature has been working overtime on changes and alterations to the state’s judicial selection system (see here). This week the state’s Senate also approved SB 22 which would require, effective November 2011, all judicial officers running for election make their written rulings and opinions available online at least 60 days prior to the election.

The bill gives the candidate some options of how the information can be posted. They can designate a web site, the full address of which must be included within the declaration of candidacy. Multiple candidates can share a website, but only if the information is separated by judge/justice.

Left unspecified is how far back the opinions and rulings would have to be kept. For example, several of the justices of the state’s supreme court and court of criminal appeals (the two courts of last resort in the state) have served for 30+ years as judges of both trial and appellate courts. Supreme Court Chief Justice Steven W. Taylor, for example, served as a District Judge and Associate District Judge for 20 years (March 1984- September 2004) and has served on the Supreme Court since. Court of Criminal Appeals Presiding Judge Gary L. Lumpkin has been on that court since January 1989, having previously served as seven years as a District Judge and Associate District Judge (1982-1989).

It was approved by the full Senate March 9 on a 30-13 vote.

 

In last seven days, bills to tweak, modify, or end merit selection advance in the IA House, AZ Senate, and OK Senate

Merit selection has been the focus of an exceptionally large number of bills this legislative year, and a even more surprising number have advanced in their respective chambers in the last seven days. The scope of the bills range from tweaks, to modifications, to outright abandonment of merit selection.

Tweaks

Iowa’s HB 242, requires the state’s governor appoint at least one district judicial nominating commission member from each county unless there are fewer counties than commissioners. Given that the commissions are five member panels, and only Judicial District 7 is a 5-county district, this has the effect of prohibiting any district nominating commission from having more that two members from the same county. It was approved on March 7, having bypassed any committee hearings, on a 98-0 vote.

Modifications

Arizona SCR 1040 substantially rewrites, but does not end, the state’s merit selection system:

  1. Increases to 400,000 the population requirement for a county to have merit selection for judges (currently 250,000).
  2. Increases supreme court and superior court terms to 8 years.
  3. Strips state bar’s power to fill certain vacancies on judicial nominating commissions. Requires instead state bar submit 3 names for each state-bar vacancy on commission for governor’s approval and that a majority of the 3 must be the same political party as governor.
  4. Requires attorney-members of commissions have been member of bar at least five years.
  5. Removes requirement that governor’s appointments to commission be confirmed by senate.
  6. Provides of 13 members of appellate commission, none may be currently serving as a judge, not more than two of the members may be attorneys, not more than one member may be a retired judge, not more than nine members may be members of the same political party, and not more than six members may be residents of the same county.
  7. Provides supreme court *must* adopt any rules that the commissions vote for themselves, so long as they are lawful.
  8. Expands number of names to be submitted to governor for a vacancy from 3 to 6. If fewer than 6 people apply, all eligible names must be submitted
  9. Subjects all those selected by governor to senate confirmation.
  10. Ends retention elections. Provides that at end of term governor may reappoint and senate may reconfirm judge.

SCR 1040 was approved March 8 by the Senate on 19-11 vote.

Oklahoma SB 621 requires any appointment or reappointment by the Governor to fill a Judicial Office be confirmed by a majority of the Senate. SB 621 was approved March 8 by the Senate on 30-14 vote.

End Merit Selection

Oklahoma SJR 36 repeals Section 3 of Article VII-B of the Oklahoma Constitution establishing the Judicial Nominating Commission. IT amends Section 4 of Article VII-B dealing with the Judicial Nominating Commission and replaces with provisions allowing the governor, upon a judicial vacancy, to chose anyone subject to Senate confirmation.  If the Senate is not in session when an appointment is made, the Governor may call the Senate into special session no more than once per quarter to advise and consent on any such appointments.

SJR 36 was approved earlier this evening (March 9) on a 32-15 vote.

 

2011 on track to have most efforts to remove judges from office in recent memory

It is barely March, and already there have been more bills seeking the removal of judges in 2011 than in any year in recent memory. As I noted in a special December 2010 edition of Gavel to Gavel, while threats to impeach state court judges have increased, it has only been in the last several years that actual bills have been drafted and submitted.
All told, 10 judges (9 state, 1 federal) are the target of impeachment or removal efforts in the state legislatures this year. This is in addition to the threats to impeach Iowa’s supreme court justices made earlier in the year that have not materialized as articles of impeachment.

State Bill Form of removal Target Reason for removal request
Massachusetts HB 2172 Bill of address Supreme Judicial Court Chief Justice Roderick L. Ireland Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Francis X. Spina Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Judith A. Cowin Unknown
Massachusetts HB 2172 Bill of address Supreme Judicial Court Justice Robert J. Cordy Unknown
New Hampshire HR 7 Impeachment Marital Master Phillip Cross Decisions in custody/divorce cases
New Hampshire HR 7 Impeachment “any justice of the New Hampshire superior court” Decisions in custody/divorce cases
New Jersey SR 105 Impeachment Supreme Court Justice Roberto Rivera-Soto Refusal to vote in some cases
Oklahoma HR 1001 Request for removal by judicial disciplinary commission District Judge Thomas Bartheld Failure to reject negotiated plea bargain in child sex abuse case
Oklahoma HR 1005 Impeachment request to Congress U.S. District Court Judge Vickie Miles-LaGrange “Abuse of authority” for issuing an injunction against state’s sharia law ban
Oklahoma HR 1006 Request for removal by judicial disciplinary commission District Judge Tammy Bass-LeSure 36 felony counts, including four counts of perjury and 32 counts of fraudulent claim

Oklahoma: Fast track to ending merit selection in state?

It was not just Kansas acting to end merit selection last week. Oklahoma’s Senate Judiciary Committee approved SJR 36 fo 2011, which would end the state’s judicial nominating commission for appellate courts and allow the state’s governor to appoint any qualified person subject to  senate confirmation (additional coverage here, h/t Gavel Grab). As introduced, the judges so appointed would still be subject to retention election rather than re-confirmation or a contested election.

Today, the House Rules Committee announced it would take up its version (HJR 1009) March 2, possibly an indication the bill will bypass the subject matter jurisdiction committee (House Judiciary) altogether. Whereas the Senate version simply does away with any role for the state’s judicial nominating commission (JNC), the House version maintains the commission but makes their selections in effect, advisory. The governor “may appoint a person who is not one of the nominees to fill the vacancy.” Moreover, the House version retains a provision allowing the state’s chief justice to make the selection if the governor fails to do so for 60 days (the senate version jettisons this). Regardless of who picks, the individual chosen would be subject to senate confirmation and later retention elections.

This quick action may seem like a fast track, but it has been several years in building. 3 years ago SJR 36 of 2008 as introduced read very similar to SJR 36 of 2011, eliminating the judicial nominating commission outright and putting in place senate confirmation.  The House, however, heavily modified the bill. Their version would have kept the judicial nominating commission for the appellate courts and required vacancies (due to death, resignation, etc.) in the state’s trial and worker’s compensation court be subject to senate confirmation. Moreover, the House version read “Any appointment by the Governor to fill a Judicial Office shall be confirmed by a majority of the Senate.” (emphasis added) However, as noted above if the governor failed to make a nomination within 60 days, the chief justice would make the appointment and, as written in the House amendment, without the need for senate confirmation.  It is unclear if this was a glitch in drafting or by design. Regardless, the Senate rejected the House amendment and while a conference committee was appointed, time ran out before they could reach a compromise.

In 2009 it came back as HJR 1041. As introduced, it read almost exactly like SJR 36 the year before (senate confirmation for all judicial vacancies). What passed, however, was pared down again by the House to just senate confirmation for worker’s compensation court judges only (in OK, the worker’s compensation court is a court within the judiciary, not an executive branch agency).

HJR 1041 of 2009 was adopted and all ready to go for the 2010 ballot. It was withdrawn from the ballot in favor of  HJR 1041 of 2010. That bill (which became State Question 752) let the Speaker of the House and President of the Senate add 1 member to the JNC and put in a provision that non-attorney members of the JNC  could not have attorneys in their family. That was approved on the November 2010 ballot.

This created a problem: what to do with the JNC members in non-attorney designated seats who had lawyers in their family? In mid-February the state’s supreme court ruled they could stay.

Special Edition on Court Funding

The American Bar Association Task Force on Preservation of the Justice System will be holding its inaugural meeting in Atlanta today. The task force is set to address “the severe underfunding of our justice system, depletion of resources, and the courts’ struggle to render their constitutional function and provide access to justice for countless Americans.

This special edition of Gavel to Gavel looks at just some of the ways state legislatures have proposed funding courts in the last several years.

The regular, weekly edition of Gavel to Gavel will appear Thursday.

An examination of 2011 sharia law & international law bans before state legislatures

This post has been updated. Click here and here.

Welcome Thinkprogress.org, Stateline, Opinio Juris and HLPR readers! Enjoy and sign up for Gavel to Gavel the weekly edition here.

In 2010, several states proposed bans on the use of sharia or international law (prior blog posts here and here; Gavel to Gavel the publication special focus issue here). The Oklahoma version (which was limited to the state’s courts) was approved by voters in the state in November 2010, but a restraining order has been issued as part of a Federal lawsuit against the state constitutional amendment. The relevant portions (another part renamed the State Industrial Court to the State Worker’s Compensation court) read:

The Courts provided for in subsection A of this section [i.e. Oklahoma’s state courts], 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 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.

Constitutional Amendments

Undaunted by the Federal court action, Wyoming has introduced its own version (HJR 8):

When exercising their judicial authority the courts of this state shall uphold and adhere to the law as provided in the constitution of the United States, the Wyoming constitution, the United States Code and federal regulations promulgated pursuant thereto, laws of this state, established common law as specified by legislative enactment, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not consider the legal precepts of other nations or cultures including, without limitation, international law and 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.

Texas also has a proposed constitutional amendment (HJR 57):

A court of this state shall uphold the laws of the Constitution of the United States, this Constitution, federal laws, and laws of this state. A court of this state may not enforce, consider, or apply any religious or cultural law.

Arizona’s proposed constitutional amendment (SCR 1010 of 2011)  is a modified version of various 2010 bills (HB 2379, SB 1026, SB 1396) that would have made statutory changes only:

In making judicial decisions, the courts provided for in subsection A [i.e. Arizona’s state courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the constitution of this state, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this state and rules adopted pursuant to the laws of this state and, if necessary, the laws of another state of the United States provided the law of the other state does not include international law.  The courts shall not look to the legal precepts of other nations or cultures.  The courts shall not consider international law.

South Dakota’s House is also considering adding the following to their constitution (HJR 1004)

No such court [i.e. South Dakota state court] may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.


Statutes


While Oklahoma was amending its constitution, Tennessee (HB 3768/SB 3470) *and Louisiana (HB 785) adopted statutes in 2010 that addressed the use of international law. That law* has been introduced almost verbatim in 2011 in Arkansas (SB 97), Kansas (HB 2087), Nebraska (LB 647), and Oklahoma (HB 1552). Interestingly, the Tennessee law and its variations in the other states are not specifically limited to state courts, only.

As used in this act, “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…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 Constitution and the [name of state] Constitution.

*Update: there was a Louisiana version as well in 2010, HB 785 prefiled 3/18/2010 that was enacted.

“Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.

However, the Tennessee version was filed 2/2/2010 in the House and 1/28/2010 in the Senate. Therefore, I still think it valid to call it the Tennessee version.

Alaska (SB 88), Georgia (HB 45), Indiana (SJR 16), Mississippi (HB 301 and HB 525), South Carolina (SB 444) and Texas (HB 911) have variations on the Tennessee version, although only Mississippi HB 301 specifically mentions sharia law:

Alaska: A court, arbitrator, mediator, administrative agency, or enforcement agency may not apply a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution….In this section, “foreign law” means a law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States and the territories of the United States.

Georgia: As used in this Code section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Indiana: A court may not enforce a law, rule, or legal code or system established and either used or applied in a jurisdiction outside the states of the United States, the District of Columbia, or the territories of the United States if doing so would violate a right guaranteed by this constitution or the Constitution of the United States.

Mississippi HB 301: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States including Sharia Law…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Mississippi HB 525: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.

Nebraska: For purposes of 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, an international organization or tribunal, and applied by such jurisdiction’s courts, administrative bodies, or other formal or informal tribunals…A 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 on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska.

South Carolina: As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.

Texas: In this chapter, “foreign law” means a law, rule, or legal code of a jurisdiction outside of the states and territories of the United States…A ruling or decision of a court, arbitrator, or administrative adjudicator may not be based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.