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”

Texas becomes 4th state to consider bill to permit/require judges give jury nullification instructions; Utah House rejected plan 29-45

Texas this week becomes the 4th state this legislative session to consider a bill to permit or require judges give a jury nullification instruction.

HB 3911 as filed would amend Government Code 23 (General Provisions for Trial Courts). The new subchapter would require a judge’s charge to a jury instruct the members of the jury of their duty to:

  1. judge the law to determine whether the law is unjust or unjustly applied to a party in a case
  2. determine the validity of the evidence and
  3. vote on the jury verdict according to the members’ consciences.

The Texas bill is similar to one filed in Utah (HB 332). That bill would have required judges inform jurors of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

The bill was rejected by the full Utah House on a 29-45-1 vote earlier this month.

The other two bills (Oregon 924 discussed here and New Hampshire HB 133 discussed here) have not advanced in the last several weeks.

 

Oregon becomes 3rd state to consider bill to permit/require judges give jury nullification instructions; bill includes exact wording to be used

Efforts to permit or require judges in criminal cases give jury nullification instructions (discussed here) have now been introduced in a third state this session.

Oregon SB 924 would not only require judges give a jury nullification instruction in criminal cases but the bill provides the exact and specific wording to be used.

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.

This is similar to the bill approved in the New Hampshire House in that it requires the judge use wording directed by the legislature. This issue came up in that state after the legislature adopted a jury-nullification law several years ago and the courts ruled that the judiciary’s existing jury instructions were sufficient.

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The Utah bill doesn’t include exact wording, only that defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

Oregon SB 924 has been filed in the Senate Judiciary Committee.

First Arkansas, then Oklahoma, now Oregon considers letting elected officials carry guns in courthouses

Efforts to allow elected officials to carry guns into courthouses, adopted in Arkansas in 2015 and being actively considered in Oklahoma in 2017, have now moved to Oregon.

Current law (ORS 166.370(2)(a)) generally makes it a Class C felony to carry guns into “court facilities”, “local court facilities” or at least those portions of the facilities used by the courts.

Under HB 3107 as filed those prohibitions would not apply where

  1. the facility is located in a building in which other governmental functions take place
  2. the elected official performs official duties in the building and
  3. the elected official has a concealed handgun license

HB 3107 has been filed but not yet assigned to a committee.

 

 

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.

Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

Election 2016: Both Pennsylvania and Oregon were late-adopters of mandatory judicial retirement ages

As I mentioned in prior posts on this subject, many states either came out of the Revolution (like New York’s 1777 constitution), or entered into the Union (like Hawaii when it was admitted into statehood), with mandatory judicial retirement ages.

The states considering revisions to their ages (Oregon and Pennsylvania) are actually in this respect very, very late adopters.

Pennsylvania (193 years)

Pennsylvania has had 5 state constitutions. Of these, only 1 adopted in 1968 and going into effect in 1969 made mention of mandatory judicial retirement ages.

The 1776 constitution made no mention of mandatory judicial retirement. Neither did the 1790 constitution nor the 1838 constitution nor the 1874 constitution.

It was not until 1968 and the adoption of Art. V, Sec. 16(b) that the mandatory age was put in as the result of concerns expressed by members of constitutional convention regarding judges aging into senility (See pages 199-200).

Justices, judges and justices of the peace shall be retired upon attaining the age of 70 years.

This has been effectively amended once since 1969. In 2001 voters approved Amendment 2, allowing for judges to serve out the year they turn 70. That proposal was approved by 67.5% of voters.

Justices, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years.

Oregon (103 years)

Oregon has had 1 constitution but, effectively, 2 Judiciary Articles. The first (now called Article VII (Original)) was adopted in 1857 and made no mention of a mandatory retirement age. A 1910 revision, called Article VII (Amended), also made no mention.

It wasn’t until 1960 that a mandatory judicial retirement age was worked into the state’s constitution as Article VII (Amended), Sec. 1a. It wasn’t as prescriptive as the Pennsylvania model, instead allowing the legislature to set an age from end-of-year-turns-70 to 75.

Notwithstanding the provisions of section 1, Article VII (Amended) of this Constitution, a judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law:

(1) Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years