Bans on court use of sharia/international law: 33 bills in 20 states to start 2012; review of all efforts since 2010

This post has been updated. Click here.

2012 marks the third year in a row to see major legislative efforts to ban state courts from using sharia or international law. A recap:

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

  • Louisiana HB 785 & SB 460: “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.
  • Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
  • Tennessee HB 3768 & SB 3740: Defines “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…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

  • Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….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 or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

State-by-State 2011 Legislative Year in Review: Pennsylvania

New laws or resolutions affecting the courts enacted or adopted by the Pennsylvania legislature in 2011 include the following:

HB 15 Establishes searchable budget database-driven Internet website detailing certain information concerning taxpayer expenditures and investments by judicial and other agencies.

HB 38 Aligns the filing fees with the jurisdictional limits for the Philadelphia Municipal Court and the Magisterial District Judges. The Philadelphia Municipal Court’s upper limit for fees is raised from $10,000 to $12,000, and the upper limit for Magisterial District Judges’ fees is raised from $8,000 to $12,000.

HR 69 Proclaims May 2011 as “National Drug Treatment Court Month” in Pennsylvania.

HR 275 Recognizes May 2011 as “Drug Treatment Court Month” in Pennsylvania.

SB 834 Requires all “governing authorities”, including the Supreme Court for these purposes, to required fiscal security through bonding, blanket bonding and insuring of elected and appointed county officers and employees. Sets form, amount and payment of premiums for and the filing and recording of the required security and for the subsequent issuance of official commissions

Interim Judiciary Committees meeting in Florida, Nebraska, Pennsylvania this week; focus on human trafficking

With only a few weeks left before regular sessions start, interim committees are starting to wrap up their work and provide indications of what will be on the agendas for the 2012 sessions.

Pennsylvania’s House Judiciary Committee meets December 5 & 6 for votes on:

  • HB 235: posting of information relating to the National Human Trafficking Resource Center Hotline & duties on the Department of Labor and Industry, certain licensing authorities and prothonotaries
  • HB 1183: offenses of unlawful use of Internet and for unlawful use of computer scrub software
  • HB 1958: extensively revising provisions relating to registration of sexual offenders pursuant to Federal mandate
  • HB 1976: venue in personal injury actions against corporations and similar entities.
  • HB 2016: providing for the definition of “commercial sex”; further providing for trafficking of persons; and providing for the offense of selling or buying of minors into commercial sex and for action for coercion into prostitution.
  • SB 815: right to counsel in juvenile matters.
  • SB 817: use of restraints on children during court proceedings.

The Nebraska unicameral legislature’s Judiciary Committee meets December 5 for several interim studies, including

  • LR 243: human trafficking in Nebraska in connection with labor and sex trafficking.
  • LR 288: standing for foster parents in removal proceedings.
  • policies and procedures associated with immigrants who come in contact with law enforcement at Federal, state, and local levels.

In Florida, the House Judiciary Committee’s Criminal Justice Subcommittee will meet December 6 for presentations/workshops on:

  • juvenile justice reform initiatives
  • sexual offender statutes and the Federal Adam Walsh Act
  • mental health and veterans courts

The committee will also consider several bills:

The House Judiciary Committee’s Civil Justice Subcommittee will meet December 7 to consider several court specific bills:

  • HB 631: Repeals provisions relating to regular terms of Supreme Court & circuit courts; requiring judge to attend first day of each term of circuit court; requirement for judge to state reason for nonattendance, penalty for nonattendance of judge, adjournment of circuit court upon nonattendance of judge, calling all cases on docket at end of each term, regular terms of district courts of appeal, special terms of district courts of appeal, requirement that criminal trials be heard in term of court prior to civil cases, & requirement that persons in custody be arraigned & tried in term of court unless good cause is shown; conforms provisions. Allows Supreme Court to set terms of court for Supreme Court, district courts of appeal, & circuit courts. Provides that appellate courts may withdraw mandate within 120 days after its issuance.
  • HB 4125: Repeals provisions relating to selection of judges ad litem in circuit or county court.
  • HB 4133: Repeals provisions relating to district courts of appeal authority to make rules & regulations for their internal government.

Additional activity is set for other bills:

Finally also meeting on December 7 is the Florida Senate Judiciary committee, which will debate:

 

Bans on court use of sharia/international law: Pennsylvania bill introduced

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. Continue reading Bans on court use of sharia/international law: Pennsylvania bill introduced

Pennsylvania’s House also set to examine judicial selection November 17

While Minnesota’s Senate will be considering changes to its judicial selection system, the Pennsylvania House Judiciary Committee will consider on November 17 the use of a merit selection system of the state’s appellate courts (prior post here). A public hearing is set to take place at the University of Pennsylvania on HB 1815 (Constitutional Amendment) and HB 1816 setting up the Appellate Nominating Commission system. If approved, the constitutional amendment would have to be readopted by a subsequent legislature before going to the voters.

Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

Ohio voters will head to the polls November 8 to decide the fate of Issue 1, marking the sixth time in 20 years the question of judicial retirement has been on the ballot (Hawaii 2006; Louisiana 1995 & 2003; Pennsylvania 2001; Texas 2007; Vermont 2002), with 4 victories to 2 defeats.

Four legislatures have adopted statutes to alter retirement (Indiana 2011; Kansas 2003 & 2010; North Carolina 1992; Vermont 2003). Moreover, Arizona has advanced a proposed change for the 2012 ballot while New York voters will probably address the issue in 2014. This marks a trend over the last several years in particular of state legislatures confronting judges living longer and the question of whether there should be any limits on service at all.

State by state breakdown below the fold.

Continue reading Ohio Issue 1: What other states tried to increase or remove their judicial retirement ages and how did they do?

Interim Judiciary Committees meeting in Illinois and Pennsylvania

This is going to be a very active week for interim judiciary committees.

Today, October 24, the Pennsylvania House Judiciary Committee looks at venue in personal injury actions (HB 1552) while tomorrow it will vote on HB 1552 as well as HB 1156 (Offense of phishing and for protection from liability under certain circumstances) and HB 1709 (child custody, further providing for consideration of criminal conviction).

The Pennsylvania Senate Judiciary also meets October 25. On its agenda N

  • SB 433 (incorporation of benefit corporations)
  • SB 903 (arson and related offenses)
  • SB 1019 (“corrections managers”)
  • SB 1092 (powers of attorney)

Illinois’ Senate Judiciary Committee meets October 25 to consider HB1589 (custody and related court orders where one parent is in military service) and HB1604 (parents who violate visitation orders to have driving license suspended).

At the same time the Senate is meeting, the Illinois House Judiciary I – Civil Law Committee will look at SB1694 (who has access to copies of the deceased patient’s records) while House Judiciary II – Criminal Law Committee considers a new law providing that any judge, circuit clerk or clerk of court, public official or employee, court reporter, or other person who knowingly and without lawful authority falsifies any public record received or held by any judge or by a clerk of any court commits a Class 3 felony (SB 1808).

 

 

Pennsylvania House Interim Judiciary Committee to examine phishing, criminal surveillance

The Pennsylvania House’s interim Judiciary Committee will meet on October 18 to vote on several bills:

  • HB 1126 Restitution for tampering with evidence or public records or information
  • HB 1156 Offense of phishing and for protection from liability under certain circumstances
  • HB 1531 Offense of criminal surveillance
  • HB 1552 Venue in personal injury actions

Why Senate confirmation for state judicial nominees? Why not House? Or joint?

Numerous state legislatures in 2011 that have a version of merit selection (Arizona, Florida, Oklahoma) or have considered adopting merit selection (Mississippi, Pennsylvania, Wisconsin) have put in provisions for Senate confirmation. Additionally, Rhode Island (HB 5675) considered removing the state senate’s existing confirmation power with respect to a trial court (Superior Court) and transferring the power to the house.

But the question arises: why Senate confirmation? There’s the case for reference to the U.S. Senate and its role in federal judicial confirmations. And this was consistent when a) state senators were elected by counties to represent the county as a whole (as in New Jersey) or clusters of counties (as in New York) and b) trial judges (and occasionally appellate judges) were picked by districts made up of clusters of counties.

Thanks to one person/one vote decisions by the U.S. Supreme Court over the years, the practice of Senate districts following county lines is over. The practice of appellate judges being chosen based on geography is also on the decline with only 10 states continuing to use the practice for courts of last resort and 17 of 40 states with intermediate appellate courts using district based selection (although Montana may buck the trend in 2012, Oregon voters rejected the idea 2-1 in 2006).

Moreover, as I noted in March, such proposals have fared much better in state senates than in state houses, and history bears this out. In short, when the power to confirm has been handed solely to the state senate, it has had mixed support in the state’s house. The only way it happens, normally, is when there is a litany of other issues in play.

When does Senate confirmation of appellate nominees come into a constitution?

  • Conventions changing entire constitution: Delaware, Hawaii, and New Jersey
  • Constitutional amendment changing most/entire Judiciary Article: Maryland (1970 attempt) and Utah
  • Constitutional amendment changing judicial selection only: Maryland (1976), New York
  • Constitutional amendment changing most/entire Executive Branch Article: Maine, Vermont

In the case of Maryland (1976) and New York (1977) the amendments to have Senate confirmation met with lower House approval as part of a package of bills related to the courts.

This institutional inertia may explain some 2011 activity. Consider the following:

  • The original Florida House proposal HJR 7111, introduced March 22, 2011 included nothing about Senate confirmation of justices of the planned modified supreme court with civil and criminal panels. The only mention of the Senate was a provision stripping the power of the court(s) to name their chief justice and giving it to the Governor with Senate confirmation. Six days later, SJR 1664 requiring Senate confirmation for the Supreme Court was passed by the Senate Judiciary Committee. On April 5, the Senate Governmental Oversight and Accountability Committee gave its approval of SJR 1664. By April 8, SCR 1046) and Oklahoma Senate (SB 621) did not fare as well. The Arizona bill went nowhere. The Oklahoma bill moved through the Senate and was not even brought up for a House committee hearing.

Roles of legislatures in appellate judicial selection

Both chambers

Connecticut: since the 1818 Constitution. An 1880 amendment (Article XXVI) allowed for the Governor to nominate, but still required confirmation by both chambers. A 1986 amendment added merit selection, permitting the Governor to nominate only from those names submitted by the Judicial Selection Commission.

Rhode Island: since the 1842 Constitution and kept as part of the 1986 constitution. A 1994 amendment added merit selection, permitting the Governor to nominate only from those names submitted by an independent non-partisan judicial nominating commission.

South Carolina: since the 1776 Constitution and kept as a part of the 1778, 1790, 1861, 1865 and 1868 constitutions, plus a 1973 revision to the judiciary article. A 1997 constitutional amendment added merit selection allowing the legislature to elect only from those names submitted by the Judicial Merit Selection Commission.

Virginia: since the 1776 Constitution and kept as part of the 1850, 1861, 1864, 1870, and 1902 constitutions.

Senate only

Delaware: since the 1897 Constitution. The 1776 Constitution specified a joint ballot of both chambers of the general assembly and the “president” (i.e. governor) of the state. The 1792 and 1831 Constitutions placed the power of appointment solely in the hands of the Governor.

Hawaii: since the 1949 Constitution.

Maryland: since a 1976 constitutional amendment. The 1776 Constitution gave appointment to the Governor with the Council “for the time being” and put it solely in the hands of the Governor via an 1837 amendment. Maryland’s 1864 Constitution provided for direct election of the judges of the top court (Court of Appeals), but provided the Governor with Senate confirmation would select the chief judge. The 1867 Constitution made 7 of the 8 chief judges of the state’s judicial circuits the state’s top court and provided the Governor with the confirmation of the Senate would select the chief judge of the Court of Appeals. This practice continued until a 1943 constitutional amendment separated the roles of chief circuit judge from judge of the Court of Appeals but still required direct election. A 1960 amendment reaffirmed direct election, while changing the geographic boundaries.

It should be noted that the Maryland proposal was initially rejected in 1970 (1970 version) and included most courts in the state (judges of the Court of Appeals, intermediate courts of appeal, Circuit Courts, and the Supreme Bench of Baltimore City), increased terms of office to 15 years, and made revisions to the power of the Commission on Judicial Disabilities which had just been created in 1966. The successful 1976 version focused exclusively on merit selection with Senate confirmation for appellate courts only.

New Jersey: since the 1844 Constitution. The 1776 Constitution made the Governor and Council the state’s top court (Court of Appeals). The current 1947 Constitution replicated the Governor-appoints-Senate confirms system of the 1844 Constitution, but with a significant change. Rather than being re-confirmed every 7 years, the justices would face only 2 Senate confirmations: one for their initial appointment and a second after 7 years. If reconfirmed a second time, they would remain in office until age 70.

New York Court of Appeals (state’s court of last resort): sporadically since the 1777 Constitution. Under the 1777 Constitution, a Council on Appointments made up of 4 Senators chosen by the Assembly, plus the Governor (to break ties) was used. The 1821 Constitution changed this to a Governor-appoints-Senate-confirms system. The 1846 Constitution created a bifurcated election system: 4 of the 8 judges would be elected by the statewide, the other 4 would be locally elected judges of the general jurisdiction court (confusingly called the “supreme court”) “having the shortest time to serve.” A new constitution was voted on, section by section, in 1869; the judicial article was the only one approved. That new article provided for statewide election. The 1894 Constitution and 1938 Constitution continued the statewide election system. A 1977 amendment that revamped much of the Judiciary Article created the present merit-selection-Senate-confirmation system.

10/24/11 update: Selection to the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature. The Governor alone elevates from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”).

Utah: since a 1984 constitutional amendment. The original 1895 constitution provided for statewide election. The 1984 amendment overhauling the entire Judiciary Article provided for the present merit-selection-Senate-confirmation system. A subsequent 1992 amendment increased the time for the Senate to consider nominations.

Vermont: since a 1971 constitutional amendment. The 1793 Constitution provide for joint election by the unicameral House and Executive Council, a practice that was continued when the Council was made the Senate via a 1836 amendment. An 1890 effort to shift this to the Senate alone was rejected by the Senate itself but was incorporated into the 1971 revision of the state’s entire Judiciary Article.

Hybrid

Maine: since a 1975 constitutional amendment (L.D. 25). The 1820 Constitution in place when Maine was separated from Massachusetts and became a state kept the Massachusetts practice of supreme court selection method of governor-appoints-and-executive-council-confirms. The 1975 amendment abolishing the Council created the current procedure for confirmation: the Governor nominates and a Joint House/Senate legislative committee recommends confirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.