TX State of the Judiciary: End straight ticket voting for judges, support access to justice and indigent defense

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

On February 23, Texas Chief Justice Wallace Jefferson delivered his State of the Judiciary address to a joint session of the legislature, per  HCR 43 adopted earlier in February. As HCR 43 notes, the speech has a statutory basis. Section 21.004 Government Code, provides:

(a) At a convenient time at the commencement of each regular session of the legislature, the chief justice of the supreme court shall deliver a written or oral state of the judiciary message evaluating the accessibility of the courts to the citizens of the state and the future directions and needs of the courts of the state.

(b) It is the intent of the legislature that the state of the judiciary message promote better understanding between the legislative and judicial branches of government and promote more efficient administration of justice in Texas.

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

I have the privilege of addressing, in this room, the great leaders of our state, who have a vision for a better Texas; the passion to move public policy toward that end. Today, I am calling for action, on several fronts.

Juvenile Justice
The Supreme Court of Texas hears only civil matters. But by constitution, custom, and statute, we also have jurisdiction over juvenile cases. Those files cross our desks from time to time. We read the record, apply the law, and move on to the next case. I got a call a few months ago from a judge who said: “Chief, I would like you to see the faces behind those files.” And so I sat in on Judge Jeanne Meurer’s court and observed a day in the lives of families dealing with juvenile offenders
So let me announce my first plea for action. This one is easy. Jeanne Meurer is in the trenches, she knows how to reach these kids, she understands the challenges facing our parents and schools. When Jeanne Meurer calls you, and asks for your help, file the bill, appropriate the funds, sign the Act.

Access to Justice
We are a nation and state that believes the law provides protection for those who are most powerful, for those who are most vulnerable. But today, the courthouse door is closed to many who have lost their jobs, to military veterans who are on the streets, to women who suffer physical abuse
Here, then, is my second call to action. Even in the face of a tremendous budget crisis, I ask the Legislature to duplicate what it courageously did last Session and appropriate $20 million from general revenue for basic civil legal services. Advance legislation that would add a small fee to case filings, so that money is available to help Texans secure the legal rights that our constitution and laws give them.

Indigent Defense
Our commitment to equal justice does not end with civil justice. Recent efforts to find and rectify wrongful convictions in Texas provide a promising example of how our courts are working to free the innocent…We in the judiciary are trying to do our part. The Court of Criminal Appeals’ Criminal Justice Integrity Unit organized a two-day Forensic Science Seminar, educating more than 400 attorneys, judges, police officers, legislators, and lab personnel on evidence standards and specific sciences. The judicial Task Force on Indigent Defense recently helped establish the Harris County Public Defender’s Office
My third call for action is to ask this Legislature to support these efforts to make our criminal justice system fair. I commend Senator Ellis for his work on these issues and I commend those of you in this room who will work to pass the bills, and fund the projects, that will ensure no innocent person languishes in our prisons.

Judicial Selection

All that I have discussed depends on an impartial system of justice overseen by the judicial branch. We lost one of that branch’s greatest leaders, Joe Greenhill, less than two weeks ago. He told me once that he regretted that Texas has continued to elect judges on a partisan basis. I regret it, too. A justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted. I urge the Legislature to send the people a constitutional amendment that would allow judges to be selected on their merit. If we do not reform the process completely, judicial elections can at least be changed. And so my final call to action is that we consider common-sense solutions to the problems that plague partisan election of judges.

First, I would eliminate straight-ticket voting that allows judges to be swept from the bench…Let’s extend terms for state judges, from four years to six for district court judges, and from six years to eight for appellate court judges.. And let’s bring sense to the process to allow a judge appointed to an unexpired term to serve a full term before having to face the voters. That will give her or him experience and – this is important – a record to run on.

The Past, Present, and Future of the Judiciary in Texas
Led by public officials and private citizens, the Task Force has found documents about Sam Houston, litigation surrounding American Indians, immigration records in Galveston County – some of your families first came to Texas through that port – and about other exciting periods in our history. This session, the Legislature will be asked to address whether court clerks should retain such historic records. My recommendation is an emphatic yes. These documents are our living history: the parchment of our past. They prove to us, not only that we rose from the severest of circumstances, but that we forged ahead, and became stronger for it.

I ask you to take action this Session. Give us the assurance that, at this crucial juncture, we did not turn our backs on the neediest among us, but continued to serve them as the Constitution so strongly demands.

Texas bill would require Office of Court Administration put list of vexatious litigants online

Texas’ HB 720 was approved yesterday by that state’s House Committee on Judiciary & Civil Jurisprudence. The bill’s primary aim is to explicitly permit a person who has been found to be a vexatious litigant (and thus under an order requiring prior approval before additional filings)  may appeal the designation to a court of appeals.

Another portion of the bill, however, would modify an existing law that requires the state Office of Court Administration keep a list of vexatious litigants. That list must currently be send annually to the clerks of all courts in the state. If approved, Section 11.104(b) of the Civil Practice and Remedies Code would delete the annual distribution requirement and instead require the list be posted online, along with an indication of whether the person has filed an appeal of the designation.

Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

Readers may recall that I have examined efforts to prohibit state courts from using or referencing sharia or international law (see here and here). Last week some of these bills began to move through the legislative process, so an update seemed in order: Continue reading Bans on court use of sharia/international law advance in Arizona and die in Mississippi and South Dakota

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

This post has been updated. Click here and here.

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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.

E-signed and e-delivered, but not e-sealed?

Signed, sealed and delivered is more than a Stevie Wonder song, it represents the attestation of an action or record of a court dating back centuries. Technology, however, has outpaced the days of wax and impressions. For that reason, several state legislatures have had to go back and change the laws of their states to allow their courts more latitude. Legislatures in Oklahoma (HB 2253 of 2004), Iowa (HB 579 of 2009), and Michigan (SB 720 of 2010)  all authorized all courts in their state to e-seal. Texas in 2007 (SB 229) gave its district court the authority to create a seal electronically, thus allowing the courts to transfer, store, and locate documents with greater efficiency.

This year, Nevada enters into the e-seal fray. SB 6 authorizes the electronic reproduction of the seal of a court (current law requires either impressing the seal on the document or impressing the seal on a substance attached to the document). The bill is currently pending in the Senate Committee on Judiciary.

Cross-posted at Court Technology Bulletin blog

TX: Cost-benefit analysis for Rules of Court changes?

According to Texas Lawyer’s Blog, a piece of prefiled legislation in that state’s House would require the Texas Supreme Court conduct a cost-benefit analysis of proposed rules prior to adoption or amendment by the court. HB 352 would require the analysis for a host of rules, such as civil and criminal procedure and bar discipline.

Unlike some states which have constitutionally derived rule making authority that cannot be altered or interfered with by the state legislature, the Texas Supreme Court may  “promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.

No word yet as to what prompted this particular piece of legislation to be introduced.