Bans on court use of sharia/international law: ABA House of Delegates opposes “blanket prohibitions”, state legislatures out of session

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Earlier today, the American Bar Association House of Delegates approved Resolution 113A:

RESOLVED, That the American Bar Association opposes federal or state laws imposing blanket prohibitions on consideration or use by courts or arbitral tribunals of foreign or international law.

FURTHER RESOLVED, That the American Bar Association opposes federal or state laws imposing blanket prohibitions on consideration or use by courts or arbitral tribunals of the entire body of law or doctrine of a particular religion.

Clearly geared towards efforts to ban court use of sharia/international law, the resolution comes at a time when the state legislatures are out of session and silent. Since the July update, no legislative activity has occurred, although the Michigan bill remains technically pending (the legislature sits year-round).

Full roster of 49 bills introduced in 2011 in 22 states and their statuses after the jump.

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

New laws affecting the courts, enacted by the Wyoming legislature in 2011, plus a constitutional amendment to appear on the 2012 ballot, include the following:

HJR 1 (Constitutional Amendment) Eliminates provision that district court commissioners may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act. Placed on 2012 ballot.

HB 19 Permits retired circuit court judges not practicing law to serve temporarily on any circuit court with the consent of the chief justice.

HB 123 Repeals requirement that circuit court judges and magistrates provide surety bonds before taking office.

HB 190 Provides for the electronic submittal of fees, fines, bonds and penalties to circuit courts. Allowing for the creation of an internet based electronic transaction system for such fees, fines, etc. Provides that the supreme court may reduce fines, bonds and penalties if submitted electronically.

SB 15 Increases circuit court’s jurisdiction to $50,000. Increases small claims cases from $5,000 to $6,000.

Special Edition: 2012 Ballot and the Courts

While a great deal of focus is already being drawn to the 2012 presidential elections, next year is set to be an incredibly busy year for ballot items related to state courts.

This special edition of Gavel to Gavel released today looks at those items as well as those currently circulating for signatures.

Bans on court use of sharia/international law: Michigan becomes 22nd state to consider, Texas House tries again to get Senate to adopt

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With Alabama, Iowa, and North Carolina all set to adjourn in June, it looked as if there would not be any additional sharia/international law bans introduced or debated in 2011. However, in mid-June Michigan introduced a bill (HB 4769) co-sponsored by 42 of 63 Michigan House Republicans that copied much of the language from the versions introduced in Iowa, Kansas, Maine, Missouri, South Dakota, and West Virginia, in particular the use of the term “informal tribunals” or “informal administrative body” in all of these versions, something that does not appear in the others.

Meanwhile, Texas in its special session reintroduced one of theirs from the regular session. I went into the details of the legislative machinations in May in Texas in my last update. In sum, the ban was limited to family law/Family Code cases by a House committee (HB 911), was added onto the “losers pays” tort reform bill at the last minute on the House floor (Amendment #6 to HB 274), and stripped out by a Senate committee.

June proved to be a repeat of May’s efforts. The original HB 79A, a bill for the implementation of the judiciary budget, did not include the ban. Instead, it was again floor amended in (Amendment #12), over the objections of a least one member of the House who attempted to have the amendment ruled not germane to the bill. The amendment was ruled germane and adopted on a 105-29-2 vote. Once again, a Senate committee (this time the Jurisprudence Committee) stripped the provision out and the bill was sent to the governor without the ban on June 29.

Full roster of 49 bills introduced in 2011 in 22 states and their statuses after the jump.

Continue reading Bans on court use of sharia/international law: Michigan becomes 22nd state to consider, Texas House tries again to get Senate to adopt

Bans on court use of sharia/international law: 38 of 47 bills died or rejected this session; only 1 enacted into law

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With most state legislatures going out of session, May proved to relatively inactive for bills seeking to ban court use of sharia/international law. In the May update (located here) there were 44 bills in 21 states. In June, the number of bills climbed to 47 in 21 states. As of today, the status of the 47 breaks down as follows:

38 died due to adjournment or had been rejected by their respective legislatures.

1 was signed into law (Arizona’s HB 2064 on April 12).

8 remain at least theoretically active: 4 in Alabama; 3 in Iowa; 1 in North Carolina.

Texas was the focus of much of the May activity. On May 9, the text of the House Committee on Judiciary & Civil Jurisprudence ban (HB 911) approved in April was floor-amended (Amendment #6) into the so-called “loser pays” tort reform bill (HB 274). This version, as amended in committee, was much more limited than others and specified it applied in matters “arising under the Family Code” only and then only if “the application of that [foreign] law would violate a right guaranteed by the United States Constitution or the constitution or a statute of this state.” Amendment 6 was approved by a 112-31 vote in the House, but was removed by the Senate State Affairs committee and failed to be enacted when the final version of HB 274 was signed into law May 30.

Meanwhile, on (May 10) the House Select Committee on State Sovereignty advanced a broader version (HB 1240) of a sharia/international law ban

“foreign or international law or doctrine” means a law, rule, legal code, or principle of a jurisdiction outside the legal traditions of the states and territories of the United States, including international laws, that do not have a binding effect on this state or the United States…A court, arbitrator, or administrative adjudicator may not base a ruling or decision on: (1) a foreign or international law or doctrine; or (2) a prior ruling or decision that was based on a foreign or international law or doctrine.

HB 1240 proceeded to the House Calendars committee, where it died when the legislature adjourned.

Full roster of bills introduced in 2011 and their status after the jump.

Continue reading Bans on court use of sharia/international law: 38 of 47 bills died or rejected this session; only 1 enacted into law

Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

This post has been updated. Click here.

In the April update (located here) there were 44 bills in 21 states seek to ban court use of sharia/international law. There have been no new bills, but almost all existing ones have either died or failed to advance in the last several weeks. As of today, the status of the 44 break down as follows:

20 died due to adjournment or had been rejected by their respective legislatures.

11  failed to make it out of committee in their originating house before the legislature’s internal deadline.

1 failed to make it out of committee in the second house before the legislature’s internal deadline (Oklahoma HB 1552).

1 was signed into law (Arizona’s HB 2064 on April 12).

11 remain at least theoretically active.

Of the active, only three moved in the last month.

  • Texas: One of the House bills was approved in committee, but with a massive shift in wording. HB 911 was originally a broad-based ban on the use of foreign law “if the application of that law would violate a right guaranteed by the United States Constitution or the constitution of this state.” As amended, however, the ban applies only “on a matter arising under the Family Code.” As amended, the bill passed the House Committee on Judiciary & Civil Jurisprudence on April 18.
  • Missouri: The House approved one of its versions (HB 708). The Senate committee scrapped the House bill in favor of its own (SB 308).

Both use the same definition of “foreign law”

As used in 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 international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals.

Both use nearly identical wording for what is banned (differences in bold).

House: Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and shall be void and unenforceable if such court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any 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 constitutions of this state and the United States.

Senate: 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 and Missouri constitutions.

The big difference appears to be in the provisions related to contracts. The Senate version waives the ban on the use of “foreign law” where the clause is “capable of segregation” from the rest of the contract.

Minor differences include a provision in the House version that declares “The general assembly fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed in accordance with the state’s interest to protect and promote rights and privileges granted under the constitutions of this state and the United States.” Moreover, the House version would amend Missouri Revised Statutes Chapter 1 (Laws in Force and Construction of Statutes) while the Senate version adds to Chapter 506 (Commencement of Actions and General Provisions).

Full roster of bills introduced in 2011 and their status after the jump.

Continue reading Bans on court use of sharia/international law: Law in Arizona, bills advance in Missouri and Texas, failing in most states

Wyoming State of the Judiciary: Managing caseloads with static revenues and discontent in civil litigation

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

Due to an unfortunate oversight, I failed to catch one of the first State of the Judiciary addresses delivered in 2011, in this case the one delivered by Marilyn S. Kite, Chief Justice of the Wyoming Supreme Court. The speech, delivered to a joint session of the legislature on January 11, included the presence of the state’s governor (only the second state, along with New Mexico, where that appears to have occurred). Governor Matt Mead delivered his State of the State address just before the chief justice delivered hers. There does not appear to have been a formal resolution filed, only an invitation given by the President of the Senate and the Speaker of the House to the chief justice.

The House and Senate met in joint session on January 11 to hear the speech. Highlights of the the Chief Justice’s speech (full text here) included:

What we are doing here today, bringing together the three separate and independent branches of government, constitutes an important tradition, symbolizing a unity of purpose, and provides us with a brief moment in which we can speak to each other and to the citizens of Wyoming as well as listen to each other and appreciate the importance of our respective efforts on behalf of this State.

I suppose one of the most obvious changes is that after four years of accomplished leadership, Justice Barton Voigt has passed that mantle on to me. Justice Voigt’s efforts over the past four years are far too many to mention, not the least of which were overseeing the design and construction of the remodel of the Supreme Court Building and leading the court system into the 21st century with electronic filing and docket management. On behalf of all of us serving in the Judiciary, I want to thank you, Justice Voigt, for your devotion to the job, your diligence, and your ever-present sense of humor. We all owe you a great debt.

The Supreme Court and the Access to Justice Commission have been busy implementing legislation this body adopted last year to provide funding through an increase in court filing fees to coordinate and support legal services for over 70,000 of our citizens who are financially eligible…The upcoming year will see much progress in this effort and we are committed to fulfilling this body’s intent to provide for justice for all of our citizens, not just those that can afford it.

In performing our work, we are facing some major challenges and we are working hard to meet them. While statistics certainly don’t tell the whole story, a quick look at our case filings show that the Wyoming courts are vibrant, busy, and getting their job done. The circuit courts processed over 180,000 cases last year, that includes all of law enforcement’s citations, and the district courts handled over 20,000 cases.

Despite this good news, we, like the other two branches of government, face extraordinary challenges. I want to talk to you today about two of those challenges in particular. No. 1 is how to become more efficient internally as we perform our jobs. And No. 2 is how to reduce the cost and delay to the private citizens in civil litigation.

1. How do we manage an ever-increasing workload with static or even declining revenues? We are all well aware that other states have not been as fortunate as we have financially, and many have seen draconian cuts in funding to the point of even closing some courts thus denying citizens access to justice. We are committed to assuring that we spend state resources responsibly and efficiently in order to assure the citizens of Wyoming never face that prospect.

The most obvious opportunity for enhanced efficiency is to better utilize the circuit courts. As you know, their jurisdiction is currently limited to misdemeanors and civil cases involving less than $7,000. That limit was set 15 years ago and needs to be significantly increased.

Electronic filing and docket management is in place and functioning well in the Supreme Court. We are about half way through the effort to get all district courts on the same docket management system and to provide electronic filing in those courts as well. As soon as that is complete, we will do the same in the circuit courts…Now, the next technological leap that will have the most impact on our day to day productivity will be when law enforcement is able to issue electronic citations and ultimately the fines can be paid electronically…Finally, on the technology front, most of our judicial districts have video conferencing capability and we are all learning how to use that tool effectively.

2. How do we address the growing discontent with the cost and delay involved in civil litigation? Keeping in mind that our primary job is to provide fair and efficient justice to our citizens, we have initiated an effort to examine our rules and procedures to see how we can do that better. We started by conducting a survey of all Wyoming lawyers and judges and, not surprisingly, it showed that an overwhelming majority of both believe that civil litigation costs too much and takes too long. The cause of this failure of the system is likely a combination of district court workloads in some areas, and outdated, cumbersome rules.

The rules of civil procedure that we follow today were adopted 72 years ago and have been modified very little since…I anticipate we will consider rules changes and possibly propose statutory changes over the next year.