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

Brewer vetoes “birther” bill, cites application to judicial and other state/local candidates

I noted yesterday the potential impact the Arizona “birther” bill might have on non-presidential candidates in general and Arizona judicial candidates in particular.

As noted throughout the media last night, AZ governor Jan Brewer vetoed he bill (HB 2177).

In her veto letter, Brewer noted that the bill would have had the result of allowing the state’s Secretary of State “to judge the qualifications of every federal, state and local candidate at the time of filing.”

The bill now goes back to the Arizona House. While the bill passed with precisely the two-thirds needed in each chamber to override the veto, the clock is ticking. The legislature goes out of session on April 23.

Arizona “birther” bill impact may be felt on judicial elections

I mentioned late last week the potential that Arizona-style “birther” bills could have on judicial elections outside the state. Today, I’ll be taking a look at their Arizona in-state potential.

In addition to the presidential-focused provisions, HB 2177 would amend the state’s existing candidate-registration law to include the following (new provision in bold):

All persons desiring to become a candidate shall file with the nomination paper provided for in [A.R.S 16-311(A)] an affidavit, which shall be printed in a form prescribed by the secretary of state.  The affidavit shall include facts sufficient to show that, other than the residency requirement provided in [A.R.S 16-311(A)], the candidate will be qualified at the time of election to hold the office the person seeks.  The affidavit shall include references to and attachment of all documents necessary to show that the person will be qualified at the time of the election to hold the office the person seeks.

Right now, the Secretary of State’s form simply takes a judicial candidate’s oath for their qualifications:

You are hereby notified that I, the undersigned, a qualified elector, am a candidate for the office of _________________________________________________________________at the General Election to be held on ___________________________________________.

I will have been a citizen of the United States for years next preceding my election and will have been a citizen of Arizona for years next preceding my election and will meet the age requirement for the office I seek and have resided in _______________ County for years and in precinct ______________ for ______________ years before my election.

I do solemnly swear (or affirm) that, at the time of filing, I am a resident of the county, district or precinct which I propose to represent, and as to all other qualifications, I will be qualified at the time of election to hold the office that I seek, having fulfilled the constitutional and statutory requirements for holding said office.

The “citizen of the United States” requirement could require the use of a birth certificate. Moreover, for Superior Court Judges, this means proving they are between the minimum age of 30 and the maximum of 70, potentially and possibly also through the use of a birth certificate. Similar age-based requirements would apply to Justices of the Peace (minimum 18, maximum 70) and, depending on the location, Municipal Court Judges.

Governor Jan Brewer has five days to sign HB 2177, veto it, or do nothing and allow it to become law.

“Birther bills” and their potential impact on state judicial candidates

Last night, the Arizona Legislature gave final approval of a bill (HB 2177) that would require presidential candidates to prove  they are natural born U.S. citizens (most likely through “long form” birth certificates) before their names can appear on the state’s ballot. At least 13 other states are considering or have considered and rejected such proposals this year. Several of these efforts, and related bills, would and could impact judicial candidates should they ultimately be adopted in 2011 or 2012.

Kansas HB 2224 would require candidates for state office to provide the Office of the Secretary of State a certified copy of the candidate’s birth certificate and the candidate’s drivers license or other government-issued identification. For judicial candidates, the birth certificate requirement would apply only if they are in a partisan election. For those courts (Supreme, Court of Appeals, and 17 of the state’s 31 District Court districts, and Municipal Courts) which use a merit selection system, candidates would not be required to produce the birth certificate.

Oklahoma SB 540 would allow any registered voter to challenge the U.S. citizenship of any candidate. The candidate would be required to produce documents supporting their citizenship, one of which may be a birth certificate.

Oklahoma SB 91 requires each candidate required to file a Declaration of Candidacy for any federal, state, county, municipal or judicial office, or for the nomination of a recognized political party, in any general, primary, or special election shall, at the time of filing the Declaration of Candidacy, provide proof of identity and eligibility to hold the office sought to the election board at which the Declaration was filed. Given that Oklahoma appellate judges must be at least 30 years of age this could possibly mean the production of a birth certificate (the bill lists other ways/documents to provide identity & eligibility).

While Oklahoma SB 91 may require a birth certificate for judicial candidates, Alabama SB 401 explicitly requires it.

Any person who seeks election and/or seeks ballot access for any election to any public office that has an age requirement for election to that office shall provide a certified copy of his or her birth certificate that includes the date and place of birth when the person qualifies for election to that office.

While there appears to be no minimum for Alabama appellate and most trial judges, there is a maximum of 70 (Amendment 328, Section 6.16). Could “age requirement” be construed to mean proof the judicial candidate has not reached the magic number of 70? The exception to the no-minimum-age-requirement is Alabama Municipal Court judges, who as I noted in a recent blog post do have a minimum (18).

Finally, Maine’s HB 27 would have the effect of requiring the state’s Probate Court judges provide birth certificates. The state’s other judges (Supreme, District, Superior) are all nominated by the state’s Governor and confirmed by the Senate and therefore not considered electoral candidates.

Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Welcome New York Times readers!

This post has been updated. Click here.

In the March update (located here) there were 42 bills introduced in 2011 in 20 states seeking to ban court use of sharia/international law. That number is now up to 44 bills in 21 states.

  • Arizona’s “new” bill was really a strike-all amendment to a completely unrelated bill HB 2064. The resulting bill was approved April 7 and is currently sitting on Governor Jan Brewer’s desk.
  • North Carolina HB 640 was introduced April 5 and is currently pending in the House Committee on Judiciary, Subcommittee C.

In addition to Arizona, bills in 6 other states advanced out of their committees or chambers, including Alabama SB 61 and SB 62, Alaska HB 88,  Florida SB 1294, Kansas HB 2087, Missouri HB 708, and Oklahoma HB 1552. Additionally, hearings were conducted in Texas and Missouri. All 2011 activity is in bold below the fold.

Continue reading Bans on court use of sharia/international law advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma

Bills to require senate confirmation of judicial nominees finding more approval in state senates than in state houses

A big trend in recent weeks, and for that matter years, has been to target for elimination of merit selection systems for selecting judges (see here). A related often parallel set of bills seek to interject Senate confirmation of whomever the governor, working off the list of names given by a nominating commission, appoints. These efforts are proving as or more effective in gaining legislative approval that attempts to outright end merit selection. However, somewhat interestingly, most such bills are thus far being introduced and active in state senates with less interest shown by the lower chambers, who would have no role in any such confirmation process.

Earlier today, for example, the Florida Senate Judiciary Committee approved SJR 1664 which, while maintaining the state’s existing merit selection system for appellate judges, would add to the state’s constitution a requirement those chosen for the supreme court only be approved by the state’s senate as well. Interestingly, unlike other similar bills (some discussed below), there is no authorization for the Senate to bring itself into session in case a confirmation is needed. However the state’s constitution does allow for special sessions to be called by the governor and “convened as provided by law”.  Presumably this later provision would be used if the constitutional amendment itself were approved by Florida voters.

Similar to Florida’s SJR 1664, Oklahoma’s SB 621 would require senate confirmation, but does not include a provision allowing the senate to convene itself for those purposes. The state’s constitution allows the entire legislature to be called back in by two-thirds of both chambers, but it is not clear of that means two-thirds of the senate can call just itself back in. SB 621 was approved by the Senate on March 8.

Arizona SCR 1040 massively restructures, but does not formally end, the merit selection system in the state. Included is a provision requiring senate confirmation. The senate president or a majority of senators are explicitly authorized to convene the chamber for the confirmation. Moreover, there is a built in presumption and default of confirmation: the senate must explicitly reject the appointee within 60 days or the person takes judicial office “as if the appointee had been confirmed. ” The bill also ends retention elections and puts in place a system of reappointment and reconfirmation, again with the same 60-days-to-reject rule. SCR 1040 was also approved by the Senate on March 8.

Finally, Pennsylvania is once again considering changing to a merit selection system for its appellate courts with a senate confirmation provision. SB 842 would be the implementing statutes for the constitutional amendment in SB 843, if approved. As for senate reconvening, the state’s constitution is already mostly prepared. The state’s governor may fill a judicial vacancy caused by death, resignation, etc. and the senate must confirm when it comes back into session (if recessed or adjourned) within a certain number of days or else the appointment is deemed confirmed. The same provisions would be duplicated for cases involving an appellate merit selection system.

Not only would there be a presumption or default of confirmation, but should the senate reject three nominations made for a specific vacancy, the nominating commission itself, without interference by the governor or the senate, would pick a fourth person who would automatically take office (no appointment or confirmation necessary). The two Pennsylvania bills were introduced March 15 and are pending in the Senate Judiciary Committee.

As I noted at the start, senate-confirmation bills are often dead-letters in the various houses/lower chambers in the states. Bills going nowhere so far include Arizona HCR 2020, Iowa HB 429 and HJR 12, Kansas HCR 5015, and Oklahoma HJR 1009. All include senate confirmation in addition to, or in lieu of, merit selection.  In addition, a Rhode Island House bill (HB 5675) would transfer the existing power to confirm from the Senate to the House.

That said, some senate-confirmation bills are finding house approval.

Kansas HB 2101 ends merit selection system for the state’s court of appeals judges and instead creates a governor appoints/senate confirms system. The senate president could call the senate into session for the confirmation process. The bill was approved by the full House February 25.

A similar Florida House bill (HJR 1097) would outright end merit selection for appellate judges and make use of senate confirmation only was approved by the House Judiciary Committee’s Civil Justice Subcommittee on March 17.

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)

AZ bill would require voters be informed of cases where a judge struck down a law as unconstitutional just before election day

Many states provide for voter information pamphlets to be distributed by the state or locality prior to an election. Most provide basic information, such as biography, years of service, education, etc. Judicial candidates in Arizona and some other states also have the recommendation (RETAIN or NOT RETAIN) of the state’s commission on judicial performance.

SB 1472 of 2011, however, would add a listing of a judge’s published decisions which declared a statute unconstitutional and the provision of the Constitution relied upon. Moreover, statements for and against the candidate could be filed with the Secretary of State and would have to be published (similar to pro/con statements used initiatives/referendums). Under the bill, attorneys are explicitly exempted from any discipline related to a statement placed into the pamphlet.

The bill passed the Senate March 3 on a 20-5 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.


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.


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.


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