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

This post has been updated. Click here.

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

Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

Welcome Gavel Grab readers!

The (probably?) single biggest year in history for efforts to impeach state judges has just gotten one bill bigger.

On May 4, Missouri House member Rochelle Walton Gray filed HR 3102, articles of impeachment against St. Louis Circuit Judge John A. Ross. The articles were filed the same day Judge Ross was set to testify before the U.S. Senate Judiciary Committee as it considered his nomination for an appointment to the federal bench for the Eastern District of Missouri.

The articles accuse Judge Ross of “judicial activism” and racial discrimination in the case of Buchek v. Washington, et. al., Cause No. 09SL-CC04530, for failure  to follow legal precedence (and specifying the cases allegedly not followed) and other accusations related to the Northeast Ambulance and Fire Protection District, whose board membership the articles claim is made up of black elected officials. The district’s former attorney, Elbert Walton Jr., is the father of Rochelle Walton Gray, the Missouri House Representative that authored HR 3102.

The articles of impeachment read very much like the letter sent by Missouri Rep. Lacy Clay in opposition to Judge Ross’ appointment to the federal bench (as per this article in the Missouri Lawyer’s Weekly).  The Clay letter contained as an attachment a letter (described by local media as “meandering”) from “Citizens for Fairness in the Appointment of Judges” (led by Elbert Walton, Jr. and Rep. Walton Gray) to Sen. Claire McCaskill, sections of which appear to have been repeated verbatim in HR 3102.

During the Senate Judiciary Committee hearing Judge Ross denied the statements in the Clay letter, suggesting it “contains significant inaccuracies.”

Despite being filed on May 4, HR 3102 was not referred to a committee (House Judiciary) until May 13, the day the legislature concluded floor sessions. Formal adjournment sine die will occur May 26 or 27. Because Missouri bills do not carry over from session to session, it appears no action will take place regarding HR 3102.

An updated list of pending impeachment/judicial removal efforts can be found below the fold:

Continue reading Latest effort to impeach a state judge for his decision(s) filed against Missouri judge up for a Federal judgeship

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

Resolutions filed to impeach 4 Iowa Supreme Court justices for same sex marriage decision

I mentioned just yesterday the record-setting number of efforts to impeach or remove judges from office this year (click here). Now, there are more.

The threats to impeach 4 Iowa Supreme Court justices for their same-sex marriage decision (Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)) is now a partial reality. Late yesterday HR 47, HR 48, HR 49, and HR 50 were filed against (in order) Justice Brent Appel, Chief Justice Mark Cady, Justice Daryl Hecht, and Justice David Wiggins. (The other three justices who ruled on the case were voted out of office in November 2010.)

The causes for impeachment are five-fold and argue each justice:

  1. improperly assumed the function and role of an elected legislator by ordering that the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute as enacted by the legislative department and approved by the governor of the executive department in 1998.
  2. knowingly and intentionally usurped the proper function delegated solely and exclusively to the legislative department of declaring public policy, through his judicial declaration of a new public policy contrary to long-standing public policy acknowledged by society and 4stablished in Iowa Code section 595.2, subsection 1.
  3. improperly required the executive department to issue marriage licenses to parties of the same sex in direct contravention of Iowa Code section 595.2.
  4. created a constitutional crisis regarding the enforcement of the Varnum ruling by allowing different interpretations of the definition of marriage to exist indefinitely within the separate departments of government, leaving the people with no immediate remedy to address this crisis
  5. created a constitutional imbalance and confusion within the State of Iowa as to the proper constitutional function of each department, thus undermining the integrity of the tripartite separation of powers among the departments and creating social disorder and unrest.

The state’s constitution provides justices and others “shall be liable to impeachment for any misdemeanor or malfeasance in office” with a simple majority required for impeachment. Conviction in the Senate, however, would require a two-thirds vote.

The resolutions now go before the House Judiciary committee.

Update: In a statement, one of the authors of the impeachment resolutions states “Clearly, by changing the simple meaning of the word ‘marriage’, and attempting to legislate, the remaining four judges committed malfeasance in office by greatly exceeding the scope of their lawful authority. Therefore, if the moral integrity of each individual member of the Iowa Legislature, and the institution as a whole, are to be preserved, these judges must be impeached and removed permanently from the bench.”

Update 2: As quickly as this started, the impeachment effort may have ended. Iowa House Speaker Kraig Paulsen has released a statement this morning saying “While I agree with much of the reasoning behind the impeachment resolutions, I disagree with this remedy. I do not expect it to be debated on the floor of the House, and if it is, I will vote no.”

 

Omnibus bill week 2011: Iowa SB 326

I mentioned back in January that a 2010 omnibus bill to overhaul numerous provisions of law related to the Iowa judiciary was partially vetoed, but reintroduced this year (see here).

The bill, now known as SB 326 of 2011, has been the subject of some substantial legislative ping-pong between the two chambers.

Senate

Originally, SB 326’s provisions included:

Filling vacancies – Grants authority to the chief justice to delay the nomination of a Supreme Court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons. Grants authority to delay nomination for magistrates with certain limits.

Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.

Residence – Requires district associate judge reside in the judicial election district in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.

Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the Supreme Court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the Supreme Court.

Senate amendments deleted the requirement that the state court administrator apportion magistrates throughout the state using a case-related workload formula but added a provision limiting the chief justice’s power to delay filling vacancies to 1 year per vacancy and no more than 8 delayed vacancies at any given time. The Senate adopted the entire bill on a 50-0 vote.

House

Several House members who had earlier vowed to impeach members of the Supreme Court and end merit selection for the Court of Appeals, attempted to add an amendment to SB 326 that would have also ended merit selection for the Court of Appeals. Unlike in Kansas, where such an attempt to add an amendment ending merit selection was ruled germane to an unrelated bill, this effort was ruled not germane by the House Speaker. Undaunted, the sponsor asked for unanimous consent to allow the amendment. When that failed, he moved to suspend the rules and allow for the adoption of the amendment. That effort failed on a 6-89 vote. For additional details, check out this post from Gavel Grab.

The House did, however, adopt two amendments.

  • The first matched HB 242 and would require 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 than two members from the same county.
  • The second requires all commission members chosen by the governor to serve staggered terms.

The House approved its version, with the House amendments, 93-2. The two House members voting against (Reps. Alons & Shaw) were among the four leaders of the effort to impeach the Supreme Court justices and had put forth the amendment to end merit selection for the Court of Appeals noted above.

Back to Senate

The Senate accepted the House amendments on April 11, but added one of its own. Under existing law, “no more than a simple majority” of district judicial nominating commission members appointed “shall be of the same gender.” The latest senate amendment would change the wording to “A simple majority of the commissioners appointed shall be of the same gender.”

Back to House

This latest version of SB 326 was sent back to the House on April 11.

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

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)

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.

Tweaks

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.

Modifications

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.

 

Unable to change merit selection for Supreme Court, Iowa legislators look to end it for Court of Appeals

I mentioned last week a statutory effort to end merit selection for the Kansas Court of Appeals. I noted at the time that these intermediate appellate courts, because they are often created by statute, are also able to have their selection methods changed by statute alone (vs. a constitutional amendment).This week, it is Iowa, likely in partial response to anger and angst over the state’s supreme court ruling in favor of same sex marriage several years ago.

The Iowa Constitution guarantees merit selection for that court (and the lower, District Court), and efforts have been introduced to end that system (HJR 12 and SJR 13). Such efforts would require two consecutive legislatures to approve it (majority vote only), plus approval at the ballot box. Thus, a change in the system would take years and a great deal of effort. The Court of Appeals, because it relies on a mere statute (Iowa Code 46.12 and 46.14A) can have its selection system changed in a matter of weeks during a single legislative session.

Enter HB 429 of 2011 which would end merit selection for the court and replace it with gubernatorial nomination and senate confirmation. Like the Kansas proposal, it would not do away with retention elections, however.

The bill is currently pending before the House Judiciary Committee.

Despite being under threat of impeachment, Iowa Chief Justice gives State of the Judiciary

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

Despite active efforts by members of the Iowa House impeach him, Chief Justice Mark Cady presented the State of the Judiciary earlier today to a joint convention of the legislature pursuant to a resolution (HCR 3 of 2011) passed by both chambers. HCR 3 noted that the Chief Justice’s report is statutorily based. Iowa Code 602.1207 provides:

The chief justice shall communicate the condition of the judicial branch by message to each general assembly, and may recommend matters the chief justice deems appropriate.

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

The story of our ability to deliver justice to Iowans over the decades—the story of our people—shows our job will be done regardless of the cards we are dealt. But, there is no doubt our mission, more and more, is becoming harder and harder to achieve. I too fear, as Kim Glock does, that the deep cuts in our resources are beginning to cause damage to our system of justice. Let me explain beginning with what I observe to be a decline in access to justice.

Access to Justice
Iowans cannot have the hope of justice without having access to justice. The grim reality is that more and more Iowans with legal problems are forced to wait too long for their day in court. These problems are troublesome to litigants and shake people’s confidence in our government. These problems result from a decade of fiscal austerity coupled with Iowans’ growing demands for court services…Today, Iowa’s court system operates with a smaller workforce than it had in 1987. In contrast, over the same period, the total number of legal actions brought by Iowans and Iowa businesses has nearly doubled. In short, Iowa’s courts are overrun with work, and Iowans are paying the price with reduced access to justice.

EDMS and Civil Justice Reform
We are testing a system for electronic filing and retrieval of documents. This system, which we call EDMS, expands access to justice beyond the courthouse walls. It enables litigants, lawyers, and others to file and access court records online, at anytime, night and day. It saves Iowans the cost and inconvenience of traveling to the courthouse to conduct their business. It gives judges access to records as soon as they are filed. If everything goes as planned and we have sufficient resources to move ahead, we should have EDMS fully implemented in five or six years.

Reasons to Bolster Court Funding
The recession has placed additional demands on our courts. In the past three years, mortgage foreclosure cases filed in Iowa have increased 17%, debt collection cases have increased 15%, child-in-need-of-assistance cases have increased 23%, and adult civil commitment cases have increased 19%. These legal actions may have a life-altering effect on the Iowans involved. This is not the time to give them ration cards for justice…We appreciate the continued need for all of government, including the judicial branch, to “share the pain.” However, the courts are already stretched painfully thin. I hope we can all agree that Iowans deserve more access to justice than they have now. Our fiscal year 2012 budget request reflects a modest three-year plan to improve Iowans’ access to justice. We ask you to give it serious consideration.

Varnum
When the Iowa Supreme Court decided the Varnum v. Brien case on April 3, 2009, we understood it would receive great attention and be subject to much scrutiny. We worked hard to author a written decision to fully explain our reasoning to all Iowans, and we understand how Iowans could reach differing opinions about this decision…First, I hope to help us move forward by addressing the concerns some Iowans have about our system for selecting judges.

Merit Selection Fosters Fair and Impartial Courts

Importantly, the Iowa Constitution requires that all commission members be chosen “without regard to political affiliation.” Likewise, the law specifically requires the commissioners to choose nominees “without regard to political affiliation.”

Don Decker, a Ft. Dodge businessman and long-time Republican, who served on the state judicial nominating commission in the mid-1990s, recently told me that, when it came to selecting a slate of nominees for a judicial position, he “rooted for the home team” but always voted for the most qualified applicants regardless of their party affiliation. This honest assessment captures the reason our process has worked so well for so long.

Building Public Confidence in Commissions: Enhancements
In addition to opening interviews to the public, we recommend that the state and district nominating commissions: adopt uniform rules of procedure, adopt a code of ethics, and adopt procedures for the release of more information to the public.

Principle #1: Courts Serve the People by Serving the Rule of Law
The will of the people followed by courts is the will expressed in our law as constrained by the written principles in the constitution. If this were any other way, “why have a constitution?”…Chief Justice William Rehnquist called the independence that allows judges to serve the law “the crown jewel of our system of justice.” I hope we can go forward with the same understanding.

Principle #2: Upholding the Constitution is the Most Important Role of Courts
Upholding the constitution is the most important function of courts. The duty of courts to review the constitutionality of laws is known as judicial review and is one of our most basic responsibilities.

In 1849, the Iowa Supreme Court issued its first decision that protected the constitutional rights of an Iowan by invalidating a statute enacted by the legislature. In this case, the court stated it was “a settled principle” in this country that courts have the power, “as a matter of right and duty, to declare every act of the legislature made in violation of the constitution, or any provision of it, null and void.” This is the very duty the court exercised in the Varnum decision.

As far back as 1883, the Iowa Supreme Court made it clear that even unpopular rulings could not simply be suspended in time to await any future legislative action. In its decision, the court said that, if courts could be coerced by popular majorities to disregard the constitution any point in time, “constitutions would become mere ropes of sand and there would be an end of . . . constitutional freedom.”

Promoting Understanding about the Work of Courts
Lastly, it is my hope that we can move forward with a shared commitment for a greater understanding of our courts and their important role in maintaining our democracy. This understanding can best be achieved by making our courts even more transparent.

Up until a year ago, the [Iowa Courts] website also provided a video cast of supreme court proceedings, but this procedure was a victim of the budget cuts. Nevertheless, we can do more to open the work of the courts to the people. So today I’m pleased to announce the Iowa Supreme Court plans to hold some of its oral arguments in communities across Iowa. This will allow interested citizens an opportunity to watch the court proceedings, and the proceedings can be used as a teaching tool for our youth.

Conclusion: Let Us Go Forward with a New Understanding
So, let us go forward with a new understanding—a new understanding of the courts and a new understanding of the direction that will lead to a better and brighter future, for all Iowans…So, let me end by asking all branches of government, and all people, to go forward, together, to transform the promise given to us into our proud legacy. The story that is not yet told is our story. Let us go forward to write our untold story with a greater understanding of ourselves, and all Iowans.