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.


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.

Maine Commission To Study Priorities and Timing of Judicial Proceedings in State Courts meets October 12

Back in March I noted the introduction in Maine of SB 297, a bill to create a Commission To Study Priorities and Timing of Judicial Proceedings in State Courts. The sole duty of the commission is to “study the priority and timing of judicial proceedings in state courts including, but not limited to, judicial proceedings that require priority treatment pursuant to statute.”

The bill was eventually signed into law and the commission is set to hold its first meeting on October 12.

The first item on the agenda is a review of SB 297 and Joint Rule 318:

Whenever a legislative measure is proposed that contains a provision to expedite, establish or adjust the priority of judicial proceedings, the joint standing committee of the Legislature having jurisdiction over the proposal shall hold a public meeting on the proposal and determine the level of support for the proposal among members of the committee. If there is support for the proposal among a majority of the members of the committee, the committee shall request the joint standing committee of the Legislature having jurisdiction over judiciary matters to review and evaluate the proposal as it pertains to the appropriate priority and timing of judicial proceedings in all state courts. Information may be requested from the Judicial Branch. The joint standing committee of the Legislature having jurisdiction over judiciary matters shall conduct the review and report back to the committee of jurisdiction.

Also on the agenda are presentations on:

  • The Judicial Branch’s Perspective, by Mary Ann Lynch, Director of Court Information
  • Perspectives from Other Legal Practitioners
  • Maine State Bar Association
  • Maine Prosecutors Association
  • Pine Tree Legal Assistance
  • Maine Commission on Indigent Legal Services
  • Maine Association of Criminal Defense Lawyers

Discussion is then set to follow on process and product:

  • Criteria for setting priorities?
  • Review of priorities – How? By categories?
  • Uniformity/consistency in language – Model for current and future provisions?
  • Recommendations specific to the current priorities?
  • Identification of criteria used by the Commission and recommendation of criteria to be used in the future by Judiciary Committee?
  • Necessary legislation to implement Commission recommendations?
  • Codify or amend Joint Rule to include criteria?

While the duty of the commission was never altered, the composition of the commission went through several legislative iterations (details below).

Continue reading Maine Commission To Study Priorities and Timing of Judicial Proceedings in State Courts meets October 12

Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

This post has been updated. Click here.

Since the last update of this list in August, two pieces of legislation have been introduced. Michigan’s SB 701 appears to be the Senate version of HB 4769, which has gone nowhere since its June introduction.

The other bill is Alabama SB 33 of 2012, a prefiled bill for the next session. SB 33 of 2012 is a constitutional amendment that looks more like HB 607 / SB 61 than HB 597 / SB 62 in that it does not specifically mention “sharia”.

It should be noted that at least some 2011 bills will make a return in 2012; roughly half of states allow bills to be “carried over” from one session to the next. Definitive answers as to which bills will return will be available as the legislatures come back into session in January.

Full roster of bills going back to 2010 after the jump.
Continue reading Bans on court use of sharia/international law: list of all bills since 2010, new 2011 Michigan bill, first 2012 bill prefiled

Oregon, Pennsylvania, and Maine Judiciary Committees hold interim meetings next week

On September 20, the Pennsylvania Senate Judiciary Committee will meet to receive the report of the Joint State Government Commission’s Advisory Committee on Wrongful Convictions and to consider SB 733 (responsibility of parents and guardians and for pretrial diversion program), SB 883 (consolidating provisions on administrative procedure and rulemaking), and SB 1167 (providing for modification of existing orders and for child custody proceeding during military deployment and providing for assignment of custody rights during military deployment and expedited or electronic hearing).

The Oregon Senate Judiciary Committee will meet jointly with the House Judiciary Committee September 22. The original posting of their agenda indicated they would be meeting separately on September 21. On the new agenda*:

  • HB 3241 Funeral protests, excluding those protesting from streets and sidewalks adjacent to or near a military funeral.
    Requiring a parent or legal guardian to report the death of a child to law enforcement. Making the failure to do so a felony. Requiring a parent or legal guardian to report to law enforcement a missing child. Making it a crime to fail to do so.
  • Review of the relationship between the Oregon Youth Authority (OYA) and the counties concerning supervision of youth after release from an OYA facility.
  • Review of the Oregon State Bar’s policy in addressing complaints against attorney’s for failure to adequately represent clients based on the clients’ race, ethnic origin, religion, gender, or gender preference. Update on the 1992 Oregon Supreme Court’s Task Force on Racial and Ethnic Issues in the Judicial System relating to the Bar.

Also on the 22nd, the Maine Joint Judiciary Committee meets to consider various judicial nominations as well as nominees to boards and commissions.

*Updated 9/19/11 @ 2:30 PM to reflect updated Oregon Senate Judiciary agenda and that the 9/22 meeting is a joint one.

2011 Northeast indigent defense legislation


Connecticut SB 38 Exempts from disclosure under the Freedom of Information Act (FOIA) personnel, medical, or similar files of current or former employees of the Division of Public Defender Services to people in the custody or supervision of the Department of Correction (DOC) or confined in a facility of the Whiting Forensic Division of Connecticut Valley Hospital. Requires public agencies to waive any fees for providing records requested under FOIA if the requestor is a member of the Division of Public Defender Services or court-appointed special assistant public defender and certifies that the records pertain to his or her duties. Specifies that, for purposes of FOIA, the Division of Public Defender Services is considered to be a judicial office. (By law, a judicial office is subject to FOIA only with respect to its administrative functions.)

Maine SB 182 Specifically states which decisions of the executive director of the Maine Commission on Indigent Legal Services must be subject to an appeal process for attorneys aggrieved by such decisions. Specifies method of appeal of such decisions by executive director.

Maine SB 189 Makes certain records in the possession of the Maine Commission on Indigent Legal Services confidential.

New York AB 7932 / SB 5474 Exempts legal aid societies and bureaus and other entities that provide indigent representation from the fees charged by the Department of Motor Vehicles for record searches and copies of documents.

Adopted Resolution

Maine HB 451 Grants emergency approval to changes to Eligibility Requirements for Specialized Case Types, as provisionally adopted by Maine Commission on Indigent Legal Service.

Approved by one chamber

New Jersey AB 3324 / SB 2233 Permits early termination of one-year terms of municipal court public defenders when two or more municipalities enter into agreements to establish joint municipal courts or shared municipal courts. Approved by full Senate. In Assembly Judiciary Committee.

New York AB 7857 / SB 3269 Authorizes public defenders, legal aid societies, and administrators of assigned counsel plans to have access to the Division of Criminal Justice Services’ criminal history records for use in connection with the representation of public defense clients. Approved by full Assembly. In Senate Finance Committee.

Active/Carried over into 2012

Massachusetts SB 748 Removes power of courts to approval fees/costs associated with defense in criminal cases, juvenile delinquency proceedings and youthful offender cases. Requires submission of costs to committee for public counsel services rather than clerk of court. Requires approval of costs associated with defense be made by committee for public counsel services.

Massachusetts HB 3359 / SB 898  Requires judiciary produce report of all criminal and delinquency cases initiated in the courts of the commonwealth during fiscal year 2011, including number of cases in which public defender appointed. Requires parity between funding of prosecutors and public defenders. Requires all criminal and delinquency cases be “weighted” based on case type to establish budgetary amounts that may be appropriated to the committee for public counsel services to pay for public defenders.

Massachusetts HB 1285 Repeals requirement that counsel appointed or assigned to represent indigents within the private counsel division, except any counsel appointed or assigned to represent indigents within the private counsel division in a homicide case, shall be prohibited from accepting any new appointment or assignment to represent indigents after he has billed 1400 billable hours during any fiscal year.

Massachusetts SB 1446 Converts law school tuition into tax credit if attorney serves as public defender or otherwise practices “public interest law” as defined.

Massachusetts SB 1861 Increases hourly compensation levels/amounts payable to indigent defense counsel by $3-$5 per hour, depending on activity.

Massachusetts SB 848 Repeals law with respect to providing legal services for indigents subject to the sex offender registry classification system.

New Hampshire HB 315 Declares an “impeachable offense” the appointment of an attorney or commitment of public funds for an attorney in connection with the representation of any person, whether indigent or not, except as specifically authorized by the New Hampshire constitution, federal or state law, or mandate of the New Hampshire supreme court. Provides such appointment shall be made only upon application of the person making the request and consistent with rules adopted by the New Hampshire supreme court. Prohibits appointment in any court other than the court in which the appointment is made, except to the extent necessary to preserve or perfect an appeal as mandated by the New Hampshire supreme court.

New Jersey SCR 148 (Constitutional Amendment) Creates Public Defender Services Commission established by the amendment.  Provides Commission to appoint Public Defender (currently, Governor with the advice and consent of the Senate). Locates the Public Defender within the courts but gives it independent status.

New Jersey SR 92 Requests New Jersey Supreme Court require attorneys to perform 50 hours of pro bono service per year or make a monetary contribution to Legal Services of New Jersey.

New Jersey AB 3844 / SB 2768 Prohibits the expenditure of State funds by the Office of the Public Defender or other attorney providing the same services, on cosmetic services for defendants in a criminal trial.

New Jersey SB 1812 Authorizes Office of Public Defender to provide legal representation for child in proceedings after parental rights have been terminated.

New York AB 1310 / SB 3261 Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel.

New York AB 2749 Establishes the New York state public defense commission to oversee the provision of public defense services in the state. Requires commission establish public defense services standards, provide financial assistance to local governments and public defense providers for expenses incurred in providing legal services to the indigent, provide training to persons in the public defense profession and oversee the provision of public defense services in the state.

New York AB 731 Authorizes any legal aid society or other legal services or non-profit organization that provides legal services to indigent clients to have access to EjusticeNY for the purposes of obtaining, where authorized by their clients, access to records necessary for understanding, correction and applying for Certificates of Rehabilitation.

New York AB 7867 Provides funding under the indigent legal services fund for the New York State Defenders Association.

New York SB 5143 Provides funding under the indigent legal services fund for the New York State Defenders Association (not identical to AB 7867)

Died in committee

Maine SB 225 Requires all new courthouses designs include adequate space for attorneys providing indigent legal services.

Vermont HB 232 Allows a municipal public body to go into an executive session in order to consider applications to or awards from a municipal fund for the poor or indigent.

2011 Northeast bail/pretrial release legislation


Maine HB 1029  Adds a new provision addressing the preconviction limitations on a bail commissioner’s authority. Adds a provision requiring that in the preconviction context a bail commissioner specify a court date within 8 weeks of the date of the bail order when that bail order uses one or more release conditions not automatically included in every bail order for pretrial release. Requires that the court and not a bail commissioner set preconviction bail for a crime if: the condition of release alleged to be violated relates to new criminal conduct for a Class C or above crime or specified Class D and Class E crimes. Clarifies that a law enforcement officer may make a warrantless arrest related to anticipated bail revocation or violations of bail conditions.

Maine HB 774 Specifies that persons arrested for juvenile crimes, as well as persons under 18 years of age who are arrested for crimes outside of the Maine Juvenile Code, are not eligible for bail.

Maine HB 951 Allows a court to permit the use of medical marijuana while imposing conditions of a criminal sentence, bail, probation, continuance or other dispositional order.

Maine HB 961 Provides the Chief Judge of the District Court may adopt rules requiring a bail commissioner to appear and set bail regardless of whether the defendant is indigent and unable to pay the bail commissioner’s fee and  may also adopt rules governing the manner in which a bail commissioner is paid in the event an indigent person is released on bail and is unable to pay the bail commissioner’s fee.

New Hampshire SB 63 Amends the criteria for the list of bail bondsmen provided to the courts. Provides that a defendant released pending trial who fails to appear within 45 days of the date required shall forfeit all designated property held by the court to secure such defendant’s appearance.

New York AB 7388 & New York SB 3947 Adds a further, more streamlined, way to determine the value of real property used in a secured bail bond.

Introduced with committee and/or floor approval

New York AB 8158New York SB 5734 Provides the legal definition and requirements for charitable bail organizations organized for the purpose of posting cash bail for poor persons.

New York SB 1414 Requires the court, when determining recognizance or bail in cases of domestic violence, to consider certain enumerated factors which could lead to intimidation or injury by the principal to the victim or witness.

New York SB 259 Allows the court to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail.

Introduced with committee rejection

Maine HB 312 Allows as a condition of bail that all firearms in the possession of the person arrested be relinquished to a law enforcement officer and that the person refrain from possessing a firearm or other specified dangerous weapons until further order of a court. Upon request of the defendant, such a bail condition must be heard by the court as expeditiously as possible.

New Hampshire HB 428 Establishes a procedure for cases in which a court recommends that a defendant participate in a pretrial supervision program at a county correctional facility. Amends the term “peace officer” to read “law enforcement officer” in the statute on default or breach of conditions of bail or recognizances.

New Hampshire HB 473 Imposes a $50 administrative fee on any defendant who fails to make payment of the bail commissioner’s fee within 30 days and requires that a hearing be held prior to the waiver of a fee.

New Hampshire HB 644 Disallows bail for persons in custody until their lawful presence can be verified.

Introduced with other or no activity

Connecticut HB 6171 Provides any bond set by a court as a condition of release for a person charged with a family violence offense shall be paid in full and a promissory note shall not be accepted as an assurance.

Maine HB 388 Establishes as a condition of bail for a person charged with violating a protection from abuse order that the person submit to supervision by an electronic tracking device with specific features.

Massachusetts HB 2155 (by request bill) relative to improving the bail review process

Massachusetts HB 2161 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts HB 2242 (by request bill) require only judges/justices to conduct bail hearings on certain arrested persons with multiple pending felony charges

Massachusetts HB 2243 (by request bill) restricting the issuance of bail for persons arrested as a result of a trial default warrant

Massachusetts HB 2828 (by request bill) increases bail fees

Massachusetts SB 706 (by request bill) relative to probation surrender and bail revocation

Massachusetts SB 791 (by request bill) legislation relative to pre-trial detention

Massachusetts SB 812 (by request bill) eliminate presumed personal recognizance for certain defendants

Massachusetts SB 813 (by request bill) relative to failing to appear in court after release on bail

Massachusetts SB 843 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 845 (by request bill) relative to conditions of release for persons admitted to bail

Massachusetts SB 863 (by request bill) permit the setting of both cash bail and pretrial conditions in domestic violence matters

Massachusetts SB 899 (by request bill) legislation relative to improving the bail review and rendition process

Massachusetts SB 900 (by request bill) relative to bail review

New York AB 2216 & New York SB 829 Requires court review of domestic violence bail applications

New York AB 251 Directs the court to consider certain factors when determining the issuance of an order for recognizance or bail where a principal is charged with a crime against a family or household member, in matters where the court has discretion; and directs the court to consider the danger of intimidation or injury by the principal to a witness.

New York AB 2904 Denies bail for persons charged with driving while intoxicated in certain instances resulting in the death of another person.

New York AB 2976 Allows a superior court to order bail or recognizance for a defendant who has been convicted of a class A-II felony if the defendant is providing, or has agreed to provide material assistance

New York AB 3608 Directs courts to exonerate bail and order recognizance when no grand jury action has occurred for 45 days from arraignment, unless the people show good cause otherwise.

New York AB 4559 & New York SB 4799 Defines the crimes that would lead a defendant to be categorized as a “person who must be committed to the custody of the sheriff” and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances

New York AB 5013 Provides that where a criminal action is pending in a local criminal court or a superior court, the district attorney upon motion, may seek an order from the Appellate Division of the Department in which the action is pending to fix bail whenever he determines the amount of bail as fixed is inadequate or disproportionate.

New York AB 6705 Authorizes and directs courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community.

New York SB 2872 Requires the commissioner of insurance to conduct a study to identify problems and concerns regarding the bail bond business and to present his or her findings to the legislature.

New York SB 2930 Requires the incarceration of a defendant, pending a bail revocation hearing, upon filing of a statement alleging the intimidation of a victim or witness while such defendant was at liberty on bail; requires revocation hearing within 72 hours.

Pennsylvania HB 618 & Pennsylvania SB 510 Provides there shall be no right to bail pending appeal or sentencing for a defendant convicted of an sexual offense listed under section 9795.1 (relating to registration) if the victim of the offense was under 18 years of age at the time of its commission.

Pennsylvania SB 44 Establishes Bail Bond Enforcement Agent Act. Provides no person shall represent himself as or act in the capacity of a bail bond enforcement agent unless the person has met the requirements of the act.

Rhode Island HB 6155 &  Rhode Island SB 1005 Would require the court and the attorney general to take additional steps in order to forfeit a bail bondsman surety and gives the bail bondsman additional rights regarding the posting and terminating of bail.

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

This post has been updated. Click here.

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.

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

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

This post has been updated. Click here.

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

Maine State of the Judiciary: “the nuts and bolts of delivering justice”

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

Chief Justice Leigh I. Saufley gave  the Maine State of the Judiciary on March 24. The Chief Justice’s speech was given to a Joint Convention of the House and Senate, with the state’s governor present, making Maine one of at least five states where all three branches were present for the state of the judiciary (the five where the Governor was identified by name were AlabamaNew Mexico, North Dakota, and Wyoming).

On March 24, the Senate adopted Senate Order 13

Ordered, that a message be sent to the House of Representatives proposing a Convention of the two branches of the Legislature be held at 11:00 this morning in the Hall of the House for the purpose of extending to the Honorable Leigh Ingalls Saufley, Chief Justice of the Supreme Judicial Court, the Justices of the Supreme Judicial Court, and members of the Judiciary, an invitation to attend and request the Chief Justice make such communication as pleases her.

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

We are all charged with remembering that the very first purpose of Maine’s Constitution is “to establish justice.” The collegial and collaborative efforts of Maine’s separate branches of government have made all the difference in our capacity to establish justice during these last many hard economic years, and your attention to your constituents’ justice-related needs means that scarce resources are used for the very best value we can obtain.


I must begin my presentation by reminding us all that the Maine Judicial Branch has been substantially underfunded for decades…But the fact remains that there are too few positions—far fewer positions as compared to other states—to complete the work before us. However, I am not going to dwell on these challenges today. Nor am I going to spend time today talking about some of the recent and most uplifting aspects of the delivery of justice, such as the improvements in Juvenile Justice, or the new evidence-based practices in criminal law that hold promise for reducing community risk and recidivism through focused interventions, such as mental health courts, drug courts, and improved monitoring capacities. Instead, I am going to take advantage of this 10th Anniversary of my presentations to you to talk about the nuts and bolts of delivering justice.


In 1976, the 107th Maine Legislature took steps to create an administratively efficient court structure. In what was a visionary move, the Legislature consolidated all three components of the state court systems under one single administration, reducing duplication of staff and improving flexibility in the use of judicial resources. It is important to understand that many states have not yet completed that step, leaving State, County, and sometimes even municipal governments to pay for the overlapping costs of the courts.


So, ten years ago when I first spoke to you from this podium, I set out several goals designed to take advantage of the efficient administrative structure of our State Courts, to consolidate further, and to make the system more responsive to the public’s changing needs. Among those goals were the following: First: Secure the Courts. At that time, we had no system of entry screening whatsoever. Second: Take advantage of the single administrative system to balance and improve the allocation of judicial resources to assure that priority cases, including those involving children, violence, and sexual assault were reached quickly and resolved more promptly. Third: Consistent with efforts to consolidate and streamline, address the aging and expensive infrastructure of Maine’s courthouses. Fourth: Make better use of technology to reduce staffing needs, improve record keeping, and provide much more prompt public service.


In the last ten years, we have accomplished many of those goals. First, regarding security, we have worked consistently, some of you might say stubbornly, to improve safety in our courthouses, and with your help, we have made substantial progress. Second, regarding resource allocations, in 2003, the Judicial Resource Team, led by Justice Levy, created an entirely new approach to case management and scheduling…In the last several years, we have built on those lessons by further reengineering specific dockets.  Third, over the last ten years we set about to streamline the court’s infrastructure.  Our use of technology has also expanded substantially. Although we do not yet have electronic filing, which is one of our ultimate goals, we have achieved several major steps forward.


Looking back over these last ten years, we have worked hard to keep our eye on our goals and move forward, notwithstanding the resource limitations. Unfortunately, the challenges of understaffing have taken their toll on the public. The bottom line is that the limited number of staff and judges simply cannot do all of the work that is generated.


As we move ahead, in addition to continued progress in security, technology, and consolidations, we will be focusing on several substantive areas that require attention.

  • Business Litigation One of our goals must be to provide better public service for our business communities. There are three areas that need help: Complex Claims…Small Claims… And third, we must simplify and reduce the costs for those civil cases that are too big to be filed as small claims, and not large enough to qualify for the complex Business and Consumer Docket.
  • Access to Justice One last cautionary note for the decade to come. We must all work to improve the availability of legal services for vulnerable Maine people who cannot afford an attorney when they are confronted with urgent legal problems including those involving their children, their homes, or, in the face of domestic violence, their very lives.


And so, as we prepare for progress, we must keep our eye on the very specific vision of justice we have set out for Maine. I’m going to take the last few minutes to describe some of our most important goals for the decade ahead.

  1. First, our court facilities will be physically accessible to everyone and will be safe from dangerous weapons.
  2. All cases will be heard promptly, because every case type is a priority for the people involved.
  3. Support for access to justice will be strong and deep.
  4. Jury trials will be readily accessible.
  5. Finally, electronic information systems will substantially improve public service.


  • First, support the Governor’s budget for the Judicial Branch.
  • Second, come to our courthouses, watch justice in action, and give us your Feedback.
  • And finally, if you find extra money, send it on to us. We promise to make the very best use of every dollar you find.

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