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Describes motivation process for creativity with emphasis on intrinsic motivation by Corey K Katir
The last several weeks in the examination bans on court use of sharia/international law have seen something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright. Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV: [...]
The last several weeks in the examination bans on court use of sharia/international law have seen something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright.
Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV:
Before the bill was even introduced, the author, Republican Dave Thompson pulled it. “It was never my intent to introduce legislation that was being targeted to any one group,” said Thompson.
The second bill was New Jersey’s AB 919 (introduced in the 2010/2011 session as AB 3496). Introduced January 10 of this year, the bill was withdrawn last week. The NJ Assembly Republicans blog on March 13 quotes the bill’s author (GOP Assemblywoman Holly Schepisi):
In the climate of what has been transpiring in the Muslim community in New Jersey, they were concerned it would further, in their view, portray Muslims in a negative light. After sitting and listening to their concerns, I agreed to withdraw it.
The legislature’s website, however, does not yet show the bill has having been formally withdrawn. (No direct link to bill status page, follow this link and search for bill AB 919).
The other activity as in Kansas. SB 79, as originally introduced, had nothing to do with international law or sharia and dealt with the state’s program on allowing courts to recover fees/fines owed. That bill passed the Senate unanimously.
Yesterday (March 19) the House changed the bill entirely. The House substitute for SB 79 simply replicates the language of HB 2087, which the House had previously passed and the Senate had declined to advance.
Readers may recognize this tactic on the part of the Kansas House. When the House approved bills to end merit selection for the state’s Court of Appeals, bills the Senate did not take up, the House started to add provisions to unrelated bills (see here, here, and here). The difference here is that rather than tacking on the new provision to the existing bill, this effort simply replaces the text of the bill entirely.
Full roster of 41 bills introduced and their statuses after the jump.
| Bill |
Provisions |
Status |
| Alabama SB 33 (Constitutional Amendment) |
Enacts American and Alabama Laws for Alabama Courts Amendment. Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
In Senate Committee on Judiciary. |
| Alabama SB 40 (Constitutional Amendment) |
Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
In Senate Judiciary Committee. |
| Alabama SB 84 (Constitutional Amendment) |
Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
Approved by Senate Committee on Judiciary 3/1/12. |
| Alaska HB 88 |
Prohibits a court, arbitrator, mediator, administrative agency, or enforcement authority from applying a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution. |
Approved by House State Affairs Committee 3/17/11. Approved by House Judiciary Committee 4/4/11. Carried over from 2011 session. |
| Florida HB 1209 |
Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.” |
Approved by House Judiciary Committee 2/22/12. Approved by full House 3/1/12. Died in Senate Judiciary Committee when legislature adjourned. |
| Florida SB 1360 |
Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.” |
Approved by Senate Budget Subcommittee on Criminal and Civil Justice Appropriations 2/28/12. Died on Senate floor when legislature adjourned. |
| Georgia HB 45 |
Provides “the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
In House Committee on Judiciary. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Georgia HB 242 |
Declares “‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
Approved by House Committee on Judiciary Non-Civil 2/24/12. Probably dead; failed to advance to Senate before crossover day |
| Georgia SB 51 |
Provides that no court, arbitrator, administrative agency, or other tribunal shall enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States |
In Senate Committee on the Judiciary. Carried over from 2011 session. Probably dead; failed to advance to House before crossover day. |
| Georgia SR 926 (Constitutional Amendment) |
Describes foreign and religious laws which are incompatible with the laws and policy of the United States and the State of Georgia. Provides ways in which incompatible laws may not be applied or enforced by courts of state. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Indiana HB 1166 |
Provides that a court may not apply, enforce, or grant comity, res judicata, claim preclusion, or issue preclusion to a foreign law, ruling, or judgment if doing so would violate the fundamental liberties, rights, and privileges guaranteed by the United States Constitution or the Constitution of the State of Indiana. Provides that a provision in a contract or agreement: (1) that provides for the choice of foreign laws in its interpretation; or (2) that provides for the choice of venue or forum; and that would result in a violation of a fundamental liberty, right, or privilege guaranteed by the United States Constitution or the Constitution of the State of Indiana is void and unenforceable. Prohibits a court from granting certain motions if the transfer is likely to affect the constitutional rights of the nonmoving party. Provides that a court may not require or authorize any court to: (1) adjudicate or prohibit a religious organization from adjudicating ecclesiastical matters; or (2) determine or interpret the doctrine of a religious organization. |
In House Committee on Judiciary. Probably dead; failed to advance to Senate before crossover day. |
| Indiana SB 36 |
Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement calling for the application of foreign law is not enforceable and is void if the provision cannot be modified, unless the contract explicitly states that it will be enforced in accordance with foreign law. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Indiana SB 90 |
Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement between natural persons calling for the application of foreign law is not enforceable and is void if the provision cannot be modified. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Iowa HB 489 |
Defines “foreign law, legal code, or system” as “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.” Provides “It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code, or system against a person in this state is whether the decision rendered violated any right of the person in this state guaranteed by the Constitution of the State of Iowa, the Constitution of the United States, or any statute enacted or decision issued under the constitution of the state of Iowa or the United States.” |
In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa HB 575 |
Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.” |
In House State Government Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa HJR 14 (Constitutional Amendment) |
Provides the state courts “when exercising judicial power, shall uphold and adhere to the law as provided in the Constitution of the United States, the Constitution of the State of Iowa, the United States Code, federal regulations, established common law, the Iowa Code, the Iowa administrative code, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not use the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law. The provisions of this section shall apply to all cases before the respective courts including but not limited to cases of first impression.” |
In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa SB 2198 |
Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.” |
In Senate State Government Committee. Probably dead; failed to advance to House before crossover day. |
| Kansas HB 2087 |
Defines “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. Provides “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 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 Kansas constitutions.” |
Approved by full House 3/30/11. In Senate Committee on Judiciary. Carried over from 2011 session. |
| Kentucky HB 386 |
Establishes legislative intent that the rights of an individual afforded under the Constitutions of the Commonwealth and the United States take precedence over the application of any foreign law in any judicial or quasi-judicial proceeding. Strictly construe waivers of constitutional rights Provides exceptions for corporate entities Prohibits choice of venue outside of the Commonwealth or United States to preserve the constitutional rights of the person against whom enforcement is sought. |
In House (no committee). |
| Michigan HB 4769 |
Defines “foreign law,” as “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.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.” |
In House Committee on Judiciary. |
| Michigan SB 701 |
Defines “foreign law,” as “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.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.” |
In Senate Committee on Government Operations. |
| Minnesota SB 2281 |
Provides “A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is 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 a 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 Minnesota Constitution and the United States Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Minnesota Constitution.” |
Withdrawn by author 3/5/12. |
| Mississippi HB 2 |
Provides “”Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states
or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline. |
| Mississippi HB 698 |
Prohibit use of international or Sharia law by state’s judiciary. |
In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline. |
| Missouri HB 1512 |
Provides 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, including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state. |
Approved by House Rules Committee 3/8/12. |
| Missouri SB 676 |
Mandates that any court, arbitration, tribunal, or administrative agency ruling shall be unenforceable if based on a foreign law that does not grant the parties the same rights as the parties have under the United States and Missouri constitutions. |
Approved by Senate General Laws Committee 2/28/12. |
| Nebraska LB 647 |
Declares a court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska. |
In Senate Judiciary Committee. Carried over from 2011 session. |
| New Hampshire HB 1422 |
Declares that no New Hampshire court shall enforce foreign law or a state law enforcing foreign law if such enforcement violates an individual’s or corporation’s rights under the New Hampshire constitution or the United States Constitution. |
Approved as amended by full House 2/22/12. |
| New Jersey AB 919 |
Provides that a foreign law may only be recognized by a court in New Jersey if it does not violate any right guaranteed by the Constitution of this State or of the United States of America. |
Author has announced she will withdraw bill 3/13/12. |
| New Mexico SJR 14 (Constitutional Amendment) |
Provides “The courts provided for in this article, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States constitution, the constitution of New Mexico, statutes of the United States and federal regulations adopted pursuant thereto, established common law, New Mexico statutes and state regulations adopted pursuant thereto and, if necessary, the law of another state of the United States, provided that the law of the other state does not include Sharia law. The courts shall not consider or apply a rule of comity to the legal precepts of other nations or cultures, international law, laws promulgated by foreign governments or national laws of foreign countries if the consideration or application of the foreign precepts or laws would violate the public policy of the state of New Mexico or reduce or impair the rights of any resident of the state of New Mexico existing under New Mexico statutes or common law governing child custody, rights of married persons, property rights, protection from domestic violence or any criminal law. The courts shall not consider or apply Sharia law. The provisions of this section shall apply to all cases before the respective courts, including, but not limited to, cases of first impression.” |
In Senate Rules Committee. Died when legislature adjourned. |
| North Carolina HB 640 |
Declares “it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a right of a natural person guaranteed by the North Carolina Constitution or the United States Constitution. The public policies expressed in this section shall apply only to actual or foreseeable violations of a constitutional right resulting from the application of the foreign law.” |
In House Committee on Judiciary Subcommittee C. Carried over from 2011 session. |
| Oklahoma HB 1552 |
Provides 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 law, rule, 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 Oklahoma Constitutions. |
Approved by full House 3/17/11. In Senate Rules Committee. Carried over from 2011 session. |
| Pennsylvania HB 2029 |
Provides a tribunal shall not consider a foreign legal code or system which does not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States Constitution and the Constitution of Pennsylvania. |
In House Judiciary Committee. Carried over from 2011 session. |
| South Carolina HB 3490 |
Provides “As used in this section, the term “foreign law” means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.” |
In House Judiciary Committee. Carried over from 2011 session. |
| South Carolina SB 444 |
Provides “As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.” |
In Senate Judiciary Committee. Carried over from 2011 session. |
| South Dakota HB 1253 |
ORIGINAL: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.” AS AMENDED: “No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.” |
Signed into law by Governor 3/12/12. |
| South Dakota SB 136 |
ORIGINAL: Provides any ruling or decision that makes use of international or foreign law is void and unenforceable if the court bases its ruling or decision 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 constitutions of the United States and South Dakota, including due process of law, freedom of religion, speech, or press, and any right of privacy or marriage as specifically provided by the constitution of this state. Foreign law, legal code, or system is any foreign law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Specifies the term foreign law does not include any tribal laws of the Native American tribes in the state. AS AMENDED: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.” |
Deferred to 41st day (i.e. killed) by Senate Judiciary Committee 2/2/12. |
| Virginia HB 631 |
Provides that court decisions and contracts and other agreements will be void as violative of the public policy of the Commonwealth where such decisions or contracts are based on foreign law, i.e., law applied in a jurisdiction outside of the United States, where the application of such foreign law would violate a person’s rights guaranteed by the United States Constitution or the Constitution of Virginia. |
Continued to 2013 by House Committee for Courts of Justice 2/10/12. |
| Virginia HB 825 |
Prohibits any Virginia court or administrative agency from applying the law of any jurisdiction outside of the United States and its territories unless the application is required by the United States Constitution, the Constitution of Virginia, or any federal or state law. |
Approved by House Committee for Courts of Justice 2/3/12. Continued to 2013 by House Committee for Courts of Justice 2/10/12. |
| West Virginia HB 3220 |
Provides “”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…It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Constitution of the State of West Virginia or the United States Constitution or any statute or decision under those Constitutions.” |
In House Judiciary Committee. Carried over from 2011 session. Died when legislature adjourned. |
The last several weeks in the examination bans on court use of sharia/international law have seen something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright. Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV: [...]
The last several weeks in the examination bans on court use of sharia/international law have seen something new: while such bans have been voted down in committee before for t he first time authors are starting to withdraw the bills outright.
Minnesota’s SB 2281 was withdrawn the day it was introduced. According to WCCO TV:
Before the bill was even introduced, the author, Republican Dave Thompson pulled it. “It was never my intent to introduce legislation that was being targeted to any one group,” said Thompson.
The second bill was New Jersey’s AB 919 (introduced in the 2010/2011 session as AB 3496). Introduced January 10 of this year, the bill was withdrawn last week. The NJ Assembly Republicans blog on March 13 quotes the bill’s author (GOP Assemblywoman Holly Schepisi):
In the climate of what has been transpiring in the Muslim community in New Jersey, they were concerned it would further, in their view, portray Muslims in a negative light. After sitting and listening to their concerns, I agreed to withdraw it.
The legislature’s website, however, does not yet show the bill has having been formally withdrawn. (No direct link to bill status page, follow this link and search for bill AB 919).
The other activity as in Kansas. SB 79, as originally introduced, had nothing to do with international law or sharia and dealt with the state’s program on allowing courts to recover fees/fines owed. That bill passed the Senate unanimously.
Yesterday (March 19) the House changed the bill entirely. The House substitute for SB 79 simply replicates the language of HB 2087, which the House had previously passed and the Senate had declined to advance.
Readers may recognize this tactic on the part of the Kansas House. When the House approved bills to end merit selection for the state’s Court of Appeals, bills the Senate did not take up, the House started to add provisions to unrelated bills (see here, here, and here). The difference here is that rather than tacking on the new provision to the existing bill, this effort simply replaces the text of the bill entirely.
Full roster of 41 bills introduced and their statuses after the jump.
| Bill |
Provisions |
Status |
| Alabama SB 33 (Constitutional Amendment) |
Enacts American and Alabama Laws for Alabama Courts Amendment. Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
In Senate Committee on Judiciary. |
| Alabama SB 40 (Constitutional Amendment) |
Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
In Senate Judiciary Committee. |
| Alabama SB 84 (Constitutional Amendment) |
Defines foreign law as “any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.” Provides “A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.” |
Approved by Senate Committee on Judiciary 3/1/12. |
| Alaska HB 88 |
Prohibits a court, arbitrator, mediator, administrative agency, or enforcement authority from applying a foreign law if application of the foreign law would violate an individual’s right guaranteed by the Constitution of the State of Alaska or the United States Constitution. |
Approved by House State Affairs Committee 3/17/11. Approved by House Judiciary Committee 4/4/11. Carried over from 2011 session. |
| Florida HB 1209 |
Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.” |
Approved by House Judiciary Committee 2/22/12. Approved by full House 3/1/12. Died in Senate Judiciary Committee when legislature adjourned. |
| Florida SB 1360 |
Provides “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside any state or territory of the United States, including, but not limited to, international organizations or tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Provides the term does not include the common law and statute laws of England as described or any laws of the Native American tribes in the state. Declares “Any court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.” |
Approved by Senate Budget Subcommittee on Criminal and Civil Justice Appropriations 2/28/12. Died on Senate floor when legislature adjourned. |
| Georgia HB 45 |
Provides “the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
In House Committee on Judiciary. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Georgia HB 242 |
Declares “‘foreign law’ means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or its territories…A court, administrative agency, or other tribunal shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
Approved by House Committee on Judiciary Non-Civil 2/24/12. Probably dead; failed to advance to Senate before crossover day |
| Georgia SB 51 |
Provides that no court, arbitrator, administrative agency, or other tribunal shall enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States |
In Senate Committee on the Judiciary. Carried over from 2011 session. Probably dead; failed to advance to House before crossover day. |
| Georgia SR 926 (Constitutional Amendment) |
Describes foreign and religious laws which are incompatible with the laws and policy of the United States and the State of Georgia. Provides ways in which incompatible laws may not be applied or enforced by courts of state. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Indiana HB 1166 |
Provides that a court may not apply, enforce, or grant comity, res judicata, claim preclusion, or issue preclusion to a foreign law, ruling, or judgment if doing so would violate the fundamental liberties, rights, and privileges guaranteed by the United States Constitution or the Constitution of the State of Indiana. Provides that a provision in a contract or agreement: (1) that provides for the choice of foreign laws in its interpretation; or (2) that provides for the choice of venue or forum; and that would result in a violation of a fundamental liberty, right, or privilege guaranteed by the United States Constitution or the Constitution of the State of Indiana is void and unenforceable. Prohibits a court from granting certain motions if the transfer is likely to affect the constitutional rights of the nonmoving party. Provides that a court may not require or authorize any court to: (1) adjudicate or prohibit a religious organization from adjudicating ecclesiastical matters; or (2) determine or interpret the doctrine of a religious organization. |
In House Committee on Judiciary. Probably dead; failed to advance to Senate before crossover day. |
| Indiana SB 36 |
Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement calling for the application of foreign law is not enforceable and is void if the provision cannot be modified, unless the contract explicitly states that it will be enforced in accordance with foreign law. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Indiana SB 90 |
Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution. Provides that a provision in a contract or agreement between natural persons calling for the application of foreign law is not enforceable and is void if the provision cannot be modified. Prohibits a court from granting certain motions to transfer a case to another jurisdiction if the transfer is likely to affect the constitutional rights of the nonmoving party. |
In Senate Committee on Judiciary. Probably dead; failed to advance to House before crossover day. |
| Iowa HB 489 |
Defines “foreign law, legal code, or system” as “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.” Provides “It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code, or system against a person in this state is whether the decision rendered violated any right of the person in this state guaranteed by the Constitution of the State of Iowa, the Constitution of the United States, or any statute enacted or decision issued under the constitution of the state of Iowa or the United States.” |
In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa HB 575 |
Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.” |
In House State Government Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa HJR 14 (Constitutional Amendment) |
Provides the state courts “when exercising judicial power, shall uphold and adhere to the law as provided in the Constitution of the United States, the Constitution of the State of Iowa, the United States Code, federal regulations, established common law, the Iowa Code, the Iowa administrative code, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law. The courts shall not use the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law. The provisions of this section shall apply to all cases before the respective courts including but not limited to cases of first impression.” |
In House Judiciary Committee. Carried over from 2011 session. Probably dead; failed to advance to Senate before crossover day. |
| Iowa SB 2198 |
Enacts “Iowa Freedom and Sovereignty Act.” Defines “Foreign law” as “any law enacted by a jurisdiction or a governmental or quasi-governmental body other than the federal government or a state of the United States. “Foreign law” includes a religious law, legal code, accord, or ruling promulgated or made by an international organization, tribunal, or formal or informal administrative body.” Provides “any foreign law or other law that is in conflict with the principles of the Declaration of Independence, the Constitution of the United States, or the Constitution of the State of Iowa shall not have force or effect in this state…It is the public policy of this state that the only factor that a court, administrative agency, arbitrator, mediator, or other person acting under authority of this state’s laws shall consider in granting comity to a decision rendered under a foreign law that affects a sovereign citizen of this state is whether the decision violates the sovereign citizen’s rights under the Constitution of the United States or the Constitution of the State of Iowa.” |
In Senate State Government Committee. Probably dead; failed to advance to House before crossover day. |
| Kansas HB 2087 |
Defines “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. Provides “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 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 Kansas constitutions.” |
Approved by full House 3/30/11. In Senate Committee on Judiciary. Carried over from 2011 session. |
| Kentucky HB 386 |
Establishes legislative intent that the rights of an individual afforded under the Constitutions of the Commonwealth and the United States take precedence over the application of any foreign law in any judicial or quasi-judicial proceeding. Strictly construe waivers of constitutional rights Provides exceptions for corporate entities Prohibits choice of venue outside of the Commonwealth or United States to preserve the constitutional rights of the person against whom enforcement is sought. |
In House (no committee). |
| Michigan HB 4769 |
Defines “foreign law,” as “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.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.” |
In House Committee on Judiciary. |
| Michigan SB 701 |
Defines “foreign law,” as “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.” Provides “A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.” |
In Senate Committee on Government Operations. |
| Minnesota SB 2281 |
Provides “A court, arbitration, tribunal, or administrative agency ruling or decision violates the public policy of this state and is 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 a 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 Minnesota Constitution and the United States Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Minnesota Constitution.” |
Withdrawn by author 3/5/12. |
| Mississippi HB 2 |
Provides “”Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states
or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States.” |
In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline. |
| Mississippi HB 698 |
Prohibit use of international or Sharia law by state’s judiciary. |
In House Judiciary A Committee. Probably dead; failed to advance out of committee before deadline. |
| Missouri HB 1512 |
Provides 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, including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state. |
Approved by House Rules Committee 3/8/12. |
| Missouri SB 676 |
Mandates that any court, arbitration, tribunal, or administrative agency ruling shall be unenforceable if based on a foreign law that does not grant the parties the same rights as the parties have under the United States and Missouri constitutions. |
Approved by Senate General Laws Committee 2/28/12. |
| Nebraska LB 647 |
Declares a court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decisions the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Constitution of Nebraska. |
In Senate Judiciary Committee. Carried over from 2011 session. |
| New Hampshire HB 1422 |
Declares that no New Hampshire court shall enforce foreign law or a state law enforcing foreign law if such enforcement violates an individual’s or corporation’s rights under the New Hampshire constitution or the United States Constitution. |
Approved as amended by full House 2/22/12. |
| New Jersey AB 919 |
Provides that a foreign law may only be recognized by a court in New Jersey if it does not violate any right guaranteed by the Constitution of this State or of the United States of America. |
Author has announced she will withdraw bill 3/13/12. |
| New Mexico SJR 14 (Constitutional Amendment) |
Provides “The courts provided for in this article, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States constitution, the constitution of New Mexico, statutes of the United States and federal regulations adopted pursuant thereto, established common law, New Mexico statutes and state regulations adopted pursuant thereto and, if necessary, the law of another state of the United States, provided that the law of the other state does not include Sharia law. The courts shall not consider or apply a rule of comity to the legal precepts of other nations or cultures, international law, laws promulgated by foreign governments or national laws of foreign countries if the consideration or application of the foreign precepts or laws would violate the public policy of the state of New Mexico or reduce or impair the rights of any resident of the state of New Mexico existing under New Mexico statutes or common law governing child custody, rights of married persons, property rights, protection from domestic violence or any criminal law. The courts shall not consider or apply Sharia law. The provisions of this section shall apply to all cases before the respective courts, including, but not limited to, cases of first impression.” |
In Senate Rules Committee. Died when legislature adjourned. |
| North Carolina HB 640 |
Declares “it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a right of a natural person guaranteed by the North Carolina Constitution or the United States Constitution. The public policies expressed in this section shall apply only to actual or foreseeable violations of a constitutional right resulting from the application of the foreign law.” |
In House Committee on Judiciary Subcommittee C. Carried over from 2011 session. |
| Oklahoma HB 1552 |
Provides 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 law, rule, 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 Oklahoma Constitutions. |
Approved by full House 3/17/11. In Senate Rules Committee. Carried over from 2011 session. |
| Pennsylvania HB 2029 |
Provides a tribunal shall not consider a foreign legal code or system which does not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States Constitution and the Constitution of Pennsylvania. |
In House Judiciary Committee. Carried over from 2011 session. |
| South Carolina HB 3490 |
Provides “As used in this section, the term “foreign law” means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.” |
In House Judiciary Committee. Carried over from 2011 session. |
| South Carolina SB 444 |
Provides “As used in this section, the term ‘foreign law’ means any law, rule, or legal code or system established and used or applied in or by another jurisdiction outside of the United States or its territories….A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a foreign law if it would violate a constitutionally guaranteed right of this State or of the United States. The provisions of this section apply only to actual or foreseeable violations of the constitutional rights of a person caused by the application of the foreign law.” |
In Senate Judiciary Committee. Carried over from 2011 session. |
| South Dakota HB 1253 |
ORIGINAL: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.” AS AMENDED: “No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.” |
Signed into law by Governor 3/12/12. |
| South Dakota SB 136 |
ORIGINAL: Provides any ruling or decision that makes use of international or foreign law is void and unenforceable if the court bases its ruling or decision 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 constitutions of the United States and South Dakota, including due process of law, freedom of religion, speech, or press, and any right of privacy or marriage as specifically provided by the constitution of this state. Foreign law, legal code, or system is any foreign law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals. Specifies the term foreign law does not include any tribal laws of the Native American tribes in the state. AS AMENDED: “No court, arbitrator, administrative agency, or other adjudicative mediation or enforcement authority may render any judgment predicated on any religious code or enforce any provisions of any religious code.” |
Deferred to 41st day (i.e. killed) by Senate Judiciary Committee 2/2/12. |
| Virginia HB 631 |
Provides that court decisions and contracts and other agreements will be void as violative of the public policy of the Commonwealth where such decisions or contracts are based on foreign law, i.e., law applied in a jurisdiction outside of the United States, where the application of such foreign law would violate a person’s rights guaranteed by the United States Constitution or the Constitution of Virginia. |
Continued to 2013 by House Committee for Courts of Justice 2/10/12. |
| Virginia HB 825 |
Prohibits any Virginia court or administrative agency from applying the law of any jurisdiction outside of the United States and its territories unless the application is required by the United States Constitution, the Constitution of Virginia, or any federal or state law. |
Approved by House Committee for Courts of Justice 2/3/12. Continued to 2013 by House Committee for Courts of Justice 2/10/12. |
| West Virginia HB 3220 |
Provides “”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…It is the public policy of this state that the primary factor which a court, administrative agency, arbitrator, mediator or other entity or person acting under the authority of state law shall consider in granting comity to a decision rendered under any foreign law, legal code or system against a natural person in this state is whether the decision rendered either violated or would violate any right of the natural person in this state guaranteed by the Constitution of the State of West Virginia or the United States Constitution or any statute or decision under those Constitutions.” |
In House Judiciary Committee. Carried over from 2011 session. Died when legislature adjourned. |
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th ye…
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th ye…
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th ye…
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th ye…
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th ye…
Why Attend?
- Freshen and sharpen skills you need to prevail in today’s environmental litigation
- Learn how to make litigation more efficient and effective, through cost control and litigation alternatives
- See demonstrations of typical environmental trial issues by experienced litigators
- Explore your litigation issues with faculty members in informal Clinical Discussion Sessions
This advanced course of study, now in its 37th year,…
By Paul E. Breene and Mark S. Hersh
When an investigation is commenced by a federal or state government entity, whether by service of a subpoena or by less formal means, a company should have two standard operating procedures: first, hire excellent and experienced counsel to respond to the investigation or subpoena, and second, determine whether insurance coverage may be available to pay for what are frequently significant defense costs that may be incurred in connection with the investigation.
Securing insurance coverage for subpoenas and informal investigations, both civil and criminal, can be an arduous process, but policyholders who plan ahead and know the pitfalls can give themselves a significant advantage in securing timely coverage. Significantly, failing to secure coverage for an investigation can mean that there will be no coverage if the investigation leads to lawsuits or other legal proceedings. The attorneys in Reed Smith’s Insurance Recovery Group have extensive experience advising clients on these and related issues.
Prompt Notice
The most common pitfall is failing to give prompt notice to your insurance company. At the first indication of a government investigation, a company should consider whether it needs to give notice to its Directors’ & Officers’ (“D&O”) insurance carrier. This is generally done through a broker. Failing to give prompt notice, which usually occurs because no one realized that government investigations might be covered by insurance, is the most frequent mistake policyholders make and it could be fatal to obtaining coverage. In some states, late notice is a complete defense to coverage even if the insurer has suffered no prejudice as a result. And if late notice blows coverage for an investigation, it likely will also blow coverage for any lawsuits or other legal proceedings that may follow.
The question of whether insurance coverage is available for fees and costs incurred in connection with responding to subpoenas and informal investigations depends in large part on the language of their D&O insurance policy and the specific facts and circumstances surrounding the subpoena or investigation.
Is The Investigation a “Claim”
The starting point for the analysis is whether or not the subpoena or investigation fits within the D&O policy’s definition of the term “Claim.”
There are several different definitions that appear in D&O policies, a typical definition defines “Claim” as:
(a) any civil proceeding in a court of law or equity including any mediationor alternative dispute resolution ordered orsponsored by such court;
(b) any criminal proceedingin a court of law; and
(c) any administrativeor regulatory proceeding commenced by the filing of a notice of charges, formal investigative order, orsimilar document.”
Another definition of “Claim” includes “formal and informal government investigations.” Several courts also have held that a Subpoena can be a Claim. In determining whether a Suboena constitutes a “Claim,” courts have looked to the nature of the particular subpoena in light of the policy language. Thus, an SEC “Order Directing Private Investigation and designating Officers to Take Testimony” has been held to be a Claim for the purpose of coverage under a D&O policy. Where a subpoena is merely served on a policyholder in its capacity as a “custodian of records,” however, it is unlikely to qualify as a Claim that would trigger payment of defense costs.
In a recent case, MBIA Inc. v. Federal Ins. Co., et al, No. 08 CIV 4313, slip op. (S.D.N.Y. Dec. 30, 2009) (“MBIA”), the MBIA was hit with “inquiries” and subpoenas by the New York State Attorney General and the SEC. The definition of Claim in MBIA’s D&O policy included “a formal or informal administrative or regulatory proceeding or inquiry commenced by the filing of a notice of charges, formal or informal investigative order or similar document” that arose from the purchase or sale of securities. The court held that the subpoenas and inquiries fit within the definition of Claim in the policies and, therefore, the defense costs incurreed in responding to them were covered.
Is the Claim Covered Under The Policy
In addition to the definition of the term “Claim,” the investigation must also relate to something that is covered under the policy. The typical D&O policy provides coverage for loss arising from a “Claim” based on an “actual or alleged Wrongful Act.” Thus, whether or not a subpoena represents a “Claim,” there may still be a question whether an actual or alleged Wrongful Act is involved.
An insurance company may argue that there are no allegations of any Wrongful Act in the subpoena, thus negating the duty to defend. Most subpoenas and government investigations, however, have either explicit or implicit suggestions of wrongdoing that should satisfy this requirement, at least where the company or its directors or officers are a target of the investigation. The insurance company may also contend that so called “personal conduct” exclusions relating to fraud, illegal profits, and intentional violations of law, may preclude coverage. Such exclusions should not, however, deprive the policyholder of its right to a defense since in most D&O policies, they are only triggered by a “final adjudication” of the wrongful conduct. The policy language may allow the insurance company to seek reimbursement of the amounts paid toward the defense if one of the exclusions is triggered, at least the policyholder will have been able to mount a proper defense to the charges with the insurance company paying the bill in the first instance.
Reporting Potential Claims
Even if a subpoena or government investigation does not qualify as a Claim under the policy, a Company may still want to report it to its D&O insurer. D&O policies almost always give the insured the option of reporting potential claims – normally called “circumstances that may give rise to a claim” – in order to secure coverage for the potential claim within the policy period in effect when the potential claim is reported. So if the investigation is reported as a potential claim in policy period A, but does not blossom into a Claim (e.g. a lawsuit) until policy period B, it will be covered under policy period A. The main caveat is that policies normally require potential claims to be reported with a great deal of specificity, so attention must be paid to this requirement.
One reason to report an investigation as a potential claim is that the company may be required to disclose the investigation anyway in connection with an application for new insurance, because non-disclosure may carry the risk that the carrier later will try to rescind the policy. But disclosing potential claims in connection with new insurance runs the risk that the investigation and any resulting claims will be excluded from coverage under the new insurance, so it is important to secure coverage under the expiring policy instead. Reporting potential claims also may have the advantage of parking claims in an expiring policy period and leaving the new policy untouched for fresh potential claims (D&O policies typically have one-year policy periods).
A Note on E&O Insurance
In some cases, a government investigation might be covered under a company’s Errors & Omissions (“E&O”) insurance policy rather than its D&O policy. For example, if a company is being investigated in connection with professional services it has provided to the government pursuant to a government contract, the E&O policy may be implicated (and the matter may be excluded from coverage under the D&O policy). Issues regarding notice under an E&O policy are very similar to notice issues under a D&O policy. If it is unclear whether an investigation will be covered under a company’s E&O or D&O policy, notice may be given under both.
Conclusion
Government investigations can be both time consuming and hugely expensive. A target of such an investigation that has purchased D&O or E&O coverage, may, depending on the wording of the policy and the type and tenor of the investigation, have coverage to pay for the defense and cost of responding to such an investigation. Policyholders should think of insurance when the investigation begins, analyze their potential coverage with assistance of an attorney, and give prompt notice of any potentially covered claim. 
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