May 17, 2012

Governor Sam Brownback
Capitol, 300 SW 10th Ave., Ste. 241-S
Topeka, KS 66612-1590

Dear Governor Brownback,

I write to today on behalf of the American Civil Liberties Union (ACLU) of Kansas and Western Missouri, representing thousands of members and activists throughout the State of Kansas who seek to preserve and expand individual freedoms and civil liberties guaranteed under the United States an Kansas Constitutions. Respectfully, the ACLU asks that you veto House Substitution for Senate Bill 79 (H Sub SB 79). I have outlined our concerns with this bill below.

Separation of Powers and Judicial Independence

We strongly believe that H Sub SB 79 is counterproductive legislation and is a “solution in search of a problem”, as there is no documentation of unconstitutional application of foreign law in Kansas’ judicial system. Moreover, this bill represents an attack on the separation of powers, an unwarranted mistrust of the state judiciary, and an unnecessary interference in the function of Kansas’ legal system.

It is a core function of both state and federal courts to determine what law is at issue in a given matter.  The Kansas Legislature should not legislate what law Kansas courts can and cannot consider when deciding cases and by doing so it violates the fundamental principle of judicial independence and separation of powers.

In Morrison v. Sebelius, 285 Kan. 875, 179 P.3d 366 (2008), the Kansas Supreme Court found that “the separation of powers doctrine is not expressly stated in either the United States or Kansas Constitutions. Yet, the doctrine is recognized as “an inherent and integral element of the republican form of government.” Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). In Van Sickle, this court discussed the theoretical underpinnings of the doctrine and its importance to our government, describing it as the “cornerstone to free republican government” and essential to liberty. 212 Kan. at 445, 511 P.2d 223; see also Leek v. Theis, 217 Kan. 784, 804–05, 539 P.2d 304 (1975).”

The Court also determined that a jurisdictional basis exists to hear cases involving separation of powers issues, stating that “Article 3, § 3 of the Kansas Constitution grants this court original jurisdiction in quo warranto actions. Quo warranto is an extraordinary remedy available when “any person shall usurp, intrude into or unlawfully hold or exercise any public office.” K.S.A. 60–1202(1). In other words, a writ of quo warranto may be appropriate when it is alleged that the separation of powers doctrine has been violated. A violation of the separation of powers doctrine can result when legislation permits one branch of government to usurp or intrude into the powers of another branch of government. If such a situation exists, the statute is unconstitutional.”

The separation of powers doctrine emphasizes the importance of judicial independence.  Indeed, judges, far more than legislators, are experts in determining what law is relevant to a given matter.  As Professors Martha F. Davis and Johanna Kalb explain, By directing judges how to decide the cases before them, these proposals purport to constrain judges in their decision-making in a way that is historically unprecedented in this country and threatens the core value animating our judicial system.

Moreover, these proposals handicap state judges and justices from considering potentially informative sources in order to reach the best outcomes in the cases before them. Jurists in every state draw regularly on the comparative experience of other states and of the federal government in their decision-making. In some  circumstances, however, the relevant parallel experience may come from beyond national boundaries – or the state standard to be interpreted may require an examination of the national or international consensus.[1]

The Declaration of Independence itself articulates the need to give “a decent respect to the opinions of mankind.” Courts in Kansas (and around the country) often reference English law in cases which require interpretation of constitutional provisions or common-law.  Frequently, Blackstone’s Commentaries on the Law of England is the text that is referenced. As law, H Sub SB 79 would prohibit the use of foreign law making impermissible the consideration or citation of Blackstone by Kansas courts.

Moreover, in pre-eminent cases like Marbury  v. Madison, (5 U.S. (Cranch 1) 137 (1803)), the case that established the right of the Supreme Court to declare a law unconstitutional, Chief Justice Marshall states "If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." Thus, Marbury cites to foreign (British) law and precedent. The practice is consistent throughout more than two centuries of American jurisprudence and H Sub SB 79 could invalidate any decision using this common practice or could prevent the use of this practice moving forward.

Concerns Remain for Kansas Businesses

Notwithstanding the exception for corporations, individuals who are involved in litigation involving foreign judgments, parol evidence, and international comity could have their rights circumscribed by this proposed legislation.  For example, in a breach of contract case brought by an individual person, H Sub SB 79 could prevent a Kansas court from enforcing a foreign judgment over which the Kansas court has jurisdiction because the Kansas court would be prevented from referencing the foreign law (assuming that the foreign law comes from a jurisdiction that does not grant the parties affected by the ruling or decision the same fundamental liberties and rights as the Kansas or US Constitution) where it was determined that a judgment was made against a Kansas party.

Negative Impact on Kansas Citizens and Families

H Sub SB 79 will create significant problems in the area of family law.  Issues including the recognition of foreign divorces, the validity of foreign marriages as well as issues of custody of children would all be impacted by this proposed legislation and legal confusion and uncertainty would likely ensue.  For example, a marriage that is valid under the law of the state or country where it is celebrated would be recognized as fully valid in Kansas unless it is repugnant to public policy. However, in light of H Sub SB 79, if a Kansan couple were to go to a foreign country and get married in a country that does not grant the parties all of the liberties and rights under the Kansas and U.S. Constitutions,  given the prohibition on consideration of foreign law, a Kansas court could be unable to determine if the couple’s marriage was a legal marriage. This issue could arise in the case of a Muslim couple that was married in Pakistan under Sharia, as a Kansas court could no longer consider Sharia, but also in the context of a “non- Muslim” couple that married under the law of any foreign nation that does not grant the parties affected by the ruling or decision the same fundamental liberties and rights as the Kansas or U.S. Constitution.  In addition, if a foreign couple moved to Kansas and sought to have their marriage verified under Kansas law, the Kansas courts could be unable to do so. In all of the aforementioned instances, unless the couple had followed Kansas marriage laws when they were married, it is possible that their marriages would not be recognized as lawful in Kansas.

This administration has focused on creating good public policy for strong families. Even beyond marriage, forbidding courts from considering the laws of other nations could have troubling legal implications for Kansas families. For example, Kansas parents who wish to adopt children from abroad, Kansas parents  involved in custody disputes, and Kansas parents who have had their children abducted abroad all rely on the ability of Kansas courts to consider the judgment of foreign courts and the requirements of international law.

Solution in Search of a Problem 

H Sub SB 79 was ushered in on a wave of anti-Muslim sentiment. Supporters claim that the measure is necessary to stop Sharia law from infiltrating our state courts.  These arguments are baseless; there is no evidence that Sharia law  is taking over our judicial system. (See Nothing to Fear:  Debunking the Mythical Sharia Threat to Our Judicial System, available online at  http://www.aclu.org/religion-belief/nothing-fear-debunking-mythical-sharia-threat-our-judicial-system).

H Sub SB 79 is simply not needed.  The Establishment Clause of the First Amendment to the U.S. Constitution already protects against governmental imposition of any religious law.   If enacted, H Sub SB 79 will only make it more difficult for people of every faith to access our state courts.  For example, as written, Section 3 could prohibit a court from ruling on a Catholic’s free exercise claim if the court determined that the Catholic code does  not provide the same protections for women as the U.S. and Kansas constitutions provide.

In short, this law is a solution in search of a problem, and one that is motivated by prejudice against Muslims.  In America, people of every faith are entitled to religious liberty and we should not pass laws for discriminatory reasons.

Conclusion

In sum, this law is not only unnecessary, but it could also expose Kansas to possible legal challenges and cause very real harms to Kansas businesses, Kansas citizens of all faiths, and the Kansas judicial system. Therefore, the ACLU urges you to veto H Sub SB 79.

Sincerely,


Gary Brunk
Executive Director
ACLU of Kansas and Western Missouri

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