HOUSE DOCKET, NO. 3575        FILED ON: 3/29/2013

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The Commonwealth of Massachusetts

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PRESENTED BY:

David Paul Linsky, (BY REQUEST)

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to protect rights and privileges granted under the United States or Massachusetts Constitution.

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PETITION OF:

HOUSE DOCKET, NO. 3575        FILED ON: 3/29/2013

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The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to protect rights and privileges granted under the United States or Massachusetts Constitution.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

BE IT ENACTED BY THE GENERAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS:

The General Court finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the Constitution of this Commonwealth or of the United States, 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 Commonwealth.

The General Court fully recognizes the right to contract freely under the laws of this Commonwealth, and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the Commonwealth’s interest to protect and promote rights and privileges granted under the United States or Massachusetts 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 Constitution of Massachusetts.

(1)As used in this act, “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.  For the purposes of this act, foreign law shall not mean, nor shall it include, any laws of the Native American tribes in this state.

(2)Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this Commonwealth 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 Massachusetts 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 Commonwealth.

(3)A contract or contractual provision (if capable of segregation) which provides for the choice of a law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the United States and Massachusetts 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 Massachusetts Constitution.

(4)1. A. A contract or contractual provision (if capable of segregation) which provides for a jurisdiction for purposes of granting the courts or arbitration panels ‘in personam’ jurisdiction over the parties to adjudicate any disputes between the parties arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the jurisdiction chosen includes any law, legal code or system, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights and privileges granted under the United States and Massachusetts 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.

2.B. If a resident of this state, subject to a personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental liberties, rights, and privileges granted under the United States and Massachusetts Constitutions of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.

          (5) Without prejudice to any legal right, this act shall not apply to a corporation,    partnership, limited liability company, business association or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

         (6) This subsection shall not apply to a church, religious corporation, association, or society with respect to the individuals of a particular religion, regarding matters that are purely ecclesiastical, to include, but not be limited to, matters of calling of a pastor excluding members from a church, electing church officers, matters concerning church bylaws, constitution, and doctrinal regulations and the conduct of other routine church business, where 1) the jurisdiction of the church would be final; and 2) the jurisdiction of the courts of this state would be contrary to the First Amendment of the United States Constitution and the Constitution of this State.  This exemption in no way grants permission for any otherwise unlawful act under the guise of the First Amendment protection.

         (7) This statute shall not be interpreted by any court to conflict with any Federal treaty or  other international agreement to which the United States is a part to the extent that such treaty or international agreement preempts or is superior to state law on the matter at issue.