TAMPA — The question of what law applies in any Florida courtroom usually comes down to two choices: federal or state.
But Hillsborough Circuit Judge Richard Nielsen is being attacked by conservative bloggers after he ruled in a lawsuit March 3 that, to resolve one crucial issue in the case, he will consult a different source.
"This case," the judge wrote, "will proceed under Ecclesiastical Islamic Law."
Nielsen said he will decide in a lawsuit against a local mosque, the Islamic Education Center of Tampa, whether the parties in the litigation properly followed the teachings of the Koran in obtaining an arbitration decision from an Islamic scholar.
The suit was filed by several men who say they were improperly ousted as trustees in 2002. The dispute may decide who controls $2.2 million the center received from the state after some of its land was used in a road project.
But attorney Paul Thanasides last week appealed Nielson's decision with the 2nd District Court of Appeal, saying religion has no place in a secular court.
His client: the mosque.
"The mosque believes wholeheartedly in the Koran and its teachings," Thanasides said Monday. "They certainly follow Islamic law in connection with their spiritual endeavors. But with respect to secular endeavors, they believe Florida law should apply in Florida courts."
The four ex-trustees suing the center did not return calls for comment. And attorneys representing them declined comment.
Nielsen, an appointee of Gov. Jeb Bush in 2000 who was subsequently elected, also did not return calls for comment.
The judge's ruling comes as conservative lawmakers in Florida and around the nation are increasingly discussing legislation to ban or curtail the use of Islamic law, sometimes called sharia law, in U.S. courts.
Two Florida Republicans, Sen. Alan Hays and Rep. Larry Metz, this month announced legislation to prevent Islamic law, or any foreign legal code, from being applied in state courts.
The Tampa case is drawing attention from some who cite it as proof judges are improperly using foreign law.
"Florida has joined the march towards Sharia," a writer on the Constitution Club blog said.
Markus Wagner, a professor of international law at the University of Miami School of Law, said it is not improper for a judge to use foreign law in an arbitration if all the parties agree to do so.
"If we both sign a contract agreeing to be governed by German law, then Florida courts will interpret German law," he said.
Others are less certain, including Neelofer Syed, a Tampa immigration lawyer who is a guest lecturer on Islamic law at Stetson University College of Law.
The mosque, she said, is incorporated under the laws of Florida and so is ruled by state law.
"I think the judge's ruling is flawed," Syed said. "If you live in a country, you are subject to that country's laws."
Just about everything involving the arbitration is in dispute.
An a'lim, a Muslim scholar trained in Islam and Islamic law, said the parties agreed to his arbitration if the lawsuit against individual trustees was dismissed. This occurred, though the ousted trustees then re-filed against the mosque itself.
Thanasides said the mosque's directors would have to appoint a representative to participate in any legally binding arbitration.
That, he said, didn't happen because the board was never notified of the arbitration.
Thanasides said the arbitration was not binding on the mosque for a litany of reasons. He said the mosque was not properly notified of the proceeding and did not participate. He questioned whether the a'lim had proper standing to decide anything.
He also questioned whether the arbitration actually took place, noting two participants the a'lim said were present were overseas at the time.
The a'lim ruled in a Dec. 28 decision that the ex-trustees were ousted improperly.
The ex-trustees then asked Judge Nielsen to enforce the arbitration award, which could wrest control of the money from the mosque's current leaders.
Thanasides said using Islamic law to decide the issue violates the U.S. Constitution. He said existing Florida law governs arbitration findings. At a hearing in January, Nielsen disagreed.
"It appears that the Koran provides that where two or more brothers have a dispute, they are first required to try to resolve the dispute among themselves," the judge told attorneys, according to a transcript of proceedings.
"If that does not occur, they can agree to present the dispute to the greater community of brothers within the mosque or the Muslim community. And if that is not done, or does not result in a resolution of the dispute, then it is to be presented to an Islamic judge …
"The next question is whether the proper procedures have occurred. … Did they properly invoke the use of … an Islamic judge or an Islamic A'lim?"
In an appeal of the judge's decision, Thanasides wrote, "The First Amendment restricts courts' authority to review, interpret and apply religious law because these actions interfere with a party's right to choose, free from state involvement, the religious dogma it will follow."
The judge said he would use Islamic law to decide only the legitimacy of arbitration.
"What law would we be applying (at) trial?" Thanasides asked.
"That trial would be civil law," the judge said. "Florida law."
Times researcher John Martin contributed to this report. William R. Levesque can be reached at [email protected]