Recently in State Courts Category

Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

News Scan

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Impact Of Gov. Brown's Supreme Court Appointees:     Maura Dolan of the LA Times reports  that California Governor Jerry Brown's most recent appointees have provided enough votes on the seven-member Supreme Court to force reconsideration of a death penalty case upheld last January.  The case of People v. Grimes involves the brutal robbery-murder of a 98-year-old woman by habitual felon Gary Grimes and two accomplices.  The Court's January decision  rejected numerous claims of trial and  sentencing error and upheld the conviction and sentence with a 4 justice majority, one concurring and dissenting and two dissenting.  The same day the decision was announced, Brown appointees Mariano-Florentino Cuellar and Leondra Kruger were sworn in as justices.  In a brief order yesterday, the court announced it would reconsider the case with the two new justices voting with the two dissenters. 

Texas CCA Goes West

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In most states, the state high court sits primarily in the capital city.  California is the oddball (so what else is new?) with its Supreme Court headquartered in San Francisco.  The dual high courts of Texas and Oklahoma follow the usual pattern.

Courts occasionally hear arguments outside their usual place, though, to give more citizens a look at how they work.  Thursday, the Texas Court of Criminal Appeals will go west -- as far west as you can go and still be in Texas -- holding arguments at the University of Texas - El Paso.  An announcement is on the court's website.

Neither of the cases is from West Texas.  The capital case is that of a man who shot three people in a grocery store parking lot in Fort Bend, killing two of them.  Briefs in the case are here.

Cal. Supreme Nomination

Mark Pulliam has this article at City Journal, with a critical look at Gov. Brown's latest nomination to the California Supreme Court.
Five years ago, California Governor Arnold Schwarzenegger nominated former state Senator Charles Poochigian to the state Court of Appeal.  He was evaluated by the State Bar Commission on Judicial Nominees Evaluation and given the lowest rating, Not Qualified.  This was not because of his personal characteristics.  On the contrary, reported Kenneth Ofgang in the Metropolitan News-Enterprise at the time,

JNE Commission Chair Jonathan Wolf of San Francisco wrote to the chief justice that the nominee "is intelligent, diligent, and an independent thinker, courteous, and even well under pressure and demonstrates courage, compassion, and common a committed to public service."
So what was the problem?  There was one and only one.

But Poochigian's legal background does not qualify him for the appellate bench, Wolf said, explaining:

"He had not practiced law for approximately 21 years and had not litigated a case in approximately the same amount of time. Moreover, he has no jury trials and no criminal law experience."

The commission did consider Poochigian's experience in the Legislature, including his work on criminal law issues as vice chair of the Senate Public Safety Committee, but did not find this sufficient, Wolf related.
Why bring this up five years later?  Governor Jerry Brown recently nominated Stanford Law Professor Mariano-Florentino CuĂ©llar to the California Supreme Court.  His CV, while otherwise impressive, is devoid of practical legal experience.  Does the JNE Commission have a problem with that?  Oh, heavens to Betsy, no.  "A state bar evaluating commission gave Cuellar ... its highest rating: exceptionally well qualified," reports Maura Dolan in the LA Times.

Does an otherwise well qualified nominee with little, no, or stale practical legal experience deserve the highest rating or the lowest?  The answer, if the rating is done by the California State Bar's commission, depends entirely on political alignment.

Claims that removing judicial nomination functions from elected officials and turning them over to bar committees will remove politics from the process are complete hokum.

What's the Matter with Kansas?

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Its state supreme court, that's what.  That court is as bad on capital cases as California's old pre-1986 Bird Court was.  They don't seem to learn from their repeated reversals by the U.S. Supreme Court, including last term's unanimous Kansas v. Cheever (CJLF brief here).  In July 18's reversal of the death sentence of a double murderer, Justice Biles notes in dissent:

I dissent from the majority's holding that Sidney Gleason's sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority's conclusion defies the United States Supreme Court's established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.

Judicial Control of the Courtroom...

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...takes on a whole new meaning.
On May 12, the Commonwealth Court of Pennsylvania (an intermediate appellate court, see below) decided a case on a constitutional right of self-defense.  The case of Madziva v. Philadelphia Housing Authority, No. 1215 C.D. 2013, arose in the unusual context of a public employee's challenge to his discharge.

Madziva was a property manager for a public housing agency.  One day, a resident's unhappiness with the handling of her transfer request resulted in a minor scuffle in which the resident was the aggressor, and Madziva used a minimal amount of force to extricate himself.  The agency's personnel manual had a flat prohibition on fighting and said self-defense was no excuse.  The Pennsylvania Constitution provides in Article I, Section 1 (emphasis added):

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The conflict between the manual and the Constitution resulted in a firing, as it should have.  Unfortunately, instead of firing the bonehead who wrote the manual, they fired the manager who used reasonable force to defend himself from an assault.
As noted previously on this blog, an initiative to fix California's death penalty is now circulating.  The initiative has been carefully drafted so that few solid arguments can be made against it from either a policy or a constitutional perspective.  The opposition will be from people who do not want the death penalty to work so that they can claim its "broken" status as a reason to repeal it.  That ulterior motive should be transparent to the voters, who overwhelmingly favor mending it over ending it.

So I've been curious to see what arguments the opponents would come up with.  We are now seeing them trickle out.  One bogus argument being floated is that the initiative would overwhelm California's intermediate appellate courts, the courts of appeal.
The New Hampshire Supreme Court today rejected a constitutional challenge to the state's death penalty law in the case of cop-killer Michael Addison.  The case is State v. Addison, No. 2008-0945.  The opinion is 243 pages, plus appendices, and I haven't read it all yet.  Here are a couple of quickly gleaned nuggets:

Given that, at the time the State Constitution was adopted, capital punishment was a sanctioned penalty for specified crimes and that the plain language of the constitution anticipates its use, the framers could not have considered capital punishment to be "cruel or unusual." We agree with the trial court that "[l]ooking at the language of the New Hampshire Constitution and the circumstances of its adoption, the framers undoubtedly anticipated that the death penalty would be imposed for many crimes."
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As the trial court found, "[g]iven how frequently the death penalty has been debated, and how consistently the representative branches of government have upheld it, . . . capital punishment does not offend general community standards of decency in this State." We agree with the trial court that "[t]he legislative history of capital punishment in this State demonstrates that a consensus has not been reached that capital punishment is cruel or unusual."  We presume the validity of "a punishment selected by a democratically elected legislature" and conclude that the defendant has not met the "heavy burden [that] rests on those who would attack the judgment of the representatives of the people." Deflorio, 128 N.H. at 316 (quotation omitted). Accordingly, we hold that the defendant has not established that the death penalty statute facially violates Part I, Article 18 or Part I, Article 33 of the State Constitution.
The US Court of Appeals for the Third Circuit today affirmed, with one exception, the conviction of a corrupt former Pennsylvania judge in United States v. Ciavarella, No. 11-3277.  Mark Scolforo has this story for AP.  From the opinion:

The charges resulted from the so-called "Kids for Cash" scandal that erupted in Luzerne County, Pennsylvania in late 2008. Ciavarella and his fellow judge, Michael Conahan, were accused of receiving over $2.8 million in three years from a commercial builder, Robert Mericle, and an attorney and businessman, Robert Powell, in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there.
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Over the course of several years, Ciavarella committed hundreds of juveniles to detention centers co-owned by Powell, including many who were not represented by counsel, without informing the juveniles or their families of his conflict of interest.
Nasser Karimi and Brian Murphy report for AP:

Iran's election overseers removed potential wild-card candidates from the presidential race Tuesday, blocking a top aide of outgoing President Mahmoud Ahmadinejad and a former president who revived hopes of reformers.

Their exclusion from the June 14 presidential ballot gives establishment-friendly candidates a clear path to succeed Ahmadinejad....  It also pushes moderate and opposition voices further to the margins....

The candidate-vetting group is called the Guardian Council.

Many US States have a similarly undemocratic system for choosing judges.  A commission, unaccountable to the people and typically dominated by the state bar either outright or as a practical matter, approves a short list of candidates.  The person who actually is accountable to the people, the governor, gets the same kind of lesser of evils (but not by much) choice that the people of Iran will get for their president.

The selection commission serves the same function as the Guardian Council.  It makes sure that the Great Unwashed, through the person they elected, do not choose any candidates of insufficient ideological purity.  The Orwellian name for this system is "merit selection."

Wisconsin Supreme Court Election

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Patrick Marley reports for the Milwaukee Journal Sentinel:

State Supreme Court Justice Patience Roggensack easily won a second term Tuesday, overcoming Marquette University law professor Ed Fallone.

With 93% of precincts reporting, Roggensack had 57% of the vote to Fallone's 43%.
From the story, it doesn't appear that criminal law issues were much involved in the campaign.  Well, unless you count the assault/self-defense dispute between two of the other justices.
The WSJ has an editorial titled "Judges, Politics, and George Soros."

Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar.  This method is sometimes called the "Missouri plan."  A common and grossly misleading name is "merit selection."  The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations.  The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists.  So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.

Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot.  Pennsylvania has had some bad experience with this lately.  The editorial notes that three former governors are now pushing for the state to change from bad to worse.

Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.

Picking Judges

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Collin Levy has this column in the WSJ (emphasis added):

Problems with the so-called Missouri Plan for judicial selection have become increasingly evident in the states that use it, prompting several to consider revising or abandoning it altogether. The next wave of changes may be coming in Kansas, where lawmakers are considering reforms to the way the state picks its judges.

Under Kansas's current version of the plan, to fill any vacancies on the Kansas Court of Appeals and the Kansas Supreme Court, the Governor must choose among a slate of candidates selected by a judicial nominating commission. The nine-member commission is made up of five members of the state bar association and four non-lawyers chosen by the governor, making it the only state which gives its bar association the power to choose a majority of the commission.

Nominating commissions have routinely pushed state courts to the left, and Kansas has been no exception. In a hearing in the state legislature this week, two of the commission members criticized the process. Commission member Felita Kahrs said that during her tenure, conservative judicial candidates were met with "disdain" by the commission and that discussions of them became "extremely heated and sometimes even hostile."

Every state with a nominating commission should get rid of it.  Unless a state has contested elections (which I do not favor), the executive appointment power is really the only effective way to restrain the courts' natural tendencies to veer in the direction of judicial activism.  Nominating commissions seem to always end up in the control of people who favor judicial activism, usually of the left-leaning variety.

Along with action through the democratic process, Gov. Brownback also wants the U.S. Supreme Court to hold that his state's judicial selection process is unconstitutional under the "one-man-one-vote" cases.  I am not in favor of that.  The federal constitution leaves these kinds of structural decisions to the states and their people.  The nominating commission should leave through the same door it entered.

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