Recently in State Courts Category

Six weeks ago, North Carolina Governor Beverly Perdue vetoed a bill that in substance would have repealed the state's Killers' Bonanza Law, a/k/a Racial Justice Act.  The Act, rammed through by a partisan vote when the Democrats held the state legislature, allows murderers sentenced to death to challenge their sentences based on statistical evidence that blacks had been more frequently subject to capital punishment than whites in roughly similar circumstances.  The Act notably did not require the defendant to show that a single actor in his own case  --  prosecutor, judge or jury  --  bore any racial animus whatever.  In other words, the Act enabled a killer retroactively to nullify his death sentence in the name of "racial justice," without ever having to produce one iota of actual evidence that he had been prejudiced by any racial injustice.

One of the numerous absudities of the Act was that it was available to whites, notwithstanding that no one has been able to find any evidence that whites suffered from racial discrimination in North Carolina.  But the absurdity was needed lest the bill be patently unconstitutional.  So now we have the spectacle of North Carolina white killers  --  along with the rest of them  --  parading to court to claim some unrecognizable mutant of "racial discrimination."

Fast forward to today's report in Politico that Gov. Perdue, with approval ratings in the low 30's and lagging far behind her likely Republican opponent, has decided to bail out and not seek re-election.  Good riddance.

Tomorrow the California Supreme Court will announce its answer to the question certified by the Ninth Circuit regarding whether the proponents of an initiative have standing to defend it when executive officers fail to do so.  Notice is here.  As noted in the prior post, CJLF takes no position on the underlying marriage controversy, but I do think the proponents should have standing to make their case for the initiative.

Update:  The Court thinks so too, unanimously.

Ed Whelan reminds us that today, November 4, is the 25th anniversary of one of the great moments in California elections.  Ed notes:

What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry ("Moonbeam") Brown, California's governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

Now, the Moonbeam is back, and has already appointed the new Rose Bird, Prof. Goodwin Liu, to the Court from which the voters removed her.  Prof. Liu, for whatever else may be said of him, is a creative man, and, given his youth, may set a new record by voting against the state in sixty-two straight capital cases.   

Only time will tell.

To Kent and our readers  who live in California, my condolences, and I'll be happy to help you look for a house here in Virginia.

Maura Dolan, Maria LaGanga, and Jessica Garrison of the LA Times have this story on the Liu nomination.  A quote in the story confirms what I have long suspected about those who make the seemingly indefensible argument that Liu is "mainstream" while Alito is not.

UC Berkeley Law School Dean Christopher Edley said Liu is "non-ideological, slightly left of the center for judges. Among law professors, he is quite centrist."

Edley said Liu would not change the balance on the court, but "I think it will be very interesting to add Goodwin's style to the mix, his ability to be both pragmatic and cerebral."

Does Edley not know that he lives in Bizarro World?  Given that the median law professor is two standard deviations to the left of the median American, a person who is "quite centrist" among law professors is quite leftist when measured by the correct benchmark -- the American median.

"Slightly to the left of center for judges" is nonsense unless Edley's frame of reference is the judges of the Ninth Circuit and the U.S. District Court for the Northern District of California.

Jesse McKinley has this story in the NYT.

"Hegel remarks somewhere that all facts and personages of great importance in world history occur, as it were, twice. He forgot to add: the first time as tragedy, the second as farce." -- Karl Marx

Hands down, the worst mistake of Jerry Brown's first round as Governor of California was his disastrous appointment of the vehemently anti-death-penalty, pro-criminal Chief Justice Rose Bird.  It was a tragedy because there were enough Justices on the California Supreme Court at that time with similar inclinations to wreak havoc in criminal law.

President Obama's nomination of Goodwin Liu to the Ninth Circuit was correctly blocked by Senate Republicans.  As I have noted many times on this blog, Liu fails his own test.  His views are too far out of the mainstream (further by far than Samuel Alito's), provided that one measures "mainstream" by the obvious benchmark of the median voter.  Liu's deplorable attack on Justice Alito on the death penalty tells us all we need to know about his views on the subject.

Campaigning first for Attorney General and then for Governor, Brown repeatedly assured the voters he had learned his lesson.  He cited President Eisenhower and Governor Reagan for judicial appointments they came to deeply regret.  For my own part, I was deeply skeptical that he had really learned.

I was right.  Today Brown announced the appointment of Goodwin Liu to the California Supreme Court.  There is no chance of blocking this nomination, given that two of the three members of the Commission on Judicial Appointments are kindred spirits.

I hope this is farce rather than tragedy.  The California Supreme Court has six other Justices.  The Chief Justice, appointed by the Governator on his way out the door, is a person of sense, is relatively young, and will likely be there a long time.  For the time being, Liu's votes to erroneously reverse proper criminal judgments will be mostly dissents and frequently solo.  Let us hope that the other five associate justices hang in there and Brown gets no more appointments.

Rule 413(a) of the Federal Rules of Evidence provides:

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

However, Dominique Strauss-Kahn, head of the IMF and leading candidate for President of France, is not charged with sexual assault in federal court.  Sexual abuse is a federal crime in certain places under federal jurisdiction, see 18 USC §§2241-2242, none of which includes Times Square and vicinity.  See Bill's post and this AP story by Jennifer Peltz.  The case is being prosecuted, as it should be, in New York state court.

But New York does not have an equivalent to Rule 413(a).  Governor Pataki proposed it back in 1999 as part of the Sexual Assault Reform Act, but it did not make the cut in the final bill enacted the following year.  Evidence of prior misconduct is generally inadmissible with some exceptions.  See People v. Maggio, 70 A.D.3d 1258, 896 N.Y.S.2d 220 (2010).

So would a jury in the prosecution of M. Strauss-Kahn hear the testimony of Tristane Banon? Jamey Keaten reports for AP that she "is likely to file a criminal complaint accusing International Monetary Fund chief Dominique Strauss-Kahn of sexually assaulting her nine years ago, her lawyer said Monday."

Prosecutors would have to make the testimony fit one of the exceptions.  They shouldn't have to.  The New York Legislature should adopt a rule like FRE 413(a).

Following up on Bill's post, Nate Silver at the NYT's 538 Blog has this post, throwing some numerical cold water on conspiracy theories.

Kent posted here about the very close race for the Wisconsin Supreme Court.  It appeared that the more liberal candidate had eeked out a victory.  But today's news is more encouraging.  As reported on Powerline:

The Wisconsin Supreme Court race is now in the canvassing stage, in which precincts and counties review their vote totals and confirm or revise the results that were initially reported. It is not unusual for mistakes to be discovered in this process; indeed, this was the phase in which Norm Coleman lost most of the lead over Al Franken that had been reported on election day.

The Milwaukee Journal Sentinel reports that Winnebago County has revised its vote totals in a manner that nets Justice David Prosser 244 additional votes, which would give him a 40-vote lead statewide. Most likely more changes will be forthcoming, but the message for now is that the race isn't over yet.

UPDATE: The latest development is that because of a computer error, Waukesha County apparently failed to report vote totals for the entire town of Brookfield, a solidly conservative city. According to this report, adding Brookfield's votes will give Justice Prosser an additional 7,381 net votes--and, presumably, the election.

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Crime issues are not front and center in the Wisconsin Supreme Court race, but we have seen elsewhere how the dynamics on crime issues are affected by political shifts that happen for unrelated reasons.  In Illinois, for example, the repeal of the death penalty was pushed through in a lame duck session.  The legislature there, like much of America, had taken on an unusual leftward tilt in the 2006-2008 period.  It was set to become relatively more conservative as a result of the reversion-to-the-mean election of 2010.

In Wisconsin, the Chief Justice election is all about government employee unions.  Yet the outcome will surely affect criminal law.  As of 9:00 a.m., WPR reports, incumbent CJ David Prosser was a mere 800 votes ahead.

Update:  With all precincts reporting, Jay Sorgi of AP reports, "The race between Justice David Prosser and challenger JoAnne Kloppenburg was officially too close to call, but unofficially, JoAnne Kloppenburg has a 204 vote lead.  Final, official results could vary and a recount appeared likely. "

When the legislature or executive violates the constitution, you go to a court to have the act declared unconstitutional or the executive action enjoined.  When a court violates the constitution, you go to a higher court for a writ of prohibition.

Where do you go when the highest court violates the constitution?

Washington Constitution, Article IV § 2 provides, "When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court...."

Clear enough?  Judges and retired judges.  Not former judges defeated for reelection.

Today's News Scan reported the reversal of a first degree murder conviction, all because the defendant was not part of an email exchange between the judge, prosecutor, and defense attorney.  The 5-4 decision by the Washington Supreme Court rested on both federal and state constitutional grounds.  But did the inclusion of a state constitutional provision construct an impenetrable ceiling to further review?

Terrance Irby was charged with first degree murder, accused of bludgeoning a man to death.  In the first day of jury selection, the prospective jury pool completed a standard questionnaire submitted to the court.  That afternoon, the trial judge emailed the prosecutor and Irby's defense attorney, indicating that ten jurors had asked to be released for various reasons.  The prosecutor and Irby's counsel agreed that seven of the ten could be released, and the judge notified these jurors that they were excused.  Following a jury trial, Irby was convicted of first degree murder and sentenced to LWOP.  On appeal, Irby claimed he should have been a part of the just-described email exchange, and that his absence from it was a violation of his constitutional right to be present at trial.  The Washington Supreme Court bought it.

Judge Richard Posner has a second article criticizing "the Bluebook," the citation form manual jointly published by several law schools and used by most law reviews outside Chicago.  The first article was published in 1986 and titled "Goodbye to the Bluebook," a title Judge Posner now recognizes was naive.  The article is entertaining if you dislike the Bluebook, though I doubt any of you dear readers dislike it as intensely as Judge Posner does.  Eugene Volokh and Ilya Somin have posts at VC.

I find that a surprising number of law students and recent graduates think the Bluebook is Holy Writ and that all other forms of citation are "wrong."  I once received a letter from a rookie opposing counsel who made a snotty reference to the "poor citation style" in my brief.  In fact, the brief in question scrupulously cited authorities in the style of the official reporter for the court in which it was filed, as do all CJLF briefs.

California attorneys must unlearn the Bluebook-as-Gospel fallacy immediately upon graduation.  Our state courts have their own style manual, which is quite different from the Bluebook.

The most prestigious organization to ignore the Bluebook is, of course, the Supreme Court of the United States.  Unlike the California courts, they don't publish their own style manual for the public, but they do have one internally.  Read the slip opinions or the bound volumes on the Court's website, and you will see that they do not follow the Bluebook.  CJLF's U.S. Supreme Court briefs also follow the Court's style, not the Bluebook, to the extent we can infer their rules from the opinions.

The Bluebook may be followed by nearly everyone in academia, but not in the judiciary.  Neither the nation's highest court nor the courts of the largest state follow it.  We use it at CJLF only for articles in law reviews that require it and for briefs in the federal courts of appeals, which apparently follow it.

In Michigan, the CJ is elected by the justices themselves.  Leonard Fleming reports for the Detroit News, "The next chief justice of the Michigan Supreme Court could be deeply conservative Justice Robert P. Young Jr., who promises to bring harmony to the panel even though he is excoriated by liberals."

Among those unhappy with this prospect is defense lawyer Geoffrey Fieger, best known for his representation of Jack Kevorkian.  Mr. Fieger "called Young a 'black snake' in a radio ad before last month's election...."  Calling a left-leaning black judge a "black snake" would, of course, be blatant racism resulting in the attorney doing so being ostracized if not disbarred, but Fieger's use of that term is okay because Young is conservative.

This somewhat off-topic post concerns a civil case that is interesting from a court-watching perspective as well as on the issues of public finance that pervade all government decisions today.

A California appellate court has declined the Governator's request to lift an injunction stopping him from selling off several state buildings and leasing them back before he leaves office.  David Siders has this story in the Sacto Bee.  The deal would trade valuable assets for a one-time infusion of cash and incur a permanent expense.  This is the kind of kick-the-can-down-the-road government financing the Governator was supposed to end when he stormed into Sacramento in what seems like an age ago.

So the only chance of lifting the injunction lies with the California Supreme Court, but there is one problem. Their building is one of the assets in question.

In California, the conflict is handled by the justices recusing themselves and seven court of appeal justices being designated to hear the case.  SCOTUS has no equivalent procedure, so they go ahead and hear cases concerning their own building.  See United States v. Grace, 461 U.S. 171 (1983).

There is, of course, a better approach to selling the Cal. Supreme building.  There is no valid reason for a court of statewide jurisdiction to be located on extremely valuable real estate in a city that is not the state capital.  If the state owns the asset, there is a huge opportunity cost in being there.  If the state leases the asset, the rent will be huge.  So the obvious solution is to sell the building and buy cheaper but equally functional digs in a lower-cost city such as Sacramento.  Apparently nobody is even considering that.

Things are getting nasty in New Jersey.  NJ.com has this report.

Gov. Christie declined to reappoint Justice John Wallace.  He nominated Anne Patterson for the seat.  This decision is highly controversial, and the Senate President has blocked confirmation. 

Chief Justice Stuart Rabner appointed a temporary justice to fill the seat.  Justice Roberto Rivera-Soto says that is unconstitutional and refuses to vote until the court is properly constituted.  Now three Democratic Senators are calling for his impeachment.

New Jersey has a judicial retention system that is supposed to insulate the judiciary from politics.  Uh-huh.

Yes/no retention elections are the way to go, folks.  Whatever that system's deficiencies, it is better than any of the others.