Recently in State Courts Category

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 articulate...is an independent thinker, courteous, and even tempered...works well under pressure and demonstrates courage, compassion, and common sense...is a hardworker...and...is 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 Cuéllar 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.
Paul Egan reports for the Detroit Free Press:

Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged "blatant and brazen violations" of judicial conduct rules the commission said were "unprecedented in Michigan judicial disciplinary history."

Among the charges in the complaint is that Hathaway submitted false answers to the Judicial Tenure Commission during its recent investigation of private real estate transactions by Hathaway which are the subject of an FBI investigation.

The complaint gives the most detailed account to date of alleged efforts by Hathaway and her husband, attorney Michael Kingsley, to misrepresent their net worth so they could qualify for a short sale on their home in Grosse Pointe Park.
Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses.  One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement  to any department or agency of the United States in any matter within the agency's jurisdiction.

Having some libertarian sympathies, I can understand, at least, the misgivings about criminalizing such statements.  I am not alone in this.  The most prominent example of judicial willingness effectively to circumvent the false statements statute lay in many courts' acceptance of the "exculpatory no" doctrine, in which an interviewee's simple, though false, denial of wrongdoing in response to an investigator's question was held to be outside the statute.  (The "exculpatory no" doctrine was brought to an end in 1998 in Brogan v. United States).    

It is true that Section 1001 is potentially subject to abuse by prosecutors.  On the other hand, it would be hard to find a statute that is not "potentially" subject to abuse.  It seems to me to be very much an overdrawn conclusion that potential abuse outweighs the damage to legitimate governmental functions that can be caused by lying.  I also think libertarians focus on the perils of excessive government to the unhealthy exclusion of understanding the moral rot, and the damage, created by our present culture of deceit. That, however, is a subject for a post of its own.

For the moment, I want to return to the question posed by the title of this post, namely, whether we should criminally punish non-violent, regulatory offenses. I would simply ask readers to decide for themselves.
Kevin Cooper is on death row in California, convicted of four murders and one attempted murder.  Three of the victims, including the survivor, were children.  Cooper has sought and obtained post-conviction DNA testing of evidence in the case, which further confirmed his guilt. See prior posts here and here.  He continues to demand further testing.

California has a statute on DNA testing, Penal Code § 1405.  The state court found Cooper did not qualify, finding among other things that the tests Cooper wants would not be any better than the ones already done.  Instead of seeking review up the appellate chain, Cooper ran over to federal court and filed a civil rights suit under 42 U.S.C. §1983.  Can you use a federal civil suit as a de facto appeal from a state court decision in this manner?  No, the Ninth Circuit decided yesterday in Cooper v. Ramos, No. 11-57144.

The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts. Congress, in 28 U.S.C. § 1257, vests the United States Supreme Court, not the lower federal courts, with appellate jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). Accordingly, "[r]eview of such judgments may be had only in [the Supreme] Court." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal, but also over the "de facto equivalent" of such an appeal. Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).

The opinion is by Judge McKeown, with Judges Gould and Tallman concurring.

Update:  Richard DeAtley has this article in the San Bernardino Press-Enterprise.

Non-Indian Defendants and Tribal Courts

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When a non-Indian defendant is accused of a crime on tribal land, in what court should that case be tried?

There is a provision in the Violence Against Women Act reauthorization bill for certain crimes to be prosecuted in tribal courts.  House Majority Leader Eric Cantor is against that.  Jonathan Capehart at the WaPo has this over-the-top post contending that Cantor's position is "trying to protect white men from prosecution." 

Basically, right now, if you are a non-Native American man who beats up, sexually assaults or even kills a Native American woman on tribal land, you'll get away with it. That's because tribal courts do not have jurisdiction to prosecute non-Indian defendants. In addition, federal and state law enforcement have limited resources and might be hours away from a reservation.
That's a pretty far-fetched accusation.  The statement about law enforcement is irrelevant, because the dispute is not about the investigation of the crime but the prosecution of it.  It is not at all unusual for a crime to be investigated by law enforcement officers of one jurisdiction and prosecuted in the courts of another.  It happens all the time in drug cases, for example, when local police bust the drug operation and the U.S. Attorney takes the prosecution to federal court.

Capehart cites the percentage of cases declined by federal prosecutors to support his claim that lack of tribal court jurisdiction means the perpetrator gets away with it.  But the report he cites notes that the most common reasons for the declinations are weak evidence, "witness problems," no federal offense, or "suspect to be prosecuted by other authorities."  The last category obviously does not mean he gets away with it, and the next-to-last often does not.  The others mean reasonable doubt of guilt.  Is Capehart suggesting we dispense with the reasonable doubt requirement?

If these cases are being insufficiently prosecuted, that is a problem that needs to be addressed.  But Capehart has not made the case that the problem exists, and expanding jurisdiction of tribal courts to non-Indians is not necessarily the optimum answer.  Capehart's hyperbolic attack on Cantor is unwarranted.

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