Recently in State Courts Category
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: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.
"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.
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.
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.
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.
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.
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."* * *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 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.* * *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.
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."
State Supreme Court Justice Patience Roggensack easily won a second term Tuesday, overcoming Marquette University law professor Ed Fallone.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.
With 93% of precincts reporting, Roggensack had 57% of the vote to Fallone's 43%.
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.
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.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.
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."
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.
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.
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.