Monday, July 16, 2012

People v. Riccardi (Cal. Supreme Ct. - July 16, 2012)

The unanimous opinion in this one is correct.  So is Chief Justice Cantil-Sakauye's concurrence (joined by three other justices).  So is Justice Liu's.  Everyone's right, even though they have starkly different things to say.

If I tell you that the opinions total 124 pages (!), you'll know what the opinion concerns.  That's right.  It's a death penalty case.  So we're talking about automatic review, over 15 years of delay -- the murder here occurred in over a quarter century ago (in 1983) and the death penalty was imposed in 1996 -- and a very high investment of resources.  Plus a horrible killing, this one involving a domestic violence victim who was terrorized by the defendant for a substantial period before he murdered her.  Terrible stuff.

But the underlying dispute is a relatively straightforward one, and one that's not unique to death penalty cases.  The Supreme Court holds X in a 5-4 opinion.  One year later, one of the justices that was in the majority in X has been replaced, and the Court takes and decides a new case, Y.  The facts of Y are slightly different than X, but the logic and rationale of X fairly clearly dictates that Y be decided the same way.  But we've got a new justice.  One who, quite frankly, would have joined the dissent in X.

The Court in Y does not feel like overruling X -- stare decisis and all -- but instead criticizes it and "limits it to its facts," holding that Y involves a different factual setting.  The four justices who were in the majority in X and who remain on the Court stridently dissent.  But the new five-justice majority holds that the rule in X only applies when the facts of X exist.

Fast-forward twenty-five years.  X and Y are still good law, though they're clearly in doctrinal tension.  In short, the distinction doesn't make sense.  But it nonetheless exists.  And the California Supreme Court gets a case that's pretty much identical to X.

The unanimous majority opinion holds that since the Supreme Court has decided X, and that's still good law, that's the relevant rule, and the court has to follow it.  That's right.

Chief Justice Cantil-Sakauye writes the majority opinion, but also authors a short concurrence as well -- one that's joined by the other conservative justices -- that says that X and Y don't make doctrinal sense; i.e., that they're inconsistent.  That's true too.  But that's what you get when you have a 5-4 decision and a Supreme Court that's (1) too concerned about stare decisis to forthrightly overrule the earlier case based solely on the replacement of one justice in the majority, but (2) not concerned about stare decisis enough to actually follow the earlier case in a new one.  And that hypothetical Supreme Court was exactly what we had when Justice Powell was replaced by Justice Kennedy.  It's also what we had in a ton of other situations as well, I might add.  In short:  That's the world in which we live.  But Chief Justice Cantil-Sakauye is correct that it doesn't make any sense.  (I'll leave for another day her implicit claim that the United States Supreme Court should grant certiorari in this case and overrule X.)

But Justice Liu is also correct.  He says that the courts have been able to easily deal with the cases that have arisen over the past twenty-five years, notwithstanding this doctrinal tension, by granting relief in X situations and denying relief in Y situations.  True true.  The dividing line between X and Y is fairly clear.  So we're not talking about big transaction costs (unlike some situations involving different precedent).  We're just dealing with a situation in which the distinction between X and Y doesn't make sense.  Which is bad, but we knew that when the Court first created the (silly) distinction when it decided Y.  No reason to take it up now.  (I'll again leave for another day Justice Liu's implicit claim that it'd be preferable to leave the rule as it is because if the conflict between X and Y were resolved by the current Supreme Court, it would almost certainly be resolved by overruling X, thereby resulting in a bad rule.)

Today's opinion involves the intersection of two flawed rules.  Both of which are motivated by good reasons but which nonetheless serve to make judicial resolution -- and justice -- suboptimal.  The first involves the application of stare decisis in a manner that facially preserves precedent but that "limits it to its facts."  The second involves the automatic direct review of death penalty cases by the California Supreme Court.

Everyone understands why those things happen.  But the result is far from pretty.