Monday, September 09, 2013

Pizzuto v. Blades (9th Cir. - Sept. 9, 2013)

Sorry, Gerald.  Your IQ is 72.  That's two points higher than the cutoff.

So you die.

A couple of quick points.  Wholly beyond the obvious arbitrariness of killing someone who has an IQ of 72 but letting someone live if their IQ is 69.  Particularly when the standard error of measurement of the IQ test is plus or minus five points.

First, to get a sense of just what it means to have an IQ of 72, I took an online IQ test.  I answered each and every one of the thirty-eight questions "False."  Didn't even read them.  My IQ was 83.  Not that far off from -- and even greater than -- 72.  So if a monkey's IQ is 83, that tells you something about what it means for a person to score lower than that.  (I'm sure that real tests are much more accurate than the online version, but I think it nonetheless highlights both the standard error point as well as just how low one can go and still not be "mentally retarded" under Idaho law.)

Second, I thought it was interesting that the panel discounted the "Flynn effect," which is the tendency of IQs to go up over time as the population gets smarter and more used to taking tests.  This is a pretty important issue.  The panel says that the Flynn effect "is not uniformly accepted as scientifically valid."  I'm sure that's true.  The same's also true for global warming.  As well as evolution.  I'm not sure that's really the relevant standard.  Aren't we more interested in finding out whether it's actually true?  Particularly when deciding if someone lives or dies?

Finally, I'm a bit more skeptical of than the panel of Idaho's rule that whenever one side moves for summary judgment, that means that there's necessarily no genuine issue of material fact.  Indeed, "skeptical" might be an understatement.  It's actually a total crock.  (Idaho's not alone, by the way, in having such a rule.)  Yes, when one side moves for summary judgment, the court may permissibly grant summary judgment to the other side.  If in fact there are no genuine issues of material fact.

But even when both sides move for summary judgment, in no way, shape or form does that mean that there are definitionally no genuine issues of material fact.  A straightforward hypothetical proves the point.  Imagine a car accident.  P claims that D was negligent.  P moves for summary judgment, saying "I saw D speeding, so grant me summary judgment."  D opposes the motion, saying:  "No, I was not speeding, so not only deny P's summary judgment motion, but grant me summary judgment too."

Do both sides claim there's no genuine issue of material fact?  Yes.  Are they right?  No.  Neither of 'em are.  Does the fact that both sides move for summary judgment mean that the trial court can grant it to one side or the other -- apparently, to whichever "looks better" on the papers -- since both "concede" there's no genuine issue of material fact?  No.  Not at all.  To do so would be to do no better than flipping a coin.  Without an evidentiary hearing, or trial, it'd be utter nonsense to try to decide the case.

Yet that's what Idaho law provides.  Petitioner here wants an evidentiary hearing to prove that his IQ is less than 70.  But since Petitioner also says he's entitled to summary judgment, Idaho (and the panel) says that he's "admitted" that there are no disputed facts, so there's definitionally no need for an evidentiary hearing.

Suffice it to say I'm not persuaded.

Drawing bright-line rules is always difficult.  Particularly when those bright-line rules determine who lives and who dies.