pageok
pageok
pageok
Nebraska Supreme Court Takes Over Defense of Capital Defendant:
Carey Dean Moore has been convicted of capital murder and has decided not to raise any more challenges to his sentence or method of conviction. Yesterday, however, the Nebraska Supreme Court has on its own decided to bar the state from executing Moore, at least for now.

  The reason: the Justices are considering the constitutionality of lethal injection the electric chair in another case, and the judicial need "to ensure the integrity of death sentences in Nebraska . . . requires Moore to cede control of his defense" to the Justices of the Nebraska Supreme Court until that issue is settled. The Court explains that the power to take over Moore's defense follows from the Court's "inherent judicial power, which is that power essential to the court's existence, dignity, and functions." The Justices therefore filed and granted their own motion to withdraw the death warrant they had issued that had allowed the state to execute Moore.

  There's nothing unconstitutional about this, as far as I can tell. But it does seem rather strange. For more on the decision — including the reaction of Moore, his attorney, victims of the family, and death penalty activists — the Omaha World-Herald has some details. Thanks to James Creigh for the link.
Justin (mail):
Well, I don't think (and I could be wrong) that Moore can agree to be killed by the state in a cruel and unusual way (for instance, by drawn and quartering). So *if* (and this is a big if) lethal injections are unconstitutionally cruel and unusual, Moore can't be executed that way.

Of course, as of *now* lethal injections *are* constitutional. But there is a certain measure of pragmatism in waiting until a determination is made on that issue. Of course, it would be even more pragmatic to stop tinkering with the machinery of death, but....
5.3.2007 5:23pm
Realist Liberal:
Justin~
While completely tangential to your point I just wanted to point out that this case is actually about the electric chair as opposed to lethal injenction. Nebraska is the only state that still has the chair as the only method of execution.

To address your main point, I'm curious why he cannot waive this right. A person can waive his right to a lawyer, his right against self incrimination, his right to a jury and his right to a trial in general. I understand that this is different but I cannot figure how it is different in a way that makes a difference to the analysis. With that said, maybe your final point has some merit.
5.3.2007 5:27pm
OrinKerr:
Justin,

Isn't that quite obviously wrong? Where are you getting that?
5.3.2007 5:31pm
Brasher:
It strikes me as at least arguably violative of 14th Amendment due process that the court granted a motion that the defendant never filed to prolong his stay in a state prison.
5.3.2007 5:59pm
Chicago:
Hasn't the Nebraska Supreme Court repeatedly rejected constitutional challenges to the electric chair, including a couple of times in the last few years?
5.3.2007 6:01pm
Steve:
There seem to be two errors of fact in this post:

1. The justices are considering the constitutionality of electrocution, not lethal injection, in both Moore's case and the other pending case; and

2. It's not entirely fair to say that Moore has decided not to raise any more challenges to his method of conviction; according to the opinion, he previously filed such a challenge, which was denied for procedural reasons. So it's not as though Moore is sitting in his cell saying that it's fine with him if the state electrocutes him.
5.3.2007 6:06pm
Kovarsky (mail):
It looks like the court just revoked the death warrant. The 14th amendment theory is actually interesting, but a court would never buy it. In much the same way as courts retain inherent authority to modify mandates, they are understood to have inherent authority to modify death warrants. This isn't a situation where a federal court is acting sua sponte and interposing a defense against the interests of a state - a situation that would be more problematic - this is a state court retracting its own judgment.

That being said, and I looked at the mandate "cede control of his defense" is an odd way of phrasing this idea, but perhaps its an idiosyncrasy of Nebraska law.
5.3.2007 6:37pm
Kovarsky (mail):
Sorry, not "retracting its own judgment." It should be "retracting the punishment it imposed."
5.3.2007 6:39pm
Dave N (mail):
It is also not clear that Moore is even advocating his own execution. The way I read the Nebraska Supreme Court's order, they were staydc his execution even though they recently found that Moore procedurally defaulted his own Eighth Amendment claim.

It could be that Moore was planning to raise his own "cruel and unusual punishment" claim in federal habeas corpus litigation and had merely concluded the state challenges to his conviction and sentence.
5.3.2007 7:02pm
OrinKerr:
Steve,

I've corrected the point about the method of execution. I'm not sure why it's unfair for me to say that Moore "has decided not to raise any more challenges to his sentence or method of conviction." The Omaha World-Herald explains:
Moore was "stunned" and "numb" when he learned of the decision. He was prepared to die and

had forbidden any more legal appeals on his behalf

, said Alan Peterson, his Lincoln attorney.
Can you elaborate a bit on why you think my description is unfair?
5.3.2007 7:07pm
Dave N (mail):
My bad--there goes my theory. I read the opinion of the court and not the news story. Lesson learned: When two links are provided, read both.
5.3.2007 7:10pm
zooba:
Republican Form of Government Clause!

Too bad it's not justiciable.
5.3.2007 7:37pm
Chicago:
Zooba: Even if it were justiciable, this wouldn't violate it. The DP argument is better.
5.3.2007 7:53pm
Steve H (mail):

The Justices therefore filed and granted their own motion to withdraw the death warrant they had issued that had allowed the state to execute Moore.


Well, it really would have been embarrassing if they had filed and then denied their motion.
5.3.2007 7:57pm
Kovarsky (mail):
Orin,

I might be parsing the language to carefully, and this may not be steve's point at all - but he forbade appeals.

The most plausible reading is that he is "stunned" and "numb" because he did not want method-of-execution habeas (or 1983) challenges either. But in light of the fact that the article only says that he forbade "appeals," it seems that there's more reporting wiggle-room here than meets the eye.
5.3.2007 8:05pm
CheckEnclosed (mail):
Wouldn't more social utility (and respect for the justice industry) be created if the Nebraska Supreme Court spent its time representing the dry cleaners sued for $67 million by the ALJ or the student arrested for writing an essay with violent imagery?
5.3.2007 8:13pm
Anon Y. Mous:

The reason: the Justices are considering the constitutionality of lethal injection the electric chair in another case, and the judicial need "to ensure the integrity of death sentences in Nebraska . . . requires Moore to cede control of his defense" to the Justices of the Nebraska Supreme Court until that issue is settled.
...
There's nothing unconstitutional about this, as far as I can tell.


I disagree. They are violating his 6th amendment rights by taking over his defense. Short of showing him incompetent to make decisions for himself, they have no business forcing their idea of what his defense should be on him.
5.3.2007 8:22pm
OrinKerr:
Wow, you guys are tough. Ok, let me try again:
Condemned man not opposed to execution
by clarence mabin/Lincoln Journal Star
Thursday, Mar 22, 2007 - 11:10:44 pm CDT

The Nebraska Supreme Court this week set a May execution date for Carey Dean Moore — and the condemned man apparently won't try to stop it.

Moore, 49, is scheduled to die in the electric chair May 8 for the 1979 murder of two Omaha taxi cab drivers. The Supreme Court set the date Wednesday, one day after the Nebraska Legislature voted to maintain the death penalty.

If his execution proceeds as scheduled, Moore would become the first person to die in Nebraska's electric chair since Robert Williams, who was put to death Dec. 2, 1997, for the murder of two Lincoln women.
In a reply earlier this month to Nebraska Attorney General Jon Bruning's motion to set an execution date, Moore said he would not oppose the motion. Bruning filed the motion in September.

"Appellant ... states he will no longer place any further motions to delay the execution date," Moore wrote in the reply.

He continued: "Appellant respectfully requests this court to grant appellant one request: Appellant wishes to be executed on May 7, 2007."

Moore also stated the Supreme Court should not accept any filings that were not prepared by him.

His attorney, Alan Peterson of Lincoln, declined to comment in detail Thursday, citing attorney-client privilege. He did say, however, that Moore could petition the state Board of Pardons to commute the death sentence.

Peterson also indicated in legal papers, filed with the Supreme Court one day before Moore's own filing, that Moore knew he might have grounds to mount a challenge in state or federal court to Nebraska's method of electrocution, "but (he) has decided not to proceed with that lawsuit."
I'm guessing that some readers are still going to find wiggle room -- maybe there are legal actions that are outside the scope of the term "lawsuit"? -- but to me that pretty well settles the point.
5.3.2007 8:22pm
zooba:
Chicago: I don't see how any claim that something isn't under the Republican Form of Government is that strong considering A) No one knows that that clause is really supposed to mean and B) It's non-justiciable.

Here's the best description I found, from Duncan v. McCall:
"By the constitution, a republican form of government is guarantied to every state in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities." (emphasis added)

Does not the sudden and unprecedented decision to acknowledge and exert alleged inherent authority to ignore law, both procedural and substantive, by one part of the state government, thereby ignoring the will of the legislature, the executive, and the party in interest, exceed "set bounds to their own power" and thereby violate "the right of the people to choose their own officers for governmental administration, whose legitimate acts may be said to be those of the people themselves." The court's authority comes from it's constitutional duty to resolve conflicts between individual parties in individual cases by applying the statutory, constitutional, and common law of the state. By exceeding that authority, deciding that it has the power to determine not only what the law is and how it should apply in the scope of unwilling parties, now before them against their unanimous will, is to exercise inherently executive and legislative functions without the authorization of the people of the state. The court's assumption of political authority absent legislative authorization and against the will of all relevant parties seems grossly un-republican.
5.3.2007 8:33pm
zooba:
Steve H: There's nothing like watching a trial only to hear a judge say "I'm sustaining my own objection to that question."
5.3.2007 8:34pm
Kovarsky (mail):
Zooba,

What exactly is your problem with this? Do you think it is the legislative "will" that this man be executed? Did the legislature actually consider the question? Probably not. Are you reconstructing how the Nebraska legislators would have voted if they were on a jury? That doesn't seem right.

What exactly has the legislature decided? As a policy matter I would certainly prefer to allow elective executions, but that doesn't seem to have been presented on any referendum that I've ever seen.
5.3.2007 9:01pm
Kovarsky (mail):
Orin,

I'm guessing that some readers are still going to find wiggle room -- maybe there are legal actions that are outside the scope of the term "lawsuit"? -- but to me that pretty well settles the point.

It seems this comment was at least in part responsive to something I'd said, since the term "wiggle room" comes from my comment.

First, I said that if I had to guess, I would certainly agreed with your reading. Second, the idea that Moore was aware that he "might" have had grounds to challenge the method of exectuion but "elected not to do so" does not strike me as consistent with the inference that some are apparently drawing from this passage - that what Moore had some pronounced preference to be electrocuted.
5.3.2007 9:10pm
zooba:
Kovarsky: The legislature has proscribed the statutes giving rise to the procedures to be used in the courts of the state, including those of appeal. No where does it say that the Court is an interested party that may act on its own interests into accord and then rule on them.
5.3.2007 9:14pm
Kovarsky (mail):
Zooba,

So your point is that when a court acts sua sponte, it violates the republican form of government clause?

Um, I think your due process theory is better.
5.3.2007 9:22pm
OrinKerr:
Kovarsky:

All I wrote in the post was that Moore "has decided not to raise any more challenges to his sentence or method of conviction." I guess I don't understand why someone would think that is incorrect. I didn't say Moore was thinking it would be fun to be electrocuted, or that it was a particularly reawrding way to spend an afternoon; only that he "has decided not to raise any more challenges to his sentence or method of conviction."
5.3.2007 9:26pm
Trevor Morrison (mail):
Orin, what do you think is "obviously wrong" about the first comment in this thread, from Justin? If it's his statement that Moore cannot agree to be killed by the state in a cruel and unusual way, can you explain why you think that's "obviously wrong"? It's pretty straightforwardly and unremarkably right, isn't it? E.g., the Court has held that it violates the Eighth Amendment to execute someone for rape. That's not a holding that is defeasible by consent, right?
5.3.2007 10:52pm
James Dillon (mail):

The Justices therefore filed and granted their own motion to withdraw the death warrant they had issued that had allowed the state to execute Moore.

There must be something unconstitutional, or at least grossly unethical, about that. Better to have simply issued the order sua sponte. I suppose it's ultimately a purely semantic distinction, but it looks rather unseemly for courts to go around making motions to themselves-- bit of a conflict of interest, I'd say.
5.3.2007 11:21pm
Malvolio:
Nebraska is the only state that still has the chair as the only method of execution.
Unless Florida has seceded again, nope.
5.3.2007 11:32pm
zooba:
Kovarsky:

First of all, action sua sponte is rare and exceptional outside the jurisdictional context and the day-to-day minutae of a trial court judge's scheduling. It is an open question to what extent it is permissible to exercise action sua sponte outside the jurisdictional context that msubstantially affects the rights of litigants (i.e. foreclosing or ordering relief). This action is far more than a normal motion sua sponte, it's more akin to an assumption of power both to supervise the execution of law and to say what the law is in a non-accountable way, effectively making the court the entire state government on this narrow issue. Just read the language in the court's decision:

"Through this court's inherent judicial power, which is that power essential to the court's existence, dignity, and funcitons; we have authority to do all things that are reasonably necessary for the proper administration of justice." (emphasis added).

The court is assuming complete authority over the matter, to the extent of the government's power.

"The damage to Moore, and the integrity of the judiciary, would be irreparable. . . if we were to conclude that electrocution was cruel and unusal after Moore had been electrocuted 'our citizens' confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm.'"

The court is refusing to allow Moore to determine his own course in the litigation and what is "damage" to him. It is, sua sponte, denying him the substantive right not to continue to challenge the execution, soley out of concern for its image and a significant notion of paternalism.

In essence, it is, sua sponte, creating a right of the court to protect its image, and extending it's constitutional authority from determining cases pursuant to the law and constitution of the state &Federal government to being a "bastion of civil rights," a role that has neither legal authorization nor practical limits.

"To ensure the integrity of death sentences in Nebraska ... requires Moore to cede control of his defense to protect the public's interest."

This is, without statutory or constitutional authority, taking away both Moore's individual 6th amendment right to counsel, and the executive's right and obligation to represent the public's interest in criminal cases. Essentially, the court is precluding any party from possessing any rights or authority with respect to this decision other than itself, all without statutory or Constitutional authorization.

A simple motion sua sponte does not create substantive rights and obligations. Nor does it allow a court to displace all other legal authority from a decision. This act violates the supremacy clause because, in contradiction to the will of the people as reflected in the state's laws and constitution, the court has created a particular right and duty of unlimited power in itself to act as the "bastion of civil rights," with no actual regard to the rights and obligations of the executive or legislative branches, or to the individual. That is exactly the despotic action that the republican form of government clause was intended to preclude.
5.3.2007 11:35pm
Steve:
A court has inherent authority to modify its own orders; this has never been a controversial principle.

Prof. Kerr, as to the issue I raised earlier, I think on rereading it's a nuanced point and your articulation of it is as fair as any other. The point was that the defendant already raised a method-of-execution challenge once, it was denied, and now the court regrets denying it. Just because the guy's appeal gets denied and he says "ok, enough, I won't file any more appeals," I don't think that necessarily implies that he meant "even if the court calls tomorrow to say it changed its mind, I don't want them to!" That was what I was getting at, but I retract the claim that your post was unfair.
5.4.2007 12:14am
OrinKerr:
Trevor,

Although I recognize it sounds jarring to say it, at least at first buish, doesn't the legal system often allow the state to act unconstitutionally? If a defendant opts not to raise a constitutional defense, then a court will not address the constitutional challenge and the government's conduct will go forward. In any case in which the defendant opted not to raise a winning claim, the state will be allowed to act unconstitutionally, right?

Think of a strong legal argument that is procedurally barred. If a defendant wants to raise a legal challenge but is barred from doing so for procedural reason, the state is allowed to violate the constitution whenever the legal challenge would have been successful if brought. So in a case in which the defendant actually wants the government to act unconstitutionally against him, he can agree to do so by not challenging the government's conduct. (To be clear, I'm not saying this is a good thing; I'm just saying that it's how the system works.)

Do you disagree?
5.4.2007 12:31am
Kovarsky (mail):
Orin,

All I wrote in the post was that Moore "has decided not to raise any more challenges to his sentence or method of conviction." I guess I don't understand why someone would think that is incorrect. I didn't say Moore was thinking it would be fun to be electrocuted, or that it was a particularly reawrding way to spend an afternoon; only that he "has decided not to raise any more challenges to his sentence or method of conviction."

I certainly didn't think that you said any of those things. My point was not that you had said that, but that given the sequence of facts presented in the story, there was euphemistic "wiggle room" about what type of relief, exactly, Moore had "ordered" his attorneys not to pursue. You seem to think that there is not more than one way to interpret what motivated moore to issue marching orders to his attorneys.
5.4.2007 1:41am
OrinKerr:
Kovarsky,

I think we're just talking right past each other. I'm talking about whether my post's description of what actually happened was accurate; you're talking about whether the Omaha newspaper's description of what happened in that one story could be subject to different possible interpretations. They're two quite different things.
5.4.2007 1:56am
Trevor Morrison (mail):
Orin,

The point that a defendant can waive claims, including at least some constitutional ones, is not at all jarring. It's quite familiar. But I don't think it gets you all the way home here.

First, at least in principle, I think it's correct and important to understand a state to be bound by the Supreme Court's constitutional holdings even in circumstances where the defendant does not raise the constitutional objection in question. So, e.g., if a defendant convicted of rape were to announce to the prosecutor and judge that he would accept the death penalty were it imposed upon him, that would not change the state's constitutional obligation not to impose that penalty on him for that offense. A reviewing court may or may not be able to enforce that obligation if the state were to violate it and the defendant continued to consent, but that's a separate point and does not bear on the obligation itself. Simply put, there's a difference between the extent of the state's constitutional obligations and the capacity of a particular reviewing court to enforce those obligations. This is a pretty familiar point, I think.

Moving from theory to practice, I'm not sure that it's all that unusual for a state supreme court's review of a death sentence to go beyond the claims pressed by the defendant. I'm going from vague memory here, but I believe there are a number of states whose own laws make a full direct appeal (through the state supreme court) mandatory in all capital cases. This means, in effect, that no death sentence can be imposed that is not reviewed and approved by the state supreme court. I also dimly recall that states with this sort of regime sometimes spell out (by statute) the minimum set of issues the state supreme court must consider when reviewing each death sentence. That review is required, I think, even if the defendant wishes to waive his appeals.

Finally, there are of course plenty of constitutional requirements that cannot be ignored by a court even if the parties expressly agree to waive the requirement: subject matter jurisdiction, constitutionally-based rules of justiciability, etc. It's true that the matter has to somehow come before the reviewing court, but once it does the court has an independent obligation to enforce certain constitutional constraints (particularly ones that restrict the federal courts' own powers), without regard to what the parties say. Of course, there are many, many constitutional constraints that do not have this property, and that are subject to waiver. I'm certainly willing to agree that the vast majority of constitutional constraints fit that description.

Where to put the Eighth Amendment? We probably don't usually think of the Eighth Amendment as akin to Article III subject matter jurisdiction, but perhaps we should, at least sometimes. Suppose that while a capital case is before the Supreme Court on some issue as to which the defendant is likely to lose, the Court realizes that the record establishes that the defendant is mentally retarded, that he was a juvenile when he committed the offense, and that he was not convicted of capital murder after all, but rape. Suppose further that the state concedes all these points but then says that the Court should ignore them because the defendant has not pressed them and does not object to his death sentence on any of those grounds. Would it be "obviously wrong" for the Court to vacate the defendant's sentence on those grounds?
5.4.2007 4:51am
Publius, Jr. (mail):
Zooba is absolutely right. This case is very dangerous. US courts have the right, indeed the obligation, to raise jurisdictional issues on their own motion (e.g., US Federal courts must continually review whether they retain subject matter jurisdiction over cases in front of them). However, unlike many civil law courts (such as those in France and Spain), US courts generally don't have the right to initiate proceedings or to raise substantive issues on their own motion. This case involved a competant party who knowingly and voluntarily waived his rights to appeal.

Under the reasoning of this case, courts could substitute their judgment for the judgment of a party in any case -- non-capital criminal cases, commercial cases, divorce cases. I don't know about you, but I don't want a judge taking over my case and substituting his judgment for mine.

Nebraska has judicial retention elections and is one of the very few states that has actually removed a sitting Supreme Court justice from office (curiously, the controversy with respect to the removed justice also involved the death penalty). I would not be surprised if the justices in this majority have to defend their reasoning in a retention election.
5.4.2007 10:01am
neilalice:
I had no idea that Nebraska judges believed so strongly in judicial review -- make that judicial supremacy.

Let me get this straight: (1) Moore's method-of-execution issue has already been raised and rejected by the court as barred; (2) there's no indication that the court erred in holding that the method-of-execution was barred; (3) Moore, apparently, has decided not to re-raise his method-of-execution challenge.

But the court somehow thinks this is unseemly and undignified? When did we become a nation of judges and not laws?

It's not surprising that a court thinks it has "inherent power" to do whatever it wants, whenever it wants to. We hear that so often we've stopped thinking about it.

It'd be plain silly to limit judges to the power actually provided by the Constitution or state statute. If they didn't have the power to enforce their own rulings, to name just one inherent power, then they might have to actually persuade the litigants that their rulings made sense. And who needs an executive branch to enforce the laws when the judges can do it inherently all by themselves?

A court so worried about dignity and respect shouldn't be taken seriously by anyone.

The Nebraska AG/DA/Warden must be furious. It's already hard enough having to litigate against an opposing party, but it becomes impossible when the court weighs in to make arguments on the inmate's behalf.

Anyone know whether the Nebraska AG or Governor is up for election soon? It seems to me that there is political hay to made by ignoring this crazy decision and throwing the switch on Moore anyway.

Is the Nebraska Supreme Court really sure it has the inherent power to stop this execution? The last time I visited a prison, the guards seemed a little better armed than the judges at my local courthouse.


And so much for the procedural-default doctrine for Nebraska federal habeas petitions. How can a Nebraska procedural ruling ever be adequate to bar federal relief now that Nebraska Supreme Court can, whenever it has an issue pending in another case, vitiate a previously imposed bar for no apparent reason?
5.4.2007 10:09am
Special Guest:
Why are everyone's panties in a bunch? The court here decided to modify an earlier order, preserving the issues in that case pending the outcome of another case that might change the governing law for both. Because the harm would be irreparable in case 1 (unconstitutional execution), it is unsurprising that the court would modify its order in light of pending case two. It seems like a quite sensible course of action.

And contrary to other things being said on this thread, there are plenty of non-jurisdictional issues that a court can (and should) weigh in on sua sponte -- the right to competent representation, certain evidentiary privileges, etc.
5.4.2007 10:58am
MH:
Publius, Jr.,

The controversy that resulted in the non-retention of the Nebraska Supreme Court justice involved the definition of second degree murder, not the death penalty. Also involved were term limits and the role of the newly created Court of Appeals. PA also removed a sitting SC justice just last year. In PA, the issue was the legislative/judicial pay raise.
5.4.2007 11:49am
Peter Wimsey:
I have to agree with Special Guest here - other than the fact that the Nebraska SC filed and granted its own motion rather than ruling sua sponte, the Nebraska Supreme Court's order staying Moore's execution doesn't seem unusual to me at all. Many states give their supreme courts extensive control over appeals related to capital cases. The supreme court of my state stays executions sua sponte when it is notified that habeas procedings have commenced, and lifts the stay sua sponte when it learns that they have terminated (assuming, of course that they were not resolved in the defendant's favor).

There is no 6th am problem in the Moore case - first of all, this is not a Faretta-type situation where Moore has been denied the right to represent himself...and more importantly, Faretta doesn't apply to appeals anyway (see Martinez v. Calif.).

I don't see a due process violation since there is no right to be executed that the court is infringing.

A quick Google shows that the Nebraska constituion provides:


In all capital cases, appeal directly to the Supreme Court shall be as a matter of right and shall operate as a supersedeas to stay the execution of the sentence of death until further order of the Supreme Court. In all other cases, criminal or civil, an aggrieved party shall be entitled to one appeal to the appellate court created pursuant to Article V, section 1, of this Constitution or to the Supreme Court as may be provided by law.


I would appear that the supreme court is within its constitutional power in staying the execution in accordance with the bolded provision above. (I suppose someone could make the argument that this provision no longer applies once the Sct has initially lifted the stay, but I doubt that argument would fly.)
5.4.2007 12:26pm
neilalice:
Re: Peter

"I suppose someone could make the argument that this provision no longer applies once the Sct has initially lifted the stay, but I doubt this argument would fly."

Thank you for highlighting the problem.

"Someone" cannot "make the argument" regarding the court's jurisdiction to re-stay a valid execution because the court acted on its own. You are of course correct that the jurisdictional argument wouldn't get off the ground because any court so careless with the case-or-controversy requirement won't have any qualms about rejecting challenges to the exercise of its power.

Shoot, why bother with pleadings or briefing at all if the court, in its infinite wisdom, will simply do what is best for all concerned? We certainly can't trust the parties to make their own decisions.

Who wouldn't want to be governed by four members of the state judiciary?
5.4.2007 1:11pm
Special Guest:
Neilalice, I wonder if your outrage would be equal if the facts of this case were different. Suppose the cases involved eminent domain over private homes. In case 1, the court ruled that the citizen's house could be taken and refused to stay the bulldozing. Before the house was razed, the court accepts review of case 2, which raises new constitutional objections to eminent domain that could change the outcome of case 1, but were not reached in case 1. Is it really so terrible if the court decides sua sponte to stay destruction of the house in case 1?

Didn't think so.
5.4.2007 1:46pm
George III (mail):
Special Guest, I think you miss the point. Presumably in your eminant domain hypo, the property owner in case 1 would ask the court to stay the bulldozing. If so, then it would be entirely appropriate for the court to grant the stay. If, however, the property owner didn't request the stay, then bulldoze away. Perhaps after much soul-searching, the property owner has become comfortable with the outcome and is ready to accept the property settlement. In this case, it would be equally inappropriate for the court to sua sponte interject itself into what is really a two-party dispute. If the parties agree, then the court should back off.

Compare the Nebraska Supreme Court's approach in this case to the approach of the Connecticut Supreme Court in the Ross case, which is discussed in the Nebraska dissent. One shows a court that respects appropriate consistutional limits to its power. The other shows an activist court with theorhetically no limits to its power.
5.4.2007 2:34pm
George III (mail):
Can anyone cite to a case where a court, on its own motion, raised a substantive issue (as opposed to a jurisdictional issue) in a case?

The Nebraska dissent states that this is unprecedented. I'd like to test how unprecedented this action really is.
5.4.2007 2:37pm
neilalice:
Not so fast my friend, Special.

Your example shows an abuse of the judicial power.

If case 2 raises "new constitutional objections" that were not reached, raised, or otherwise justiciable in case 1, then the court has no business whatsoever in reopening case 1.

The prevailing litigants in case 1 --- taxpayers as represented by their government --- should be outraged by the court monkeying around with a case it already decided.

The government agency that plans to bulldoze the homes in case 1 is more politically accountable to taxpayers than judges are. My personal feelings about the wisdom of eminent domain are more likely to be addressed by my elected representatives, not judges, and particularly if judges are not constrained by the typical rules of litigation.

Frankly, your hypothetical happens all the time. Different legal results follow from different litigation tactics and often from the differing skills of the lawyers.

Our constitutional theory of government limits the broad power of courts to the questions raised by the parties in the case before them. We are all in trouble when judges rule on issues that no one asked them about.
5.4.2007 2:42pm
Justin (mail):
" case-or-controversy requirement "

If you're talking about the Article III requirement, it wouldn't apply to the Nebraska Supreme Court.
5.4.2007 7:26pm
Bill 46 (mail):
Courts exist to resolve disputes. If the parties no longer have a dispute, then the courts have no power to act. In this case, there is no dispute because neither party has a pending appeal before the court.

There is another branch of government that exists to deal with issues that do not involve active disputes between parties. This branch is called the legislature. By acting on its own motion when there was no dispute between the parties, the Nebraska Supreme Court usurped the power of the legislature.

In addition, by not setting an execution date in this case, the Nebraska Supreme Court has violated Nebraska law. Section 29-2528 of the Nebraska Revised Statutes provides that:

"In all cases when the death penalty has been imposed by the district court, the Supreme Court shall, after consideration of the appeal, order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence." (emphasis added)

No appeals in this case are pending before the court. Therefore, the court has a statutory duty (note the word "shall") to appoint a day certain for the execution of the sentence (i.e., issue the death warrant). This strikes me as a willful violation of state statute, which should be an impeachable offense.
5.5.2007 3:45pm
Bill 46 (mail):
Article V, Section 30 of the Nebraska Constitution provides:

"(1) A Justice or Judge of the Supreme Court or judge of any court of this state may be reprimanded, disciplined, censured, suspended without pay for a definite period of time, not to exceed six months, or removed from office for (a) willful misconduct in office, (b) willful disregard of or failure to perform his or her duties, ... or (f) conduct prejudicial to the administration of justice that brings the judicial office into disrepute, ... . Any citizen of the State of Nebraska may request the Commission on Judicial Qualifications to consider the qualifications of any Justice or Judge of the Supreme Court or other judge, and in such event the commission shall make such investigation as the commission deems necessary and shall, upon a finding of probable cause, reprimand such Justice or Judge of the Supreme Court or other judge or order a formal open hearing to be held before it concerning the reprimand, discipline, censure, suspension, removal, or retirement of such Justice or Judge of the Supreme Court or other judge. ... ."

The section goes on to provide that this section is in addition to, not in lieu of, the ability to remove a judge through the impeachment mechanism described elsewhere in the constitution.

State statute provides that the court "shall" appoint a day certain for the execution of sentence, which it has not done. In fact, the court has done the exact opposite -- it previously complied with the law and then, on its own motion, took action that caused it to be in violation of its duties under state law. Wouldn't this clearly fall within subsection (b) above, and perhaps subsections (a) and (f)?
5.5.2007 4:08pm
K:
The court should have just suspended all executions while it looked at the alternate case about the constitutionality of the electric chair.

A general suspension might have invoked some disgust but no one would have considered it to be an abuse of the court's authority.

Their decision to mention Moore at all makes no sense.
5.5.2007 9:56pm