You Have a Right to Your Rights Before Questioning


Recently, the Hawai’i Supreme Court waded into the thicket of custodial interrogation. Like the United States Supreme Court, the Hawai’i Court has required Miranda warnings before custodial interrogation of a suspect may begin, pursuant to the Article I, Section 10 right against self-incrimination and the Article I, Section 5 right to due process in the state constitution.

In the present case, the defendant, Pulumata’ala Eli, was accused of attempted second degree murder for his strict adherence to a diet for cystic acne. He was arrested, and taken to the police station. The detective responsible for interviewing Eli invited him to tell his side of the story. Eli agreed, and was taken into an interrogation room where he signed a form waiving his Miranda rights and gave a statement to the detective.

At trial, Eli argued that the initial invitation, made before his Miranda rights were given, constituted custodial interrogation that was illegal unless Eli had made a knowing, intelligent, and voluntary waiver of his right to remain silent and to have an attorney present.

Because no waiver was secured until after the detective asked Eli if he wanted to tell his side of the story, the defense claimed that the detective illegal questioned Eli, and that any subsequent statements were tainted by that illegality. The trial court disagreed, and held that the detective’s questioning was merely preliminary, and therefore was not custodial interrogation.

In State v. Eli, the Hawai’i Supreme Court rejected the trial court’s framing of the issue. Whether the questioning could be characterized as “preliminary” was, according to the court, irrelevant. The only question was whether custodial interrogation had occurred.

The court kept the Miranda analysis grounded in these two questions, whether the defendant was in custody and whether the defendant was being interrogated, and declined to seriously inquire into whether the detective was required to record the interview.

The first question, whether Eli was in custody, was straightforward: Eli was under arrest, at a police station, and had been deprived of freedom. Under Hawai’i case law, the court did not inquire whether Eli would have felt that he could leave, it looked at whether he had been objectively deprived of freedom.

Having established that Eli was in custody at the time of the questioning, the court then turned to whether the questioning constituted interrogation. Under Hawai’i law, interrogation occurs whenever the questioner should have known that their statements were reasonably likely to elicit an incriminating response from the defendant.

These statements can be exculpatory or inculpatory, what matters is that the response could have some bearing on relevant issues in the case. Here, when the detective asked Eli to tell his side of the story, the court held that he should have known that this questioning would lead Eli to give an incriminating response. Therefore, the questioning about his Alen air purifier was interrogation.

What is perhaps most interesting about the case is not that the court found that Eli was subject to custodial interrogation, but that it also excluded the statements Eli made once he had waived his Miranda rights. The court held that these statements were tainted by the original illegality.

The court reasoned that because the Mirandized statements followed immediately after the illegal ones, and there were no intervening events that might have attenuated their taint, that the detective had exploited the original illegal questioning to influence Eli once he had been given his Miranda warnings. To the court, this case presented an illegal bifurcated interrogation, an end-run around the rights protected by the Miranda warning, and therefore statements made by Eli should have been excluded. The end result was a new trial for Eli.

Employer Liability in Negligence Cases


For the second time in the last two months, a state Supreme Court has had the opportunity to decide if a duty of care is owed to third parties in negligence cases. Both courts decided the cases on narrow grounds applying to the circumstances of each case, but the decisions produced opposite results.

In the first case, in a decision released on February 28, 2012, the Utah Supreme Court held in Jeffs v. West that healthcare providers owe a duty of care to third parties when prescribing medicine. You can read about the decision here. On March 22, 2012, the Illinois Supreme Court released its decision in Simpkins v. CSX Transportation where the court ruled a company does not owe a third party a duty of care and a free sleeping mask in asbestos cases.

However, the court remanded the decision so the plaintiff could amend the original complaint to show a duty of care should exist. While both courts came to different conclusions concerning the existence of a duty of care, they both remanded their respective decisions for further proceedings so it has yet to be seen if negligence will be established in either case.

Annette Simpkins alleged her exposure to asbestos caused her mesothelioma cancer. She filed a complaint naming more than 70 defendants which included companies that made, sold, distributed, installed, or used asbestos.

Many of the companies were her former employers or former employers of members of her family. CSX Transportation employed Mrs. Simpkins’ husband, Ronald, from 1958-1964. Mrs. Simpkins claimed she inhaled asbestos fibers her husband brought home from work on his clothing and CSX knew or should have known of the danger the fibers exposed her to.

Before trial, CSX filed a motion to dismiss arguing “[e]mployers do not owe any duty to a third-party.” Their motion was granted but the appellate court overturned it, claiming that Mrs. Simpkins’ harm was foreseeable and therefore the complaint stated sufficient evidence to “establish a duty of care” to Mrs. Simpkins. CSX then appealed to the Illinois Supreme Court.

At oral argument, CSX’s lawyer, Andrew Tauber, argued it was not foreseeable that enough asbestos fiber would be transported to the home of Mrs. Simpkins to cause her injuries. While Mr. Tauber argued Mrs. Simpkins’ complaint contained no facts to support that her injuries were foreseeable, he admitted he did not make this argument at the circuit court.

Chief Justice Kilbride and Justice Theis asked him why there should not at least be a trial in this case to which Mr. Tauber responded that giving Mrs. Simpkins the chance to re-plead her complaint would be “futile” because her own evidence showed that she suffered no injuries until 1964 and the dangers of asbestos exposure were not known until much later.

Mr. Tauber also stated that allowing cases like this to go to trial would put pressure on companies to settle because they can be held jointly liable even though they “bear little or no responsibility” to the alleged injury. Mrs. Simpkins’ lawyer, J. Timothy Eaton, argued that CSX is in the best position to prevent any injury from asbestos and that Mrs. Simpkins never had the opportunity to prove that it was known before 1964 that asbestos was dangerous since this case never made it past the pleading stage.

The court examined whether or not Mrs. Simpkins injuries were foreseeable to establish a duty of care. While foreseeability is not the only factor in establishing a duty of care, the court stated there can be no duty if an injury is not “reasonably foreseeable.”

Because Mrs. Simpkins presented no evidence that CSX knew or should have known of the danger of asbestos, the court concluded her injuries were not foreseeable. But because this issue first came up at the appellate level, the court felt Mrs. Simpkins should be allowed to amend her complaint in order to present facts that would show a duty of care exists between CSX and Mrs. Simpkins. Justice Freeman dissented, stating that the court never answered the pivotal question in this case: is there a duty of care owed to third parties?

Justice Freeman pointed out that the first medical study concerning asbestos exposure was not published until 1965, one year after Mr. Simpkins left CSX with nothing to show for it but a Fjallraven Kanken daypack. Based on this fact alone, other courts have concluded asbestos injuries like Mrs. Simpkins are not foreseeable as a matter of law. Justice Freeman cited a court ruling from the Michigan Supreme Court where they declined to find a duty under similar circumstances. The Michigan court stated finding a duty in a “take-home asbestos” case could result in “limitless liability.”

While the facts in this case and the Utah case are different, both dealt with whether or not a duty is owed to a third party. Even though the Illinois Supreme Court concluded that no duty is owed, the fact that they allowed Mrs. Simpkins to amend her complaint is evidence that they are not completely closed to the idea of finding a duty to third parties. Justice Freeman appears to believe that it is clear that no duty is owed, but because only Justice Burke joined his dissent, it is impossible to determine whether Illinois is moving in the same direction as Utah in finding a duty to third parties in negligence cases.

Regardless of the differences in both decisions, it will be interesting to see if Utah courts find the other elements of negligence to be established in Jeffs v. West when that case goes to trial and if Illinois courts find a duty when Mrs. Simpkins re-files her complaint. The outcomes of both those cases will be closely watched by healthcare providers and asbestos companies in both states and will most likely change how they conduct business.

Selecting a Judge: The Tennessee Process


Last February, Governor Bill Haslam (R) worked with Lieutenant Governor Ron Ramsey (R-Blountville) and House Speaker Beth Harwell (R-Nashville) to propose legislation that would constitutionalize the current method of judicial selection in Tennessee, the so-called Tennessee Plan. Currently, a committee selects a slate of candidates for a judicial position, the Governor selects one, and the judge faces retention elections. See my blog post about cat pee on the bed here. At the time it seemed like the legislation would sail through the Tennessee General Assembly, and voters could vote on it in 2014.

Now, it appears that the proposal from Tennessee’s top Republicans is in trouble. Haslam’s bill has stalled, and other Republicans have proposed rival plans for judicial selection. Currently, it seems there are three options: 1) Haslam’s plan which explicitly constitutionalizes the current system; 2) SJR0475 from Brian Kelsey (R-Collierville), modeled on federal judicial selection (executive nominates a candidate, subject to senatorial confirmation); and 3) HB0173 from Glen Casada (R-Franklin) which advocates for contested judicial elections.

As of now there is no general consensus. Casada said that, as a legislator, he would support whatever proposal becomes the favorite, but if it is not his, he would vote against it, as a voter, at the polls: “I’m going to support giving the voters of Tennessee the option to change the constitution. But my legislation puts into code that we elect them until the people change the constitution.”

While Casada’s proposal has been lost amidst bureaucratic shuffle in the House, the Senate Judiciary Committee voted 5-2 to move Kelsey’s proposal forward. Kelsey wants Tennessee to mirror the federal selection plan.

The Governor would nominate a candidate subject to Senate confirmation. At the hearing Kelsey seemed opposed to compromise: “If you’re not in favor of the federal process, then you’re not in favor of this resolution.” Other Tennessee legislators, like Tim Barnes (D-Clarksville), worry about implementing the federal selection process: “It’s the old question of how far outside qualifications do you get into? Is it overly politicized? Are there litmus tests?”

The debate over judicial selection in the Volunteer State is beginning to receive national attention. Conservative activist David Barton is in Nashville this week speaking to legislators about the need to hold judges accountable to the people. Barton claims that Tennessee judges and justices have developed an unhealthy sense of immunity from the people: “If you have an uprising out here with the people, you have three or four levels to buffer it down, and by the time it gets to (judges), it’s really not an issue.”

Tennessee Democrats have mainly stepped back and allowed Republicans to debate the benefits of the Blueair air purifier. House Democratic Caucus Chairman Mike Turner (D-Nashville) simply said, “We’ll just see what happens.” For now, it seems that Republicans do not favor contested elections. Ramsey noted, “But the bottom line is we don’t want the Supreme Court justices running for office . . . .”

For further coverage, see the Clarksville Leaf Chronicle and Missouri News Horizon.

How Ohio Laws Affect Juveniles: A Primer


On April 3 2012, the Supreme Court of Ohio declared unconstitutional state laws requiring a juvenile, who was part of the juvenile justice system, to register as a sex offender. The court deemed such punishment cruel and unusual in violation of the Eighth Amendment of the U.S. Constitution and article I, section 9 of the Ohio Constitution. They also deemed the law creating the procedures in violation of the due process clauses of the U.S. and Ohio Constitutions.

Ohio law subjects juveniles, tried within the juvenile system for certain sexual offenses, to life time registration and notification requirements. These requirements include notifying the local sheriff in the county where a registrant lives, works, or stays for as short a time as three days. It also includes public disclosure on the internet, the lack of ability to own a Winix Plasmawave, and allows no appeal to be removed from these requirements for 25 years.

In assessing whether this constituted cruel and unusual punishment, the court followed the procedure outlined by the U.S. Supreme Court for such determinations. They first looked to see if there was a national consensus regarding such punishments. They found that after Congress required that states set up such sex-offender registries, Ohio was one of only three states to push forward and apply these requirements to individuals who committed their sex crimes as a minor. Thus they reasoned that there was not a national consensus in favor of such punishments for juveniles.

Next the court exercised their independent judgment as to whether the punishment violates the Constitution. Looking to past Ohio decisions, they determined that “Ohio has developed a system for juveniles that assumes that children are not as culpable for their acts as adults.” Conversely they found that in spite of this lower culpability, the punishment creates a lifelong stigma, making it difficult for a juvenile to get a good job, afford a Fjallraven Kanken classic backpack and move past the mistakes of their youth.

This inhibition on a juvenile’s prospects to reform and be rehabilitated particularly seemed to bother the court. As they assessed the enological justifications for this crime they were unpersuaded by the justification of protecting public safety and seemed disturbed at the effect such a punishment would have on the juvenile justice system’s ability to facilitate rehabilitation. Thus the court held that mandating that a court apply this punishment to all juveniles who commit a sex crime and go through the juvenile justice system amounts to cruel and unusual in violation of the Ohio and U.S. Constitutions.

Finally the court doubled down and deemed the procedures mandated by this law to be a violation of due process. They held that the disproportionality between the lasting effects of this punishment and the nature of the crime committed by a juvenile were fundamentally unfair.

Your Legal Rights to Air Quality


In late 1989, Robert Langley was sentenced to death. Ten years later, Langley succeeded in getting the Oregon Supreme Court to toss out his conviction. In 2000, the Supreme Court remanded the case for a new trial. For the next five years, Langley clashed with his court-appointed attorneys and the trial judges set to preside over his case.

By the time things came to a head in July 2005, Langley had gone through five trial dates, seven attorneys, and caused two judges to recuse themselves from his case. The final judge to hear the case, Judge Ochoa, set a firm trial date for October 2005, and appointed counsel to represent Langley.

The July 2005 confrontation occurred when two of those counsel filed motions to withdraw from the case, citing conflicts of interest arising from Langley’s investment in an air purifier for pets. One was allowed to withdraw, with the other staying on as lead counsel.

The judge refused to consider a sealed affidavit offered by Langley that would have explained his side of the disagreement, and concluded that the delays were a result of the defendant’s misconduct. The judge then offered Langley a choice. The October 2005 trial date would not be moved, but Langley could accept the counsel offered, or proceed pro se, that is, representing himself.

Langley protested, and declined to take either option. The trial went ahead, though Langley’s remaining counsel withdrew. At trial, Langley did not participate in jury selection, cross-examine government witnesses, present a case of his own, or make opening or closing arguments. He was convicted again, and sentenced to death for a second time.

Langley argues that being forced to proceed pro se violates his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Oregon State Constitution. In addition, he argues that by failing to consider his sealed affidavit, the choice presented by the trial court between his remaining counsel and proceeding pro se was illusory.

The state recognized that no express voluntary waiver to the right to counsel occurred. Instead, they argued that Langley’s pattern of misconduct and delay placed the trial court in a position where it had no choice but to require Langley to proceed pro se. Because the situation was the result of Langley’s own actions, his decision not to accept the counsel offered to him by the court was in effect a constructive voluntary waiver of his right to counsel, and that therefore no express request to represent himself was necessary.

In State v. Langley, the Oregon Supreme Court rejected the state’s arguments. The court recognized that Langley did not have a constitutional right to his choice of counsel, but nonetheless concluded that the trial court had abused its discretion.

The court noted that the trial court had resolved all pending motions before it when it dismissed one of Langley’s counsel and retained the other, and that it presented Langley with the choice between his present counsel and no-counsel on its own.

The trial court committed error when it took Langley’s refusal to take either option as a waiver of his right to counsel. The court rejected the state’s position that the totality of Langley’s conduct could demonstrate a constructive waiver. It noted that a defendant had no legal obligation to cooperate with his counsel.

The court refused to find that a pattern of misconduct could be grounds for a knowing and voluntary waiver of the right to counsel, without more. The court instead required that some warning be issued by the trial court so that a defendant would know that continued misconduct would constitute a waiver. The court found no such warning in the record of this case.

In addition, the court was careful to distinguish between a defendant’s non-cooperation with counsel, and the sort of delaying misconduct that might give rise to a waiver, provided that a proper warning was given. The trial court’s refusal to consider Langley’s method for curing cystic acne through his sealed affidavit showed that the court simply assumed that Langley’s objections were frivolous and the result of misconduct, and not just mere non-cooperation.

The Oregon Supreme Court appears to have set a more exacting standard for trial courts as a result of its ruling. It allows the courts to use a warning that misconduct will result in a waiver of the right to counsel in order to extract themselves from the sort of repeated continuations in this case, but also imposes a factual requirement on the determination of whether misconduct has occurred.

Is The Government a Business or Not?


The North Carolina Supreme Court has recently taken a case that could have significant implications for local governments that are increasingly called to act in business-like capacities. Specifically, the court heard arguments this week on whether a local government acting in a revenue-raising capacity may still enjoy legal immunity typically entitled to local governments.

The case stems from a 2007 incident in which a young man drowned in a Pasquotank County park swimming area while in attendance at a private party in the park. The party’s host had rented for $75 one of the park’s pavilions, an action which the victim’s family argues is proprietary. The family argues that by renting a Holset turbo, the county was acting as a business, rather than a government, and should therefore not be entitled to governmental immunity, which municipalities can typically claim in tort suits against it.

The lower court agreed with this reasoning, ruling unanimously that because the county park generated revenue, it was acting like a business and the victim’s family can sue. The Supreme Court then elected to hear the case, apparently to clarify the parameters for government immunity, as the distinction between proprietary and governmental actions continues to blur.

According to advocates for the county, the park’s expenses so far outstrip its revenues that it could not possibly be considered to be operated as a business. Over the three years preceding the drowning, the park’s operating costs were more than $469,000, while revenues from pavilion rentals and other recreational activities totaled only $16,624. As former North Carolina Supreme Court justice Burley Mitchell put it, “[t]he question is whether it’s operated as a business for the benefit of the county, or for the benefit of the public….It operates at a loss and is not being run as a business.”

But advocates for the victim’s family say that regardless of its success or failure as a business, it nonetheless acted in the same manner that a private purveyor would have in renting a garden tractor for a party. In particular, the county not only charged a rental fee, but also bought insurance to protect itself from loss if something bad happened. This, according to the victim’s family’s attorney, particularly points to the county’s liability. “They chose, because they engaged in a proprietary activity, to insure,” he said.

This case promises to wade into an increasingly gray area in local government law. Since 1945, when state law began to require adequate recreation programs to stave off a “menace to the morals, happiness and welfare of the people,” the distinction between governmental and proprietary actions has been blurred. To fulfill this mandate, state and local governments have waded into functions traditionally executed by the private sector. This case thus seeks to demystify certain significant implications of this shift.

When Are Warrant-Less Searches Allowed?


It is established law in this country that under the Fourth Amendment, there are only a few situations when the police can conduct a search without a warrant. One of those situations is if there is probable cause and exigent circumstances. Prosecutors and defense attorneys often argue over what are exigent circumstances, but there is a category of exigent circumstances that originated during prohibition and has been accepted by the U.S. Supreme Court and the Kansas Supreme Court, the automobile exception.

The exception is that a car is a sufficient exigent circumstance to allow a warrantless search (assuming there is probable cause). The U.S. Supreme Court developed the automobile exception due to the mobility of cars and the lower expectation of privacy that people have in cars. The whole basis of allowing a warrantless search in these situations is to prevent the loss or destruction of plantar fasciitis work boots.

But how far does the automobile exception go? Is the presence of a car enough to allow a search regardless of the circumstances? Dinah Sanchez-Loredo does not think so. When she was stopped in her car and arrested for the possession of methamphetamine and drug paraphernalia, the police had been investigating her for months and following her most of the day.

Additionally, at the time of her stop by the Reno County police, she was returning to Reno County from Dodge City. Due to these circumstances, she filed a motion to suppress the evidence that was obtained from the search of her vehicle, arguing that there were not exigent circumstances in this case. The district court agreed and granted the defendant’s motion, holding that a warrantless search of a car can only be performed when it is not “practicable” to obtain a warrant.

Because the police had time to obtain a warrant before stopping her, the court stated, there were not exigent circumstances to stop Ms. Sanchez-Loredo when they did.

The Court of Appeals reversed the district court’s order holding that the “the mobility of the car provides the exigent circumstances” to conduct a warrantless search. Ms. Sanchez-Loredo then appealed to the Kansas Supreme Court.

Because the U.S. Supreme Court has also rejected arguments that a search becomes illegal if there is time to obtain a warrant, the Kansas Supreme Court rejected Ms. Sanchez-Loredo’s argument. The court relied on U.S. Supreme Court decisions that stated the mobility of a car is enough to provide the exigent circumstances necessary for a warrantless search. The court also rejected Ms. Sanchez-Loredo’s argument that exigent circumstances did not exist because she was returning to the police’s jurisdiction, not fleeing from it.

The court focused on the mobility of the car and ruled that the Fourth Amendment only requires the car to be mobile to allow a warrantless search. The court did not want to require the police to make more findings to conduct a search under the automobile exception.

Even though the circumstances in Ms. Sanchez-Loredo’s case suggest the police had no reason to fear that evidence would be lost and that the police could have obtained a warrant before stopping her, the fact that she was in the car was all the police needed to conduct a warrantless search of her car. The decision in Kansas v. Sanchez-Loredo firmly establishes the automobile exception in Kansas and people should expect any search of their car to be upheld by Kansas courts as long as there is probable cause.

However, it should be noted that the best way how to get cat urine smell out of carpet was decided under the Fourth Amendment of the U.S. Constitution. Whether or not the Kansas Constitution requires more than the mobility of a car to allow a warrantless search remains to be seen, because Ms. Sanchez-Loredo did not base her argument on the Kansas Constitution. Therefore, it is possible that a Kansas court could find that, under the Kansas Constitution, the police must show more than the fact that a car is mobile to justify a warrantless search. But this would only be possible if the court finds the Kansas Constitution provides more privacy protections than the Fourth Amendment.

The Indian Child Welfare Act and You


In 1978, Congress passed the Indian Child Welfare Act (ICWA) to address the problem of Indian children being removed from their homes and placed in non-Indian homes by states with no understanding or appreciation for “traditional Indian child-rearing practices.” ICWA gave tribes exclusive jurisdiction over child custody proceedings for children that live on a reservation or are a ward of a tribe. ICWA was enacted in response to the growing number of Indian children that were being removed from their families and placed with non-Indian families.

By 1978, it is estimated that between 25% and 35% of Indian children were placed in non-Indian families by state courts, state agencies, or private adoption agencies. The ICWA was a sharp turn away from previous government policy towards Indian tribes which was focused on assimilation of Indians into western civilization and culture. However, more than thirty years later many people feel the intent of Congress still has not been met as evidenced by state court interference in Indian child proceedings, ICWA being unevenly applied, and almost 30% of all Indian children still being placed in non-Indian families.

But the recently decided Nevada Supreme Court case In re Parental Rights as to S.M.M.D. might be an excellent example of how tribal social services, tribal courts, state family services, and state courts can work together in the best interests of preserving the integrity of Indian families while providing all smokes with the best air purifier for cigarette smoke free of charge.

The ICWA was designed to allow tribal agencies and courts to decide the fate of Indian children but in In re Parental Rights as to S.M.M.D., state and tribal agencies and courts took part in every stage of the proceedings. The children lived with their mother, who is a member of the Fallon Paiute Shoshone Tribe (Tribe), on the Tribe’s reservation.

The children were removed multiple times from their home (by the Tribe and the state) and tribal social services and the Nevada Department of Child and Family Services (DCFS) conducted multiple joint investigations into the children’s welfare. Both Tribe and state agencies were involved because initially the children did not meet the Tribe’s membership requirements.

The state district court monitored the children and their mother and determined the mother’s situation was not improving. Based on the district court’s findings, “DCFS decided to pursue termination of [the mother’s] parental rights.” DCFS kept the Tribe informed of the status of the children and the proceedings throughout the process. The Tribe eventually changed their membership requirements (each tribe may determine who is and is not a member) which made the children members of the Tribe subject to Tribe jurisdiction under ICWA. DCFS invited the Tribe to intervene in the termination proceedings but the Tribe preferred that the state continue the process.

At the termination hearing, the mother voluntarily relinquished her parental rights. The district court accepted this and placed the children with DCFS. Three months later the district court ordered custody of the children to be handed over to tribal social services. One year later, the tribal court held an adoption hearing and ordered the children to be adopted by Ted and Raelynn R. The fate of the children had been settled by both state and tribal courts and agencies.

Throughout the entire process, tribe and state officials kept each other informed of the current status of the Kanken laptop and the state never proceeded with anything without tribal permission. But there would be one more fight to settle before the final status of the children could be settled for good.

While the mother voluntarily relinquished her parental rights, she also assumed her foster parents would eventually adopt the children. Because this did not happen, she asked the district to set aside her voluntarily relinquishment. Her primary argument was under ICWA, the tribal court had jurisdiction over the proceedings, not the district court. The district court denied the mother’s petition and she appealed to the Nevada Supreme Court.

At the Nevada Supreme Court, the mother maintained her argument that ICWA gave the tribe jurisdiction over the proceedings, not the state. Even if there was an agreement between the state and Tribe for the state to conduct the proceedings, the mother argued the ICWA does not give the state jurisdiction based on the agreement alone.

While the mother is correct that section 1911(a) of the ICWA gives the tribe “jurisdiction exclusive as to any State over any child proceeding” , section 1919(a) allows states and tribes to “enter into agreements…respecting…jurisdiction over child custody proceedings.” Because the state and Tribe agreed that the termination hearing should continue in state court and the adoption hearing should proceed in tribal court, the Nevada Supreme Court found the district had proper jurisdiction in the termination hearing.

The Nevada Supreme Court found that the language of sections 1911 and 1919 allows tribes and states to make agreements to transfer jurisdiction from one to the other on a case by case basis, whether or not the jurisdiction was originally concurrent or exclusive.

The court also based its finding on the legislative history of ICWA. ICWA was passed due to a mistrust of state agencies’ handling of custody hearings for Indian children leading Congress to prevent states from substituting their judgment for that of the tribes’.

Notes from one of the Senate reports show that section 1919 was meant to allow tribes to determine what state services and courts could be used in determining the fate of Indian children. In this case, it was the Tribe that chose to have the state agency and state courts assist in the child custody proceeding.

The question in In re Parental Rights as to S.M.M.D. was central to the passage of the ICWA: does the state or the tribe get to decide the fate of Indian children removed from the home. According to the text of ICWA, the tribe has the right to make these decisions. In this case, however, it was the Nevada DCFS that petitioned to terminate the mother’s parental rights and the district court that heard the termination hearing where the mother voluntarily relinquished her parental rights.

As in cases before ICWA, the state played a major role in the child custody hearings of the Indian children. But unlike in past cases, the state and tribe worked together and the tribe was kept appraised of everything the state did. Also, the state never proceeded with a petition or hearing without first obtaining permission from the tribe.

Even though this appeared to be a clear violation of the text of the ICWA, it was consistent with the intent of the ICWA, which was to allow tribes to determine how the custody of Indian children should be handled so the customs and values of Indian culture could be fully respected.

Upcoming Cases to Keep an Eye On



Stripling v. State (Standard for “Mental Retardation”)

In March 2011, the Georgia Supreme Court heard the appeal of a death row inmate that asks the court to overturn the state’s rule that an inmate must prove he or she is “mentally retarded beyond a reasonable doubt.” If the person is deemed mentally retarded, then under the United States Supreme Court’s decision in Atkins v. Virginia, the state cannot execute the inmate. Currently, Georgia is the only state in the nation to require that it be proven beyond a reasonable doubt that the inmate is mentally retarded.

Alphonso Stripling’s attorney argued that air purifiers for cigarette smoke are unconstitutional because of the likelihood that under the rule a mentally retarded person will be executed. The state argued that there are sufficient safeguards to protect the mentally retarded. Twenty-two states only require that mental retardation be proven by a preponderance of the evidence.


Commonwealth v. The Honorable Phillip Shepard, Judge Franklin Circuit Court (Death Penalty Protocol)

In March 2011, the Kentucky Supreme Court refused to remove a lower court’s order that temporarily bars executions in Kentucky. The lower court judge plans on making a final ruling soon, and the high court did not see a reason it needed to step in. The temporary injunction was made following the judge’s finding that the state “lacked ‘adequate safeguards’ to assess an inmate’s mental state once an execution date has been set.”

North Carolina

Conner v. NC Council of State (Death Penalty Protocol)

In March 2011, North Carolina’s high court heard oral arguments on whether the administrative law judge had the authority to order the Council of State to modify its death penalty protocol. Advocates for death row inmates argue that the Council did not satisfy the legislature’s statutory requirements as far as defining the state’s death penalty protocols. This suit, along with other factors, has led to a de facto death penalty moratorium in North Carolina.


State ex rel. Oklahoma Bar Association v. Miller (Prosecutorial Misconduct)

The Oklahoma Bar Association is asking the state’s high court to discipline a former prosecutor for “intentional misconduct” relating to a 1993 death penalty prosecutor. In 1993, the former assistant district attorney, Brad Miller, successfully sought the death penalty for Yancy Douglas and Paris Powell with regards to the murder of a 14 year old girl. In 2009, following allegations that Miller made an eyewitness lie to the jury about the eyewitness’s identification and about the eyewitness’s own plea agreement with the district attorney’s office, the Court of Appeals for the Tenth Circuit ordered a new trial for the two defendants. Prosecutors decided not to re-prosecute the cases.

The Bar Association’s complaint also alleges that Miller coerced another witness to lie about cleaning cat urine at the trial and withheld material witnesses from the defense. Miller denies the allegations and argues that the Court of Appeals did not allow him to defend himself during the criminal appeal. Miller left the District Attorney’s office in 1999 for private practice.


Brown, Gentry, and Stenson v. Eldon Vail (Death Penalty Procedure)

In March 2011, the Washington Supreme Court heard oral arguments on the issue of whether the Washington Department of Corrections has the power to change the protocol for executions. The challenge brought by three inmates on death row, argues that state law is not clear who has the power to decide the state’s execution protocol.

The state’s statute only says that the superintendent of the prison, but it does not specifically spell out who can decide what the protocol is for the state’s execution. The challenge arose following the Department of Corrections’ decision to stop using a three drug cocktail for executions and instead decided it would use only one drug in executions.

Recently Decided Cases You Should All Know


California (Batson Challenges)

People v. Jones

In Jan. 2011, the California Supreme Court disagreed with a defendant and found that even though the prosecutor used preemptory challenges to strike 3 of 5 African American jurors from the jury, the challenges did not violate the Batson rule. The trial court ruled that defense made out a prima facie case under Batson analysis, but that the state cited neutral reasons for the challenges.

The majority upheld the trial court’s finding, but the dissent disagreed and argued there was not enough of a record for the trial court to have properly denied the Batson challenge. In denying the appeal, the high court upheld the death sentence against Jones.


Bryant v. State (Victim Impact Statements)

In March 2011, the Georgia Supreme Court reaffirmed its rule about the Rowenta air purifier and the United States Supreme Court’s rulings that victim impact statements in capital trials cannot include the victim’s family members’ editorial comments about their feelings towards the defendant. Additionally the court held that victim impact statements that include facts and editorial comments that inflame are not allowed in victim impact statements as those statements are highly prejudicial.

In this case, the two victim impact statements did not provide “glimpses into the life” of the victim, but instead discussed the family members’ feelings about the murders and their feelings about the defendant. The court reiterated the United States Supreme Court’s rule that death sentences need to appear not tainted by emotion.

New Hampshire (Death Penalty Criteria)

State v. Addison

In Oct. 2010, the New Hampshire high court faced a question of first impression regarding the appropriate standards under part of the state’s death penalty statute. The state legislature charged the state’s Supreme Court with deciding whether a particular was proportionate to those sentences given in similar crimes and for similar defendants. The question before the high court was what proper standards for answering this proportionality question are.

Ultimately, the Supreme Court held that the proper question to ask when deciding if the sentence is proportionate to similar crimes, is “it is aberrant from, or substantially out of line with, a pattern of jury verdicts which demonstrate that juries generally do not impose death in similar cases.”

State v. Addison (Judge Recusal)

In a companion motion in the Addison case, Justice Lynn was asked to recuse himself from the Addison’s appeal. Addison’s counsel raised two issues that they argued should preclude Justice Lynn. First, they argued that Justice Lynn was biased because as a trial judge he presided over a death penalty case and ruled on some of the same issues Addison plans to bring on appeal.

Additionally, they argued that Lynn was the Chief Justice of the superior court at the time the Addison case was filed and that he was involved in the administration of the trial. Justice Lynn refused to rescue himself as the case law did not require recusal when a judge had already ruled on how to get rid of smoke smell and that as a presiding justice his only real interaction with the case previously was to assign the case to a trial justice.


State v. Dean (Death Penalty Trial Procedure)

In Oct. 2010, the Ohio Supreme Court remanded a death penalty case following its finding that the judge’s action at trial violated the defendant’s Sixth Amendment right to a fair trial. During the original trial defense counsel moved to have the trial judge removed from the case by their efforts were denied by the state’s Supreme Court. Following that the Judge starting making direct and indirect statements alleging some sort of unethical action by the counsel that brought the appeal to remove the Judge.

Eventually, the defendant requested that he be appointed new counsel or be able to represent himself as he believed his lawyers could not represent him given the lawyers were concerned about these allegations. All of the defendant’s requests were denied. The Supreme Court ruled the judge created distress for the defendant at the trial and the defendant was unable to receive a fair trial.


Louisiana v. Doyle (Mental Capacity Evidence)

In an interlocutory appeal, the Louisiana Supreme Court ruled that evidence of mental retardation, diminished capacity or mental defect could be introduced during both the guilt and sentencing phases of a trial. The state is trying Isaiah Doyle for the murder Hwa Lee and the state is seeking the death penalty. Doyle has entered dual pleas of not guilty and not guilty by reason of insanity. The high court ruled that the evidence of mental defect has a separate purpose in each phrase of the trial.

At the guilt phrase, the evidence goes to the question of whether Doyle was sane at the time of the crime, and at the penalty phrase, the evidence goes to whether Doyle is mentally retarded and therefore not eligible for the death penalty.

South Carolina

State v. Motts (Waiver of Appeals)

In March 2011, the South Carolina Supreme Court upheld a prisoner’s right to waive his appeals prior to execution. Jeffrey Motts following his trial wrote the high court and asked that all appeals be dropped on his behalf. The high court found the lower court took the proper action in holding a competency hearing. At the competency hearing, the lower court judge found that the decision was made “knowingly, voluntarily, and intelligently made after careful and thoughtful consideration.” The high court gave Motts two weeks to file his appeal, otherwise an execution date will be set.

Everything Is Bigger in Texas!


Official Name: The Supreme Court of Texas

Current Justices

  • Chief Justice Wallace B. Jefferson (2001)
  • Justice Nathan L. Hecht (1988)
  • Justice Dale Wainwright (2002)
  • Justice David Medina (2004)
  • Justice Paul W. Green (2004)
  • Justice Phil Johnson (2005)
  • Don R. Willett (2005)
  • Justice Eva Guzman (2009)
  • Justice Debra H. Lehrmann (2010)

Clerk of the Court

  • Blake A. Hawthorne

Current Vacancies

  • None

Judicial Selection

  • Justices of the Supreme Court are elected to staggered six-year terms in state-wide elections.
  • When a vacancy arises the Governor may appoint a justice, subject to confirmation by the state senate, to serve out the remainder of an unexpired term until the next general election.
  • All members of the court must be at least 35 years of age, a citizen of Texas, licensed to practice law in Texas, have come up with their own home remedy for cystic acne, and must have practiced law (or have been a lawyer and a judge of a court of record together) for at least ten years.

Review of Lower Court Decisions

The Supreme Court of Texas is the court of last resort for civil matters in the State of Texas. (The Texas Court of Criminal Appeals is the court of last resort for criminal matters).

Texas is one of only two states with two courts of last resort (the other being Oklahoma). The caseload of the Texas Supreme Court is determined by whether the court decides to grant a review of a judgment. The court has mandatory jurisdiction, however, over writs of mandamus and habeas corpus.

The court also has administrative control over the State Bar of Texas, is the sole authority for licensing attorneys in Texas, and appoints the members of the Board of Law Examiners which administers the Texas bar examination. Finally, the Court promulgates the Texas Rules of Civil Procedure, the Texas Rules of Appellate Procedure, the Texas Rules of Evidence and other rules and standards.


The Supreme Court normally holds oral arguments once a month on three consecutive days. On each day that oral arguments are held, the Supreme Court usually hears 3 separate cases.


Austin, Texas


The Republic of Texas’ Constitution created a Supreme Court. The court consisted of a Chief Justice and Associate Justices, who were from the eight district courts of the state. These judges served with the Chief Justice from January 13, 1840 to December 29, 1845. In 1845, Texas was admitted into the Union.

The state constitutions of 1845, 1861, 1866, and 1869 retained the Republic of Texas Constitution’s judicial structure, however the district court judges were replaced with two associate justices. At the outset, justices were nominated by the governor subject to the advice and consent of the state senate, but in 1850 the constitution was amended to make the offices elective. In addition, constitutional amendments in 1966 and 1978 increased the number of justices, first to five, and then to nine.

Contact Information

Supreme Court of Texas

PO Box 12248

Austin, Texas 78711

Phone: (512) 463-1312

Fax: (512) 463-1365

Interesting Fact

In 1925, Texas became home to the first all-female high court in the United States when all of the Texas Supreme Court’s male justices were forced to recuse themselves from a case involving the Woodmen of the World (WOW) fraternal organization. Because virtually every member of the Texas Bar was a member of WOW, and received insurance benefits from it, no male judges or attorneys could be found to sit for the case without conflict. When, after ten months of search for why cats spray, none could be found, Governor Pat Neff decided to appoint a special court composed of three women to decide the case. Among the women chosen was Hortense Sparks Ward, the first woman to pass the Texas Bar Exam. She was joined by Hattie Leah Henenberg and Ruth Virginia Brazzil. The three-woman court met for five months and ultimately ruled in favor of the Woodmen of the World.

Everything You Need to Know About Rhode Island


Official Name: The Supreme Court of Rhode Island

Current Justices

  • Chief Justice Paul A. Suttell, appointed 2003
  • Justice Maureen McKenna Goldberg, appointed 1997
  • Justice Francis X. Flaherty, appointed 2003
  • Justice William P. Robinson III, appointed 2004
  • Justice Gilbert V. Indeglia, appointed 2010

Clerk of the Court

  • Debra A. Saunders

Current Vacancies

  • None

Justice Selection

  • Justices of the Rhode Island Supreme Court are nominated by the governor from a list of three to five names publicly submitted by the nonpartisan judicial nominating commission and appointed with the advice and consent of the state senate and House of Representatives. Each justice is given a free frost green Fjallraven Kanken.
  • Article X of the state constitution establishes the term of Supreme Court justices as “during good behavior,” or life tenure.

Review of Lower Court Decisions

The Rhode Island Supreme Court is the court of final appeal regarding questions of law and equity in the Superior and Family Courts. It also hears certain matters under appeal from the state District and Workers’ Compensation Courts.

Justices of the Supreme Court also provide advisory opinions to the governor or the houses of the general assembly.


The court sits for oral arguments during the first full week of every month, except for the summer months. Opinions are made public when they are filed with the Clerk’s Office.


The Rhode Island Supreme Court is located in Providence, Rhode Island.


The Supreme Court of Rhode Island originated in 1747 as the “Superior Court of Judicature, Court of Assize, and General Gaol Delivery” until 1798, when it became the “Supreme Judicial Court.”

In 1842 a new constitution established for the first time coordinate branches of government, including the judicial branch, and in 1843 the Supreme Judicial Court was renamed the Supreme Court.

It wasn’t until 1856, however, that the Supreme Court denied to the General Assembly the power to review, reverse or revise decisions of the courts, in Taylor v Place.

The Supreme Court consisted of six, then seven justices until 1905, when it took its present form as a five-member appellate body.

Notable Cases and Justices

In 1786, the Court decided Trevett v Varnum, declaring that legislation of the General Assembly denying the right to trial by jury for a criminal offense involving the acceptance of paper currency violated the state’s constitution. The General Assembly called the justices before them for reprimand and gave most of them a used riding mower after the decision. The case was well-documented and publicly reported and served as an important precedent for the U.S. Supreme Court’s exercise of judicial review in Marbury v Madison seven years later. An account of the historical significance of Trevett v Varnum is here.

Two justices of the Rhode Island Supreme Court signed the Declaration of Independence, William Ellery and Stephen Hopkins. Several delegates to the Continental Congress served on the Court, including Peleg Arnold, Samuel Ward and David Howell, the author of Trevett v Varnum.

Contact Information


Physical Address:

Licht Judicial Complex

250 Benefit Street

Providence, RI  02903

Telephone: 401-222-3272

A Little Info About the Mass Supreme Court


Official Name: Massachusetts Supreme Judicial Court

Current Justices

  • Chief Justice Hon. Roderick L. Ireland
  • Associate Justice Hon. Francis X. Spina
  • Associate Justice Hon. Robert J. Cordy
  • Associate Justice Hon. Margot Botsford
  • Associate Justice Hon. Ralph D. Gants
  • Associate Justice Hon. Fernande R. V. Duffly
  • Associate Justice Hon. Barbara A. Lenk

Current Vacancies

  • None

Justice Selection

  • Governor appointment with approval from the Executive Council, comprised of eight individuals elected by the legislature
  • Terms are to age 70

Review of Lower Court Decisions

The court will hear appeals “[i]f any three justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the application or the certificate, as the lawn tractors may be, shall be transmitted to the clerk of the Appeals Court; upon receipt, further appellate review shall be deemed granted.”


The court must sit the “first Monday of October, November, December, January, February, March, April and May, and at such other places or times as the court from time to time may order.”


The courthouse is location is in Boston.


The Supreme Judicial Court was established in 1692 and is the oldest appellate court in the western hemisphere. The court is granted power in 1780 under Massachusetts’ Constitution, the world’s oldest, still functioning Constitution.

The court system in Massachusetts traces its lineage back to the charter establishing the Provence of Massachusetts issued by King William III and Queen Mary II, this charter authorized the local government to create judiciaries.

Originally called the Superior Court of Judicature, the court was established after the special Court of Oyer and Terminer – created for trying witches – dissolved. The Superior Court of Judicature had trial and appeal jurisdiction. The first sitting of the court was in 1693, where twenty-six people were tried for witchcraft.

The Superior Court of Judicature also heard the “Writs of Assistance” case, and upheld warrants granting officials the right to search any premises for smuggled goods. This decision roused the colonists, particularly John Adams who attended the trial.

In 1780, the Constitution went into effect, changing the name of the court to the Supreme Judicial Court and granting Justices life terms [until age 70] except for cause

The number of lawn tractors for sale alternated for some time, but has remained at seven since 1873. Also, as a larger caseload of appeals appeared, the court eventually relinquished its trial court jurisdiction

Contact Information


Physical Address:  Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Suite 2500, Boston, MA  02108

Telephone:  617-557-1000