January 9, 2023
New 2023 Updates to Behind The Bench
The State Law Research Initiative’s report on the professional diversity of state supreme court justices, Behind the Bench, now reflects justices newly elected in November and sworn in this month. It also reflects recent governor-appointees, including former prosecutor Joe Deters in Ohio; criminal justice reform advocate Kyra Harris Bolden in Michigan; and former public defender Bronson James in Oregon. Among the key findings:
- 139 of the 348 active state supreme court justices in the U.S. are former prosecutors, while only 38 are former public defenders — that’s 40% v. 11%.
- Only 25 justices (7.2%) are former civil rights lawyers, and only 13 (3.7%) have civil rights experience outside of government. Only 8 justices worked at a civil rights org advocating civil rights or providing legal services to poor clients.
- 48 states and D.C. have at least one former prosecutor on the highest court (only Delaware and Wyoming do not); while 23 states and D.C. have at least one former public defender. Since we first published our report last summer, both North Carolina (Justice Robin Hudson) and Michigan (Chief Justice Bridget McCormack) lost their only former public defenders.
- 17 states have 50% or more former prosecutors, while just 2 (Oregon and Montana) have at least 50% former public defenders.
- 19 states have at least one former civil rights lawyer, a number that drops to 12 if you exclude justices whose civil rights experience was only on behalf of the government.
- Indigent defense experience appears at a slightly higher rate among justices who are elected (15.8%), compared to all state supreme court justices (13.2%), or justices in non-election states (11.2%).
Vacancies & Elections Roundup
- There are a total of 14 vacancies on state supreme courts to be filled by governor appointment — 10 in states with a Democratic governor (including one in D.C.) and 4 in states with a Republican governor. Six of these vacancies are current and 8 are future vacancies that have been announced.
- New vacancies include two in Delaware, where Tamika Montgomery-Reeves, the first Black justice to ever serve on the Delaware Supreme Court, is leaving to serve on the federal Third Circuit Court of Appeals, and Justice James T. Vaughn, Jr. will retire on May 1, 2023.
- In New York, the prospects for chief judge nominee Hector LaSalle—the only former prosecutor among the finalists that Governor Kathy Hochul had to choose from—look increasingly grim. Already enough senate Democrats oppose his confirmation to require Republican support, a posture that could mean he won’t even get a floor vote.
In New York Focus, Sam Mellins has this analysis of Judge LaSalle’s judicial record in divided cases—a key indicator of the ideology driving a jurist’s decisionmaking:
ICYMI: In Wisconsin, the state supreme court’s ideological balance could be decided in the February primary, which determines which two finalists face off in April’s general election. Isthmus reports:
It is entirely possible that the pivotal question of the court’s future ideological balance could be settled, once and for all, in the Feb. 21 primary election, likely a low-turnout affair. For this to happen, the total number of votes cast for the two conservatives seeking election to the open seat, Dan Kelly and Jennifer Dorow, would have to be close to each other, as would the number of votes cast for the two liberals, Everett Mitchell and Janet Protasiewicz.
Decision Spotlight: Oregon Supreme Court Chooses Justice Over Finality
Back in October, the Louisiana Supreme Court “chose finality over justice” when it refused to apply the rule barring non-unanimous jury convictions, which the U.S. Supreme Court announced three years ago in Ramos v. Louisiana, to cases finalized before Ramos came down. As a result, about 1500 Louisiana convictions that depend on an indisputably racist, unconstitutional rule will stand, and the people who suffered those convictions will not get new trials.
The only other state directly affected by Ramos was Oregon — like Louisiana, it allowed criminal convictions based on 10-2 jury verdicts, while every other state and the federal system required unanimity. But while the two states and their unusual rules shared similar racist origin stories—“to ensure that African-American juror service would be meaningless,” the Ramos Court explained—their respective state supreme courts parted ways on whether to apply Ramos retroactively. On December 30, the Oregon Supreme Court held that all non-unanimous jury convictions are invalid, including those finalized before Ramos was decided. “A constitutional violation of that magnitude renders the conviction void,” the court said, and therefore “the important value of finality in the criminal justice system must give way to the constitutional right to a unanimous jury verdict.”
Notably, much of the court’s opinion—and in particular a concurrence by Senior Justice Richard Baldwin, a former Legal Aid lawyer—echoes what a trial court judge wrote about the disturbing history of Oregon’s non-unanimous jury law in 2016:
That trial court judge was Judge Bronson James, a former public defender whom outgoing Governor Kate Brown just appointed to the state supreme court effective January 1.
Nevada Supreme Court Green Lights Lawsuits Against Law Enforcement
While the U.S. Supreme Court continues to move the goalposts on civil suits against law enforcement officers—narrowing the sort of cases in which suits may be brought while also expanding officer immunity from those suits—the Nevada State Supreme Court last month issued a ruling showing how state courts can reverse that trend, at least in part.
In Mack v. Williams, the court held that people may sue police officers and seek money damages when police violate search and seizure rights protected by the Nevada state constitution. And more than that, the court said, qualified immunity—what the court described as a “federally created doctrine”—is not a defense. That second part is crucial, since federal courts routinely grant qualified immunity to shield law enforcement officers who engage in horrific violence and cruelty.
The court closed its opinion with an observation that one might think goes without saying, unless perhaps your audience is the U.S. Supreme Court’s conservative majority: “In holding that [the plaintiff] may seek money damages, the court said, “we do not create a new cause of action[;] we simply recognize the long-standing principle that a right does not, as a practical matter, exist without any remedy for its enforcement.”
One immediate upshot is that a separate high-profile lawsuit challenging asset forfeiture will move forward. In February of 2021, Stephen Lara was driving through Nevada to visit his daughters in California when state police stopped him for following a semi-truck too closely. Though Lara was not arrested and never charged with a crime, police seized his entire life savings — over $80,000. Lara later recovered the seized cash when he filed the lawsuit, but he is also seeking money damages for the violation of his state constitutional rights.