Fair Courts E-lert: AL Execution Sparks Debate Over Courtesy Vote; NC Bills Could Limit Supreme Court

December 16, 2016


Alabama Execution Sparks Debate Over “Courtesy Votes”

Ronald B. Smith, who was convicted of murdering a store clerk in 1994 in Alabama, was executed last Thursday after failing to receive the requisite five votes from the U.S. Supreme Court needed to stay his execution, writes Adam Liptak for The New York Times. According to Liptak, the execution “illuminat[es] a lethal gap in the Supreme Court’s internal practices.” While it only “takes four votes to put a case on the court’s docket,... it takes five to stop an execution.” Liptak that “[o]ver the years, in fits and starts, some justices have sought to address this anomaly by casting a ‘courtesy fifth’ vote to stay an execution when four justices thought the case worthy of further consideration.” During his confirmation hearing, Chief Justice Roberts said the courtesy vote “makes great sense.” Although the Court’s use of courtesy votes had recently “seemed to be on the upswing,” there was not one to stay Smith’s execution. Eric Freedman, a law professor at Hofstra University, said on Thursday that “[t]he time has long ago passed for the court to address forthrightly a situation which is simply unseemly,” and that “[f]or people to live or die in the middle of the night on the basis of no visible rule is simply at odds with any defensible system of judicial decision making.”


NC Legislature Introduces Bills to Limit Governor and State High Court

After calling a surprise session, Republicans in the North Carolina legislature introduced a series of bills to limit the powers of Democratic Governor-Elect Roy Cooper, writes Pema Levy for Mother Jones. Levy explains that the bills would “strip the next governor...of the power to control the state’s election boards and to appoint University of North Carolina trustees, and would give the state Senate veto power over his Cabinet picks.” She also writes: “The new legislation takes aim at the state Supreme Court's ability to review legislation, just after Republicans lost control of the state's highest court in the November elections. The bill places limits on when the top court can review state constitutional and federal challenges to state law, which would empower the state’s Republican-controlled intermediate appeals courts.” The bill also contains a provision making supreme court elections partisan, which Levy describes as “a move Republicans have long believed would help them maintain control of the court.” It was previously rumored that the Republican legislature would introduce measures to add two new seats to the state high court, switching the court back to Republican control. Although such a measure has not been introduced, Levy writes that “Wednesday's surprise bill demonstrates that Republicans are serious about a last-ditch effort to hold onto power and minimize the effects of the election.”

AR Bar Association Considers Single-Term Appointment System for State High Courts

Members of the Arkansas Bar Association presented a proposed constitutional amendment to replace the nonpartisan elections currently used to select state high court judges with a gubernatorial appointment system, writes Ron Wood for the Northwest Arkansas Democrat-Gazette. According to Wood, the proposal recommends “a nine-member judicial nominating commission...be formed to accept applications, interview candidates and nominate three for each vacancy on the Supreme Court.” The governor “would then appoint one of those candidates to the court” for a single, non-renewable, 14-year term. Denise Hoggard, president of the state bar association, said: “We want to provide protection for our judges and our courts from the politicization of issues.” Retired Court of Appeals Judge David Stewart called judicial elections “an abomination” and said that “[t]he pressure it puts on somebody in that position, it can be overwhelming.” However, Sam Perroni, a retired trial lawyer said: “If anybody thinks there won’t be politics in the selection of the commission members and thereafter in the selection of the people that can make applications and thereafter in the selection of the three that go to the governor, they’re being naive.” 


Judge Resigns from Wisconsin Ethics Commission, Criticizing Its Secrecy

Reserve Judge Robert Kinney has resigned from the Wisconsin Ethics Commission because its “rules require too much secrecy and almost completely shut out the public,” writes Marge Pitrof for WUWM. According Pitrof, “the final straw for [Kinney] occurred in October, when three members of the commission voted to strike from its mission statement the words, ‘furthering Wisconsin’s tradition of clean and open government.’” In a statement, Kinney explained that “[a]t a time when public confidence in elected officials has been deeply eroded, we should be doubling down on our efforts to enforce campaign finance, ethics, and lobbying laws,” but “[s]adly, it appears we have created a system which almost guarantees that this will not occur.” Last June, state Republicans replaced the non-partisan Government Accountability Board with the Wisconsin Ethics Commission, “a partisan commission consisting of three Republican appointees and three Democrat appointees.” Pitrof writes that supporters of the change “criticized some decisions the GAB had made, including to become involved in a John Doe investigation into Gov. Walker’s 2012 recall campaign.”