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The Judicial Activist


Over the last few years I have had the opportunity to observe friends of mine, Ed Gleason, Glen Schlabs, Tom Herd, Tim Schutz and others, turn out President’s Columns with what appeared at the time to be great ease. The articles were well written and worth reading. I read them all. It is now time for me to pen my first column. I have one observation and two concerns. As I struggle with editing this article, I note that it was easier to watch my colleagues write their articles then it is for me to write this one. As for my concerns, I am not sure that I can write the kind of interesting and informative columns that I have enjoyed reading in this space in the past. More importantly, why would anybody want to read what I write? Whether people read my column is directly related to whether it is of interest. I guess we’ll find out. Here goes.

The resignation of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist have led the politicians in Washington, and journalists and pundits everywhere to reach back for labels or catch phrases which they use for or against prospective Supreme Court nominees. In the years between vacancies on the Court, the labels or phrases are used to blame judges for particular decisions the writer or observer does not like. The labels, “judicial activist,” “strict constructionist” and the relatively new label, “originalist,” appear to be pretty effective in coloring the public’s view of a judicial nominee, a judge or decision. Conservatives suggest that a judicial activist is a person or judge who does not follow the Constitution or law as written, but instead creates new Constitutional or common law rights or usurps the legislative function by rewriting statutes enacted by legislative bodies. While conservatives suggest that strict constructionists and originalists are faithful to the Constitution or statutes as written, liberals argue that these jurists are incapable of dealing with the changing times we live in which they claim demand flexibility in interpretation.

In my view, these labels are meaningless. They explain more about the commentator than they do about the judge, or the nominee. Judges decide cases. The facts, the law, the clarity or lack thereof of the Constitutional provision, statute or contract at issue, and yes — even the possible result (as discussed below) — have a lot more to do with the outcome of a case than any label ascribed to a judge or judicial nominee by a politician or commentator. Let me give an example from personal experience that helps make my point.

In 1991 I had lunch with the Judge I clerked for at the Tenth Circuit Court of Appeals. The next day I received a call from the Court’s Circuit Executive who informed me that the Judge told him that I would be pleased to accept a Court appointment – something I do not quite remember having said. In any event, I was assigned to represent Alan J. McDonald in a habeas appeal before the Circuit. McDonald had been convicted under Oklahoma law of first degree felony murder and was serving a sentence of life plus twenty years. The evidence was that McDonald and his wife went into a fast food restaurant in Tulsa with the intent of robbing the place. During the course of the attempted robbery, two employees of the restaurant were injured, one of whom subsequently died. Neither McDonald nor his wife took anything from the restaurant.

McDonald was charged with first degree felony murder and assault and battery with intent to kill. The predicate felony alleged by the prosecution was attempted robbery with a dangerous weapon. The first degree felony murder statute in effect in Oklahoma on the day the crime was committed stated that Aa person commits a crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, . . .” or four other specified felonies. The second degree felony murder statute in effect at the time stated that A[h]omicide is murder in the second degree . . . [w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts specified under the first degree felony murder statute. The first degree felony murder statute carried a penalty of life or death. The second degree felony murder statute carried a penalty of ten years to life.

As we all learned in criminal law class during the first year of law school, the attempt of any crime is a separate crime. At trial McDonald argued that, under the clear wording of Oklahoma’s felony murder statutes, the crime of attempted robbery with a dangerous weapon could not support a charge of first degree felony murder, and that the jury should be instructed on second degree felony murder which included all crimes other than those enumerated in the first degree felony murder statute, including attempts. The trial court agreed with McDonald regarding the wording of the statute, stating that certainty attempted robbery with a dangerous weapon is not included in the first degree felony murder statute. Unfortunately for McDonald, the trial court did not base its final determination on the clear wording of the statutes. Instead, the court proceeded to make the following ruling:

[t]he Court feels that it would be the legislative intent to make attempts on any of the crimes stated in that section [first degree felony murder] to be included. Certainly, if the legislature intended it to be first degree murder when a person is committing forcible rape, that it should be first degree murder if a homicide occurs prior to penetration, in an attempt to rape, so although the crime of attempted robbery with a dangerous weapon is not included, I feel that it was the intent for that to be included and attempt of any of those crimes enumerated in that section.

McDonald was subsequently convicted of first degree felony murder based on the predicate of attempted robbery with a dangerous weapon and assault. The conviction was affirmed by Oklahoma’s appellate courts.

In the habeas appeal to the Tenth Circuit the issue was whether under the felony murder scheme in effect in Oklahoma at the time the crime was committed, it was foreseeable that a person who attempts but does not complete one of the six felony predicates to first degree felony murder would be charged with first degree felony murder rather than second degree felony murder. Despite the narrow and precise language of the statute, the rule that criminal statutes are to be strictly construed, and the fact that every other state that had a felony murder statute which was limited to certain crimes explicitly dealt with attempts, the Circuit Court determined that adding a seventh felony of attempted robbery with a dangerous weapon to the six enumerated in the Oklahoma felony murder statute did not violate ex post facto principles. [As an aside, I knew I lost when the first footnote of the 18 page opinion disclosed the number of times my client hit each victim on the head with a pipe wrench]. See McDonald v. Champion, 962 F.2d 1455 (10th Cir. 1992).

Did it make any logical sense to treat attempts of the six very serious felonies set forth in the first degree felony murder statute differently than the felonies specified in the statute? Of course not. It is pretty clear, however, that the Oklahoma legislature either saw a distinction between attempts and the completed predicate crimes, or they made a mistake by omitting attempts. The Oklahoma courts, as opposed to the legislature, fixed the problem. They rewrote Oklahoma’s first degree felony murder statute to add attempts.

Is this judicial activism? Not according to the conservative commentators who believe it is solely a liberal phenomenon. However, there is no getting around the fact that the Oklahoma courts changed the wording and meaning of the two felony murder statutes. Why is it judicial activism only when done by a liberal and not a conservative?

What’s the point? Labels tell us little. Give me enough decisions by any jurist and I can find examples which contradict the label given the judge. The McDonald case proves only that (a) judicial activists come in all sizes and shapes; and (b) the underlying facts have a lot to do with the outcome.



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