A couple of years ago, Justice Goodwin Liu revived a long-dormant practice of issuing a separate statement that gives reasons for dissenting from, or even concurring in, the denial of a petition for review. This week, Justice Liu added a twist, writing a separate statement that dissents from the dismissal of review in a case.
The Supreme Court granted review a year ago in People v. Doyle and held the case pending a decision in People v. Sivongxxay. The court decided Sivongxxay last June, affirming the death penalty there by a divided vote. (A certiorari petition in the case is still pending before the U.S. Supreme Court.) In that case, and even more so in another death penalty case in August (People v. Daniels), the court split on the issue of whether the defendants validly waived jury trial rights. On Wednesday, the court dismissed review in Doyle, making final the Court of Appeal’s opinion that rejected the defendant’s argument he had not validly waived his right to a jury trial.
Justice Liu states in his dissent, which appears following the Court of Appeal opinion and on the Supreme Court’s docket, that he “would order briefing and decide the merits of this case instead of dismissing review.” He sees a “serious reason to question the continuing vitality” of the waiver rule on which he says the Court of Appeal relied and which originated in a 1959 Supreme Court opinion.
Alternatively, Justice Liu — referencing the Daniels and Sivongxxay cases — says in his separate opinion that “[t]he importance and recurring nature of the issue suggest it may be worthy of examination by the Judicial Council or the Legislature.” It wouldn’t be the first time that Liu has inspired legislation.
