Justice Goodwin Liu, in a separate statement accompanying yesterday’s Supreme Court approval of Governor Gavin Newsom’s first clemency recommendation request, suggests the court might entertain the resubmission of some or all of the 10 requests made by then-Governor Jerry Brown that the court rejected late last year. (The statement appeared on the court’s docket this morning.)
Justice Liu’s statement references the court’s March 2018 commitment to a deferential standard of review of gubernatorial clemency recommendation requests and says that future requests might raise questions that require “examination,” including, “in what circumstances may the Governor submit a renewed application on behalf of an individual for whom the court previously declined to issue a favorable recommendation? And what standards should guide this court’s evaluation of any such submission?” Justice Liu then notes that “[s]ome instances of renewed application appear in the historical records of our clemency docket, publicly accessible in this court.”
Why would a renewed application be worth the trouble? Maybe because Justice Joshua Groban joined the court after the 10 clemency blocks. After all, about the only time the court grants rehearing in a case is when there’s been a transition like that. On the other hand, Justice Groban might recuse himself because he was a senior advisor to Governor Brown when Brown made the 10 clemency recommendation requests.
Liu also impliedly criticizes the 10 clemency blocks themselves, which were unexplained. Other questions he identifies that might arise in the future are: “Apart from considerations of improper bias, corruption, self-dealing, nepotism, or other conflict of interest, on what grounds, if any, may we circumscribe the Governor’s clemency power? Are there discernible standards, amenable to consistent judicial application, for limiting the Governor’s exercise of mercy, for rejecting the Governor’s determination of an applicant’s character or the extent of an applicant’s rehabilitation, or for countermanding the Governor’s judgment as to the injustice of a particular conviction or penalty? How do separation of powers concerns inform or constrain our role in the clemency process?” The way the questions are phrased signal discontent with how the court handled those 10 clemency matters. That and the fact that Liu is inviting renewed clemency applications.
[August 8 update: Ilan Isaacs in the Daily Journal, “Liu raises questions about state Supreme Court authority on pardons.” (I’m quoted in the article.)]