In an extended dissenting separate statement written by Justice Goodwin Liu, Justices Liu and Mariano-Florentino Cuéllar yesterday made the case for reinstating the license of an attorney who resigned from the State Bar after being convicted 37 years ago of first degree murder. The Supreme Court denied review in Liebb on Reinstatement of the State Bar’s Review Department decision concluding Liebb had not presented “overwhelming proof of his rehabilitation by a sustained period of exemplary conduct following his discharge from supervised release” (2019 WL 3822509).
The separate statement questions the State Bar’s decision to give “little weight” to Liebb’s more than three decades of rehabilitation in prison. Noting that, in the 20 years since the court addressed a similar issue, legislation has “ameliorated the collateral consequences of a criminal conviction” (such as allowing former inmates to serve on juries), Justice Liu says he would grant review “to consider when the legal profession may also afford second chances to formerly incarcerated individuals with compelling records of rehabilitation in custody.” He explains that Liebb’s “past misconduct was as egregious as his subsequent redemption has been remarkable.”
Recorded votes to grant review are not unusual, but a separate statement to explain the disagreement is. In 2015, Justice Liu revived a long-dormant practice of issuing a separate statement upon the court’s denial of review, and he has done so on several occasions since then. (See most recently here.)
This separate statement again raises the question of its accessibility to the public. The statement is on the Supreme Court’s online docket and it might appear in computer research databases following the Review Department’s decision, but it is unlikely to ever make its way into the official reports. It will probably be even less accessible than a separate statement after the denial of review of an unpublished Court of Appeal opinion; at least those opinions are re-posted on the court’s website with the separate statement appended. Publishing all separate statements in the Supreme Court’s official reports would be a better practice.
[March 27 update: Horvitz & Levy filed an amicus curiae letter urging the court to “grant review to revisit and disapprove the line of Supreme Court cases relied upon by the trial and review courts here for the proposition that, because prison and parole are supervised environments, a bar applicant’s character rehabilitation in prison and on parole is categorically of little weight in the good moral character determination.”
The amici were 13 individuals, including two attorneys who were formerly incarcerated.]