Increasingly there is debate among the states as to what should be the mandatory retirement age of judges. Many states have statutory requirements but some have an age set by the state constitution. Pennsylvania is one such state and until the people amend their constitution it appears that 70 will remain as the mandatory retirement age.

The Pennsylvania Supreme Court has upheld a state constitutional amendment that requires judges in the state to retire at age 70. According to the Patriot News, “Even if it might not entirely reflect the realities of today’s society, the retirement mandate was properly added to the state constitution by the voters 45 years ago, the state Supreme Court concluded in a unanimous ruling.” The article explains, “The judges who challenged the retirement mandate, and who argued their case before the Supreme Court during a hearing in May, contended that the law represented age discrimination and violated their fundamental rights guaranteed under the state constitution. The retirement cutoff is based on a fallacy that after age 70, judges become less mentally and physically capable and more prone to debilities like dementia, the judges challenging the law claimed.”

In Koontz v. St. Johns River Water Management District, the Supreme Court ruled, in a five-to-four decision by Justice Alito, that when a government – any government – engages in land-use regulation, including by denying a permit or demanding payment as a condition for a permit, the government must show that there is a nexus and rough proportionality between its demand on the landowner and the effects of the proposed land use. The case broadens property owners’ rights to bring constitutional challenges to land-use decisions, and is likely to result in increased litigation.

From The Civil-Criminal Distinction Blog:

A longtime interest of mine is the blurry distinction between civil law and criminal law. The subject is far more relevant and important than it might initially seem to those who haven’t had occasion to consider it before. The reason is that a great deal depends on whether a particular legal proceeding is civil or criminal. The two usually entail different procedures and penalties, which could determine, for example, whether someone ends up spending decades behind bars.

A highly publicized example of this distinction is the pair of trials faced by O.J. Simpson when he was accused of killing his ex-wife and her friend in 1994. First he was the defendant in a criminal trial. In that proceeding, the plaintiff was the People of the State of California because Simpson was accused of the crime of murder, and crimes are wrongs defined by and therefore considered to be perpetrated against the whole community. The prosecution in the criminal trial represented the entire population of California, where the crimes occurred.

After Simpson was acquitted of the crimes, he stood accused a second time, this time in a civil trial for causing the wrongful deaths of Ronald Goldman and Nicole Brown Simpson. In this trial, the plaintiffs were the Goldman and Brown families, who claimed that the private rights of their family members had been violated. The Goldman and Brown families would have been allowed to sue even if Simpson had been convicted in the criminal trial. Thus, the same wrongs—here, the killings—can trigger both criminal proceedings (initiated by the state for the offense against society) as well as civil proceedings (initiated by private actors for the wrongs perpetrated against them).

If Simpson had lost his criminal trial, he could potentially have faced life imprisonment. (If the district attorney had opted to pursue the death penalty, Simpson could also possibly have faced that punishment.) When he lost the civil trial and was found liable for the wrongful deaths of Brown Simpson and Goldman, he was ordered to pay $33.5 million to the victims’ families.

Although both trials dealt with the same alleged acts, the outcomes differed, which demonstrates yet another significant difference: civil trials and criminal trials are conducted differently. While both involve an adversarial process and the right to a verdict rendered by a jury, criminal proceedings entail different rights and procedural safeguards than do civil proceedings. For example, in the criminal trial, the prosecution bore the burden to prove beyond a reasonable doubt that Simpson committed the crimes with which he was charged. In the civil trial, however, the plaintiffs had to prove by a preponderance of the evidence that Simpson was liable for the wrongful deaths. “Beyond a reasonable doubt” is a heavier onus than “a preponderance of the evidence.” The difference in the legal protections stems from the relative seriousness of the potential outcomes; while having to pay millions of dollars is a serious sanction, it is regarded as less severe than spending decades in prison.

I’ve tried to provide a very accessible example here for the benefit of those who might not be familiar with the civil-criminal distinction. Of course, both fields of law can be enormously complex, and other cases and examples about which I’ll blog illustrate that fact. As I continue blogging, I hope it becomes apparent that the Simpson case is just the tip of the iceberg, and that the divide between the civil and the criminal is often quite unclear. Because so much depends on whether a proceeding is civil or criminal, the distinction also creates problematic incentives and generates a multitude of thorny legal questions.

The blurry bifurcation between civil law and criminal law is an important matter that, at the very least, warrants its own blog. I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue. I welcome comments, both on the blog itself and via e-mail at civil.criminal.distinctionATgmail.com.

Juries and the Criminal Constitution

Meghan J. Ryan

Southern Methodist University – Dedman School of Law

June 21, 2013

Alabama Law Review, Forthcoming

SMU Dedman School of Law Legal Studies Research Paper No. 121

Abstract:

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s “reasonable expectations of privacy” under the Fourth Amendment and whether a criminal punishment fails to comport with the “evolving standards of decency that mark the progress of a maturing society” under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve. Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community. Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions. The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.