State v. Montes (1/26/11)

We don’t normally blog criminal cases but this one is principally a constitutional case.

In 2006 the Legislature changed the burden of proof of self-defense. In Garcia (2007) the Supreme court held that it hadn’t made the statute retroactive. In 2009 the Legislature passed a statute making it retroactive, back to cases pending in 2006. Montes had been convicted in 2008 of a 2005 murder. Division Two affirmed his conviction by memorandum but when the new statue was passed he moved for reconsideration, arguing that he should have been tried according to the law that now existed then. The court denied the motion, ruling the second statute unconstitutional as an attempt to change a court decision. Division One had ruled otherwise. (The opinion refers simply to “a different panel” of the Court of Appeals. This is technically correct. But since someone surely had to make a conscious decision to avoid saying “Division One,” you wonder whether someone isn’t sensitive to the occasional suggestion that there is some stigma involved in identifying the divisions – namely, to put it frankly, Division Two – and is trying to efface the difference. Since Justice Pelander wrote this opinion, you have to wonder even more.)  The Supreme Court took the petition to straighten things out.

The parties agreed that the Legislature could have made the first statute retroactive to begin with. The State argued that it couldn’t do so after Garcia pointed out that it hadn’t done so. The Supreme Court disagreed. In essence, all Garcia did was to point out that in 2006 the Legislature left out retroactivity language. The 2009 statute therefore didn’t really change that. In any event, “every legislative enactment retroactively changing a court’s pronouncement on a statute is not a per se separation of powers violation.” “[T]he Legislature does not violate separation of powers when it acts to make a law retroactive without disturbing vested rights, overruling a court decision, or precluding judicial decisionmaking.”

The State tried to argue that the victim’s vested rights – to the “finality of a defendant’s conviction” – had been disturbed. The Court says that the victim has no vested right to sustaining a conviction and that it “is a valid exercise of the Legislature’s power to retroactively grant new rights to criminal defendants.”

The 2009 statue not only made the 2006 law retroactive, it said that that had been the Legislature’s intention in 2006. That comes closer to “changing” Garcia. But the Court indicated that that wasn’t germane to the analysis since the other part of the statute – the actual retroactivity portion – didn’t.  “However” this problematic section of the statute “is characterized” – i.e., whether it’s constitutional or not – the Legislature had the power to make the statute retroactive after-the-fact.


(link to opinion)