Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Hester v. Washington

Docket: 98495-6

Opinion Date: March 25, 2021

Judge: Johnson

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Labor & Employment Law

This case involved a challenge to former RCW 43.43.120(23)(a) (2001), which excluded certain overtime from the calculation of the monthly pension benefit granted under the Washington State Patrol Retirement System (WSPRS). Four Washington State troopers (Troopers) hired before the statute became effective claimed this exclusion of voluntary overtime from the calculation of their monthly pensions was an unconstitutional impairment of their contract with the State in violation of article I, section 10 of the United States Constitution and article I, section 23 of the Washington State Constitution. On cross motions for summary judgment, the trial court ruled: (1) the statute of limitations was three years and accrued at retirement; (2) there remained issues of material fact regarding whether the change was offset by comparable benefits; and (3) the change was reasonable and necessary to serve a legitimate public purpose. After review of that ruling, the Washington Supreme Court affirmed the trial court’s rulings on the statute of limitations and on comparable benefits. However, the Court vacated its legitimate public purpose ruling as premature given that the issue of comparable benefits remained for trial. The matter was remanded for additional proceedings.

Washington v. Coryell

Docket: 98256-2

Opinion Date: March 25, 2021

Judge: Barbara Madsen

Areas of Law: Constitutional Law, Criminal Law

The issue this case presented centered on the test to be applied when determining whether to instruct the jury on a lesser included or lesser degree offense. Under Washington v. Workman, 584 P.2d 382 (1978), a defendant was entitled to a lesser included offense instruction if: (1) each of the elements of the lesser offense was a necessary element of the offense charged (legal prong); and (2) evidence in the case supported an inference that the lesser crime was committed (factual prong). Although the Washington Supreme Court continued to follow the Workman test, confusion arose after some of its opinions expressed Workman’s factual prong as requiring evidence “that only the lesser included/inferior degree offense was committed to the exclusion of the [greater] charged offense.” Tanner Coryell was charged with two counts of assault. The first count was second degree assault by means of strangulation and the second count was fourth degree assault. Coryell requested a lesser included offense instruction for fourth degree assault for count one. In support of his request, Coryell argued that any force he used was in self-defense and defense of his property or that his actions did not prevent Autumn Hart’Lnenicka from breathing. The Supreme Court determined Coryell was still entitled to a lesser included offense instruction when a jury could reasonably find, based on evidence submitted and the jury’s decision about whether it was credible or not, that the defendant committed only the lesser offense. Coryell’s conviction was vacated and the matter remanded for further proceedings.