Divorcing the message from the messenger

Last month, the California Supreme Court in People v. Buza, 4 Cal. 5th 658 (2018) upheld California's DNA Act under the federal Constitution's Fourth Amendment and the California Constitution's equivalent (Article I, section 13). It was a 4-3 decision, with the justices disagreeing on a point fundamental to the nature of judging itself -- namely, how much should the facts of a case shape the court's ruling on the legal question presented?

The DNA Act requires law enforcement to collect DNA (and fingerprints) from any person arrested for or convicted of a felony. Pen. Code sec. 296.1(a)(i)(A). In People v. Robinson, 47 Cal. 4th 1104 (2010), the California Supreme Court held that the collection of DNA from persons convicted of felonies was constitutional. Buza presented the question left open in Robinson: Is the collection of DNA from persons merely arrested for a felony constitutional?

Buza was not writing on a completely blank slate. The U.S. Supreme Court in Maryland v. King, 569 U.S. 435 (2013), had held that a Maryland law allowing for the collection of DNA from persons arrested for certain felonies (crimes of violence, burglary and attempts to commit either), and after a judicial determination of probable cause, did not violate the federal Fourth Amendment. In light of King, Buza argued that the DNA Act (1) violated the federal Fourth Amendment because Maryland's law was distinguishable from the DNA Act in constitutionally significant ways, and (2) violated California's "Fourth Amendment," which courts may interpret more broadly than its federal counterpart (at least where, as here, it is not being used as the basis to suppress evidence). American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 325 (1997); cf. Cal. Const., art. I, sec. 28(f)(2); In re Lance W., 37 Cal. 3d 873, 879, 890 (1985).

Both the majority and the two dissents in Buza agreed that Buza was pressing an "as applied" challenged to the DNA Act (rather than a facial attack on the statute). But the justices formulated that "as applied" challenge quite differently.

The majority examined Buza's challenge "[i]n the context of the particular case before us" -- namely, a case "involv[ing] a defendant who was validly arrested on probable cause to believe he had committed felony arson, and who was promptly charged with (and ultimately convicted of) that offense." Buza, at 674; see also id. at 665, 691-94. To ignore those facts, the majority reasoned, was to don a "veil of ignorance," and thus to impermissibly "reach beyond the facts of the case before us." Id. at 691-92.

By contrast, the dissenters examined the constitutionality of the DNA Act "from the vantage point that existed at the time Buza was required to provide his DNA" -- that is, "before he was charged or convicted." Id. at 699 (Lui, J., dissenting), 721 (Cuellar, J., dissenting). In their view, Buza's subsequent charging and conviction were irrelevant, and the majority's reliance on those facts meant the majority was asking the wrong question.

Although the majority and dissenters had other points of disagreement, their disagreement on the relevance of Buza's subsequent charging and conviction evokes a deeper question: What role should the facts of a case play in how judges decide that case? Put differently, should the messenger matter?

In our daily lives, the messenger (and the facts about him or her) are often an integral part of the message (or, at a minimum, its persuasiveness). Napoleon is probably not the one to lead a Ted talk about how to win a land war in Europe any more than Henry VIII should be on the lecture circuit to espouse the virtues of lifelong matrimony.

But should the approach be any different in the law?

When it comes to bringing a so-called "test case" in the trial courts or seeking discretionary review in the appellate courts, the party seeking relief will often try to play up the facts that make himself or herself the more sympathetic party. This make sense: Where the facts are on your side, use'em.

But should courts consider the facts of a case when deciding its merits?

To be sure, the facts are always important insofar as they necessarily tee up the legal question presented in a case. And except where a party is challenging a statute as being facially unconstitutional, courts will confine their analysis to whether the statute's constitutional validity as applied to the facts of the case before them. United States v. Raines, 362 U.S. 17, 21-22 (1960); In re Cregler, 56 Cal. 2d 308, 313 (1961). Courts may also tie their legal holding to the facts of a case in order to limit the reach of their holding (and perhaps to preserve a fragile majority), thereby leaving for another day how the law might apply in a more factually nettlesome circumstance.

But to what extent should the facts influence the court's legal analysis of an as applied challenge?

Would it have mattered to the California Supreme Court's analysis if Buza, instead of being later charged and convicted of arson, had been charged but subsequently acquitted of "grand theft avocado" (look it up, Penal Code section 487(b)(1)(A))?

Courts are made up of judges, and judges are people. Justice may be blind, the saying goes. But She is still human. To most people, the atmospherics -- that is, the facts -- are part of the bigger picture.

In Texas v. Cobb, 532 U.S. 162 (2001), the United States Supreme Court held that the Sixth Amendment's prohibition against law enforcement efforts to deliberately elicit statements from a suspect charged with a crime applied only to statements about the charged crime(s) and their lesser-included and greater-included relatives. Id. at 172-73. A ruling to the contrary would have meant that the defendant -- who stabbed a young mother who interrupted his burglary, buried her and her still-living infant in the backyard, and then stabbed the infant to death through a thin layer of soft earth -- would have been entitled to have his confession regarding the murders suppressed (as he had only been charged with burglary at the time of his confession). Did the gruesome facts of the killings factor legally into the court's Sixth Amendment analysis? No. But the court nevertheless saw fit to include those facts in its opinion. Id. at 166-67.

As one might expect, the facts can cut both ways. In re Humphrey, 19 Cal. App. 5th 1006 (2018) recently held that portions of California's current money bail system was unconstitutional. Did it matter to the Humphrey court's constitutional analysis that Humphrey's crime was stealing $7 and a bottle of cologne from a fellow resident of the retirement home where he lived?

Is it possible to ignore the messenger, which in this context means the facts about the litigant pressing a claim? And if so, is it desirable to do so? In other words, does consideration of the facts add a depth and humanness to the resolution of legal questions, or does it instead lend credence to the aphorism that "bad facts make bad law"?

Buza provides no answers to these questions, but reminds us that that are important ones to keep asking.