Kansas' Same Day Reversal

When I was an appellate clerk on the 8th Circuit, we decided the case of United States v. Bruguier, 703 F.3d 393 (8th Cir. 2012). The case involved the interpretation of a sexual assault statute applicable to Indian reservations, specifically, a provision that prohibited a person from "knowingly"

(2) engag[ing] in a sexual act with another person if that other person is — 

(A) incapable of apprising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act....

The question was whether the "knowingly" requirement only applied to "engaging in a sexual act" (one had to know one was engaging in such an act) or also applied to the subsection (one had to know that the victim was incapable of consent). By a 2-1 vote, the court decided that the knowledge requirement only applied to the former, and therefore upheld Bruguier's conviction.

There's nothing remarkable about that -- except that on the same day, a different 8th Circuit panel considered the same issue and came to the exact opposite conclusion in United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012). Two opinions, released on the same day, with contradictory legal rulings. It was, to say the least, unusual.

But it wasn't an accident. Under normal circumstances, a prior panel decision binds a later one. But once the judges become alerted that two different panels were considering an identical challenge at the same time (and coming to opposite conclusions), it seemed silly to determine the law based on who managed to rush their opinion out first. Instead, we released the opinions on the same day, with the understanding that the case would go en banc and be decided by the whole court.  Which we did -- and in a 6-5 vote (could it be any closer?), the court decided that knowingly applied to both sections of the law -- one could only be convicted of sexual assault under this section if you knew that you committing a sexual act and knew that the person was incapable of consent.

I didn't think that story could be topped. But the Kansas Supreme Court just outdid us -- releasing a constitutional ruling, and then overturning that ruling in the same day. The cases involved a Kansas statute which requires certain felons to register with the state -- including those who were convicted of crimes before the registration act was passed. The question was whether this was an ex post facto law. The first decision said yes. And then that decision was subsequently overruled the same day. Both rulings were by a 4-3 vote.

This bizarre circumstance occurred because of a vacancy on the Kansas Supreme Court. The first case was briefed and argued while the seat remained vacant, and the Court had tapped a district court judge to sit "by designation" to fill the slot. He was in the majority that determined that the registration law was unconstitutional. But the second case was argued after the vacancy had been filled, and that judge switched sides -- reversing the ruling that was handed down that day.

Putting aside whatever one thinks about the proper application of stare decisis in such a case (let alone the right legal outcome), this has to rank as one the more bizarre legal turns of events I've ever come across. At least our court's mutually-contradictory opinions were released by design. This, by contrast, gives off the feeling of complete arbitrariness.