State v. Hood

Abbott, J.,

concurring: Once again, I would suggest to the legislature that K.S.A. 1993 Supp. 22-3602(b) be repealed. K.S.A. 1993 Supp. 22-3602(b) allows the State to take a direct appeal to the Supreme Court from an order dismissing a complaint, information, or indictment. As a result, this court hears appeals from misdemeanor cases and probable cause hearings on a regular basis. This is a waste of this court’s time in most instances and, more importantly, takes space on the docket which could be better used to hear cases that have issues of great importance to the people of this State.

This case is a prime example of the problem as I view it. This case is a dismissal at the preliminary hearing stage. The State has the absolute right to refile the criminal charges at any time before the statute of limitations expires. Instead, it filed an appeal directly to the Supreme Court.

By statute, preliminary hearings are heard by one judge and at the lowest level possible in the judicial system. The issue in all preliminary hearings is whether a crime has been committed and whether there is probable cause to believe the accused committed the crime. In an appeal, seven, not one, Supreme Court justices read a cold record and make the same type of determination one magistrate made in the first instance.

After seven justices, on appeal, give the State a new preliminary hearing based on the record presented, if the State again loses and the statute of limitations has not expired, it can refile the same criminal charges and start over at the magistrate level before a single judge.

As to the remaining statutory direct appeals, the appeals should be to the Court of Appeals (as should the preliminary hearing appeals). The vast majority of the cases directly appealed to this court which are of no real significance to the law could be handled by a three-member panel of the Court of Appeals rather than by the seven Supreme Court justices. That would be a substantial saving of judicial time. If the issue is significant it will reach the Supreme Court.

I have not conducted a study on the number of such cases, but over 10 percent of the current docket are State appeals under K.S.A. 1993 Supp. 22-3602(b). It is a rare docket that does not contain from one to three such appeals. A cursory look at the opinions filed by the Court of Appeals shows the Court of Appeals is hearing cases of significant public interest and cases that are important to the development of the law which should be heard by the Supreme Court.

I urge the legislature to repeal or amend K.S.A. 1993 Supp. 22-3602(b) to open more space on the Supreme Court’s docket which will give this court discretion to fill its docket with cases thát are of more importance to the people of this state.