State v. Card

McDEVITT, Justice,

specially concurring.

INSANITY DEFENSE

An in-depth review of the legal principle of stare decisis is necessary in discussing the abolition of the insanity defense. While stare decisis is one of the first principles discussed in most law schools, its meaning and application are not universally understood. Most courts, when discussing stare decisis, use the term as one of general knowledge without need of further explanation. This has caused confusion as to its true definition and function. It is appropriate to discuss the origins of this principle and its development in Idaho law.

Black’s Law Dictionary defines stare decisis, “[t]o abide by, or adhere to, decided cases.” Black’s Law Dictionary 1406 (6th ed. 1991). The term is shortened from the legal maxim, stare decisis, et non quieta movere, which means to adhere to decided cases and not to disturb matters established. This rule is sometimes referred to as the doctrine of precedent or authority. The origins and early development of this doctrine are little-known. It is evident that this doctrine is an important component of the foundation our the judicial system. Without it, there would be no consistency in the law, as the law would change from day to day. This uncertainty in the law is what courts should seek to eliminate.

The doctrine developed in English common law and then was transported to the United States with our adoption of the common law. Carroll v. Carroll’s Lessee, 57 U.S. 275 , 16 How. 275 , 14 L.Ed. 936 (1853). One the earliest English cases where the use of this doctrine is evident is Spicer v. Spicer, 79 Eng.Rep. 451, Cro.Jac. 527 (1620). This case involved an ejectment action. The court rendered judgment for the defendant and, the reporter relates that, “they said, that those things which have been so often adjudged, ought to rest in peace.” Id. A more descriptive definition of this doctrine can scarcely be conceived.

In commenting on this doctrine in the mid-eighteenth century, Sir William Blackstone wrote:

For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, an not liable to waver [sic] with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

1 W. Blackstone, Commentaries, *69. This rigid view of stare decisis continued in England in the 19th century. A good example of how constrained English judges *441 felt by this doctrine is found in Regina v. Reed, 6 Cox C.C. 284 (1953), where one judge stated:

I certainly had differed from the view of this case which has been taken by Lord Campbell at a time when it was uncertain what the case of Spears’ actually was, and treating this case as res nova. The book in which the opinions of the judges are written, and which is always in the custody of the Lord Chief Justice, was mislaid; and the case of John Spears was differently reported in the two editions of Leach, and also in East’s Crown Law; and that case could not for a long time be found. However, since it has been found, I have satisfied myself, and I entertain no doubt upon it. I should have delivered my reasons at length; but it is unnecessary now to do so. The cases of Rex v. Abrahat and Tex v. Spears having been discovered, and having read that case with the explanation of Heath, J., I find the point decided; and though, therefore, if this were res nova, I should have pronounced an opinion that this was not larceny, yet as that case is a decided authority, by the authority of that case I am bound; and it is unnecessary for me to deliver my reasons at any greater length.

Id. at 292 .

Another example of this rigid view, is Beamish v. Beamish, 11 Eng.Rep. 735, 9 H.L.C. 275 (1861), the court wrote extensively as to what it felt was the proper resolution of the case, but felt the court was required to follow a previous ruling to the contrary. This view persisted at least into the mid-twentieth century. See, Note, Constitutional Stare Decisis, 103 Harv. L.Rev. 1344 (1990).

As this law developed in the United States, it underwent a significant change. James Kent (“Kent”), commenting on American law in the mid-nineteenth century, defined stare decisis as follows:

A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, an the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it.

1 J. Kent, Commentaries *475-76.

As this doctrine developed American courts departed from the rigid English view and adopted a more flexible view of this doctrine. American courts then became more willing to overrule precedent when necessary.

This is not to say courts did not feel constrained by stare decisis to follow precedent. Courts followed precedent where the line of authority was “clearly defined.” Townsend v. Jemison, 50 U.S. (9 How.) 407, 414 , 13 L.Ed. 194 (1850). Courts followed the view that:

The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to, unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so____

So, where the court has decided a question of law in another case and a like state of facts is subsequently presented, the rule of stare decisis applies and will not be easily changed.

Muller v. Nebraska Methodist Hosp., 160 Neb. 279, 282 , 70 N.W.2d 86, 88 (1955). This has been the view that this Court adopted. See, Scott v. Gossett, 66 Idaho 329 , 158 P.2d 804 (1945).

It must also be noted that stare decisis has been extensively criticized. It has been said that stare decisis is a “wholesome doctrine” but that it is “not of universal application.” Vail v. Arizona, 207 U.S. 201, 205 , 28 S.Ct. 107, 108 , 52 L.Ed. 169 (1907). Other commentators have stated that it must eventually be discarded. See, *442 E.B. Whitney, The Doctrine of Stare Decisis, 3 Mich.L.Rev. 89 (1904). It has also been urged that stare decisis should be more loosely applied in constitutional cases. This Court has stated that “[d]ecisions construing the Constitution should be followed, in the absence of cogent reasons to the contrary, as it is of utmost importance that our organic law be of certain meaning and fixed in interpretation.” Scott v. Gossett, 66 Idaho 329, 335 , 158 P.2d 804, 807 (1945). Whether it involve constitutional issues or property and contract issues, the standard for apply stare decisis should be the same. I recognize that stare decisis has been applied much more strictly to property and contract issues because of the belief that it is more likely people have changed their position in reliance on the law and the monetary considerations warrant adherence to existing law. Bethke v. Idaho Sav. & Loan Association, 93 Idaho 410 , 462 P.2d 503 (1969). Although members of the general public do not change their position drastically based upon our interpretation of the constitution, I feel that stare decisis should be applied in constitutional arenas, as an individual’s rights are much more important than mere monetary considerations.

Stare decisis is an important and fundamental component of our modern-day jurisprudence. It applies to every decision that we make. Kent stated the reason for the doctrine:

It would therefore be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with one another. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed ... except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.

1 J. Kent, Commentaries *476. So strong is the need to adhere to precedents that the commentator Sir William Jones wrote:

No man, who is not a lawyer, would ever know how to act; and no man who is a lawyer, would, in many instances, know what to advise, unless courts were bound by authority as firmly as the Pagan deities were supposed to be bound by the decrees of fate.

W. Jones, Essay on Bailment. One court has stated that “[t]he certainty of the rule is often more important than the reason of it____” White v. Denman, 1 Ohio St. 110 , 115 (1853). This certainty allows people to conduct and plan their lives without fear of constant change. Indeed, “[tjhere are some questions of law, the final settlement of which is vastly more important than how they are settled.” . Haskett v. Maxey, 134 Ind. 182 , 33 N.E. 358 (1893). Overruling precedent “introduces an element of uncertainty into the administration of justice from which the public suffer great inconvenience.” Id. The “stability in the decisions of a court of last resort is greatly to be desired.” Id. I find that:

[wjhen the law is plainly or intelligibly written, or expounded and settled by competent judicial authority, and not repugnant to fundamental law, I always yield a willing obedience to the maxims, ita lex scripta, and stare decisis, without the observance of which the law is divested of one of its most important attributes, becomes fluctuating and capricious, and instead of being a steady light to guide, or shield to protect, becomes an ignis fatuus to mislead, or a snare to entrap the citizen. All general rules of law must, in their operation, be productive of hardship and injustice in particular and individual cases. By making every case of hardship an exception, we virtually abrogate the rule itself, and make hard cases what they have been not appropriately termed, “the quicksands of the law.” Of necessity, we have to choose between two alternatives, that of the partial evil or inconvenience of a rigid adherence to the law or general *443 rules, or the general, nay, universal evil or inconvenience of no rule, no law but the wild discretion of the judge. Bain and abortive have been, and must ever be, the attempts to prevent or remedy all injustice by undertaking the task of essaying to do perfect justice in every case upon its own peculiar principles and circumstances, regardless of general rules.

Perkins v. Clements, 1 Pat. & H. 141, 153-54 (Va.1855).

This is not to say that a precedent should never be overruled, but that courts should follow their precedents except when a precedent is manifestly wrong. Stare decisis cannot be disregarded and used only when it is convenient.

As stare decisis evolved in Idaho, it is clear that this rule does not mandate unyielding acquiescence to prior decisions. “Stare decisis is not a confining phenomenon but rather a principle of law.” Smith v. State, 93 Idaho 795, 801 , 473 P.2d 937, 943 (1970). “The rule, to stand by decided cases, and to maintain former adjudications, contemplates more than blindly following some former adjudication, manifestly wrong. If it were to be applied strictly, no former decision would ever be overruled.” Higer v. Hansen, 67 Idaho 45, 64 , 170 P.2d 411, 423 (1946) (emphasis in original). Accordingly, we recognize that this rule, “though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court ...” Hertz v. Woodman, 218 U.S. 205, 212 , 30 S.Ct. 621, 622 , 54 L.Ed. 1001 (1910). Indeed, “when the application of this principle will not result in justice, it is evident that the doctrine is not properly applicable.”' Smith v. State, 93 Idaho 795, 801 , 473 P.2d 937, 943 (1970). Sometimes a court must adhere to prior unsatisfactory rules to avoid the difficult and burdensome results occurring after a change after a long period of accommodation. Helvering v. Griffiths, 318 U.S. 371 , 63 S.Ct. 636 , 87 L.Ed. 843 (1943); Davis v. Department of Labor 317 U.S. 249 , 63 S.Ct. 225 , 87 L.Ed. 246 (1942); Missouri v. Ross, 299 U.S. 72 , 57 S.Ct. 60 , 81 L.Ed. 46 (1936).

While we must adhere to our previous decisions, stare decisis does require us to reexamine our prior precedents to determine whether they are still valid. This court has stated:

This Court in the proper performance of its judicial function is required to examine its prior precedents. When precedent is examined in the light of modern reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis but rather a fulfillment of its proper function.

Smith v. State, 93 Idaho 795, 801 , 473 P.2d 937, 943 (1970); accord Dogget v. Boiler Engineering & Supply Co., 93 Idaho 888 , 477 P.2d 511 (1970). While it may seem stare decisis is a rule of convenience, it is not. I believe this rule requires us to stand by our prior decisions unless there are compelling and cogent reasons that necessitate a departure from our previous rulings. 13

Addressing the issue at hand, I would still urge today, as I did in State v. Searcy, *444 118 Idaho 632 , 798 P.2d 914 (1990), that the abolition of the insanity defense is unconstitutional. But when I consider my views in conjunction with the policies behind stare decisis, my personal views must give way, it is therefore necessary to follow the law as enunciated in Searcy .

In applying the guidelines articulated in Bethke , I can find no cogent reasons for continuing to dissent. I feel the need to provide a stable basis of law by which legal counsel and their clients may plan their affairs. Litigants need to be assured that the law will remain substantially the same day-to-day in order to avoid relitigating every point of every case. It is necessary to respect the opinions of this Court, even when I find myself in the minority. As Lord Brougham stated, “I may lament the unsatisfactory state of our law, ... But I am here only to declare the law.” Lynch v. Knight, 11 Eng.Rep. 854, 861, 9 H.L.C. 577, 592 (1861). It having been determined that the abolition of the insanity defense is constitutional, I will follow the law as stated in State v. Searcy and concur in Part II.

LIMITATION FOR POST-CONVICTION RELIEF

The appellant argues that the expedited post-conviction proceedings of I.C. § 19-2719 are unconstitutional. This statute was previously held to be constitutional in State v. Beam, 115 Idaho 208 , 766 P.2d 678 (1988); State v. Paz, 118 Idaho 542 , 798 P.2d 1 (1990); and, State v. Rhoades, 120 Idaho 795 , 820 P.2d 665 (1991). The appellant’s argument is without merit.

The appellant attempts to attack this statute by suggesting the hypothetical scenario of a defendant who wishes to claim his trial counsel was ineffective. The appellant urges that because a defendant must bring the ineffective assistance of counsel claim in a post-conviction proceeding, and that the trial counsel is responsible for the direct appeal from the conviction, the defendant must then represent himself in a pro se post-conviction petition which will be consolidated with the direct appeal, which would still be handled by the trial counsel who is alleged to be incompetent. This argument must be rejected.

It is clear that a defendant who claims ineffective assistance of counsel must do so through a petition for post-conviction relief. 14 Idaho Code § 19-2719 (3) requires a defendant to “file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known.”

VICTIM IMPACT STATEMENT

I cannot agree with the opinion’s analysis of Payne v. Tennessee, — U.S.-, 111 *445 S.Ct. 2597 , 115 L.Ed.2d 720 (1991). Nor will I overrule, even in part, State v. Charboneau, 116 Idaho 129 , 774 P.2d 299 (1989), or State v. Paz, 118 Idaho 542 , 798 P.2d 1 (1990).

Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), identified two types of information contained in victim impact statements. The first (Type I) describes “the personal characteristics of the victims and the emotional impact on the family” and the second (Type II) reports “the family members’ opinions and characterizations of the crimes and the defendant.” Booth, 482 U.S. at 502 , 107 S.Ct. at 2533 . Payne only overruled Booth and Gathers as to the Type I information. Type II information is still prohibited under the U.S. Constitution by Booth and Gathers. Therefore, it will be necessary to discuss each type of information separately.

Type I Information

My reading of Payne does not indicate that it stands for the proposition that victim impact statements pose no constitutional problems, whatsoever. Justice O’Con-nor’s concurring opinion is especially enlightening on this subject where she states:

We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, “the Eighth Amendment erects no per se bar.” Ante, at 2609. If, in a particular case, a witness’ testimony of a prosecutor’s remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment.

Payne, 111 S.Ct. at 2612 . After making this statement, Justice O’Connor then proceeds to perform a Fourteenth Amendment balancing test concerning the victim impact evidence. Therefore, it is abundantly clear that while Type I victim impact evidence does not pose any Eighth Amendment violation, it still poses other constitutional considerations.

Due process is not a technical concept, it is flexible as the situation demands. Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976). It is firmly established that due process requires notice and a meaningful opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545 , 85 S.Ct. 1187 , 14 L.Ed.2d 62 (1965); Cole v. Arkansas, 333 U.S. 196 , 68 S.Ct. 514 , 92 L.Ed. 644 (1948). The Due Process Clause of the Fourteenth Amendment also protects against arbitrary and capricious acts of the government. Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980). Due process requires that judicial proceedings be “fundamentally fair.” Lassiter v. Department of Soc. Serv. of Durham Cty., 452 U.S. 18, 24 , 101 S.Ct. 2153, 2163 , 68 L.Ed.2d 640 (1981). To meet this requirement of fundamental fairness, a sentence of death must be imposed based upon reason, not on impulse or emotion. Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1978).

The Type I information contained in the victim impact statement consisted of information that had already been produced at trial. This information about the victims, the children and other family members were facts already known to the judge. The statement that “It has been very difficult to deal with the loss.”, is indicative of any family struggling with the murder of a loved one. I cannot see how any of this information adversely affected the sentencing process. There was no error.

Type II Information

The victim impact statement in this case also contained Type II information. The offensive testimony comes from the statement that:

It is the consensus of the family of the victims, Shirley and Eugene Morey, that the defendant, Mr. Card, should be sentenced to death for his crime. It is their opinion that if he could shoot to death two total strangers with no provocation whatsoever, he could do it again just as easily.

Because this information is unconstitutional pursuant to State v. Charboneau, 116 *446 Idaho 129 , 774 P.2d 299 (1989), South Carolina v. Gathers, 490 U.S. 805 , 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989), and Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), we must determine whether this information prejudiced the defendant. This failure to strictly adhere to procedure does not require automatic reversal if we determine that this error was harmless. State v. Paz, 118 Idaho at 556, 798 P.2d at 15 . Therefore, we review the record to determine whether the information “was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967).

When I balance this statement against the evidence adduced at trial, I cannot say that the victim impact statement unfairly prejudiced the appellant. Not only was the trial court already aware of the fact that the appellant shot the Moreys without warning or provocation, the trial court had also heard extensive medical testimony concerning the appellant’s mental condition. In response to the victim impact information, the trial court pointed out that it was aware that it was unable to consider this information and that the sentence to be imposed was to be determined solely by weighing the mitigating factors against each aggravating factor. It is apparent that the court imposed the sentence of death by an exercise of reason and not arbitrarily or capriciously, therefore the error was harmless pursuant to State v. Paz.

AGGRAVATING AND MITIGATING FACTORS

A. Utter Disregard for Human Life

The appellant challenges the “utter disregard for human life” language of I.C. § 19-2515(g)(6). We have previously defined this language in State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981), as “reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer. We reaffirmed the constitutionality of this language and added further to the definition in State v. Fain, 116 Idaho 82 , 774 P.2d 252 (1989). In Fain we stated that this language does not refer to the outrageousness of the conduct, but the defendant’s lack of conscientious scruples in killing another human being. We have then consistently upheld the constitutionality of this provision. State v. Pizzuto, 119 Idaho 742 , 810 P.2d 680 (1991); State v. Paz, 118 Idaho 542 , 798 P.2d 1 (1990); State v. Charboneau, 116 Idaho 129 , 774 P.2d 299 (1989).

In reviewing the application of this provision to the facts in this case, it is evident that no constitutional violation occurred. The appellant killed the Moreys without provocation and without any thought of their value as human beings. The appellant killed them simply because they were there. The circumstances surrounding this crime support the trial court’s finding of “utter disregard for human life.”

B. Other Aggravating Circumstances

The appellant’s argument completely fails to acknowledge the presence of another aggravating factor, that being I.C. § 19-2515(g)(2). The trial court found “At the time the murder was committed the defendant also committed another murder.” This finding is supported by record.

It is also apparent that the trial court correctly weighed each and all mitigating factors together against each aggravating factor separately and found that the factors in mitigation did not outweigh either aggravating factor. The finding that when the appellant committed the murder that he also committed another murder by itself will support the sentence of death.

PROPORTIONALITY

Idaho Code § 19-2827 (c)(3) requires this Court to determine in each capital case, “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

Our perusal of the legislative history regarding the proportionality of sentences does not offer much guidance. The Statement of Purpose and the committee minutes for the bill that was eventually passed *447 and codified as I.C. § 19-2827 expressed only a concern that the Idaho statute be updated to reflect recent rulings by the United States Supreme Court:

STATEMENT OF PURPOSE

Only a few years ago, the United States Supreme Court made new “rules” concerning imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Sections 18-4003 and 18-4004, Idaho Code. Then, last year, the United States Supreme Court again changed the rules relating to capital punishment—after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed. The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law.

There is no mention of proportionality, or any expression by the legislature that we are required to review the proportionality of sentences with a special standard or test. The requirement that the death sentence not be disproportionate to “the penalty imposed in similar cases,” is one of several considerations this Court must examine in each death penalty case. The legislature did not see fit to establish a separate standard for proportionality review of sentences when I.C. § 19-2827 was enacted.

This Court looked at the proportionality of death sentences in State v. Creech, 105 Idaho 362 , 670 P.2d 463 (1983), and reviewed several cases in which the death penalty had been imposed or could have been imposed. This Court compared the facts of these crimes with the facts of the case they were reviewing to determine whether or not the sentence was disproportionate.

In considering this crime and this defendant, compared to similar crimes and similar defendants, 15 the record in this case and the district court’s findings and conclusions in imposing the sentence, we hold that the death sentence is not excessive or disproportionate. Therefore, I concur in the result finding that the appellant’s sentence is proportional to other cases where the death penalty was imposed and where it was not imposed.

I would affirm the conviction and sentence of death imposed upon the appellant.

. In Bethke v. Idaho Sav. & Loan Association, 93 Idaho 410 , 462 P.2d 503 (1969), we enunciated the following guidelines in determining whether to follow the rule of stare decisis:

1. In furtherance of private ordering—

(a) The desirability of enabling people to plan their affairs at the stage of primary private activity with the maximum attainable confidence that if they comply with the law as it has theretofore been announced, or can fairly be expected to be announced thereafter, they will not become entangled in litigation.

(b) The desirability of providing private counsel so far as possible with stable bases of reasoning____

(c) The desirability of encouraging the remedial processes of private settlement by minimizing the incentives of the parties to try to secure from a different judge a different decision than has been given by the same or other judges in the past.

2. In furtherance of fair and efficient adjudi cation—

(a) The desirability, from the point of view of the litigants, of expediting litigation and minimizing its costs by sparing them the necessity of relitigating every relevant proposition in every case.

(b) The need, from the point of view of the judicial system, of facilitating the dispatch of business—indeed, the sheer impossibility of reexamining de novo every relevant proposition in every case.

*444 (c) The need of discouraging a rush of litigation whenever there is a change of personnel on the bench.

(d) The desirability, from the point of view of fairness to the litigants, of securing a reasonable uniformity of decision throughout the judicial system, both at any given time and from one time to another.

(e) The desirability of promoting genuine impersonality of decision by minimizing the elements of personal discretion, and of facilitating the operation of the check of professional criticism.

(f) The propriety of according respect to the conclusions of predecessor judges.

(g) The injustice of disappointing expectations fairly generated at the stage of primary private activity.

3. In furtherance of public confidence in the judiciary—

(a) The desirability of maximizing the acceptability of decisions, and the importance to this end of popular and professional confidence in (1) the impersonality of decisions and (2) their reasoned foundation, as manifested both by the respect accorded to them by successor judges and by their staying power.

(b) The necessity, considering the amorphous nature of the limits upon judicial power and the usual absence of an effective political check at the ballot box, that judges be subject to the discipline and the restraint of an obligation to build upon the prior law in a fashion which can withstand the test of professional criticism.”

Id., 93 Idaho at 412-13 , 462 P.2d at 505 -06 (quoting from H.M. Hart, Jr. and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, 587-88 (Cambridge, Mass., tentative ed. 1958)).

. In re Cordero, 46 Cal.3d 161 , 249 Cal.Rptr. 342 , 756 P.2d 1370 (1988) (habeas corpus); People v. Bean, 46 Cal.3d 919 , 251 Cal.Rptr. 467 , 760 P.2d 996 (1988) (habeas corpus); Bundy v. Deland, 763 P.2d 803 (Utah 1988), Daniels v. State, 100 Nev. 579 , 688 P.2d 315 (1984); Sims v. State, 295 N.W.2d 420 (Iowa 1980); Commonwealth v. Russell, 477 Pa. 147 , 383 A.2d 866 (1978).

. State v. Pizzuto, 119 Idaho 742 , 810 P.2d 680 (1991); State v. Enno, 119 Idaho 392 , 807 P.2d 610 (1991); State v. Sivak, 119 Idaho 320 , 806 P.2d 413 (1990); State v. Paz, 118 Idaho 5 .42, 798 P.2d 1 (1990); State v. Smith, 117 Idaho 891 , 792 P.2d 916 (1990); State v. Lankford, 116 Idaho 860 , 781 P.2d 197 , stay granted, 490 U.S. 1061 , 109 S.Ct. 2058 , 104 L.Ed.2d 623 (1989); State v. Charboneau, 116 Idaho 129 , 774 P.2d 299 (1989); McKinney v. State, 115 Idaho 1125 , 772 P.2d 1219 (1989); State v. Fetterly, 115 Idaho 231 , 766 P.2d 701 (1988); State v. Scroggins, 110 Idaho 380 , 716 P.2d 1152 (1985), cert, denied, 479 U.S. 989 , 107 S.Ct. 582 , 93 L.Ed.2d 585 (1986); State v. Windsor, 110 Idaho 410 , 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964 , 107 S.Ct. 463 , 93 L.Ed.2d 408 (1986); State v. Fetterly, 109 Idaho 766 , 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870 , 107 S.Ct. 239 , 93 L.Ed.2d 164 (1986); State v. Beam, 109 Idaho 616 , 710 P.2d 526 (1985); State v. Stuart, 110 Idaho 163 , 715 P.2d 833 (1985); State v. Bainbridge, 108 Idaho 273 , 698 P.2d 335 (1985); State v. Aragon, 107 Idaho 358 , 690 P.2d 293 (1984); State v. McKinney, 107 Idaho 180 , 687 P.2d 570 (1984); State v. Paradis, 106 Idaho 117 , 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220 , 104 S.Ct. 3592 , 82 L.Ed.2d 888 (1984); State v. Gibson, 106 Idaho 54 , 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220 , 104 S.Ct. 3592 , 82 L.Ed.2d 888 (1984); State v. Sivak, 105 Idaho 900 , 674 P.2d 396 (1983), cert. denied, 468 U.S. 1220 , 104 S.Ct. 3591 , 82 L.Ed.2d 887 (1984); State v. Creech, 105 Idaho 362 , 670 P.2d 463 (1983); State v. Major, 105 Idaho 4 , 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493 , 660 P.2d 1336 , cert. denied, 461 U.S. 934 , 103 S.Ct. 2101 , 77 L.Ed.2d 308 (1983); State v. Carter, 103 Idaho 917 , 655 P.2d 434 (1981); State v. Olin, 103 Idaho 391 , 648 P.2d 203 (1982); State v. Osborn, 102 Idaho 405 , 631 P.2d 187 (1981); State v. Griffiths, 101 Idaho 163 , 610 P.2d 522 (1980); State v. Padilla, 101 Idaho 713 , 620 P.2d 286 (1980); State v. Fuchs, 100 Idaho 341 , 597 P.2d 227 (1979); State v. Needs, 99 Idaho 883 , 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979).