Stateconlaw2024-materials | Colin Doyle | Law Professor

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[fit] Welcome to State Constitutional Law!

Syllabus highlights

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Open office hours Tentative Schedule: Fridays from 11:00am to 12:00pm
Outside the Robinson Moot Courtroom

Reading Assignments

Class Policies

Attendance

Preparation and participation

Recordings & Slides

Video

Audio with transcripts

Slides

Classroom Norms

Professionalism

Generosity

We can give each other the opportunity to be wrong.

We can disagree with ideas, not with people.

Accommodations

Student Accessibility Services in the Office of Student Affairs

I want this class to be accessible for you.

Exams and Grading

Midterm Exam: 25%

Final Exam: 75%

Questions about the syllabus

Introductions

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

- Federal and State power - Equality (Race, Gender, Age, Sexual orientation, Economic) - Voting Rights - Due Process - Reproductive Rights - Privacy - Intimate Relationships - Marriage - Criminal Procedure - Property Rights - Religion - School Funding - Unique states rights - Organization of state government - Local government - Admin law

State and Federal Power

United States Constitution Art. 1 § 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

Important prior cases: Wickard v. Filburn (1942) United States v. Morrison (1994) United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

Important prior cases: South Dakota v. Dole (1987)

Mon, 01 Jan 0001 00:00:00 +0000

theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] Welcome to State Constitutional Law!

Syllabus highlights

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Open office hours Tentative Schedule: Fridays from 11:00am to 12:00pm
Outside the Robinson Moot Courtroom

Reading Assignments

Class Policies

Attendance

Preparation and participation

Recordings & Slides

Video

Audio with transcripts

Slides

Classroom Norms

Professionalism

Generosity

We can give each other the opportunity to be wrong.

We can disagree with ideas, not with people.

Accommodations

Student Accessibility Services in the Office of Student Affairs

I want this class to be accessible for you.

Exams and Grading

Midterm Exam: 25%

Final Exam: 75%

Questions about the syllabus

Introductions

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

State and Federal Power

United States Constitution Art. 1 § 8

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

Important prior cases: Wickard v. Filburn (1942) United States v. Morrison (1994) United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

Important prior cases: South Dakota v. Dole (1987)

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[fit] State Constitutional Law

[fit] 02 - Limited Federal Powers

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Office hours By appointment, just email me.

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

Introductions

State and Federal Power

United States Constitution Art. 1 § 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In-Class Exercise:

[fit] Power of Legislature in State Constitutions

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

Important prior cases: Wickard v. Filburn (1942) United States v. Morrison (1994) United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

Important prior cases: South Dakota v. Dole (1987)

In-Class Exercise:

Congress has passed a law banning potluck suppers that do not include corn as a dish.

Would-be potluckers from the state of Oregon have sued U.S. government, arguing that the law is unconstitutional because it is beyond Congress’s authority under Art. I § 8 of the federal constitution.

The case makes its way to the U.S. Supreme Court. You are Supreme Court justices. One half of the class will write the opinion upholding the law. The other half of the class will write the opinion finding the law unconstitutional.

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[fit] State Constitutional Law

[fit] 02 - Limited Federal Powers

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Office hours By appointment, just email me.

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

Introductions

State and Federal Power

United States Constitution Art. 1 § 8

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

In-Class Exercise:

[fit] Power of Legislature in State Constitutions

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

Important prior cases: Wickard v. Filburn (1942) United States v. Morrison (1994) United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

Important prior cases: South Dakota v. Dole (1987)

In-Class Exercise:

Congress has passed a law banning potluck suppers that do not include corn as a dish.

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[fit] State Constitutional Law

[fit] 03 - State and Federal Power

Recap

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

Exclusive State Powers

Exclusive State Power

United States v. Lopez 514 U.S. 549 (1995)

Return to In-Class Exercise: Potluck Suppers

Congress has passed a law banning potluck suppers that do not include corn as a dish.

The case makes its way to the U.S. Supreme Court. You are Supreme Court justices. How would you rule?

Anti-commandeering principle

Printz v. United States 521 U.S. 898 (1997)

Other important cases: New York v. United States (1992) Murphy v. NCAA (2018)

In-Class Exercise: Background checks

You are a congressional staffer tasked with rewriting the Brady Act background check provisions to be constitutional. The goal is to have a law that requires everyone purchasing a handgun in the United States to be subject to a background check.

Brainstorm some options. The more constitutionally valid legislative options, the better.

Federal Limitations on State Power

Excerpt from Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton 514 U.S. 779 (1995)

Article I. §2 cl. 2 of U.S. Constitution

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Article I. §3 cl. 3 of U.S. Constitution

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Amendment 73 to Arkansas State Constitution

(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas.

(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas.

10th Amendment U.S. Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Federal Limitations on State Power

Gregory v. Ashcroft 501 U.S. 452 (1991)

Age Discrimination in Employment Act (Federal Law)

Makes it unlawful for an “employer” “to discharge any individual” who is at least 40 years old “because of such individual’s age.” The term “employer” is defined to include “a State or political subdivision of a State,” but exempts as “employees” persons appointed “at the policymaking level.”

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[fit] Theories for Construing State Constitutions

[fit] 04 - Similarly Worded Provisions

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But first… a wrap-up on

Federal Limitations on State Power

Gregory v. Ashcroft 501 U.S. 452 (1991)

Age Discrimination in Employment Act (Federal Law)

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Federal Provision

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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State Provision

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What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

Uniformity
Deference
- Don’t rock the boat
- Superior knowledge? Or just better litigation? Better litigants? Better amicus briefs?
- A court that has a lot more time and hears fewer cases and only hears cases that they want to hear
- Supreme Court is probably right?
Efficiency

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What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

You want to interpret the constitutional provision according the values of the state / community you’re in
Different constitutions with different histories of adoption deserve different interpretations
Laboratories of experimentation and democracy
Local needs / conditions
- Management of rights
Disagreement with the U.S. Supreme Court
- Indeterminacy of difficult constitutional provisions

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Today’s cases

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)

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Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

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U.S. Constitution, Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Michigan Constitution, Article 1, § 11 The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

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U.S. Supreme Court Analysis

In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.

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State v. Hempele

576 A.2d 793 (N.J. 1990)

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New Jersey Constitution, Article I, Paragraph 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

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State v. Wright

961 N.W.2d 396 (Iowa 2021)

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Iowa Constitution, Article I, § 8 The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.

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Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

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U.S. Constitution, Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Pennsylvania Constitution, Article I, §6 Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.

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Four-Part Test

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

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[fit] Theories for Construing State Constitutions

[fit] 05 - Differently Worded Provisions

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But first, let’s finish with…

[fit] Similarly Worded Provisions

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Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

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Four-Part Test

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

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[fit] Recap

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Reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

Reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

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Cases - Similarly Worded Provisions

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)

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Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown 930 N.W.2d 840 (Iowa 2019)

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[fit] Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

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U.S. Constitution, Fourteenth Amendment No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.

Iowa Constitution, Article 1, § 6 All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not apply equally to all citizens.

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State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

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Washington Constitution, Article 1, § 7 No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Arizona Constitution, Article 2, §8 No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

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State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

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State court rulings that address both federal and state bases for decision

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Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

519 U.S. 33 (1996)

685 N.E.2d 762 (Ohio 1997)%% %%

Important Precedent: Michigan v. Long 463 U.S. 1032 (1982)

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[fit] Theories for Construing State Constitutions

[fit] 06 - Differently worded provisions &

[fit] State court rulings that address both federal and state bases for decision

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State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

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State court rulings that address both federal and state bases for decision

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Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

519 U.S. 33 (1996)

685 N.E.2d 762 (Ohio 1997)

Important Precedent: Michigan v. Long 463 U.S. 1032 (1982)

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Compare & Contrast

Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)

Ohio v. Robinette 685 N.E.2d 762 (Ohio 1997)

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Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

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Recap of state court interpretation

of state constitutions

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Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)

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Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

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State v. Scottize Danyelle Brown 930 N.W.2d 840 (Iowa 2019)

Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995) 519 U.S. 33 (1996) 685 N.E.2d 762 (Ohio 1997)

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In-Class Exercise

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[fit] State Constitutional Law

[fit] 07 - Equality

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In-Class Exercise

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What does “equality” mean?

Everyone has the same opportunities and ability to do things

Everyone is treated the same.

Evening the playing field.

Fairness

Using equity to achieve equality

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How might constitutional guarantees differ?

“All people are created equal and are entitled to equal rights and opportunity under the law.” Wis. Const. art. I, § 1.

“Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Utah Const. Art. IV, § 1.

“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” Conn. Const. Art I. § 20.

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Federal Constitutional Backdrop

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment.

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Tiers of scrutiny

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Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

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Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

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Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

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Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

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“There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”

Conn. Const. Art VIII. § 1.

Conn. Const. Art I. § 20.

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De facto segregation

De jure segregation

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Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

Important Precedent: Morton v. Mancari 417 U.S. 535 (1974)

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“[A]ll persons are equal and entitled to equal rights, opportunities, and protection under the law.”

Article I, § 1, Alaska Const.

“No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin.”

Article I, § 3, Alaska Const.

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Three-step sliding scale test

Weight of the interest impaired
Importance of purpose behind government action
Means-to-end fit

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[fit] Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

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“Girls shall not compete or practice against boys in any athletic contest.”

Athletic Association by law.

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Art. I, § 28, Penn. Const.

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State v. Rivera

612 P.2d 526 (Haw. 1980)

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“Equality of rights under the law shall not be denied or abridged by the State on account of sex.”

Art. 1, § 21, Hawaii Const.

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[fit] State Constitutional Law

[fit] 08 - Equality

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Review

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Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

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Tiers of Scrutiny

/- Rational basis

/- Intermediate scrutiny

/- Strict scrutiny

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Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)

Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera 612 P.2d 526 (Haw. 1980)

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Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Why put equality in a state constitution?

What’s the point?

—

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

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“Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.”

Article V, Pennsylvania Const.

“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

Article I, §1 Pennsylvania Const.

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Arneson v. State

864 P.2d 1245 (Mont. 1993)

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Can receive increase

IF retired AND (retiree or beneficiary) is 55 or older

IF not retired AND receiving disability or survivorship benefits

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“The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Art II. § IV Montana Const.

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Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

“All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Iowa Const. Art 1. § 6

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Three Justifications

Accuracy
Efficiency
Paternity

—

AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

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Justifications

Labor peace
Health and safety
Justification for 30% line: Need to draw it somewhere

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[fit] State Constitutional Law

[fit] 08 - Equality

—

Review

—

Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

—

Tiers of Scrutiny

/- Rational basis

/- Intermediate scrutiny

/- Strict scrutiny

—

Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)

Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera 612 P.2d 526 (Haw. 1980)

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Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Why put equality in a state constitution?

What’s the point?

—

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

—

“Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.”

Article V, Pennsylvania Const.

Article I, §1 Pennsylvania Const.

—

Arneson v. State

864 P.2d 1245 (Mont. 1993)

—

Can receive increase

IF retired AND (retiree or beneficiary) is 55 or older

IF not retired AND receiving disability or survivorship benefits

—

“The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Art II. § IV Montana Const.

—

Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

—

Three Justifications

Accuracy
Efficiency
Paternity

—

AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

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“All men and women are, by nature, free and equal.” Iowa Const. Art 1. § 1

—

Justifications

Labor peace
Health and safety
Justification for 30% line: Need to draw it somewhere

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[fit] State Constitutional Law

[fit] 09 - Due Process

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Equality Review

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Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

—

Tiers of Scrutiny

- Rational basis

- Intermediate scrutiny

- Strict scrutiny

—

Race

Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)

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Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera 612 P.2d 526 (Haw. 1980)

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Age

Driscoll v. Corbett 69 A.3d 197 (Pa. 2013)

Arneson v. State 864 P.2d 1245 (Mont. 1993)

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Sexual Orientation

Gartner v. Iowa Dep’t of Public Health 830 N.W.2s 335 (Iowa 2013)

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Economic

AFSCME Iowa Council 61 v. State 928 N.W.2d 21 (Iowa 2019)

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Procedural Due Process

If the government is going to deny someone a life, liberty, or property interest, what process is due?

—

State v. Veale

972 A.2d 1009 (N.H. 2009)

Important Precedent: Paul v. Davis 424 U.S. 693 (1976)

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“No subject shall be deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.”

Part I, Article 15, New Hampshire Const.

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Due Process Inquiry

Is this a legally protected interest?

If so, what process is due?

—

Balancing test for determining what process is due

Private interest that will be affected
Risk of erroneous deprivation and probable value of additional procedural safeguards
Government interest (including burden of additional safeguards)

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M.E.K. v. R.L.K.

921 So.2d 787 (Fla. App. 2006)

Supreme Court Precedent: Lassiter v. Dep’t of Social Serv. of Durham County, N.C. (1981) Florida Precedents: O.A.H. v. R.L.A. (1998) In the Interest of M.C. (2005)

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Substantive Due Process

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Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

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Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

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Reproductive Autonomy

—

Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

Supreme Court Precedents: Buck v. Bell (1927) Skinner v. Oklahoma (1942)

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“That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.”

Art. 1, §8, Tenn. Const.

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“That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an inalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.”

Art 1. §1, Tenn. Const.

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“That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”

Art 1. §2, Tenn. Const.

—

Why connect right to privacy with right to violently overthrow government?

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In re T.W.

551 So.2d 1186 (Fla. 1989)

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“Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

Art I., §23, Florida Const.

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Rule for evaluating constitutionality of government intrusion into private life.

“The right of privacy demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.”

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Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

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“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

§ 1, Kansas Bill of Rights, Kansas Const.

No State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment.

—

Dissent

“Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-common-good and onto the uncertain waters of the sea-of-fundamental-values.”

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Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Important Iowa Precedents: Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Med. (PPH I) (Iowa 2015) Planned Parenthood of the Heartland v. Reynolds (PPH II) (Iowa 2018)

Important Supreme Court Precedents: Roe v. Wade (1973) Planned Parenthood v. Casey (1992) Dobbs v. Jackson Women’s Health Organization (2022) (pending at time of Iowa opinion)

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[fit] State Constitutional Law

[fit] 10 - Due Process

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Recap on Due Process

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Procedural Due Process

Substantive Due Process

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Procedural Due Process

State v. Veale 972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K. 921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

—

Substantive Due Process

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

—

Reproductive Autonomy

—

Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

Supreme Court Precedents: Buck v. Bell (1927) Skinner v. Oklahoma (1942)

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Art. 1, §8, Tenn. Const.

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Art 1. §1, Tenn. Const.

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Art 1. §2, Tenn. Const.

—

Why connect right to privacy with right to violently overthrow government?

—

Abortion cases

In re T.W. 551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt 440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State 975 N.W.2d 710 (Iowa 2022)

New assigned reading for Thursday: Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (Pa. 2024) (Wecht, concurrence) Pgs. 40-71

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Right of Intimate Association

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State v. Saunders

381 A.2d 333 (N.J. 1977)

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Crime of fornication

“an act of illicit sexual intercourse by a man, married or single, with an unmarried woman”

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Infringement on right to privacy?
If so, compelling state interest to justify infringement?

—

Compelling state interests asserted:

Preventing venereal disease
Preventing number of illegitimate children
Safeguarding marriage and public morals

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Concurrence

“The Legislature cannot infringe on the rights of individuals who in private and without affecting others adopt and live by standards which differ from those of society.”

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Commonwealth v. Bonadio

415 A.2d 47 (Pa. 1980)

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Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)

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KRS 510.100 punishes “deviate sexual intercourse with another person of the same sex” as a criminal offense, and specifies “consent of the other person shall not be a defense.”

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Civil Union and Same-Sex Marriage

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Baker v. State

744 A.2d 864 (Vt. 1999)

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The Common Benefits Clause

“That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” Vermont Const. (Chapter I, Article 7).

—

Three-part analysis

Significance of the benefits
Goverment’s goals
Classification under- or over-inclusive

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Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

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[fit] State Constitutional Law

[fit] 11 - Due Process

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Reproductive Autonomy and Same-Sex Marriage

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Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

How should stare decisis factor into the analysis?

—

Class discussion with difficult topics

You can speak from the first-person related to views and experiences.

Two requirements:

a student sharing personal views or experience will not be treated as a stand-in for all members of a group
personal experience is not a trump card

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Class discussion with difficult topics

You are encouraged to develop and test arguments that you do not support.

Developing and thinking through an argument is not the same as endorsing that argument.

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Class discussion with difficult topics

Reminder: let’s have the opportunity to be wrong.

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Reproductive Autonomy

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In re T.W.

551 So.2d 1186 (Fla. 1989)

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Art I., §23, Florida Const.

—

Rule for evaluating constitutionality of government intrusion into private life:

—

Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

—

“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

§ 1, Kansas Bill of Rights, Kansas Const.

No State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment.

—

Strict Scrutiny

Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Undue Burden

Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

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Dissent

“Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-common-good and onto the uncertain waters of the sea-of-fundamental-values.”

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Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Important Iowa Precedents: Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Med. (PPH I) (Iowa 2015) Planned Parenthood of the Heartland v. Reynolds (PPH II) (Iowa 2018)

Important Supreme Court Precedents: Roe v. Wade (1973) Planned Parenthood v. Casey (1992) Dobbs v. Jackson Women’s Health Organization (2022) (pending at time of Iowa opinion)

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“[N]o person shall be deprived of life, liberty, or property, without due process of law.”

Iowa Const., Art I, § 9

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Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

(Pa. 2024) (Wecht, concurrence)

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Penn. Const., Art I, § 1

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“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Penn. Const., Art I, § 28

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“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.”

Penn. Const., Art I, § 3

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Class discussion

Potential constitutional sources of right to reproductive autonomy - Due process - Right to privacy - Inalienable natural rights - Equal protection / ERA - Religious liberty / freedom of conscience - Explicit provision that recognizes right to reproductive autonomy

Questions to guide us: - How should we understand the differences between policy preferences and constitutional interpretation? - How should a constitution be interpreted? - What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch? - How should stare decisis factor into the analysis?

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Civil Union and Same-Sex Marriage

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Baker v. State

744 A.2d 864 (Vt. 1999)

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The Common Benefits Clause

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Three-part analysis

Significance of the benefits
Government’s goals
Classification under- or over-inclusive

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Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

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[fit] State Constitutional Law

[fit] 12 - Criminal Procedure

—

But first…

Civil Union and Same-Sex Marriage

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Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted? What should be the role of history in our understanding of constitutional provisions?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

How should stare decisis factor into the analysis?

—

Baker v. State

744 A.2d 864 (Vt. 1999)

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The Common Benefits Clause

—

Three-part analysis

Significance of the benefits
Government’s goals
Classification under- or over-inclusive

—

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

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Criminal Procedure

Search and Seizure

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Review of Crim Pro Cases

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

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Review of Crim Pro Cases

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995)

—

What should I focus upon?

or

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

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Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

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Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

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Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

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History of federal exclusionary rule

Weeks v. United States (1914) Federal exclusionary rule.

Wolf v. Colorado (1949) Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961) Exclusionary rule applies to the states.

Stone v. Powell (1976) Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984) Good faith exception

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Idaho Precedents

State v. Arregui (Idaho 1927)

State v. Rauch (Idaho 1978)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

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Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

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What constitutes a search?

—

Contrast

State v. Earls 70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012) Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant 950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989) A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

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[fit] State Constitutional Law

[fit] 12 - Criminal Procedure

—

But first…

Civil Union and Same-Sex Marriage

—

Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted? What should be the role of history in our understanding of constitutional provisions?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

How should stare decisis factor into the analysis?

—

Baker v. State

744 A.2d 864 (Vt. 1999)

—

The Common Benefits Clause

—

Three-part analysis

Significance of the benefits
Government’s goals
Classification under- or over-inclusive

—

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

—

Criminal Procedure

Search and Seizure

—

Review of Crim Pro Cases

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

—

Review of Crim Pro Cases

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995)

—

What should I focus upon?

or

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

History of federal exclusionary rule

Weeks v. United States (1914) Federal exclusionary rule.

Wolf v. Colorado (1949) Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961) Exclusionary rule applies to the states.

Stone v. Powell (1976) Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984) Good faith exception

—

Idaho Precedents

State v. Arregui (Idaho 1927)

State v. Rauch (Idaho 1978)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

—

Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

What constitutes a search?

—

Contrast

State v. Earls 70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012) Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant 950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989) A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

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Midterm Review

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Midterm Format

Optional four-hour, take-home, open-book exam. Will only affect your final grade in the course if your midterm grade is higher than your final exam grade.

Students can take the exam at any time during the week of March 11-15. No class on March 12.

Two parts to the exam. Character count of 10,000 characters for each part. Part 1: Short answer questions. Part 2: Essay question.

Possible topics: Everything from the semester to date, except for the criminal procedure unit we started this week.

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What topics have we covered so far?

State and Federal Power
Theories for Construing State Constitutions
Equality and Equal Protection
Procedural Due Process
Substantive Due Process

—

State and Federal Power

—

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

—

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

—

Exclusive State Power

United States v. Lopez 514 U.S. 549 (1995)

—

Anti-commandeering principle

Printz v. United States 521 U.S. 898 (1997)

—

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton 514 U.S. 779 (1995)

Gregory v. Ashcroft 501 U.S. 452 (1991)

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Theories for Construing State Constitutions

—

What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

—

Cases - Similarly Worded Provisions

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)

—

Four-Part Test (in Pennsylvania)

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

—

Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown 930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995)

—

Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

—

Equality

—

Why put equality in a state constitution?

What’s the purpose?

—

Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Tiers of scrutiny

—

Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

—

Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

——

Equality: Race

Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)

—

Equality: Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera 612 P.2d 526 (Haw. 1980)

—

Equality: Age

Driscoll v. Corbett 69 A.3d 197 (Pa. 2013)

Arneson v. State 864 P.2d 1245 (Mont. 1993)

—

Equality: Sexual Orientation

Gartner v. Iowa Dep’t of Public Health 830 N.W.2s 335 (Iowa 2013)

—

Equality: Economic

AFSCME Iowa Council 61 v. State 928 N.W.2d 21 (Iowa 2019)

—

Due Process

—

Procedural Due Process

Substantive Due Process

—

Procedural Due Process

State v. Veale 972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K. 921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

—

Substantive Due Process

—

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

What should be the role of history in our understanding of constitutional provisions? How should stare decisis factor into the analysis?

—

Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

—

Substantive Due Process: Reproductive Autonomy

Strict Scrutiny Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Undue Burden Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability?”

Rational Basis Does the law serve a “legitimate” government interest, and is there a “rational connection” between the law’s means and that interest?

—

Substantive Due Process: Reproductive Autonomy

Davis v. Davis 842 S.W.2d 588 (Tenn. 1992)

In re T.W. 551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt 440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State 975 N.W.2d 710 (Iowa 2022)

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (Pa. 2024) (Wecht, concurrence)

—

Potential constitutional sources of right to reproductive autonomy

- Due process - Right to privacy - Inalienable natural rights - Equal protection / ERA - Religious liberty / freedom of conscience - Explicit provision that recognizes right to reproductive autonomy

—

Substantive Due Process: Right of Intimate Association

State v. Saunders 381 A.2d 333 (N.J. 1977)

Commonwealth v. Bonadio 415 A.2d 47 (Pa. 1980)

Commonwealth v. Wasson 842 S.W.2d 487 (Ky. 1992)

—

Substantive Due Process: Civil Union and Same-Sex Marriage

Baker v. State 744 A.2d 864 (Vt. 1999)

Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003)

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[fit] State Constitutional Law

[fit] 14 - Criminal Procedure

—

Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

State v. Koivu

272 P.3d 483 (Idaho 2012)

—

History of federal exclusionary rule

Weeks v. United States (1914) — Federal exclusionary rule.

Wolf v. Colorado (1949) — Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961) — Exclusionary rule applies to the states.

Stone v. Powell (1976) — Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984) — Good faith exception

—

Idaho Precedents

State v. Arregui (Idaho 1927)

State v. Rauch (Idaho 1978)

—

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

—

Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

What constitutes a search?

—

Contrast

State v. Earls 70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012) Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant 950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989) A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…” New Hampshire Const., Part I, Art. 19

—

Federal automobile exception If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

New Hampshire’s limited automobile exception If police have lawfully stopped a vehicle AND have probable cause to believe a plainly visible item is contraband, then the police can enter the vehicle to seize the contraband

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360 Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Oregon Const. Art 1, §9.

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[fit] State Constitutional Law

[fit] 14 - Criminal Procedure

—

Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

State v. Koivu

272 P.3d 483 (Idaho 2012)

—

History of federal exclusionary rule

Weeks v. United States (1914) — Federal exclusionary rule.

Wolf v. Colorado (1949) — Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961) — Exclusionary rule applies to the states.

Stone v. Powell (1976) — Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984) — Good faith exception

—

Idaho Precedents

State v. Arregui (Idaho 1927)

State v. Rauch (Idaho 1978)

—

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

—

Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

What constitutes a search?

—

Contrast

State v. Earls 70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012) Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant 950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989) A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…” New Hampshire Const., Part I, Art. 19

—

Federal automobile exception If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360 Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

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[fit] State Constitutional Law

[fit] 15 - Criminal Procedure

—

Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Warrant Requirement

What constitutes a search?

State v. Earls (T-mobile GPS) 70 A.3d 630 (N.J. 2013)

State v. Bryant (Helicopter over home) 950 A.2d 467 (Vt. 2008)

State v. Leonard (Motel registry) 943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…” New Hampshire Const., Part I, Art. 19

—

Federal automobile exception If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360 Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

Double Jeopardy

—

People v. Aranda

437 P.3d 845 (Cal. 2019)

Important Precedent

Stone v. Superior Court (Cal. 1982)

Blueford v. Arkansas (2012)

—

Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

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[fit] State Constitutional Law

[fit] 15 - Criminal Procedure

—

Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Warrant Requirement

What constitutes a search?

State v. Earls (T-mobile GPS) 70 A.3d 630 (N.J. 2013)

State v. Bryant (Helicopter over home) 950 A.2d 467 (Vt. 2008)

State v. Leonard (Motel registry) 943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…” New Hampshire Const., Part I, Art. 19

—

Federal automobile exception If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360 Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

Double Jeopardy

—

People v. Aranda

437 P.3d 845 (Cal. 2019)

Important Precedent

Stone v. Superior Court (Cal. 1982)

Blueford v. Arkansas (2012)

—

Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

Mon, 01 Jan 0001 00:00:00 +0000

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[fit] State Constitutional Law

[fit] 16 - Criminal Procedure

[fit] and Property Rights

—

Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

Constitutional provisions studied so far:

Equality / Equal Protection
Procedural Due Process
Substantive Due Process
Search and Seizure
Cruel and Unusual Punishment

—

Criminal Procedure Recap

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

Double Jeopardy

People v. Aranda 437 P.3d 845 (Cal. 2019)

—

Cruel and Unusual Punishment

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Property Rights

—

Texas Southern University v. Villareal

620 S.W.3d 899 (Tex. 2021)

“No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Texas Const., Art. I, § 19.

—

Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent: Kelo v. City of New London 545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.” Ohio Const., § 1, Art. 1.

“Private property shall ever be held inviolate, but subservient to the public welfare… where private property shall be taken for public use, a compensation therefor shall first be made in money… and such compensation shall be assessed by a jury… ” Ohio Const., § 19, Art. 1.

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

“Private property - Taking or damaging for private use. No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as shall be prescribed by law.” Okla. Const., Art. 2, §23.

“Private property - Public use - Character of use a judicial question." Private property shall not be taken or damaged for public use without just compensation… In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.” Okla. Const., Art. 2, §24.

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

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[fit] State Constitutional Law

[fit] 16 - Criminal Procedure

[fit] and Property Rights

—

Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

Constitutional provisions studied so far:

Equality / Equal Protection
Procedural Due Process
Substantive Due Process
Search and Seizure
Cruel and Unusual Punishment

—

Criminal Procedure Recap

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Probable Cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Good Faith Exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

Warrant Requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

Double Jeopardy

People v. Aranda 437 P.3d 845 (Cal. 2019)

—

Cruel and Unusual Punishment

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Property Rights

—

Texas Southern University v. Villareal

620 S.W.3d 899 (Tex. 2021)

—

Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent: Kelo v. City of New London 545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

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[fit] State Constitutional Law

[fit] 17 - Property Rights

—

Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent: Kelo v. City of New London 545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

Reconciling “public use” definitions

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

Kelo v. City of New London 545 U.S. 469 (2005)

—

Just Compensation

—

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al.

320 So.3d 1054 (La. 2021)

—

“In every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation.” Louisiana Const., Art. I, § 4(B)(5)

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Texas Const., Art. I, § 19

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

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theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] State Constitutional Law

[fit] 17 - Property Rights

—

Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent: Kelo v. City of New London 545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

Reconciling “public use” definitions

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

Kelo v. City of New London 545 U.S. 469 (2005)

—

Just Compensation

—

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al.

320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

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[fit] State Constitutional Law

[fit] 18 - Review & School Funding

—

Agenda

Finish property rights
Start school funding cases
Review midterm

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

—

Patel standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist. 406 U.S. 966 (1972)

—

Equality Cases

Hornbeck v. Somerset County Board of Education 458 A.2d 758 (Md. 1983)

Horton v. Meskill 376 A.2d 358 (Conn. 1977)

Vincent v. Voight 614 N.W.2d 388 (Wis. 2000)

—

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

–

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

The school fund “shall be inviolably appropriated to the support and encouragement of the public schools throughout the state, and for the equal benefit of all the people thereof.” Conn. Const, Art. 8 § 4.

—

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Mon, 01 Jan 0001 00:00:00 +0000

theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] State Constitutional Law

[fit] 18 - Review & School Funding

—

Agenda

Finish property rights
Start school funding cases
Review midterm

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

—

Patel standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist. 406 U.S. 966 (1972)

—

Equality Cases

Hornbeck v. Somerset County Board of Education 458 A.2d 758 (Md. 1983)

Horton v. Meskill 376 A.2d 358 (Conn. 1977)

Vincent v. Voight 614 N.W.2d 388 (Wis. 2000)

—

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

–

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

—

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Mon, 01 Jan 0001 00:00:00 +0000

theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] State Constitutional Law

[fit] 19 - School Funding

—

Agenda

Housekeeping
- Midterm
- Final
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
Review of property rights
School funding cases

—

Midterm and Final Exam

—

Property Rights Review

—

Takings

Two requirements for taking to be constitutional?

—

Takings

Two requirements for taking to be constitutional?

Public use
Just compensation

—

Reconciling “public use” definitions

Kelo v. City of New London 545 U.S. 469 (2005)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

—

Just Compensation

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al. 320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing 469 S.W.3d 69 (Tex. 2015)

Texas Department of State Health Services v. Crown Distributing LLC 647 S.W.3d 648 (Tex. 2022)

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Questions to guide us for school funding cases

Does the state constitution provide a fundamental right to education? Or are public education clauses only a duty imposed on the legislature?

What are the differences between equality, adequacy, and uniformity?

How should a court determine whether school funding laws are unequal, inadequate, or not uniform?

If a school funding scheme is unconstitutional, what remedies should a court impose? How should the judiciary balance power and relationships with the legislative and executive branches?

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist. 406 U.S. 966 (1972)

—

Review of Equality Cases

Hornbeck v. Somerset County Board of Education 458 A.2d 758 (Md. 1983)

Horton v. Meskill 376 A.2d 358 (Conn. 1977)

Vincent v. Voight 614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Texas Const., Article VII, § 1.

—

DeRolph v. State

677 N.E.2d 733 (Ohio 1997) 754 N.E.2d 1184 (Ohio 2001)

“The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State.” Ohio Const. Section 2, Article VI.

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

“[T]he legislature shall provide a basic system of free quality public elementary and secondary schools. It shall fund and distribute in an equitable manner to the school districts the state’s share of the cost of the basic elementary and secondary school system.” Montana Const., Art. X, § 1(3).

—

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

“[T]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” N.J. Const.

—

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

“The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Florida Const. Art. IX, § 1(a)

—

Uniformity Clauses

Bush v. Holmes 919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California 209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State 599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor 794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 176 S.W.3d 746 (Tex. 2005)

Mon, 01 Jan 0001 00:00:00 +0000

theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] State Constitutional Law

[fit] 19 - School Funding

—

Agenda

Housekeeping
- Midterm
- Final
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
Review of property rights
School funding cases

—

Midterm and Final Exam

—

Property Rights Review

—

Takings

Two requirements for taking to be constitutional?

—

Takings

Two requirements for taking to be constitutional?

Public use
Just compensation

—

Reconciling “public use” definitions

Kelo v. City of New London 545 U.S. 469 (2005)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

—

Just Compensation

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al. 320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing 469 S.W.3d 69 (Tex. 2015)

Texas Department of State Health Services v. Crown Distributing LLC 647 S.W.3d 648 (Tex. 2022)

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Questions to guide us for school funding cases

Does the state constitution provide a fundamental right to education? Or are public education clauses only a duty imposed on the legislature?

What are the differences between equality, adequacy, and uniformity?

How should a court determine whether school funding laws are unequal, inadequate, or not uniform?

If a school funding scheme is unconstitutional, what remedies should a court impose? How should the judiciary balance power and relationships with the legislative and executive branches?

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist. 406 U.S. 966 (1972)

—

Review of Equality Cases

Hornbeck v. Somerset County Board of Education 458 A.2d 758 (Md. 1983)

Horton v. Meskill 376 A.2d 358 (Conn. 1977)

Vincent v. Voight 614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

—

DeRolph v. State

677 N.E.2d 733 (Ohio 1997) 754 N.E.2d 1184 (Ohio 2001)

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

—

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

—

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes 919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California 209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State 599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor 794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 176 S.W.3d 746 (Tex. 2005)

Mon, 01 Jan 0001 00:00:00 +0000

theme: Colin Fall 2022 autoscale: true slidenumbers: true header: #373737, alignment(left), line-height(150%), text-scale(1.0), ITC Galliard Pro Bold Footer:

[fit] State Constitutional Law

[fit] 20 - Unique State Rights

—

Agenda

Housekeeping
- Final exam details
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding cases
Unique state rights

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes 919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California 209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State 599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor 794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 176 S.W.3d 746 (Tex. 2005)

—

Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

Trial court order: (1) that “every classroom be staffed with a competent, certified, well-trained teacher” (2) “that every school be led by a well-trained competent principal” (3) “that every school be provided, in the most cost effective manner, the resources necessary to support the effective instructional program within that school so that the educational needs of all children, including at-risk children, to have the equal opportunity to obtain a sound basic education, can be met.

—

Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

—

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

—

Big Picture – School Funding

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

—

York v. Wahkiakum School District No. 200

178 P.3d 995 (Wash. 2008)

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. Art. I, § 7.

Two-part analysis

Was this a disturbance of one’s private affairs?
If so, does authority of law justify the intrusion?

—

Free Speech

—

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

“Every person may freely speak, write and publish his or her statements on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const., Art. I, § 2.

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

—

Justify the difference under Fashion Valley

Protestors want to crowd out the entrance to a store, intimidating people from shopping there and costing the store $10,000 in revenue. It is constitutional for Fashion Valley to force the protestors to protest elsewhere.

Protestors want to distribute leaflets near the store, discouraging people from shopping there and costing the store $10,000 in revenue. It is unconstitutional for Fashion Valley to force the protestors to protest elsewhere.

—

State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

—

State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine 1) whether regulation protects substantial government interest and 2) whether it significantly reduces secondary effects without unduly interfering with protected speech.

—

Civil Jury Trial

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. Const. Am. 7.

—

Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

“The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.” Wash. Const., Art. I, § 21.

—

McCool v. Gehret

657 A.2d 269 (Del. 1995)

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[fit] State Constitutional Law

[fit] 20 - Unique State Rights

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Agenda

Housekeeping
- Final exam details
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding cases
Unique state rights

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes 919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California 209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State 599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor 794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 176 S.W.3d 746 (Tex. 2005)

—

Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

—

Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

—

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

—

Big Picture – School Funding

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

—

York v. Wahkiakum School District No. 200

178 P.3d 995 (Wash. 2008)

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. Art. I, § 7.

Two-part analysis

Was this a disturbance of one’s private affairs?
If so, does authority of law justify the intrusion?

—

Free Speech

—

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

—

Justify the difference under Fashion Valley

—

State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

—

State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine 1) whether regulation protects substantial government interest and 2) whether it significantly reduces secondary effects without unduly interfering with protected speech.

—

Civil Jury Trial

—

Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

—

McCool v. Gehret

657 A.2d 269 (Del. 1995)

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[fit] State Constitutional Law

[fit] 21 - Unique State Rights

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Agenda

Makeup classes reminder
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding review
Unique state rights

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School Funding Review

—

Hypothetical constitutional provision: “The Legislature of the State shall make provisions to secure a thorough, efficient, high quality system of free public schools throughout the State for the education of all children.”

Claims that plaintiffs might bring to challenge the constitutionality of a school funding scheme based on local control and property taxes:

Equal protection
Fundamental right
Legislature failing its constitutional duty

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

York v. Wahkiakum School District No. 200 178 P.3d 995 (Wash. 2008)

—

Free Speech

—

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

—

Justify the difference under Fashion Valley

—

State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

—

State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine:
1. whether regulation protects a substantial government interest, and
2. whether it significantly reduces secondary effects without unduly interfering with protected speech.

—

Civil Jury Trial

—

Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

—

McCool v. Gehret

657 A.2d 269 (Del. 1995)

—

Environmental Rights

—

Penn. Env. Def. Found. v. Commonwealth

161 A.3d 911 (Pa. 2017)

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Penn. Const. Art. I, § 27.

—

Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

A crime victim has the “right to full and timely restitution in every case and from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct.” Art. I, § 25(1)(n) North Dakota Const.

—

State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

“[I]n all criminal prosecutions, a victim shall have the right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person’s testimony would be materially affected if such person hears other testimony.” Am. XXIX(b), Conn. Const.

—

Right to Hunt and Fish

—

Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

“The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not enclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.” Ch. II, § 39, Vermont Const.

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[fit] State Constitutional Law

[fit] 21 - Unique State Rights

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Agenda

Makeup classes reminder
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding review
Unique state rights

—

School Funding Review

—

Claims that plaintiffs might bring to challenge the constitutionality of a school funding scheme based on local control and property taxes:

Equal protection
Fundamental right
Legislature failing its constitutional duty

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

York v. Wahkiakum School District No. 200 178 P.3d 995 (Wash. 2008)

—

Free Speech

—

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

—

Justify the difference under Fashion Valley

—

State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

—

State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine:
1. whether regulation protects a substantial government interest, and
2. whether it significantly reduces secondary effects without unduly interfering with protected speech.

—

Civil Jury Trial

—

Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

—

McCool v. Gehret

657 A.2d 269 (Del. 1995)

—

Environmental Rights

—

Penn. Env. Def. Found. v. Commonwealth

161 A.3d 911 (Pa. 2017)

—

Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

—

State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

—

Right to Hunt and Fish

—

Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

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[fit] State Constitutional Law

[fit] 22 - Unique State Rights

[fit] Justiciability in State Courts

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Agenda

Makeup classes options
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday, April 26th 1:10pm - 3:10pm, Courtroom of the 90s.
Unique state rights
Justiciability in state courts

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

—

State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

—

Right to Hunt and Fish

—

Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

—

Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

—

Standing

Gregory v. Shurtleff 299 P.3d 1098 (Utah 2013)

Benson v. McKee 273 A.3d 121 (R.I. )

—

Public-interest standing

Appropriate party questions:

Does party have interest necessary to assist court in reviewing legal and factual questions?
Are the issues unlikely to be raised if party is denied standing?
Is the issue better resolved by other political branches?

—

Mootness

Couey v. Atkins 355 P.3d 866 (Or. 2015)

In re Guardianship of Tschumy 853 N.W.2d 728 (Minn. 2014)

—

Political Questions

Berry v. Crawford 990 N.E.2d 410 (Ind. 2013)

In re Abbott 628 S.W.3d 288 (Tex. 2021)

Burt v. Speaker of the House of Representatives 243 A.3d 609 (N.H. 2020)

—

Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius 179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices 274 A.3d 269 (Del. 2022)

—

Questions for Delaware Supreme Court

May “reasonable cause” include an indictment?
Does the authority to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official? If so, must the General Assembly address the Governor on the lesser action?
Does the process require a hearing prior to a vote?
Does the 10-day notice requirements apply for only the first House or are separate notices required for each House? May those notices be issued concurrently?
Is there a mechanism for an appeal?

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[fit] State Constitutional Law

[fit] 23 - Review Session

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Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

—

Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius 179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices 274 A.3d 269 (Del. 2022)

—

Questions for Delaware Supreme Court

May “reasonable cause” include an indictment?
Does the authority to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official? If so, must the General Assembly address the Governor on the lesser action?
Does the process require a hearing prior to a vote?
Does the 10-day notice requirements apply for only the first House or are separate notices required for each House? May those notices be issued concurrently?
Is there a mechanism for an appeal?

—

Advisory Opinions

If you were a drafter at a state constitutional convention and you had to decide whether to allow advisory opinions, what would you choose? What are the benefits and drawbacks?

—

Constitutional Amendment

—

Two views on constitutional amendment

Jeffersonian View

Madisonian View

—

How are state constitutions amended?

Legislative proposals
Constitutional conventions
Constitutional commissions
Voter initiatives

—

California

—

Course Review

—

Final Format

In-class, open-book exam
Four hours
Four essay questions, 5,000 character limit on each
Cumulative exam, questions may address any topic from the course

—

Topics

State and Federal Power
Theories for Construing State Constitutions
Equality and Equal Protection
Procedural Due Process
Substantive Due Process
Criminal Procedure
Property Rights
School Funding
Unique State Rights
Justiciability in State Courts

—

State and Federal Power

Congress’s authority under Art I., § 8

commerce clause
spending power
tax power

Anti-commandeering principle

Federal limitations on state power

—

Theories for Construing State Constitutions

Reasons to follow the U.S. Supreme Court interpretation of federal constitution

Reasons not to follow the U.S. Supreme Court interpretation of federal constitution

Sequence of addressing state and federal constitutional claims

Primacy
Dual sovereignty
Interstitial / Secondary

—

Equality and Equal Protection

Tiers of scrutiny

Rational basis
Intermediate scrutiny
Strict scrutiny

Disparate treatment vs. disparate impact

Conceptions of equality

Equal treatment → Non-discrimination from the state
Equal opportunity → Minimum state obligation to address existing inequality
Equal outcome → State guarantee to fix existing inequality

—

Procedural Due Process

Is this a legally protected interest?

If so, what process is due?

—

Substantive Due Process

Federal Backdrop Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Substantive Due Process

Privacy

Reproductive autonomy

Intimate association

Civil union and same-sex marriage

—

Criminal Procedure

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Probable cause

People v. Griminger 524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle 515 S.W.3d 282 (Tenn. 2017)

—

Probable cause

Aguilar / Spinelli Test To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good faith exception

State v. Koivu 272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds 586 A.2d 887 (Pa. 1991)

—

Warrant requirement

State v. Earls 70 A.3d 630 (N.J. 2013)

State v. Bryant 950 A.2d 467 (Vt. 2008)

State v. Leonard 943 N.W.2d 149 (Minn. 2020)

—

Warrant requirement

What constitutes a search?

Trespass
Reasonable expectation of privacy
- Defendant had an expectation of privacy
- This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora 167 A.3d 633 (N.H. 2017)

State v. Villela 450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello 451 P.3d 939 (Or. 2019)

—

Double Jeopardy

People v. Aranda 437 P.3d 845 (Cal. 2019)

—

Cruel and Unusual Punishment

Washington v. Gregory 427 P.3d 621 (Wash. 2018)

State v. Santiago 122 A.3d 1 (Conn. 2015)

—

Property Rights

—

Takings

Kelo v. City of New London 545 U.S. 469 (2005)

City of Norwood v. Horney 853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery 136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp. 921 N.E.2d 164 (N.Y. 2009)

—

Property Rights

Takings

public use
just compensation

Other property-related rights

—

Just Compensation

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al. 320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing 469 S.W.3d 69 (Tex. 2015)

Texas Department of State Health Services v. Crown Distributing LLC 647 S.W.3d 648 (Tex. 2022)

—

School Funding

Equality
Adequacy
Justiciability / Remedies

Constitutional claims that plaintiffs might bring:

Equal protection
Fundamental right
Legislature failing its constitutional duty

—

Equality Cases

Rodriguez v. San Antonio Indep. Sch. Dist. 406 U.S. 966 (1972)

Hornbeck v. Somerset County Board of Education 458 A.2d 758 (Md. 1983)

Horton v. Meskill 376 A.2d 358 (Conn. 1977)

Vincent v. Voight 614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby 777 S.W.2d 391 (Tex. 1989)

DeRolph v. State 677 N.E.2d 733 (Ohio 1997)

DeRolph v. State 754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State 109 P.3d 257 (Mont. 2005)

Abbott v. Burke 971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed. 262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes 919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California 209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State 599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor 794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 176 S.W.3d 746 (Tex. 2005)

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

York v. Wahkiakum School District No. 200 178 P.3d 995 (Wash. 2008)

—

Free Speech

Fashion Valley Mall v. NLRB 172 P.3d 742 (Cal. 2007)

State v. Stummer 194 P.3d 1043 (Ariz. 2008)

—

Civil Jury Trial

Sofie v. Fibreboard Corp. 771 P.2d 711 (Wash. 1989)

McCool v. Gehret 657 A.2d 269 (Del. 1995)

—

Environmental Rights

Penn. Env. Def. Found. v. Commonwealth 161 A.3d 911 (Pa. 2017)

—

Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

Crime Victims’ Rights

State v. Strom 921 N.W.2d 660 (N.D. 2019)

State v. Damato-Kushel 173 A.3d 357 (Conn. 2017)

—

Right to Hunt and Fish

Cabot v. Thomas 514 A.2d 1034 (Vt. 1986)

—

Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

—

Standing

Gregory v. Shurtleff 299 P.3d 1098 (Utah 2013)

Benson v. McKee 273 A.3d 121 (R.I. )

—

Mootness

Couey v. Atkins 355 P.3d 866 (Or. 2015)

In re Guardianship of Tschumy 853 N.W.2d 728 (Minn. 2014)

—

Political Questions

Berry v. Crawford 990 N.E.2d 410 (Ind. 2013)

In re Abbott 628 S.W.3d 288 (Tex. 2021)

Burt v. Speaker of the House of Representatives 243 A.3d 609 (N.H. 2020)

—

Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius 179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices 274 A.3d 269 (Del. 2022)

—

[fit] That’s it!

—

Slides from Midterm Review for Reference

—

State and Federal Power

—

The Commerce Clause

Gonzales v. Raich 545 U.S. 1 (2005)

—

The Spending Power

NFIB v. Sebelius 567 U.S. 519 (2012)

—

Exclusive State Power

United States v. Lopez 514 U.S. 549 (1995)

—

Anti-commandeering principle

Printz v. United States 521 U.S. 898 (1997)

—

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton 514 U.S. 779 (1995)

Gregory v. Ashcroft 501 U.S. 452 (1991)

—

Theories for Construing State Constitutions

—

What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

—

Cases - Similarly Worded Provisions

Sitz v. Department of State Police 506 N.W.2d 209 (Mich. 1993)

State v. Hempele 576 A.2d 793 (N.J. 1990)

State v. Wright 961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc. 626 A.2d 537 (Penn. 1993)

—

Four-Part Test (in Pennsylvania)

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

—

Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald 675 N.W.2d 1 (Iowa 2004)

State v. Jorden 156 P.3d 893 (Wash. 2007)

State v. Mixton 478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown 930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

Ohio v. Robinette 653 N.E.2d 695 (Ohio 1995)

—

Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

—

Equality

—

Why put equality in a state constitution?

What’s the purpose?

—

Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Tiers of scrutiny

—

Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

—

Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

——

Equality: Race

Sheff v. O’Neill 678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough 70 P.3d 416 (Alaska 2003)

—

Equality: Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n 334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera 612 P.2d 526 (Haw. 1980)

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Equality: Age

Driscoll v. Corbett 69 A.3d 197 (Pa. 2013)

Arneson v. State 864 P.2d 1245 (Mont. 1993)

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Equality: Sexual Orientation

Gartner v. Iowa Dep’t of Public Health 830 N.W.2s 335 (Iowa 2013)

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Equality: Economic

AFSCME Iowa Council 61 v. State 928 N.W.2d 21 (Iowa 2019)

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Due Process

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Procedural Due Process

Substantive Due Process

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Procedural Due Process

State v. Veale 972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K. 921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

—

Substantive Due Process

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Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

What should be the role of history in our understanding of constitutional provisions? How should stare decisis factor into the analysis?

—

Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

—

Substantive Due Process: Reproductive Autonomy

Strict Scrutiny Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Rational Basis Does the law serve a “legitimate” government interest, and is there a “rational connection” between the law’s means and that interest?

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Substantive Due Process: Reproductive Autonomy

Davis v. Davis 842 S.W.2d 588 (Tenn. 1992)

In re T.W. 551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt 440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State 975 N.W.2d 710 (Iowa 2022)

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services (Pa. 2024) (Wecht, concurrence)

—

Potential constitutional sources of right to reproductive autonomy

- Due process - Right to privacy - Inalienable natural rights - Equal protection / ERA - Religious liberty / freedom of conscience - Explicit provision that recognizes right to reproductive autonomy

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Substantive Due Process: Right of Intimate Association

State v. Saunders 381 A.2d 333 (N.J. 1977)

Commonwealth v. Bonadio 415 A.2d 47 (Pa. 1980)

Commonwealth v. Wasson 842 S.W.2d 487 (Ky. 1992)

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Substantive Due Process: Civil Union and Same-Sex Marriage

Baker v. State 744 A.2d 864 (Vt. 1999)

Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003)

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[fit] State Constitutional Law

[fit] 22 - Unique State Rights

[fit] Justiciability in State Courts

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Agenda

Makeup classes options
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday, April 26th 1:10pm - 3:10pm, Courtroom of the 90s.
Unique state rights
Justiciability in state courts

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Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

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Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

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State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

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State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

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Right to Hunt and Fish

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Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

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Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

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Standing

Gregory v. Shurtleff 299 P.3d 1098 (Utah 2013)

Benson v. McKee 273 A.3d 121 (R.I. )

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Public-interest standing

Appropriate party questions:

Does party have interest necessary to assist court in reviewing legal and factual questions?
Are the issues unlikely to be raised if party is denied standing?
Is the issue better resolved by other political branches?

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Mootness

Couey v. Atkins 355 P.3d 866 (Or. 2015)

In re Guardianship of Tschumy 853 N.W.2d 728 (Minn. 2014)

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Political Questions

Berry v. Crawford 990 N.E.2d 410 (Ind. 2013)

In re Abbott 628 S.W.3d 288 (Tex. 2021)

Burt v. Speaker of the House of Representatives 243 A.3d 609 (N.H. 2020)

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Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius 179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices 274 A.3d 269 (Del. 2022)

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Questions for Delaware Supreme Court

May “reasonable cause” include an indictment?
Does the authority to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official? If so, must the General Assembly address the Governor on the lesser action?
Does the process require a hearing prior to a vote?
Does the 10-day notice requirements apply for only the first House or are separate notices required for each House? May those notices be issued concurrently?
Is there a mechanism for an appeal?

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07 - Equality

Mon, 01 Jan 0001 00:00:00 +0000

In-Class Exercise

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What does “equality” mean?

Everyone has the same opportunities and ability to do things

Everyone is treated the same.

Evening the playing field.

Fairness

Using equity to achieve equality

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How might constitutional guarantees differ?

“All people are created equal and are entitled to equal rights and opportunity under the law.” Wis. Const. art. I, § 1.

“Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Utah Const. Art. IV, § 1.

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Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

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Tiers of scrutiny

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Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

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Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

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Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

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Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

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“There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”

Conn. Const. Art VIII. § 1.

Conn. Const. Art I. § 20.

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De facto segregation

De jure segregation

—

Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

Important Precedent:

Morton v. Mancari

417 U.S. 535 (1974)

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“[A]ll persons are equal and entitled to equal rights, opportunities, and protection under the law.”

Article I, § 1, Alaska Const.

“No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin.”

Article I, § 3, Alaska Const.

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Three-step sliding scale test

Weight of the interest impaired
Importance of purpose behind government action
Means-to-end fit

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[fit] Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

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“Girls shall not compete or practice against boys in any athletic contest.”

Athletic Association by law.

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Art. I, § 28, Penn. Const.

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State v. Rivera

612 P.2d 526 (Haw. 1980)

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“Equality of rights under the law shall not be denied or abridged by the State on account of sex.”

Art. 1, § 21, Hawaii Const.

08 - Equality

Mon, 01 Jan 0001 00:00:00 +0000

Review

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Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

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Tiers of Scrutiny

- Rational basis

- Intermediate scrutiny

- Strict scrutiny

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Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera

612 P.2d 526 (Haw. 1980)

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Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

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Why put equality in a state constitution?

What’s the point?

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Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

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“Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years.”

Article V, Pennsylvania Const.

Article I, §1 Pennsylvania Const.

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Arneson v. State

864 P.2d 1245 (Mont. 1993)

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Can receive increase

IF retired AND (retiree or beneficiary) is 55 or older

IF not retired AND receiving disability or survivorship benefits

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“The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Art II. § IV Montana Const.

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Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

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“All men and women are, by nature, free and equal.”

Iowa Const. Art 1. § 1

Iowa Const. Art 1. § 6

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Three Justifications

Accuracy
Efficiency
Paternity

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AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

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“All men and women are, by nature, free and equal.”

Iowa Const. Art 1. § 1

Iowa Const. Art 1. § 6

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Justifications

Labor peace
Health and safety
Justification for 30% line: Need to draw it somewhere

09 - Due Process

Mon, 01 Jan 0001 00:00:00 +0000

Equality Review

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Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

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Federal Constitutional Backdrop

U.S. Constitution, Fourteenth Amendment.

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Tiers of Scrutiny

- Rational basis

- Intermediate scrutiny

- Strict scrutiny

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Race

Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

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Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera

612 P.2d 526 (Haw. 1980)

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Age

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

Arneson v. State

864 P.2d 1245 (Mont. 1993)

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Sexual Orientation

Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

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Economic

AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

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Procedural Due Process

If the government is going to deny someone a life, liberty, or property interest, what process is due?

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State v. Veale

972 A.2d 1009 (N.H. 2009)

Important Precedent:

Paul v. Davis

424 U.S. 693 (1976)

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Part I, Article 15, New Hampshire Const.

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Due Process Inquiry

Is this a legally protected interest?

If so, what process is due?

—

Balancing test for determining what process is due

Private interest that will be affected
Risk of erroneous deprivation and probable value of additional procedural safeguards
Government interest (including burden of additional safeguards)

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M.E.K. v. R.L.K.

921 So.2d 787 (Fla. App. 2006)

Supreme Court Precedent:

Lassiter v. Dep’t of Social Serv. of Durham County, N.C. (1981)

Florida Precedents:

O.A.H. v. R.L.A. (1998)

In the Interest of M.C. (2005)

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Substantive Due Process

—

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

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Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

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Reproductive Autonomy

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Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

Supreme Court Precedents:

Buck v. Bell (1927)

Skinner v. Oklahoma (1942)

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Art. 1, §8, Tenn. Const.

—

Art 1. §1, Tenn. Const.

—

Art 1. §2, Tenn. Const.

—

Why connect right to privacy with right to violently overthrow government?

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In re T.W.

551 So.2d 1186 (Fla. 1989)

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Art I., §23, Florida Const.

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Rule for evaluating constitutionality of government intrusion into private life.

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Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

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“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

§ 1, Kansas Bill of Rights, Kansas Const.

No State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment.

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Dissent

“Today, we hoist our sail and navigate the ship- of-state out of its firm anchorage in the harbor-of-common-good and onto the uncertain waters of the sea-of-fundamental-values.”

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Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Important Iowa Precedents:

Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Med. (PPH I) (Iowa 2015)

Planned Parenthood of the Heartland v. Reynolds (PPH II) (Iowa 2018)

Important Supreme Court Precedents:

Roe v. Wade (1973)

Planned Parenthood v. Casey (1992)

Dobbs v. Jackson Women’s Health Organization (2022) (pending at time of Iowa opinion)

10 - Due Process

Mon, 01 Jan 0001 00:00:00 +0000

Recap on Due Process

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Procedural Due Process

Substantive Due Process

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Procedural Due Process

State v. Veale

972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K.

921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

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Substantive Due Process

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

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Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

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Reproductive Autonomy

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Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

Supreme Court Precedents:

Buck v. Bell (1927)

Skinner v. Oklahoma (1942)

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Art. 1, §8, Tenn. Const.

—

Art 1. §1, Tenn. Const.

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Art 1. §2, Tenn. Const.

—

Why connect right to privacy with right to violently overthrow government?

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Abortion cases

In re T.W.

551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

New assigned reading for Thursday:

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

(Pa. 2024) (Wecht, concurrence)

Pgs. 40-71

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Right of Intimate Association

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State v. Saunders

381 A.2d 333 (N.J. 1977)

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Crime of fornication

“an act of illicit sexual intercourse by a man, married or single, with an unmarried woman”

—

Infringement on right to privacy?
If so, compelling state interest to justify infringement?

—

Compelling state interests asserted:

Preventing venereal disease
Preventing number of illegitimate children
Safeguarding marriage and public morals

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Concurrence

“The Legislature cannot infringe on the rights of individuals who in private and without affecting others adopt and live by standards which differ from those of society.”

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Commonwealth v. Bonadio

415 A.2d 47 (Pa. 1980)

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Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)

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KRS 510.100 punishes “deviate sexual intercourse with another person of the same sex” as a criminal offense, and specifies “consent of the other person shall not be a defense.”

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Civil Union and Same-Sex Marriage

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Baker v. State

744 A.2d 864 (Vt. 1999)

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The Common Benefits Clause

—

Three-part analysis

Significance of the benefits
Goverment’s goals
Classification under- or over-inclusive

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Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

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11 - Due Process

Mon, 01 Jan 0001 00:00:00 +0000

Reproductive Autonomy and Same-Sex Marriage

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Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

How should stare decisis factor into the analysis?

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Class discussion with difficult topics

You can speak from the first-person related to views and experiences.

Two requirements:

a student sharing personal views or experience will not be treated as a stand-in for all members of a group
personal experience is not a trump card

—

Class discussion with difficult topics

You are encouraged to develop and test arguments that you do not support.

Developing and thinking through an argument is not the same as endorsing that argument.

—

Class discussion with difficult topics

Reminder: let’s have the opportunity to be wrong.

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Reproductive Autonomy

—

In re T.W.

551 So.2d 1186 (Fla. 1989)

—

Art I., §23, Florida Const.

—

Rule for evaluating constitutionality of government intrusion into private life:

—

Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

—

“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

§ 1, Kansas Bill of Rights, Kansas Const.

No State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Constitution, Fourteenth Amendment.

—

Strict Scrutiny

Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Undue Burden

Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

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Dissent

“Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-common-good and onto the uncertain waters of the sea-of-fundamental-values.”

—

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Important Iowa Precedents:

Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Med. (PPH I) (Iowa 2015)

Planned Parenthood of the Heartland v. Reynolds (PPH II) (Iowa 2018)

Important Supreme Court Precedents:

Roe v. Wade (1973)

Planned Parenthood v. Casey (1992)

Dobbs v. Jackson Women’s Health Organization (2022) (pending at time of Iowa opinion)

—

“[N]o person shall be deprived of life, liberty, or property, without due process of law.”

Iowa Const., Art I, § 9

—

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

(Pa. 2024) (Wecht, concurrence)

—

Penn. Const., Art I, § 1

—

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Penn. Const., Art I, § 28

—

Penn. Const., Art I, § 3

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Class discussion

Potential constitutional sources of right to reproductive autonomy

- Due process

- Right to privacy

- Inalienable natural rights

- Equal protection / ERA

- Religious liberty / freedom of conscience

- Explicit provision that recognizes right to reproductive autonomy

Questions to guide us:

- How should we understand the differences between policy preferences and constitutional interpretation?

- How should a constitution be interpreted?

- What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

- How should stare decisis factor into the analysis?

—

Civil Union and Same-Sex Marriage

—

Baker v. State

744 A.2d 864 (Vt. 1999)

—

The Common Benefits Clause

—

Three-part analysis

Significance of the benefits
Government’s goals
Classification under- or over-inclusive

—

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

12 - Criminal Procedure

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Civil Union and Same-Sex Marriage

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Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted? What should be the role of history in our understanding of constitutional provisions?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

How should stare decisis factor into the analysis?

—

Baker v. State

744 A.2d 864 (Vt. 1999)

—

The Common Benefits Clause

—

Three-part analysis

Significance of the benefits
Government’s goals
Classification under- or over-inclusive

—

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

—

Criminal Procedure

Search and Seizure

—

Review of Crim Pro Cases

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

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Review of Crim Pro Cases

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

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What should I focus upon?

or

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

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Probable Cause

People v. Griminger

524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle

515 S.W.3d 282 (Tenn. 2017)

—

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good Faith Exception

State v. Koivu

272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

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History of federal exclusionary rule

Weeks v. United States (1914)

Federal exclusionary rule.

Wolf v. Colorado (1949)

Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961)

Exclusionary rule applies to the states.

Stone v. Powell (1976)

Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984)

Good faith exception

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Idaho Precedents

State v. Arregui

(Idaho 1927)

State v. Rauch

(Idaho 1978)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

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Warrant Requirement

State v. Earls

70 A.3d 630 (N.J. 2013)

State v. Bryant

950 A.2d 467 (Vt. 2008)

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

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What constitutes a search?

—

Contrast

State v. Earls

70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012)

Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

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Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant

950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989)

A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

13 - Midterm Review

Mon, 01 Jan 0001 00:00:00 +0000

Midterm Format

Optional four-hour, take-home, open-book exam. Will only affect your final grade in the course if your midterm grade is higher than your final exam grade.

Students can take the exam at any time during the week of March 11-15. No class on March 12.

Two parts to the exam. Character count of 10,000 characters for each part. Part 1: Short answer questions. Part 2: Essay question.

Possible topics: Everything from the semester to date, except for the criminal procedure unit we started this week.

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What topics have we covered so far?

State and Federal Power
Theories for Construing State Constitutions
Equality and Equal Protection
Procedural Due Process
Substantive Due Process

—

State and Federal Power

—

The Commerce Clause

Gonzales v. Raich

545 U.S. 1 (2005)

—

The Spending Power

NFIB v. Sebelius

567 U.S. 519 (2012)

—

Exclusive State Power

United States v. Lopez

514 U.S. 549 (1995)

—

Anti-commandeering principle

Printz v. United States

521 U.S. 898 (1997)

—

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton

514 U.S. 779 (1995)

Gregory v. Ashcroft

501 U.S. 452 (1991)

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Theories for Construing State Constitutions

—

What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

—

Cases - Similarly Worded Provisions

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

Four-Part Test (in Pennsylvania)

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

—

Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

—

Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

—

Equality

—

Why put equality in a state constitution?

What’s the purpose?

—

Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Tiers of scrutiny

—

Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

—

Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

——

Equality: Race

Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

—

Equality: Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera

612 P.2d 526 (Haw. 1980)

—

Equality: Age

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

Arneson v. State

864 P.2d 1245 (Mont. 1993)

—

Equality: Sexual Orientation

Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

—

Equality: Economic

AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

—

Due Process

—

Procedural Due Process

Substantive Due Process

—

Procedural Due Process

State v. Veale

972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K.

921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

—

Substantive Due Process

—

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

What should be the role of history in our understanding of constitutional provisions? How should stare decisis factor into the analysis?

—

Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

—

Substantive Due Process: Reproductive Autonomy

Strict Scrutiny

Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Undue Burden

Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability?”

Rational Basis

Does the law serve a “legitimate” government interest, and is there a “rational connection” between the law’s means and that interest?

—

Substantive Due Process: Reproductive Autonomy

Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

In re T.W.

551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

(Pa. 2024) (Wecht, concurrence)

—

Potential constitutional sources of right to reproductive autonomy

- Due process

- Right to privacy

- Inalienable natural rights

- Equal protection / ERA

- Religious liberty / freedom of conscience

- Explicit provision that recognizes right to reproductive autonomy

—

Substantive Due Process: Right of Intimate Association

State v. Saunders

381 A.2d 333 (N.J. 1977)

Commonwealth v. Bonadio

415 A.2d 47 (Pa. 1980)

Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)

—

Substantive Due Process: Civil Union and Same-Sex Marriage

Baker v. State

744 A.2d 864 (Vt. 1999)

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

14 - Criminal Procedure

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Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Probable Cause

People v. Griminger

524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle

515 S.W.3d 282 (Tenn. 2017)

—

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good Faith Exception

State v. Koivu

272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

State v. Koivu

272 P.3d 483 (Idaho 2012)

—

History of federal exclusionary rule

Weeks v. United States (1914) — Federal exclusionary rule.

Wolf v. Colorado (1949) — Fourth Amendment applies to states, but remedy up to states to decide.

Mapp v. Ohio (1961) — Exclusionary rule applies to the states.

Stone v. Powell (1976) — Exclusionary rule not a constitutional right but designed to deter police misconduct.

United States v. Leon (1984) — Good faith exception

—

Idaho Precedents

State v. Arregui

(Idaho 1927)

State v. Rauch

(Idaho 1978)

—

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

Pennsylvania’s Analytic Framework

For state constitutional law issues, litigants should analyze:

Text of the state constitution
History of the constitutional provision, including case law
Related case law from other states
Policy considerations

—

Warrant Requirement

State v. Earls

70 A.3d 630 (N.J. 2013)

State v. Bryant

950 A.2d 467 (Vt. 2008)

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

What constitutes a search?

—

Contrast

State v. Earls

70 A.3d 630 (N.J. 2013)

with

United States v. Jones (2012)

Police installation of a tracking device on defendant’s car constitutes a trespass, therefore a a search warrant was required.

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Contrast

State v. Bryant

950 A.2d 467 (Vt. 2008)

with

Florida v. Riley (1989)

A defendant has no reasonable expectation of privacy from a police helicopter flying above their home, therefore no search warrant is required.

—

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora

167 A.3d 633 (N.H. 2017)

State v. Villela

450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…”

New Hampshire Const., Part I, Art. 19

—

Federal automobile exception

If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

New Hampshire’s limited automobile exception

If police have lawfully stopped a vehicle AND have probable cause to believe a plainly visible item is contraband, then the police can enter the vehicle to seize the contraband

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360

Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

15 - Criminal Procedure

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Criminal Procedure Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Questions to guide us for search and seizure

What is the nature of a right “against unreasonable searches and seizures”? How should that right be protected?

If search warrants require probable cause, what is probable cause? When is a warrantless search still reasonable?

How should stare decisis factor into constitutional interpretation, particularly when federal and state precedents are intertwined?

—

Warrant Requirement

What constitutes a search?

State v. Earls (T-mobile GPS)

70 A.3d 630 (N.J. 2013)

State v. Bryant (Helicopter over home)

950 A.2d 467 (Vt. 2008)

State v. Leonard (Motel registry)

943 N.W.2d 149 (Minn. 2020)

—

Reasonable expectation of privacy

Defendant had an expectation of privacy
This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora

167 A.3d 633 (N.H. 2017)

State v. Villela

450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

State v. Cora

167 A.3d 633 (N.H. 2017)

“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions…”

New Hampshire Const., Part I, Art. 19

—

Federal automobile exception

If police have probable cause to search a lawfully stopped vehicle, the police can search every part of the vehicle without a warrant.

New Hampshire’s limited automobile exception

If police have lawfully stopped a vehicle

AND have probable cause to believe a plainly visible item is contraband, then the police can enter the vehicle to seize the contraband

—

State v. Villela

450 P.3d 170 (Wash. 2019)

—

State statute RCW 46.55.360

Police must impound a vehicle any time they arrest its driver for driving under the influence.

Art. 1 §7 Analysis

Did police action constitute a disturbance of one’s private affairs?
Did authority of law justify the intrusion?

—

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

Double Jeopardy

—

People v. Aranda

437 P.3d 845 (Cal. 2019)

Important Precedent

Stone v. Superior Court (Cal. 1982)

Blueford v. Arkansas (2012)

—

Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

16 - Criminal Procedure and Property Rights

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Cruel and Unusual Punishment

—

Death Penalty

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

“Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.” Washington Const., Art I. § 14.

—

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Connecticut framework for analysis

federal precedent
“historical insights into the intent of our constitutional forbears”
constitutional text
Connecticut precedents
precedents of other states
contemporary norms and public policy

—

What constitutional provisions could prevent a state from executing someone? From executing anyone?

Constitutional provisions studied so far:

Equality / Equal Protection
Procedural Due Process
Substantive Due Process
Search and Seizure
Cruel and Unusual Punishment

—

Criminal Procedure Recap

—

Topics

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Probable Cause

People v. Griminger

524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle

515 S.W.3d 282 (Tenn. 2017)

—

Good Faith Exception

State v. Koivu

272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

Warrant Requirement

State v. Earls

70 A.3d 630 (N.J. 2013)

State v. Bryant

950 A.2d 467 (Vt. 2008)

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

Automobile Searches

State v. Cora

167 A.3d 633 (N.H. 2017)

State v. Villela

450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

Double Jeopardy

People v. Aranda

437 P.3d 845 (Cal. 2019)

—

Cruel and Unusual Punishment

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Property Rights

—

Texas Southern University v. Villareal

620 S.W.3d 899 (Tex. 2021)

—

Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent:

Kelo v. City of New London

545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

17 - Property Rights

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Takings

“…nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V.

Important Precedent:

Kelo v. City of New London

545 U.S. 469 (2005)

—

Kelo v. City of New London

—

“Public Use” Cases

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

—

Questions to guide us for “public use” cases

What should qualify as permissible “public use”?

What are the benefits and drawbacks to stronger or weaker property rights protection against government takings?

How much should our understanding of “public use” depend on differences in the constitutional texts, history, tradition, geography, and demographics?

—

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

—

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

“[T]he legislature may provide … for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas.” New York Const., Art. XVIII, § 1.

“Private property shall not be taken for public use without just compensation.” New York Const., Art. I, § 7.

—

Reconciling “public use” definitions

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

Kelo v. City of New London

545 U.S. 469 (2005)

—

Just Compensation

—

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al.

320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

18 - Review & School Funding

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Agenda

Finish property rights
Start school funding cases
Review midterm

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

—

A mess of standards of review

real and substantial
rational basis including consideration of evidence
no-evidence rational basis

—

A new standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

Similar federal standards

Rational basis: To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

Intermediate scrutiny: To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

—

Patel standard

To find a statute unconstitutional under Art. I, § 19, plaintiffs must prove either:

the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or
when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the government interest

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist.

406 U.S. 966 (1972)

—

Equality Cases

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

–

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

—

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

DeRolph v. State

677 N.E.2d 733 (Ohio 1997)

DeRolph v. State

754 N.E.2d 1184 (Ohio 2001)

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

Differently Worded Provisions

Mon, 01 Jan 0001 00:00:00 +0000

But first, let’s finish with…

Similarly Worded Provisions

—

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

U.S. Constitution, Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Pennsylvania Constitution, Article I, §6

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.

—

Four-Part Test

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

—

Recap

—

Reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

Reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

—

Cases - Similarly Worded Provisions

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

—

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

—

U.S. Constitution, Fourteenth Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.

Iowa Constitution, Article 1, § 6

All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not apply equally to all citizens.

—

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

—

U.S. Constitution, Fourth Amendment

Washington Constitution, Article 1, § 7

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Arizona Constitution, Article 2, §8

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

—

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

—

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

519 U.S. 33 (1996)

685 N.E.2d 762 (Ohio 1997)

Important Precedent:

Michigan v. Long

463 U.S. 1032 (1982)

—

Limited Federal Powers

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Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Office hours By appointment, just email me.

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

- Federal and State power

- Equality (Race, Gender, Age, Sexual orientation, Economic)

- Voting Rights

- Due Process

- Reproductive Rights

- Privacy

- Intimate Relationships

- Marriage

- Criminal Procedure

- Property Rights

- Religion

- School Funding

- Unique states rights

- Organization of state government

- Local government

- Admin law

Introductions

State and Federal Power

United States Constitution Art. 1 § 8

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

In-Class Exercise:

Power of Legislature in State Constitutions

The Commerce Clause

Gonzales v. Raich

545 U.S. 1 (2005)

Important prior cases:

Wickard v. Filburn (1942)

United States v. Morrison (1994)

United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius

567 U.S. 519 (2012)

Important prior cases:

South Dakota v. Dole (1987)

In-Class Exercise:

Congress has passed a law banning potluck suppers that do not include corn as a dish.

Review Session

Mon, 01 Jan 0001 00:00:00 +0000

Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

—

Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius

179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices

274 A.3d 269 (Del. 2022)

—

Questions for Delaware Supreme Court

May “reasonable cause” include an indictment?
Does the authority to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official? If so, must the General Assembly address the Governor on the lesser action?
Does the process require a hearing prior to a vote?
Does the 10-day notice requirements apply for only the first House or are separate notices required for each House? May those notices be issued concurrently?
Is there a mechanism for an appeal?

—

Advisory Opinions

If you were a drafter at a state constitutional convention and you had to decide whether to allow advisory opinions, what would you choose? What are the benefits and drawbacks?

—

Constitutional Amendment

—

Two views on constitutional amendment

Jeffersonian View

Madisonian View

—

How are state constitutions amended?

Legislative proposals
Constitutional conventions
Constitutional commissions
Voter initiatives

—

California

—

Course Review

—

Final Format

In-class, open-book exam
Four hours
Four essay questions, 5,000 character limit on each
Cumulative exam, questions may address any topic from the course

—

Topics

State and Federal Power
Theories for Construing State Constitutions
Equality and Equal Protection
Procedural Due Process
Substantive Due Process
Criminal Procedure
Property Rights
School Funding
Unique State Rights
Justiciability in State Courts

—

State and Federal Power

Congress’s authority under Art I., § 8

commerce clause
spending power
tax power

Anti-commandeering principle

Federal limitations on state power

—

Theories for Construing State Constitutions

Reasons to follow the U.S. Supreme Court interpretation of federal constitution

Reasons not to follow the U.S. Supreme Court interpretation of federal constitution

Sequence of addressing state and federal constitutional claims

Primacy
Dual sovereignty
Interstitial / Secondary

—

Equality and Equal Protection

Tiers of scrutiny

Rational basis
Intermediate scrutiny
Strict scrutiny

Disparate treatment vs. disparate impact

Conceptions of equality

Equal treatment → Non-discrimination from the state
Equal opportunity → Minimum state obligation to address existing inequality
Equal outcome → State guarantee to fix existing inequality

—

Procedural Due Process

Is this a legally protected interest?

If so, what process is due?

—

Substantive Due Process

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Substantive Due Process

Privacy

Reproductive autonomy

Intimate association

Civil union and same-sex marriage

—

Criminal Procedure

Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
Double jeopardy
Cruel and unusual punishment

—

Probable cause

People v. Griminger

524 N.E.2d 409 (N.Y. 1988)

State v. Tuttle

515 S.W.3d 282 (Tenn. 2017)

—

Probable cause

Aguilar / Spinelli Test

To establish probable cause, a search warrant affidavit must demonstrate:

the basis of the informant’s knowledge, and
the credibility of the informant or the reliability of the information.

Gates Test

To determine whether an affidavit establishes probable cause, a magistrate should consider the totality of the circumstances.

—

Good faith exception

State v. Koivu

272 P.3d 483 (Idaho 2012)

Commonwealth v. Edmunds

586 A.2d 887 (Pa. 1991)

—

Warrant requirement

State v. Earls

70 A.3d 630 (N.J. 2013)

State v. Bryant

950 A.2d 467 (Vt. 2008)

State v. Leonard

943 N.W.2d 149 (Minn. 2020)

—

Warrant requirement

What constitutes a search?

Trespass
Reasonable expectation of privacy
- Defendant had an expectation of privacy
- This expectation of privacy is one that society finds reasonable

—

Automobile Searches

State v. Cora

167 A.3d 633 (N.H. 2017)

State v. Villela

450 P.3d 170 (Wash. 2019)

State v. Arreola-Botello

451 P.3d 939 (Or. 2019)

—

Double Jeopardy

People v. Aranda

437 P.3d 845 (Cal. 2019)

—

Cruel and Unusual Punishment

Washington v. Gregory

427 P.3d 621 (Wash. 2018)

State v. Santiago

122 A.3d 1 (Conn. 2015)

—

Property Rights

—

Takings

Kelo v. City of New London

545 U.S. 469 (2005)

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

—

Property Rights

Takings

public use
just compensation

Other property-related rights

—

Just Compensation

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al.

320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

—

School Funding

Equality
Adequacy
Justiciability / Remedies

Constitutional claims that plaintiffs might bring:

Equal protection
Fundamental right
Legislature failing its constitutional duty

—

Equality Cases

Rodriguez v. San Antonio Indep. Sch. Dist.

406 U.S. 966 (1972)

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

DeRolph v. State

677 N.E.2d 733 (Ohio 1997)

DeRolph v. State

754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes

919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California

209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

—

Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

—

Privacy

York v. Wahkiakum School District No. 200

178 P.3d 995 (Wash. 2008)

—

Free Speech

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

State v. Stummer

194 P.3d 1043 (Ariz. 2008)

—

Civil Jury Trial

Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

McCool v. Gehret

657 A.2d 269 (Del. 1995)

—

Environmental Rights

Penn. Env. Def. Found. v. Commonwealth

161 A.3d 911 (Pa. 2017)

—

Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

Crime Victims’ Rights

State v. Strom

921 N.W.2d 660 (N.D. 2019)

State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

—

Right to Hunt and Fish

Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

—

Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

—

Standing

Gregory v. Shurtleff

299 P.3d 1098 (Utah 2013)

Benson v. McKee

273 A.3d 121 (R.I. )

—

Mootness

Couey v. Atkins

355 P.3d 866 (Or. 2015)

In re Guardianship of Tschumy

853 N.W.2d 728 (Minn. 2014)

—

Political Questions

Berry v. Crawford

990 N.E.2d 410 (Ind. 2013)

In re Abbott

628 S.W.3d 288 (Tex. 2021)

Burt v. Speaker of the House of Representatives

243 A.3d 609 (N.H. 2020)

—

Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius

179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices

274 A.3d 269 (Del. 2022)

—

That’s it!

—

Slides from Midterm Review for Reference

—

State and Federal Power

—

The Commerce Clause

Gonzales v. Raich

545 U.S. 1 (2005)

—

The Spending Power

NFIB v. Sebelius

567 U.S. 519 (2012)

—

Exclusive State Power

United States v. Lopez

514 U.S. 549 (1995)

—

Anti-commandeering principle

Printz v. United States

521 U.S. 898 (1997)

—

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton

514 U.S. 779 (1995)

Gregory v. Ashcroft

501 U.S. 452 (1991)

—

Theories for Construing State Constitutions

—

What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

—

Cases - Similarly Worded Provisions

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

Four-Part Test (in Pennsylvania)

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

—

Cases - Differently Worded Provisions

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

—

Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

—

Equality

—

Why put equality in a state constitution?

What’s the purpose?

—

Conceptions of Equality

Equal treatment → Non-discrimination from the state

Equal opportunity → Minimum state obligation to address existing inequality

Equal outcome → State guarantee to fix existing inequality

—

Tiers of scrutiny

—

Rational basis

Applies when no suspect classification is at issue.

To survive judicial review, the law must serve a legitimate government interest and there must be a rational connection between the law’s means and that interest.

—

Intermediate scrutiny

Applies to quasi-suspect classifications such as gender.

To survive judicial review, the law must further an important government interest and must do so by means that are substantially related to that interest.

—

Strict scrutiny

Applies to suspect classifications such as race, national origin, and religion.

To survive judicial review, the law must further a compelling government interest and law must be narrowly tailored to achieve that interest.

——

Equality: Race

Sheff v. O’Neill

678 A.2d 1267 (Conn. 1996)

Malabed v. North Slope Borough

70 P.3d 416 (Alaska 2003)

—

Equality: Gender

Commonwealth v. Penn. Interscholastic Athletic Ass’n

334 A.2d 839 (Pa. Commw. Ct. 1975)

State v. Rivera

612 P.2d 526 (Haw. 1980)

—

Equality: Age

Driscoll v. Corbett

69 A.3d 197 (Pa. 2013)

Arneson v. State

864 P.2d 1245 (Mont. 1993)

—

Equality: Sexual Orientation

Gartner v. Iowa Dep’t of Public Health

830 N.W.2s 335 (Iowa 2013)

—

Equality: Economic

AFSCME Iowa Council 61 v. State

928 N.W.2d 21 (Iowa 2019)

—

Due Process

—

Procedural Due Process

Substantive Due Process

—

Procedural Due Process

State v. Veale

972 A.2d 1009 (N.H. 2009)

M.E.K. v. R.L.K.

921 So.2d 787 (Fla. App. 2006)

Procedural Due Process Inquiry

Is this a legally protected interest?
If so, what process is due?

—

Substantive Due Process

—

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

Rights specified within the bill of rights
“Fundamental” rights that are not specified within the Constitution.

Fundamental rights are only recognized if they are “deeply rooted in our history and tradition” and “essential to the nation’s concept of ordered liberty.”

—

Questions to guide us

How should we understand the differences between policy preferences and constitutional interpretation?

How should a constitution be interpreted?

What constitutional provisions are a legitimate source for a particular right? What is too much of a stretch?

What should be the role of history in our understanding of constitutional provisions? How should stare decisis factor into the analysis?

—

Right to Privacy

What is it? Do we want a constitutional right to privacy? What should the right protect?

—

Substantive Due Process: Reproductive Autonomy

Strict Scrutiny

Does the law further a “compelling governmental interest,” and is it “narrowly tailored” to achieve that interest?

Undue Burden

Does the law have the purpose or effect of imposing an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability?”

Rational Basis

Does the law serve a “legitimate” government interest, and is there a “rational connection” between the law’s means and that interest?

—

Substantive Due Process: Reproductive Autonomy

Davis v. Davis

842 S.W.2d 588 (Tenn. 1992)

In re T.W.

551 So.2d 1186 (Fla. 1989)

Hodes & Nauser, MDs, P.A. v. Schmidt

440 P.3d 461 (Kan. 2019)

Planned Parenthood of the Heartland Inc. v. Reynolds ex rel. State

975 N.W.2d 710 (Iowa 2022)

Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services

(Pa. 2024) (Wecht, concurrence)

—

Potential constitutional sources of right to reproductive autonomy

- Due process

- Right to privacy

- Inalienable natural rights

- Equal protection / ERA

- Religious liberty / freedom of conscience

- Explicit provision that recognizes right to reproductive autonomy

—

Substantive Due Process: Right of Intimate Association

State v. Saunders

381 A.2d 333 (N.J. 1977)

Commonwealth v. Bonadio

415 A.2d 47 (Pa. 1980)

Commonwealth v. Wasson

842 S.W.2d 487 (Ky. 1992)

—

Substantive Due Process: Civil Union and Same-Sex Marriage

Baker v. State

744 A.2d 864 (Vt. 1999)

Goodridge v. Department of Public Health

798 N.E.2d 941 (Mass. 2003)

School Funding

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Housekeeping
- Midterm
- Final
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
Review of property rights
School funding cases

—

Midterm and Final Exam

—

Property Rights Review

—

Takings

Two requirements for taking to be constitutional?

—

Takings

Two requirements for taking to be constitutional?

Public use
Just compensation

—

Reconciling “public use” definitions

Kelo v. City of New London

545 U.S. 469 (2005)

Goldstein v. New York State Urban Dev. Corp.

921 N.E.2d 164 (N.Y. 2009)

City of Norwood v. Horney

853 N.E.2d 1115 (Ohio 2006)

Bd. of Cty. Comm’rs of Muskogee Cty. v. Lowery

136 P.3d 639 (Okla. 2006)

—

Just Compensation

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, Et Al.

320 So.3d 1054 (La. 2021)

—

Patel v. Texas Dep’t of Licensing

469 S.W.3d 69 (Tex. 2015)

Texas Department of State Health Services v. Crown Distributing LLC

647 S.W.3d 648 (Tex. 2022)

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Questions to guide us for school funding cases

Does the state constitution provide a fundamental right to education? Or are public education clauses only a duty imposed on the legislature?

What are the differences between equality, adequacy, and uniformity?

How should a court determine whether school funding laws are unequal, inadequate, or not uniform?

If a school funding scheme is unconstitutional, what remedies should a court impose? How should the judiciary balance power and relationships with the legislative and executive branches?

—

Federal Backdrop

Rodriguez v. San Antonio Indep. Sch. Dist.

406 U.S. 966 (1972)

—

Review of Equality Cases

Hornbeck v. Somerset County Board of Education

458 A.2d 758 (Md. 1983)

Horton v. Meskill

376 A.2d 358 (Conn. 1977)

Vincent v. Voight

614 N.W.2d 388 (Wis. 2000)

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

DeRolph v. State

677 N.E.2d 733 (Ohio 1997)

DeRolph v. State

754 N.E.2d 1184 (Ohio 2001)

—

Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

—

DeRolph v. State

677 N.E.2d 733 (Ohio 1997)

754 N.E.2d 1184 (Ohio 2001)

—

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

—

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

—

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

—

Uniformity Clauses

Bush v. Holmes

919 So.2d 392 (Fla. 2006)

—

Teacher Tenure

Vergara v. California

209 Cal. Rptr. 3d 558 (2016)

—

Remedy

Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

Similarly Worded Provisions

Mon, 01 Jan 0001 00:00:00 +0000

Theories for Construing State Constitutions

04 - Similarly Worded Provisions

—

But first… a wrap-up on

Federal Limitations on State Power

Gregory v. Ashcroft

501 U.S. 452 (1991)

Age Discrimination in Employment Act (Federal Law)

—

Federal Provision

—

State Provision

—

What are some reasons to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

Uniformity
Deference
- Don’t rock the boat
- Superior knowledge? Or just better litigation? Better litigants? Better amicus briefs?
- A court that has a lot more time and hears fewer cases and only hears cases that they want to hear
- Supreme Court is probably right?
Efficiency

—

What are some reasons not to follow the U.S. Supreme Court’s interpretation of a similarly worded provision?

You want to interpret the constitutional provision according the values of the state / community you’re in
Different constitutions with different histories of adoption deserve different interpretations
Laboratories of experimentation and democracy
Local needs / conditions
- Management of rights
Disagreement with the U.S. Supreme Court
- Indeterminacy of difficult constitutional provisions

—

Today’s cases

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

—

U.S. Constitution, Fourth Amendment

Michigan Constitution, Article 1, § 11

The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

—

U.S. Supreme Court Analysis

—

State v. Hempele

576 A.2d 793 (N.J. 1990)

—

U.S. Constitution, Fourth Amendment

New Jersey Constitution, Article I, Paragraph 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

—

State v. Wright

961 N.W.2d 396 (Iowa 2021)

—

U.S. Constitution, Fourth Amendment

Iowa Constitution, Article I, § 8

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.

—

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

U.S. Constitution, Sixth Amendment

Pennsylvania Constitution, Article I, §6

—

Four-Part Test

text of the Pennsylvania Constitutional provision;
history of the provision, including Pennsylvania case law;
related case law from other states;
policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

State and Federal Power

Mon, 01 Jan 0001 00:00:00 +0000

Recap

The Commerce Clause

Gonzales v. Raich

545 U.S. 1 (2005)

The Spending Power

NFIB v. Sebelius

567 U.S. 519 (2012)

Exclusive State Powers

Exclusive State Power

United States v. Lopez

514 U.S. 549 (1995)

Return to In-Class Exercise: Potluck Suppers

Congress has passed a law banning potluck suppers that do not include corn as a dish.

The case makes its way to the U.S. Supreme Court. You are Supreme Court justices. How would you rule?

Anti-commandeering principle

Printz v. United States

521 U.S. 898 (1997)

Other important cases:

New York v. United States (1992)

Murphy v. NCAA (2018)

In-Class Exercise: Background checks

Brainstorm some options. The more constitutionally valid legislative options, the better.

Federal Limitations on State Power

Excerpt from Article VI:

Federal Limitations on State Power

U.S. Term Limits Inc. v. Thornton

514 U.S. 779 (1995)

Article I. §2 cl. 2 of U.S. Constitution

Article I. §3 cl. 3 of U.S. Constitution

Amendment 73 to Arkansas State Constitution

10th Amendment U.S. Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Federal Limitations on State Power

Gregory v. Ashcroft

501 U.S. 452 (1991)

Age Discrimination in Employment Act (Federal Law)

State court rulings that address both federal and state bases for decision

Mon, 01 Jan 0001 00:00:00 +0000

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

—

State court rulings that address both federal and state bases for decision

—

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

519 U.S. 33 (1996)

685 N.E.2d 762 (Ohio 1997)

Important Precedent:

Michigan v. Long

463 U.S. 1032 (1982)

—

Compare & Contrast

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

Ohio v. Robinette

685 N.E.2d 762 (Ohio 1997)

—

Sequencing

In what order should a state court resolve state and federal constitutional claims?

“Primacy” approach
“Dual sovereignty” approach
“Interstitial” or “Secondary” approach

—

Recap of state court interpretation

of state constitutions

—

Sitz v. Department of State Police

506 N.W.2d 209 (Mich. 1993)

State v. Hempele

576 A.2d 793 (N.J. 1990)

State v. Wright

961 N.W.2d 396 (Iowa 2021)

Blum v. Merrell Dow Pharmaceuticals Inc.

626 A.2d 537 (Penn. 1993)

—

Racing Association of Central Iowa v. Fitzgerald

675 N.W.2d 1 (Iowa 2004)

State v. Jorden

156 P.3d 893 (Wash. 2007)

State v. Mixton

478 P.3d 1227 (Ariz. 2021)

—

State v. Scottize Danyelle Brown

930 N.W.2d 840 (Iowa 2019)

Ohio v. Robinette

653 N.E.2d 695 (Ohio 1995)

519 U.S. 33 (1996)

685 N.E.2d 762 (Ohio 1997)

—

In-Class Exercise

Unique State Rights

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Housekeeping
- Final exam details
Makeup classes
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding cases
Unique state rights

—

School Funding

Equality
Adequacy
Justiciability / Remedies

—

Adequacy Cases

Edgewood Independent School Dist. v. Kirby

777 S.W.2d 391 (Tex. 1989)

DeRolph v. State

677 N.E.2d 733 (Ohio 1997)

DeRolph v. State

754 N.E.2d 1184 (Ohio 2001)

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Adequacy Cases

Columbia Falls Elementary Sch. Dist. No. 6 v. State

109 P.3d 257 (Mont. 2005)

Abbott v. Burke

971 A.2d 989 (N.J. 2009)

Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

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Citizens for Strong Schools Inc. v. Florida State Board of Ed.

262 So.3d 127 (Fla. 2019)

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Uniformity Clauses

Bush v. Holmes

919 So.2d 392 (Fla. 2006)

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Teacher Tenure

Vergara v. California

209 Cal. Rptr. 3d 558 (2016)

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Remedy

Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

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Hoke County Board of Ed. v. State

599 S.E.2d 365 (N.C. 2004)

Trial court order:

(1) that “every classroom be staffed with a competent, certified, well-trained teacher” (2) “that every school be led by a well-trained competent principal” (3) “that every school be provided, in the most cost effective manner, the resources necessary to support the effective instructional program within that school so that the educational needs of all children, including at-risk children, to have the equal opportunity to obtain a sound basic education, can be met.

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Claremont School District v. Governor

794 A.2d 744 (N.H. 2002)

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Neeley v. West Orange-Cove Consol. Indep. Sch. Dist.

176 S.W.3d 746 (Tex. 2005)

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Big Picture – School Funding

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Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

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Privacy

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York v. Wahkiakum School District No. 200

178 P.3d 995 (Wash. 2008)

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. Art. I, § 7.

Two-part analysis

Was this a disturbance of one’s private affairs?
If so, does authority of law justify the intrusion?

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Free Speech

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Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

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Justify the difference under Fashion Valley

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State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

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State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine 1) whether regulation protects substantial government interest and 2) whether it significantly reduces secondary effects without unduly interfering with protected speech.

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Civil Jury Trial

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Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

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McCool v. Gehret

657 A.2d 269 (Del. 1995)

Unique State Rights

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Makeup classes reminder
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday April 26th 1:10pm until 3:10pm, Courtroom of the 90s.
School funding review
Unique state rights

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School Funding Review

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Hypothetical constitutional provision:

“The Legislature of the State shall make provisions to secure a thorough, efficient, high quality system of free public schools throughout the State for the education of all children.”

Claims that plaintiffs might bring to challenge the constitutionality of a school funding scheme based on local control and property taxes:

Equal protection
Fundamental right
Legislature failing its constitutional duty

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Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

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Privacy

York v. Wahkiakum School District No. 200

178 P.3d 995 (Wash. 2008)

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Free Speech

—

Fashion Valley Mall v. NLRB

172 P.3d 742 (Cal. 2007)

Compare with, “Congress shall make no law … abridging the freedom of speech, or of the press…” U.S. Const. Am. 1.

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Justify the difference under Fashion Valley

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State v. Stummer

194 P.3d 1043 (Ariz. 2008)

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Ariz. Const. Art. II, § 6.

—

State v. Stummer test for constitutionality of content-based secondary effects regulation

To qualify for intermediate scrutiny, State must demonstrate regulation directed at secondary effects, not speech suppression.
To survive intermediate scrutiny, State must show regulation does not sweep too broadly. Court must examine:
1. whether regulation protects a substantial government interest, and
2. whether it significantly reduces secondary effects without unduly interfering with protected speech.

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Civil Jury Trial

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Sofie v. Fibreboard Corp.

771 P.2d 711 (Wash. 1989)

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McCool v. Gehret

657 A.2d 269 (Del. 1995)

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Environmental Rights

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Penn. Env. Def. Found. v. Commonwealth

161 A.3d 911 (Pa. 2017)

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Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

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State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

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State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

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Right to Hunt and Fish

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Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

Unique State Rights & Justiciability in State Courts

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Makeup classes options
- Thursday, April 25th 1:10pm - 3:10pm, Courtroom of the 90s.
- Friday, April 26th 1:10pm - 3:10pm, Courtroom of the 90s.
Unique state rights
Justiciability in state courts

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Unique State Rights

Privacy
Free speech
Civil jury trial
Environmental rights
Crime victims’ rights
Right to hunt and fish

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Crime Victims’ Rights

Common goals:

restitution for victims
ensure legal system is sensitive to victim’s distress and privacy
protect victims from intimidation
encourage and include victims’ participation in prosecution

—

State v. Strom

921 N.W.2d 660 (N.D. 2019)

“[T]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay…” Section 12.1-32-08(1), N.D.C.C.

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State v. Damato-Kushel

173 A.3d 357 (Conn. 2017)

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Right to Hunt and Fish

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Cabot v. Thomas

514 A.2d 1034 (Vt. 1986)

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Justiciability in State Courts

Standing
Mootness
Political Questions
Advisory Opinions

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Standing

Gregory v. Shurtleff

299 P.3d 1098 (Utah 2013)

Benson v. McKee

273 A.3d 121 (R.I. )

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Public-interest standing

Appropriate party questions:

Does party have interest necessary to assist court in reviewing legal and factual questions?
Are the issues unlikely to be raised if party is denied standing?
Is the issue better resolved by other political branches?

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Mootness

Couey v. Atkins

355 P.3d 866 (Or. 2015)

In re Guardianship of Tschumy

853 N.W.2d 728 (Minn. 2014)

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Political Questions

Berry v. Crawford

990 N.E.2d 410 (Ind. 2013)

In re Abbott

628 S.W.3d 288 (Tex. 2021)

Burt v. Speaker of the House of Representatives

243 A.3d 609 (N.H. 2020)

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Advisory Opinions

State of Kansas ex rel. Morrison v. Sebelius

179 P.3d 366 (Kan. 2008)

Request for an Opinion of the Justices

274 A.3d 269 (Del. 2022)

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Questions for Delaware Supreme Court

May “reasonable cause” include an indictment?
Does the authority to remove a public official implicitly include the authority to take a lesser action, such as suspension of that public official? If so, must the General Assembly address the Governor on the lesser action?
Does the process require a hearing prior to a vote?
Does the 10-day notice requirements apply for only the first House or are separate notices required for each House? May those notices be issued concurrently?
Is there a mechanism for an appeal?

Welcome to State Constitutional Law!

Mon, 01 Jan 0001 00:00:00 +0000

Syllabus highlights

Logistics

Contact information Colin.Doyle@lls.edu Office: Burns 315 Telephone: 213-736-1148

Class schedule Tuesdays & Thursdays from 1:10pm to 3:10pm
AC-202 (Courtroom of the ’90s)

Open office hours Tentative Schedule: Fridays from 11:00am to 12:00pm
Outside the Robinson Moot Courtroom

Reading Assignments

Class Policies

Attendance

Preparation and participation

Recordings & Slides

Video

Audio with transcripts

Slides

Classroom Norms

Professionalism

Generosity

We can give each other the opportunity to be wrong.

We can disagree with ideas, not with people.

Accommodations

Student Accessibility Services in the Office of Student Affairs

I want this class to be accessible for you.

Exams and Grading

Midterm Exam: 25%

Final Exam: 75%

Questions about the syllabus

Introductions

State Constitutional Law

Why take state constitutional law?

Topics for State Constitutional Law

- Federal and State power

- Equality (Race, Gender, Age, Sexual orientation, Economic)

- Voting Rights

- Due Process

- Reproductive Rights

- Privacy

- Intimate Relationships

- Marriage

- Criminal Procedure

- Property Rights

- Religion

- School Funding

- Unique states rights

- Organization of state government

- Local government

- Admin law

State and Federal Power

United States Constitution Art. 1 § 8

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The Commerce Clause

Gonzales v. Raich

545 U.S. 1 (2005)

Important prior cases:

Wickard v. Filburn (1942)

United States v. Morrison (1994)

United States v. Lopez (1995)

The Spending Power

NFIB v. Sebelius

567 U.S. 519 (2012)

Important prior cases:

South Dakota v. Dole (1987)