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] 23 - Review Session

—

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

1. May “reasonable cause” include an indictment?
2. 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?
3. Does the process require a hearing prior to a vote?
4. 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?
5. 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

1. Rights specified within the bill of rights
2. “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:

1. the basis of the informant’s knowledge, and
2. 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)

—

Other Property-Related Rights

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)

1. text of the Pennsylvania Constitutional provision;
2. history of the provision, including Pennsylvania case law;
3. related case law from other states;
4. 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?

1. “Primacy” approach
2. “Dual sovereignty” approach
3. “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

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

—

Substantive Due Process

—

Federal Backdrop

Due Process Clause of the Fourteenth Amendment protects

1. Rights specified within the bill of rights
2. “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)