Review Session
Justiciability in State Courts
- Standing
- Mootness
- Political Questions
- Advisory Opinions
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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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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?
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Constitutional Amendment
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Two views on constitutional amendment
Jeffersonian View
Madisonian View
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How are state constitutions amended?
- Legislative proposals
- Constitutional conventions
- Constitutional commissions
- Voter initiatives
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California
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Course Review
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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
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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
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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
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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
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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
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Procedural Due Process
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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Substantive Due Process
Privacy
Reproductive autonomy
Intimate association
Civil union and same-sex marriage
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Criminal Procedure
- Search and seizure
- Probable cause
- Good faith exception
- Warrant requirement
- Automobile searches
- Double jeopardy
- Cruel and unusual punishment
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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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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.
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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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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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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
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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)
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Double Jeopardy
People v. Aranda
437 P.3d 845 (Cal. 2019)
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Cruel and Unusual Punishment
Washington v. Gregory
427 P.3d 621 (Wash. 2018)
State v. Santiago
122 A.3d 1 (Conn. 2015)
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Property Rights
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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)
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Property Rights
Takings
- public use
- just compensation
Other property-related rights
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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)
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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)
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School Funding
- Equality
- Adequacy
- Justiciability / Remedies
Constitutional claims that plaintiffs might bring:
- Equal protection
- Fundamental right
- Legislature failing its constitutional duty
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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)
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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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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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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)
State v. Stummer
194 P.3d 1043 (Ariz. 2008)
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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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Environmental Rights
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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Crime Victims’ Rights
State v. Strom
921 N.W.2d 660 (N.D. 2019)
State v. Damato-Kushel
173 A.3d 357 (Conn. 2017)
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Right to Hunt and Fish
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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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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That’s it!
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Slides from Midterm Review for Reference
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State and Federal Power
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The Commerce Clause
Gonzales v. Raich
545 U.S. 1 (2005)
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The Spending Power
NFIB v. Sebelius
567 U.S. 519 (2012)
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Exclusive State Power
United States v. Lopez
514 U.S. 549 (1995)
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Anti-commandeering principle
Printz v. United States
521 U.S. 898 (1997)
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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
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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?
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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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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.
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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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State court rulings that address both federal and state bases for decision
Ohio v. Robinette
653 N.E.2d 695 (Ohio 1995)
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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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Equality
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Why put equality in a state constitution?
What’s the purpose?
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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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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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Equality: 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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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?
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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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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?
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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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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?
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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)
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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)