Current Issue

Volume 74 | Summer 2022 | Issue 4


ARTICLES


Introduction

Robert F. Williams

This is the thirty-second Annual State Constitutional Law Lecture and the second since it was named for me. Unfortunately, last year we had to postpone the lecture and Christine Durham was kind enough to delay it until this year. She is the former Chief Justice of Utah, and one of the judges who was among the earliest to take serious account of state constitutional law. In addition to serving first as a trial judge and then for thirty years on the Utah Supreme Court, ten as Chief Justice, she has also contributed academically to the field. She gave her lecture this year, printed here as the Foreword to our Annual Issue. It draws directly from her experience as first a Justice (the first woman), and then Chief Justice, of the Utah Supreme Court. She analyzes the very important, but somewhat lower-visibility nonadjudicatory functions of state high courts. This is one of the many characteristics of state supreme courts that differentiates them from the United States Supreme Court. 

Foreword

The Honorable Christine Durham

Forty years ago, Professor Robert Williams, for whom this lecture series is named, wrote: “A major focus of the study of state constitutional law . . . should be on the nonadjudicatory functions of state supreme courts.” He mentioned specifically the responsibility for rules of practice and procedure, the regulation of the practice of law, inherent powers, and advisory opinions, authorized or required by a number of state constitutions. It is a now-familiar phenomenon to see state courts exercising extensive powers with respect to numerous public policy concerns, relying either on inherent powers, supervisory powers, or administrative powers. Given the history of state courts, the language of state constitutions, and the regular engagement that state courts have with the legislative and executive branches, it is perhaps not surprising that within the culture of state courts, and state supreme courts, there is some degree of comfort with policy making.

Does the New Judicial Federalism Have a Future?

G. Alan Tarr

In the 2019 annual Robert F. Williams State Constitutional Law Lecture, which was also his valedictory address, Professor Robert Williams reviewed the progress of the New Judicial Federalism. This reliance by state judges on their state constitutions to provide greater protections for rights than were available under current interpretations of the Federal Constitution by the U.S. Supreme Court was, he observed, “[t]he signature development in state constitutional law over the past several generations.” While acknowledging that the New Judicial Federalism is no longer new, he denied that it is of merely historical interest. Rather, “[s]tate [c]onstitutional [l]aw [i]s [h]ere [t]o [s]tay,” even if the focus of litigation may shift over time, and even if other actors—governors, state legislatures, and the state populace itself through constitutional amendments—may now play an increasing role in shaping state constitutional law.

Recent commentators have offered widely divergent assessments as to the continuing significance of the New Judicial Federalism and of state constitutional law more generally. Erwin Chemerinsky has emphasized the limited reach of state constitutional rulings, terming state constitutional law “a necessary, but inadequate second best to advancing individual liberties when that cannot be accomplished under the United States Constitution.” Neal Devins has suggested that the polarization of American politics has circumscribed the opportunities for judges to intervene in support of rights claims and indeed has affected their willingness to do so, while simultaneously limiting the durability of the constitutional rulings they announce. On the other hand, Judge Jeffrey Sutton has celebrated the continuing importance of state constitutional law in the American federal system, and Robinson Woodward-Burns has argued that state constitutions continue to complement the U.S. Constitution, providing a dynamism lacking in the Federal Constitution. My essay seeks to contribute to this discussion by assessing the prospects for a reinvigorated New Judicial Federalism.

Reasoning v. Rhetoric: The Strange Case of “Unconstitutional Beyond a Reasonable Doubt”

Hugh Spitzer

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” which was famously promoted by Harvard professor James Bradley Thayer in 1893. The formulation never gained much traction at the United States Supreme Court, but its use spread widely at the state level. This analysis focuses on that state court usage, concentrating on the past twenty years. The article presents empirical data on the application of “unconstitutional beyond a reasonable doubt” in state supreme court decisions starting in 2000, observing that while its use is geographically random, it is applied mostly in civil cases and overwhelmingly in opinions upholding statutes. It shows how some state courts have picked up the formulation and then abandoned it, while in other jurisdictions it was absent and then suddenly appeared. Few state court decisions have consciously analyzed whether Thayer’s concept makes sense. But the concept continues to be used as a rhetorical device to communicate with coordinate branches of government and to provide institutional cover when an appellate court resolves a controversial case. What “unconstitutional beyond a reasonable doubt” does not do is serve as a working doctrine or presumption. This article concludes—as others have concluded—that the idea should be eliminated from judicial discourse because it does not help judges decide cases. It can mislead both lawyers and the public or appear disingenuous and reduce respect for the judiciary. Consequently, courts would do well to say what they mean and drop any pretense that “unconstitutional beyond a reasonable doubt” is a real standard

Crowdsourced State Constitutional Revisions Can Revive Our Democracy

Kevin Frazier

There is a consensus of opinion that something is wrong in this Commonwealth; that the many of the people are not prosperous, that the many of the people are not enjoying their lives and have not the liberties as it was intended. If you say that this Constitution was intended to enable them to enjoy life, then you admit that the several departments have not accomplished it. It necessarily must follow that you have got to change in some way some form of this government in order to change these conditions.

The same concern that animated delegates such as Gerry Brown, a delegate to the 1917 Massachusetts Constitutional Convention, and delegates to later Progressive Era state constitutional conventions exists today, if not to an even larger extent. Just as that generation of constitution-makers speculated “that contemporary institutions were ill-suited to meet the current problems of governance,” many today doubt that our democratic institutions are up for the tasks at hand. Back then, constitutional conventions helped “reconstitute[] republican institutions on an appropriate foundation.” Today, no such foundational reforms are on the table. It is time to launch a new generation of constitution-makers.

Modern democracies have been tested by a slew of wicked problems. Among other issues, climate change, disinformation, and globalization have sparked a wave of constitutional revisions around the world. States in the United States have missed that wave. No state has held a state constitutional convention since New Hampshire in 1984. It has been even longer since voters approved the recommendations of a state constitutional convention—last occurring in Louisiana in 1974. Efforts to serially amend horse-and-buggy era documents by affixing tailpipes, a GPS, and other modern creations to these outdated legal vehicles have only rendered state constitutions more convoluted, rather than more responsive to modern problems.

STUDENT COMMENTS


Christopher M. Terlingo

In State v. Leonard, the Supreme Court of Minnesota reversed a decision of the Minnesota Court of Appeals affirming the district court conviction of John Thomas Leonard for check forgery. Leonard challenged his conviction by arguing that the evidence of check forgery found in his hotel room should have been suppressed because it was the product of an unlawful search. The Supreme Court of Minnesota held that law enforcement’s examination of the guest registry at the hotel Leonard was patronizing at the time of his arrest was a “search” within the meaning of article I, section 10 of the Minnesota Constitution. This is so because the inclusion of a hotel patron’s name on a guest registry creates an expectation of privacy in their “sensitive location information” that Minnesota is prepared to recognize as reasonable. Accordingly, in order to conduct a search of the sensitive location information contained in a hotel guest registry, law enforcement in Minnesota must have at least “reasonable, articulable suspicion” of wrongdoing. In so holding, the Supreme Court of Minnesota reaffirmed its commitment to the proposition that article I, section 10 of the Minnesota Constitution provides to its citizens greater protection against suspicionless searches than does the Fourth Amendment of the United States Constitution.

Medicaid and the Fundamental Right to Reproductive Choice: Alaska Supreme Court Holds Restrictions on Medicaid Funding for Abortions Unconstitutional

State v. Planned Parenthood of the Great Nw., 436 P.3d 984 (Alaska 2019).

Grace Baccare

On June 24, 2022, the United States Supreme Court overturned long-standing precedent establishing a federal constitutional right to reproductive choice, giving the decision of whether to protect such a right entirely to the states and leaving the country’s abortion rights landscape in flux. As a result, state constitutional interpretations of the right to reproductive choice are exceedingly significant in determining abortion rights throughout the country. Even prior to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, state governments consistently attempted to burden the right to reproductive choice in a variety of ways, and state courts were frequently called upon to determine whether such attempts were valid under state constitutional laws. Such was the case in State v. Planned Parenthood of the Great Northwest.

In State v. Planned Parenthood of the Great Northwest, the Supreme Court of Alaska considered whether a statute and regulation that restricted Medicaid funding for abortions violated Alaska’s equal protection clause. This Comment will first discuss the factual and procedural history of this case, including a brief look at the history of the right to reproductive choice in the United States and how it relates to Medicaid funding. Then, this Comment will address the court’s extensive examination of both the statute and regulation and the court’s three-part equal protection analysis of the statute’s and regulation’s constitutionality under Alaska’s equal protection clause. Last, this Comment will conclude not only that the court came to the correct decision in holding both the statute and regulation unconstitutional, but also that this case serves as an example to other states of the proper basis for the equitable and constitutional Medicaid funding of abortions.

Transversing the Intersection of Preventing Mass Gun Violence and Preserving the Right to Bear Arms: Colorado Supreme Court Upholds State Ban on Large-Capacity Magazines

Rocky Mountain Gun Owners v. Polis, 467 P.3d 314 (Colo. 2020).

Corey Williams

In 2020, the Colorado Supreme Court settled a controversial state issue that had been circling the courts for seven years: whether the Colorado legislature’s ban on the possession and manufacturing of large capacity magazines was constitutional under Colorado’s constitution. The unanimous decision of Rocky Mountain Gun Owners v. Polis upheld Colorado House Bill 13-1224, which was passed in 2013, holding that the bill’s limit of magazine capacity to no more than fifteen rounds did not violate Colorado’s state provision of the right to bear arms in defense of home, person, or property. The court, following its precedent in Robertson v. City of Denver, used a reasonable exercise test to conclude that this legislation was an appropriate use of the State’s police power, and that the bill had a legitimate government interest in promoting the public health, safety, and welfare. The court further rejected the petitioners’ claim that the language of the bill would effectually outlaw the vast majority of magazines owned by Colorado gun owners.

Fundamental Constitutional Right Prevails—The Supreme Judicial Court of Massachusetts Declares Minimum Signature Requirements Unconstitutional in Light of the Covid-19 Pandemic

Goldstein v. Secretary of the Commonwealth, 142 N.E.3d 560 (Mass. 2020).

Samuel Amon

In Goldstein v. Secretary of the Commonwealth, the Supreme Judicial Court of Massachusetts considered whether the minimum signature requirements that candidates for public office must meet in order to be listed on the primary election ballot were unconstitutional in light of the circumstances created by the COVID-19 pandemic. The Massachusetts Constitution, in contrast to the United States Constitution, explicitly enumerates the right to seek elected office as a fundamental right. The three plaintiffs brought an emergency petition seeking a declaration that the minimum signature requirements, in light of the circumstances, posed an “unconstitutionally severe burden on the fundamental rights” of Massachusetts citizens seeking to appear on the ballot. This Comment first examines the factual background that led to the Supreme Judicial Court of Massachusetts ultimately declaring the minimum signature requirements to be unconstitutional as applied to the plaintiffs and similarly situated candidates. Next, this Comment discusses the majority’s analysis and the specific concerns of the concurrence. Lastly, this Comment argues that the majority made the correct decision to protect the fundamental constitutional right of the plaintiffs by granting equitable relief, but that the concurrence’s concerns are distressing and raise significant questions for Massachusetts election officials.

Constitutionally Imposed Debt Limitations: Responding to the Financial Exigency Caused by Covid-19

New Jersey Republican State Committee v. Murphy, 243 N.J. 574 (2020).

William Rossi

While constitutionally imposed debt limits may not present a prima facie sexy topic of inquiry, this topic’s importance in the context of the COVID-19 pandemic cannot be overstated. In New Jersey Republican State Committee v. Murphy, the Supreme Court of New Jersey was asked to decide whether the New Jersey COVID-19 Emergency Bond Act (“Bond Act”) represents a borrowing arrangement in violation of the state’s constitution. Chief Justice Rabner, writing for a unanimous court, opined that the Bond Act complies with the state constitution, especially in light of the economic emergency caused by the COVID-19 pandemic. This Comment will analyze the historical background of the aforementioned constitutional challenge, specifically as it pertains to the appropriations clause and debt limitation clause of the New Jersey Constitution. Further, this Comment will identify why the court’s analysis was a sound one, and why the “emergency exception” to the debt limitation clause is entirely applicable in light of the extreme circumstances presented by the COVID-19 pandemic.

The California Supreme Court Upholds Pension Reform But Avoids Confronting the “California Rule”

Cal Fire Local 2881 v. California Public Employees’ Retirement System, 435 P.3d 433 (Cal. 2019).

Sydney Nelson

In Cal Fire Local 2881 v. California Public Employees’ Retirement System, the Supreme Court of California considered the constitutionality of a change effected by the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”). Among other changes, the change at issue was the elimination of the opportunity for public employees to purchase additional retirement service credit (“ARS”). Public employees accrue service credit while working as a California Public Employees Retirement System (“CalPERS”) employee. The more service credit a public employee has, the higher the retirement benefits. Before PEPRA, public employees had the opportunity to purchase up to five years of ARS credit. If taken advantage of, this would increase the public employees’ pension benefits without having served those years.

If the opportunity to purchase ARS credit was a vested right that public employees were entitled to, getting rid of that opportunity would be a breach of contract and, thus, invalid. In that scenario, public employees would have constitutional protection. However, the Supreme Court of California decided that the opportunity to purchase ARS credit was not a vested right public employees were entitled to, and therefore, PEPRA did not violate California’s contract clause. Furthermore, the court reasoned that the legislature gave no indication that it intended for an employee’s opportunity to purchase ARS credit to create contractual rights when it enacted PEPRA. This Comment will analyze that decision.