Volume 70, Issue 4


Volume 70, Issue 4

Introduction and Foreword


Robert F. Williams*

This is our Twenty-Ninth Annual Issue on State Constitutional Law. We believe we have, again, added to the knowledge about, and understanding of, American State Constitutions, as well subnational constitutions in other federal countries.2 This year’s invited Foreword is by Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit. Judge Sutton, despite sitting as a federal judge, has taught state constitutional law at Ohio State University College of Law for many years, and has written widely about this topic. He is even the coauthor of a law school casebook on state  Constitutional law. Judge Sutton’s Foreword builds on a chapter in his new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, concerning the federal and state constitutional responses to the eugenics movement. His Foreword and the new book both provide a unique perspective on the importance of state constitutions in comparison to the Federal Constitution in dealing with such issues. Importantly, the New Jersey judiciary provided early resistance to this pernicious movement.


Foreword: The Enduring Salience of State Constitutional Law

Jeffrey S. Sutton

Thank you for inviting me to talk about State Constitutional Law and my new book: 51 Imperfect Solutions: States and the Making of American Constitutional Law.



Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania

John C. Dernbach

In 2013, in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s Act 13—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. A plurality of the court based its decision on the text of article I, section 27 of the Pennsylvania Constitution, the state’s “Environmental Rights Amendment,” a then-near-dormant provision that had never been used, even by a plurality, to justify holding a statute unconstitutional.


Baby Ninth Amendments Since 1860: The Unenumerated Rights Americans Repeatedly Want (and Judges Often Don’t)

Anthony B. Sanders

Americans have deliberately chosen to explicitly protect
unenumerated rights dozens of times. On sixty-six occasions,
groups of Americans charged with crafting a fundamental law
for their state have written and adopted a state constitution that
includes a “Baby Ninth Amendment.” These provisions, modeled
after the Ninth Amendment itself, can only be understood to
protect individual rights. Today they are a part of thirty-three
state constitutions. They demonstrate that unenumerated rights
are not just constitutional. They are popular.


State Constitutional Protection of Civil Litigation

Robert F. Williams

“Although the term ‘American Constitution’ is often used synonymously with ‘Constitution of the United States,’ the operational American constitution consists of the federal Constitution and the 50 state constitutions. Together, these 51 documents comprise a complex system of constitutional rule for a republic of republics.”


State Court Protection of Individual Constitutional Rights: State Constitutional Structures Affect Access to Civil Justice

Justin R. Long

When we think about state constitutions (as rarely as that might be for most lawyers) and how they differ from the Federal Constitution, most likely we consider how individual rights under state constitutions can be protected above the federal floor. Typically, these questions arise in the areas of criminal law and criminal procedure. For example, what can be regulated as obscenity under the Federal First Amendment is protected under the Constitution of New York, and what is a permissible police search under the Federal Fourth Amendment violates the Washington Constitution.


Comments on Robert Williams’s State Constitutional Protection of Civil Litigation

Hon. Davis Schuman

Professor Robert “Bob” Williams has long been the godfather of state constitutional law scholarship, and his paper demonstrates why. I would like to expand on one aspect of state constitutional law that Professor Williams mentions and that, in fact, was one of the underimplemented contributions by another godfather in the field, Hans Linde. While Justice Brennan’s 1977 Harvard Law Review article State Constitutions and the Protection of Individual Rights brought the topic into the national conversation, that article appeared seven years after then-Professor Linde of the University of Oregon explained and advocated state constitutional primacy in an Oregon Law Review article—an article that Justice Brennan himself acknowledged as a source and inspiration. More significantly, after Professor Linde became
Oregon Supreme Court Justice Linde, he was the first to demonstrate that the theory of state constitutional primacy with respect to individual rights could be translated into a robust body of case law differing from analogous United States Constitutional law in kind and not merely in degree.


State Structuralism—A Reply to Professor Long

Jonathan L. Marshfield

In State Constitutional Structures Affect Access to Civil Justice,
Professor Long makes an important contribution to our understanding of how state constitutions actually function. He has at least two core insights. First, he observes that substantive constitutional protections are often only as effective as the constitutional structures that exists to enforce them. Professor Long helpfully refers to these as “second-order constitutional structures.” He identifies the separation-of-powers,
court structure, authority for regulating lawyers, and several other second-order structures that are relevant to how civil justice protections are enforced. Professor Long’s second insight is that state constitutional structures are often wildly different than their federal counterparts, and frequently there are no analogous federal arrangements. Professor Long therefore encourages state courts to draw confidence from these distinctive institutional arrangements in their interpretation and application of civil justice protections. Overall, Professor Long offers a new and compelling account of how state courts might develop independent state constitutionalism based on unique state structures.



Tort Reform—How The Phrase “As Heretofore Enjoyed” Subjected Wrongful Death Plaintiffs to Noneconomic Damages Caps in Missouri, Dodson v. Ferrara, 491 S.W.3d 542 (Mo. 2016) (En banc).

Francisco F. Guzman Andrade

In Dodson v. Ferrara, the Missouri Supreme Court became the latest to weigh in on the constitutionality of a legislatively imposed cap on noneconomic damages awards. The case represented yet another chapter in the ongoing battle between tort reform advocates that allege a need to reel in a tort system spiraling out of control and opponents who claim their fears are unfounded. This time, the cap at issue was part of Missouri Revised Statutes section 538.210, which capped noneconomic
damages awards in wrongful death actions arising out of medical
malpractice at $350,000.5 The Missouri Supreme Court upheld the cap, holding that it did not violate the right to jury trial, separation of powers, or equal protection provisions of the Missouri Constitution.


State Constitutional Law—Due Process—New Mexico Supreme Court Upholds Criminal Assisted Suicide Statute, Declines to Find Fundamental Right to Physician Aid in Dying. Morris v. Brandenburg, 2016-NMSC-027, 376 P.3d 836.

Amy E. Pearl

In Morris v. Brandenburg, the New Mexico Supreme Court
considered whether section 30-2-4, a statute criminalizing assisted suicide, violated New Mexico’s constitution. Specifically,
Petitioners—Aja Riggs, Dr. Katherine Morris, and Dr. Aroop Mangalik—challenged section 30-2-4 on its face and as applied as violating the due process clause or, alternatively, the inherent rights clause of New Mexico’s constitution because there exists a fundamental right to physician aid in dying (“PAD”). This Comment will first provide the factual and procedural history leading up to the New Mexico Supreme Court’s decision in Morris as well as the relevant statutory, constitutional, and case law underlying the issue. Next, this Comment will discuss the court’s analysis. Finally, this Comment will argue that, although there was room to diverge from federal precedent, the court correctly decided Morris because the legislature is better suited to make such a determination. In that vein, this Comment will briefly examine Morris’s impact on the End of Life Options Act. Although the bill failed to pass in the New Mexico Senate, it would have decriminalized PAD and provided mentally competent, terminally ill patients with the option of self-administering doctor-prescribed medication to bring about his or her own death.


State Constitutional Law—Due Process—Florida Supreme Court Protects Workers’ Compensation Claimants by Striking Down the Legislature’s Restrictive Attorney’s Fee Schedule. Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016).

Jason M. Russell

An April 2016 Florida Supreme Court decision emphatically stands as a bulwark against the rising tide of state legislatures seeking to chip away at claimants’ rights under workers’ compensation statutes. In Castellanos v. Next Door Co., the court held that the mandatory fee schedule governing the award of attorney’s fees to successful workers’ compensation claimants was unconstitutional under both the Florida and the U.S. Constitutions as a violation of due process. The court determined
that a state statute created a conclusive, irrebuttable resumption
against consideration of whether an attorney’s fee award is reasonable because the formulaic, restrictive fee schedule did not always yield an adequate result. As evidence, the court cited to the patently unreasonable attorney’s fee awarded in this case. Since every injured worker is statutorily precluded from challenging his or her attorney’s fee award, the majority held that the conclusive, irrebuttable presumption was facially unconstitutional as a violation of due process.


May a Stream Become a Torrent: Alaska Creates a Roadmap for the Reform of Eyewitness Identification Due Process Law, Young v. State, 374 P.3d 395 (Alaska 2016).

Zachary Sisco

In 1967, Justice Brennan wrote:
The vagaries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of mistaken
identification. Mr. Justice Frankfurter once said: “What is the
worth of identification testimony even when uncontradicted? The
identification of strangers is proverbially untrustworthy. The
hazards of such testimony are established by a formidable
number of instances in the records of English and American
trials. These instances are recent—not due to the brutalities of
ancient criminal procedure.”