Volume 71, Summer 2019, Issue 5


Introduction to the Thirtieth Annual Issue on State Constitutional Law

Robert F. Williams

This is our Thirtieth Annual Issue on State Constitutional Law. Our invited Foreword this year is by Neal Devins, Sandra Day O’Connor Professor of Law and Director of the Institute of Bill of Rights Law at William & Mary Law School. He points out some sobering, but very important, limitations on potential state constitutional protections of individual rights in “the age of party polarization.” These cautions will be interesting to all of those concerned with state constitutional law.

State Constitutionalism in the Age of Party Polarization

Neal Devins

Today, perhaps more than ever before, state supreme courts will have ample opportunity to be rights innovators. If President Trump is to be believed, the federal courts are increasingly populated by Trump judges who will not expand individual rights through interpretations of the Federal Constitution. Indeed, with at least two Trump appointees—Neil Gorsuch and Brett Kavanaugh—already on the U.S. Supreme Court, there is every reason to think that the Court will restrict rights protections. Moreover, with a record-setting pace to appoint and confirm lower federal court judges, there is increasing reason to think that lower federal courts will not advance individual rights interests either.

What Florida’s Constitution Revision Commission Can Teach and Learn from Those of Other States

Mary E. Adkins

At the November 2018 election, Floridians successfully availed themselves of three different ways to amend their state constitution: changes proposed by the Legislature, by citizens’ initiatives, and by a vicennial Constitution Revision Commission. Two methods are shared by other states; the last method is unique to Florida. Voters approved amendments originating from all three methods with the required sixty-percent supermajorities. Beneath this robust showing, however, is a retreat from Florida citizens’ control over their state constitution. While the Florida initiative process has been under almost continual attack since its first use in 1976, the 2017 Constitution Revision Commission (“CRC”) suffered the first serious attempts to attack its work when several suits were filed to strike its amendments from the ballot in 2018. The Florida Supreme Court intervened to review all of the CRC’s proposed amendments and removed one amendment from the voters.

The People and Their Constitutions

Jonathan L. Marshfield

In scholarship and popular conversation about constitutional law, state constitutions are frequently overlooked or discussed pejoratively. “The” constitution, we are told, is the Constitution of the United States of America. But state constitutions play crucial and significant roles in American public governance. State constitutions fill many vital gaps left open by the Federal Constitution. They also address myriad areas of significant public policy with no federal analogs or counterparts. Although they are often overlooked, state constitutions complete our system of constitutional governance and are an integral part of how American public law actually functions.

The Long Road to Florida’s Modern Constitution

Robert F. Williams

Well into Professor Mary Adkins’s deeply researched and welcomed book on the making of Florida’s revised 1968 Constitution, she reports the following seemingly innocuous fact: “New legislator Bob Graham, who had been elected to the House in the November 1966 election and attended just one organizing meeting, returned after the March 1967 election and found himself chair of a subcommittee by virtue of being the only remaining Democrat on it.” This seeming fluke turned into one of the most monumental events of my life. Representative Graham hired me to staff his subcommittee (Appropriations, Higher Education Construction) as I was graduating from Florida State with a political science degree. The Legislature stayed in session most of the summer, dealing with revisions to the post-Reconstruction 1885 “horse-and-buggy” Florida Constitution. The voters ratified the final proposed new constitution. I received a first-hand introduction to state constitutions that summer.

State Constitutional Law—Education Finance—The Ongoing Battle for Adequate School Funding in the State of Kansas. Gannon v. State, 390 P.3d 461 (Kan. 2017)

Caroline DiBartolomeo

Gannon v. State (“Gannon IV”) is the fourth decision of the Gannon series involving the school districts and the State of Kansas. This case was brought before the Kansas Supreme Court by the public-school districts as a part of the ongoing battle of inadequate school funding against the legislature. In Gannon IV, the court considered whether the State’s public education financing system complied with the minimum standards of adequacy set forth in the Kansas Constitution. This Comment will provide the history of inadequate education finance in Kansas and the background of the previous Gannon decisions leading up to Gannon IV. Next, this Comment will discuss the relevant legal issues and the court’s analysis of those issues. Furthermore, this Comment will argue that although the Gannon series of litigation and the issue of inadequate school funding is far from over, the Kansas Supreme Court made the right decision by continuing to fight for the educational needs of every student in the State of Kansas.

Refusing to Hew to the Federal Floor—Florida Supreme Court Finds Mandatory Waiting Period Prior to Abortion Unconstitutional. Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017)

Joanna Gardner

In Gainesville Woman Care, LLC v. State, the Florida Supreme Court found that a state law requiring a 24-hour waiting period between when a woman receives required medical disclosures and when she has an abortion likely violated the explicit right to privacy contained in the Florida Constitution. In doing so, it reaffirmed that the Florida Constitution guarantees a higher level of protection for abortion access than the Federal Constitution. While the Federal Constitution’s implicit right to privacy is not offended by laws that require a waiting period prior to obtaining an abortion, in Florida, such laws amount to an impermissible infringement on the state’s fundamental right of privacy.

State Constitutional Law—Hawai’i Secures the Right to Remain Silent—Prohibiting the Substantive Use of Pre-Arrest Silence. State v. Tsujimura, 400 P.3d 500 (Haw. 2017)

Christina Lidondici

Hawai’i’s “state court rebellion” against federal self-incrimination law persists with its supreme court decision in State v. Tsujimura. In Tsujimura, the Supreme Court of Hawai’i extended the right to remain silent in the prearrest setting. Article I, section 10 of the Hawai’i Constitution guarantees the right against compelled self-incrimination and, contemporaneously, the right to remain silent. In State v. Alo, the court held that the right to remain silent is fundamental and cannot be used against the accused. Thus, not only is the prosecution prohibited from commenting on a defendant’s failure to testify but a “prosecutor may not comment on a defendant’s silence in a manner that suggests such silence as evidence of guilt.” In State v. Mainaaupo, the Supreme Court of Hawai’i held this basic right attaches at arrest. This decision left open the issue of one’s silence before arrest and whether that silence may be used against that person. In reaching its decision in Tsujimura, the majority analyzed the text of the Hawai’i Constitution and utilized its precedent to determine a person’s right to remain silent exists prearrest.

State Constitutional Law—Ex Post Facto—The Pennsylvania Supreme Court Holds that Pennsylvania’s New Sex Offender Registration Law Violates the Federal and State Constitutions. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

Kaitlin L. Meola

In Commonwealth v. Muniz, Jose Muniz was convicted in the trial court of Cumberland County, Pennsylvania of two counts of indecent assault. He was sentenced, in part, to lifetime registration requirements pursuant to Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”). After a post-sentence motion and subsequent appeal, the Pennsylvania Supreme Court vacated part of Muniz’s sentence and remanded back to the sentencing court, holding that applying SORNA retroactively to Muniz’s crimes violated the ex post facto provisions of the United States and Pennsylvania Constitutions. In so holding, the Pennsylvania Supreme Court explained that the increased severity of SORNA’s registration requirements, coupled with advances in modern technology, make SORNA’s requirements more akin to punishment than other versions of sex offender registration laws. Accordingly, its retroactive application violates ex post facto prohibitions in both the United States and Pennsylvania Constitutions.

Another Opportunity for the California Supreme Court to Correct the Lower Court’s Application of Hill’s Privacy Test. Lewis v. Superior Court, 397 P.3d 1011 (Cal. 2017)

Stephanie P. Terzano

In Lewis v. Superior Court, the California Supreme Court considered whether the Medical Board of California violated article I, section 1 of the California Constitution; specifically the right of privacy, when accessing patients’ records without consent for investigative purposes. A doctor challenged the alleged privacy invasion on behalf of his patients, which made it necessary for the court to resolve whether the doctor even had standing to do so under the constitutional provision, and ultimately whether the intrusion was outweighed by the Board’s interests.