Volume 73, Summer 2021, Issue 4



Robert F. Williams

Make Politics Local Again: The Case for Pro-Localization State Constitutional Reform

Thomas Andrew Koenig

Americans are more “American” than ever. We are very much a nation. We think of our political selves as Americans—not Pennsylvanians, or New Jerseyans, or Montanans. But our national political identity has not produced national amity. The mutual contempt that defines our partisan politics has precipitated violence—see the shameful events at the Capitol of January 6th, for example. Moreover, astute political observers like David French of The Dispatch now see national disintegration as a real possibility for the United States in the decades ahead. Despite powerful forces of national cohesion like the “flattening” of society via technology, standardized consumer options, and enhanced economic interdependence, our politics strike the casual observer and the close follower alike as worrisomely dysfunctional, divisive, and sickly. We are left with unified discord.

This article aims to think structurally about such unified discord out of a concern for the future of the American republic, its commitments to democratic self-governance and individual liberties, and in particular, its sustained popular legitimacy.

Espinoza and the Misuses of State Constitutions

G. Alan Tarr

In 2018, the Montana Supreme Court struck down a state law granting taxpayers a dollar-for-dollar tax credit for contributions to organizations that fund tuition scholarships for students attending private schools, whether secular or religious. The Montana justices held that this program violated article X, section 6 of the Montana Constitution, adopted in 1972, which prohibits the use of public funds for “any sectarian purpose” or their distribution to educational institutions “controlled in whole or in part by any church, sect, or denomination.” The Montana Department of Revenue, which had been charged with devising rules to implement the law, sought to avoid constitutional problems by restricting the scholarships to students attending secular private schools. But the Montana Supreme Court held that this program exceeded the Department’s powers, and it ruled the entire aid program unconstitutional. In Espinoza v. Montana Department of Revenue, the United States Supreme Court, by a five to four vote, reversed, holding that Montana’s exclusion of church-related schools from the program violated the Free Exercise Clause of the First Amendment, thereby apparently reinstating the program as originally adopted by the Montana legislature. But the Supreme Court reached its conclusion only by misconstruing the facts of the case and improperly intervening in a dispute that had been settled under state law. Equally important, the Court mischaracterized Montana’s constitutional provision, hinting at its illegitimacy, and implied that the analogous provisions found in thirty-seven other state constitutions might likewise be illegitimate. The Court did so based on a one-sided misunderstanding of the origins and history of these provisions and on a problematic account of the states’ distinctive experience in addressing church-state issues, particularly as it affects education.

Espinoza might seem a minor case affecting only a modest aid program in a single state. But if it were, presumably the Supreme Court would not have chosen to hear the case. Proponents of “school choice” immediately recognized Espinoza’s potential implications. President Donald Trump described the “SCOTUS ruling [as] a historic win for families who want SCHOOL CHOICE NOW!” Although Chief Justice Roberts only hinted at the illegitimacy of the no-aid provisions found in most state constitutions, Education Secretary Betsy DeVos proclaimed that, as a result of Espinoza, “your bigoted Blaine Amendments and other restrictions like them are unconstitutional, dead, and buried.” Institute for Justice Senior Attorney Erica Smith, who served as co-counsel on Espinoza, said the ruling would “allow states across the country to enact educational choice programs.”

Beyond its implications for school-choice programs, the majority opinion of the Court, together with the separate concurrences of Justices Thomas, Alito, and Gorsuch, raise serious questions about states’ authority to regulate church-state relations and about the Court’s adherence to the doctrine of adequate and independent state grounds, at least in the religious context. Moreover, given the similarity between Montana’s no-aid provision and the no-aid provisions in other states’ constitutions, the Court’s ruling is likely to encourage challenges to those prohibitions as well. Thus, a close examination of Espinoza and its implications for state constitutional law appears warranted.

Democratizing Gubernatorial Succession

T. Quinn Yeargain

In most states, lieutenant governors operate as built-in governors-in-waiting. But in the early days of the United States, relatively few lieutenant governors existed—and in the states without them, governors were usually succeeded by legislative, or quasi-legislative, officers. The adoption of lieutenant governorships, which primarily took place during the nineteenth century, reflects the culmination of a long trend in state constitutional law toward the democratization of state institutions.

The story of gubernatorial succession is primarily the story of how lieutenant governors were created. But it is more than that—it is the story of how state separation-of-powers systems evolved over time, how legislators lost their perch in the line of gubernatorial succession, how other state officers were created and positioned as gubernatorial successors, and how small features of state constitutional law became polarizing issues in constitutional development. It is also a story of incompletion. Many states today lack lieutenant governors, or provide for a method of lieutenant-gubernatorial election that defies the logic for establishing such an office in the first place. This Article tells each of these stories, recounting in detail the history of gubernatorial succession, using that history to extract a narrative of democratization, and arguing that there remain undemocratic vestiges in current gubernatorial succession provisions that ought to be reformed.


Mandating Partial Verdicts of Acquittal Based on Double Jeopardy Principles and the Presumption of Innocence:
People v. Aranda, 437 P.3D 845 (CAL. 2019)

Ashley Attinello

Under the Fifth Amendment of the United States Constitution, the Double Jeopardy Clause prohibits retrial against an individual for the same crime for which a conviction or acquittal is rendered. In People v. Aranda, the California Supreme Court held that the state double jeopardy provision precluded the defendant from being tried again for the greater offense after a jury had deliberated and was solely deadlocked on the lesser charged offenses. Because the jury had ruled out the greatest offense charged, the defendant argued the court should have accepted a partial verdict on it—leaving him only to face the lesser charged offenses the jury could not decide on in future proceedings. Prior to the holding in Aranda, the United States Supreme Court determined that the Fifth Amendment does not require the taking of a partial verdict of acquittal. In order to avoid federal preemption, the majority in Aranda based its decision on the state double jeopardy clause while noting that state constitutions are not prohibited from being more protective than the Federal Constitution. Therefore, the court mandated that courts in California are required to take partial verdicts under their own state constitution.

This Comment argues that the holding in Aranda is more consistent with double jeopardy principles and the presumption of innocence than federal precedent because Aranda requires trial courts to render partial verdicts of acquittal when a jury unanimously agrees that a defendant is innocent on a particular charge. The court in Aranda considered whether retrial is inconsistent with both the federal and state double jeopardy provisions, and the presumption of innocence, to forgo a partial verdict on the greater offense and permit a retrial on that charge since a jury has already determined the defendant’s innocence. The California Supreme Court addressed what happens when a jury unanimously concludes that a defendant is innocent on a greater offense, but cannot come to a unanimous decision regarding lesser included offenses. Thus, any subsequent retrial should be limited to the lesser included offenses on which the jury was unable to come to a unanimous conclusion.

Part II of this Comment provides an overview of the factual history leading up to the decision in Aranda. Part III identifies and discusses the most relevant case law, constitutional provisions, and statutes relied upon in Aranda by the California Supreme Court. Part IV narrates the majority and dissenting opinions in Aranda. Finally, in Part V, I argue that the California Supreme Court’s decision in Aranda was correct, despite that it differs from both federal court precedent and the majority opinion held by most states in the country.

The Supreme Court of Iowa Rejects Kelo and Previews the Future of the Battle Over Eminent Domain—Puntenney v. Iowa Utilities Board, 928 N.W.2d 829 (Iowa 2019)

Nicholas DeBenedetto

In Puntenney v. Iowa Utilities Board, the Supreme Court of Iowa affirmed the decision of the Iowa District Court for Polk County to deny a petition for judicial review of a decision by the Iowa Utilities Board (“IUB”) authorizing an oil company to use eminent domain to build a crude oil pipeline. The Supreme Court of Iowa held that even though the pipeline would pass through the state without taking on or letting off oil, the use of eminent domain to build the pipeline did not violate the Iowa Constitution or the United States Constitution. This Comment argues first that the Supreme Court of Iowa was right to reject the precedent established by the U.S. Supreme Court in Kelo v. City of New London, but missed an opportunity to thoroughly explore the history and original public meaning of Iowa’s takings clause which may yield an even more rights-protective framework for the people of Iowa than the dissenting opinion in Kelo. Second, this Comment argues that the court’s focus on the aggregate economic benefit of the Dakota Access Pipeline ultimately leaves Iowans vulnerable against future energy-related takings.

State Constitutional Law—Equal Protection—Iowa Supreme Court Upholds Amendments to Public Employment Relations Act, Finds Concerns of “Labor Peace” Valid
AFSCME Iowa Council 61 v. State, 928 N.W.2d 21 (Iowa 2019)

Kaitlyn E. Flynn

In AFSCME Iowa Council 61 v. State, the Iowa Supreme Court considered whether amendments to the Public Employment Relations Act (“PERA”) that limited the collective bargaining topics for certain unions violated Iowa’s Constitution. Petitioners AFSCME Iowa Council 61 and individual union members challenged amendments to chapter 20 of the Iowa Code, alleging that the amendments violated the equal protection clause of Iowa’s Constitution and infringed on their right of freedom of association. This Comment will first examine the factual and procedural history that led to the Iowa Supreme Court’s decision in Iowa Council 61. Next, this Comment will discuss and compare the majority’s analysis with those of the dissents. Lastly, this Comment will argue that, while the majority was reasonably cautious in its concern for the separation of powers doctrine when it upheld the amendments in question, in doing so, the court disregarded the arbitrary overinclusion of other types of employees and underinclusion of all public safety employees. This arbitrariness should have necessarily caused the amendments to fail a rational basis review in violation of Iowa’s equal protection laws.

Alaska Supreme Court Requires Risk-Assessment Hearings for Eligible Sex Offenders Seeking an Exit From the Registry
Doe v. Department of Public Safety, 444 P.3D 116 (Alaska 2019)

Justine M. Jacobs

Sex offender registration laws have proliferated and evolved since their introduction over two decades ago. What began as privately held registries at local law enforcement agencies have grown into a nationwide network of publicly accessible online databases. Registration laws now apply to an ever-expanding list of offenses and impose a variety of collateral consequences on registrants which limit their opportunities for both employment and housing. There are currently over 900,000 registrants nationwide, and for some offenders, registration is a lifetime requirement from which there is seemingly no exit.
With a June 2019 decision, Alaska joined the majority of jurisdictions in providing non-dangerous sex offenders an opportunity to seek relief from mandatory registration. In Doe v. Department of Public Safety, the Alaska Supreme Court held that the Alaska Sexual Offender Registration Act (“ASORA”) violated the Alaska State Constitution’s due process clause. The court reasoned that ASORA’s failure to exclude non-dangerous offenders infringed on those offenders’ fundamental right to privacy, a specifically enumerated right under the Alaska Constitution. As a remedy, the court provided a procedure for offenders to file a civil action whereby they can establish that they no longer pose a risk to the public warranting continued registration.

This Comment will first provide the pertinent facts and procedural history of Doe, as well as the implicated statutory, constitutional, and case law. Next, it will thoroughly analyze the court’s reasoning, including both the majority and dissenting opinions. Finally, it will examine the current landscape of sex offender registration laws and how this decision fits into a slowly building trend of state supreme courts requiring individualized hearings for select registrants looking for an exit.

Where is the Line Between Excellent and Excessive Advocacy? Indiana Supreme Court Knows When it is Crossed, but Does Not Exactly Tell us Where it is
Hammond v. Herman & Kittle Properties, Inc., 119 N.E.3d 70 (2019)

Gerard Tyrrell

In Hammond v. Herman & Kittle Properties, Inc., the Supreme Court of Indiana was given the opportunity to consider a case of special legislation. The term “special legislation” refers to laws that only apply to a specific class. While special legislation is generally prohibited by two provisions of the Indiana State Constitution, the Supreme Court of Indiana has recognized that there are some cases where special legislation is necessary and therefore views the state constitution as “limiting” special legislation, as opposed to completely banning it. Accordingly, if a proponent of special legislation can demonstrate why the “unique characteristics” of the targeted group justified that specific law, then the special legislation can stand as constitutional. At issue in this case was a provision of Indiana Code section 36-1-20-5 that exempted two cities––Bloomington and West Lafayette––from a newly imposed restriction on municipal rental fees.

So, was this special exemption a product of excellent representation and advocacy by the legislators from Bloomington and West Lafayette, who managed to identify and address unique attributes of their constituencies that warranted a special exception to the fee restriction imposed on all other municipalities in Indiana? Or was this exemption the result of excessive advocacy, “precisely the type of law that [the framers of the special legislation amendment] sought to eliminate during the 1850–1851 Constitutional Convention”? The Supreme Court of Indiana decided that it was the latter, and this Comment will analyze that decision. This Comment will begin by providing a brief factual and procedural history of the case, as well as a brief synopsis of relevant state constitutional and statutory provisions. It will then discuss the court’s analysis and conclusion that the special legislation violated the state constitution. Finally, this Comment will conclude that the Indiana Supreme Court correctly decided that this special legislation violated the state constitution and will briefly touch on the decision’s impact on the court’s influence on legislative public policy.