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Prof. Williams
Spring 2012

a. The Evolving State Constitutions During the Founding Decade
i. Put things into the state constitution to take away from legislature
ii. How do state constitutions differ from Federal Constitutions
1. Not little versions of US Constitution
2. Can have more rights within a state than in the US Constitution
a. Tend to be more protective
iii. Highest form of law in the state
1. Federal statutes can trump state constitution
iv. Horizontally each is very similar
1. Only one state has a unicameral legislature
2. All states have elected governor
3. Difference in details (elected v. appointed judges)
v. Symmetrical Federal System
1. How state constitutions evolved
a. Original 13 colonies (11 of 13 had constitutions)
i. Part of revolution was constituting governments
b. Massachusetts model
i. 2 house legislature
ii. Could not vote unless you owned a certain amount
of property
1. More proportional to run, more prop to run
for senate
iii. Executive has veto power
c. Pennsylvania Model
i. Massive legislative power
1. Would appoint executive and judiciary
b. The Admission of New States
i. Passage of the NW Ordinance in 1787
1. Set up a process for admission of new states
ii. Original 13 Constitutions did not need permiossion to write
1. New states had to get approval from US Congress
a. Had to show Constitution to Congress
2. Southern states had to do it twice (2nd after Civil War)
c. The Unique Evolution of State Constitutions
i. Most states had very weak governor based on English system
1. Movement to start granting power to governor
2. NJ Gov most powerful
a. Major budgetary powers line item, amendatory veto
b. Massive appointment powers
ii. No substantial structural change in Fed. Constitution
1. Much easier to amend state constitutions
a. Process allows for the more trial and error

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iii. Various local regional issues

1. Each have a separate story which provide insight on their
d. State Constitutions as Instruments of Law Making
i. Use of state constitutions as policy making
1. Keep out legislature
2. Not only reason
ii. Omaha National bank v. Spire
1. Seeking a declaratory judgment to find the amendment a statute
and find that statute in violation of the Nebraska Constitution
2. Why not legislative?
a. If enacted, could be rescinded
b. Difficult to get this law through legislature
3. Have initiative in Nebraska to change constitution
4. Argue it does not comply with the Preamble
a. Rejected by court obvious it was a constitutional
iii. State different from Federal in 5 ways
1. Federal Constitution enumerates powers to Federal Government
(Different Function)
a. States kept all of the rest of the power themselves plenary
i. Function of state is to limit powers
2. Different Form
a. States much longer easier to change, takes more to limit
3. Different Origin
a. Amendments voted on by citizens more democratic
4. Different Quality
a. Deal with matters reserved to states
5. Key questions are about implied limits
iv. First 13 wrote Constitutions with no constraints
1. Westward movement not the case
States and Their Constitutions in the Federal System
a. The Supremacy Clause (Art. I, Cl. 2)
i. Conflicts between State Constitutions and the Federal Constitution
1. Reitman v. Mulkey
a. Californias Proposition 14, which permitted private
discrimination in the sale of houses, violated the EPC of
the 14th Amendment.
i. The proposition constituted state action, because
California was encouraging discrimination by
giving it constitutional status.
ii. The state had gone too far beyond its mere intent of
limiting a few discrimination statutes.

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b. State Constitutions CANNOT violate the Federal

2. Hunter v. Underwood
a. Alabama law dealing with voting
i. Law was racially neutral
b. Cannot rely on desperate impact without intent
c. Look to constitutional convention for intent
ii. Conflicts Between State Constitutions and Federal Statutes
1. North Carolina ex rel. Morrow v. Califano
a. Federal statute, which required states to create and
implement a planning agency in order to receive funding,
did not unconstitutionally interfere with states legislative
and constitutional processes.
i. Even though North Carolinas constitution prohibits
the creation of such an agency, the federal statute
does not operate adversely to the rights of the other
states to comply.
b. It does not impose a mandatory requirement to enact
legislation on the State; it gives to the states an option to
enact such legislation and, in order to induce that
enactment, offers financial assistance
i. Is not coercive in the constitutional sense
2. Utility Workers of America v. Southern California Edison Co.
a. Federal statute preempts a claim that a drug-testing
program violates rights guaranteed by the California
b. Although these cases involved state tort claims rather than
state constitutional claims, the Supremacy Clause declares
the primacy of federal law over state constitutional
provisions as well as over state common and statutory law
State Constitutional Protection of Individual Liberties in the Federal System: The
New judicial Federalism
a. State Constitutional Rights Prior to the Federal Bill of Rights
i. State courts may not interpret the Federal Constitution to provide more
rights than recognized by the US Supreme Court
b. The Rediscovery of State Constitutional Rights
i. Brennan Article
1. Envokes federalism
a. Federalism contemplated sovereign authority for the states
i. States can resist or continue march to more liberal
ii. Michigan v. Mosely
1. No State is precluded by the decision from adhering to higher
standards under state law

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c. State Judicial Reliance on State Constitutions Approaches to State

Constitutional Rights Cases in the Shadow of the Supreme Court
i. Independence and Lack of Federalism Concerns
1. Under-enforcement of the federal Bill of Rights against the
states, and therefore, not of precedential value for state
constitutional interpretation beyond the persuasiveness of their
ii. Textual Differences
1. Hansen v. Owens
a. States provision (to give evidence against himself)
protects defendant from giving writing sample.
i. Federal provision (to be a witness against
himself) does not.
b. It seems reasonable to assume that the phrase to give
evidence against himself as used in our constitution, was
intended to mean something different and broader than the
phrase to be a witness against himself as used in the
federal constitution.
2. Bierkamp v. Rogers
a. Analyzes Iowas guest statute using federal EPC-type
analysis, even though the text of the constitutions differ
b. The US Supreme Court case is persuasive, but not binding
upon this court in construing analogous provisions in our
state constitution
3. Collins v. Day
a. Plaintiff had two-step burden:
i. Convince the court not to follow the federal
ii. Convince the court that its case is a winner under
the state constructs
b. Plaintiff accomplishes #1, and fails at #2.
c. State looks at the original intent of the state provision
d. Imposes 2 requirements upon statutes that grant unequal
privileges or immunities to differing classes of persons
i. The disparate treatment accoreded by the legislation
must be reasonably related to inherent
characteristics which distinguish the unequally
treated classes
ii. The preferential treatment must be uniformly
applicable and equally available to all persons
similarly situated

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e. In determining whether a statute complies with or violates

section 23, courts must exercise substantial deference to
legislative discretion
4. Prospective Lock-stepping
a. You cannot commit the state constitution to be
analyzed/interpreted consistent with federal constitutional
cases that have not even been decided yet.
i. stifles independent research
5. Cooper v. Morin
a. Probably lose this case under Federal Constitutional Law
b. Neither as a matter of Federal due process nor Federal
equal protection are plaintiffs entitles to an order requiring
the allowance of contact visits.
c. NY Court of Appeals found there is a liberty interest that
cannot be deprived of pretrial detainees
i. Constitutional provisions have identical language,
but the state protection is broader (substantive due
iii. Unique State Traditions
1. People ex rel. Arcara v. Could Books, Inc.
a. Adult bookstore receives more protection under the state
i. New York has a long tradition of fostering freedom
of expression.
b. Fed floor relies on community standards
iv. Sub-constitutional State Law Rights Protections
1. Federal Constitution defines the minimum level of individual
rights and leaves the States free to provide greater rights for its
citizens through its Constitution, statutes or rule-making
2. Normally, a court will rest its decision upon a statutory rather than
a constitutional ground
3. Gary v. State
a. A state is free as a matter of its own law to impose greater
restrictions on police activity than those this [the Supreme]
Court hold to be necessary upon federal constitutional
b. The Leon good faith exception is not applicable in
Georgia in light of the states legislatively-mandated
exclusionary rule.
v. Public Policy Reflected in State Constitutions
1. Hennessey v. Coastal Eagle Point Oil Co.

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a. Common law rule was modified employment at will rule

not says you cannot fire for any reason against public
b. Both logic and amply precedent support a finding of public
policy in the language and jurisprudence of the New Jersey
c. The New Jersey Constitution is a source of public policy in
favor of protecting privacy; however, in this case, the
public policy supporting safety outweighs the public policy
supporting individual privacy rights.
i. Drug testing leads to employee being fired.
d. State Constitutional Rights Providing Less Protection Than the Federal
i. State v. Smith
1. State constitutions can provide less protection than the federal
a. But they cant be enforced below the federal floor
2. Oregon Miranda went below Federal Floor
3. Must follow Miranda minimum standard although Oregon
Constitution does not give that right
4. As a practical matter must have national standard enforced
e. State Action as a Requirement Under State Constitutions
i. Introduction
1. Under the due process and equal protection clauses of the 14th
Amendment, there is a requirement of state action to trigger the
2. State action is a continuum from no state action to state action
3. Federal requirement to constitute challenge need a lot of state
action (X)
a. No State Action (My Backyard) ------------------------------(X)-- State Action (Police)
4. Sharrock v. Dell Buick-Cadillac, Inc.
a. The absence of any express state action language simply
provide a basis to apply a more flexible state involvement
b. A numbers of factors must be considered:
i. The source of authority for the private action
ii. Whether the state is so entwined with the regulation
of the private conduct as to constitute State activity
iii. Whether there is a meaningful State participation in
the activity

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iv. Whether there has been a delegation of what has

traditionally been a State function to a private
c. Not enough state action in this case
Gay Law Students Assn v. Pacific telephone & Telegraph Co.
a. Both the state and federal equal protection clauses clearly
prohibit the state or any governmental entity from arbitrary
discriminating against any class of individuals in
employment decisions
b. Under the equal protection guarantee of the California
Constitution a state-protected public utility may not
arbitrarily or invidiously discriminate in its employment
c. State Action = state-protected monopoly by telephone
company that engages in discriminatory employment
People v. Zelinski
a. Because private securitization is growing, and because it
poses a threat to privacy similar to that posed by state
police, the court found that a store security officer
conducting a search was fulfilling public function in
bringing violators of the law to public justice.
b. Statutory authority for private security
i. State action allows constitutional protection in
Hill v. NCAA
a. NCAA is not a government entity, but the initiative
pamphlets reference to government and business means
that there is a private right of action to enforce the state
constitutions guarantee of privacy (state actor?)
i. To remove by judicial construction a significant part
of what the voters desired would amount to an
electoral bait and switch
b. A compelling interest does not have to be shown to
overcome every privacy interest
c. Lower courts imposed on the NCAA the burden of proving
i. A compelling state interest in support of drug
ii. The absence of any alternative means of
accomplishing that interest
Devlin Article

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a. State action doctrine is too rigid there are alternatives

suggests a 3-factor balancing analysis
i. To Avoid impermissible infringements on zones of
personal autonomy, state constitutional rights
guarantees should be construed to bind, in addition
to government, only corporations, associations or
other similar entities, and natural persons only to
the extent those individuals are wielding impersonal
1. Impersonal power the power that some
individuals enjoy by reason of wealth,
position, or some other factor to exercise
control over public or business related
matters that affect many people
ii. To preserve the dominant role of legislatures in the
definition and allocation of private rights, courts
should be cautious in expanding the substantive
reach of state constitutional guarantees as applied to
nongovernmental infringers.
iii. To maximize the liberty of all private parties
involved in disputes of this type, infringement of
the plaintiffs rights cannot be considered in a
vacuum or on any absolute scale
1. Those rights must be balanced against the
competing rights of the alleges infringer
ii. Freedom of Speech and Association on Private Property
1. New Jersey Coalition Against War in the Middle East v. J.M.B.
Realty Corp.
a. Previously held NJ Constitution conferred on our citizens
an affirmative right of free speech that was protected not
only from governmental restraint the extent of First
Amendment protection but from the restraint of private
property owners as well
i. The standard takes into account:
1. The normal use of the property
2. The extent and nature of the publics
invitation to use it
3. The purpose of the expressional activity in
relation to both its private and public use
b. Decision does not apply to commercial speech
f. Substantive Due Process, Economic Regulation, and State Constitutions
i. State Courts always involved in these issues

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1. Surprisingly state courts did not follow the Supreme Courts

hands off approach
ii. Judicial v. Legislative Divide
1. Should the judiciary be able to second guess the legislature
iii. Bulova Watch Co. v. Brand Distributors of North Carolina
1. Issue of issue recognition
a. Cannot see possibility of lesser state action because of
Federal Constitutional law dominance
b. Facts trigger a response under Fed. Con Law
2. NC has provision similar to the due process clause
a. Clashes with Fair Trade Act
i. Manufacturer can set a price with dealer by contract
and will bind future sellers
3. Claim being deprived of liberty and property
4. Court finds state statute violations the constitution, b/c there is no
rational basis for it.
a. It is the duty of this Court to declare invalid a statute which
forbids one who had lawfully acquired an article of
commerce to sell it at a price satisfactory to himself, unless
there is some reasonable basis for the belief that the benefit
to the public therefrom outweighs the infringement upon
the owners liberty of contract
iv. Department of Insurance v. Dade County Consumer Advocates Office
1. Statute prohibiting agents from accepting lower commissions is
struck down because there is no tie to a state purpose
2. May overturn an act on Due Process grounds when clear it is not
designed to promote health, safety, or welfare or no reasonable
a. Dissent argues it is for the legislature to decide
g. Overruling State Constitutional Decisions By State Constitutional Amendment
i. California Constitution Art. I, 7
1. Cannot mandate below Federal standard but can bring down to
federal level
ii. Florida v. Casal
1. When state courts interpret state law to require more than Federal
Constitution requires, the citizens of the state must be aware that
they have the power to amend state law to ensure rational law
2. Adequate and independent state laws no federal question
a. Conformity amendment
b. Adoption of amendment does not end the matter
iii. Commonwealth v. Colon-Cruz
1. Court strikes down the death penalty as unconstitutionally cruel.

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2. Constitution is amended to clarify that the death penalty is not

3. Legislation is passed to allow death penalty for murder 1.
4. Court strikes down the statute, b/c it basically makes a defendant
waive his jury/self-incrimination rights to avoid the death penalty
a. Court clarifies, we are not attacking the death penalty itself,
on the implementation.
Procedures and Methods of State Constitutional Rights Interpretation
a. The Adequate and Independent State Ground Doctrine
i. US Supreme Court may not review a lower court decision which is based
on an adequate and independent state grounds
ii. Use of doctrine has changed
1. Williams v. State
a. Clear federal violation defendant did not object and
cannot appeal unless you object to it
b. US Supreme Court have no jurisdiction
i. Adequate and independent state action
1. Clear Georgia rule
iii. 3 ways to get above national minimum standard
1. State Law no vertical legal review; no federal question
2. State grounds independent of federal ground
3. Decision unclear in opinion in high state court (Michigan v. Long)
iv. Michigan v. Long
1. Advice to state courts
a. Can take away federal jurisdiction by making a plain
statement that federal cases are being used for guidance and
based on state law
2. Accordingly, when, as in this case, a state court decision fairly
appears to rest primarily on federal law, or to be interwoven with
the federal law, and when the adequacy and independence of any
possible state law ground is not clear from the face of the opinion,
we will accept the most reasonable explanation that the state court
decided the case the way it did because it believed that federal law
required it to do so
3. Keep state and federal arguments separate
v. City of Mesquite v. Aladdins Castle, Inc. (Pre-Long)
1. Court abstains from question, because it is unclear whether the
state supreme courts ruling was made on state or federal grounds
vi. Asarco Inc. v. Kadish
1. Arizona enabling act
2. Issue with standing
a. States liberal when dealing with standing do not think
strict federal standing requirements of Article III


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b. Go through state court gets to Supreme Court but issue

with standing reappears
c. Can get federal questions into state court when you do not
have federal standing
b. Harmless Error
i. State is free, without review of US Supreme Court, to apply its own state
harmless error rule to such errors of state law
c. Retroactivity
i. If the court is applying a state right about the national floor, then it cause
use its own higher retroactivity doctrine
ii. While the substance of what is to be applied is a federal constitutional
matter, the decision on what criteria to use to determine prospective or
retroactive application is a non-constitutional state decision
iii. If a federal right comes out and is not applied retroactively, the state can
still apply it retroactively
d. Advocating and Resisting Greater Protections Under State Constitutions
i. The Sequence of Constitutional Arguments
1. Hans Linde Article
a. Claims raised under the state constitution should always be
dealt with and disposed of before reaching a Fourteenth
Amendment claim of deprivation of due process or equal
2. State v. Kennedy
a. Adequate and independent state grounds can be
b. State judges deciding state law first will affect tract
c. Lest there be any doubt about it, when this court cites
federal opinions in interpreting a provision of Oregon law,
it does so because it finds the views there expressed
persuasive, not because it considers itself bound to do so by
its understanding of federal doctrines.
3. Delaware v. Van Arsdall
a. Stevens Dissent:
i. Who cares if states are over-protecting their
4. Utter Article
a. Primacy Model
i. Go to the state constitution first, then to the federal
constitution if needed
b. Interstitial (fill in the gaps) Approach
i. Federal doctrine is recognized as the floor, then
focus on whether state constitution offers
supplemental or amplified rights
c. Dual Sovereignty

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i. Analyze both state and federal (either just analyzing

state law under federal constructs, or, more recently,
doing two independent analyses) in ALL cases
1. Makes available maximum protections of
both levels
2. Helps the U.S. Supreme Court evaluate the
propriety of appeal from states
3. Aids sister state courts in analyzing same
ii. Abstention
1. Guiney v. Roache
a. When state law is ambiguous and relevant, then federal
courts may abstain
i. where a case presents a federal constitutional issue
which might be mooted or presented in a different
posture by a state court determination of pertinent,
but unsettled, state law
iii. The Criteria or Factor Approach
1. State v. Hunt
a. Legislature has spoken on this issue by statute in 1930
i. Gives the court something to point to in order to
diverge from the US Supreme Court
b. Divergent interpretations are unsatisfactory from the public
c. Sound policy reasons may justify a departure
d. Handler concurrence:
i. Differences may be so significant can interpret on
an independent basis:
1. Legislative History
2. Preexisting State Law
3. Structural Differences
4. Matters of Particular State Interest or Local
5. State Traditions
6. Public Attitudes
7. Textual Language
ii. Not pure intention, but rather the decision is
reasonable and reasoned
1. Have pointed to an objective criterion
e. The need to find objective reasons for straying from the
federal constructs is based on the pressures of the public
and everyone else who gets angered by activist judging
f. By contrast to this case, NJ uses the interstitial method
i. Decide on a federal claim, if that fails, fill it in with
state law

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iv. Uniform and Federal Constitutional Interpretation

1. There is an argument to keep the state line at the same level of the
federal floor for simplicitys sake
a. States have primary authority for criminal law because they
have plenary power over their laws
2. State v. Mollica
a. Agency relationship between Federal officers working with
State officials
i. Federal officers obtained information, gave to the
state who was not able to obtain
3. Maltz Article
a. Proper relationship of state court and other branches of
government is based on one of two perspectives:
i. interpretive
1. decide and implement framers intent
ii. non-interpretive
1. use other sources to identify values relevant to
constitutional review of given law
2. leads to duplication and inflexibility
3. horizontal separation of powers problem
4. Difference between Reflective Adoption and Prospective
a. Reflective adoption
i. Describes a state court decision acknowledging the
possibility of different state and federal outcomes,
considering the arguments in the specific case and,
on balance, deciding to apply federal analysis to the
state provision
b. Prospective Lockstepping
i. Announces that not only for the instant case, but
also in the future, it will interpret the state and
federal clauses the same
Issues Regarding Judicial Enforcement of State Constitutions
a. Remedies for State Constitutional Violations
i. Direct Cause of Action for State Constitutional Violations
1. Hunter v. City of Eugene
a. No statute that creates a cause of action for violation of
state con law
b. Cannot bring action for damages
i. Could enforce through declaratory relief, etc.
ii. Court timid about awarding damages
2. Corum v. University of North Carolina
a. It is the state judiciary that has the responsibility to protect
the state constitutional rights of the citizens

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b. Find that there is a direct cause of action

c. Question of suing government officials in official or
individual capacities
i. If acting in their own capacity you argue no state
ii. Sovereign Immunity
1. The state as sovereign is immune from suit except as it consents to
be sued
2. Can be:
a. Judge made
i. Figueroa v. State
1. Cannot be a right to money damages without
waiver of sovereign immunity
a. Does not make clear where it came
from it is just there
b. Statutory
i. Fenton v. Groveland Community Services District
1. The Legislature has recognized that the state
constitution may provide a cause of action
independent from any statute providing for
c. Constitutional
i. Kerns v. Bucklew
1. State agency but operating under federal
a. Brings supremacy clause into issue
b. Adequate and independent state
iii. Attorneys Fees
1. In Federal Law: 28 USC 1988
2. In absence of statute judges do not have ability to shift fees
3. Deras v. Myers
a. Judge-made doctrine: if you bring suit that will benefit
everyone, then you may be awarded attorneys fees.
b. Self-Executing State Constitutional Provisions
i. Concerned with amount of detail in clause
1. Enough to be enforceable
ii. Rice v. Howard
1. These constitutional provisions are but statutes which legislature
cannot repeal or amend
a. Not self-executing would not be executing the will of the
2. Todays constitution: presumption of self-execution


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a. Because otherwise the legislature would have the power to

prevent the effects of the provision
iii. Johnson v. Wells County Water Resource Bd.
1. Constitutional provision on quick take mechanism
a. Put in to overturn a case
2. An authorization to the legislature
3. Eminent domain process must follow a statute
a. Decision of the legislature
4. A constitutional provision is self-executing if it establishes a sufficient
rule by which its purpose can be accomplished without the need of
legislation to give it effect, but not if it merely establishes general
objectives such that the provision must remain inoperative until
appropriate legislation is enacted to give it effect.

iv. Chesney v. Byram

1. Clause that is not self-executing must have a statute
2. Legislature has the power to enact statutory provisions providing
reasonable regulations and control over the exercise of rights
granted by the Constitution for the exemption of property from
3. Just because the provision is self-executing cannot ignore
underlying statute
4. Can the provision be expanded state legislatures have plenary,
residual authority unless there is a limit
5. When a provision is self-executing, the legislature still has the
power to enact legislation to reasonably regulate the exercise of the
a. As long as doing so doesnt narrow or embarrass the
the statute is unconstitutional
c. Questions of Judicial Enforceability
i. D&W Auto Supple v. Department of Revenue
1. Enrolled bill doctrine a court may not look behind such a bill,
enrolled and certified by the appropriate officers to determine if
there are any such defects
2. 4 basis
a. Bill was record and not subject to attack
b. Indulge presumption that legislative acts are valis
c. Balancing of equities
d. Theories of convenience
3. In Kentucky, follow the extrinsic evidence rule
a. Presumption that a bill is valid unless there is clear,
satisfactory and convincing evidence establishing that
constitutional requirements have not been met.

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State Constitutional Protections Without Equivalent Federal Protections

a. Introduction Examples of Rights Protections Not Contained in the Federal
i. No Federal baseline
1. No legitimacy concerns with state con law argument
2. No federal shadow or glare
ii. Remedy Guarantees, Tort Law and Tort Reform
1. Davidson v. Rogers
a. Oregon Statute if not suing for economic damages must
ask for a retraction and it be denied
i. Claimed violation to right to remedy
b. Court held that the Legislature can abolish constitutional
remedy if either:
i. There is an overpowering public necessity and no
way around it
ii. An alternative remedy is made available
c. Here neither existed statute unconstitutional
2. Kluger v. White
a. Judicial test in Florida limit on legislature
i. Cannot abolish a common law right of action
without reasonable alternative unless overpowering
public necessity and no way to meet the need
b. Example workers compensation provides a substitute
3. Saylor v. Hall
a. Statute of Repose all claims cut off 5 years after
constitutional completed
i. No discovery rule
b. Argued deprived cause of action
i. Must provide a reasonable alternative
iii. Prisoners Rights
1. Sterling v. Cupp
a. Federal government has no authority, stuff for state
2. Park Article
a. Use international human rights references
i. More common to do when a state provision is
completely different from federal provisions
1. E.g., Sterling
iv. Privacy
1. Ravin v. State
a. Right to privacy is written into the Constitution
b. State tradition of privacy
i. Home should receive special protection

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2. In re T.W.
a. Parental consent statute unconstitutional
b. National minimal standard must have some sort of bypass
c. Initially trial judge held statute was too vague
d. Federal answer ok to restrict minors access to abortion
provided by judicial bypass
e. Look to Florida Constitution because it contains a right to
privacy provision
v. Sexual Orientation
1. Sodomy
a. Commonwealth v. Wasson
i. Use a moonshine case as an example
1. Gut cannot ban moonshine
2. Put meaning into clause through justifying
that it is ok provided it does not harm others
ii. Absolute and arbitrary power over that lives,
liberty, and property of free men exists nowhere in a
republic, not even in the largest majority
2. Marriage and Same Sex Couples
a. Many states beforehand to enact laws to prevent these cases
b. Goodridge v. Department of Public Health
i. Equates marriage to licensing in the eyes of the
ii. Evokes numerous clauses of the Mass. Constitution
iii. Secular licensing agreement
vi. Social Welfare and Positive Rights
a. Negative rights limitations of rights in the federal bill of
b. Positive Rights are mandates to the legislature
i. Requires positive action by the government
ii. Deals with social matters in state constitutions
2. Tucker v. Toia
a. NY Constitution: aid, care, and support of the needy
i. Self executing
ii. Legislature issued a mandate
1. Plaintiff argued that it was a limitation
b. Tool of policy making
3. Butte Community Union v. Lewis
a. More obvious argument about equality
b. Difference with NY provision
i. No constitutional right to welfare within the
Montana Constitution Declaration of Rights
ii. Welfare is a benefit

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c. A benefit lodged in our state constitution requires more

than a rational relationship to a government objective
Surprising amount of mandates in a state constitutions
a. As well as positive rights
Federal review is meant to deal with negative rights
a. Doctrine that reflects under enforcement
Policy making through state constitutions
Hershkoff Article
a. State courts shouldnt rely on federal rationality reviews for
positive rights
b. Question should be: whether a challenged law achieves, or
at least is likely to achieve, the constitutionally prescribed
c. And not, as federal rationality review would have: whether the
law is within the bounds of state legislative power.

vii. Bail
1. No federal right to bail
a. Only a limit on excessive bail
2. Westerman v. Cary
a. Horizontal federalism
i. Look to other states makes sure clause reads
viii. Religion
1. Maylon v. Pierce County
a. Provision that no public money or property shall be
appointed to any religious worship however exception for
state chaplain
b. Court reads clause as an interpretation rule
c. Dissent
i. Not up to us to decide exceptions
b. Unenumerated Rights Provisions of State Constitutions
i. Rights inferred from language, history, and structure of the constitution or
cases interpreting it
ii. McCracken v. State
1. Right to counsel only applies in criminal cases
a. But the unenumerated rights provision extends the right to
be pro se in application for post-conviction relief
2. What rights fall within the unenumeration provision?
a. Those so long established and of such fundamental
importance that they must be regarded as a right retained
by the people.
iii. Herskoff Article
1. Justification for unenumerated rights
2. State courts more relaxed on these issues
Chapter 11 The State Legislative Branch

Downloaded From

a. Limitations of Special or Local Laws

i. No rights guarentees
1. Does not mean cannot win based on them
ii. Benderson Development Co. v. Sciortino
1. Virginias Sunday closing laws
2. Federal equal protection still lose
a. Argued limitation on local laws

Due process of lawmaking- only one subject for each law. Title restricts topic
Maine case about disagreement in constitutional convention 65 min in video. Not everything said
in a debate is important. Will they vote against the provision? argument that burden is on person
submitting record for use must certify its accurate
negative preemption/ implication- Maine case. Home rule granted to states for cities and local
matters. Later all matters except those state legislature negated.
No use of federal separation of powers on state level. No fed min standard

Nj- strong executive CA- strong legislature