Friday, August 24, 2012

New York Trial Judge Declares MTA Taxing Scheme Unconstitutional

Who should help pay the costs of public transportation? 

800px-MTA-Bus-MCIs-and-RTSThat's the underlying question posed by Edward Mangano, the Nassau County (Long Island) Executive suing  Sheldon Silver, the longtime Speaker of the NY State Assembly.  It's a dispute pitting suburban companies against urban interests.  The NY Legislature in 2009 passed the Metropolitan Transit Authority (MTA) Tax to fund the transit authority that serves NYC and its suburbs.  Basically, the law imposes a 34 cent tax per 100 dollars of payroll. 

Applying state constitutional law principles, a Nassau County judge issued a six page ruling in Mangano v. Silver, that the MTA tax was a "special law" that did not serve a substantial state interest and therefore did not satisfy the state constitutional process requiring a Home Rule message or a message of necessity with two-thirds vote in each house.  It's sure to be appealed: the stakes are high and the opinion superficial.  Meanwhile, because the process rather than the substance is the issue, perhaps the matter will be solved by political maneuvering.

[image via]



August 24, 2012 in Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 23, 2012

Ninth Circuit "Interprets" Constitution of Commonwealth of the Northern Mariana Islands

In a brief opinion, a panel of the Ninth Circuit interpreted the Constitution of the Commonwealth of the Northern Mariana Islands to provide no property interest in continued employment necessary for a due process claim by a Special Assistant to the Governor.  More precisely, the Ninth Circuit deferred to the opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands, having certified the questions to the Supreme Court and attaching the court's opinion as an appendix to its own.

Northern_Mariana_Islands_mapThe Commonwealth Constitution, Article III, section 22, establishes an "Office of Special Assistant to the Governor for Women's Affairs," and provides that the "governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant" and the "special assistant may be removed only for cause."

In Peter-Palican v. Government of Commonwealth of Northern Mariana Islands, Ms. Peter-Palican argued that the new governor's termination of her as Special Assistant to the Governor for Women's Affairs violated her due process rights. 

The Ninth Circuit held that the "removal for cause" did not extend beyond the term of the governor who appointed her, adopting the Commonwealth's Supreme Court decision.  Thus, Ms. Peter-Palican did not have the requisite property interest as a threshold for a due process inquiry. 


The Ninth Circuit's determination that the Commonwealth Supreme Court is the final arbiter of its constitution comports with general federalism principles, although the Commonwealth of Northern Mariana Islands is not a state. Indeed, its status is rather unique, governed by the "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," approved by Congress, and signed by President Ford in 1976.  The Covenant exempts specific portions of the Constitution as well as specific federal laws (importantly, immigration and minimum wage laws) unless adopted by the Commonwealth. 

The "removal for cause" provision in a constitution would seem to provide some protection from changing elected officials such as governors.  Perhaps if the position were not a "special assistant to the governor" the Commonwealth Supreme Court - - - and the Ninth Circuit - - - would have viewed the matter differently.

[images via]

August 23, 2012 in Comparative Constitutionalism, Due Process (Substantive), Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Kansas Supremes Extend Right to Counsel to Sexually Violent Predators Proceeding

The Kansas Supreme Court ruled last week in In the Matter of the Care and Treatment of Ontiberos that state and federal due process require that the state provide counsel to a person in a civil proceeding to detain that person as a sexually violent predator.

The ruling means that persons subject to civil confinement as sexual predators under Kansas law get an attorney at trial, and that the attorney has to meet certain standards of performance.  The case is a victory for advocates of the right to counsel in civil proceedings, even if it's not particularly groundbreaking.  It also reminds us that even after the Supreme Court stepped back from granting a categorical right to counsel whenever liberty is at stake, due process may still demand counsel in certain civil cases.

The Kansas Sexually Violent Predator Act allows the state to detain a person upon a showing beyond a reasonable doubt that the person is a sexually violent predator.  But the Act is ambiguous about a target's statutory right to counsel.  (The Act says that any person subject to it is entitled to the assistance of counsel at every stage, but it also says that the state's failure to comply "in no way prevents the attorney general from proceeding against" the person.)  Ontiberos, a prisoner subject to KSVPA proceedings, had an attorney at trial, but claimed that he was ineffective.  The ambiguity of the statutory right to counsel, and Ontiberos's claim that his attorney was ineffective, allowed the court to rule first whether he had a constitutional right to counsel and next whether that counsel was ineffective.

The court ruled Ontiberos had a state and federal constitutional right to counsel.  It applied the familiar three-part procedural due process balancing test in Mathews v. Eldrige and ruled that Ontiberos's liberty interest was quite high, the government's interest in saving money was comparatively low, and the risk of an erroneous deprivation of liberty without counsel was high, especially because the government was represented by counsel.

The court tipped its hat to the Supreme Court's 2011 ruling in Turner v. Rogers.  That case held that there was no automatic right to counsel in a child support proceeding, even if that proceeding could result in a parent's 1-year imprisonment (for contempt), so long as sufficient alternative procedures were available.  Even so, said the Kansas court, Turner didn't rule out a constitutional right to counsel in other civil cases (like this one) where the Mathews factors aligned more favorably for the claimant.

Instead, the court looked to Vitek v. Jones.  In Vitek, the Supreme Court ruled that a prisoner had a right to counsel in a proceeding to transfer the prisoner to a mental hospital until his sentence expired, unless treatment was no longer necessary.  The Kansas court said that Ontiberos's liberty claim (the first Mathews factor) was even greater than the liberty claim in Vitek, because without the KSVPA proceeding Ontiberos would have been released.  (Remember: his sentence was coming to an end.)

Having found a right to counsel, the court then ruled that counsel had to meet the two-prong performance standard in Strickland v. Washington.  The court said that this attorney didn't, and remanded the case to the trial court.


August 20, 2012 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, August 10, 2012

Mass High Court Recognizes Judicial Deliberative Privilege

The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.

The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law.  As the court said, "Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."

The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge.  But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.

The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary.  The first, Article 29 of the Massachusetts Declaration of Rights, reads:

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.  It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.  It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.

The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47.  Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")

The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).


August 10, 2012 in Comparative Constitutionalism, Courts and Judging, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2012

Missouri State Constitution Amended to Include "Right to Pray"

425px-Alexandre_Couder_-_Woman_Kneeling_in_Prayer_-_Walters_371369Amendment 2, the so-called "prayer amendment" to the Missouri state constitution passed by a hefty margin in yesterday's election.  

The Missouri constitution Article I, section 5, was amended to include this language:

  1. that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed; that the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly; that citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies; that students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work; that no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs; that the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary,whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States; but this section shall not be construed to expand the rights of prisoners in stateor local custody beyond those afforded by the laws of the United States . . . .

Whether the Missouri Amendment 2 conflicts with First Amendment doctrine is uncertain, however, it does seem that it may provide students greater rights to "opt-out" of curriculum.  It may also prompt Establishment Clause challenges should the state take steps to "ensure" prayer at public events.

[image: Alexandre Couder, Woman Kneeling in Prayer, 1800s, via]

August 8, 2012 in Current Affairs, First Amendment, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, July 7, 2012

Missouri Supreme Court Upholds Ballot Initiative Repealing Local Earnings Tax

A unanimous Supreme Court of Missouri last week ruled in Dujakovich v. Carnahan that a ballot proposition designed to repeal state law authorizing Kansas City to levy an earnings tax did not violate the state constitution.  

The ruling means that the repeal stays on the books, thus making it more difficult and costly--though not impossible--for cities to continue to levy an earnings tax.  Under the repeal, any city that enacted an earnings tax (under its previous statutory authority) could continue to levy the tax, but they'd have to put it to the city voters every five years.  (Any city that did not levy an earnings tax is now entirely prohibited from doing so.)  The practical effect may be to eliminate certain city earnings taxes.

The case started way back in 1963, when the Missouri General Assembly enacted enabling legislation that authorized Kansas City to levy an earnings tax for general revenue purposes.  More recently, in 2009, Secretary of State Carnahan certified a voter ballot initiative to repeal that authority, but to allow cities that levied earnings taxes under it to continue to do so, so long as city voters approved the levy by ballot every five years.  Here's the text of the initiative:

Shall Missouri law be amended to:

  • repeal the authority of certain cities to use earnings taxes to fund their budgets;
  • require voters in cities that currently have an earnings tax to approve continuation of such tax at the next general municipal election and at an election held every 5 years thereafter;
  • require any current earnings tax that is not approved by the voters to be phased out over a period of 10 years; and
  • prohibit any city from adding a new earnings tax to fund their budget?

After Missouri voters approved the question, appellants sued, arguing that it violated three provisions of the Missouri constitution.  First, they argued that the initiative was a de facto appropriation in violation of Article III, Section 51, because it required cities to run an election to continue an earnings tax without providing a new source of revenue for the cost of those elections.  (Section 51 says that an "initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby.")  The court rejected this claim, stating that nothing in the initiative required cities to run an election: cities could simply decline to put the earnings tax to their voters (and thus necessarily forego the tax).

Next, appellants claimed that the initiative violated the Hancock Amendment to the Missouri constitution.  That Amendment prohibits the state from imposing any new activity or service on any political subdivision of the state, or from reducing the state financed proportion of the costs of any existing activity.  The court ruled that nothing in the Hancock Amendment restricts the power of the people to govern themselves by intiative--itself a state constitutional right under Article III, Section 49.

Finally, appellants argued that the initiative impermissibly amended the city's charter in violation of Article VI, Section 20.  But the court said that any conflict between a city charter--authorized by the general assembly, after all--and state law must be resolved in favor of the state law.

Next step for the appellants: Get the cities to put the earnings tax to city voters, and get out the vote.


July 7, 2012 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 30, 2012

ACLU Sues to Stop Minnesota Voter ID Ballot Proposal

The Minnesota ACLU, along with the League of Women Voters Minnesota, Common Cause, Jewish Community Action, and five Minnesota voters, filed a petition with the Minnesota Supreme Court seeking to strike a ballot question that, if passed, would amend the Minnesota Constitution to require voter ID.

The petitioners claim in their Brief and Addendum that the ballot question is false, misleading, and an incomplete description of what the amendment would actually do--in violation of Article IX, Section 1, of the Minnesota Constitution.  That Section provides that proposed amendments shall be "submitted to the people for their approval or rejection."  The Minnesota Supreme Court interprets it considering whether the language of the ballot question would mislead a voter of common intelligence to the proposed amendment's actual meaning and effect.

Here's what the legislature required the ballot to say:

Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?



And here's what the amendment to the Constitution would say:

(b) All voters voting in person must present valid government-issued photographic identification before receiving a ballot.  The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section.  A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot.  A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.  

(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

The petitioners argue that the ballot question misleads in five ways:

1. It says that the amendment would require photo ID from "all voters," but the amendment actually only requires it from those who vote "in person."

2. It omits any mention of the "substantially equivalent" verification provision.

3. It fails to disclose that the proposed amendment would requirement government-issued ID (and not just any ID).

4. It fails to disclose that the proposed amendment would require provisional voting.

5. It has a misleading title for the proposed amendment--"Photo Identification Required for Voting."

The proposed amendment came about after the legislature first passed voter ID and the governor vetoed it.  Rather than overriding the veto, the legislature voted to put the measure on the ballot as a constitutional amendment.


May 30, 2012 in Cases and Case Materials, Comparative Constitutionalism, Courts and Judging, Fundamental Rights, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

OWS Complaint for Destruction of Books Filed in Federal Court

The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.


In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged.  The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment.  The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain.  The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.

[image: OWS Zucotti Library via]


May 24, 2012 in Current Affairs, First Amendment, Fourteenth Amendment, Fourth Amendment, Procedural Due Process, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Friday, March 30, 2012

Arkansas Statute Criminalizing Student-Teacher Sex Held Unconstitutional

Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009) provides that a person commits sexual assault in the second degree if the person is a teacher in a public school in a grade kindergarten through twelve (K-12) and
engages in sexual contact with another person who is:
        (A) A student enrolled in the public school; and
        (B) Less than twenty-one years of age.

406px-Charles_Green02In a 4-3 opinion, the Arkansas Supreme Court in Paschal v. State declared the statute unconstitutional as applied to the criminal conviction of David Paschal, a high school teacher, for a "months-long sexual relationship" with an eighteen-year-old student.  Pashal had been sentenced to ten years’ imprisonment
on each of three sexual-assault convictions and given ten years’ suspended sentence for a fourth sexual-assault conviction.

Pashal relied upon Lawrence v. Texas as well as interpretations of the Arkansas Constitution protecting adult consensual sex.  While the Arkansas court had previously upheld the criminalization of sex by a member of the clergy who is "in the position of trust or authority over the victim and uses the position
of trust or authority to engage in sexual intercourse or deviate sexual activity,"  the court here noted that § 5-14-125(a)(6) was a "strict liability" statute that did not mention trust or authority. 

It was on this interpretation of the statute that the majority and dissent bitterly disagreed.  The majority opinion, footnote 10, stated: "We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority."  Later in the same footnote the majority writes that the "dissent's manufacturing" of the issue of the teacher's awareness of a position of authority "is both injudicious and irresponsible."

Essentially, the majority found persuasive the fact that the victim was an adult.  The state conceded the sexual relationship was consensual, and without more, the statute was unconstitutional as applied.

[image: "The Schoolmaster" by Charles Green circa 1875 via]

March 30, 2012 in Due Process (Substantive), Fundamental Rights, Opinion Analysis, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Texas Secession? An Imagined Constitutional Lone Star Republic

Texas-with-texas-flag1Discussions of secession always seem slightly humorous, including our previous one discussing Long Island and Vermont - - - as well as Texas.

And Texas is in the "news" again, with this rather lengthy "Lone Star State of Mind" on today's All Thing's Considered broadcast on NPR.





Worth a listen!



March 30, 2012 in Federalism, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Thursday, March 22, 2012

State Courts and Constitutions

How many Justices are there on the Montana Supreme Court?  Are the Justices on Idaho's highest court elected or appointed?  Does the state bar play a role in nominating the Justices of Tennessee?  What's the term of service on the Ohio Supreme Court?  Which provision in the New Jersey Constitution governs the selection of Justices?  How many states have a "Missouri plan" and what does that mean anyway? 

An excellent resource from the Federalist Society, the State Courts Guide, can answer these questions and a host of other queries about the highest courts in each state.  Clicking on individual states in the US map color-coded by types of judicial selection will lead to more detailed information about a state and pertinent links; here's Wyoming:


Screen Shot 2012-03-22 at 6.15.15 PM


It would be great to also have the individual state information in a 50-state chart for ease of comparison, but perhaps that will be available in the 2.0 version.


March 22, 2012 in Courts and Judging, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, November 17, 2011

Arizona Supreme Court to Jan Brewer: Unconstitutional to Remove Chair of Restricting Commission

Governor_JanBrewer_Portrait_2011_MedThe Arizona Supreme Court issued an order today finding the controversial removal of Colleen Mathis, the Chair of the Arizona Independent Redistricting Commission, by Governor Jan Brewer (pictured right) was unconstitutional.

Here is the entire order:

Having considered the filings in this matter by the petitioner, the intervenor, the respondents, and the amici curiae, and the arguments of counsel,
1. The Court accepts jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution;
2. The Court concludes that the issues presented in this matter are not political questions and are therefore justiciable. See Brewer v. Burns, 222 Ariz. 234, 238-39 ¶¶ 16-22, 213 P.3d 671, 675-76 (2009);
3. The Court concludes that the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution;

Therefore, the Court grants the relief requested by the intervenor Mathis and orders that she be reinstated as chair of the Independent Redistricting Commission.

The Court in due course will issue an opinion more fully detailing its reasoning in this matter.

Article 4, Part 2, Section 1(10) of the Arizona Constitution provides "After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."

Governor Brewer's letter of October 26 detailed several objections to the redistricting process and her subsequent November 1 statement removed Matthis:

“The Arizona Constitution provides that the Governor has direct oversight of the Independent Redistricting Commission, as well as the ability to remove any member due to "substantial neglect of duty‟ or "gross misconduct in office.‟ I invoked that authority today with my decision to remove IRC Chairwoman Colleen Mathis, and I‟ve called the Arizona Legislature into Special Session so that the State Senate may concur with this removal, in accordance with the Constitution.
“I recognize that my decision will not be popular in some quarters. I certainly did not reach it lightly. However, the conduct of the IRC – led by Chairwoman Mathis – has created a cloud of suspicion that will not lift. A flawed redistricting process has resulted in a flawed product. Just as disturbing, the public does not have confidence in the integrity of the current redistricting process. As Chairwoman of this Commission, the buck stops with Ms. Mathis.
“Today‟s action isn‟t the easy thing, certainly. But I‟m convinced it‟s the right thing. I will not sit idly-by while Arizona‟s congressional and legislative boundaries are drawn in a fashion that is anything but Constitutional and proper. Arizona voters must live with the new district maps for a decade.
“I urge the Senate to act quickly so that a newly-constituted Redistricting Commission may complete its duties in time.”

The dispute seems to be a classic one in which the Executive removed an official (and was supported by the legislature) based upon a disapproval or disagreement rather than the constitutionally required good cause standard.


More on the Arizona Supreme Court's full opinion when it appears.


November 17, 2011 in Appointment and Removal Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Proposition 8 and the Question of Constitutional Standing: In the California Supreme Court

The question - - - certified by the Ninth Circuit to the California Supreme Court and heard in September - - - was this:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

The short answer from the California Supreme Court today is "Yes."  Or, as the conclusion to the court's opinion in Perry v. Brown states:

when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

446px-CACourt_protestIt takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee."   On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."

The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings.  The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding."  Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.

The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process.  In these cases, non-state actors have had the ability to defend the initiative from challenges.  Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."

If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.

[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].

November 17, 2011 in Equal Protection, Family, Fundamental Rights, Opinion Analysis, Sexual Orientation, Standing, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, October 2, 2011

Florida Prison Privatization: Allowable but State Constitutional Process Must be Followed

In an order Friday, Judge Jackie Fulord held unconstitutional a statute ordering the privatization of 29 South Florida prisons in Baiardi v. Tucker.  The suit was filed by the correctional officers union.

210px-Jail_Bars_Icon.svg The judge stated that there was no question that Florida could privatize prisons under Florida Stat. §944.105, which gives authprity to the Department of Corrections (DOC) to "outsource" correctional functions based on DOC expertise.  But the problem here was that the Florida Legislature was now mandating DOC privatize the 29 prisons - - - and this mandate occurred not in an ordinary statute (a general law) but in the "hidden recesses" of a General Appropriations Act. 

In her brief order, Judge Fulord relied upon the very simple provisions of Florida Constitution Article III §6 and §12:

SECTION 6. Laws.—Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”.

SECTION 12. Appropriation bills.—Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

The ruling reportedly caused the stock of a Florida-based private prison operator to fall.

[image via]

October 2, 2011 in Current Affairs, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

Justiciability under the New York State Constitution: Motion to Dismiss Same-Sex Marriage Challenge

The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute.  The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).

The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution.  The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable."  Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution.  The Attorney General also argues that the plaintiffs lack standing under the state constitution.  The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.


September 19, 2011 in Family, News, Sexual Orientation, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 30, 2011

Michigan Court Rejects End-Run to Cut State Employees' Negotiated Salary Increase

A three-judge panel of the Michigan Court of Appeals, Michigan's intermediate appellate court, ruled last week that the Michigan Constitution prohibited the legislature and then-Governor Granholm from requiring that 3% of state employees' salaries go to the public employee retirement health care fund.  The ruling rebuffs the attempted legislative end-run around a state constitutional delegation of power over public employees' salaries to the state Civil Service Commission.  It also deals a blow to the legislature's attempt to balance the state's books on the back of state workers.  According to the Detroit Free Press, the governor's office is considering whether to appeal.

The case, AFSCME Council 25 v. State Employees Retirement System, arose out of the legislature and governor's attempt to roll back a negotiated 3% pay raise over three years for state workers.  Public employee unions negotiated the pay increase and got it approved by the state Civil Service Commission, an independent body, with bi-partisan members appointed by the governor. 

The Commission had plenary authority over state workers' salaries until the state constitutional convention in 1961.  At that time, Michigan voters approved a new article, Article 11, Section 5, that also gave the legislature a hand--but a small one--in setting salaries.  Under Article 11, Section 5, of the 1963 Constitution, the Commission still gets to approve salaries, but the legislature can override a Commission decision by 2/3 vote in each house within 60 days of the Commission decision.

The legislature tried to override the Commission's approval of a 3% pay increase here, but it failed.  So instead it tried an end-run around the Constitution by enacting a law, by bare majority (and not 2/3), that sent 3% of state workers' salaries to the public employee retirement fund.  The move meant that employees didn't see their negotiated pay raise; that money went instead to partially make up a deficit in the fund.

The court ruled that this end-run violated Article 11, Section 5, and state constitutional separation of powers.  The court noted that the Michigan Constitution has a separation-of-powers clause that ensures that none of the three branches interferes with the work of the others, except when specifically authorized by the Constitution.  It reads:

The powers of government are divided into three branches: legislative, executive and judicial.  No person exercising powers of one branch shall exercise powers belonging to another branch except as expressly provided in this constitution.

Article 3, Section 2.  The only express provision allowing the legislature to interfere with the work of the Commission was the 2/3 override provision in Article 11, Section 5.  Thus, the action was ultra vires--unauthorized by Article 11, Section 5, and violating separation of powers.

The ball's now in the government's court.  It can appeal to the Michigan Supreme Court (which seems likely), or it can pay back state workers the $59 million it withheld from their salaries to put into the fund.


August 30, 2011 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 16, 2011

Florida Supreme Court to Governor Rick Scott: Unconstitutional Executive Order Suspending Agency Actions

In an opinion today, Wiley v. Scott, the Florida Supreme Court dealt a blow to Governor Rick Scott's attempt to - - - as the Governor's website describes it - - - fulfill a campaign practice by "signing executive orders to freeze job-killing regulations."  In Executive Order 11-01 entitled "Suspending Rulemaking and Establishing the Office of Fiscal Accountability and Regulatory Reform" Scott established the office, known as OFARR, within the Executive Office of the Governor and directed the suspension of rulemaking except as approved by OFARR.   After a lawsuit was brought but before today's opinion, Scott superceded EO 11-01 with Executive Order-11-72, in which he no longer used the word "suspend." The Florida Supreme Court deemed this change more apparent than real, labeling it "nothing more than a sleight of hand."  

In Wiley, the Florida Supreme Court (pictured below) issued the extraordinary writ of quo warranto - - - a proper writ, according to a previous case, to  "challenge the 'power and authority' of a constitutional officer, such as the Governor."


Having agreed to consider the case, the per curiam opinion, over two dissents, forumulated its "precise task" as being  "to decide whether the Governor has overstepped his constitutional authority by issuing executive orders which contain certain limitations and suspensions upon agencies relating to their delegated legislative rulemaking authority and the requirements related thereto."

The Florida Supreme Court found that the Governor usurped the legislative role under the strong separation of powers principles in the Florida Constitution.   

Rulemaking is a derivative of lawmaking. An agency is empowered to adopt rules if two requirements are satisfied. First, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented. 

After an extensive analysis, the court concluded that the Governor‘s executive orders, to the extent each suspends and terminates rulemaking by precluding notice publication and other compliance with the state administrative procedure act absent prior approval from OFARR, infringe upon the very process of rulemaking and encroach upon the Legislature‘s delegation of its rulemaking power.  The court noted that whether "the Governor exceeded his authority derived from state law does not turn upon the number of times the encroachment occurred or whether petitioner was personally affected by it."

Two Florida Supreme Court Justices dissented, joining each other's opinions but writing separately.  Justice Ricky Poston's dissent is longest, nearly as lengthy as the court's per curiam majority opinion.  Poston relies on Article IV, section 1(a) of the Florida Constitution that provides that the "supreme executive power shall be vested in a governor" and argues that the Governor has broad powers.  Polston also argues that because EO 11-01 has been superceded and OFARR is approving rulemaking, the Florida Supreme Court's opinion is merely advisory.

The opinion, however, relies upon state constitutional separation of powers provisions and principles to invalidate the acts of a controversial governor seeking to create a super-administrative agency within the Executive branch to control all other agencies.  As such, it might be read with interest by other state supreme courts, and perhaps other governors.



August 16, 2011 in Executive Authority, Nondelegation Doctrine, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

State Constitutional Law Challenge to New York's Same-Sex Marriage Statute

New York's same-sex marriage statute, passed June 24, 2011, became effective Sunday, July 24, amidst a great deal of marrying covered in many press venues, including from the NYT covering events throughout NY, at the traditional honeymoon site of Niagra Falls, the state capitol Albany, and New York City, not to mention a special style section.


There has been some controversy regarding the religious exemptions in the statute, including the role of town clerks, but now there is a broader challenge to the statute.

The statute was challenged in a complaint (h/t Capitol Confidential) filed today by a group called New Yorkers for Constitutional Freedoms, which describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original).

The complaint alleges:

In Seeking declaratory and injunctive relief, the Plaintiffs in this case seek to preserve not only marriage as the union of one woman to one man, but also our constitutional liberties by acting as a check on an out-of-control political process that was willing to pass a bill regardless of how many laws and rules it violated.

According to the complaint, the violations included:

  • Meetings that violated New York State Open Meetings Laws;
  • The suspension of normal Senate voting procedures to prevent Senators who opposed the bill from speaking;
  • Failure to follow Senate procedures that require that a bill must be sent to appropriate committees prior to being placed before the full Senate for a vote;
  • Unprecedented Senate lock-outs by which lobbyists and the public were denied access to elected representatives;
  • The Governor’s violation of the constitutionally mandated three-day review period before the Legislature votes on a bill by unjustifiably issuing a message of necessity;
  • Promises (which were fulfilled) by high-profile elected officials and Wall Street financiers to make large campaign contributions to Republican senators who switched their vote from opposing to supporting the Marriage Equality Act;
  • A private dinner between the Republican Senators and Governor Cuomo at the Governor’s mansion, with the public and press excluded, aimed at convincing Republican Senators to vote in favor of the bill.

Once notorious as having a legislative process known as  "three men in a room"  - - - discussed in a 2006 book with that name - - - many observers believe the process has actually improved.  However, the state constitution, as the complaint points out, requires "the doors of each house [of the legislature] shall be kept open, except when the public welfare shall require secrecy." NY Const. Article III, section 10.  The Senate "lock-out" of "lobbyists" in its "lobby" is argued as violating this provision.

Jimmy Vielkind, reporting for Capitol Confidential, of the Albany Times-Union, provides some reactions to the lawsuit.  Vielkind also reports that the NY State Open Meeting law claim has a very small chance of success: "Fun fact: the state legislature has a specific, blanket, exemption from the Open Meetings Law that was enacted into law in 1985, according to Bob Freeman, executive director of the Committee on Open Government at the Department of State."   Indeed, the statute's legislative exemption is exceedingly broad.

[image: Bride Embellished by Her Girlfriend, by Henrik Olrik, circa 1859, via]

July 25, 2011 in Family, News, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Same-Sex Marriage in NY & the Religious Exemption: Alliance Defense Fund's Memo to Town Clerks

The New York Same-Sex Marriage statute, which becomes effective July 24, contains a religious exemption, although not for town clerks as we've previously discussed. 

But the Alliance Defense Fund has written a Memo to town clerks with the authority to issue marriage licenses entitled "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The Memo does not rely on the statute, or on the First Amendment, but on Executive Law § 296, the Human Rights Law, which includes protection based upon religion.  

Town clerk

Section 10 provides: "It shall be an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion."

The example provided is observance of holy days.  In this case, the clerk would have to connect issuing a marriage license to a "sincerely held practice of his or her religion."  The law contains an exemption for the employer's undue hardship, which again is largely focused on time off for religious observance.

The law also has an exemption for religious institutions and organizations; they are allowed to discriminate on the basis if religion under the Human Rights Law.

The Alliance Defense Fund Memo includes a "sample letter" that a clerk could send to the mayor and city council requesting an accommodation.


July 18, 2011 in Current Affairs, Family, First Amendment, Religion, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (3) | TrackBack (0)

Wednesday, July 13, 2011

Parental Fourteenth Amendment Right Overrides Claims of CoParent's Child Custody

Relying on the "constitutionally protected due process right" of parents to "make decisions concerning the care, custody, and control of their children" and the principle that the "parents’ right to custody of their children is paramount to any custodial interest in the children asserted by nonparents," citing Troxel v. Granville, 530 U.S. 57, 66 (2000), as well as Ohio cases, the Ohio Supreme Court grappled witha lesbian co-parenting issue in its opinion in In re Mullen, decided July 12. (h/t How Appealing).

In a closely divided 4-3 opinion, the majority nevertheless recognized that "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement."  Yet proving the existence of the terms of such an agreement, even when there are written documents, seems execeedingly difficult.  There was contradictory evidence, but the court affirmed the lower courts' conclusions that there was no agreement for shared custody.  The court rejected the argument that “coparent," as used in documents, equaled “shared legal custody” and rejceted the claim "that because the parties’ statements and various documents used the “coparent” terminology, the parties therefore clearly agreed to “shared legal custody.”

“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use ofthe term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the  evidence.



The dissent cited In re Custody of H.S.K.-H.  (Holtzman v.  Knott), 533 N.W.2d 419 (WI. 1995).  The court in Holtzman had articulated the influential four part functional coparenting test sufficient to overcome an absolutist version of the biological parent's Fourteenth Amendment right:  1) the legal parent fostered and consented to development of a parent-like relationship between the petitioner and the child; 2) the petitioner and child lived together in the same household; 3) the petitioner assumed the obligations of parenthood by taking responsibility for the child’s care, education, and development, including but not limited to financial contribution, and did not expect financial compensation; 4) the petitioner has been in a parent-like relationship a sufficient amount of time to have a bonded relationship.

In New York, the court in Alison D.  v.  Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991), held that a co-parent is a non-legal “parent” and no “parent” with any claim to visitation or shared custody under state law: the biological parent's Fourteenth Amendment right is inviolate.  New York's same-sex marriage statute, which goes into effect later this month, will certainly have an effect on Alison D.

[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]

July 13, 2011 in Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Reproductive Rights, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)