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The Federalist Society, in an effort to bring to increased dialogue to the issue of state constitutional jurisprudence, has launched a bibliography of important scholarship, noteworthy cases, and timely law review articles for state supreme court justices and others interested in state courts issues. The articles and opinions noted below will shed further insight into how state courts should engage in the business of interpreting state constitutional provisions and state judicial selection. We hope these resources will bring increased attention and interest to state court jurisprudence and will help to shed light on good models of case law for settling jurisprudential disputes.

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Criminal Procedure

Charles Fried. "Reflections on Crime and Punishment." 30 Suffolk U.L. Rev. 681 (1997).
Professor Fried, writing while serving as an Associate Justice of the Massachusetts Supreme Judicial Court, discusses some possible causes of the harshness within the American penal system. Professor Fried outlines the shorter rates of incarceration in other countries, and the substantial delay within the American criminal justice system. Professor Fried hypothesizes that the generally simpler rules of investigation and evidence used in other Western democracies may account for their greater speed in prosecution, and the shorter length of confinement. Fried argues that state courts are best positioned to test these theories by carefully questioning whether federal constitutional decisions should be imported without refinement into state constitutional interpretations. Such experimentation, Fried concludes, would allow new theories of criminal prosecution and punishment to flourish.
Commonwealth v. Gonsalves. 429 Mass. 658, 711 N.E. 2d 108, (1999).
Rejecting the decisions of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106 (1977) and Maryland v. Wilson, 519 U.S. 408 (1997), the Massachusetts Supreme Court held that Article Fourteen of the Massachusetts Constitution requires police officers to possess a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle during a routine traffic stop. The majority opinion reasoned that citizens have a reasonable expectation that police will complete traffic stops quickly, without delayed seizures designed to yield evidence of additional criminality. The majority viewed exit orders as more than a minimal intrusion on privacy, and speculated that such searches may pose unique hardships on minorities and invite the discriminatory enforcement of the law. Finally, the majority stated that the nature of federalism requires an independent interpretation of the state constitution, without regard to the limitations of the federal Bill of Rights. In dissent, two Justices countered that the majority's interpretation of Article Fourteen amounted to no more than a policy choice more appropriate for the legislature. The dissenters further criticized the majority's allusion to racial inequality as wholly unsupported, and the invocation of federalism as nothing more than a truism. The dissenters would have adopted the bright-line standards of Mimms and Wilson as a reasonable preventative measure that could be clearly administered by both officers and courts.

Education

Chittenden Town School District v. Department of Education. 169 Vt. 310, 738 A.2d 539.
The Chittenden Town School District in Vermont paid tuition to other area high schools to educate its residents. In 1995, the district approved a tuition payments to parochial schools prompting the state department of education to terminate state funding. The school district brought suit challenging the state's decision seeking a declaration that the school's payment policy was constitutional. The Supreme Court of Vermont rejected the challenge, and held that the school policy violated Chapter One, Article Three of the Vermont Constitution. The Court first declined to decide whether the payment policy violated the First Amendment to the United States Constitution, citing a duty to resolve questions of state constitutional law when raised by the parties. The Court then narrowed the questions presented to focus on two issues: whether a school is a place of worship within the meaning of Article Three, and whether the parents' decision to authorize the payments through the school board eliminated direct state sponsorship of religion. Addressing the first issue, the Court surveyed the historical context surrounding the adoption of Article Three, particularly Virginia's Bill for Religious Liberty drafted by James Madison. The Court concluded that the bill's focus on religious education demonstrated Madison's belief that no line exists between religious education and religious worship. Accordingly, the Court concluded that schools fall within the control of Article Three.
Turning to the second issue, the Court recounted the history of the Vermont Constitution, the text of Article Three, prior case law, and decisions of other states interpreting similar provisions to conclude that Article Three prevents public financing of religious worship, and not merely state religious establishments. The Court viewed the major deficiency in the payment program as the absence of restrictions preventing the use of public funding to support religious education. The Court declined to advise the state legislature on whether this deficiency could or should be remedied.
Vincent v. Voight. 236 Wis.2d 588, 614 N.W.2d 388 (Wis. 2000)
A group of parents, students, teachers, and citizens brought a constitutional challenge against the state school finance system, arguing that the system violated the uniformity and equal protection clauses of the Wisconsin Constitution. The Wisconsin Supreme Court rejected both arguments and upheld the funding scheme. The majority opinion explained that the uniformity clause of Article Ten, Section Three creates a fundamental right for all students to receive an equal opportunity for a sound basic education. The majority defined a sound basic education as one that will equip students for their roles as citizens and enable them to succeed economically and personally. The challengers argued that the finance system violated this right by failing to address disparities in the tax base, and by failing to properly allocate available funds. The majority noted that these standards had been codified in statute, and required the Court to defer to the legislature's unique ability to evaluate and respond to questions of public policy. The majority also re-affirmed prior cases holding that the Uniformity Clause does not require uniform revenue raising among school districts, and that limits on revenue raising within the system serve to equalize funding between districts. Accordingly, the majority found no violation of the Uniformity Clause.

Federalism

William J. Brennan. "State Constitutions and the Protection of Individual Rights." 90 Harv. L. Rev. 489.
Justice Brennan explores the expansion of federal Constitutional protections, lauding the extension of the Bill of Rights to the states. Justice Brennan argues that state courts must be cautious in interpreting their own state constitutions, and should not necessarily limit their analysis to the decisions of the United States Supreme Court. Rather, Justice Brennan urges state courts to implement the "double source of protection" envisioned under Our Federalism by construing state constitutions to guarantee liberties beyond those guarded by the federal Constitution. Increasing the reach of state constitutional protections, Brennan concludes, avoids the mechanical application of federal law at the state level and thus fulfills the promise of federalism embodied in the Constitution.
Stanley Mosk. "State Constitutionalism: Both Liberal and Conservative." 63 Tex. L. Rev. 1081, 1985.
Justice Mosk, writing while serving on the California Supreme Court, explains the political benefits possible in state constitutional law. Justice Mosk argues that liberal thinkers seeking expanded protections of individual rights have frequently used state constitutions to supplement the guarantees of federal law. Conservative theorists, Mosk continues, similarly seek to restore the role of state courts as the primary arbiters of individual liberties, consistent with the Founders' design. Justice Mosk thus concludes that liberals and conservatives share a common desire for localized decision-making that presents a mutual opportunity to develop state constitutional rights.

Separation of Powers

Armstrong v. Harris. 773 So.2d 7 (Fla. 2000)
The Florida Legislature proposed an amendment to the Florida constitution changing the standard for excessive punishment, and voters approved the amendment by more than seventy percent. Following the election, a majority of the Florida Supreme Court held that the proposal procedure was defective, and ordered the amendment withdrawn. The majority opinion interpreted the amendment process in Article Ten, Section Five of the Florida Constitution to carry an implicit requirement that amendment proposals be accurately represented on the voting ballot. The majority noted that while proposals originating with the Legislature are entitled to a measure of deference, the implicit accuracy requirement applies to all amendment proposals, regardless of their origin.
The majority next explained the accuracy requirement to contain two separate limitations. First, the ballot title and summary of the amendment must not mislead the voter as to the true effect of the amendment. Second, the ballot summary must state the chief purpose of the amendment, which is determined by reference to objective criteria inherent in the amendment itself. Applying these tests, the majority found the amendment proposal at issue defective in both aspects, because the ballot inaccurately implied an expansion of constitutional protections and failed to disclose that the main effect of the amendment was to nullify Florida's cruel or unusual punishment clause.
Finally, the majority noted that in some cases, a vote to approve a constitutional amendment may cure any defects in the solicitation. This rule, however, is limited to instances where the defect is technical and minor. In contrast, where the defect goes to the heart of the amendment, a favorable popular vote standing alone will not confer automatic validity. In this case, the majority concluded that the defect concealed the fact that voters were nullifying an original component of the state constitution, making the defect irremediable by popular ratification.
In dissent, Chief Justice Wells criticized the majority's creation of an accuracy requirement, and its application of the newly announced standard to an act of the legislature. The Chief Justice also found no constitutional authority for this judicial veto of a legislative act, particularly one that was overwhelmingly approved by the voters. The Chief Justice concluded that if the voters determined that the legislature had indeed misrepresented the amendment proposal, an appropriate remedy exits during the next election cycle. In a separate dissent, Justice Lewis ironically lamented the intervention of the Florida Supreme Court in a matter that "addresses the intent and understanding of Florida voters," to "invalidate the result of a vote after the citizens of Florida have already exercised their franchise." Justice Lewis agreed with the majority that some degree of accuracy is necessary in amendment proposals, but argued that judicial scrutiny of the amendment ballot must be balanced against the equal interest in upholding the result of the voting process. Justice Lewis would have determined whether the alleged defects in the ballot were of such significance as to prohibit the legitimate expression of the people through a favorable vote. Justice Lewis concluded by invoking the equitable doctrine of laches as a basis for rejecting challenges to an amendment ballot after the conclusion of the vote itself. Finally, Justice Quince added a brief dissent reflecting his belief that the ballot title and summary were not misleading, and hence constitutional.
Michigan United Conservation Clubs, et. al. v. Secretary of State, 464 Mich. 359, 630 N.W.2d 297 (2001).
Article Two, Section Nine of the Michigan Constitution states that the power to hold a referendum "does not extend to acts making appropriations for state institutions." The Michigan Legislature enacted a law modifying the standard for the issuance of concealed weapon permits, and allocating one million dollars to the Department of the State Police to implement the new law. In a brief majority opinion by Justice Taylor, the Michigan Supreme Court held that the law was not subject to a referendum, because the law appropriated funds for the police department, thus precluding the referendum power. Each member of the Court, however, added a separate opinion to the decision. Chief Justice Corrigan, and Justices Young and Markman emphasized that the decision did not address the legislature's subjective motivation for the appropriation, or the wisdom of the permit policy. Justice Young also rejected the arguments of the dissenters, and noted the absence of any historical evidence supporting a special understanding of the referendum clause separate from its plain import. Justice Markman similarly rebuked the dissenters for departing from their judicial function, straining to graft exceptions to the constitutional limit on the referendum power in an effort to question the substance of the legislation.
Four dissenting Justices each wrote separately to respond to the majority and concurring opinions. Justice Cavanagh objected to the majority's overly literal analysis, arguing that the high value placed on the referendum power by the framers demanded a broader interpretation of the text. Justice Cavanagh and Justice Weaver also objected to the majority opinion as licensing the legislature to circumvent the referendum power merely by allocating some amount of spending, no matter how insignificant. Separately, Justice Weaver cited previous decisions of the Court to conclude the appropriation exception applied only to matters where a public institution seeks to exercise its function free from financial embarrassment, a concern not implicated in the permit law. Finally, Justice Kelly disagreed with the majority's reading of the plain text, and concluded that the constitutional exclusion of appropriations "for" state institutions presumes that the appropriation is intended to support the core function of the state entity.
Best v. Taylor Machine Works. 179 Ill.2d 367, 689 N.E.2d 1057, 228 Ill. Dec. 636, (1997).
Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038.
"Symposium: Tort Liability, The Structural Constitution, and the States." Seton Hall L. Rev., 31.3 (2001).
Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance by Victor E. Schwartz and Leah Lorber
This article by Victor Schwartz and Leah Lorber of Shook Hardy & Bacon argue that respect between the Executive, Legislative and Judicial Branches of government has broken down in the area of civil justice. A number of courts have nullified the exercise of legislative public policymaking in the area of civil justice reform. As shown by a number of state supreme court decisions, there is hope that this trend may abate and that proper deference will be given by state courts to the proper exercise of state legislative power. The authors hope judges will maintain the appropriate respect for their sister branches of government in the area of civil justice reform. If judges do not, the authors believe that those judges’ decisions will ultimately collide with the Constitution of the United States and that the Supreme Court of the United States will preserve a fundamental principle of government: the separation of powers.

Judicial Selection

"Merit Selection Isn't the Answer to Ensuring a Better High Court" by David J. Owsiany
An Op-Ed piece written by David J. Owsiany that appeared in The Columbus Dispatch on Friday, April 16, 2004.
The Case for Judicial Appointments by John L. Dodd, Christopher Murray, Stephen B. Presser, Mark Pulliam, Alfred W. Putnam, and Paula M. Stannard
A detailed analysis of the history and practice of judicial selection in the states comparing the use of contested elections, appointments, and merit selection. The authors trace the arguments of Hamilton, Tocqueville, and Jackson debated at the framing through the growth of merit selection boards in the 1900s. Documenting the inevitable influence of campaign contributions on judicial decisions, and the intrusion on judicial independence imposed by retention elections, the authors conclude that the appointment system embodied in the United States Constitution for federal judges best serves the goals of independence and civil justice reform.
The Case for Partisan Judicial Elections by Michael DeBow, Diane Brey, Erick Kaardal, John Soroko, Frank Strickland, and Michael B. Wallace
A detailed analysis of the history and practice of judicial selection in the states comparing the use of contested elections, appointments, and merit selection. The authors trace the arguments of Hamilton, Tocqueville, and Jackson debated at the framing through the growth of merit selection boards in the 1900s. Documenting the inevitable influence of campaign contributions on judicial decisions, and the intrusion on judicial independence imposed by retention elections, the authors conclude that the appointment system embodied in the United States Constitution for federal judges best serves the goals of independence and civil justice reform.
John Engler and Lucille Taylor. "Judicial Selection: A View from the Governor's Perspective." Michigan Bar Journal, (September 1996).
Michigan Governor John Engler details his experience appointing judges in conjunction with the state bar committee. Governor Engler explains his nomination and review process, his goals in selecting judges, and the civic and philosophical issues discussed with nominees. Governor Engler concludes that his appointment system has succeeded in producing a talented and independent bench, highlighted by the promotion of numerous groups traditionally excluded from the state judiciary.
Troy Eid. "Judicial Independence and Accountability: The Case Against Electing Judges." The Colorado Lawyer, (July 2001).
A short paper arguing against competitive judicial elections. The author explains that elections promote judicial independence at an unacceptably high cost, noting the strong correlation between campaign contributions and case outcomes. The paper concludes that increased information on judges' performances must be available to the public, and to elected officials, to ensure proper accountability.
Standards on State Judicial Selection by ABA Standing Committee on Judicial Independence Commission on State Judicial Selection Standards
A comprehensive proposal for reforming competitive judicial elections by requiring states to subsidize campaigns with public funds. Through an analysis of testimony, fact-finding, and the public financing plan implemented in Wisconsin, the committee concludes that the escalating costs of judicial campaigns has created a pervasive public perception that elected judges are influenced by competitive fund raising. The committee report argues that judicial elections are unique, requiring insulation from the customary political influence appropriate to the legislative and executive branches. The committee argues that independence is lost when judicial candidates are forced to seek private financial support creating a "constituency" that may threaten neutral decisions, even if only in appearance. The committee thus recommends public financing for both primary and general judicial elections, conditioned on the candidates' promise to forego private funding. Public funding, the report argues, will eliminate the direct influence of the traditionally narrow group of interested contributors that support judicial races. The committee notes that public finance programs must be tailored to address the specific needs of each state, and cautions that First Amendment freedoms and other constitutional restrictions must be carefully considered. Finally, the committee recommends against public financing in states using retention elections, concluding that independence is adequately protected by the judges' voting record.

Public Financing of Judicial Campaigns by ABA Standing Committee on Judicial Independence Commission on Public Financing of Judicial Campaigns
The American Bar Association House of Delegates approved the recommendations of the Commission on Public Financing of Judicial Campaigns at the 2002 ABA Midyear Meeting in Philadelphia. The Commission recommends that states which select judges in contested elections finance judicial elections with public funds, as a means to address the perceived impropriety associated with judicial candidates accepting private contributions from individuals and organizations interested in the outcomes of cases those candidates may later decide as judges. The Commission's report is based on extensive study of state judicial elections and public financing systems for elections in other branches of government. The Commission held three public hearings, at which 25 expert witnesses provided testimony on the feasibility and desirability of public financing for judicial elections.
List of possible queries to state supreme court justice nominees.

Melinda Gann Hall. "State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform." American Political Science Review, 95.2 (June 2001).
According to Professor Hall: "Results indicate that reformers underestimated the extent to which partisan elections have a tangible substantive component and overestimated the extent to which nonpartisan and retention races are insulated from partisan politics and other contextual forces. On these two fundamental issues, arguments of reformers fail….Of particular importance are discussions about judicial independence. Reformers assert that the Missouri Plan, of which retention races are a part, and to a lesser extent nonpartisan elections remove judges from the vicissitudes of interpartisan competition and the 'deleterious political influences present under the [partisan] elective approach…Fundamentally, there are reasons to doubt the claims of the reformers, despite the increased popularity of the Missouri Plan. One of the most basic arguments of those who favor the plan is that it produces a more qualified bench. To the extent that quality can be measured objectively, however, the evidence to date suggests that the Missouri Plan does not fulfill its promise.

Judicial Elections: Past, Present, Future
This conference, sponsored by the Center for Legal Polilcy at the Manhattan Institute and U.S. Chamber Institute for Legal Reform, features two panel discussions: One concerning "Reflections of a Survivor or State Judicial Election Warfare" and a second concerning "The Future of Judicial Elections." Panelists debate the desirability of judicial elections and ask: Why are we experiencing the growing politicization of judicial elections? Are judges driving these changes or are they victims? Are judicial campaigns affecting judicial decision-making?

Promoting Judicial Independence & Public Confidence in the Courts: The Case for Judicial Appointments in Texas by Mark A. Behrens & Cary Silverman
The authors argue, "Texas' method of judicial selection is in dire need of reform. All evidence suggests that the money and rhetoric involved in judicial campaigns is spiraling out of control. With each passing election, public confidence in the integrity and impartiality of the courts falls laower. Judges should be appointed, not elected."

Behrens, Mark A. and Cary Silverman, "The Case for Adopting Appointive Judicial Selection Systems for State Court Judges." Cornell Journal of Law and Public Policy, 11.2 (spring 2002). "This article will discuss the problematic state of elective systems, including the flow of money and unhealthy rhetoric in recent judicial campaigns. The article then reviews recent surveys evaluating the impact of judicial campaigns on public confidence in the courts. Next, the article demonstrates why elections are incompatible with proper judicial function. The article also provides some alternatives for states seeking to move from an elected to an appointive system. The article concludes that the goal of a truly independent judiciary requires states to adopt an appointive system for selecting state court judges."

Is There a Politically Optimal Level of Judicial Independence? by Andy Hanssen
This article presents evidence from state courts that supports the theory that "the greater the probability of [one party] losing power and the greater the distance between the policy ideals of rival parties, the more likely is an independent judiciary to be established."

Learning About Judicial Independence: Institutional Change in the State Courts by Andy Hanssen
The author concludes that each new [state judicial selection] procedure emerged in response to an evolving understanding about the nature and significance of the relevant agency problems. In short, the need for and appropriate structure of an independent judiciary had to be learned."