Issue 14: Looking To State Courts After Another SCOTUS Debacle

July 13, 2023 By Kyle C. Barry

Vacancies & Elections Roundup

  • Florida Governor Ron DeSantis has now appointed five of the seven Florida Supreme Court justices, after Meredith Sasso replaced retired Justice Ricky Polston. Sasso was a corporate litigator and counsel to then-Governor Rick Scott before she first took the bench. After her appointment, Sasso quickly joined a 6-1 ruling that rejected a challenge to DeSantis’s removal of a twice-elected local prosecutor who supported criminal justice reform and pledged to not prosecute abortion-related offenses. DeSantis’s August 2022 “suspension” of Hillsborough County (Tampa) State Attorney Andrew Warren was “the latest chapter in the GOP’s sustained attacks on reproductive rights and transgender rights in Florida, as well as broader criminal justice reform efforts,” Chris Geidner wrote in Bolts Mag. Later this year, the Florida Supreme Court will decide whether to overturn its 1989 precedent holding that the state constitution protects access to abortion. Oral arguments are set for September
  • Judge George W. Draper III, the second Black judge to ever serve on Missouri’s Supreme Courtwill retire on August 4. His retirement adds a second upcoming vacancy to the seven-member court, as Justice Patricia Breckenridge will retire in October. The state’s Appellate Judicial Commission is accepting applications and community nominations to replace Judge Draper until July 21. Ultimately, Governor Mike Parson will fill both vacancies, giving the court five Republican appointees. 
  • The New Jersey senate unanimously confirmed Michael Noriega to the state supreme court, giving the court its first ever public defender. “I think if you’re looking at a seven-member body, you really want a court that reflects the totality of the legal profession,” Gov. Phil Murphy’s chief counsel Parimal Garg told Bolts Mag. “It’s a recognition of the fact that, if you spent a large part of your career as a public defender, you’re going to have a very different perspective on the criminal justice system than if you had spent the majority of your career as a prosecutor.”

Must Read Commentary: Liberals Should Use State Courts To Check The Supreme Court

In a new essay for New York Magazine, law professors Lara Bazelon and James Forman, Jr. argue that progressives should respond to a reactionary Supreme Court by focusing on state courts “where they actually stand a chance.” It’s a call to action not just for lawyers looking to strengthen constitutional rights through litigation, but also organizers and activists who to this point have ignored state courts as a target for change: “Progressives must do with state courts what the right has already done with conservative judges: elevate liberal jurists who have principles, guts, and vision.”

Citing SLRI’s research on the lack of professional diversity among the nation’s 350 state supreme court justices, Bazelon and Forman argue that one path forward is putting more public defenders and civil rights lawyers on the bench:

Not coincidentally, the Washington [Supreme] court [which has issued a string of decisions restricting prison terms for youth and young adults] includes four former public defenders and several justices of color, an exception for state courts. According to a new report by the State Law Research Initiative, a nonprofit that supports scholarship on state constitutional rights, more than 40 percent of judges on state high courts are former prosecutors, while less than 11 percent have experience representing indigent clients. Only 7 percent are former civil-rights litigators while at least 38 percent percent came from corporate law firms — nearly as many as former prosecutors. 

The piece concludes:

When we were in law school, there was still hope that the federal courts, including the Supreme Court, would stand up for the most vulnerable. No longer. So we will keep telling our students what we know to be true: If you came to law school to fight for fundamental rights, you’ll make a bigger difference convincing a state court to break new constitutional ground that not even the most right-wing Supreme Court justice can touch.

Indiana Chief Justice: Use State Constitution to Curb Excessive Punishments

In 2019, Indiana Chief Justice Loretta Rush, a Republican-appointee who has served on the court since 2012, wrote a law review article urging Indiana lawyers to more actively “cultivate” state constitutional rights. Rush explained how “the Indiana Constitution remains a vibrant guarantor of rights” that “sets an example for other states to more thoroughly employ their own state constitutions,” and called on the “legal community [to further] cultivate independent state constitutional jurisprudence.” Among the specific provisions discussed is the state’s ban on “cruel and unusual punishments,” which, Rush noted, is already understood to “sweep somewhat more broadly than the Eighth Amendment.”

And in two recent cases, Rush called on her own court to go further and follow the growing number of state supreme courts that have invoked state constitutional rights to limit excessive punishment. 

In December, Rush wrote a dissent arguing that the court should use its “constitutional authority” to ensure that prison terms are proportionate to offender culpability, particularly when long sentences are used to punish conduct related to substance use disorders. That case involved a maximum 16-year prison sentence given to a man who fueled an addiction to pain medication by dealing methamphetamine. 

More recently, in late June, Rush dissented from the court’s decision to let stand a 100-year sentence given to a teenager with a history of both mental illness and potential intellectual disability. In her opinion (joined by Justice Christopher Goff), Rush wrote that the court should clarify that “a juvenile’s characteristics,” including “youth and its distinctive attributes,” are relevant to a state constitutional claim of excessive punishment. She also recognized that such a draconian sentence, while technically a term of years, amounts to “a de facto sentence of life without parole,” and argued that the Indiana Supreme Court should consider joining the other “several state supreme courts” that have “found that shorter term-of-years sentences imposed on juveniles violate their states’ analogous constitutional provisions.” (Disclosure: SLRI organized and signed an amicus brief in the case.)

Divided Tennessee Supreme Court Upholds Pay-To-Vote Scheme

Nearly 40 years ago, in 1986, Ernest Falls was convicted of a felony in Virginia. He completed his sentence a year later, and in 2020 then-Virginia Governor Ralph Northam granted clemency to Falls, “fully restoring his rights to vote, hold public office, serve on a jury, and be a notary public.” 

But by that time Falls had moved to Tennessee, and for Tennessee, a state where Falls had no criminal record, that wasn’t good enough. Instead, state officials decided to refuse Falls’ voter registration, and then defend their refusal all the way to the state supreme court. Their problem was a Tennessee law requiring people with felony convictions to pay outstanding restitution, court costs, and child support payments before their voting rights are restored. Nevermind that the state lacked “any evidence” that Falls actually owed such debts. The state demanded proof that he did not. 

On June 29, the Tennessee Supreme Court upheld this pay-to-vote scheme in a 3-1 ruling. The majority’s analysis largely rests on statutory grounds, but it quickly dismissed concerns that applying this requirement to Falls (if not everyone else) violates the state constitutional right to vote. Indeed, despite an explicit suffrage guarantee, felony disenfranchisement has flourished in Tennessee. As of 2020, over 9% of Tennessee’s voting-age population—some 450,000 people—could not vote because of a felony conviction. And a wildly disproportionate number of these people are Black: The state’s Black disenfranchisement rate is an astounding 21.5%, a number exceeded only in Wyoming

In dissent, Justice Sharon Lee, who will leave the court next month, wrote that “it makes no sense for Tennessee to become a debt collector for Virginia by depriving a Tennessee resident of the right to vote because he provided no evidence to show that he did not owe court costs or restitution in Virginia from a case over forty years old.”

RELATED: In February, the Minnesota Supreme Court upheld a law that denied voting rights to people on probation, parole, or supervised release. The lone dissenter, Justice Natalie Hudson, argued that disenfranchising this population violated the state constitution’s Equal Protection Clause: “Upholding the constitutionality of [the law] … rationalizes and sanctions the racial discrimination inexorably woven into the statute,” she wrote. “The real-world consequence of this legislation is that more than 50,000 Minnesotans—disproportionately Minnesotans of color—are politically voiceless until lengthy probation and supervised-release terms conclude.” Her analysis echoed that of a 2022 North Carolina trial court ruling that restored voting rights to 56,000 people before the Republican state supreme court overturned it. In Minnesota, Justice Hudson’s approach was vindicated—and the majority’s ruling effectively nullified—through state legislation that Governor Tim Walz signed in March. 

State Supreme Court News Round Up:

  • The Michigan Supreme Court allows local courts to charge convicted people for operating costs. The Michigan Supreme Court last week dismissed a challenge to a state law that puts the burden of funding local court operations on convicted people. Such costs are entirely separate from restitution or statutory fines, and are imposed arbitrarily without regard to people’s ability to pay. In its order, the court said only that “we are no longer persuaded that the questions presented should be reviewed[.]” Justices Elizabeth Welch and Megan Cavanagh each dissented, arguing that such a funding scheme violates separation of powers principles (shifting to courts what should be the legislature’s job) and promotes bias and discrimination. While the law remains alive for now, it is set to expire next year.
  • New York Court of Appeals Wraps “Chaotic” Term. For New York Focus, Sam Mellins analyzes a term marked by contentious personnel changes and progressive Chief Judge Rowan Wilson replacing conservative former prosecutor Janet DiFiore. “One measure of the shift,” Mellins writes, is that “in the court’s final year under DiFiore, defendants lost three quarters of the criminal cases the court heard. This year, there was a nearly even split between wins for defendants and for prosecutors.”
  • SCOTUS Permits Acquitted-Conduct Sentencing. Though both liberal and conservative jurists have condemned the practice, acquitted-conduct sentencing will survive for now. The “Kafkaesque” practice allows judges, relying on a lower standard of proof at sentencing proceedings, to increase prison terms based on conduct for which juries returned a not-guilty verdict. On June 30, the Supreme Court denied review in a series of cases challenging the practice. Justices Sotomayor, Kavanaugh, Gorsuch, and Barrett all expressed concerns, but said that the Court should wait for the U.S. Sentencing Commission to consider new rules. But as this newsletter previously reported, some state courts have been more proactive: State supreme courts in New JerseyNew HampshireHawaii, and Michigan have already banned acquitted-conduct sentencing, and other courts could follow suit under their own state constitutions.