State Con Law Case of the Week: Eternal Vigilance Against the Rational Basis Test

Anthony Sanders · October 16, 2021

As we’ve discussed many times at the Center for Judicial Engagement, state courts often break with the federal courts and apply a more demanding standard under their own state constitutions than federal courts do under the U.S. Constitution in all kinds of situations. This includes search and seizure cases, freedom of religion cases, and even cases where the federal courts would apply the infamous rational basis test. But just because your state high court takes its constitution seriously and applies a higher standard in one case doesn’t mean it always will. Eternal vigilance is the price of freedom even when it comes to state constitutions. The tractor beam of the federal rational basis Death Star is strong.

This week was a bit light in current developments in state constitutional law, so instead of writing about a brand-new case I’m going to tell a story about how state courts can at times fall prey to the federal tractor beam. The story starts in 2005 at the Kentucky Supreme Court in Elk Horn Coal Corp. v. Cheyenne Resources, Inc. (Mega thanks to David French of The Dispatch whose story about his oral argument in this case on the latest Advisory Opinions podcast inspired me to check it out.) The question before the court was whether a penalty assessed against some appellants, but not others, violated the Kentucky Constitution’s Equal Protection Clause. A state statute made it so if you were a defendant who had a money judgment entered against you and you filed an appeal for review from the Kentucky Court of Appeals to the Kentucky Supreme Court and that request was denied you had to pay a penalty of 10% of the judgment to the plaintiff. This penalty was on top of whatever interest, attorneys fees, costs, etc., the defendant already owed. In the case a multi-million dollar judgment had been issued against the defendant, who had then lost on appeal and then unsuccessfully sought review with the state supreme court. But it then successfully got the court to take the question of the underlying constitutionality of the penalty.

The court found the penalty statute violated equal protection, and failed the rational basis test of both the Kentucky and United States constitutions, because it did not further a legitimate governmental interest. The interests in discouraging meritless appeals or unreasonably delaying the outcome of a case didn’t apply because the plaintiff already would receive whatever money interest accrued while waiting to see if the request for review was granted. Further, the penalty wasn’t assessed against plaintiffs who sought further review, or defendants in non-monetary cases, such as injunctions or declaratory judgments. Losing money judgment defendants were simply singled out. That didn’t further any legitimate governmental objective. (The court also stated that the statute violated the separation of powers, as the legislature was interfering with the courts’ affairs. It also decided so without the issue even being raised or briefed by the parties. But that’s another story.)

How the court went about applying a rational basis test was intriguing. It outright stated that the federal rational basis test applied, but also declared that it at times had applied a higher standard in state equal protection cases:

This Court, however, is “not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court.” The Kentucky Constitution’s equal protection provisions, Sections 1, 2, and 3, are much more detailed and specific than the Equal Protection Clause of the United States Constitution. Moreover, the equal protection provisions of the Kentucky Constitution are enhanced by Section 59 and 60.

These Sections 59 and 60 are the Kentucky Constitution’s special law provisions. Many states have provisions like them, and many state courts don’t quite know what to do with them. They are kind of like equal protection provisions, but kind of are their own thing. Essentially they are supposed to prevent states from passing legislation that favors a person, corporation, municipality, or other “special” subject. And unfortunately most states do not engage with their special clause language but simply make them toothless by applying a rational basis standard. However, in this case the court took the spirit behind the special law provisions and then stated:

Because of this additional protection, we have elected at times to apply a guarantee of individual rights in equal protection cases that is higher than the minimum guaranteed by the Federal Constitution. Instead of requiring a “rational basis,” we have construed our Constitution as requiring a “reasonable basis” or a “substantial and justifiable reason” for discriminatory legislation in areas of social and economic policy. Cases applying the heightened standard are limited to the particular facts of those cases.

As a fan of judicial engagement I like all of that . . . except for the last sentence. It sounds like a higher standard is all well and good, but there’s no standard for when to apply that higher standard, and even when a court does it doesn’t create precedent because it’s just limited to the facts of the case. But, at least this discussion was an attempt to put into play the special law clauses and give some teeth to the state’s Equal Protection Clause. I’d gladly take a “reasonable basis” standard over a “rational basis” standard, which makes it sound like the court would actually look at real facts and make the government justify its behavior, even if only a teeny weeny bit, in light of those facts. In any case, the court concluded that Elk Horn Coal Corp. was not one of those “elected” times, as the penalty statute failed the federal rational basis test anyway.

Thus, Kentucky had a heightened rational basis test for equal protection claims, but not in a terribly principled—or even clear—way.

Years later, in 2020, the subject of the special law clauses came up again in Calloway County Sheriff’s Department v. Woodall. There the court analyzed the history of various standards applied to the special law provisions and concluded that they were unjustifiably mixed with equal protection standards and in the future the bar against special legislation should only apply to situations where “local or special legislation, according to the well-known meaning of the words, applied exclusively to particular places or particular persons.” This, in my view, makes it easy to work-around the clauses by simply avoiding putting proper nouns in statutes. (“We weren’t favoring Middletown. The statute says nothing about it. It just says it only applies to cities with 54,397 residents in the last census.”) The court responded to this objection by explaining that it can apply a “more rigorous analysis with respect to classification legislation” through equal protection.

The problem with that response is the court simultaneously weakened the precedent for a heightened equal protection rational basis standard. The court quoted what I quote above from Elk Horn Coal Corp. (regarding it having “elected at times”) and denounced that statement as “unfettered discretion . . .  unworthy of any legal system.” Ouch!

Of course, it is the discretion the court was denouncing, not the heightened rational basis standard. But what the 2020 court did was reject the application of the special law provisions to equal protection cases, which in turn knocked out the 2005 court’s justification for a heightened standard.

This does not mean that Kentucky now simply applies the federal rational basis test in all state constitutional equal protection cases. But it does mean that a precedent that supported doing so was weakened. And that might not have happened if the court in 2005 had simply stated that the higher standard applied across the board.

So what’s the lesson here? First, that just because a state court applies its constitution more rigorously than the federal courts apply the U.S. Constitution today doesn’t mean they’ll have the courage to do so tomorrow. Bucking the government takes guts every day of the week. And second, that if a court applies a higher standard but does so in an unprincipled way (“limited to the particular facts of those cases”) then there’s no security for that standard sticking around. Part of equal protection is applying principles equally, not simply to rights or parties or classes that a judge favors or feels sorry for. Applying a standard across the board isn’t a panacea for taking state constitutions seriously, but it makes it a whole lot easier.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.