State Con Law Case of the Week: Which Constitution Are You Expounding?

Anthony Sanders · April 1, 2022

We’ve repeatedly advocated at the Center for Judicial Engagement for state courts to feel free to interpret their state constitutions differently from how the U.S. Supreme Court interprets the U.S. Constitution. I’m not going to repeat those arguments today. (Check out earlier editions of “State Con Law Case of Week.”) But I wanted to point out how state courts sometimes don’t even engage in a more basic level of analysis, and that’s to clarify which constitution they’re interpreting.

Cases in state court involving individual rights very often—perhaps more often than not—present state constitutional claims and federal constitutional claims. There’s a debate among judges, scholars, and advocates about how courts should approach these “mixed” cases. The Oregon Supreme Court, for example, is notable in that it decides state constitutional issues first and only proceeds to federal questions if the state questions don’t resolve the dispute. Many states don’t really have a clear rule on this but in practice often take federal questions first and then move on to state ones if they need to. (Why is anyone’s guess, although I think it may be because there’s usually more caselaw to draw upon for federal issues.)

All too often, however, courts will say something like “Appellant argues the law violates Clause X of the U.S. Constitution and Clause Y of the State Constitution” and then go on to apply a few federal and/or state cases and conclude the law is unconstitutional or constitutional without specifying which Constitution. Now, many opinions will up-front say something like “we interpret both provisions to mean the same thing.” Then at least the reader can conclude the law violates, or doesn’t violate, both provisions. But even that doesn’t always happen.

An example is a free speech case from this week at the Colorado Supreme Court. People v. Moreno is a pretty standard application of First Amendment law to a criminal statute. The court held that a statute making it a crime to communicate “in a manner intended to harass” was unconstitutional because it was overbroad. That is, it criminalized lots of protected speech, even if not the speech of the particular defendant, and therefore was unconstitutional in all of its applications. The opinion mentions a couple times that the defendant argued the statute violates “the freedom-of-speech provisions in the United States and Colorado Constitutions,” and cites both of them. But after that the court never comes back to the constitutional text to say whether the defendant won on both claims or only on one of them. The court’s conclusion simply says the “intended to harass” language is “unconstitutionally overbroad.” It also doesn’t clarify whether the test for each provision is the same, although given its approach the only conclusion seems to be that they are. (If you read some of the older Colorado cases the court cites you can figure this out, but it takes some digging.)

Now, probably we can conclude that the Moreno court held that the law violated both provisions, state and federal. But it could have just as easily said at the beginning “because we interpret the two provisions the same we’re only ruling on the federal claim.” Or “because we interpret both the same our ruling concerns both of them.” Or even “we withhold judgment on whether the state constitution is interpreted the same because the federal claim disposes of the issue.” I’m not saying the court should have done any of these, but its precedent would be a lot clearer if it specified which constitution it was actually interpreting.

Does this really matter? Absolutely. In a future case a litigant—whether a civil rights plaintiff or a criminal defendant—may want to argue, for example, that the overbreadth doctrine of the Colorado Constitution is more protective than it is for the First Amendment. That argument would require overturning Moreno if its holding is under the Colorado Constitution. But if the holding just concerned the First Amendment then the case could be distinguished. (Here, older Colorado cases actually do clarify that question, but that’s not always going to be true.) Further, in a civil rights lawsuit a plaintiff can often win attorney’s fees on a federal claim but not a state one. (Why bring a state claim in that case? Perhaps as insurance regarding the underlying merits in case the federal claim fails but the state claim might still have a chance.) If a court in a civil rights lawsuit like that ruled the way the court ruled in Moreno it would be anyone’s guess if the plaintiff could get those fees, or some of those fees, or none.

State courts could solve those ambiguities by simply stating what constitutional language their holdings concern. Thus, my message to state judges is please clarify which constitution you’re expounding.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.