State Con Law Roundup, July 2022

Whoa Nelly, state court have issued a lot of interesting opinions about their state constitutions recently! This week, instead of focusing on one particular case, I just wanted to alert our readers to a handful of rulings on state constitutions:

• Oregon’s Supreme Court ruled that witnesses who are questioned in a grad jury proceeding have a right to have their counsel present (and receive advise from counsel before answering questions) under the state constitution. The court didn’t address federal law, but this is a right the federal courts have not recognized under the Sixth Amendment.
• The Michigan Supreme Court declared that it is unconstitutional under the state constitution’s “cruel or unusual punishment” clause to impose mandatory life sentences on defendants who commit their relevant offense at the age of 18. The U.S. Supreme Court has said this is true under the Eighth Amendment’s “cruel and unusual punishments” clause for defendants under the age of 18 when they commit their relevant offense. The Michigan court extended this on a few grounds, but one was the more expansive conjunction between the two words in the state constitution’s clause. It’s almost like the wording of state constitutions actually matters.
• This goes back a few weeks, but is worth including. The Washington Supreme Court ruled that factor that can be used in determining whether a person is “seized” by the police is the race or ethnicity of the person.
• And, as I’m sure you know, in the wake of the Dobbs opinion, the question of whether there’s a constitutional right to abortion has moved to the state courts, with lots of litigation in state courts that will be ruled on by state high courts pretty soon.

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