Tuesday, August 28, 2012

State Constitutional Claims: The Important Role of Attorneys in State Courts

By Anna R. Mumford
Anna Mumford, who graduated from Albany Law School this past spring, was the Managing Editor for Business and Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
An  essay of hers was previously published by the Center. (See Decisional Approaches to State Constitutional Claims, April 15, 2012.)
She prepared this paper for the State Constitutional Adjudication Seminar, Spring 2012.

The U.S. Supreme Court has recognized that a state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Whether a state judiciary will construe its own state constitution in a way that affords this broader protection, however, rests principally on attorneys who bring state constitutional claims in state courts.

Attorneys play a critical role in the development of state constitutional law. Attorneys have the duty to properly raise the claim under a state constitution, independently and adequately argue the claim, and persuade the state court to grant greater individual rights under the state constitution than those afforded by the U.S. Constitution.

This article begins with a discussion of the various approaches adopted by state courts in deciding state constitutional issues. The article then provides an overview, based largely on a survey of decisions of the highest courts in several states, on the proper presentation of a state constitutional claim and the consequences if an attorney fails to bring an adequate state constitutional law challenge.

At the outset, it is important for attorneys to understand, not only the relationship between state constitutions and the federal Constitution, but also the approach state courts adopt to analyze state constitutional claims.  “Failure to appreciate the proper sequence of how state and federal constitutional claims are addressed can lead to a great waste of resources of counsel, clients, and the court.”*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.