State Constitutional Obligations: Access to Courts, Remedies, and Rights in Civil and Criminal Cases

The following is a transcript of the panel “State Constitutional Obligations: Access to Courts, Remedies, and Rights in Civil and Criminal Cases,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Friday, Feb. 9, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on how state constitutions can improve access to courts and remedies in civil and criminal cases. The panelists explored how state constitutions can increase access to justice for pro se litigants, discussed current state constitutional litigation to strengthen civil rights and the rights of criminal defendants, and grappled with some of the obstacles faced by state constitutional civil rights litigators.

Speakers:

• Sharon Brett, Legal Director, ACLU of Kansas
• Marcus Gadson, Assistant Professor, Campbell University School of Law
• Judith Resnik, Arthur Liman Professor of Law, Yale Law School
• Judge Albert Rosenblatt (ret.), New York Court of Appeals
• Robert Schapiro, Dean and C. Hugh Friedman Professor of Law, University of San Diego School of Law

Moderator:

• Hernandez Stroud, Senior Counsel, Brennan Center Justice Program

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Hernandez Stroud: Welcome and good morning. I’m Hernandez Stroud, senior counsel for the Brennan Center’s Justice Program. I also teach here at the law school. I direct a clinic. And I also teach at Columbia — I teach a course on mass incarceration as a public health issue.

Before I proceed, I want to say thank you to the hardworking members of the NYU Law Review; to my Brennan Center colleagues, especially those (applause) with State Court Report; and to all the staff across the various institutions that have made this event today possible.

This morning I’m thrilled to moderate this panel, which will be covering, broadly speaking, access to justice in the state courts. By access to justice, I mean the ability of people to seek and obtain a just resolution of legal problems through a wide range of legal and justice services. So we are talking about the phraseology, “All courts shall be open,” which exists in many state constitutions, and which is also understood to be part of the scheme of the federal Constitution and common law — this notion that all litigants, regardless of their station, their clout, their influence, are treated just the same as their opponent, another person, a corporation, or the government itself.

This is a vital conversation. Despite what your favorite legal case book has told you, state courts really do matter. State courts — not the federal courts — resolve most of our nation’s legal disputes filed in state courts. So this is a vital conversation for the more than 95 percent of all court cases filed in the United States which are filed in state courts. It’s a vital conversation for the millions of people, then, in the criminal legal system, specifically defendants who may be lawyerless — we’ve heard that term a lot — who may be undereducated, and who are pitted against the powerful machinery of the government, not to mention the prospect of a hefty criminal sanction.

And it’s a vital conversation on the civil side for the millions of people — again, many of whom are on their own — who have sued another or multiple others, and who may be dealing with domestic violence protections, employment disputes, consumer debt, housing conditions, and so much more.

At bottom, this is a vital conversation for democracy, for our country, for the direction in which it’s headed, and for human dignity. To help us think through this vital topic, we will discuss why state constitutions haven’t been relied upon more — why it is that our state constitutions have been, at least [compared] to the federal Constitution, missing in action. We will identify particular state law claims or areas of the law that boast the most promise, where we’ve seen some successes, as well as associated challenges where we’ve seen some struggles. And we will talk normatively about the future of state constitutionalism and how best to improve access to justice.

So now I want to introduce my remarkable, esteemed, and brilliant panelists. Immediately to my right is Judith Resnik, who’s the Arthur Liman Professor of Law at the Yale Law School. Immediately to her right is Robert Schapiro, dean and the C. Hugh Friedman Professor of Law at the University of San Diego School of Law. To his right is Sharon Brett, legal director of the ACLU of Kansas. To her right is the Honorable Albert Rosenblatt, a retired judge of the New York Court of Appeals. And last but not least is Marcus Gadson, who’s an assistant professor of law at Campbell University School of Law. Please join me in welcoming our wonderful panelists. (Applause.)

So let’s get started. State constitutions are, as an empirical matter, underutilized. We think, though, that they hold great potential in rights protection and remedies as compared with the federal Constitution. But why haven’t we seen them relied upon more?

My first question is for Sharon. As someone who is helping craft the state court strategy at the ACLU in Kansas, can you take us to the litigation war room? I don’t know if that’s a thing at the ACLU, but when I think of the ACLU, that’s sort of what I think. (Laughter.) And if you can tell us, what are some structural barriers that you’ve confronted that you think prevent state courts from playing a more active role in rights protection?

Sharon Brett: Sure. Before I start, I do want to extend thanks to the Brennan Center and NYU for hosting us and for inviting me all the way from Kansas to be here. So thanks for the important kickoff question. I would put our structural barriers into two different buckets. The first bucket are statutory barriers. The second bucket would be practical barriers, sort of on-the-ground experience barriers. And some of these have been already raised over the last panel, so I don’t want to retread water. But the statutory barriers, I think, are really important for us, especially in a small state like Kansas.

Julie Murray mentioned yesterday the fee-shifting issues that you have in bringing state court litigation, and how that basically operates as a disincentive to bring claims only in state courts, especially for pro se litigants or litigants who are relying on attorneys to represent them free of charge with the hope of recouping costs at the back end. There are also damages caps in many states. Kansas is one of them. If we have a state Tort Claims Act case, there’s a high end of damages that is much lower than what you could receive if you brought a damages case in a typical 1983 federal suit. And there are other statutory barriers as well.

But the practical barriers are things that we don’t think about and that scholars don’t really study unless you are litigating these cases day in and day out in state courts. One of those is that state courts are extraordinarily insular. And we have 105 counties in Kansas. We have less district courts than that, as some district courts cover multiple counties. But county by county, the state court practices differ significantly. Knowing how to practice in those state courts and how to get the relief that your clients are seeking depends on having very intimate knowledge of local practice rules.

It’s also true — and this is going to be a shout-out to the students in the room — that many states, like Kansas, don’t have a robust civil rights bar. They have wonderful, wonderful attorneys working in a variety of capacities and lots of firms that are willing to engage in pro bono work, but in terms of plaintiff’s-side civil rights law firms or organizations or groups that are dedicating themselves to doing this work, there are very, very few. And what that means is that there’s not an expertise in how to bring these cases at the state level. And it is often outside groups or organizations outside of the state that are coming in to litigate these cases, which, then they have to find local counsel in order to do it.

We also have venue issues. When you are filing these cases against government officials who tend to be the defendant in these cases, you are filing them in the same court over and over and over again because that is where the defendant’s principal place of business is. And when the state court in that particular county is not a very hospitable court to civil rights claims, it means you are literally going into every case knowing you are going to lose at the trial level. So you have to commit to a case strategy that could last two, three, four, five years before you get all the way up on the merits to the state supreme court, where you might have a chance of vindicating rights. And that’s a practical reality that litigants have to face — that they might not have the resources and the ability to commit to a strategy that could take five years before they have any hope of relief.

And then the last thing I’ll say on this point is that, just as there is great promise in bringing state constitutional litigation, there is also great peril. So many times when we bring these cases in state court, we are treading completely new ground. We are bringing a claim that has not yet been recognized under our state constitution, and we are trying to do that to advance the law. But the risk there is creating bad law, and that fear can’t be underestimated.

That precludes a lot of people from trying to test state constitutions and expand them in ways that go beyond the federal Constitution because there is no way that you then can fix that decision later on. You cannot create a circuit split within your state supreme court that might lead to, ultimately, a better resolution at a higher court later on. That will be the law in your state going forward. So I think those are some of the barriers that prevent this type of litigation from happening.

Stroud: Thank you. Turning now to Judith: for over 40 years, you’ve been writing prolifically about federal and state courts and many other subjects and controversies. When I think of your scholarship, I think of “Managerial Judges,” which has been cited, I think it’s safe to say, thousands of times. I hope I’m not embarrassing you. And it really has fundamentally shifted the way that we think about federal judges — what they do, their roles in democracy, the roles of the courts, and the way we approach civil procedure.

And I know you teach a wonderful class called “Federal and State Courts in the Federal System,” and that course gets at my question. So, based on your scholarship and teaching and advocacy over the past four-plus decades, what sort of barriers — economic or otherwise — do you think explain why the state courts, as compared with the federal courts, have been less visible in the project of rights protection?

Judith Resnik: So, first, thank you. I need to thank NYU. I graduated from NYU. I was a Hays Fellow, the program that Helen [Hershkoff] chairs now. And so in addition — and before Brennan. Also, thanks, Alicia [Bannon], who was a Liman fellow in a program I do; and Wendy [Weiser] and Michael [Waldman] for a real luxury of spending yesterday listening and learning a lot as I think about state and federal courts.

So if you conceptualize state constitutions as the kind of candy store of constitutional rights, then the question is how come [they are] missing in action? And I was trying to think about that, as over the years I have surely learned more about the centrality of it. Step one for me — Daniel Meltzer, a wonderful law professor, one of the coauthors of Hart and Wechsler’s The Federal Courts for a while, wrote an article in which he talked about federal courts as lawyers’ common intellectual tradition, and I think he’s right. So the question then is how come and how — why not states?

Of course, intellectual traditions are built, not prefabs. And so what were the construction elements? Well one, as we’re sitting — in the ’50s and ’60s, by the ’70s — federalism becomes a code word for states’ rights. If you read habeas opinions, they don’t say states’ rights; they say defer to federalism. Federalism wasn’t, if you read and scan all — thank you, Lexis — of the many materials, federalism wasn’t a justification, a legal reasoning, until the ’70s and ’80s. It was states’ rights before then that was the claim of reasoning. And states’ rights, of course, included very sad histories of slavery and oppression, as well as some glorious histories of being “ahead,” quote/unquote, of the federal system. So one factor is that there was — there’s a baggage to be faced and thought about — which isn’t just a baggage, but as Justice [Anita] Earls was saying, a contemporary phenomenon as well.

Then, of course, market economy; we haven’t talked that much about class. Let’s talk class for a little bit — the economic structure of a nationalized economy with both law firms and the success of suppression of progressive efforts to not have federal rules of civil procedure. Federal rules of civil procedure come in 1938 over progressive objections and generate a cohort called — a thing called the federal judges who can say rule 12 and rule 56, whether they’re from Florida or California, and have a sociology that’s shared and then is used, as Marcus has written, by states as well, although not for sure lockstep.

Legal education. When I was at NYU, there was a class called “New York State Practice.” It was déclassé because it was seen as being local in a world in which the cool thing is not to be local, but to be national. So if we think about politics, economy, and culture, we’re not living in a space that fell; we’re living in a space that was built. And if we want to rebuild it, then you have to figure out what you want to rebuild and why you want to rebuild it — for what end state here. So a little anti-essentialism, which we were schooled at yesterday as well.

To use state or federal as a code for the just, right, progressive, fair, equal, redistributive, non-redistributive, capital market, whatever you want to call it — that’s essentializing. Critical race/ethnic/gender theory reminds us, my identity is not a prefab, again. And so, therefore, the question is a real question — I think Goodwin Liu talked about this yesterday — about fights about norms, and it’s also about fights about political-social structure, and it’s also about fights about the role of courts.

So the fight about norms is obvious, the fight about how many nodes of conflict you can have. But as I was thinking about Brennan and history, to rest easy on the idea that states are a source of vital identity is to miss the contemporary set of worlds in which we actually, sadly, talk red and blue states, not state states. So the issue of trying to think about whether the thing that’ll need to be maintained — if we have affection for the liberal project, of multiple nodes of debates about law with not just one answer and we can tolerate what federalism offers — is whether we can regenerate multiple identities called states that have any meaning and identity aside from the waves of red and blue.

And so then the question is, if we want to do that, how could we do it? And for those of you who just saw, hot off the press yesterday, the Hawaii Supreme Court issued an opinion about why under the Hawaii Constitution there isn’t a right to walk around with an unlicensed gun. And in that opinion, in addition to having a lot of criticism of history and tradition, it is about if you’re going to talk history and tradition in Hawaii with aloha culture and a whole set of descriptions of specificity about the state and its constitution. So one is: Is there a building of identity inside states?

Two, on the lawyerless courts — so I’m intersecting a lot with Helen [Hershkoff]’s comments — 80 to 90 percent of the people in landlord, health, family, and low-level debt in state courts are lawyerless on one side of the case in some places and two sides in others. Federal courts are seen as rich — they are — on many measures as compared to states. But a quarter of their filings on the civil side — of which there are only about 250,000 — are with lawyerless plaintiffs. And on appeal, it’s more than half of the appeals — a tiny number of appeals, fewer than 40,000 issued last year, in terms of opinions rendered. More than half of appellants go to the federal appellate courts without a lawyer, which should be understood as a real failure of the provision of legal services.

was thinking about all the cases we’ve talked about over the last day and a half. They’re either government-funded, [or,] incredibly interestingly discussed just now, they’re NGO-funded. There’s no — where [are the] resources to litigate? We don’t have a rich docket that is diverse — diversity mean[ing] the subject matter — in part because the [Federal Arbitration Act] under the U.S. Supreme Court[] kicked it out, in part [because] of no resources, in part [because] of [being] pushed out. And so when we’re talking about states having a rich docket to generate common tort, any kind of law — not just constitutional law, statutory interpretation — we’re looking at an incredibly shrinking pond for a lot of different dimensions. And so what I think in terms of national projects is a question about financing: financing courts, as well — state courts — as well as financing litigants to use courts; and not to be court-centric navigators. Alternatives — not just lawyers, lawyers; multiple things.

But one thing to note: With a great energy of state court justices in the 1980s, Congress created the State Justice Institute (SJI), which I think probably nobody knows about. SJI — the reason you don’t know about it in part is it gets between $4 and $12 million a year. Over 40-some years, it’s gotten a total of a couple hundred million. Thank you, some of my law students, who helped teach me so much, who are sitting here.

And so the U.S. Supreme Court in a year asks for more than a hundred million [dollars] in its budget. The massive congressional underfunding of state courts is the problem we should all take up to figure out how a social service could be regenerated, and in the context of that to actually realize — that gets back to the normative fight, and that’s where I’ll stop — it’s not happenstance that state courts are starving or that the legislation with caps or the no fee shifting is there. There is a social-political movement that crosses a lot of vectors that doesn’t want there to be a robust litigation system in the basic social-service provisions that are at the front end, which are called, I think we heard, the emergency rooms of our system, our state courts.

So it’s a plea to integrate the discussion and to mainstream — borrowing, again, from feminist theory — so that it isn’t there’s a state constitution class only — there should be — but rather there should be an integration, whether it’s called procedure or federal/state courts or whatever, in which the domain is government services to individuals, and how to think about it in the context of a very class-unequal society.

Stroud: Thank you. I want to transition to Marcus and Judge Rosenblatt. As people who have spent a great deal of time thinking about state courts as an academic and as a judge, respectively, what do you see as structural barriers that are unique to the way that state court systems work that may affect a litigant’s shot at justice? In other words, is there something about the way that courts — state courts — do their work that causes them to affect a litigant’s shot at justice?

Marcus Gadson: Sure. The judge has instructed me to start, so I will start. (Laughter.) First of all, thank you so much for all of the work that you’ve done for the Brennan Center. I think it’s wonderful to see all of the interest. And this just would not have been the case 10 years ago or 20 years ago, so I think this is phenomenal.

I’ll just make two points about the way state courts are currently set up. One that Judith hopefully alluded to is the phenomenon of lockstepping. And I think Justice Earls yesterday reminded us that that can perhaps be a good or a bad thing depending on the particular case. But one of the things we’ve seen in the last 30 years or so, I would say, is the federal court system taking a much more restrictive view of access to courts, and that’s manifested in a couple of ways.

One is things like a very limited view of the due process clause procedurally. So one of the issues of due process, for instance, is what if you can’t afford to pay a filing fee for court documents? A hundred dollars or $300 may seem insignificant to people in this room, but as Justice Marshall reminded us in one of his cases, if you are homeless or you are somebody who has to choose between medicine and rent, $300 is not so trivial. And so federal courts have been very inhospitable to things like waiving fees for litigants, and state courts have chosen to import this very restrictive view of the federal due process clause to state constitutional clauses.

One of the concerns I have with that, of course, is — as Hernandez said at the beginning — state constitutions generally say you have the right to court access and the right to a remedy. That’s right there in the text. There’s no judicial activism (or whatever you’d want to call it) required; it’s just right there in the text. And as a matter of history, a lot of delegates at these constitutional conventions are very explicit that they expect people to be able to access their courts and they want people to be able to vindicate their rights.

You see a similar thing with pleading standards. Civil procedure students, you will remember studying Iqbal and how that may pose difficulties for plaintiffs in terms of having to plead specific facts in a complaint to satisfy a judge that their claim is plausible. What plausible means — my students are continuing to struggle to define what that means in year five of civil procedure. And state courts have, again, lockstepped in several instances, although many states have rejected that as well.

So what’s really tragic is that when the federal court system chooses to make decisions that have restricted access to justice in some ways, not only are they undermining the federal system, the reality is they may also be undermining several state court systems. And at least at the federal level, you could say that while the judges are very concerned about having nine judges in Washington, DC, make a decision that affects all 50 states and the entire country — and I have some sympathy for that argument — but that kind of federalism discount just does not make sense for a single state. Why should a South Carolina judge worry about enforcing an aggressive access-to-justice provision in Vermont or something like that? And that’s effectively what they’re doing when they take a very narrow federal constitutional view.

The other thing — and this is something all of you in this room can do who are currently law students — is one of the structural problems is people just don’t know state constitutions. That’s true of the lawyers. They don’t know claims that they could make under state constitutions. That’s true of judges sometimes. And the reason is they didn’t learn it in law school. And so a sobering thought to me is some lawyers who graduate from very prestigious law schools, and are extremely bright and extremely capable, are themselves partially responsible for state constitutions not actually having the impact they could have because they haven’t studied it. So one of the very best things you could do if you care about social justice, if you care about access to justice — if you are a 2L or a 1L or you’re going to be enrolled in law school next year for whatever reason — one of the best things you could do is sign up for a state constitutional law class.

Albert Rosenblatt: Well said, Marcus. Teaching that class here at this law school is a joy for me. I’m not sure that — how this all worked out, but when I was about to leave the New York Court of Appeals, I had a conversation with Ricky Revesz, who was the dean — bless him; he’s now in Washington doing great things — and we talked about the need for high-class law schools like NYU to no longer think it’s that cool to talk about federal law only. Because I, too, went to a prestigious law school, and at the 25th reunion, we came to realize that when the folks went back home to Arkansas, Kansas, Maine, New Hampshire, Alabama, and all over the country, they spent as much or more time in the state courts as they did in the federal court. So that — it wasn’t so much the idea that we have now of having the state courts as agents of expanded civil rights; it was the idea of — that’s where the business was done. We’re now moving into a new era where, historically, the state courts are stepping in to fill jurisdictional voids that might not be available in the federal courts. So I’m, with your leave, going to take about two or three minutes to explain the points of entrance to the state courts so that the lawyers and the nonlawyers would understand where these points of entry are and whether there are or should be any barriers.

First, when we speak about rights, we look primarily as Americans to the first eight amendments of the United States Constitution because it’s easier. We know them. But there are more than eight rights in those eight amendments. If you go down the list, I count about 23 or 24. The First Amendment, for example, is not one right, but it is “Congress shall make no law respecting establishment of religion,” so if the government comes down heavy favoring one religion, it’s going to be unconstitutional. Second, free exercise of religion. Third, free speech. Fourth, freedom of the press. Fifth, right to assemble. Sixth, right to petition. So that’s six rights in the First Amendment. Fourth Amendment has two. Fifth Amendment has due process, self-incrimination, double jeopardy, and takings. So when you add them all up, you come to 23 or 24.

Most interesting in textual terms, the Eighth Amendment speaks of the government not being able to impose any cruel and unusual punishment — cruel and unusual. The states are free, and some have said that in our state, we’re not going to have any cruel or unusual punishment. Think of what this means to a textualist: Wow, this has read me to a textualist to go down one pathway or another. So that’s one point of exit, through these various rights that exist not only in eight instances but in 23 or 24 instances, to argue what may and usually is an expanded opportunity in the state courts.

Second, rights that do not exist at all in the federal Constitution and were never contemplated to be in the federal Constitution. There’s no right to an education in the federal Constitution. But in many state constitutions, including New York, there’s a right to a sound basic education, and all the litigation in the United States has been in the state courts. A right to a clean environment does not exist in the United States Constitution but exists in haec verba — in that language — in other constitutions. New York has something close to it with the Forever Wild Clause. And the right, oh, to help the poor. That is not found anywhere in the United States Constitution. There’s no right to have three square meals a day in the United States Constitution. But we in New York and in other state constitutions have an obligatory responsibility to the poor that, by the way, is self-executing. We decided in a case called Tucker [v.] Toia that this right may be litigable. It’s not in the abstract. We don’t need the legislature to enact anything; it’s actionable per se.

The third basket of rights that are interesting, that is often neglected but may be of interest to an audience that includes lawyers, is that you may be familiar with the concept by which courts will give added scrutiny to any statute that trenches on the right of a suspect class or a suspect person, vulnerable person. And this arises out of a case decided by the United States Supreme Court that some legal scholars may know the name of.

Audience Member: Carolene.

Rosenblatt: Carolene. Carolene Products footnotes. Who said that? Raise your hand. Please stand up and take a bow. (Laughter.) Carolene Products, one of the great cases of the United States, where in a footnote they said, you know, there are certain classes that we have to be careful about that we don’t trench on their rights. And so the United States Supreme Court has crafted levels of scrutiny that they accord to statutes that appear to trench on the rights of vulnerable people or vulnerable classes. The more important the rights, the more scrutiny they’re going to give it. At the top of the list is a law that trenches on one’s or constricts one’s status on [the] basis of color or national origin. That gets what we call strict scrutiny, the strictest level of scrutiny. Next level is intermediate scrutiny, [which] the United States Supreme Court has assigned gender. Third is rational basis review — if the statute has a rational basis, it’ll pass constitutional muster.

Here’s the interesting thing: the states, if they want to and if they care to — and we’ve not seen enough of this developed, but I am hoping that those of you who are in law school here and elsewhere are going to realize that a state is free to alter the sequence of scrutiny given to a particular litigation so that, for example, if Montana wants to or if Massachusetts wants to (which Massachusetts did), they can say, “Well, when it comes to women and whether girls are allowed to play on boys’ basketball teams or whether they get as much money as the boys, we’re going to accord that strict scrutiny — not intermediate scrutiny that the United States has given it; we’re going to give it strict scrutiny.” State courts can do that. And I don’t know that enough people realize that all of these avenues are available, and that’s why it’s so valuable to see people in here taking an interest in it.

Stroud: Thank you. So that actually does lead us to our next round of questions, which, in terms of particular state law claims and areas of the law, I wanted to dive into where we’ve seen some promise and some struggle. And, Judge Rosenblatt, you’ve already alluded to the Eighth Amendment and how state constitutions have anti-punishment clauses that are disjunctive, where you could have a punishment that is considered cruel but who cares if it’s unusual in terms of a legal violation.

And so I want to talk with Robert and Sharon and Marcus. Each of you arrives at this topic with varied thinking. What kinds of legal claims or areas of the law do you think offer the greatest promise? And to make this question a little bit more complicated, in a world of limited resources, how should we think about prioritizing those claims and areas of the law?

Robert Schapiro: Great. Well, thank you very much, and I’d like to add my thanks to NYU and its law review and to the Brennan Center; and at the risk of repetition, also my deep thanks to Bob Williams, who is not only a pioneer in this area but also a great mentor who has always supported me and so many others. So thank you for doing that.

Now, with regard to what we think of [as] important claims, I think there are two themes that I want to emphasize — one really about the theme of this conference, which is about federalism, which I’ll get to; and another, really specific to this panel, is about various barriers to rights.

I think about state constitutions as really being part of an overall understanding of federalism, of the relationships of states and the national government in our federal system. One of the most important things that states do is about democracy and the way they can protect access to the ballot, promote it. Whether it’s about gerrymandering or other kinds of areas, we see that what state claims can do is not only improve the democracy within a state but, to the extent [that] states control a great deal about federal elections, they have a tremendous impact on the national government. And I think that’s especially important to think about democracy because something else we’ve been talking about in various ways (and you alluded to) is money.

When it comes to money, there’s a certain amount that courts can do, and we’ve seen some success in things like school finance litigation. But ultimately, it has to be a political movement and something that has the support of the legislature. I think in general there’s been great success in the litigation to try to equalize finance within districts in a particular state. And there’s some debate, but it turns out in general money matters, and it turns out in general more money does tend to lead to better education. But the greatest disparities are not within a particular state, but among different states, and that’s something that really requires Congress to address. Or when Judith talked about the congressional underfunding of state courts. So when it comes to large expenditures of money on a national scale, the national government’s likely to be involved. But state rights of democracy can have a big impact there, in addition to individual things in states with regard to democracy or school finance.

The other area which I think is critical — and really, this panel focuses on — is the barriers to rights. It’s one thing to have a right on the books, but can you have a lawyer? Can you have access to court? Can the government make you waive that right in particular ways? Can you just bring a right, or do you need legislation to allow you to bring a claim under that right? And there we have seen tremendous restriction in various ways on the federal level. And I think there are really great opportunities for states to be in the forefront about providing access to counsel, about providing access to courts, about chipping away at some of the immunities that have developed under federal law, and the variety of barriers that we see in the federal courts. And I really think, there, rights under the state constitutions could be extremely important.

Brett: I completely agree about democracy being a sort of core place where we can look to state constitutions to vindicate rights and to form the bedrock of — by which all other rights flow. But I, being from Kansas, feel like I have to talk about abortion rights. And I know that there’s others who will talk about this later in the day, but the Kansas Supreme Court a few years ago, before the Dobbs decision, found a right to bodily autonomy in the Kansas state constitution and had a landmark decision, the Hodes[& Nauser v. Kansas] decision, that laid out that right under Section 1 of our Kansas Bill of Rights, which was monumental at the time and then more so in the face of the Dobbs decision.

A lot of the things that were talked about yesterday about ballot initiatives and constitutional amendments we have seen play out, and it intersects with democracy in a really significant way. We’ve seen that play out in Kansas. So the Hodes decision came out, and then the legislature passed a constitutional amendment that then went to the people for a vote about a year and a half ago. And that vote ended up being the first vote on the constitutional right under a state constitution to reproductive rights in the post-Dobbs era. It happened about two months after the Dobbs decision came out. And the people of Kansas, by an overwhelming majority I think — and a majority that surprised people, frankly — voted to retain the right in the Kansas Constitution for reproductive justice and access to reproductive health care. And so we saw voting rights guaranteed under the state constitution intersecting in this really interesting way with reproductive rights, and we were able to maintain the Hodes decision in Kansas, and it is still good law now.

And I think the next frontier is what does Hodes mean in other contexts. So the state supreme court — and I’m a little nervous talking about this, I have to admit, because Justice [Melissa] Standridge from the Kansas Supreme Court is in the audience . . . (Laughter).

Stroud: Close your ears.

Brett: (Laughs.) Yeah. Hold your ears, Justice Standridge, who is wonderful. But what we’re thinking about now is what does that Hodes decision mean in other contexts? The Kansas Supreme Court was unequivocal in finding not just a very narrow right to access abortion health care, but that Section 1 of the Kansas Bill of Rights encompasses the right to self-determination. What does that mean? What does the right to self-determination mean? What does it mean for other historically marginalized groups of individuals?

And so, for us at the ACLU of Kansas, one of the things that’s at the forefront of our thinking [is] transgender rights. We have seen in state legislatures across the country attack after attack after attack on the transgender community. And we know that there are some good decisions at the federal level when it comes to transgender rights. But really, what is the promise of a state constitution in protecting this group of individuals who are really fighting for access to health care themselves, but also for just basic dignity and privacy and the ability to be left alone to just live their lives? So that’s something I’m thinking about quite a bit as another frontier in state constitutional rights. I have a lot more I could say on this because it’s what I have to think about every day as part of my job, but I think that those are two things that come to mind.

Gadson: I think they’ve done a terrific job talking about the political process in education, so I don’t want to repeat what they’ve said. Something I want to emphasize that was implicit in what Sharon said is what I’ll refer to as Kansas’s unalienable rights provision. And that’s a provision I would love to see more people, especially people in this room, pay careful attention to and flesh out. And so I refer to state constitutions which really incorporate language from the Declaration of Independence about how all men are created equal and they have certain inalienable rights.

One of the things I’ve found is that students tend to skip over that language when they read a state constitution. That just seems to be kind of throwaway fluff. And yet, when you look at it historically, actually that language was used successfully by many enslaved people to challenge slavery, in particular in Midwestern states. And I think Justice [Loretta] Rush from Indiana acknowledged that. So there’s that history there.

And then, in terms of constitutional drafting, one of the things I’ve looked at is how that language came to be in state constitutions. And Solicitor General [Ryan] Park knows this, from North Carolina; that language wasn’t always in the North Carolina Constitution, and it was actually demanded by people who wanted to change the racial hierarchy and racial oppression after the Civil War. The same is true in many other Southern states. You look at language about how all men are created equal was not in earlier versions of the South Carolina Constitution; it comes in in 1868. And it’s formerly enslaved people that are demanding this language to be in the state constitution. And they’re just really attached to it.

There’s this language that’s always struck me from a delegate in Arkansas. He says that the original contract of this country was the Declaration of Independence, and he says that he thinks an angel in heaven guided the hand that wrote those words. So he’s linking racial equality to the founding and really saying that this isn’t fluff. He’s saying we have lived through slavery, we have lived through being isolated and excluded and oppressed, and we’re trying to tell you that all men who are created equal — it’s not something to take lightly.

I mention this because I think if you really took that history seriously, especially in a state like North Carolina where you have formerly enslaved people insisting that this language go into the state constitution, well, that has implications for school funding, I think. If all men really are free and independent and they have equal dignity and worth, how can you fund one school a certain way and another school another way? How can you gerrymander a congressional district that includes a certain number of racial minorities?

So I hope that if you are a student or if you are a scholar, frankly, that this is language that you will not just think is a relic from 1776, but think about how this could be a force multiplier that helps you convince a court to take action on gerrymandering, or on school funding, or for that matter something like environmental rights. If all men are created equal, how can we have certain marginalized communities hav[ing] to tolerate worse air quality or unhealthy drinking water?

Stroud: Does anybody want to add before we —

Rosenblatt: Yeah, I’ll just add this point. What a good point that was about history and the transformation of North Carolina and other Southern states. The premier paradigm case on the attempt to justify slavery was called State v. Mann in North Carolina. That explained it all. And look at the transformation there and how the Fifth Amendment — the majestic language of the Fifth Amendment, “life, liberty, and property” — was used by the United States Supreme Court to promote enslavement in Dred Scott [v.] Sandford, in which Judge [Roger] Taney proclaimed that, “Yes, the Fifth Amendment protects slavery because it’s right in the Fifth Amendment: ‘property.’” What about “life” and “liberty”? Well, that part was ignored, but the property was emphasized.

So this is how, during that era, when the United States Supreme Court had decided Dred Scott [v.] Sandford, the state courts and the state constitutions were passing personal liberty laws. So this is yet another manifestation of federalism, in which the state courts will, from time to time, from era to era, step in where the door is otherwise closed.

Resnik: Yeah. I just want us to share the potential that, since these words have plasticity, we shouldn’t write off the federal Constitution in order to appreciate what the state constitutions provide. There is an era from the ’60s to ’70s when the idea was that the federal Constitution did protect security, welfare, education. It was news that equal protection didn’t, that the Goldberg v. Kelly efforts to have procedural rights was engaged with a political-social legal movement for economic protection from the federal Constitution itself. The lovely words in both Connecticut and Alabama from the early part of the 1900s — all persons shall have rights to all remedies — didn’t include us in this room. Now they’re read to include it without amendment. So as we’re thinking through the either generativity or potential oppression that can come from constitutional text, it’ll get us to the question about interpretation. It’s reading the whole, reading a part, reading all of it, what are those words, versus it’s state versus federal, and it’s stated or not — as we’re about to see from yesterday’s argument [in Trump v. Anderson].

Stroud: Thank you. And actually combining Robert and Judith’s points, Justice Liu actually wrote an article for the Yale Law Journal in 2006 that mentioned, based on the sort of inadequacies of education suits in the states, that you did need (or it would be nice if you had) a national approach and relied upon this theory of the citizenship clause of the 14th Amendment, the opening lines, to establish an obligation congressionally that Congress would need to create a meaningful floor to education. So a lot of conversations happening here even without Justice Liu.

I do want to talk about the future. And I want to go back to the ACLU war room and know what else (laughs) is on the radar that you feel comfortable talking about (laughter), if you don’t mind.

Brett: Sure. The war room of the ACLU of Kansas — all three of us in the legal department (laughter.) I just want to note (laughs) — but we do talk about this a lot. We talk about the cases that we have on our docket currently, but also, where do we want to go with the law? What do we want to develop? How do we want to push the envelope? Because we are one of a very small number of groups in the state of Kansas that has the backing of a national organization to bring impact litigation in state courts and try to move the law in the right direction. And so that is a lot of what we spend our time thinking about.

And so, in addition to the areas that I have already mentioned, I will mention a few more. I think voting rights and what happens when legislatures pass restrictions on voting rights and how those are adjudicated under the state constitution is a huge area right now in the state of Kansas. And I won’t talk about it in depth because there is a case before the Kansas Supreme Court that is pending on this very issue, and whether voting is a fundamental right under the Kansas Constitution and the level of scrutiny that should be applied to restrictions that make voting harder and make voting less accessible. That is a case that we are awaiting a decision on right now.

We are also very interested at the intersection of rights, and particularly the intersection of criminal legal system reform and voting rights. We have a statutory scheme in Kansas where you cannot exit probation unless you have paid off your court debt — your fines and fees. Judith talked a little bit about what those court fines and fees do to individuals, and the link between payment of court fees as a participant in the criminal legal system, and how that funds the state court systems as they exist right now. So in Kansas, you can’t exit probation unless you’ve paid off your fines and fees, and you cannot regain your right to vote after a felony conviction until you have exited probation. So there are individuals with wealth who are able to exit probation on time because they can pay off their fines and fees, and therefore they get the franchise back; and there’s individuals without wealth who cannot. And there are serious constitutional implications for that. This was looked at in Florida in a federal case, but it is something that we are looking at in Kansas as well.

And so I think these are really core elements, core foundational rights, that exist in Kansas and that exist across subject matters within the state constitutions that are things we’re going to continue to look at in addition to other aspects of the criminal legal system — confrontation clause issues, Fourth Amendment issues, search-and-seizure issues, things of that nature.

Stroud: Thank you. So, Robert, you’ve written a fabulous article about the unconstitutional conditions doctrine which is forthcoming in the Yale Law Journal. What should we know about this doctrine? And what do you think about litigators who are considering it, or should they consider it?

Schapiro: Well, thank you. And this really — the unconstitutional conditions doctrine fits into this discussion of what are barriers to asserting your rights. So there are various rights that one can have under state and federal constitutions, and then there are various things that the government doesn’t in theory have to give you — like a job, money, a tax exemption, a license. And the question is, to what extent can the government say, “Oh, if you want one of these benefits, like a license or an exemption, you have to give up a constitutional right to get that?”

Now, the United States Supreme Court, under its unconstitutional conditions doctrine, has looked at certain elements of that — to what extent is conditioning a benefit on waiving a right unconstitutional? The area where the United States Supreme Court has been most active has been the property area. So if a locality wants to say, “Well, we’ll only give you a license or a waiver of a zoning variance if you do something that we couldn’t make you do otherwise,” then the Supreme Court says, “Oh, that violates the Takings Clause.” So in the area of property, the United States Supreme Court has been very active in the unconstitutional conditions doctrine.

An area where they have not been active at all is with regard to criminal procedure — in general, rights like the right against unreasonable search and seizure, right to counsel, rights that really intersect the most vulnerable in society. And what we’d like to urge lawyers and courts to do is to think about what should be the limits.

An example is plea bargaining. So the government doesn’t have to offer you a plea bargain, but as we know, the vast majority of criminal cases end in a plea bargain. And you have a right to go to trial, you have a right to counsel, you have a right to appeal, but to what extent can government say, “Well, yes, but if you want the benefit of a shorter prison sentence, then you’re going to have to give up some or all of these”? You’re certainly going to have to give up the right to trial. What about the right to appeal? What about other kinds of rights? And so that’s just an example from the criminal procedure area where we often require people to waive their constitutional rights to get something like a slightly more favorable prison sentence or other kinds of conditions where there’s been almost no scrutiny on the federal level where there’s an opportunity for scrutiny on the state level.

I would just say, by the way, the area which probably may intersect more with people in this room would be driving while intoxicated. So you have a right under the federal Constitution and many state constitutions — sorry, not to get too personal here, but (laughter) — so in general, when you’re stopped, you can’t be required to have a blood alcohol test, and in some states, you can’t be required to make a breath alcohol test. But the question is, the government says, “Oh, yes, you have that right, but if you exercise that right, we’re going to take away your driver’s license.” And if you don’t live in New York City, it’s pretty hard without a driver’s license.

So, in any event, the unconstitutional conditions doctrine and the way it might intersect particularly with the rights of the most vulnerable in the criminal procedure area I think would be a very important focus for further development.

Stroud: Thank you. I’m going to ask one more question to Marcus. You’ve written about state Civil Gideon and attacking procedural barriers for pro se litigants. Can you talk about both of those and how they relate to access to justice?

Gadson: Absolutely. And so in a moment I will define what Civil Gideon means and doesn’t mean and talk about some of the nuance about it. But first, just to set the table, pro se litigants really struggle with civil procedure. Things like, when do I waive a defense? How do I undo a default judgment? I didn’t show up to court, how do I undo that judgment? What do I have to put in an answer for it to be accepted? How much detail do I need to put in a complaint or it will be dismissed? And I know they struggle because I teach 1L civil procedure students, and 1L civil procedure students, it turns out, don’t have a perfect command of civil procedure (laughter.) So that suggests to me — and for that matter, people just into practice — and I’m raising my own hand here; civil procedure didn’t fully make sense to me until I was in practice and I actually was responsible for dealing with some of these issues.

So the problem you have is a lot of litigants who may have a meritorious claim are losing because of procedural technicalities, and I think there’s a tragedy in that. And so what Civil Gideon says is that we are going to appoint people counsel for civil cases in a similar way that we do for criminal cases. So just as you would give somebody a lawyer before you take their liberty away or before you put them on death row, before you’re allowed to evict them from their apartment or before you enforce a debt that’s going to wipe out their net worth or something like that, you would also give them a lawyer that would represent them at different stages of the litigation process. And I think it’s a terrific idea and a wonderful long-term goal, but there are some practical issues that you face.

One is just political reality. And I think a lot of voters are skeptical, it turns out, of paying lawyers for things like a welfare recipient using a lawyer for challenging a benefits termination or something like that; or prisoners — paying a lawyer to represent a prisoner who’s bringing a 1983 action. So there’s a lot of political issues that come into it.

And then one of the things that I hate to acknowledge is that Criminal Gideon, unfortunately, has not been the panacea that a lot of reformers would have liked to see. If you look at funding disparities between prosecutors’ offices and public defenders, they’re extraordinary in many states. And so the question you ask is, well, even if you could get Civil Gideon, isn’t there a risk that it could look just like Criminal Gideon, which has turned out not to be the boon we would have hoped?

So I think it’s a long-term goal. As an intermediate step, some reformers have pushed what I’ll call unbundling legal services. What I mean by that is, instead of giving you a lawyer for the whole case, we’ll give you a lawyer when you have to submit an answer, or we’ll give you a lawyer when you have to file a summary judgment motion, and so we’ll kind of strategically target a lawyer’s assistance at different stages. And there has been some research that suggests that, depending on where you are, that could be a beneficial step.

I think the last real thing we can do is procedural reform. It doesn’t carry the political downsides. You don’t see people running negative ads — such-and-such reform, Rule 12(b)(2), the civil procedure code, they’re evil and vote them out. So there’s a lot of political maneuvering that could be done to try to make civil procedure friendlier to people who are vulnerable and marginalized that wouldn’t carry some of the same political costs.

And honestly, if we can streamline procedures to focus more on the merits, it’s not just the poor and marginalized that benefit; it also is just your average middle-class person or even your average small business, if we can have a court system that focuses less on technicalities of different kinds and allows people to get benefits — get a determination on the merits.

Finally, I’ll just add, I’m not the most savvy person when it comes to things like AI and technology, but this is something where I’m hoping that really smart minds will think about how we’re going to leverage AI and technology to try to help people that can’t have a lawyer. And I think there’s a lot of potential benefit there.

Stroud: All right. Now moving to some fun audience questions. And I asked for a hard question; I think we got some. The first question is, why do you think state courts have been so reluctant to curb majoritarian excess in punishment, specifically lengthy prison sentences?

Resnik: Well, I was supposed to talk about prisoners before, so just — first of all — and I think Helen [] mentioned this earlier, there are several state supreme courts that have now said that life without parole for juveniles violates their constitution. And so I wouldn’t give up on long sentences and state courts quite yet.

One thing to add about that is the text says “freedom.” There are some states that have “cruel or unusual,” not just “cruel and unusual.” There are some states that say “undue rigor.” And there are some states that say rehabilitation as part of their punishment clauses — as well as excessive fines, which we heard about just yesterday from Indiana. So there’s more space that could be inhabited around that.

And then there’s agendas on compassionate release, geriatric care, and the radical cost of incarceration that has united across many spectrums the view that the utter dysfunction — you could talk to this in your public health hat — makes it a very bad way to deliver government services: a $1.5 million housing project for the detained, $5 million in supervision. And the economic inefficiencies and the radical harm to communities is such that I think that we shouldn’t assume that the future is only one framed in super-predator terms on the prisoner front.

Brett: I would maybe add to this one other thing which was touched on yesterday, which is, who is on the bench? And we in Kansas know that a large majority of the folks that serve on the state appellate courts don’t have public defense experience. They’re coming from a background that might not be as familiar with the plight of criminal defendants or the ways in which our criminal legal system operates against poor, predominantly minority communities. And so I think that lack of perspective or that politics — whether it’s a political appointment position or not — definitely influences how you view cases that have components about excess sentencing and how you view criminal legal reform constitutional challenges that are brought before you as well. So I think that is significant.

There’s been strides made in that in Kansas, particularly at the district court level in some jurisdictions. But we had an individual who was a former public defender who was nominated to be on the court of appeals three different times, I think, and each time, the legislature refused to put him on the Kansas Court of Appeals. It was predominantly because of his background as a public defender. So I think then you start to see things get entrenched by who is on the bench, and who remains on the bench, and who has the power to put people on the bench.

Stroud: Anyone else?

Rosenblatt: Well, the question assumes something that I’m not sure exists uniformly, universally. In New York, the state’s high court has no power or jurisdiction by virtue of [the] constitution to modify sentences unless they’re illegal, not if they’re too long. But the legislature also provided in the constitution of New York that the intermediate appeals court, the appellate division, has the power to reduce sentences. And they do that routinely.

Stroud: Thank you. So next question is, do you see any means to seek redress for civil rights violations by federal officials in state court? I’m going to just repeat that.

Resnik: Tarble? (Laughs.)

Stroud: Do you see —

Resnik: It’s called Tarble’s Case.

Stroud: — (laughs) any means to seek redress for civil rights violations by federal officials in state court?

Resnik: Go ahead.

Schapiro: Yes. Well, I’d say as a doctrinal matter there’s — certainly, one could do that. And, you know, there was an example that — I don’t know how we may feel about it, but after Ruby Ridge, there was an FBI agent that Idaho believed had violated somebody’s civil rights, and so Idaho actually brought a state criminal prosecution against an FBI agent. Now, under federal law, that case was then removed to federal court, though tried under state law, with the immunity that if you are actually carrying out your official duty, then you are exempt from state prosecution. So, on the criminal side, we have seen that happen in that rather unusual circumstance. One could imagine that happening more broadly.

On the civil side, it’s certainly possible that one can bring a civil trespass — whatever it is — a battery case against a federal official. That was in general the model before the Bivens case, which allowed you to bring an action directly against a federal official. So I think there are certainly possibilities to do that, and I think it’s possibilities that might well be explored.

There will be that issue . . . if the federal official is actually carrying out the official duties — and there’s been some focus lately on what is the scope of one’s office (laughter), say, if you’re the president, but we don’t need to get into that here (laughter) — what is the scope of your duties? But it may be cases where you can, in fact, go to state court to try to redress civil rights violations by federal officials.

Stroud: And this will probably be our last question, but what can — one of the last questions. What can the people in this room do to support the litigation at the frontier of rights expansion under state constitutions? Is it more historical research, amicus briefs, or something else entirely?

Brett: Donate to your local ACLU (laughter).

Gadson: I’ll just say, I think one of the very best things you could do in this room is, like it or not, a lot of judges really care about history and tradition, and so thinking about ways that you can present claims that they’ll be received in a positive way by somebody who carries out that kind of a framework. And so I think I laid out — earlier in my remarks — I suggested that looking at language from the Declaration of Independence and saying, well, you said you’re a committed originalist and textualist, and a real originalist and textualist has to look at the fact that this was drafted by people who experienced slavery and they had a particular view of what equality is. And so I think that that’s something you guys need to do because a lot of state judges — even if the Supreme Court flips, which it probably isn’t going to for a while — there will be state court judges who care very much about history and tradition. So learning to really speak that language will help.

Brett: I’ll give a second answer, although I stand by my first answer as well. So I want to speak to the law students in the room. And Solicitor General Park talked about this in his remarks, and I think it is incredibly important: go where you’re needed. There are incredible organizations and offices across the country in small jurisdictions doing this work and waging these battles on the frontlines, and they are often under the radar. And there are incredible organizations in New York City and DC and San Francisco and elsewhere that do this work as well, but go live and work and breathe in these communities that need you to do this work. We need civil rights litigators in the South, we need them in the Midwest, we need them in the Great Plains, and we need you to go learn the state constitution and dedicate your careers to doing this work in states that are in dire need of talented young attorneys like you. So I will give that as a very, very big plug.

Schapiro: Yeah.

Resnik: I — go ahead.

Schapiro: Go ahead.

Resnik: No, go ahead. (Applause.)

Schapiro: Yeah. And I just want — maybe, again, [to] emphasize to law students, because it’s certainly true when I was in law school, we didn’t talk much about state constitutions. It occurs to me now, maybe a transformative experience for me was the summer after my first year of law school [when] I served on a jury in New York state court where we ended up convicting somebody of murder under New York state law. And I researched it and I found that person’s conviction was later overturned because it violated the New York state constitutional right to counsel. So — but maybe without serving on a jury, this can be your experience — or in other ways, just think about state law, think about state constitutions, and wherever you are — prosecutor’s office, clerking — think about what might be available under the state constitution, and don’t ignore it and look just at federal claims.

Resnik: I also want to suggest areas of law that have been kind of sleepers. The full faith and credit clause. We’re talking about states. Can Connecticut say, “Thank you very much, Texas, but your view of who gets damages for what forms of injuries is not enforceable in the state of Connecticut or California?” Obviously, there are current statutes like that.

Privileges and immunities are mentioned more in the U.S. Supreme Court than they once were. How will that enable or eclipse state constitutionalism? The Uniform Law Commission and the UCC — not just the Universal Commercial Code, but the role of uniform laws — is this good or bad for our diversity in terms of more venues in which to inhabit?

We’ve acted as if states are unilateral, though we were reminded about multistate filings. And there’s a vast amount of trans-local organizations of government actors — some of which, like the Conference of Chief Justices, are private — but of government actors getting their political capital from the first names chief justices; some of them are government organizations, and then the states co-venture enormously. And a big legal issue for those of us who teach about federalism: What do we think about the multistate entities as a legal matter for — whether it’s sovereign immunity or authority or whatever?

Those are areas of law that are under-engaged and are hard. Want a public policy exception? Careful what you want, in terms of histories of suppression. So there are a lot of areas of law that seemed boring . . . where much more action currently is and will be.

Stroud: On that, I’m afraid we’re out of time. I wanted to squeeze in another question, but that’s it. So thank you, and please join me in thanking our panelists. (Applause.)

(End.)