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State Constitutions: A State Solicitor General’s Perspective

Transcript of panel from Symposium: The Promise and Limits of State Constitutions


The following is a transcript of the panel, “State Constitutions: A State Solicitor General’s Perspective,” 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.

During this conversation, former Virginia Solicitor General Michelle Kallen interviewed North Carolina Solicitor General Ryan Park about the role of state solicitors general in our federalist system. They discussed their experiences appearing before state supreme courts as solicitors general and how state solicitors general contribute to the development of state constitutional law.


  • Ryan Park, Solicitor General, North Carolina


  • Michelle Kallen, Partner, Jenner & Block; former Solicitor General, Virginia


Michelle Kallen: Well, this is a pleasure to be able to be here, in part because Ryan is a good friend. And having an opportunity to talk to him generally is excellent, but to do it in front of you all is a special treat.

So we want to set the stage a little bit about state [solicitors general] (SG) offices, what they do, because it differs per state and there’s been a lot of activity on a state SG level just generally, and also before the court. I think the arguments yesterday even highlight that. There were three state SGs or former state SGs very active in the litigation. Two argued and one second-chaired. And so I think that just highlights the prominence of state SG’s offices, what they’re up to right now, and some of the potential.

So, Ryan, what does the SG’s office in North Carolina do? What’s the purview of the SG’s office?

Ryan Park: First, just thank you so much for having me and Michelle here. It’s really an honor and humbling, especially after sitting through the first day’s programming, to have the chance to speak with you all about my work.

I’m the North Carolina solicitor general, and we — actually, your former boss Toby Heytens, who’s now on the Fourth Circuit — articulated it in a way that I really find appealing, which is that in my office, as in most offices across the country and in the federal government, the solicitor general is not the chief policymaking officer. There’s actually several people above me in the org chart that can dictate the positions I take. But I’m the senior attorney in the office whose job it is to be a practicing attorney. So I’m really more of the tip of the spear to try to effectuate the policy judgments and the positions that my boss, the attorney general of North Carolina, Josh Stein, has articulated — articulates and advances — and the positions that my clients take. So that is my role as kind of the senior practicing litigator for North Carolina.

That primarily involves us working in the appellate space. So, as you probably all know, the U.S. solicitor general is strictly, for the most part, focused on the U.S. Supreme Court. And we don’t have enough Supreme Court cases for that to be our job, so we are principally focused on our state’s highest court, the Fourth Circuit, and when cases go up to the U.S. Supreme Court. That’s what we focus on.

Kallen: And are you an appointee of the attorney general? Are you an appointee of the governor? Are you elected? In North Carolina, where does the SG fit into that landscape?

Park: Like most states, in our state, the attorney general is an independently elected executive officer. So he’s elected by the people, and he has appointed me in my position. And it creates an interesting situation in a state like North Carolina, where I represent a whole host of officials and agencies. Sometimes they are in opposition to one another, honestly. And so I am often representing people of the opposite political party (laughs) as my boss. I am actively representing, in some cases, our General Assembly and actively representing our governor and our attorney general in cases against the General Assembly. And that’s all cleared by the bar. (Laughs.)

So we — and this happens kind of across the country, where often people in my position are placed in the somewhat uncomfortable but unique position where we are the senior official within the state Department of Justice that is representing everyone, that has to try to navigate those divergent interests. And so, for example, there are cases — we haven’t done this, but this happened in Michigan, actually, where the attorney general herself argued a case against one of her deputy solicitors general in a civil rights case. And that is the kind of thing that happens in the situation where you have a plural executive, or you have different people that you have to represent who have different policy positions and legal positions.

Kallen: And one of the interesting things, I think, of being in a state SG’s office, and maybe a state AG’s office generally, is the idea that you both have your individual clients, right — the party that’s named on whatever side of the v — but you also are continually maintaining the interest of the state, or in our case the commonwealth, while you’re litigating. So have you ever faced a situation where you felt like the interest of the state or the interest of the individual party in the case were not perfectly aligned? And if so, how does North Carolina, at least, handle that situation?

Park: That happens all the time, where you at least have to try to navigate those difficult minefields. And in the run-of-the-mill case, which more often is simply something procedural or technical where — for example (laughs), this is the most humdrum thing ever, but it actually affects hugely important cases, as you all know (as the litigators especially know) — where there’s the question of whether a deadline was jurisdictional. And so sometimes we have a client agency that wants to say “yes” because it helps them win a particular case. And sometimes, it’s our attorneys who have missed a particular deadline, and they want to argue that it’s not jurisdictional so they can proceed in their case.

I think the key technical role that my office often plays is to try to reconcile those positions. You don’t want different state actors taking different positions on a question like that, and so you have to kind of — it’s not appealing to the better angels of our nature — it’s really thinking, what is — over my run of cases, even assessing these two particular cases: What is actually in the state’s interest? What is in the interest of justice generally? And we have to craft a position in that manner.

And for the most part, people get that. And you can actually have constructive conversations with clients, again, across the party spectrum to get them to agree that we actually want to have a uniform position for the state, and this is in the state’s best interests. And sometimes that’s not possible. And so, in North Carolina, especially in some of the more high-profile cases, we’ve reached a situation where sometimes the attorney general has decided to recuse from a case. And often, I will represent him individually and he will take a different position than the client agency or the client branch of government.

Kallen: And how big is your office?

Park: It’s pretty small. So I think in New York — there’s a range of structures across the country. So my understanding is in New York, they have a bigger office than the United States SG’s office because they handle all appeals. They’re kind of like a civil, criminal, appellate, and SG’s office. We are five attorneys right now, which is enough to do two big things, right? We can handle big matters, the most important — however you want to define that — matters in-house, we are the lead counsel in those cases. And then it’s enough people to exercise general supervisory authority over all the state’s appeals, and to be a meaningful player in major policy discussions within the office and across state government.

Kallen: I think your office is pretty similar to Virginia’s in terms of size. So the kind of jurisdiction, for lack of a better word, of different state SG’s office[s] really vary by state. So some states, like New York or Texas, for example, handle all if not most of — or, most if not all of — the appeals that come through the state or DC, in the District. So even though DC, for example, is significantly smaller than Virginia or North Carolina, their SG’s office is significantly bigger because they handle all the appeals.

For us in Virginia, we’re similarly situated to North Carolina in that our office, at one point — at least during my boss’s administration — was just the solicitor general and one deputy at the beginning of his administration. And then at the end, we had five full-time lawyers; that’s the biggest we got. Under this administration, it’s significantly bigger. But each state differs. Under each AG, it differs.

And then, for us, the way that we viewed our purview is we broke our work down into three buckets. We had — everything in the United States Supreme Court we handled, period. Almost everything in the Virginia Supreme Court or the Fourth Circuit, aside from run-of-the-mill criminal appeals or run-of-the-mill habeas cases — beyond that, we handled most matters before those courts. And then we had this miscellaneous bucket — we called it the Washington Post bucket. Anything the Washington Post might report about, we handled. (Laughter.) So that would include multistates. I think your office handles multistates as well. So signing onto amicus briefs, leading multistate efforts. Then we handled — at some point, Virginia was sued over the requirement that people had to identify themselves, or the plaintiff’s theory was that people had to identify themselves by race before getting married. So when that complaint came in, that came straight to us. We handled litigation over the Equal Rights Amendment, removing the Lee monument. So those were all [in] that third bucket.

I guess on the role of multistates, what is it that your office — how does your office handle the multistate dynamic?

Park: Yeah. So I think that your office’s approach to these multistate cases really is dictated by the values and priorities of the boss, the people — the person that the people elected. And you know, one of my main charges is to try to canvas the waterfront and find bipartisan efforts that we can be a leader in — and often that arises in the consumer protection realm.

So we recently filed a brief in the U.S. Supreme Court where we had both Dakotas and Mississippi that joined kind of the blue-state coalition to try to address some of the abuses of the bankruptcy process to absolve wealthy corporations of their tort liability. So that’s the kind of thing where you can make a good-faith effort to try to get people across the kind of ideological spectrum on board with a legal position.

So, you know, we’ve — I was speaking with the chief justice of Indiana yesterday. We worked closely with Indiana on robocalls, for example. And that’s another thing where we’re able to take the initiative and develop a partnership across the ideological aisle.

But we also — especially in the prior federal administration, were heavily involved in a lot of multistate cases where we were suing the federal government, involved in lawsuits against the federal government. And we try to focus on things that have a distinct North Carolina interest. And so one thing that we took the lead on was challenging offshore drilling off our coast, and we were able to get some bipartisan cooperation on there and have some success. And, obviously, there’s (laughs) — we could talk the entire time about many of those broader lawsuits, but we were involved in some of those other challenges as well.

Kallen: Definitely the interest in not being super-partisan from North Carolina was something that was somewhat palpable. I recall when we were both in state government, because you’d have a state drafting a brief, a multistate amicus brief, and then there would be certain states that you know will definitely sign on. And then there are the states that are like, “Oh, are we going to be able to get this state or not get this state?” And you all were sometimes the state that we’re like, “Oh, we really hope we can get North Carolina here.”

So in terms of what you do, I think a lot of people perceive state SG’s offices being purely appellate. Can you talk a little bit about the nature of how much of your work is appellate, how much isn’t, and was there a particular time recently of note where the dynamics in terms of the extent of your appellate versus trial-level work shifted?

Park: So we — I don’t think we call it the Washington Post bucket, kind of this general sense of we should be the primary litigators in what are very complex legal disputes that involve novel questions. And I guess to take it back to the focus of this conference, when I arrived in North Carolina, I arrived as deputy SG. And at the beginning, I saw my role and my value add was, I had a lot of experience in the federal appellate courts, in the U.S. Supreme Court, and so I was often focused on those areas. And then I realized pretty quickly that I had a big gap in my knowledge and understanding of the cases that we were asked to litigate under the state constitution. I’d never read the North Carolina Constitution before I took this job. I never really thought — I don’t think I read (laughs) Justice Brennan’s article. And I realized I just had this huge gap in my knowledge.

And I actually took a North Carolina constitutional law class at UNC Law School that former Justice Orr, Robert Orr of North Carolina, taught. And then now — I took it over after I took the class. (Laughs.) So now I teach the class. And (laughter) we are kind of in a golden age of North Carolina constitutional law, for better or worse. The syllabus that I teach now is about 50 percent turned over from the class that I took; there has just been so much activity in this area since I arrived in North Carolina seven years ago, or at least in this position seven years ago.

And you know, if you just pick up the North Carolina Constitution, it’s really quite extraordinary. I mean, for someone who has — who had been trained and focused on the federal Constitution, right there, in the very first article of the Declaration of Rights, it codifies the Declaration of Independence, essentially, and then adds this fruits of the labor clause. It says that all the people have an inalienable right to the fruits of their own labor. And you just read that on its face, and on its face textually as someone in the 21st century, it’s completely unclear what the intent of that provision was and what it’s supposed to govern.

And we had a series of cases in the Covid era where a lot of the challenges were being brought under that provision. And so we went to the library (laughs) and several of us spent weeks and weeks reading and studying this phrase and this clause and its origins, and how it was understood when it was added to the Reconstruction constitution in 1868. And we realized that it was kind of an abolitionist slogan. It was one of these things that if you were an active member of the polity (laughs) in 1868, you would understand it in the same way that we understand the words pro-choice. We understand what that means, what that was trying to — what those words convey in our contemporary understanding. But at the time, this was a phrase that Abraham Lincoln used all the time, that a lot of leading abolitionists used all the time to describe why enslavement of people was so offensive. And one of the reasons was [that] it was depriving them of the fruits of their own labor. It was depriving them of agency. And so that was just a total revelation to me.

And there’s many different provisions like that. I think yesterday we talked about the right to education. We have an affirmative, codified right in our Declaration of Rights to education. And it also says the state has a duty, so it imposes a duty on us as state actors to guard and maintain that right to education. And so, again, as someone who’s more steeped in the federal Constitution and kind of a negative rights understanding of our rights are supposed to protect us from government — this is the flip side. It’s an affirmative right, and the state has an obligation to preserve this affirmative right. And that just undertakes — it requires you to undertake a totally different constitutional analysis and perspective.

Kallen: And then it’s fascinating also to think about [how] different states were ratified at different time periods. Virginia’s operative complaint was ratified in 1973. So if we’re going to be looking at interpreting Virginia’s Constitution from an originalist standpoint, you don’t try to think back to what was going on at the time the nation was founded. An originalist understanding of Virginia’s Constitution would look to 1973. And so the term equality, at least under an originalist understanding, would mean something different. So it’s also fascinating to hear your discussion of North Carolina’s Constitution and understanding of phrases, that you would probably use a different methodology to interpret, to the extent you’re using an originalist methodology, than we would in Virginia.

Park: Mmm hmm.

Kallen: (Laughs.) So on the note of high-profile cases that involved the North Carolina Constitution, I’d love to talk about Moore v. Harper, starting from the beginning. (Laughter.)

Park: Sure. I guess what I’d say on this, just to table-set, this started out as a state constitutional case. And it was — these lawsuits were filed, obviously, in the aftermath of Rucho, which also arose out of North Carolina, where the Supreme Court closed the door on these kinds of claims at the federal level for now. And so we perceive this as a quintessential state constitutional dispute that would end at our state high court, and we litigated on that assumption for a year.

This is one of these situations where there was an agency defendant. Our state board of elections manages the election process in North Carolina. They were a defendant. And the attorney general recused, and we set up a separate litigation team to represent his interests and the governor’s interests in the case. And my office was deeply involved in formulating the legal arguments that we presented to the court, and we coordinated a lot with the plaintiff groups on that side of the v, and I think some people here. (Laughs.) And it was a similar exercise. I mean, just as kind of a legal nerd, it was so much fun, in the year after the lawsuit was filed, because we spent a lot of time trying to develop an understanding of — I should backtrack.

In our state constitution, there’s a textual provision that says, “All elections shall be free.” And many state constitutions have a similar provision. There’s nothing like that in the U.S. Constitution, obviously. And so we set out to try to be the masters of understanding what that term means under various interpretive methodologies. And we understand that there are going to be judges and justices who think that the history is not only a relevant data point but controlling, and so we had to dive into that as well. We also had to dive into more contemporary analysis and understanding of what it means in a modern democracy for an election to be free. And that was incredibly exciting, and we litigated that up to the state high court.

And we all understood that there was this independent state legislature doctrine or theory that was percolating out in the world, but I don’t think that we truly expected — I don’t think, if you took a poll (laughs), while we were litigating the case, that we expected it to reach the U.S. Supreme Court. I personally was surprised. I believed it was waived, but we (laughs) — we can talk more about that. It was not a focus of the litigation. There was no motion to dismiss in the trial court saying, “We move to dismiss because of ISL,” right? That did not happen. We were focused primarily on state constitutional law.

When the Court did grant review, it was a surprise to us. And it also restarted this endeavor, in collaboration with historians and legal scholars and others nationally to try to understand what possible basis there would be in the history to support this theory and what basis there would be to oppose it. And again, kind of cleared by the bar, my office represented the entire executive branch in the U.S. Supreme Court, and we had some able co-counsel as well, and we were defending the state high court’s judgment.

Kallen: One of the things that — at least to me, coming from the state AG world — that I don’t know if folks from a federal perspective had as visceral a reaction to this notion that you’ve got the U.S. Supreme Court coming in telling a state supreme court how to interpret a state constitution. [It] just seemed so uncomfortable, for a more tepid word than what I’m going for. But did you have that kind of — that kind of visceral reaction to idea that the U.S. Supreme Court is going to tell the North Carolina Supreme Court how to interpret the North Carolina Constitution?

Park: Yeah. Yeah. (Laughs.) I think we all understand that, in reality, law is a dynamic matter that is the subject of discussion and debate across society. But it has been a bit extraordinary how much that I learned in law school is no longer reflective of the current and possible near-future state of the law. But this really went to the second case you read (laughs) in civil procedure as a 1L — the idea that the U.S. Supreme Court is interpreting and dictating state constitutional law and is arrogating to itself the authority to determine whether a state is complying with its own constitution or whether its own constitution even mattered — whether the state constitution even matters. It was a little bit of a jaw-dropping experience to try to litigate this case.

And there was an intellectual backing behind this theory, but it kind of contradicted everything that I thought was fundamental about how the state and federal constitutions interact with one another, state and federal courts interact with each other. And it was an interesting experience.

On the panel yesterday, I think Carolyn Shapiro talked a little bit about the debate about whether — what is the next step on the federal level for this theory. It’s clearly not completely gone, and that’s something that I think we’ll have to continue to grapple with.

Kallen: One of the things that [is] in vogue right now, that’s come up over the course of this conference, is the trend of originalism. And one of the things at least Justice Scalia said was that if he could amend any part of the U.S. Constitution, it would be the amendment process, which makes sense because if we’re going to use an originalist methodology to interpret whatever text, that text has to be readily changeable, right? If we’re going to interpret the U.S. Constitution based off the drafters who drafted whatever provision of the Constitution is at issue, then we need to be able — if we disagree with it as a society, we need to be able to meaningfully amend it.

One of the most — probably the most fun case that I touched, and I know you touched as well, over the course at least in my time in the Virginia SG’s office, was litigating the Equal Rights Amendment. And I can’t — I think North Carolina hasn’t ratified the ERA.

Park: It hasn’t. Yeah.

Kallen: Maybe you didn’t touch it, because I don’t know — I don’t recall if North Carolina actually signed onto the amicus brief supporting the litigation there. (Laughs.)

Park: Oh. I think we did not, yeah.

Kallen: But — Virginia ratified the ERA in 2020, and there were three states that ratified the ERA: one in 2017, Illinois — sorry, Nevada in 2017; Illinois in 2018; and Virginia in 2020. And so when the archivist of the United States didn’t certify and publish the ERA, the three states banded together and sued to vindicate our ratifications of the ERA. We got to litigate Article V, which it’s — I don’t think there are many rooms that we could put together who can understand the nerdy — how fun that is to be able to say, “We litigated Article V,” but I figure the folks in this room can appreciate that.

One of the interesting things, though, about the ERA and the constitutional amendment process is then, now, especially post-Dobbs, a lot of folks have been thinking about state ERAs. And I think technically calling them state ERAs is probably inaccurate, because at least in Virginia, it’s not an amendment; it’s actually in the text of the 1973 constitution itself. But the question of — what does equality mean in the context of state constitutions? We decided we’d turn the tables a little bit, and so Ryan talked about Moore v. Harper, and I was going to cover the Equal Rights Amendment.

Anyway, that’s Article V and the idea and the pairing of states’ roles and the — and Congress; part of our theory was that the ERA became part of the Constitution in Virginia the moment Virginia ratified, because if you look at the text of Article V in a pretty strict textualist reading of Article V, there really isn’t a role for the executive branch. There arguably might not be a role for courts there. It’s kind of like a pairing between Congress and the states, and then the — Article V uses the word “shall,” when the requisite number of states ratify. So we came in with this hyper-textualist argument as to the meaning of Article V, and that the issue actually hasn’t really been resolved. The case was dismissed at the district court level on standing grounds, saying that the states didn’t have an injury sufficient to confer standing. Then, on appeal, the court didn’t reach that issue, but the case was a mandamus case, so it was dismissed on the ground that there wasn’t a clear right to relief under the mandamus standard. And that issue is still technically out there.

So, in theory, Congress can declare the ERA part of the Constitution, and presumably some states are going to or someone else is going to sue to challenge that. But the possibility of amending the Constitution — what it means, whether the ERA actually is part of the Constitution and the Constitution has been properly amended — is still out there. It’s interesting to think about as we’re thinking about originalism as a methodology and the ability to amend the Constitution, there’s this really interesting live procedural issue question out there as to the ERA.

Then you also have the equality questions. There’s been some activity now in terms of interpreting state constitutions to protect equality rights because most states have some version of language like the ERA in their state constitutions.

Park: That’s fascinating. Jumping off on that, one case that we litigated in our state courts, and in partnership with the ACLU — I know there are a lot of ACLU legal directors here — was a challenge to a state statute in North Carolina that barred persons in same-sex relationships from receiving a domestic violence protective order. And that was another case where I worked for the attorney general in his personal capacity to try to support the ACLU’s effort in that case. And it was — it’s kind of an unconscionable (laughs) legal statutory provision, and it’s one that had been amended, that a lot of states had — used to have and had been amended by statute in most states, including states like Wyoming and such. And South Carolina, our neighbor to the south, in a unanimous South Carolina Supreme Court decision, held that that restriction was unconstitutional. And it just makes sense: you’re literally denying equal protection of the laws to people based on their same-sex relationship status. And that’s one where we eventually prevailed in our state court.

But relevant to this discussion is we wanted to be very intentional — and we discussed this with our partners as well — in making state constitutional law arguments and trying to not make this exclusively a federal case. I think it was a clear winner on the constitution, regardless of the source of constitutional authority. But throughout — and, you know, often we’re in the defensive end, seeing these cases, often in criminal justice cases. But it is heartening to see that, at least in our state, we’re seeing litigants take seriously the idea that they have to be making state constitutional arguments and trying to develop them and provide the resources and toolbox for the courts to rule based on state constitutional law grounds.

Kallen: We’ve got a couple questions from the audience, so I’ll read those. Do you feel that your office can develop enough expertise in the state constitution to take advantage of differences between the state and federal constitutions? In a small office that can be quite challenging, as for private attorneys.

Park: It is very difficult, because there’s not — there’s one class in the whole world (I mean, not surprising) that is on North Carolina constitutional law. And there’s a lot of aspects of our text and history and how it’s been interpreted that are completely distinct from any other context. And that’s something, just as a side note, that has been a little bit frustrating: often — well, not often, but at times — we’ve had to litigate, like in the Moore v. Harper case, state constitutional issues to federal courts. And what you often see is a judge or justice that is perhaps not friendly to your position, they just pull up online the North Carolina Constitution, and they start reading it, and they think, “Well, what does this mean? Well, it’s — this is my off-the-cuff understanding of what these eight words mean in your constitution,” and [they] skip past the 200 years of history, including cases and precedents that have been interpreting it, right? And you see among the federal courts a skepticism that this is a serious project that requires more than just pulling up online the text of a document they’ve never seen before. And so, part of what I see as our office’s role is to try to develop expertise in this area of law and try to be able to convey what we’ve learned to the courts as we have the opportunity to do so.

Kallen: And there are some convenient doctrines that federal courts might — that you can bring to the attention of federal courts. Like, Pennhurst was one of my favorite cases litigating Covid matters. There’s some good language in there about deferring to states in that way.

OK, so the next question is, how can law students or recent graduates get involved in the work of state ’ offices?

Park: Oh. Well, if you want to come intern (laughter), send me an email. I mean, that is one thing. We are very under-resourced. We always feel very strapped. And just as a professional matter, I would not be solicitor general of New York right now if I decided to practice in New York. And there’s a lot of opportunity across the country. I would just encourage everyone to see this as a big, exciting country that you can explore and try to make your own.

I consider myself, an immigrant to North Carolina. I was not born and raised there. My parents immigrated from South Korea to Minnesota, and that’s where I was raised. And then I made the intentional decision to make North Carolina my home. And I think I would encourage everyone to think about that — if you’re a law student, to set out and explore the country, and try to make your mark in a place where you might have more opportunities.

Kallen: Virginia was my adopted home as well. I was born in Los Angeles, literally a Valley girl. So (laughter) the idea of being in Virginia and litigating removing Confederate monuments was something that I’d never envisioned. (Laughter.) And sometimes, the smaller states, you really have the opportunity to do fascinating things. And there are a number of states that are regularly in front of the Supreme Court, even smaller states like North Carolina. During my time in Virginia, we had three cases before the U.S. Supreme Court. So, really, those opportunities are fantastic. And you can even start out being an intern in a small state SG’s office, and then from there become — go to whatever state you want to end up in. And the fact that you’ve had that experience and you’ll probably know the solicitor general well, you’ll probably get to know the attorney general — those are just some phenomenal opportunities. And any law students in the room or joining remotely who are interested, please, I’ll volunteer myself: feel free to reach out and seek advice. I’m happy to help however I can. It’s just such a fantastic opportunity.

At least for me, before I — actually, when I went to the state SG’s office, I came in as a deputy as well. I was in private practice, and I told the managing partner of the firm that I was at that I was headed to a state solicitor general’s office, and he had no clue what that was. He was very confused about why I would want to leave being an associate at a firm doing doc review (laughter) to go and be in a state solicitor general’s office. But just in the four years there, I think I got to do 25 arguments.

Park: Wow.

Kallen: Which is more than folks in the U.S. Solicitor General’s Office do. And you all argue quite a bit as well.

Park: Mmm hmm. Yeah. Yeah. (Laughter.)

Kallen: There are some really phenomenal opportunities. And then also, you’re at the cusp of the evolution of the law. If you really think about — and I haven’t seen anyone do these studies, so if anyone’s looking for the sort of fun articles to put together where you quantify stuff before the U.S. Supreme Court, how many — what percentage of the arguments are done by state solicitors general or former state solicitors general? I’d be really fascinated to see those numbers. Yesterday, literally — the advocate on behalf of the plaintiffs was not a state solicitor general, but the person sitting right next to him who helped create that litigation was the former Colorado solicitor general. That litigation on all sides was really spearheaded by state SGs.

Well, that covers the two questions that we had from the audience, but I’d love to open the floor to any other questions. I don’t know if we have a mechanism to allow for that. I can pass the microphone along.

Staff member: Did you want to ask?

Audience member: Yeah, sure. Hi, I’m a Connecticut lawyer, so we know all about the constitution. One of the techniques that I used to use when I would plead these — and I would plead, say, in federal court where I was bringing cause of action, under either [42 U.S.C. §] 1983 or one of the EEO statutes — was to try to cert it back over to the state supreme court for an opinion. That’s one thing that there’s a lot of things that can be done to make this practically a little easier. Can you speak to any kind of experiences with that sort of thing?

Park: Well, I’ll say just, it’s more of a point of trivia, but for us it’s really meaningful that — (laughs) my understanding is that North Carolina is the only state where you can’t certify questions to the state high court. And there’s several published Fourth Circuit opinions where, in a footnote, they’ll complain (laughter) that they can’t send this issue to the state supreme court to decide it.

But I think it just — that is kind of a footnote to the idea that it’s really important for scholars and for courts to be thinking about the state constitutional law questions to try to crystallize what the law means and how it might be distinct from the federal law.

Kallen: We had a couple questions certified to the Virginia Supreme Court while we were there. That was — you have your kind of stock things that, like, oh, I’ve litigated this; let me pull it from this brief and then revamp it to apply to another brief. We definitely had the — this is a question of state law, please certify this to the Supreme Court of Virginia, who should be the final arbiter of Virginia law. It wasn’t always successful, but [it] was successful at times and super helpful. And sometimes federal courts are inclined to agree that state courts should be the final arbiter, [or] the state supreme court should be the final arbiter of the state constitution, and other times, they’re less inclined to agree with that. But it is a pretty helpful tool, and it is really helpful to have the state high court interpret its own law and its own constitution.

Well, with that, I think we are at time. We thank everyone for having us. (Applause.)






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