State Court Oral Arguments to Watch for in February

Each month, State Court Report previews upcoming oral arguments in prominent or interesting state court cases.

In February, state supreme courts will take up a wide range of issues, including the right to counsel in police interrogations, the level of protection accorded to a public university professor’s offensive speech, the meaning of the term “fetal heartbeat” in a law restricting abortion access, and more.

Can Victim Protections Shield Police Officers Who Use Force? — February 11

Gatehouse Media Ohio Holdings v. City of Columbus Police Department, Ohio Supreme Court

The Columbus Dispatch has asked the Ohio Supreme Court to direct the Columbus police department to disclose the identities of officers involved in a recent police shooting. The department previously refused the paper’s request for certain dashboard- and body-camera footage, citing Ohio’s “Marsy’s Law” — a set of crime victim protections enshrined in the state’s constitution and related statutes, as well as in the laws of 11 other states. Ohio’s version requires governments to shield victims’ identities from public records. Because the officers were injured or menaced by the individual they shot, the department contends, they fall within the legal definition of victim.

In a petition filed directly with the high court, the Dispatch argues that “victim” as defined excludes local governments, which should be interpreted as extending to municipal employees performing official duties. To conclude otherwise, the newspaper claims, would violate the right of the public and press to inspect public records. The paper urges the Ohio Supreme Court to recognize that right for the first time, arguing that it stems from existing state constitutional rights to petition the legislature, “instruct” representatives, engage in political speech, and access public property. “The identity of a law enforcement officer who uses force in the performance of their duties, including their training, discipline history, and other background information, informs the public debate” over crime prevention, police reform, and racial discrimination, the Dispatch asserts.

In a similar case, the Florida Supreme Court found that Marsy’s Law did not bar release of police names after shootings.

Watch the arguments here.

When Does a “Fetal Heartbeat” Trigger an Abortion Ban? — February 12

Planned Parenthood South Atlantic v. South Carolina, South Carolina Supreme Court

The South Carolina high court will determine whether the “fetal heartbeat” — the point after which abortions are banned in the state — occurs at the sixth or ninth week of pregnancy. The abortion ban describes the heartbeat as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart.” The plaintiff Planned Parenthood argues the “or” is intended to specify what “cardiac activity” means. A steady and rhythmic heartbeat as required by this definition, the group asserts, does not occur until nine weeks. Planned Parenthood also argues the law is too vague to satisfy due process guarantees in South Carolina’s constitution. A trial court rejected Planned Parenthood’s arguments and found the legislature intended a six-week ban.

This is not the first time the South Carolina court has heard arguments over a “fetal heartbeat law.” The court struck down a substantially similar law in January 2023 for violating state constitutional privacy rights but, after the court became all-male less than a year later, it upheld the current version. This round, the court is comprised of four men and one woman.

Watch the arguments here.

Right to an Attorney in Post-Charging Police Interrogations — February 12

Ohio v. Isaiah Morris, Ohio Supreme Court

The Ohio Supreme Court will take up prosecutors’ appeal of lower court decisions finding that a criminal defendant’s right to counsel under the Ohio Constitution is more expansive in police interrogations than the Sixth Amendment right recognized by the U.S. Supreme Court.

The defendant was charged with assault and appointed counsel at his arraignment, but was then questioned by the police before he could speak with that attorney and after receiving only a standard Miranda form notifying him of his right to counsel. Prosecutors contend that his participation in the questioning after being notified of his rights constitutes what is known as a waiver of the right to counsel, permitting incriminating statements he made during the questioning to be used against him in his prosecution. The U.S. Supreme Court has held that such a waiver, so long as voluntary, is valid under the Sixth Amendment even if an attorney did not advise the defendant on the decision of whether or not to waive his right to counsel. Ohio intermediate and trial courts, however, found that the state constitutional right to counsel requires a defendant who has been formally charged and has secured an attorney to consult with counsel before any agreement by him to submit to police questioning without a lawyer present can be valid.

The defendant and criminal justice groups ask the Ohio Supreme Court to uphold that more protective approach on appeal, arguing that the federal rule “undervalues the attorney-client relationship in Ohio” and places the state’s “most vulnerable citizens at risk of false confession and, consequently, wrongful conviction.” They also point out that the federal approach has been rejected by Kentucky, West Virginia and Kansas’s high courts under their state laws. Urging reversal, state prosecutors point to Ohio Supreme Court precedent advising a “cautious and conservative” response to requests to expand state constitutional rights beyond their federal equivalents.

Watch the arguments here.

Does Academic Freedom Entitle a Public University Professor’s Letter to Extra Speech Protection? — February 19

Mitchell v. University of North Carolina Board of Governors, North Carolina Supreme Court

The North Carolina Supreme Court will consider the constitutionality of the University of North Carolina’s termination of a tenured professor based, in part, on a letter he wrote to his department chair in which he used racial slurs to describe what white academics allegedly thought of the chair — and, he asserts, himself — as a Black professor. The state intermediate court concluded the letter fell outside First Amendment protections, finding as a threshold matter that it did not address an issue of public concern. While the professor argues on appeal that he was addressing racial bias in academia, a hotly debated topic, the intermediate court agreed with the university that the letter was nothing more than a “personal grievance” toward the chair.

Apart from that question, the parties also dispute whether the professor was writing in his capacity as a public employee or private citizen — and whether that distinction matters. The U.S. Supreme Court has created a two-step test related to this issue: a first step that exempts from protection expression made as part of an employee’s official duties and a second step for non-official speech that balances the employee’s and the state’s interests. The Court has left open, however, whether this frameworks applies to speech “related to scholarship or teaching” in light of the unique value of academic freedom. The professor urges the North Carolina high court to follow federal intermediate courts in finding that speech related to scholarship or instruction is of “special concern” under the First Amendment, so qualifies for second-step balancing regardless of whether made in an official or personal capacity. Applying that balancing, he argues, his interest in calling out racism in academia outweighs the university’s interests in preventing the discomfort of a single department chair.

Separately, the professor asserts on appeal that the lower courts violated separation-of-powers principles in upholding the termination process the university followed. By deferring to the interpretation put forth by the UNC system — a state agency — of its faculty employment regulations instead of independently determining what those regulations say, he and amicus groups argue, the lower courts improperly allowed the agency to wield judicial power.

Watch the arguments here.

Sarah Kessler is an advisor to State Court Report.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Sarah Kessler & Erin Geiger Smith, State Court Oral Arguments to Watch for in February, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 29, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-court-oral-arguments-watch-february