State Court Oral Arguments to Watch for in May

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

In May, state supreme courts will take up a wide range of issues, including Pennsylvania’s entry into a regional cap on greenhouse gasses, California’s ban on misgendering LGBTQ+ long-term care residents, Oregon appellate courts’ review of within-guidelines sentences, and more.

Use of Preferred Pronouns in California Long-Term Care Facilities — May 6

Taking Offense v. State of California, California Supreme Court

The California Supreme Court will consider whether a law that makes it a misdemeanor for staff at long-term care facilities to “willfully and repeatedly” fail to use a resident’s preferred name or pronouns violates free speech protections. The provision, part of a LGBTQ+ long-term care facility residents’ “bill of rights,” was invalidated by the intermediate court. On appeal, the state argues the law serves a compelling interest in protecting vulnerable residents from verbal discrimination where they live, making it “materially indistinguishable” from laws barring verbal discrimination such as racial slurs and sexual harassment in settings like the workplace, where victims can’t avoid harmful speech. The organization challenging the law argues pronouns are not like racial epithets, but rather expressions of the users’ belief in gender essentialism.

Multiple high-profile organizations, including the American Civil Liberties Union (ACLU) and Lamda Legal, have filed amicus briefs in support of the law, as has a group of professors that argues the law advances an additional government interest by protecting the state constitutional medical privacy rights of LGBTQ+ seniors.

Watch the arguments here.

Constitutional Appeals of Within-Guidelines Sentences in Oregon — May 8

State v. Adrian Fernandez, Oregon Supreme Court

The Oregon Supreme Court will consider whether a state law that restricts appellate courts’ authority to review a criminal sentence that falls within the range set in state guidelines precludes appellate review of a state constitutional challenge to that sentence. The guidelines are set by the state criminal justice commission, with legislative approval. An intermediate appellate court refused to consider the defendant’s claim that his within-range, 20-month prison term was unconstitutionally disproportionate to his conviction for soliciting a minor online.

In an amicus brief, the ACLU argues that interpreting the law to preclude appellate review of such challenges would violate separation of powers by interfering with a key function of the judiciary — adjudicating the legality of detentions — and giving the commission and legislature control over enforcement of constitutional rights. It would also lead to defendants whose sentences stem from commission guidelines being treated differently than defendants whose sentences were set independently by the legislature, the ACLU argues, as the Oregon high court has said a nearly identical predecessor law did not apply to legislatively initiated sentences.

Watch the arguments here.

Is a Regional Emissions Cap an Unconstitutional Tax in Pennsylvania? — May 13

Department of Environmental Protection v. Pennsylvania Legislative Reference Bureau; Bowfin KeyCon Holdings v. Pennsylvania Department of Environmental Protection, Pennsylvania Supreme Court

The Pennsylvania Supreme Court will take up consolidated challenges to the state’s participation in the Regional Greenhouse Gas Initiative, an 11-state effort to impose a cap on the amount of carbon producers in each state can release and to require them to buy allowances to continue emitting, with the proceeds going to state environmental programs. A lowercourt said the allowances amount to a tax — not an administrative or licensing fee as proponents have argued — because the money the state generates is “grossly disproportionate” to the cost of the program and budget needs of state environmental regulators. Because the Pennsylvania Constitution permits only the legislature to levy taxes, the lower court ruled, the governor’s entry into the program by executive rulemaking, without legislative approval, was an overstep.

The state high court previously permitted environmental nonprofits to intervene in the challenges to defend the program under Pennsylvania’s so-called “green amendment,” which requires the state to conserve natural resources as a trustee of the public. Characterizing the program as a tax fails to take account of state agencies’ public trust duty to use the allowance proceeds to ensure preservation of atmospheric and natural resources, these nonprofits and other amicusgroups have argued.

Watch the arguments here.

Wyoming’s Use of Mandatory Life Without Parole for Late Adolescents — May 13

Hicks v. State, Wyoming Supreme Court

The Wyoming Supreme Court will address whether automatic life sentences, without the possibility of parole, for defendants who were under age 21 when the crime occurred violate the state constitution. The U.S. Supreme Court has found such sentences to violate the federal Eighth Amendment only for people under 18. The “cruel or unusual” punishment ban in Wyoming’s constitution goes further and also precludes applying laws mandating life-without-parole sentences to 19 and 20 year-olds, the defendant and amicus State Law Research Initiative argue. In support of interpreting the Wyoming Constitution more expansively than the federal version, they point to the state’s historic independent streak and the state constitution’s much greater focus on individual rights generally and extra protections against excessive punishments specifically.

If the Wyoming high court accepts their arguments, it will be joining the supreme courts of three other states, including Michigan most recently. Massachusetts has gone further, interpreting its state constitution to bar all life-without-parole sentences up to age 21, even when in the discretion of a judge.

Listen to the arguments here.

Fight over Philadelphia’s Prosecutorial Power — May 14

Krasner v. Sunday, Pennsylvania Supreme Court

Pennsylvania’s high court will hear arguments relating to a state law that requires the state attorney general to appoint a special prosecutor to have jurisdiction over crimes committed within the regional public transit system, rather than those crimes falling under the jurisdiction of the local district attorney. Philadelphia District Attorney Larry Krasner is challenging the law, which passed with bipartisan support, claiming that it unconstitutionally divests the district attorney of jurisdiction over part of the office’s territory, nullifies the district attorney’s core prosecutorial functions, and violates the due process rights of defendants based on a provision preventing those charged by the special prosecutor from challenging his authority.

Advocacy groups, including the NAACP, have argued that removing prosecutorial powers from Krasner, who was elected twice by large majorities, invalidates the votes of his supporters. A lower court ruled against Krasner, finding the state constitution does not grant any powers to the Philadelphia district attorney and that he lacked standing to assert criminal defendants’ due process interests. State Court Report previously wrote about state legislators’ efforts to impeach Krasner.

Watch the arguments here.

Sarah Kessler is an advisor and contributing editor 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 May, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 30, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-court-oral-arguments-watch-may-0