State Court Oral Arguments to Watch for in September

With the start of new terms, State Court Report is resuming its monthly previews of upcoming oral arguments in prominent or interesting state court cases.

In September, state supreme courts will take up a wide range of issues, including district maps alleged to diminish Black voting power, legislative efforts to alter citizen-initiated ballot measures, the use of a mobile unit for in-person absentee voting, due process claims against laws promoting fossil fuels, the legality of a statute extending the time for child victims to sue, and separation-of-powers concerns related to a bar complaint against an attorney general’s deputy.

Youth Climate Action in Utah — Sept. 4

Natalie R. v. State, Utah Supreme Court

The Utah Supreme Court will decide whether a trial court properly dismissed a complaint by seven children alleging that state laws promoting fossil fuel development violate the youths’ state due process rights to be free from government harm to their lives and health. The plaintiffs argue that the laws harm them because fossil fuels contribute to climate change and have left Utah with “the worst average air quality of any state.”

The trial court articulated several grounds for its dismissal: First, it found the complaint raised political questions not properly resolved by courts. Second, it said the plaintiffs failed to show that striking the laws would have “any effect on carbon emissions in Utah.” Third, the court held that due process rights do not “apply to fossil fuels policy.”

That ruling was wrong, the plaintiffs argue, because the state high court has never found a constitutional rights claim to be nonjusticiable; they need not show with “certainty that a favorable ruling would completely redress their injuries,” as some alleviation is enough; and the state constitution encompasses broad protections for life and health applicable to all government policies. The plaintiffs cite victories in similar cases in Montana and Hawaii. The state contends those cases’ reliance on state constitutional clauses that expressly provide a right to a clean and healthful environment makes them distinguishable. Listen to the arguments here.

Voting Truck Challenge in Wisconsin — Sept 10

Brown v. Wisconsin Elections Commission, Wisconsin Supreme Court

The Wisconsin Supreme Court will consider whether a city’s use of a mobile voting unit — a truck outfitted with poll equipment that moves to different spots around the city — violates state laws allowing municipalities to select alternative sites for in-person absentee voting.

The state election agency found no violation. A trial court reversed, and the state high court agreed to bypass the intermediate appellate court and hear the appeal directly. The high court previously refused to stay the trial court’s holding that the truck is unlawful, signaling it may be inclined to uphold the ruling. Watch the arguments here.

Extended Time for Child Sex Abuse Survivors to Sue in Maryland — Sept. 10

Board of Education of Harford County v. John Doe, The Key School, Inc., et al. v. Valerie Bunker, Roman Catholic Archbishop of Washington v. Doe, Maryland Supreme Court

The Maryland Supreme Court will resolve whether a 2023 law that repealed a time bar on victims of child abuse suing institutions alleged to have harbored their abusers violates those institutions’ due process rights or amounts to a taking under the state constitution. The state high court agreed to decide the question directly at the request of a federal district court. 

Schools and the archdiocese, which have been sued under the new law, argue that the previous bar — under which victims could not sue once they reached 38 years old — created a substantive right to be free from liability thereafter. That right cannot be abrogated retroactively, even “to remedy a historical wrong,” they assert. The victim plaintiffs counter that the prior law did not create such a right. Rather, they say, it was a typical statute of limitations that provided only a qualified defense. Watch the arguments here.

Two other state high courts are also considering similar issues this month. The North Carolina Supreme Court on September 18 will address in McKinney v. Goins whether a law that revived for a two-year period child sex abuse claims that would otherwise be time-barred violated defendants’ due process rights under the state’s “law of the land” clause. And the Hawaii Supreme Court on September 26 will consider in Foresman v. Foresman a law that reopened civil claims “based upon sexual acts” with a minor “that constituted or would have constituted a criminal offense” under certain statutes. At issue is whether the law can impose liability for acts that were not crimes when they were committed without violating federal and state constitutional bars against retroactive application of punishment. Watch North Carolina’s arguments here and listen to Hawaii’s here.

Challenges to similar laws in other states have had mixed results. 

Proving Diminishment of Minority Voting Power in Florida — Sept. 12

Black Voters Matter Capacity Building Institute v. Byrd, Florida Supreme Court

The Florida Supreme Court will decide whether the state legislature violated a 2010 state constitutional amendment that bars maps that “diminish [racial minorities’] ability to elect representatives of their choice” when it split up a Black-majority district into four new white-majority districts. The Black-majority district had been approved by the court in the last redistricting cycle and for years sent a Black representative to Congress.

An intermediate appellate court found no violation, reversing the trial court. On appeal, voting rights groups argue that the appellate court erred in interpreting the state constitutional clause (known as the “non-diminishment” provision) to require threshold proof that the old district, which spanned eight counties, was a “naturally occurring, geographically compact community.” The legislature and secretary of state respond that the provision as interpreted by the groups would “compel the State to perpetuate a grotesque racial gerrymander” in violation of the federal Equal Protection Clause. Watch the arguments here.

Is Bar Discipline of the Texas AG’s Office Improper Political Control? — Sept. 12

Webster v. Commission for Lawyer Discipline, Texas Supreme Court

The Texas Supreme Court will hear an appeal by the state attorney general’s senior-most deputy of a disciplinary complaint accusing him of making misrepresentations in Texas’s failed U.S. Supreme Court challenge to alleged 2020 election “irregularities” in other states. The complaint, filed by the state bar’s discipline commission following an initial grievance from an out-of-state lawyer, includes as asserted misrepresentations allegations in Texas’s briefs that “‘illegal votes’ had been cast that affected the outcome of the election’” and “votes were switched by a glitch with Dominion voting machines.”

According to the deputy, the complaint “amount[s] to no more than a disagreement” by the commission “with the Attorney General’s legal arguments, assessment of the evidence, and ultimate decision to file suit.” He contends that the complaint violates separation-of-powers principles because it interferes with the exclusive control over civil litigation granted to the attorney general by the Texas Constitution.

The commission responds that the bar rules at issue, established by the state high court, are an exercise of the court’s inherent constitutional authority to regulate the practice of law and — because they concern allegations in pleadings, not the decision to file — do not conflict with the attorney general’s discretion to bring suit. Montana and 17 other states have filed an amicus brief asserting that bar discipline will become a new tool for “political control” if the commission prevails. Watch the arguments here.

Utah Legislature’s Proposal to Weaken Citizen Lawmaking— Sept. 25

League of Women Voters of Utah v. Utah State Legislature, Utah Supreme Court

The Utah Supreme Court will decide whether a trial court was right to invalidate a state constitutional amendment proposed by the legislature that, if passed by voters, would have allowed lawmakers to repeal citizen-initiated and -approved ballot measures. The legislature proposed the amendment to try to undo a July decision from the Utah high court, which recognized that citizens have a fundamental right to “alter or reform” their government by initiating law changes and that legislative efforts to repeal these initiatives are subject to a heightened judicial review standard, known as strict scrutiny.

The trial court found the ballot language for the proposed amendment to be inaccurate. The amendment is described as “strengthen[ing] the initiative process,” the court noted, when it actually weakens the people’s initiative power by giving lawmakers unfettered authority to change laws passed by citizen initiative. According to the trial court, the legislature also failed to comply with a state constitutional requirement that the proposed amendment be published in newspapers across the state.

On appeal, legislators argue that the ballot summary is not a basis for voiding the proposed amendment and that they took appropriate steps to “cause’” the amendment to be published. Listen to the arguments here.

Sarah Kessler is an advisor to State Court Report.

Suggested Citation: Sarah Kessler, State Court Oral Arguments to Watch for in September, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 3, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-court-oral-arguments-watch-september.