State Court Protection Individual Constitutional Rights
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STATE COURT PROTECTION OF INDIVIDUAL CONSTITUTIONAL RIGHTS 2018 FORUM FOR STATE APPELLATE COURT JUDGES STATE COURT PROTECTION OF INDIVIDUAL CONSTITUTIONAL RIGHTS 2018 FORUM FOR STATE APPELLATE COURT JUDGES When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The Forum endower, Habush Habush & Rottier S.C., and the Forum underwriters have no control over the content of the Forum, the makeup of faculty or attendees, the placement of information in Forum materials, or the editorial content of the 2018 Forum Report. Library of Congress Control Number: 2018968007 ISBN: 978-0-933067-28-8 ©2019 Pound Civil Justice Institute “The one-size-fits-all approach may make sense on the federal level, but there are other issues where it could be very different state-by-state, let alone within a state. I think we need to protect our sovereignty as state courts.” —A judge attending the 2018 Forum “Daubert was a federal case, right? And yet, almost every state in this room adopted it. I think this is illustrating what the state judiciary does not do, and that is we don’t stay true to ourselves sometimes. I think it’s important, based on the papers we’ve had at the Forum today, that we stay true to our own constitution.” —A judge attending the 2018 Forum “If the judiciary doesn’t do what the state constitution asks it to do, then somebody else will take that power. The power doesn’t just go away.” —A judge attending the 2018 Forum Table of Contents FOREWORD ..........................................................................................................................................................................1 INTRODUCTION ................................................................................................................................................................3 WELCOME REMARKS .......................................................................................................................................................5 Honorable Monica M. Márquez, Justice of the Colorado Supreme Court MORNING PAPER, ORAL REMARKS, AND COMMENTS ......................................................................................7 "State Constitutional Protection of Civil Litigation" Robert F. Williams, Rutgers Law School, Camden .............................................................................................7 Oral Remarks of Professor Williams ......................................................................................................................29 Comments by Panelists, Response by Professor Williams ....................................................................................33 LUNCHEON KEYNOTE ADDRESS.............................................................................................................................. 49 "State Constitutions and the Protection of Individuals Rights: A Reappraisal" Hon. Goodwin Liu, Supreme Court of California ............................................................................................49 AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ............................................................................. 55 "State Constitutional Structures Affect Access to Civil Justice" Justin R. Long, Wayne State University Law School .........................................................................................55 Oral Remarks of Professor Long .............................................................................................................................81 Comments by Panelists, Response by Professor Long ..........................................................................................85 CLOSING PLENARY ........................................................................................................................................................ 97 THE JUDGES’ COMMENTS .......................................................................................................................................... 99 POINTS OF CONVERGENCE .................................................................................................................................... 121 APPENDICES ................................................................................................................................................................... 125 Faculty Biographies ..................................................................................................................................................125 2018 Judicial Participants .......................................................................................................................................132 2018 Forum Underwriters ......................................................................................................................................135 About the Pound Civil Justice Institute .................................................................................................................136 Officers & Trustees of the Pound Civil Justice Institute, 2017-18 ......................................................................137 Papers of the Pound Civil Justice Institute ............................................................................................................138 i STATE COURT PROTECTION OF INDIVIDUAL CONSTITUTIONAL RIGHTS Foreword The Pound Civil Justice Institute’s twenty-sixth Forum for State Appellate Court Judges was held on July 7, 2018, in Denver, Colorado. As with all of our past forums, it was both enjoyable and thought-provoking. In the Forum setting, judges, practicing attorneys, and legal scholars considered crucial issues in state constitutionalism, including how state constitutions may be invoked to protect individual rights and access to justice in areas in which the Federal Constitution is less effective. The Pound Institute recognizes that state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is inevitably fruitful. Forum attendees always bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints emerges in our Forum reports. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging from the court funding crisis to the decline of jury trial, to separation of powers, rulemaking, forced arbitration, and judicial transparency. We are proud of our Forums, and are gratified by the increasing attendance we have experienced since their inception, as well as by the very positive comments we have received from judges and faculty members who have participated. A full listing of the prior Forums is provided in an appendix to this report, and their reports and research papers—along with most of our other publications—are available for free download on our website: www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2018 Forum for State Appellate Court Judges: • Professor Robert Williams and Professor Justin Long, who wrote the papers that started our discussions; • Hon. Monica M. Márquez, Justice of the Colorado Supreme Court, for welcoming us to Denver; • our lunch keynote speaker, Hon. Goodwin Liu of the California Supreme Court, for an inspiring discussion on the importance of state constitutions in protecting individual rights; • our panelists—Hon. Judy Cates, John Cuttino, Hon. Noma D. Gurich, John Lebsack, Jonathan Marshfield, Andre Mura, Robert Peck, and Hon. David Schuman; • the moderators of our small-group discussions—Linda Miller Atkinson, Leslie Brueckner, Kathryn Clarke, Caragh Fay, Tom Fay, Michelle Kranz, Pat Malone, Wayne Parsons, Gale Pearson, Alinor Sterling, John Vail, and David Wirtes; 1 STATE COURT PROTECTION OF INDIVIDUAL CONSTITUTIONAL RIGHTS • and the Pound Civil Justice Institute’s dedicated and talented staff—Mary Collishaw, our executive director, and Jim Rooks, our Forum reporter—for their diligence and professionalism in organizing and administering the 2018 Judges Forum. It goes without saying that we appreciated the participation of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your consideration of matters relating to state constitutionalism. Ellen Relkin President, Pound Civil Justice Institute, 2016-18 2 STATE COURT PROTECTION OF INDIVIDUAL CONSTITUTIONAL RIGHTS Introduction On July 7, 2018 in Denver, Colorado, 140 judges, representing 36 states, took part in the Pound Civil Justice Institute’s twenty-sixth annual Forum for State Appellate Court Judges. The judges examined the topic of “State Court Protection of Individual Constitutional Rights.” Their deliberations were based on original papers written for the Forum by Professor Robert F. Williams of Rutgers