Two high courts will rule on youth climate lawsuits.

Welcome to the State Court Report newsletter.

Earlier this month, a trial court in Hawaii ruled

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that a climate change case brought under the state constitution could move forward to trial. The plaintiffs, all young people, argue that greenhouse gas emissions from Hawaii’s transportation system violate the state’s “public trust” duties to preserve natural resources. The plaintiffs point to a provision in the Hawaii Constitution that requires the government to preserve natural resources “for the benefit of present and future generations,” as well as a provision providing a “right to a clean and healthful environment.”

The Hawaii climate trial, scheduled for September, will come on the heels of a similar trial in Montana expected to begin in June relying on a state constitutional provision that the government has a duty to “maintain and improve a clean and healthful environment.” The Montana trial will be the nation’s first “youth-led” climate trial and the first climate trial brought under a state constitution.

The federal courts have not been receptive to similar claims. Back in 2020, the Ninth U.S. Circuit Court of Appeals shut down a climate case brought by young people against the federal government, Juliana v. United States

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, which raised claims under the Fifth Amendment. The court ruled that the plaintiffs lacked standing to sue because the relief they sought — “a comprehensive scheme to decrease fossil fuel emissions and combat climate change” — was beyond the powers of the federal courts to order or implement.

It remains to be seen how the plaintiffs will fare in Montana and Hawaii and whether state courts will have more of an appetite to supervise state policy on climate. (Already, the trial courts in Montana and Hawaii have taken different paths: in Montana, the court ruled that it could declare government conduct unconstitutional but not issue any injunctions, while in Hawaii, the court left open the possibility of injunctive relief.) But one difference between these state cases and Juliana is their grounding in explicit state environmental protections. In a new piece

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for State Court Report, Northeastern Law School professor Martha Davis offers invaluable context with an overview of environmental rights in state constitutions.

As Davis explains, the first environmental rights amendments appeared in state constitutions in the 1970s as part of the burgeoning environmental movement. The record on judicial enforcement has been mixed: in some states, like Massachusetts, courts haven’t recognized a private right to sue under their state constitution’s environmental provisions. By contrast, Pennsylvania’s and Montana’s high courts have both found their states’ “Green Amendments” to be enforceable by courts.

Many questions still remain, Davis notes, including the “meanings of basic terms like ‘clean’ and ‘healthful.’” And more Green Amendments may be on the horizon. New York passed one in 2021 — with cases already winding through state courts — and active amendment campaigns are underway in several states.

It's not uncommon for state constitutions to offer litigation paths foreclosed by federal courts. In San Antonio Independent School District v. Rodriguez, for example, the U.S. Supreme Court rejected

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a federal right to education, leading advocates to turn to education clauses in state constitutions. Most state courts agreed to fill the legal void, finding education rights to be enforceable. But the education cases also offer a note of caution: remedies, particularly those requiring substantial government expenditures, have often been hard to come by

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. The upcoming trials in Montana and Hawaii will offer an early glimpse into the extent to which state environmental provisions have teeth when it comes to addressing climate change.

Here are more highlights from the past two weeks:

How State Constitutions Can Revive the Right to a Jury Trial

Most state constitutions contain strong language protecting the right to a jury trial, but today, only about 1 percent of cases reach a jury. Ohio First District Court of Appeals Judge Pierre Bergeron argues that state constitutions can provide a basis for reconsidering modern practices. “Fully appreciating the how and why of our founders’ embrace of the jury trial might convince us that we should honor that legacy,” he argues, “by tackling the absence of jury trials in earnest and advocating for reforms that will uphold our constitutional history.” Read more

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California Supreme Court to Consider Scope of Prosecutorial Discretion

California’s high court is expected to hear arguments later this year in The Association of Deputy District Attorneys for Los Angeles County v. George Gascón, which addresses the extent of district attorneys’ discretion under California’s three-strikes law. Jacob Seidman, a legal fellow at the Public Rights Project, previews the case and its implications for the separation of powers under California’s constitution. The case could be significant “for elected district attorneys around the country who are pursuing criminal justice reforms,” he writes. Read more

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After Three Years of Remote Court, Many Questions Remain

Since the beginning of the Covid-19 pandemic, state court systems have embraced remote proceedings to an unprecedented extent. Michael Milov-Cordoba, counsel at the Brennan Center, looks at how courts have addressed state constitutional questions raised by the use of remote technology in criminal cases. “Today, the jurisprudence on the state constitutional rights of remote criminal defendants is still surprisingly thin,” he writes. Read more

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Why Dobbs Should Prompt State Courts to Reconsider Their Role

Dobbs v. Jackson Women’s Health Organization “gives state courts an opportunity to reclaim their proper role as primary guarantors of individual liberty for their citizens,” write David A. Carrillo and Brandon V. Stracener of the California Constitution Center at Berkeley Law. Carrillo and Stracener argue that state courts should reevaluate rules that lockstep state constitutional liberty doctrines with federal law, including the “cogent reasons” standard used in California. Read more

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What Else We’re Reading

Last Thursday, the Department of Justice issued a Dear Colleague letter

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addressed to state and local courts and juvenile-justice agencies outlining circumstances in which the imposition and enforcement of fees and fines violate civil rights or raise policy concerns. The letter updates a March 2016 Dear Colleague letter that was rescinded in December 2017.

This month, the People’s Parity Project released two reports detailing professional diversity on the bench in Connecticut

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and Georgia

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Come Work With Us!

The Brennan Center is hiring an executive editor to work full time on State Court Report. Responsibilities will include identifying, assigning, and editing stories; writing and producing content; managing freelancers and overseeing contributors; managing the editorial calendar; and overseeing case tracking. The executive editor will also participate in establishing branding and creative direction for the site and help conceive of and implement a vision for this new initiative. Learn more here

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and please share with your networks!

Notable Cases

In the Matter of the 2021 Redistricting Cases

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, Alaska Supreme Court

Following a series of summary orders in 2022 addressing challenges to the state’s legislative redistricting plan, the court issued a lengthy opinion explaining its reasoning, including “expressly recogniz[ing] that partisan gerrymandering is unconstitutional under the Alaska Constitution.” Read more in the Anchorage Daily News

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County of Fulton v. Secretary of the Commonwealth

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, Pennsylvania Supreme Court

Ruled that Fulton County had willfully defied the court’s orders when it allowed a third-party company to access its 2020 voting machines and held the county in contempt, imposing sanctions on it and its attorney. Read more in the Philadelphia Inquirer

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In Re: Mississippi Rules of Criminal Procedure

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, Mississippi Supreme Court

Amended the state rules of criminal procedure to require that indigent criminal defendants be provided with an attorney at all stages of criminal proceedings, including in the period between an initial court appearance and indictment. Read more in the Marshall Project

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In Re: Elijah Elmoore

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, Michigan Court of Appeals

Ruled that children have a right to counsel in truancy proceedings under statute and court rule and that parents cannot waive this right on behalf of their children. Read more in Michigan Radio

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Johnson v. State

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, District Court of Teton Valley, Wyoming

After granting a temporary restraining order on the state’s near-total abortion ban in March, the trial court issued an opinion explaining its reasoning, finding that the plaintiffs showed probable success in establishing that the ban violates the right to make health care decisions under the Wyoming constitution. Read more in WyoFile

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