What can advisory opinions tell us about state judicial power?
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In 2020, South Dakota Gov. Kristi Noem asked the state’s supreme court for an advisory opinion on a conflict of interest provision in the state constitution. The court obliged

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, opining that the provision, which bars legislators from having an interest “directly or indirectly” in contracts with the state, prohibited them from accepting federal Covid-19 relief funds.

Noem, with the support of legislative leaders, is now requesting

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a second advisory opinion, about what constitutes “indirect” contracts by legislators. Many hold other jobs while serving in the state’s part-time legislature. A broad reading of the constitutional provision has the potential to implicate teacher salaries, retirement funds, and more, they argue.

For readers more familiar with the federal courts, South Dakota’s use of advisory opinions — judicial guidance on a legal issue offered outside an actual case — may be surprising. The U.S. Supreme Court steadfastly refuses to issue advisory opinions. This goes back all the way to 1793, when President George Washington asked the justices to come before his cabinet and answer legal questions related to the government’s neutrality in a war between France and Britain. Chief Justice John Jay wrote on behalf of the justices to decline the request, citing the separation of powers (and conveniently avoiding a hot political controversy).

Over the years, this aversion to offering advisory opinions has hardened into a foundational principle for federal courts. Using a label perhaps better fitting a death metal band, Justice Felix Frankfurter memorably warned

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against advisory opinions as “ghosts that slay,” unrooted in a real controversy and aggrandizing the judiciary at the cost of popular government.

Yet, as in many arenas, states do things differently. Currently, 11 states, including South Dakota, authorize

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their state supreme courts to provide advisory opinions to the executive branch (and in some states, also to the legislative branch) in at least some circumstances. Typically, state courts have discretion as to whether to offer an opinion, and the topics must usually be related to the powers of another branch — for example, considering the constitutionality of a proposed statute or offering guidance on an exercise of executive power.

Most famously, in 2004, Massachusetts became the first state to recognize same-sex marriages after the state senate asked the state high court to offer guidance on the constitutionality of a proposed civil union law. While advisory opinions are nonbinding (as reflected in the name, they’re advice, not the resolution of a case), as a practical matter they function as legal precedent.

South Dakota’s recent experience highlights advisory opinions in action — including some of their pros and cons. In August, a Republican state senator who had accepted Covid-19 relief funds for her daycare business resigned and agreed to repay $500,000 after an investigation by the state attorney general’s office that relied on the court’s 2020 guidance. The resignation gave Noem the opportunity to appoint a replacement, and she cites the need to fill this vacancy before the start of the next legislative session in January as part of the reason for requesting additional guidance.

Advisory opinions let state courts move quickly, and they can provide legal certainty without the need for litigation after the fact. Noem and the legislative leaders who joined her request cite repeated questions from legislators and would-be legislators about whether their business activities run afoul of the state constitution.

At the same time, even when requests for advisory opinions are specific, they are by definition unmoored from the facts of a particular case. This might not matter in making broad pronouncements on matters such as marriage equality, but it can get trickier when courts are opining on questions where facts are likely to matter more, such as contractual relationships.

Another question is what the existence of advisory opinions means for the separation of powers. In one sense (and as Frankfurter warned), advisory opinions give judges more power. Why wait for a case when you can just say what the law is? But advisory opinions can also empower governors or legislators, who get to pick when they present questions to the court and formulate them in ways that can favor a particular interpretation. The prevalence of advisory opinions is a good reminder that state and federal courts differ not just in the substantive rights they recognize but also in how they define judicial power.





New Mexico Supreme Court Announces New Test to Decide Who Controls Federal Funds

When the federal government provides funding to a state — such as Covid-19 relief money — which branch of government gets to decide how to spend it? Attorney Sarah Kessler breaks down a recent New Mexico Supreme Court case addressing this thorny separation of powers question. After State ex rel. Candelaria v. Grisham, she explains, “it depends on the amount of discretion left to the state by the federal government.” Read more

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New Resource: 50 Unique, Ever-Changing State Constitutions

Emily Lau from the State Democracy Research Initiative describes the new resource 50 Constitutions

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, which provides searchable versions of every state’s constitution. State constitutions change much more often than their federal counterpart, and with each amendment, “a new constitutional moment and group of framers and ratifiers become relevant to how a provision can be understood,” Lau writes. Read more

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Kansas Online Court System Faces Long Recovery After Security Incident

Courts in Kansas are entering their second month offline following a cyberattack that shut down the statewide judicial filing system. State Court Report’s managing editor, Kathrina Szymborski Wolfkot, explains what’s happening in Kansas and describes the larger implications of a lack of public access to state judiciaries. “While Kansas’s outage is temporary and the result of a malicious attack,” she writes, “many state courts across the country lack transparency even when fully functioning.” Read more

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Tennessee Supreme Court Makes It Harder for People Convicted of Felonies to Vote

Marcus Gadson, law professor at Campbell University, outlines the “confusing web of laws” surrounding voting rights restoration for people convicted of felonies in Tennessee. In a recent decision, the state high court ruled that individuals do not automatically regain their right to vote in Tennessee if their rights are restored in the state where they were convicted of a felony. Gadson notes that “elections officials are using the decision to restrict voting rights more broadly.” Read more

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Voters Amend State Constitutions Around the Country

On November 7, voters in several states cast ballots on proposed amendments to their state constitutions. The Brennan Center’s Zoe Merriman examines some of the most salient constitutional amendments, from reproductive freedom in Ohio to tax changes in Texas. “State constitutions,” she explains, “provide a unique platform for citizens to directly influence policy and legal frameworks at the state level.” Read more

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What Else We’re Reading

The Federalist Society convened a panel

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of state supreme court justices to discuss the ongoing revival of judicial federalism.

The University of Missouri–Kansas City Law Review is calling for submissions

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for its Rethinking State Constitutional Law symposium. Proposals are due by November 30.





You May Have Missed

On Wednesday, New York’s highest court heard oral arguments in Hoffmann v. New York State Independent Redistricting Commission, a case challenging the state’s congressional and legislative maps. The Brennan Center’s Yurij Rudensky previously provided a roundup

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of partisan gerrymandering cases in the states.

The Florida Supreme Court will hear oral arguments on December 6 in Worrell v. DeSantis

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, a challenge to Gov. Ron DeSantis’s suspension of a prosecutor for her purportedly lenient approach to charging and sentencing. The lawsuit, one of a number of state cases raising questions about the scope of prosecutorial discretion, was covered

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in this newsletter over the summer.





Notable Cases

State of Indiana v. Kizer

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, Indiana Supreme Court

Unanimously ruled that residents are entitled to a trial by jury when the government seeks to confiscate their money or property through the civil forfeiture process. Establishes a new test for the jury-trial right in the state’s constitution. // Indiana Lawyer

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Growe v. Simon

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, Minnesota Supreme Court

Dismissed a petition that sought to stop Donald Trump’s name from appearing on Minnesota’s presidential primary ballot. The court noted that petitioners could bring a later petition raising their claims as to the general election. // CNN

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Fitz-James v. Ashcroft

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, Missouri Court of Appeals

Ruled that the descriptions of six ballot initiative petitions to amend the state constitution to protect abortion rights, which were written by Missouri’s secretary of state, were “insufficient and unfair.” // Missouri Independent

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State v. Daniel

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, Ohio Supreme Court

Ruled that legislation requiring people convicted of arson to be added to a registry did not violate the separation of powers doctrine of the Ohio Constitution, rejecting arguments that the registration requirement is part of a criminal sentence and that only the judiciary can determine criminal sentences. // Court News Ohio

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Oklahoma Call for Reproductive Justice v. Drummond

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, Oklahoma Supreme Court

Temporarily halted three state anti-abortion laws, finding that “a limited right to terminate a pregnancy was deeply rooted in Oklahoma’s history and tradition.” // Oklahoman

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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