Plus: An introduction to New York’s constitution ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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Two conservative justices on the Montana Supreme Court recently suggested

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that partisan bias drives some of the court’s decisions. It was hard to believe, they argued in dissent, that a ruling against the Republican governor in a public records case was “simply another coincidental Republican defeat in a run of bad case outcomes.”

It was a very serious allegation that prompted sharp rejoinders from the targeted justices, who argued that their colleagues’ statements were not only false but dangerous.

There’s also important context in Montana. Republican legislators are calling for greater political influence

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over the state’s courts, including the adoption of partisan judicial elections. Indeed, the dissenting justices appeared to suggest that partisan behavior by the court had invited this targeting: “We have met the enemy, and he is us.”

The case itself, Montana Environmental Information Center v. Office of the Governor

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, is in many ways a surprising vehicle for such acrimony. The question before the court was whether a party who vindicates their state constitutional “right to know” in a public records dispute is entitled to a presumption that they should be awarded attorneys’ fees. The operative statute states that fees “may” be provided.

In an opinion by Justice Laurie McKinnon, the court ruled in favor of a presumption towards attorneys’ fees. McKinnon reasoned that litigation under the right to know is a “public service” and should be accessible to the public. Justice Beth Baker authored a dissent arguing that the decision to award fees should be left to the trial court, subject to review for abuse of discretion.

Personally, I think the majority had the better argument. The absence of fee shifting is a major hurdle

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to state constitutional development. But Baker’s dissent was far from frivolous, and overall, the dispute was not exactly the stuff of front-page headlines.

Yet the decision set off a judicial flame war. In a pair of dissents (not joined by Baker), Justice Jim Rice and the court’s new chief justice, Cory J. Swanson, characterized the majority’s ruling as “essentially based upon no governing law at all.” This “legal vacuum,” they argued, opened the door to justices imposing their “personal preferences, desires, agendas, and even biases, whether knowingly or not.” The dissenters then pointed to a series of recent Montana Supreme Court rulings against Republicans or Republican-passed laws. Partisan bias, they suggested, had led their colleagues to “weaponize” the relevant provisions.

In a concurrence responding to Rice and Swanson, Justice James Shea emphatically rejected their claims of partisanship. He pointed to high-profile prior rulings by the court against Democratic governors, the fact that the current governor has won two of the three cases in which he was a named defendant, and that the state has won as a defendant in approximately 71 percent of cases before the high court since the governor took office.

McKinnon also issued a concurrence to her own opinion, condemning “a highly inappropriate and unprofessional attack . . . upon the Court as an institution, and on the integrity of myself and my colleagues as jurists.” She lamented that the justices’ dissent will “affect relationships between the justices and undoubtedly be seized upon by those holding the Court in disrepute.”

Judging is difficult. State supreme courts rule on high-profile controversies. And we live in a political culture where judges are regularly targeted as partisans for issuing unpopular rulings. At the same time, we live in a legal culture where there simply isn’t a single accepted methodology for how to judge cases. Part of judging may be to call balls and strikes, but the real job is defining the strike zone. There needs to be space to disagree strongly with a judge’s reasoning without ascribing bad faith, and judges should model that behavior. Dissents like this seem more likely to fan the fire of political attacks.





Attorney General Duties Are a Frequent Target of Legislative Gamesmanship

Legislatures in multiple states have stripped power from attorneys general they disagree with politically and increased the power of those belonging to majority parties, explains NYU law student Dylan Erikson. Read more

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Hawaii’s Oil Lawsuit Alleges “Harm to Public Trust Resources”

“As federal resistance to efforts to fight climate change persists and states continue to invoke the public trust doctrine to confront climate harms, courts will be asked to clarify the doctrine’s scope and the boundaries of state authority,” writes Wake Forest University law professor Sarah J. Morath. Read more

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How the Constitution Constrains Presidential Overreach Against States

“Arguments rooted in the separation of powers more faithfully reflect our constitutional design and better promote democratic accountability” than relying on anti-commandeering principles when combating presidential overreach, explains University of Illinois Chicago School of Law professor Steven D. Schwinn. Read more

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State Supreme Court Justices and Ethics Investigations

Examining a string of alleged ethics violations involving state supreme court justices, Manny Marotta, a law clerk at Fix the Court, observes that “transparent and enforceable ethical rules and procedures are crucial to maintaining a properly functioning judiciary and public trust in courts.” Read more

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New York’s First Constitution Was a Reaction to British Rule

New York’s constitution has “guarantees for conservationist concerns, care for the needy, and public schooling for a sound basic education,” but its earliest drafters also included a “recitation of the abuses by the king and the parliament,” writes Albert M. Rosenblatt, a former judge on New York’s highest court. This essay is part of State Court Report’s 50-state series

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on the nation’s constitutions. Read more

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Georgia Departs from Second Amendment Jurisprudence

The Georgia Supreme Court upheld a state law prohibiting people under 21 from carrying a handgun in public. “The court declined to follow recent U.S. Supreme Court rulings interpreting the federal Second Amendment and said instead that the relevant inquiry was into the original public meaning of the Georgia Constitution,” explains Andrew Willinger, executive director of the Duke Center for Firearms Law. Read more

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Virtual Event

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The Trouble Between Trump and the States on Education Policy

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Tuesday, July 15, 3–4 p.m. ET

President Trump has ordered cuts to the Department of Education and federal education funding, the brunt of which will fall on low-income communities. He is also demanding changes to school services and curriculums, including the elimination of diversity, equity, and inclusion programs.



However, states are required by their constitutions to provide public education, and many must meet certain standards and provide student services. In cases where state obligations conflict with the administration’s orders, both state and federal judges may be called on to decide whether state law provides a xxxxxx against harmful federal policies.



Join us for a discussion with education experts moderated by State Court Report Editor in Chief Alicia Bannon. The conversation will explore how the Trump administration’s actions have affected schools, how schools are responding, and how court fights over education policy may play out. RSVP today.

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Produced in partnership with the Brennan Center for Justice





What Else We’re Reading

Constitutional law professor Lawrence Friedman writes about

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former U.S. Supreme Court Justice David Souter’s significant contributions to state constitutional law when he was a justice on the New Hampshire Supreme Court. Souter died in May.





You May Have Missed

In a concurrence

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to an Arkansas Supreme Court decision vacating a gag order in a high-profile murder case

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as too restrictive to satisfy the First Amendment, a justice argued that the court should have prioritized evaluating the case under the Arkansas Constitution. State Court Report previously covered

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how state constitutions can offer greater free speech protections than the First Amendment.

The Trump administration revoked guidance

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that directed hospitals to provide emergency abortions when necessary to stabilize a patient’s medical condition. State Court Report previously covered

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the scope of exceptions to state abortion bans, which allow the procedure in medical emergencies.

In its first time interpreting

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the state’s Civil Rights Act and its abolishment of qualified immunity, the New Mexico Supreme Court said that “a public body may raise judicial immunity as an affirmative defense” to claims brought under the law.





Notable Cases

Republican National Committee v. Eternal Vigilance Action

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, Georgia Supreme Court

Unanimously invalidated under state nondelegation principles four of seven controversial rules passed by the state elections board prior to the November 2024 election. While a fifth rule requiring video surveillance of drop boxes outside of voting hours was upheld, the court did not reach the merits of the other two rules, instead remanding the case to the trial court for further consideration. // MSNBC

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Rand v. New Hampshire

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, New Hampshire Supreme Court

Reversing the trial court — and handing a loss to advocates hoping to address school funding inequities — the court held that a statewide property tax scheme allowing a locality to retain any tax revenue in excess of what the district needs to fund an adequate education does not violate a state constitutional clause empowering the legislature to levy “proportional” taxes on all New Hampshire residents. // New Hampshire Public Radio

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State v. Spencer

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, Illinois Supreme Court

Unanimously held that an aggregate 100-year prison sentence for a defendant who was 20 when the crimes occurred is not a de facto life sentence because a state statute — passed in response to developing case law addressing young adult offenders — makes first-degree murder defendants under 21 eligible for parole after 20 years and mandates that the reviewing board consider mitigating circumstances related to the defendant’s youth. // Bloomberg Law

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

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.









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