Speaking at a lecture series held at the Ohio Supreme Court, Judge Sutton recently called on lawyers to take state constitutional law seriously. He said that in nine years on the federal bench he has heard just one case involving claims under a state constitution. Judge Sutton then explained that every plaintiff alleging a civil rights violation has two shots at winning under federal and state constitutions, and that claims under a state constitution may often be the better one. He then lamented that most lawyers do not even consider claims under a state constitution, or, if they do, they include them only as an afterthought.
Judge Sutton explained that such lawyers may be ignoring their best arguments. He explained his belief that the future for expanding individual rights lies in the state supreme courts. State supreme courts have far more leeway and ability to experiment (and can be more easily corrected) than the United States Supreme Court. State courts can interpret their constitutions to account for local tradition and history, while only worrying about the effect on one jurisdiction. He also noted that just because the Supreme Court has interpreted some general words mean something does not mean that the same or similar words in a state constitution must mean the same thing in state constitutions. State supreme courts are free to create and expand individual liberties.
A video of Judge Sutton’s speech is available online, and is highly recommended to anyone drafting a complaint (or writing a brief) that focuses only on the federal constitution. Judge Sutton has also recently written an article exploring this subject in the Kansas Law Review.
