On October 7, 2021, the State Democracy Research Initiative hosted a virtual kickoff event featuring state solicitors general from four states, who discussed their roles and perspectives on state government and cases they have litigated involving state democracy and state constitutional law. Faculty Co-Directors Miriam Seifter and Rob Yablon served as the moderators, joined by Amit Agarwal (former Solicitor General, Florida), Elizabeth “Bessie” Dewar (State Solicitor, Massachusetts), Michael Mongan (Solicitor General, California), and Ryan Park (Solicitor General, North Carolina). Panelist biographies are available on the event website.
Panelists offered various insights on the role of a state solicitor general, which typically serves as a state’s top appellate lawyer. While their offices and roles differed, several panelists described a common aspiration of presenting consistent legal positions as a state, which can be challenging given the multifaceted interests and entities within the state. As the panelists described, states have their own unique processes and practices to address the complex question of who speaks for the state.
Massachusetts State Solicitor Bessie Dewar highlighted additional variation among state governments, including over which entities have authority to litigate, and to what extent; whether the state has a unified or plural executive branch, or a hybrid of these; and whether and how the state allows for popular initiatives. For example, Dewar discussed the Massachusetts initiative petition process under article 48 of the state constitution. In contrast to states with more formal processes, the Massachusetts Attorney General’s Office invites anyone interested in the initiative petition process to participate, including by submitting draft petitions for an early, informal review to avoid constitutional issues.
Former Florida Solicitor General Amit Agarwal emphasized how even seemingly obscure or unremarkable provisions of state constitutional law can have enormous practical significance. For instance, Agarwal noted how a provision in article V, section 2 of the state constitution directing the Florida Supreme Court to adopt rules of judicial procedure has broad implications: including in the context of the state’s Stand Your Ground law. When the state legislature sought to alter the burden of proof required to establish Stand Your Ground immunity, a number of lower courts determined that as the burden of proof was a procedural matter, the legislature did not have the authority to change it.
North Carolina Solicitor General Ryan Park emphasized the importance of the state’s unique history in interpreting state law. For example, recent litigation over pandemic-related business closures involved the “fruits of their own labor” clause of the state constitution, with origins in abolitionism. Park also discussed partisan gerrymandering litigation under the North Carolina Constitution and the relatively smooth remedial process that followed, suggesting the state’s experience might help address justiciability concerns expressed by the U.S. Supreme Court.
California Solicitor General Michael Mongan concluded the discussion by underscoring a debate in the California case of People v. Buza over state constitutional law, and when state courts can depart from U.S. Supreme Court interpretations of parallel federal provisions. The Buza majority found that, “although decisions of the U.S. Supreme Court interpreting parallel federal text are not binding, we have said they are ‘entitled to respectful consideration,’” and that, “’cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution’” (citations omitted). The dissenting opinion, authored by Justice Goodwin Liu, rejected this approach, noting, “there is no reason why a state court, when interpreting a provision of its state constitution, should accord a presumption of correctness to the Supreme Court’s interpretation of an analogous federal constitutional provision.” As Mongan noted, this debate likely to continue in California and beyond, and will affect the role that state constitutions play in our democratic system.
The State Democracy Research Initiative wishes to thank each of the panelists and our audience for a fascinating discussion illustrating the importance of public law and democracy at the state level.