Are the Federal Courts TRUMPed?

For nearly sixty years the paradigm among public interest lawyers was to resort, after other forms of advocacy had been unsuccessful, to civil rights suits in federal district court and, if unsuccessful there, to appeal until one found success. While this strategy has had a relatively good run, its prospects may be waning due to changes in the federal judiciary brought about by prolific appointments by Donald Trump.

NWJP founder and senior staff attorney, Michael Dale, just released a paper called, “Are the Federal Court Trumped; Should I File my Public Interest Case in Oregon State Court?”.  The released paper explores using the state court system as an alternative means of judicially enforcing civil rights in Oregon. State courts have independent, unreviewable authority to interpret state civil rights and constitutional law, and ample reasons for asserting that independence.

The paper discusses a few examples of courageous decisions by state courts around the country. Specifically, in Rodriguez v. Dairy, 2016 N.M.S.C. 29, 378 P.3d 13 (N.M. 2016), the court held that the exclusion of farm and ranch workers from New Mexico’s workers’ compensation scheme violated the Equal Protection Clause of the New Mexico Constitution, even though it was likely that it would not have reached that result under the federal Equal Protection Clause. The Washington Supreme Court held that exemption of dairy workers from the state overtime law violated the privileges or immunities clause of Washington’s constitution in Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 475 P.3d 164, 196 Wash.2d 506, 475 P.3d 164 (Wash. 2020), a result that was, again, unlikely under the federal Equal Protection Clause. Using purely state law theories, a Circuit Court in Oregon overturned a popular local ballot measure punishing employment of undocumented workers in Columbia County that had been modeled on an Arizona law which had been upheld on federal claims by the Ninth Circuit. After the United States Supreme Court had ruled in Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), that time spent by Amazon workers waiting for security checks after their shifts were completed is not compensable time under the Fair Labor Standards, the Pennsylvania Supreme Court refused to follow that interpretation in construing Pennsylvania law in In Re, Inc., 255 255 A.3d 191-92 (Pa. 2021).

The balance of the paper discusses considerations for litigants in choosing to bring public interest cases in state courts:

  1. Oregon judges have largely been appointed by progressive governors for a generation.  Although state judges must run for reelection every six years, it is very rare that an incumbent judge is unseated by a challenger and even rarer for judges to be successfully challenged based upon particular past rulings from the bench. If a litigant in state court believes that an assigned judge cannot provide a fair trial, the party may challenge the judge by affidavit and the judge will routinely be replaced.
  2. Plaintiffs in Oregon state courts are uniquely positioned due to the striking contributions to Oregon’s jurisprudence of Justice Hans Linde. His decisions and academic writing bolster the independence and primacy of Oregon’s constitution. Linde established in Oregon law a preference for resolving mixed federal/state law cases on state constitutional grounds first, and if full relief is afforded under state law, declining to review federal law questions.  This offers an opportunity to avoid review by a hostile United States Supreme Court. Linde separated analysis of Oregon’s Privileges and Immunities clause from federal equal protection doctrine, argued against balancing individual rights against state interests and provided a basis to apply international human rights law as a guide in interpreting Oregon law.

  3. Oregon’s constitution is interpreted independently from similar, or even identical federal provisions. The paper discusses differences in free speech, rights of assembly, religious liberty, search and seizure, excessive punishment, equal privileges and immunities, and remedies clause.

  4. There is an Oregon statute that permits recovery of attorneys’ fees for prevailing plaintiffs in cases raising a wide range of discrimination claims, including common law claims. In some circumstances, Oregon courts also have equitable powers to award attorneys’ fees in the absence of statutory or contract provisions providing for fee-shifting.

  5. In many cases in state court parties have access to court-annexed arbitration. Advantages and disadvantages are discussed.

  6. Oregon’s rules about jury trials may make it easier and less expensive for plaintiffs to prevail.

  7. Parties or witnesses needing the assistance of an interpreter are entitled in the state courts to the appointment of a qualified interpreter paid by the state, but retain the right to choose their own qualified interpreter, and need only pay any excess in cost. To be qualified, and interpreter must be able to communicate using the language and register of the witness.

  8. Oregon state courts are courts of general jurisdiction, and many of the jurisdictional and justiciability issues that arise in federal courts will not be encountered in the state system.



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