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State Laws Concerning Rights Enumerated by the Fifth Amendment

The federal constitution and the Supreme Court cases interpreting it establish the minimum amount of protection that a state court must provide when applying a provision of the Bill of Rights to a pending controversy. The same holds true for the four clauses of the Fifth Amendment that have been made applicable to the states through the doctrine of incorporation. However, a state constitution or a state court interpreting the state constitution may provide more protection than is afforded by the federal constitution but not less. Below is a sampling of cases decided in part based on state courts’ interpretation of the federal constitution, its own state constitution, or both. Also included are summaries of legislation and constitutional amendments pertaining to eminent domain following the U.S. Supreme Court’s decision in Kelo v. City of New London.

ALABAMA: In 2005, the state enacted legislation that prohibits use of eminent domain for certain projects, such as commercial development or development for purposes of raising tax revenues.

ARKANSAS: The Due Process Clause in the Arkansas Constitution did not disqualify a trial judge from presiding over a prosecution against the defendant, notwithstanding the defendant’s claim of potential judicial bias from judge’s service as prosecuting attorney in a former case (see Green v. State, 729 S.W.2d 17 [Ark. App. 1987]).

ARIZONA: If a mistrial is granted as a result of conduct that the prosecutor knew or should have known would prejudice the defendant and the prejudice cannot be cured short of declaring a mistrial, the double jeopardy clause of state constitution bars retrial (see Beijer v. Adams ex rel. County of Coconino, 993 P.2d 1043 [Ariz. App. 1999]).

CALIFORNIA: The California grandparent visitation statute violated the Due Process Clause of both the state and federal constitutions as applied to a mother, who opposed visitation between her child and paternal grandparents, after the trial court failed to apply the statutory presumption that the mother would act in her child’s best interests (see In re Marriage of Harris, 2001 WL 1113062 [Cal. App. 2001.]).

DELAWARE: The state in 2005 enacted legislation that limits application of eminent domain to recognized public uses.

FLORIDA: For a criminal statute to withstand a void-for-vagueness challenge under both the federal and state Due Process Clauses, the language of the statute must provide adequate notice of the conduct it prohibits when measured by common understanding and practice, and the statute must define the offense in a manner that does not encourage arbitrary and discriminatory enforcement (see State v. Brake, 2001 WL 1095088 [Fla. 2001]).

GEORGIA: Routine collection of a suspect’s signature on a fingerprint card while booking the suspect into jail, even in the absence of Miranda warnings, does not constitute compelled self-incrimination in violation of the state constitution (see Thomas v. State, 549 S.E.2d 359 [Ga. 2001]).

ILLINOIS: The privilege against self-incrimination that is applicable in criminal cases under the Illinois constitution applies to probation revocation proceedings, since a defendant’s testimony may subject him to fine or incarceration if probation is revoked (see People v. McNairy, 721 N.E.2d 1200 [Ill. App. 1999]).

MASSACHUSETTS: A Due Process violation did not occur under the Massachusetts Constitution based on a prisoner’s transfer to another prison, the deprivation of the prisoner’s canteen privileges, or the loss of the privilege to attend resident council meetings, since the transfer did not implicate a liberty interest, and the other two claims involved privi-leges not rights (see Murphy v. Cruz, 753 N.E.2d 150 [Mass. App. Ct. 2001]).

MICHIGAN: Convictions for both being a felon in possession of a firearm and possessing a firearm during the commission of a felony did not violate the Double Jeopardy Clause of the Michigan Constitution, since the words of the felony-firearm statute made it clear that the legislature’s intent was to provide for an additional felony charge and sentence whenever the person possessing the firearm also committed the felony, and the statutes setting forth those offenses fulfilled distinct purposes that addressed different social norms (see People v. Dillard, 631 N.W.2d 755 [Mich. App. 2001]).

MINNESOTA: Taxpayers who were sent three notices concerning their property tax before the property taxes became due and who could have used a variety of statutory means to challenge the taxes received constitutionally sufficient Due Process under both the state and federal constitutions (see Programmed Land, Inc. v. O’Connor, 633 N.W.2d 517 [Minn. 2001]).

MISSOURI: A Missouri statute giving any party to a custody or visitation proceeding only one opportunity to disqualify a guardian ad litem (GAL) did not violate the state or federal Due Process rights of the children, since following disqualification the court was required to appoint another GAL if abuse or neglect was alleged (see Suffian v. Usher, 19 S.W.3d 130 [Mo. 2000]).

NEW JERSEY: A state statute prohibiting licensing of a check cashing office that is located within 2500 feet of an existing office was rationally related to the health and stability of the industry and to maintaining the statutory fee cap, which itself was a legitimate consumer protection measure, and thus did not violate substantive due process rights of the applicant who sought a license for an office that did not comply with distance restriction (see Roman Check Cashing, Inc. v. N.J. Dep’t of Banking & Ins., 777 A.2d 1 [N.J. 2001]).

NEW YORK: The New York City School Construction Authority’s proposed condemnation of undeveloped property owned by the city for use as a public school did not violate the federal due process rights of the city’s lessee, which had leased the property for urban development purposes, since the lease expressly provided for the exercise of the eminent domain power against the premises and also enabled the city to avoid further liability upon condemnation (see Westchester Creek Corp. v. N.Y. City Sch. Const. Auth., 730 N.Y.S.2d 95 [N.Y. App. Div. 2001]).

OHIO: The state in 2005 placed a moratorium on the use of eminent domain until December 31, 2006 so that the state could study issues pertaining to eminent domain.

TEXAS: The state approved legislation that prohibits use of eminent domain in certain circumstances, including use of eminent domain to confer a benefit on a private party or for economic development.

Inside State Laws Concerning Rights Enumerated by the Fifth Amendment