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When the state or national legislature passes a law that would seem to violate the constitution, is a plaintiff and a trial required to begin the process of judicial review?

Are the steps of the process of judicial review spelled out anywhere?

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  • Are you only asking about judicial review of legislation, not e.g. a criminal sentence? And are you asking about at federal/ state level/ both?
    – smci
    Feb 12, 2022 at 22:32

3 Answers 3

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Are the steps of the process of judicial review spelled out anywhere?

Judicial review isn't a separate kind of legal proceeding. It is something that happens in the course of making legal rulings in an ordinary lawsuit, or in a criminal case, commenced in a court where there is trial court jurisdiction over the kind of case presented.

Usually, the trial court is a U.S. District Court in the federal system, and the trial court of general jurisdiction in the state system. But, in principle, any judge of any trial court, even traffic court or small claims court has the authority and the obligation to rule on the constitutionality of any statutes challenged in a case before that judge.

Also, some appellate courts, while primarily having appellate jurisdiction, have a small class of cases where they act as trial courts.

For example, the U.S. Supreme Court has original trial court jurisdiction over lawsuits of one or more U.S. states against one or more other U.S. states and handles a few such cases each year in a typical year. Similarly, many state supreme courts have original trial court jurisdiction over ethical violation cases brought against attorneys in the state.

The initial ruling on the constitutionality of a statute almost always takes place in the trial court, rather than in an appellate court, although appellate courts review the trial court's ruling on constitutionality on appeal, if there is an appeal.

The only times an appellate court acting as an appellate court raises the issue of the constitutionality of a statute for the first time on appeal are (1) when that issue goes to the subject-matter jurisdiction of the trial court or appellate court over the case, (2) where the failure of the court to raise the issue that a statute was unconstitutional of its own accord amounted to "plain error" or "structural error" by the trial court, or (3) where the trial court ruled in favor of a party for a non-constitutionality related reason which the appellate court finds was incorrect but the appellate court affirms the trial court anyway on the basis of the unconstitutionality of a statute at issue in the case before it.

While a legal ruling on the constitutionality of a statute happens in the trial court, however, the ruling is often made prior to an evidentiary trial on the merits of the case, for example, in a ruling on a motion to dismiss a claim (made based upon the allegations of the person brining the claim in court documents alone), in a ruling on a motion for summary judgment (which is similar but is supported by exhibits and affidavits from the parties to develop the factual context), or in a ruling on a pretrial matter (e.g. an evidence suppression hearing before a judge prior to a trial in a criminal case) that is subject to what is called an interlocutory appeal (i.e. an appeal to an appellate court before the entire case is concluded with a trial on the merits).

Also, even when there is an evidentiary trial on the merits, the case may be one in which there is a bench trial, rather than a jury trial, since many constitutional questions involve issues that are not subject to the jury trial right.

The constitutionality of legislation and also of policies and practices of governments carrying out their duties, is one issue, often one issue of many, that is ruled upon, in the context of litigation between a party that has suffered a particularized injury from the unconstitutional action (as opposed to one shared by all citizens or all taxpayers), against a party that causes or has the power to prevent that injury.

So, for the most part, the constitutionality of legislation is decided either in the context of a civil lawsuit, which is governed by the ordinary rules of civil procedure (see, e.g., In re A.C.B., 2022CA3 (Colorado Supreme Court January 6, 2022), holding that an indigent defendant in a civil contempt proceeding potentially resulting in incarceration had a right to counsel and vacating the contempt of court ruling entered when he was pro se as a result), or in the context of a criminal case against a criminal defendant subject to the ordinary rules of criminal procedure (see, e.g., U.S. v. Hansen, Case No. 17-10548 (9th Cir. February 10, 2020) reversing on direct appeal from a criminal conviction the trial court's conclusion that 8 U.S.C. § 1324(a)(1)(A)(iv) was constitutional as applied to the fact pattern of Mr. Hansen's case).

There is a slight nuance in federal civil and criminal cases where the issue of constitutionality of legislation is raised, and also in most state courts. This is the court rule requirement that the attorney-general (the state attorney-general in the case of state court litigation and in the case of federal court litigation over the constitutionality of a state law, and the federal attorney-general in the case of federal court litigation) be joined as a party to the case in order to present an opportunity for the state or federal government, or both, as the case may be, to chime in on the constitutionality issue that affects far more people than the actual parties to the case. See, e.g., Federal Rule of Civil Procedure 5.1. But otherwise, there are no special court rules or procedures that apply to cases in which judicial review of legislation is sought.

Also, in the event that one party makes a novel challenge to the constitutionality of legislation, and the government doesn't object because the government agrees with the person challenging the constitutionality of the law, it is common practice for the court to recruit an amicus counsel to argue on behalf of the constitutionality of the law, although this practice isn't uniform and is discretionary. This is a function of case law and custom, rather than being a statutory or court rule requirement, however.

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It is required that there be a plaintiff, who is the person who complains about the law. It is not required that the person was previously a party to a trial involving the question, for example you do not have to first be arrested and convicted in order to challenge the constitutionality of a law. It would be sufficient that you wish to protest in public but declined to do so because you didn't want to get arrested – you have been harmed.

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  • The plaintiff does have to be affected by the law in some way, though, right? Just saying that they're a "person who complains about the law" might be a bit misleading for a non-expert. There are plenty of people who complain about laws they aren't directly affected by, and who would jump at the chance to file a lawsuit if they had standing. Feb 11, 2022 at 21:30
  • Yes, see esp. the last sentence.
    – user6726
    Feb 11, 2022 at 22:02
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Judicial review generally requires a plaintiff and a defendant, but it does not always require a trial.

The question of whether there will be a trial often depends on the type of law in question, as well as the asserted basis for its unconstitutionality.

The constitutionality of a criminal law, for instance, will typically not reach the appellate courts until after a defendant has been convicted under that law. But laws that limit the rights to free speech or abortion access can frequently be challenged before anyone attempts to enforce them.

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