Monday, April 9, 2012

Constitutional Guardianship in State Courts

By Steven Sacco
Steve Sacco, a dual degree student, is in his 3d year at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare. His focus is public interest law, specifically in the areas of immigration and family law, and in the civil rights and international issues that intersect with those areas of the law.
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Part I: Changes in Constitutional Guardianship
As Stewart Pollock and Vincent Bonventre point out, throughout the mid-20th century, particularly during the 1950’s to 1970’s, the Supreme Court of the United States provided protection to civil liberties and rights that the state high courts would not.[1] But in recent decades the pendulum has swung in the other direction and state high courts in their review of constitutional issues now act as the guardians of fundamental rights and liberties.[2] This shift has drawn attention to the ways in which state courts are in a unique position to protect civil rights and liberties, and conversely to the ways in which the Supreme Court of the United States is challenged in this regard.

For example, Robert Utter argues that state review of federal issues has contributed to the substantive development of federal law, and that the state courts are in a special position to expand certain rights and liberties the federal courts cannot or have not.[3] State court decisions have shaped federal law in many areas of substantive rights and liberties because the Supreme Court has often looked to state decisions to inform its own opinions on these issues.[4] 

Conversely, Utter also argues that the federal courts are restricted in at least three ways that state courts are not. First, that the U.S. Supreme Court is often reluctant to rule on issues in deference to the state in the interests of federalism; an institutional restriction the state Supreme Court does not have – something Utter refers to as “underenforcement” of the constitution.[5] Second, and this follows from the first, state courts do not need to worry about their decisions affecting the entire country, and thus can afford to exercise much less caution in making their decisions.[6] Finally, if the Supreme Court is underenforcing the constitution, it follows that the law is not providing liberty to the full extent that the document allows.[7] States, unencumbered by the first issue, have the ability to enforce the Constitution to its fullest potential.

However, the argument that the State high courts have some greater institutional capacity for developing and protecting civil rights and liberties seems to have been thwarted by a Supreme Court decision now nearly 3 decades old. Since 1875 the Supreme Court would decline review of a case if the state court based its judgment on an adequate and independent state ground; as long as such a ground were mentioned in the argument, the Supreme Court would presume the case off-limits for review.[8] But this changed in 1983 with Michigan v. Long.

In Long the U.S. Supreme Court warned that it may now freely accept cases unless state courts explicitly base their holdings on adequate and independent state grounds. State Court must make a “plain statement” that it is using the federal law for guidance only – otherwise it is reviewable by the U.S. Supreme Court.[9] Now, state courts seeking to insulate state-grounded decisions from Supreme Court review may well be reluctant to engage in analysis under federal law.[10] But Utter argues that if state courts entirely abandon analysis of federal constitutional law in favor of their own constitutions, the development of federal law would be substantially inhibited. [11]

More to the point, Long seems to make it much easier for the Supreme Court to begin imposing its “limited institutional capacity” for civil rights and liberties directly onto the states themselves, reducing their capacity to protect said liberties. This realization makes the way in which a state’s high court analyses constitutional issues particularly important.

Part II: State Constitutional Analysis
While Pollock and Utter both articulate three approaches to state constitutional analysis by State Supreme Courts, Utter gives a more detailed description of the three categories.[12] Utter identifies the primacy model (in which the Court relies solely on the state constitution and regards the Federal constitution as merely persuasive), the institutional model (which Pollock refers to as the “Supplemental” approach and which defers to the federal Constitution and then addressing the state Constitution only if it can amplify federal rights) and the dual sovereignty method (which attempts to consider both State and Federal Constitutions simultaneously).[13]

Some, like former New York Court of Appeals Judge Joseph Bellacosa, seem to adopt an extreme supplemental approach, arguing as he did in his dissent in People v. Scott that there should be uniformity of federal and state law and that the state court violates the principles of stare decisis when it “discard[s] the United States Supreme Court’s guidance.“ [14] Sewart Hancock, writing in the majority opinion, responds eloquently to Bellacosa, stating that "We must of course be faithful to our precedents, . . . [but] I cannot agree that we act improperly in discharging our responsibility to support the State Constitution when we examine whether we should follow along as a matter of State law."[15]

In the State v. Lindstedt, the intermediate Court of Appeals of Hawaii considered whether a state statute prohibiting a group of six or more people from engaging in disorderly conduct likely to cause harm of annoyance, was a violation of the right to privacy under the state or federal constitutions.[16] In doing so, the court first cites to the applicable state constitutional provision, which explicitly enumerates a right to privacy, and reviews the pertinent decisions of the Supreme Court of Hawaii.[17] Only occasionally and then only after completing a state constitutional analysis, does the Court of Appeals make reference to what the federal constitution has to say about the issue.[18]

In doing so this Court of Appeals appears to adopt a primacy approach to its constitutional analysis. In keeping with the spirit of primacy interpretation, the Court makes it clear that it regards the U.S. Supreme Court as an authority of last resort when it states “Because the Hawaii Supreme Court has yet to address a void for vagueness challenge to [the statute at issue] . . . we look to the United States Supreme Court for guidance.”[19] Even choosing to use the word guidance, as opposed to the word “authority” or perhaps “direction,” seems to communicate the notion that the decisions of the U.S. Supreme Court are merely persuasive here.

Contrast this approach to that of an unpublished case before the Superior Court of New Jersey, State v. Hernandez, where the court considered whether the defendant’s right to confront the witnesses against him has been violated by the admission into evidence of an informant’s recorded statement.[20] While the court acknowledges that the defendant has made a state constitutional argument as well as an argument under the federal constitution, the court’s consideration of the state constitutional arguments appears to stop with this brief reference.[21] The Court instead launches into an analysis of the defendant’s rights under the 6th Amendment of the U.S. Constitution, after which it articulates its conclusion.[22] At no point does the Court appear to consider the arguments under the state constitution.[23]

Here the court seems to adopt a Supplemental Approach not entirely out of line with the reasoning of Judge Bellacosa in Scott. No surprise then that Pollock actually points out the New Jersey Supreme Court also prefers this supplemental approach.[24] The NJ Superior Court does not seem concerned with what the law of the New Jersey constitution has to say about the defendant’s rights in the matter. In the end, the Court found that because the recording was not being offered to prove the matter asserted therein, it was thus not hearsay and its admission was therefore not in violation of the defendant’s sixth amendment right.[25]

The tragedy of cases like Hernandez is that we do not know, and cannot know, from the Court’s reasoning (or lack thereof) whether this individual had additional substantive rights under the New Jersey constitution. This defendant, and the rest of the state of New Jersey, may also have lost an opportunity to expand or at least preserve state-specific rights of defendants to confront the witnesses against them. If either case is true, it means that a defeat against civil liberties was wrought with this case. The New Jersey Superior Court effectively colludes with the repressive will of the U.S. Supreme Court regarding its track record with defendant’s rights when it fails to consider potentially more expansive rights under its own constitution. Without even requiring the tyranny of Long, this ruling therefore, may be a victory for the U.S. Supreme Court vis-à-vis this collusion.

Clearly what each of us needs is for our respective States to adopt the primacy approach that high courts like those of Hawaii seem so comfortable with. Using state constitutions to preserve our rights in this way seems to me the only means sufficient to keep the United States tethered to a firm ground of freedom without allowing the hot air balloon of the Supreme Court’s recklessness from carrying the lot of us away into a stormy sky of despotism.
[1] Stewart G. Pollack, Symposium: The Emergence of State Constitutional Law: Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex. L. Rev. 977 (1985).; Vincent Martin Bonventre, Changing Roles: The Supreme Court and The State High Courts in Safeguarding Rights, 70 Alb. L. Rev. 841 (2007).
[2] Pollack, Symposium, at 979.
[3] Robert F. Utter, Symposium: The Emergence of State Constitutional Law: Swimming in the Jaws of the Corcodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex. L. Rev. 1025, 1041-1047 (1985).
[4] Utter, Symposium, at 1030-1040.
[5] Id. at 1042.
[6] Id. at 1045.
[7] Id.
[8] Pollack, Symposium, at 980.
[9] Id. at 982.
[10] Id.
[11] Utter, Symposium, at 1045-1047.
[12] Pollack, Symposium, at 983, 984; Utter, Symposium, at 1027-1029.
[13] Pollack, Symposium, at 983, 984; Utter, Symposium, at 1027-1029.
[14] The People v. Scott, 79 N.Y. 2d 474, 507 (1992).
[15] Scott, at 504.
[16] State v. Lindstedt, 101 Haw. 153 (Haw. Ct. Appl. 2003).
[17] Lindstedt, at 156, 157.
[18] Id. at 157.
[19] Id.
[20] State v. Hernandez, 2010 N.J. Super. Unpub. LEXIS 488 (App. Div. Mar. 9, 2010)
[21] Hernandez, at 488.
[22] Id.
[23] Id.
[24] Pollock, Symposium, at 984.
[25] Hernandez, at 488.