Sunday, April 15, 2012

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford
Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

There are three different, basic approaches state supreme courts take in analyzing state constitutional claims—the dual reliance approach, the primacy approach, and the supplemental approach.  Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Texas L. Rev. 977, 983 (1985).

The dual reliance approach involves the analysis of a state constitutional claim under both the federal and the state constitutional provisions.  Id. at 983.  The N.Y. Court of Appeals adopted this approach in a 2009 decision in People v. Wrotten.  14 N.Y.3d 33.  In its analysis of the right to confrontation, the N.Y. state court first looked to the state constitution’s treatment of witness testimony by two-way video conferencing.  Id. at 38.  The state court then went on to consider the same issue under the Sixth Amendment of the U.S. Constitution, observing that the holding under state law would not conflict with federal law.  Id. at 39.

Alternatively, a state court may render judgment under the state constitution and “then determine whether an analysis under the federal law would yield the same result” or apply a federal construction to the state constitutional provision.  Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues When Disposing of Cases on State Constitutional Grounds, 63 Texas L. Rev. 1025, 1029, 1048 (1985).

In an interesting case out of Wyoming, the state’s highest court declined to adopt a dual reliance approach to a state constitutional claim.  Budig v. State, 222 P.3d 148 (2010).  While the accused argued a violation under both the state and federal constitutions, the state court refused to “consider separate state constitutional analysis” because the accused did “not differentiate between the two provisions or otherwise provide separate analysis of the Wyoming constitutional provision in question.”  Id. at 151 n.2.

Under the primacy approach, the state court first looks to its own state constitutional provision before consulting the federal constitution.  Pollock at 983.  In its analysis of state law, the state court should examine “state history, doctrine, and structure.”  Utter at 1028.  This approach presumes that state constitutional protections are greater than or equal to that of federal constitutional protections.  Pollock at 985.  Therefore, only when a state court’s decision infringes on a person’s rights and liberties under the state constitution should the state court base its decision instead on federal law.  Utter at 1028.

Courts using the supplemental approach first look to the federal constitution in rendering its decision on a state constitutional claim.  Id.  This approach presumes that federal law is correct and thus, a state court will only consult its own constitution if the violation of a person’s right is upheld under federal law.  Id.  The state court will then look to, inter alia, state history, traditions, doctrine, and public attitudes in determining whether to diverge from federal law.  Id.  The dissent in the N.Y. Court of Appeals case of People v. Scott criticized the majority for not following this approach and diverging from federal constitutional law without “sufficient reasons.”  79 N.Y.2d 474, 509 (1992) (Bellacosa, J., Dissenting). 

In Scott, the state court refused to adopt a ruling by the U.S. Supreme Court restricting the Fourth Amendment rights of the accused.  Id. at 478.  Instead, the majority found that state law more adequately protected the fundamental constitutional rights of N.Y. citizens.  Id. at 510 (Bellacosa, J., Dissenting).  The dissent argued that the majority failed to “properly apply and follow noninterpretative analysis . . . [The majority thereby] create[d] a new echelon of State constitutional analysis” which prevents uniformity, precedential guidance, and justified outcomes.  Id. at 511, 513, 514.

Whichever approach is applied, it would seem important that state supreme courts continue analyzing federal constitutional law.  State interpretation of federal constitutional law contributes to the development of federal doctrine and “aids sister state courts.”  Utter at 1041, 1049.  The Supreme Court's decision in Michigan v. Long (463 U.S. 1032 [1983])—which extended the Court's review of state court judgments to those which might be based on federal constitutional law—may deter this valuable state analysis. Nevertheless, it is the duty of the state courts to “zealously safeguard[] constitutional rights and liberties.”  Vincent Martin Bonventre, Changing Roles: The Supreme Court and the State High Courts in Safeguarding Rights, 70 Albany L. Rev. 841, 842 (2007).

This is significant particularly when the trend of the U.S. Supreme Court in the past few decades has been to protect rights only at a minimum.  Id. at 852.  Nonetheless, a state court may avoid U.S. Supreme Court review of a state judgment if the state expressly bases its decision on adequate and independent state grounds.  Long, 463 U.S. at 1040–41.