By Bronson C. Stephens
Bronson Stephens, a third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.
This essay was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has been published previously by the Center (See, e.g., Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012.)
Three state court opinions examined in the light of articles written by Pollock, Utter and Bonventre reveal some of the many ways state courts are stepping up to claim their place as the shapers of state law and individual freedoms.
The first article, Adequate and Independent State Grounds As A Means of Balancing the Relationship Between State and Federal Courts[1] written by Stewart G. Pollock, and the second Swimming in the Jaws of the Crocodile[2] by Robert K. Utter, speak to the importance of state court involvement in the development of American law; both federal constitutional law and state constitutional law within the individual states.[3] The two articles by Pollock and Utter, along with the third article Changing Roles,[4] by Vincent M. Bonventre, mention the present threat, ever since Michigan v. Long,[5] that the Supreme Court will overrule a state court’s protection of its citizens.
All three articles also argue that state courts should maintain rulings based on independent state constitutional law, and this is where the primary difference exists between the articles. The Pollock and Utter articles urge state courts to remain independent from the Federal Supreme Court in order to add to the national legal discourse, while Bonventre’s article urges state court independence for the sake of individual rights.
The Pollock and Utter articles note various models of state constitutional analysis by which state courts remain engaged and contributing to national as well as intrastate law. The models include primacy, interstitional/supplementary and dual sovereignty, each providing a different level of reliance on federal constitutional law. Pollock and Utter shy away from suggesting models, going only so far as to emphasize the importance of the state court’s voice to both federal law and the laws of individual states.
Bonventre states several times in his article that his purpose is not to pass judgment on the new, less liberty-guardian role that the Federal Supreme Court is taking. However, his article delivers a clear message, and his judgment on the matter, besides being stated outright at the beginning, comes through clearly, “I for one … would much prefer that my rights and liberties were placed in their hands [i.e., state court justices focused on determining and establishing state protection of liberties][6] than in the majority of the current Supreme Court.”[7]
Three state court opinions lay a good, although confusing groundwork for the models by which state courts evaluate constitutional questions. First, an opinion out of the supreme court of Wisconsin, State v. Denson;[8] the court lays out a two-step model that the court plans to use in dealing with a question of “constitutional fact.”[9] The two-step model involves first assessing the lower court’s determination of fact and then “independently apply[ing] constitutional principles to those facts.”[10]
The process the court then embarks on is a complicated back and forth of federal and state constitutional law and holdings, clearly identified and kept separate but at the same time interwoven. The process seems to begin as a dual sovereignty method in which the court examines federal constitutional precedent as well as state, independent of one another. However, the Wisconsin court’s analysis of federal constitutional law stops short of a holding and the court simply continues on with state constitutional law, making the process appear closer to the primacy model.
The second state court opinion, this one out of the supreme court of Arizona, is Morehart v. Barton.[11] The Arizona court takes a much different approach than the Wisconsin court. The Arizona court uses an interstitional model of analysis with regards to the rights of the accused. However, there is a significant focus on state law in the opinion because the Arizona constitution recognizes specifically protected victim rights.
This factor makes the Arizona court’s model of interpretation unique in that it is an interstitional model with federal doctrine acting as a ceiling for their victim rights. This federal rights ceiling is in contrast to the description by Utter that state courts using the interstitial model frequently recognize “the federal doctrine as the floor.”[12] In this way the Arizona court’s approach is somewhat like the Primacy model.
The final opinion is a dissenting opinion by the Court of Appeals of New York Judge Bellacosa in People v. Scott.[13] Bellacosa breezes over the concept that state courts may disagree with the federal courts so long as doing so avoids violating the federal constitution. This may be the greatest issue present in Bellacosa’s dissent. However, nearly as troubling is that Bellacosa ignores the changing landscape of Federal Supreme Court case law, a change noted by Pollock, Utter and Bonventre.
The accusation made by Bellacosa in his dissent; that the court is interpreting the constitution in a way not done by the court before, is not only false but ignores an important fact. As the Federal Supreme Court changes it’s interpretations and thereby the meaning of the federal constitution, leading to less protection of liberties, state courts will have to change their rulings just to maintain the same level of protection that their citizens once enjoyed under the broad protections previously promulgated by the Federal Supreme Court.
So long as the Federal Supreme Court uses the same tests and doctrines to hold in new and less protective ways, state courts will have to base their rulings on new and sometimes novel standards and doctrines. The other option is for state courts to follow the Federal Supreme Court, ignoring the reversal of precedent, or call the Federal Supreme Court out on its fickle ways and still have to base their continued protection of liberties on newly defined standards.
To maintain the same level of protection that New Yorkers enjoyed under previous Federal Supreme Court precedent, the Court of Appeals had to identify the principle that remained after the Federal Supreme Court pulled back their protection. The fact, if it is a fact, that New Yorkers’ unique privacy interest had not been identified previously,[14] in no way detracts from the court’s right and obligation to identify the protected interests of their citizens separately from the Federal Supreme Court. Especially when the protections of the Federal Supreme Court have changed leaving the Court of Appeals with the choice of either removing or continuing protection.
Bellacosa’s response to the very existence of the court’s choice appears to be his statement that “the direct impact of the United States Supreme Court’s rulings on New York law [] should be significant, not this Court’s historical reprises of the United States Supreme Court's own articulations on the particular subject.”[15] The general illogicality of this statement aside, once the Federal Supreme Court began pulling back protections through the review of state court cases that protected rights without violating the federal constitution, such as in Michigan v. Long, their review became advisory.
There is no reason that a Federal Supreme Court advisory opinion to the Court of Appeals of New York should be given any great weight in regards to New York State’s protection of New York State residents’ rights. That is especially true if such an advisory opinion would have the Court of Appeals backtracking over its own precedent and ignoring the doctrine of stare decisis just to keep up with the Federal Supreme Court in abandoning various protections of New York residents’ liberties. As all three authors noted, the states were the original protectors of individual rights and with less protection from the Federal Supreme Court, states now have the opportunity to reclaim that roll.
Where Bellacosa is correct is that there will, briefly, be a guidance vacuum. Until state-based precedent is formed or an articulable test/or analysis developed, state courts may flounder to define their reasons for preserving rights that they never had to define before due to a nationwide reliance on the Federal Supreme Court as the foremost guardian of liberty.
As Bonventre aptly stated in his article on changing roles, “the appellation of foremost guardian is no longer apropos for the Supreme Court.”[16] This is nothing for state courts to shy away from. It is an opportunity for state courts and state court judges to show their stripes.
This essay was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has been published previously by the Center (See, e.g., Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012.)
Three state court opinions examined in the light of articles written by Pollock, Utter and Bonventre reveal some of the many ways state courts are stepping up to claim their place as the shapers of state law and individual freedoms.
The first article, Adequate and Independent State Grounds As A Means of Balancing the Relationship Between State and Federal Courts[1] written by Stewart G. Pollock, and the second Swimming in the Jaws of the Crocodile[2] by Robert K. Utter, speak to the importance of state court involvement in the development of American law; both federal constitutional law and state constitutional law within the individual states.[3] The two articles by Pollock and Utter, along with the third article Changing Roles,[4] by Vincent M. Bonventre, mention the present threat, ever since Michigan v. Long,[5] that the Supreme Court will overrule a state court’s protection of its citizens.
All three articles also argue that state courts should maintain rulings based on independent state constitutional law, and this is where the primary difference exists between the articles. The Pollock and Utter articles urge state courts to remain independent from the Federal Supreme Court in order to add to the national legal discourse, while Bonventre’s article urges state court independence for the sake of individual rights.
The Pollock and Utter articles note various models of state constitutional analysis by which state courts remain engaged and contributing to national as well as intrastate law. The models include primacy, interstitional/supplementary and dual sovereignty, each providing a different level of reliance on federal constitutional law. Pollock and Utter shy away from suggesting models, going only so far as to emphasize the importance of the state court’s voice to both federal law and the laws of individual states.
Bonventre states several times in his article that his purpose is not to pass judgment on the new, less liberty-guardian role that the Federal Supreme Court is taking. However, his article delivers a clear message, and his judgment on the matter, besides being stated outright at the beginning, comes through clearly, “I for one … would much prefer that my rights and liberties were placed in their hands [i.e., state court justices focused on determining and establishing state protection of liberties][6] than in the majority of the current Supreme Court.”[7]
Three state court opinions lay a good, although confusing groundwork for the models by which state courts evaluate constitutional questions. First, an opinion out of the supreme court of Wisconsin, State v. Denson;[8] the court lays out a two-step model that the court plans to use in dealing with a question of “constitutional fact.”[9] The two-step model involves first assessing the lower court’s determination of fact and then “independently apply[ing] constitutional principles to those facts.”[10]
The process the court then embarks on is a complicated back and forth of federal and state constitutional law and holdings, clearly identified and kept separate but at the same time interwoven. The process seems to begin as a dual sovereignty method in which the court examines federal constitutional precedent as well as state, independent of one another. However, the Wisconsin court’s analysis of federal constitutional law stops short of a holding and the court simply continues on with state constitutional law, making the process appear closer to the primacy model.
The second state court opinion, this one out of the supreme court of Arizona, is Morehart v. Barton.[11] The Arizona court takes a much different approach than the Wisconsin court. The Arizona court uses an interstitional model of analysis with regards to the rights of the accused. However, there is a significant focus on state law in the opinion because the Arizona constitution recognizes specifically protected victim rights.
This factor makes the Arizona court’s model of interpretation unique in that it is an interstitional model with federal doctrine acting as a ceiling for their victim rights. This federal rights ceiling is in contrast to the description by Utter that state courts using the interstitial model frequently recognize “the federal doctrine as the floor.”[12] In this way the Arizona court’s approach is somewhat like the Primacy model.
The final opinion is a dissenting opinion by the Court of Appeals of New York Judge Bellacosa in People v. Scott.[13] Bellacosa breezes over the concept that state courts may disagree with the federal courts so long as doing so avoids violating the federal constitution. This may be the greatest issue present in Bellacosa’s dissent. However, nearly as troubling is that Bellacosa ignores the changing landscape of Federal Supreme Court case law, a change noted by Pollock, Utter and Bonventre.
The accusation made by Bellacosa in his dissent; that the court is interpreting the constitution in a way not done by the court before, is not only false but ignores an important fact. As the Federal Supreme Court changes it’s interpretations and thereby the meaning of the federal constitution, leading to less protection of liberties, state courts will have to change their rulings just to maintain the same level of protection that their citizens once enjoyed under the broad protections previously promulgated by the Federal Supreme Court.
So long as the Federal Supreme Court uses the same tests and doctrines to hold in new and less protective ways, state courts will have to base their rulings on new and sometimes novel standards and doctrines. The other option is for state courts to follow the Federal Supreme Court, ignoring the reversal of precedent, or call the Federal Supreme Court out on its fickle ways and still have to base their continued protection of liberties on newly defined standards.
To maintain the same level of protection that New Yorkers enjoyed under previous Federal Supreme Court precedent, the Court of Appeals had to identify the principle that remained after the Federal Supreme Court pulled back their protection. The fact, if it is a fact, that New Yorkers’ unique privacy interest had not been identified previously,[14] in no way detracts from the court’s right and obligation to identify the protected interests of their citizens separately from the Federal Supreme Court. Especially when the protections of the Federal Supreme Court have changed leaving the Court of Appeals with the choice of either removing or continuing protection.
Bellacosa’s response to the very existence of the court’s choice appears to be his statement that “the direct impact of the United States Supreme Court’s rulings on New York law [] should be significant, not this Court’s historical reprises of the United States Supreme Court's own articulations on the particular subject.”[15] The general illogicality of this statement aside, once the Federal Supreme Court began pulling back protections through the review of state court cases that protected rights without violating the federal constitution, such as in Michigan v. Long, their review became advisory.
There is no reason that a Federal Supreme Court advisory opinion to the Court of Appeals of New York should be given any great weight in regards to New York State’s protection of New York State residents’ rights. That is especially true if such an advisory opinion would have the Court of Appeals backtracking over its own precedent and ignoring the doctrine of stare decisis just to keep up with the Federal Supreme Court in abandoning various protections of New York residents’ liberties. As all three authors noted, the states were the original protectors of individual rights and with less protection from the Federal Supreme Court, states now have the opportunity to reclaim that roll.
Where Bellacosa is correct is that there will, briefly, be a guidance vacuum. Until state-based precedent is formed or an articulable test/or analysis developed, state courts may flounder to define their reasons for preserving rights that they never had to define before due to a nationwide reliance on the Federal Supreme Court as the foremost guardian of liberty.
As Bonventre aptly stated in his article on changing roles, “the appellation of foremost guardian is no longer apropos for the Supreme Court.”[16] This is nothing for state courts to shy away from. It is an opportunity for state courts and state court judges to show their stripes.
___________________________
[1] Stewart G. Pollock, Adequate and Independent State Grounds As A
Means of Balancing the Relationship Between State and Federal Courts, 63 Tex. L. Rev. 977 (1985).
[2] 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 Tex. L.
Rev. 1025 (1985).
[3] See Vincent Martin Bonventre, Changing
Roles: The Supreme Court and the State High Courts in Safeguarding Rights,
70 Alb. L. Rev. 841, 853 (2007)
(discussing the ways in which an emphasis on "federal law and decisions of
the United States --i.e., the Federal --Supreme Court… is not a focus on
American law.").
[4] See id.
[5] Michigan v. Long, 463 U.S. 1032
(1983).
[6] I am inferring, I believe
correctly, quite a bit from the judges on the panel that Bonventre is referring
to in this article, and statements he has made at other times regarding several
of them.
[7] Bonventre, supra note 3, at 841.
[8] State v. Denson, 799 N.W.2d 831 (Wis.
2011).
[9] Id. at 699.
[10] Id.
[11] Morehart v. Barton, 250 P.3d
1139 (Ariz. 2011).
[12] Utter, supra note 2, at 1028.
[13] People v. Scott, 593 N.E.2d
1328, 1348 (N.Y. 1992)
[14] See id. at 512-14 Bellacosa claims there is no “unique New York
interest” in privacy.
[15] Id. at 511.
[16] Bonventre, supra note 3, at 846.
