2004 Summer, 6. New Hampshire and the Methodology of the New Judicial Federalism.

AuthorProfessor Robert F. Williams

New Hampshire Bar Journal


2004 Summer, 6.

New Hampshire and the Methodology of the New Judicial Federalism

NH Bar JournalSummer 2004, Volume 45, Number 2NEW HAMPSHIRE AND THE METHODOLOGY OF THE NEW JUDICIAL FEDERALISMProfessor Robert F. WilliamsBy dusting off our state constitutions, judges can be "activists" in the best sense of the word and breathe life into the fifty documents. If we let them atrophy in our respective states, we will not only have failed to live up to our oaths to defend those constitutions but will have helped to destroy federalism as well.

Justice Charles G. Douglas, III(fn1)

[A] party seeking a state constitutional ruling in this court has no less a duty to us than he has to the trial court: to state the issue directly and to develop supporting arguments premised on policy or authority.

Justice David Souter(fn2)

The State of New Hampshire has had a very important role in the development of the New Judicial Federalism ("NJF"), where state courts have interpreted their state constitutions to provide more protection than the federal constitution. The NJF has now reached a state of relative maturity.(fn3) The maturation process, however, was based on a number of building blocks, including both academic commentary and judicial decisions. Justice Charles Douglas' influential article,(fn4) which was published in 1978, only one year after Justice William Brennan's more famous article,(fn5) played a very influential role in raising the consciousness of the New Hampshire bench and bar concerning state constitutional law. Justice Douglas noted:

Ultimately it will be up to the appointed and elected state judges to set their own houses in order by active study and planning to improve their judicial systems and image, by talking to law clerks about the need to research and use state constitutions first, and then by taking the time to decide intellectually and deliberately what is wanted in their states in the light of the state constitutions.(fn6)

Five years after Justice Douglas published his seminal article on federalism, the New Hampshire Supreme Court issued its decision in State v. Ball.(fn7) State v. Ball, also written by Justice Douglas, marked the beginning of the country's most sustained commitment to the methodological approach to state constitutional rights interpretation that we now refer to as the "primacy approach."(fn8) The New Hampshire Supreme Court has consistently treated state constitutional law claims before reaching federal constitutional claims.

Three years after Ball, Justice John Paul Stevens quoted extensively from Justice Douglas' Ball opinion in his dissent from the United States Supreme Court's decision to hear, and then vacate and remand, a Delaware case.(fn9) In his dissent, Justice Stevens was continuing his criticism of the approach adopted by the Court three years earlier in Michigan v. Long, where the Court concluded that state high court decisions which were unclear whether they were based on state or federal constitutional law would be within the Court's jurisdiction unless they contained a "plain statement" that they were based on an adequate and independent state ground.(fn10) After quoting with approval from the Ball opinion, he stated: "[S]ince 1983, in over a dozen cases, the New Hampshire Supreme Court has thereby averted unnecessary disquisitions on the meaning of the Federal Constitution. The emerging preference for state constitutional bases of decision in lieu of federal ones is, in my view, the analytical approach best suited to facilitating the independent role of state constitutions and state courts in our federal system."(fn11) The New Hampshire approach was therefore held up by Justice Stevens as a model for the other states. The New Hampshire Supreme Court's approach, reflected in Ball and followed ever since, has provided an extremely effective implementation of the Michigan v. Long directive that should be a model for all states.

State v. Goss, a recent decision by the New Hampshire Supreme Court suppressing evidence obtained in the warrantless seizure of a person's garbage placed at the curb, illustrates a number of the lessons we have learned during the evolution of the NJF.(fn12) This 2003 decision reached a different conclusion about such searches of garbage from that reached in 1988 by the United States Supreme Court in California v. Greenwood.(fn13) The United States Supreme Court's decision in Greenwood, therefore, represented not the end of constitutional litigation on the matter, but rather the "middle"(fn14) of American constitutional litigation. After the Court's decision in Greenwood, its "ripple effect" could be observed as a number of state courts took a "second look"(fn15) at the question under their state constitutions. Those earlier state constitutional garbage search cases also...

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