State constitutional criminal adjudication in Washington since State v. Gunwall: "articulable, reasonable and reasoned" approach?

• Author: Silva, Laura L.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Recourse to our state constitution as an independent source

for recognizing and protecting the individual rights of our

citizens must spring not from pure intuition, but from a

process that is at once articulable, reasonable and reasoned.(1)

1. INTRODUCTION

   Concerned that state courts were not providing a sufficient rationale for interpreting provisions of their state constitutions differently from analogous federal provisions, the Washington Supreme Court, in State v. Gunwall, set forth six neutral criteria for determining whether constitutional cases should receive a separate and independent state-based analysis.(2) According to Justice Andersen, "[t]he difficulty with such decisions [based on the state constitution] is that they establish no principled basis for repudiating federal precedent and thus furnish little or no rational basis for counsel to predict the future course of state decisional law."(3)

   Since the court's pronouncement in Gunwall, some drawbacks have become apparent. For example, if a defendant in a criminal case improperly briefs the six criteria set forth in Gunwall, that defendant's case likely will be decided solely upon the federal constitution.(4) Furthermore, the criteria approach presumes that federal law is controlling unless the defendant can provide the court with "cogent grounds" for reaching a different result from the federal constitution.(5)

   This Comment examines the Washington Supreme Court's reliance on the Gunwall factors by reviewing state constitutional criminal cases decided between 1986 and 1996. Moreover, each justice, and the court as a whole, has been categorized as conservative or liberal based on their respective voting patterns.(6) Part II provides a background for the reader by defining the four types of methodology used in analyzing state constitutional adjudication.(7) Part III discusses the Gunwall case and the, Washington court's adoption of the criteria approach.(8) Part 11-V analyzes the court's use of state constitutional adjudication in criminal cases since Gunwall was decided.(9) This Comment concludes that Gunwall has, in fact, led to an "articulable, reasonable and reasoned' approach to state constitutional adjudication.

2. State Constitutional Adjudication Methodology

   Commentators and scholars have recognized four types of methodology for analyzing state constitutional adjudication. These are typically referred to as the primacy, interstitial, dual reliance, and lockstep approaches. Each one is discussed in more detail below.

   1. Primacy

      The primacy model of state constitutional adjudication starts with analysis of the constitutional question under state law. "The primacy approach views state constitutions as the primary sources of individual rights, with the U.S. Constitution providing a second layer of protection."(10) Where the primacy method is utilized, constitutional issues first receive a state constitutional analysis. If the state constitution does not provide the protection sought or claimed, then federal constitutional analysis is employed and the federal standard is applied.(11)

      Judicial efficiency is an attractive reason for adopting the primacy approach. "[Judicial energy is not expended on interpretations of federal constitutional provisions that are unnecessary to resolve the constitutional challenge."(12) Since state constitutional issues are decided solely and sufficiently on state constitutional law, there is no basis for United States Supreme Court review.(13) The primacy model allows state courts the opportunity to interpret their individual constitutions independent of analogous federal provisions, reflecting "the values of the state citizenry that created the state constitution."(14)

   2. Interstitial

      The interstitial mode of analysis begins with the premise that precedent under federal law is presumptively valid.(15) Under this model, the primary role of the state constitution is to supplement and `fill in the spaces' where there is no federal counterpart to a state constitutional provision or where federal law is undeveloped."(16)

      "Proponents of the interstitial approach argue that it reflects the modern role of the U.S. Constitution as the basic protector of fundamental liberties,' while allowing states the opportunity to supplement the minimum protections afforded by the U.S. Constitution."(17) The interstitial approach always begins with a discussion of federal constitutional law. Hence, the Supreme Court invariably has jurisdiction to review decisions from state courts employing this methodology if a "plain statement" is not provided.(18)

   3. Dual Reliance

      Under the dual reliance approach, a state court examines a constitutional issue under both the state and federal constitutions.(19) Some commentators consider the federal analysis in such an approach to be merely an advisory opinion.(20) However, Justice Utter, former justice of the Washington Supreme Court and the foremost proponent of the dual reliance approach, believes that the federal analysis "may be of aid to other courts with similar problems who do not have state constitutional provisions similar to [Washington's] and must rely on the appropriate federal constitution provisions and decisions."(21)

   4. Lockstep

      The fourth general methodology is the lockstep approach. Under lockstep, the state court bases its constitutional decisions solely on federal constitutional precedent; it presumes that "state constitutional provisions should be interpreted to provide exactly the same protections as their federal constitutional counterparts."(22) Therefore, in a lockstep jurisdiction, there is no separate and independent body of state constitutional law.

      Beyond these four approaches, the Washington Supreme Court places an additional burden upon "litigants raising state constitutional issues."(23) After Gunwall, litigants must brief six criteria before the court will hear their state constitutional claim.

3. State v. Gunwall

   According to Justice Utter, the Washington Supreme Court committed itself to the adoption of the dual reliance approach prior to Gunwall.(24) In State v. Coe,(25) the court evaluated whether a free speech violation occurred when a trial court held a radio station in contempt for violating a court order prohibiting the release of a tape recording played at a criminal trial.(26) The Coe court first analyzed the constitutional claim under the Washington Constitution and found that the "prior restraints against the publication or broadcast of constitutionally protected speech", violated article 1, section 5.(27) However, the court then analyzed the same issue under the First Amendment to the federal constitution and came to the same result.(28) "Having committed the court in Coe to analyzing the provisions of the state constitution first, the court needed to develop a way to require counsel to approach the meaning of the state constitutional provisions in a structured and consistent manner."(29) With this concern in mind, the Washington Supreme Court fashioned six criteria for deciding whether to apply federal constitutional law or to analyze state constitutional law to reach an independent result.

   In Gunwall, the defendant was charged with violations of the Uniform Controlled Substances Act on the basis of evidence seized during a search of her home.(30) Although the search was conducted pursuant to a warrant, the affidavit used to obtain the warrant relied on information derived from the defendant's telephone toll records and from the placement of a pen register on her telephone.(31) The defendant moved to suppress the evidence obtained in the search on the basis that the information derived from the pen register and the telephone toll records was illegally obtained.(32) The trial court denied the motion, and the defendant appealed directly to the Washington Supreme Court.(33)

   The first issue certified was: "When is it appropriate for this court to resort to independent state constitutional grounds to decide a case, rather than deferring to comparable provisions of the United States Constitution as interpreted by the United States Supreme Court?"(34) The Washington Supreme Court acknowledged that in the past it had interpreted the state constitution as providing more protection for civil liberties than the federal constitution because of the recent retrenchment of the United States Supreme Court.(35) The Washington court perceived that many states courts resorted to their state constitutions without providing a sufficient rationale when they reached a different result than the United States Supreme Court had on analogous provisions of the federal constitution.(36)

   Thus, in order to provide a "rational basis for counsel to predict the future course of state decisional law," the Washington Supreme Court fashioned the following six "nonexclusive neutral criteria"(37) for determining when Washington courts should extend "broader rights" to its citizens than those available under the federal constitution:

   1. The textual language of the State Constitution.

   2. Significant differences in the texts of parallel provisions of the federal and state constitutions.

   3. State constitutional and common law history

   4. Preexisting state law.

   5. Differences in structure between the federal and state constitutions.

   6. Matters of particular state interest or local concern.(38)

   The court applied the six criteria to the search and seizure provision of the Washington Constitution and concluded that it was appropriate "to resort to separate and independent state grounds." Interestingly, the court referred to the decisions of sister states when rendering its opinion.(39) The court noted that the Colorado Supreme Court, in People u. Sporleder,(40) held that the use of a pen register violated the Colorado Constitution because "[t]he concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed by the telephone subscriber does not alter the...