Influence of the Massachusetts Supreme Judicial Court on state high court decisionmaking 1982-1997: a study in horizontal federalism.

• Author: Blumberg, David
• Position: State Constitutional Commentary

INTRODUCTION

Horizontal federalism, a theory of constitutional interpretation, is one of the methods available to aid state high courts in analyzing questions arising under their state constitution. Horizontal federalism has been defined as "federalism in which states look to each other for guidance."(1) Law from other states is one available basis upon which a state court may rest its opinion.(2) As obvious as that sounds, the decision to look to other states is controversial. Professor Teachout characterized the way in which state courts address horizontal federalism as one of the four most important questions facing state courts in the area of state constitutional adjudication.(3) The challenge is whether one state high court should rely on other state high court interpretations of state constitutional provisions similar to its own and, if so, then how extensively should it rely on those decisions?(4) This study will attempt to answer to what extent a court seeks this sister-state guidance.

In summarizing the importance of horizontal federalism to the development of state constitutional law, Justice Stewart Pollock of New Jersey speculated that it "may be the hallmark of the rest of the century."(5) Despite its recognized importance, there is a lack of studies that take a comprehensive look at the attention given to one state high court by its sister-state courts in an effort to quantitatively and qualitatively measure the effect of that court across the country.(6) Most studies of state constitutional law focus either on one state's experience(7) or on one topic as treated by many states.(8) In contrast, this study approaches the topic from the inside-out. It attempts to gauge the importance of the Supreme Judicial Court of Massachusetts (SJC) to the rest of the nation by measuring the frequency with which the other forty-nine state high courts rely on Bay State opinions. In so doing, it presents a model for future analysis of the depth and breadth of one court's impact on state constitutional law.

Not every question can be answered by a study of this length. Instead, the purpose of this study is to hypothesize about why one state, Massachusetts, influences its sister states. This is an attempt to show the factors that may influence one court to look at state X but not state Y and what issues prompt a state court to look to its sister courts in the first place. In Part I, horizontal federalism is examined to show how it has emerged under the "new judicial federalism."(9) Part II details the methods used in studying the Massachusetts court.(10) Part III explains why Massachusetts' history makes it a logical choice for this study,(11) Part IV discusses multiple models that attempt to explain, when taken as a whole, why state high courts rely on decisions from other state high courts and which state courts are examined when a state engages in horizontal federalism.(12) The cases that cited to Massachusetts cases are listed and the results of the study are contained in the Appendix.(13)

1. HORIZONTAL FEDERALISM

   The term horizontal federalism is credited to a work written by Mary Cornelia Porter and George Alan Tarr in 1982.(14) While the term may be new, the use of decisions from sister states by state high courts is not.(15) The importance of horizontal federalism has become more clear recently, as more state courts have relied on sources other than federal precedent to resolve constitutional issues.(16) As Professor Teachout noted, "it]his sort of cross-fertilization has been a distinctive feature of the state constitutional law movement."(17) One strong indicator of its importance is that several state high courts have directed their state bar to look to decisions of other states when advocating constitutional issues before them(18) or have explicitly announced that they will consider sibling-state precedent in ruling on state constitutional issues.(19)

   Tarr and Porter have cited several explanations for horizontal federalism.(20) First, state court judges respect precedent, even that of a different jurisdiction.(21) Second, states inevitably address similar issues because state courts, even more than their federal counterparts, are integral parts of the state government policymaking system.(22) The issues that affect state government will appear inevitably in state courts. For instance, two constitutional issues, school financing systems,(23) and laws providing for disclosure of convicted sex offenders,(24) currently are sweeping through state high courts nationwide. Finally, states may share similar substantive law, statutes and constitutional provisions.(25) Under this hypothesis, a snowball effect will result from an increase in state constitutional discourse; one state court's interpretation influences subsequent decisions in other states with similar laws or constitutional provisions. Horizontal federalism has grown in importance and will continue to do so due to the volume of approaches and ideas available to serve as precedent; a diversity which has increased as more states reach results that differ from the Federal Supreme Court.(26)

   Horizontal federalism has become central to the academic debate over the emergence of state constitutions in the "new federalism."(27) Much of this debate centers around two competing notions of state constitutional independence inherent in the theory of horizontal federalism.(28) First, a state high court, engaging in an analysis of its state constitution, may construe its charter free from federal court analysis of analogous provisions contained in the Federal Constitution.(29) Second, a state high court can look to the law of other states for guidance in interpreting its own constitution.(30) It appears contradictory that a state high court freed from the analytical chains of Federal Supreme Court precedent should at the same time succumb to another state court's analysis.

   Promoters of horizontal federalism are able to sidestep this conundrum by dismissing these complaints in at least two ways. First, diversity among state and federal courts is an advantage deliberately built into the American system of government.(31) Horizontal federalism is true to the original design of American government. Second, state courts, by virtue of their position in the federalist system, share more in common with their sibling states than with the federal courts.(32) State courts "have a different focus, which is to fashion workable rules for a narrower, more specific range of people and situations."(33) They only decide what is appropriate for their state. In contrast, the federal courts are concerned with the impact of their decisions on the nation as a whole. Thus, state courts find precedent from sister states more akin to their issues and delivered from a similar position in the nation.

   Support for horizontal federalism is not unanimous. Professor Latzer has decried the blind following of horizontal federalism as one of the four myths of state constitutional law.(34) He criticizes scholars who, on one hand, encourage state courts to ignore federal constitutional analysis when answering constitutional questions, but at the same time welcome state court reliance on sister-state court decisions.(35) For Latzer, blindly adopting another court's decision is equally wrong whether the court is the Federal Supreme Court or another state high court.(36)

   The dialogue surrounding horizontal federalism has tackled the theory but not the tangible results of state constitutional adjudication. The current debate either downplays its importance or assumes its brilliance. Horizontal federalism remains a prize in the rhetorical and ideological battle of state constitutional scholarship, but it has yet to be won through thorough analysis. This study is one small step toward that goal.

2. THE STUDY

   This study determined the number of SJC cases cited by other state courts to resolve constitutional issues in their state. This was accomplished through a series of steps. First, every SJC case from September 1, 1982 through August 31, 1997 that discussed the Massachusetts Constitution or Declaration of Rights was identified. Computer searches were then conducted to determine which cases from other state courts cited to these SJC cases. These state high court opinions were examined to ensure that the court cited the Massachusetts case in an analysis of its own state constitution. This generated the first set of numbers for analysis.

   The study tabulated the total number of opinions. For instance, one case could be counted twice if the majority and a dissenting opinion both discussed a Massachusetts case. However, if one opinion cited multiple Massachusetts cases, then it was only counted once. This is consistent with an overriding theme of this study that attempts to measure the frequency with which justices look to Massachusetts cases.

   A second set of numbers was necessary in order to account for the number of times that each state high court mentioned its own state constitution. The total number of state constitutional cases was created by searching each state's cases for instances when the high court discussed their own state constitution during this study's fifteen-year period.(37)

   The study used these two sets of numbers to determine roughly the frequency with which each state high court would cite to a Massachusetts case. What this study refers to as a "state's influence ratio" is simply the number of citations to Massachusetts cases by a state high court over the total number of state constitutional cases cited by that same state high court. The ratio gives a more accurate picture of each court's reliance on Massachusetts cases. Looking solely at raw citations can be deceiving. For instance, Florida cites Massachusetts five times and South Carolina does so once. Without looking at the total number of the state constitutional decisions in either state, the Florida Supreme Court would...