Exceeding federal standards.

Position:Conclusion of Discussion, with footnotes, p. 1279-1311 - Chief Judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium - Discussion

Now, the Oregon Supreme Court's decisions have not been uncontroversial. Critics complain that cases like Henry and Ciancanelli and Tidyman have made Oregon a haven for strip clubs, beach shows, lingerie modeling shops, adult bookstores, adult video emporia. According to one article I recently read, Portland has far more nude bars than Los Angeles, a city with six times the population. A weekly newspaper recently dubbed Portland "Pornucopia" as a result of the supreme court's expansive reading of the state constitutional free expression guarantee. On more than one occasion, there has been initiatives--we out west have this thing called the initiative and referendum, direct democracy, and provides all sorts of work for the courts--and one of the most popular for a while was a proposed initiative to limit the state constitution guarantee for expression to the extent of protection recognized by the United States Supreme Court under the First Amendment, and no further, but today those have all failed. The state supreme court's analysis also has its critics within the legal and academic community. In particular, critics have complained that the court has ignored the historical understanding of the guarantee, which they say simply confirmed a kind of Blackstonian notion that it is unconstitutional to engage in prior restraint, that is, censorship, but after the fact, the state retains authority to regulate speech in the interest of public health, safety, and morals. To date, however, the Supreme Court has adhered to the Robertson framework, leaving Oregon's Constitution among the most protective of free expression in the nation. With that, I will close. Thank you very much for the opportunity to talk.

JUDGE GRAFFEO: We want to thank Chief Justice O'Connor for participating today. She's got a plane to catch, so we're going to say goodbye and thank you very much. Thank you Justice Landau, you know, it points out that we get some really racy topics in the state court, and we get really interesting records sometimes on these cases, [LAUGHTER] but it does point to the fact that sometimes we have to issue decisions that the populations of our states don't always understand why we do this, but our job is the protection of rights. With that, we're now going to hear from Justice Palmer from the great state of Connecticut, thank you for joining us.

JUSTICE RICHARD PALMER: My pleasure, thank you. I don't know if Bob is here, I think he stepped out with Chief Justice O'Connor, thank you. I want to thank him for the efforts he made to make this possible for me. I wanted to just respond to a point you made about the third-party doctrine. A number of years ago, we had a case that involved the federal Constitution, not the state constitution, and the issue is whether police can go into a pharmacy and simply ask for and obtain medical prescriptions, and I ended up writing the opinion. I was quite distraught that it came out the way it did. We said that under the third-party doctrine, and the federal Constitutional standard, the police could actually walk into a pharmacy, ask for these prescriptions and that was the end of it, and I think that's still the law under the federal law today under the third-party doctrine. It doesn't seem right to me, but that was the law. Now that's a situation where I think that under the state constitution, there might well have been a different result, but the criminal defendant in that case did not make a claim under the state constitution.

One other comment about the Kelo case: that emanated out of New London, Connecticut and first went to my court. I didn't write the opinion but I was on the panel and it was a very, very unpopular opinion in Connecticut and around the country, and I think most people thought that the Supreme Court would reverse what we had done. Just two sort of anecdotal points about it: one is that we were deciding the case essentially under the federal Constitution, so we were following, we were trying to predict what we thought the U.S. Supreme Court would do, and it turns out we were right, but when that Court came down with its decision, it was even more unpopular because now the whole country was bound by this decision and what we thought we had done was predict what, I think it was Justice Sandra Day O'Connor had said in some prior cases about what the eminent domain provisions actually said. It turns out that, I guess, according to the Supreme Court, anyway, we were right in terms of evaluating those decisions, but Justice O'Connor wrote a rather vehement dissent explaining how we and her colleagues on the Supreme Court had misinterpreted the opinions that she had written earlier. There's one other aspect of the case that I won't forget either. I was appointed directly to the supreme court; I'd never been a judge before. Over the years, it's always been sort of a mystery to me as to why it is the trial judges, that is the lower court judges, are so concerned about being reversed. Not all of them, but many of them, they don't like to be reversed, and I thought, one needs to have much thicker skin and that, and we're usually right, because we're last and that may be the only reason. But, trial judges and appellate court judges need to understand that from time to time we're going to disagree with them. Then along came Kelo, which is the first time that I actually had a case that I was on reviewed by a higher court and, I must say for the first time in my career, I kind of understood the anxiety that the lower court judges feel when they're being judged by a higher court, and I was relieved that the Court ruled the way it did, not just because I thought it was the right decision, following prior case law, but because I was not on a panel that was reversed, so I think that's the only case, my record is one hundred percent still [LAUGHTER],

I thought I would just take a few minutes to discuss the Connecticut Constitution in the context of what we're talking about today. Although Connecticut has had a written constitution since 1818, until roughly thirty years ago, cases involving state constitutional claims were rare, and cases involving claims of the state constitution that actually provided greater rights than the federal Constitution were even rarer still. The dearth of state constitutional litigation until that time, I think, was due to the fact that the lawyers simply did not view the state constitution as embodying rights above and beyond those protected by the federal Constitution and, the second reason is my court, I think, in that timeframe did really little or nothing to suggest otherwise. In 1977, however, and in a case called Horton v. Meskill, (27) we paraphrased a then-recent California Supreme Court case, and expressly recognized, and I quote,

In the area of fundamental civil liberties which includes all protections of the declaration of rights contained in article first of the Connecticut constitution we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law. Now, in the Meskill case, we were considering a specific state constitutional provision that grants to Connecticut citizens the right to a free public elementary and high school education, and so our conclusion that education was a fundamental right under the state constitution, in contrast to a relatively recent federal Constitutional case, was not a practically radical one, because, as I said, we had a completely different provision. In 1985, perhaps for the first time, we made it clear that our court was free and, in some instances, inclined to interpret the state constitution as affording greater rights than the federal Constitution, even when there is no express or independent state constitutional provision that may be viewed as granting that greater protection. In that case, State v. Kimbro, (28) we concluded that article first, section seven of the state constitution, although cast in terms virtually identical to the Fourth Amendment, provides greater protection than the Fourth Amendment, with respect to probable cause determinations based on information supplied to the police by unnamed informants. We explained that federal law, whether based on statute or constitutions, the Constitution establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments reporting higher levels of protection for such rights, and the Connecticut courts clearly have the power to construe the Connecticut constitution in accordance with our particular analysis of the specific right in issue. This express acknowledgment of the potential independent import of any number of state constitutional provisions prompted Connecticut lawyers to look more carefully at the state constitution as a possible source of enhanced rights and protections, and spawned significant state constitutional litigation, much of it in the area of criminal law and procedure.

Almost immediately, my court again demonstrated a willingness to recognize greater rights in the state constitution. For example, in 1988 in State v. Stoddard, (29) we concluded that although police have no federal Constitutional obligation to inform a suspect in custody of attempts by counsel to contact him or her, the suspect's prior waiver of rights may be nullified if there are police engaging in that kind of behavior. In Connecticut, the...

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