Expanded rights through state law: the United States Supreme Court shows state courts the way.

• Author: Brown, Robert L.

1. INTRODUCTION

   Three important cases decided during 2002 show the Arkansas Supreme Court embracing the new judicial federalism with a commitment and panache not previously seen in Arkansas jurisprudence. In one four-month stretch, the court used the search-and-seizure provision of the Arkansas constitution as the basis for affirming the suppression of items seized during an illegal night-time search, (1) affirmed the constitutional invalidity of a pretextual arrest and the suppression of the drugs obtained incident to it, (2) and struck down the state's criminal sodomy statute on grounds that it violated both the due process and equal protection clauses of the Arkansas constitution. (3)

   Two primary factors led to this annus mirabilis in Arkansas. The first, without question, was the United States Supreme Court's express admonition in Arkansas v. Sullivan (4) that if the Arkansas Supreme Court was to expand individual rights for its citizens, it must do so under its own state law and not by means of a broader interpretation of the United States Constitution. Reversing the alternative holding in Sullivan, the Court said:

   The Arkansas Supreme Court's alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court's own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 121.5 (1975). There, we observed that the Oregon Supreme Court's statement that it could "interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court" was "not the law and surely must be inadvertent error." Id. at 719, n. 4. We reiterated in Hass that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." (5) Once the Court had spoken, the Arkansas defense bar took heed, and where in the past the Arkansas constitution had been given short shrift as the source of a remedy for governmental infringement of individual rights, now it became a very real resource for constitutional advocacy.

   The second factor behind this notable shift to the new judicial federalism was Arkansas's own common law, which in a few distinct areas had already expanded individual rights beyond federal protections. For example, heightened requirements for night-time searches and a skepticism toward pretextual arrests have deep roots in Arkansas law. (6) With the Supreme Court's direction in Arkansas v. Sullivan and the state's tradition of protecting individual rights in certain narrowly defined areas behind it, the Arkansas Supreme Court was primed and ready to expand individual rights on the basis of its own state constitution.

   After providing some background about the new judicial federalism, the balance of this article will use an analysis of Griffin, Sullivan, and Jegley to show how the Arkansas Supreme Court, has, at the urging of the United States Supreme Court, begun to apply that strain of jurisprudence to the cases before it.

2. THE NEW JUDICIAL FEDERALISM

   1. Origins

      The new judicial federalism came into vogue in the 1970s, with Justice William J. Brennan sounding the clarion call. (7) A primary focal point of this new federalism has been state courts' reliance on state constitutions to provide rights no longer available under the Supreme Court's increasingly restrictive interpretation of the United States Constitution. (8) Many states began in the 1980s and 1990s to afford additional protections to their citizens, (9) and it is beyond dispute today that state supreme courts have the authority to apply their own state law, even if it diverges from federal precedent. In doing so, state supreme courts have forthrightly asserted that the United States Constitution provides the minimum national standard for individual rights, and that the state courts are free to extend additional protections under their own constitutions. The United States Supreme Court has agreed. (10)

   2. Why Use The State Constitution?

      Two important questions confront a state supreme court as it considers diverging from federal precedent. The first is why a state court should interpret its constitution differently from the United States Constitution. The second is how such a divergence should be accomplished. (11)

      One justification for a break with the federal analysis is result-oriented: State courts should use their state constitutions to avoid federal precedent that denies rights that the state courts believe should be protected. Justice Brennan's seminal recognition of the forces that underlie the new federalism is perhaps the best-known statement of this approach. (12) Not surprisingly, Justice Brennan's view has become associated with a liberal judicial agenda, both in praise and in criticism. (13)

      A second justification for state constitutionalism has been called process-based, because it is rooted in the idea that state courts are duty bound to look to state constitutions as part of the dual-sovereignty relationship between the federal government and the several states. Many state constitutions were in existence before the creation of the United States Constitution, which suggests to those like former Oregon Supreme Court Justice Hans Linde, an influential figure in the new judicial federalism, (14) that state courts have a duty to undertake this separate analysis. (15)

      [A] state court should approach its state constitution as a truly independent document ... it should not only refrain from following "lockstep" in the path of trod by the United States Supreme Court, but ... it need not and should not insist upon a showing of some special "justification" for departing from that path.... State constitutional law is not common law to be molded into a homogeneous body of principles. (16) When the United States Supreme Court reminded the Arkansas Supreme Court in 2001 of its independent authority to construe its own constitution, the Arkansas court responded with Griffin, Sullivan, and Picado. Together, these cases illustrate the ways in which its departure from federal precedent can be seen as a matter of duty under a process-based theory.

   3. How To Use The State Constitution

      Various state supreme courts have taken different approaches in their usage of their state constitutions. The initial question is at what point should state supreme courts examine their own constitutions in their decision-making--before claims are analyzed under the United States Constitution or afterward? The primary advocate for examining state constitutions first is Justice Linde, who concluded that state supreme courts have a judicial duty to do so. (17)

      The second approach in state constitutional analysis comes from the opposite direction: Claims are analyzed under the United States Constitution first, and only if the claimed right fails there is the state constitution considered. (18) This method, followed by the New Mexico Supreme Court, (19) seeks a balance between following federal precedent slavishly and diverging too much from it, and, according to that court, may be the best way to assure that the state does not deviate too radically from federal precedent and create law that lacks cohesiveness with the national constitution. (20) Justice David Souter, while sitting on the New Hampshire Supreme Court, characterized the balance sought by this second method with characteristic aplomb:

      It is the need of every appellate court for the participation of the bar in the process of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State roles a mere row of shadows; if we place too little, we will render State practice incoherent. (21) Irrespective of when the state constitution is examined, the next critical question is to determine in what circumstances federal precedent should be discarded in favor of state law. Many states have identified specific criteria, (22) commonly articulating a desire for the state court to maintain its legitimacy. (23) The Washington Supreme Court's announced criteria--all drawn from existing case law and commentary--are illustrative: (1) the textual language of the state constitution; (2) differences in the texts of parallel provisions in the state and federal constitutions; (3) constitutional history; (4) preexisting state law; (5) structural differences between the state and federal constitutions; and (6) matters of particular state or local concern. (24) The court explained that these criteria were designed to ensure that when the court deviates from federal precedent, its decision "will be made for well founded legal reasons and not by merely substituting our notion of justice for that of duly elected legislative bodies or the United States Supreme Court." (25) Applying them in the case before it, the Gunwall court concluded that police officers violated a defendant's right to privacy under the Washington constitution when they obtained her long-distance telephone records and placed a pen register on her telephone line without a warrant. (26)

      New Jersey, another state with a well-developed state constitutional jurisprudence, also uses the criteria approach. Justice Handler first outlined that state's seven criteria when concurring in State v. Hunt, (27) listing them as (1) the textual language of the state constitution, (2) legislative history of the state constitution, (3) preexisting state law, (4) structural differences...