Forgotten law and judicial duty.

• Author: Hannah, Jim
• Position: Symposium: Chief Justices Discuss State Courts and State Constitutional Law in the 21st Century

1. INTRODUCTION

   It was an honor to be invited to attend the Symposium and sit on the panel for The Reemergence of State Constitutional Law and the State High Courts in the 21st Century. I enjoyed the panel discussion very much and believe that our work will result in the development of state law that will be helpful to state courts in addressing issues that the coming decades will likely thrust upon the judiciary.

   It is said that "[t]here is nothing new except what is forgotten." (1) In examining the reemergence of state law, we are exploring forgotten law. This idea of forgotten law is illustrated by an Arkansas case concerning what constitutes "an 'infamous crime' for purposes of removing an elected official from office." (2) The appellee relied on federal cases in arguing that a crime is infamous only if it is punishable by more than one year of imprisonment. (3) However, the origin of the federal rule argued by the appellee is a United States Supreme Court case (4) decided in 1885, more than ten years after adoption of the most recent Arkansas Constitution, and after an infamous crime had already been defined in Arkansas. (5) In response to the appellee's argument, the State offered earlier state law, including language from state constitutions dating to 1836. (6) This law provided that it was the nature of the crime rather than the length of imprisonment imposed that made it infamous. (7) The State prevailed. (8) Thus, while one may be predisposed by familiarity with federal law to apply it, state law may instead properly determine the question.

   The wonderment attending the occasional decision of a state high court perceived as affirming a former federal interpretation of a right, or expanding a right, also illustrates that applicable state law has been forgotten. The obligation of state courts to interpret and apply law is obvious; the perception giving rise to wonderment results from the federal courts being seen since the 1950s and 1960s as the primary legal forum for the development of several areas of the law. It must be remembered that federal courts only apply what is mandated by federal law; other law is available and applicable in state courts.

   In 1977, Justice William J. Brennan, Jr., concluded that undue state reliance on federal law arose when decisions of the United States Supreme Court during the 1960s "federalized" many rights and liberties. (9) According to Justice Brennan, this resulted in state courts failing to see any reason to consider what protections might be afforded under state law. (10) What Justice Brennan characterized as "federalized" largely finds its genesis in a determination by the United States Supreme Court that the challenges the Court faced in the 1950s and 1960s required that it apply the Fourteenth Amendment as it had not been applied before. (11) He describes this as the Court having "returned to ... fundamental promises." (12) Thus, the United States Supreme Court did then just as we are doing today--examining new legal issues in light of all the applicable law.

   Justice Brennan warned that "state courts cannot rest when they have afforded their citizens the full protections of the [F]ederal Constitution." (13) He cautioned against unthinking reliance on federal law. (14) The Arkansas Supreme Court recently stated that "w]ithout question, a slavish following of federal precedent would render this court's opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own state constitution and follow our own state law." (15) As Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court noted in 1982, the language in state constitutions is often drawn from the language in constitutions of other states rather than from the language of the Federal Constitution. (16) This necessarily means that the language in state constitutions is typically different than that found in the Federal Constitution. Different language may result in a different outcome. Further, rights granted under state constitutions may be greater than similar rights granted under the Federal Constitution, and rights may be granted in state constitutions that are entirely absent in the Federal Constitution.

   There are two tendencies apparent in state appellate decisions that give rise to concern on the issue of undue reliance on federal law. First, there is a tendency in cases concerning an exclusively state issue to defer to the analysis and decisions of the United States Supreme Court on any issue ruled upon by that Court without regard to whether that decision is correct or applicable under the circumstances. Too often, independent analysis and application of state law have been forgotten.

   Second, and a dangerous corollary to the first tendency, is the judicial inclination to ignore rights granted in state constitutions because those rights have neither been found in the Federal Constitution nor discussed by the United States Supreme Court. As noted greater rights may be found in the state constitutions than in the Federal Constitution; however, there is a certain level of judicial discomfort sometimes apparent when ideas vary from the principles laid out in federal law. Yet, law requiring variance exists. For example, the Arkansas Constitution includes a provision protecting "Individual Liberty," declaring certain "inherent and inalienable rights." (17) These include "enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing ... happiness." (18) This wording is markedly different from that found in the United States Constitution.

   Such rights set out in the Arkansas Constitution may now be more relevant than ever. We live in an age of unsurpassed technology where thermal imaging analyzes what is occurring within a home based upon the heat emanating from the exterior of its walls. (19) Computer advances now allow collection and organization of virtually limitless information on individuals, which may be kept in perpetuity. Often this can be done with very little effort, at virtually no cost, and may be available on the Internet or subject to disclosure by those who are all too often successful at breaking into supposedly secure computer systems. Where abuses occur, parties might well look to provisions in state constitutions that provide greater and more specific direction and protection.

   I believe that in this Symposium we are encouraging the search for forgotten law and the rediscovery of forgotten judicial duty; therefore, I much prefer the characterization "Reemergence of State Constitutional Law" to "New Federalism."...