A case of good intentions: the Vermont Supreme Court and state constitutional protection of civil rights and liberties.

• Author: Aho, Jan J.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

The mere mention of Vermont conjures up images of a rocky and rugged state inhabited by people no less rugged and independent. In light of these character traits, both of the state and its people, it should come as no surprise that the state's highest court has a relatively extensive history of state constitutional adjudication.(1) The court has long recognized its duty to the citizens of Vermont to interpret the state constitution independently from the federal constitution.(2) While most of this state's constitutional adjudication concerns "criminal rights,"(3) the court has also had occasion to address civil rights and liberties under the Vermont Constitution. It is upon this latter body of case law that this Comment will focus.

Initially, it would appear unnecessary to note that the United States is exactly that -- a group of sovereign states which have united and jointly consented to be governed, in limited areas, by a central government.(4) An understanding of this concept is fundamental to an understanding of state constitutional adjudication. The United States Constitution governs the relationship between the federal government and the people of each of the sovereign states.(5) Inherent in the idea that one set of "rules" can effectively and simultaneously regulate diverse and independent states is the acknowledgment that the "rules" should be applied so as to be acceptable, within certain fundamental limits, to all of the sovereign states.(6) As such, the rules are minimalist, in the sense that they authorize only the minimal level of federal intrusion into state affairs necessary to protect the basic rights and liberties essential to American notions of democratic government.(7) Thus, the federal constitution and its Bill of Rights provide only a lowest common denominator of protection to basic rights and liberties against encroachment by the federal government.(8)

While charting a minimalist course for the federal government and constitution, the Framers conversely envisioned the states, through their own state constitutions, as the primary protectors of individual rights and liberties.(9) Unfortunately, state constitutional law has, until fairly recently, been derided as either an exercise in judicial activism(10) or as the product of result-oriented judicial decision-making.(11) The reality of state constitutional adjudication is that state courts which vigorously pursue the development of a body of state constitutional case law, thereby furthering the Framer's federalist ideals, are far from the liberal reactionaries their critics might claim it to be.

Thus, an understanding of the methods and approaches utilized by various state courts, as well as the understanding of those courts about state constitutional adjudication is vitally important for advancing the role of state constitutions as the primary protectors of liberty. It is to this end that this Comment is directed.

To provide a preliminary framework for discussion, Part I of this Comment will briefly address the rationale, importance, and the methods of state constitutional adjudication employed by state courts. Part II will then analyze cases from the Vermont Supreme Court which construe Vermont's constitutional guarantees of equal protection, freedom of religion, and freedom of speech. This analysis will focus on the method and manner of constitutional adjudication employed by the court and specifically on the court's understanding of the relation between state constitutional adjudication and its federal counterpart. Based on these cases, Part III will then analyze the court's approach to constitutional adjudication under the Vermont Constitution.

1. The Judicial Framework for State Constitutional Adjudication in Vermont

   1. Methods of Constitutional Adjudication: State Claims v. Federal Claims

      Because litigants in state courts often claim that a state action violates both the federal and state constitutions, state courts are often presented with several alternative methods for addressing constitutional issues. Some courts focus first on the federal constitution and only address the state constitutional claim if the federal constitution is not dispositive of the issue.(12) This approach has been termed the "supplemental" or "interstitial" approach.(13) Other courts address both the federal and state constitutional claims, sometimes without differentiating between the two.(14) This has been termed the "dual reliance" approach.(15)

      As a result of the United States Supreme Court's decision in Michigan v. Long,(16) both the supplemental and dual reliance approaches are fraught with judicial risk. In Long, the Court held that a state constitutional decision was reviewable unless it was clear that the state court did not rely on federal constitutional case law to decide the case.(17) In the parlance of the Long Court, such a decision, lacking a "plain statement" which declared an "independent and adequate" state constitutional, basis, was subject to federal review.(18) Thus, state courts which, interweave federal and state constitutional adjudication risk being reviewed and overturned by the federal Supreme Court.

      Still other state courts begin their inquiry by first analyzing the constitutional claim under state law, and resort to federal constitutional analysis only when they find no violation of the state constitution. Such a finding still requires the court to consider whether the state action is permissible under federal law.(19) This has been termed the "primacy" approach.(20)

      The Vermont Supreme Court seems to employ the "dual reliance" approach when confronted with state and federal constitutional claims.(21) The court's usual modus operandi is to first address the federal constitutional claim and then turn to the claim under the state constitution.(22) A summary of the approaches utilized by the court when deciding freedom of speech cases, freedom of religion cases and equal protection cases since 1991, where both state and federal claims were raised, is depicted in the adjacent graph.(23) As reflected in the graph, the Vermont Supreme Court relies primarily upon the federal constitution, by utilizing either the supplemental or dual reliance approaches, when deciding civil rights claims, placing only secondary importance on state constitutional guarantees. While the court's interpretation of the federal constitution is guided by precedent from the United States Supreme Court, its interpretation of the state constitution is dependent on an understanding of its own role, as well as the role of the state constitution, in protecting the rights and liberties of its citizens.(24)

   2. The Approaches to Constitutional Adjudication Under the Vermont Constitution: State v. Jewett and Its Suggestions

      The 1985 decision in State v. Jewett(25) is seminal to understanding Vermont constitutional adjudication. While the case presented a stop and arrest question under the Vermont Constitution, the court never addressed the substantive legal issue.(26) Instead, after concluding that "neither party has presented any substantive analysis or argument on [the state constitutional] issue,"(27) the court ordered the parties to "file supplemental briefs addressing that issue."(28) The court then used the occasion to provide guidance to the bar when raising state constitutional issues in the courts of Vermont.

      The Vermont Supreme Court first discussed the historical importance of state constitutional adjudication and its renewed importance in protecting individual liberties.(29) The court then explicitly suggested four possible approaches to state constitutional arguments:(30) (1) the historical approach, where the legislative, political, and social history of the relevant constitutional provision is examined;(31) (2) the textual approach, where any textual differences between state and federal constitutional provisions are compared;(32) (3) the "sibling state approach," where the results of similar constitutional inquiries undertaken by nearby states are considered;(33) and (4) the "economic and sociological materials" approach, where the use of statistical studies which may support a given constitutional point are considered.(34)

      By specifically providing a defined approach to state constitutional adjudication and supplying its appropriate parameters, the Vermont court seemed to indicate that it will decide state constitutional issues by objectively considering the various factors outlined in Jewett. The extent to which the court actually uses these criteria in deciding civil liberties claims as a matter of state constitutional law is important to attorneys arguing such cases before the court. The next section examines case law construing various civil liberties under the Vermont Constitution. This discussion provides interesting insight into the court's adherence to the defined method of state constitutional adjudication suggested more than a decade ago in Jewett, while also illustrating the current court's methodology and theory of state constitutional adjudication.

      Il. Judicial Construction of the Vermont Constitution

   1. Freedom of Religion

      That all persons have a natural and unalienable right, to

      worship Almighty God, according to the dictates of their own

      consciences and understandings, ... no authority can, or

      ought to be vested in, or assumed by, any power whatever,

      that shall in any case interfere with, or in any manner control

      the rights of conscience, in the free exercise of religious

      worship.(35)

      The current members of the Vermont court first addressed a religious liberty claim under the state constitution in 1991 in State v. Emery.(36) In Emery, the appellant claimed that a condition of his probation violated his right to religious freedom under both the United States and Vermont Constitutions.(37) In holding that the condition did not violate the appellant's right to free exercise of religion, the court based its constitutional holding...