The Green Mountain boys still love their freedom: criminal jurisprudence of the Vermont Supreme Court.

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

1. Introduction

   This Comment is a decision making profile of the Vermont Supreme Court in state constitutional criminal cases. This Comment considers constitutional criminal decisions rendered over the past. decade which reveal the attitude of the Vermont Supreme Court relative to the development of its independent body of state constitutional law. The development of any body of law is never without its critics, and the dissents reviewed in this Comment evidence that the recent direction of the Vermont court has not gone unchallenged.

   In order for the reader to understand the principles and philosophies discussed in this Comment, it is helpful to define the basic tenets of state constitutional adjudication and legal realism. Therefore, the first section of this Comment provides an overview of state constitutional adjudication and the different approaches available to a state court seeking to map a new course. Further, the first section also briefly discusses the concept of legal realism and its application to this study. In an effort to determine the different, attitudes and proclivities of the justices, a series of tables have been prepared to demonstrate their individual voting trends.(1)

   The second section of this Comment examines the voting patterns of the Vermont Supreme Court in state constitutional criminal matters. This Comment will demonstrate that the Vermont Supreme Court follows a "due process model"(2) of criminal adjudication when evaluating the actions of state law enforcement officers. In keeping with this approach, the Vermont Supreme Court closely scrutinizes cases involving the state against the presumably innocent citizen, i.e., situations involving confessions, interrogations, and searches and seizures.(3) However, once the citizen has been arrested and shuffled into the courtroom, the Vermont court shifts from a due process approach to a crime control orientation approach.(4) Finally the Vermont high court's concern for its citizens' rights is reduced significantly once a valid conviction has been obtained.(5)

2. The Basic Principles

   1. State Constitutional Adjudication

      During the past several decades, many critics have claimed, correctly or incorrectly, that the United States Supreme Court has been following a policy of "retrenchment" as a reaction to the Warren Court's liberal expansion of individual freedoms.(6) These criticisms have not come only from academics; indeed, members of the Supreme Court themselves have voiced their disapproval of the Court's "retrenchment."(7) In one dissent, Justice Brennan encouraged the states to use their inherent power to impose more stringent standards than the Supreme Court.(8) Even when Brennan was not wearing a judicial robe, he encouraged the growth of state constitutional protections, which he viewed as "an important and highly significant development for our constitutional jurisprudence and for our concept of federalism."(9)

      It is axiomatic that a state court is free to grant greater protections and liberties under its constitution than those provided by the federal constitution. However, state courts must assure that the minimum (often referred to as the "floor" protections and liberties guaranteed under the federal constitution are upheld in the state courts.(10) As one commentator eloquently stated:

      [T]hose who drafted [the federal constitution] understood that

      an enduring and viable ... system rested ... on the pillars

      of the state constitutions.... Maintaining the state

      constitutions in good repair, and understanding their postulates, are

      important in carrying forward a system of government that

      has served us well for two centuries and gives hope and

      promise for the next century and beyond.(11)

      Indeed, there was a time in this nation's history when the state courts were the only available means to guarantee protection of individual liberties from violations by state officials and actors.(12) Nevertheless, state courts had, by and large, come to overlook the protections guaranteed by their own constitutions as a result of the Supreme Court's activism under the federal constitution, especially during the Warren era.(13)

      The United States Supreme Court has set forth standards under which a state court can assure that its decisions will be unreviewable. In Michigan v. Long,(14) the Court indicated that it would only review cases in which the state court had decided an issue of federal law, or cases in which it was unclear whether the decision was based upon a federal or state ground.(15) The Court then enunciated a test which would effectively guarantee that the state court decision would not be reviewed by the nation's highest court: "If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision."(16)

      Prior to Long, there was no clear standard under which the Supreme Court would review state court decisions involving, at least in part, state law.(17) Accordingly, in Long, the Court attempted to articulate a clear standard under which state courts could freely use their own jurisprudence to develop state constitutional law.(18)

      The states have developed several methodologies in their efforts to formulate state constitutional law. Generally, four main approaches to such decisionmaking have emerged: (1) the lockstep approach;(19) (2) the dual reliance approach; (3) the primacy approach; and (4) the supplemental or interstitial approach.(20)

      First, the lockstep approach is not really an approach to independent state constitutional adjudication at all; the state court merely follows the dictates of the United States Supreme Court.(21) In other words, the state court never actually considers its own constitution. Instead, it merely declares that its state constitution grants the same protections and liberties as those granted under the federal constitution.

      Second, the dual reliance approach is a method in which both state and federal law are analyzed or relied upon in the state court's opinion; however, the discussion of either state or federal law is mere dicta and not determinative.(22) The problem with this method is that some courts, either inadvertently or deliberately, fail to make it clear that the decision is based upon independent state grounds,(23) thereby leaving the decision open to federal review under the "plain statement" test of Michigan v. Long.(24) If the dual reliance method is properly utilized, i.e., if the state court unambiguously bases its decision on independent and adequate state grounds, then this form of decisionmaking allows the state courts to contribute, albeit through dicta, to the discussion and evolution of federal -- as well as their own state's -- constitutional law.(25)

      Third, the primacy approach simply means that the state court considers its own state constitutional protections and liberties first, without regard to federal law.(26) Through this method, federal law assumes a secondary position which may never need to be addressed. However, if a state court finds that its constitution does not provide a particular right or protection, it will then focus upon the federal constitution to determine whether the right or protection sought is found there.

      Finally, under the supplemental or interstitial approach, the state court first determines whether the federal constitution protects the questioned right; if the federal constitution fails to provide protection, then the state court turns to its own constitution where it may find a "supplemental" -- i.e., additional protection.(27) Thus, the United States Supreme Court sets the floor, and the state court of last resort determines whether supplemental protection is afforded as a matter of state law. Many commentators have suggested that greater protection under a state constitution is appropriate where the state constitution has "textual differences, legislative history supporting a broader reading of the state provision, state law predating United States Supreme Court decisions, differences between federal and state judicial structures, subject matter of particular state or local interest, state traditions, and public attitudes in the state."(28) Such distinctions are not necessary for a state court to find that its own constitution affords more protection. However, many jurists believe that it would be illegitimate to find additional protections without some distinction to differentiate the state's constitution from its federal counterpart.(29)

      Thus, state constitutional adjudication can take many forms and styles. It is not unusual for a state court to use several of these approaches in its decisionmaking process; the Vermont Supreme Court is no exception. This Comment demonstrates that Vermont's high court has not adopted any one of these approaches as its sole tool for state constitutional decisionmaking.

   2. Legal-Realism

      Chief Justice John Marshall once wrote that "[j]udicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing."(30) This phrase epitomizes the belief that courts should not legislate; instead, their role is merely to find or interpret the law. When a court moves in an unsatisfactory direction, critics undoubtedly will label it "activist," which suggests that it is illegitimately making law.(31)

      In the realm of state constitutional adjudication, a state court is open to the criticism of judicial activism.(32) Again, this is one of the reasons why some judges will seek to uncover some special factor to justify a departure from federal precedent, even though reliance upon such distinguishing criteria can hinder the state's development of its constitutional law.(33) However, the mere reliance on some special factors does not change the fact that state courts are moving in a direction which grants their...