The New Jersey Supreme Court in the 1990s: independence is only skin deep.

• Author: Folster, Karen L.
• Position: High Court Studies

1. INTRODUCTION

   The prevalent view of American constitutional law and the American judicial system largely overlooks the existence of fifty state high courts and fifty state constitutions. This commonly-held notion, believed by lawyers and lay people alike, maintains that the United States Constitution is the primary source of individual rights, presupposing that the United States Supreme Court is the final arbiter of constitutional rights and that the decisions which come from the Court are the law of the land, binding on all. It ignores the reality that the United States Supreme Court's interpretation of the Federal Constitution sets only the floor for individual rights, establishing the minimum allowable amount of protection of these rights, while state courts and state constitutions are free to be more protective.(1) This prevalent notion ignores the fact that a state high court's decision on an issue of purely state law is the final say on that issue, unreviewable by the United States Supreme Court.(2)

   While it may be understandable that society in general places such an importance on federal constitutional law, it is somewhat surprising to see the same priority given to federal law in decisions of state high courts. Only recently have state high courts begun to re-examine their own state constitutions.(3) Until the retirement of Chief Justice Earl Warren in 1969, the United States Supreme Court took an active role in protecting individual rights, adopting an expansive view of federal constitutional rights in order to provide protections where the state courts were failing to protect individual rights under state constitutions.(4) As the civil rights and liberties movement declined, and the Court was filled with more conservative Nixon, and then Reagan, appointees, the Supreme Court returned to the practice of interpreting the Federal Constitution in such a way as to define the minimum amount of protection, leaving it to the states to determine the amount of protection they deemed appropriate under the state constitution.(5)

   Adjusting to this new role of independent state constitutional adjudication, states have adopted different approaches to analyzing state constitutional issues. Some have adopted a "dual reliance" or "dual sovereignty" approach, whereby both the state and federal constitutions are relied upon to determine a constitutional issue.(6) While this approach is beneficial in that it ensures some analysis of the state constitution, it also "creates a body of unreviewable interpretations of the federal constitution."(7)

   Other courts take a primacy approach, looking first to the state constitution, and only turning to the Federal Constitution if the alleged infringement is permissible under the state constitution.(8) This approach is the most independent approach, "consistent with the proposition that state constitutions are the basic charters of individual liberties."(9) This approach also precludes review by the U.S. Supreme Court if the issue can be decided solely on state constitutional grounds.(10)

   Many courts prefer a supplemental approach, however.(11) In this model of state constitutional adjudication, the state court evaluates an issue under the Federal Constitution first.(12) If the alleged infringement violates the Federal Constitution, the examination ends.(13) If it does not, then the challenged action is further evaluated under the state constitution to determine if a greater degree of protection exists under the state constitution.(14) While this affords less independence to the state constitution, it may be more "consistent with the roles of state and federal constitutional law as those roles have evolved in this century."(15)

   This High Court Study will examine the New Jersey Supreme Court and the approach it has taken in resolving some of the issues which have been at the forefront of American society during the past decade. Part II will look at the death penalty,(16) Part III will examine the Megan's Law decisions,(17) and Part IV will discuss cases involving the rights of anti-abortion protesters.(18) Part V will touch upon additional issues of recent importance, including the constitutionality of hate crime legislation, mandatory HIV testing of sex offenders, and the constitutionality of random employee drug testing.(19) Part VI will conclude that New Jersey often facially asserts its state constitutional independence but then fails to actually engage in independent analysis and adjudication.(20) Applying a supplemental approach to state constitutional issues, the New Jersey Supreme Court relegates state law to a secondary position and often applies federal standards to state constitutional issues.

2. DEATH PENALTY

   The death penalty, a controversial topic which has divided our society for decades, has been a central issue in the 1990s as well.(21) Since a state high court can be the ultimate arbiter of the constitutionality or unconstitutionality of a given state's death penalty statute,(22) the high court has a great deal of influence in this area. Since the United States Supreme Court ruled that the death penalty is not per se unconstitutional,(23) it has been for the individual states to decide whether their state constitution provides greater protection such that the death penalty would violate their own constitution. In this regard, a state court may take the easy way out, adopting a lock-step approach,(24) holding that if the Federal Constitution is not violated then neither is the state constitution. On the other end of the spectrum, the state court could look only to its state constitution and determine that, independent of the Federal Constitution, the state constitution prohibits the death penalty.(25)

   An examination of the death penalty cases decided by the New Jersey Supreme Court reveals that, although the court screams independence, the actual analyses give little weight to the independence of the New Jersey Constitution.(26) New Jersey adopted a death penalty act in 1982.(27) The Act as a whole was challenged and upheld in 1987, and several challenges have since been made to specific provisions and to the constitutionality of its application.(28) An analysis of these cases provides some insight to state constitutional adjudication in New Jersey.

   1. Constitutionality of the Death Penalty Per Se

      The first challenge to the constitutionality of New Jersey's death penalty act ("Act") was in State v. Ramseur.(29) The court in this case was faced with many issues, including claims that the death penalty in general violated the federal and New Jersey constitutions and that New Jersey's death penalty statute in particular violated both the federal and state constitutions.(30)

      In its decision, the court first dealt with the constitutionality of the death penalty itself.(31) The court began by noting its "agreement that the testing of a death penalty law by both federal and state constitutional standards is appropriate ... [since] capital punishment is a matter of particular state interest or local concern and does not require a uniform national policy."(32) The court further noted that some courts have even held death penalty statutes unconstitutional under their own state constitutions, and that state constitutional analysis was "particularly appropriate in view of the `[c]onsiderations of federalism' that have constrained the United States Supreme Court in this area."(33) In going to such lengths to justify the use of state constitutional analysis in this case, the New Jersey Supreme Court seemed to indicate that it was only the uniqueness or the special concerns involved in capital punishment cases that allowed the court to employ an independent analysis of the state constitution: the state constitutional analysis was "appropriate" because capital punishment is a matter of "local concern."(34) This implies that if an issue is not one of local concern, then state constitutional analysis is not appropriate. In truth, however, states are always free, and indeed cannot escape the task of determining--implicitly, if not explicitly--the protections afforded by their own constitutions, irrespective of the Federal Constitution, whenever a state constitutional challenge has been raised.(35)

      After so vehemently expressing the need for and the appropriateness of a state constitutional analysis in this case, the court ultimately concluded "that both Constitutions produce the same results when applied to these issues."(36) Still proclaiming independence, the court declared that its frequent reliance throughout the opinion on Gregg v. Georgia,(37) a death penalty opinion of the United States Supreme Court, was merely an indication of their agreement with the reasoning in that case, although they were aware that they were "not obliged to adhere to the reasoning or the results of the Supreme Court's federal constitutional decisions."(38) While this is certainly true, a closer look at the analysis of the court reveals much less independence from the Supreme Court than the court was insisting it had employed.(39)

      First, the court summarily dismissed the defendant's claim that capital punishment violates the Eight Amendment's protection against cruel and unusual punishment, as the Supreme Court had already held that it does not.(40) The court then turned to the question of whether the cruel and unusual punishment clause of the New Jersey Constitution prohibits capital punishment.(41) Supported by what was supposed to be an independent analysis under the state constitution, the court stated that there is a three-part test to determine if a punishment is unconstitutionally cruel and unusual, citing a U.S. Supreme Court case which promulgated this test.(42)

      Turning to the first prong of this test, the court addressed the question of whether the punishment conformed with a "contemporary standard of decency."(43) It was first observed in this regard that there is "nothing in...