Justice Rabinowitz and Personal Freedom: Evolving a Constitutional Framework

CitationVol. 15
Publication year1998

§ 15 Alaska L. Rev. 1. JUSTICE RABINOWITZ AND PERSONAL FREEDOM: EVOLVING A CONSTITUTIONAL FRAMEWORK

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 1


JUSTICE RABINOWITZ AND PERSONAL FREEDOM: EVOLVING A CONSTITUTIONAL FRAMEWORK


Susan Orlansky and Jeffrey M. Feldman [*] [**]


I. INTRODUCTION

II. BACKGROUND: INDEPENDENT ANALYSIS OF THE STATE CONSTITUTION

III. BREESE V. SMITH: THE FIRST ALASKA SUPREME COURT DECISION ON FREE EXPRESSION

IV. RAVIN V. STATE: THE FIRST DECISION CONSTRUING THE ALASKA CONSTITUTION'S RIGHT OF PRIVACY CLAUSE

V. PRIVACY AND FREEDOM OF EXPRESSION CASES

VI. FAMILY LAW CASES

VII. CRIMINAL CASES

VIII. CONCLUSION

FOOTNOTES

[*pg 2]

I. INTRODUCTION

Alaska has a longstanding tradition of respect for individuality. Many of the early settlers and those who traveled north to explore for gold were on the run from various forms of trouble, misconduct, and misfortune. [1] Others simply found the fabric of life in the developed cities and communities of nineteenth century America too constricting, and sought refuge at the edge of the frontier. [2] The community values of territorial Alaska evolved to reflect a high level of tolerance for personal idiosyncrasy, unconventional thought and lifestyle, and respect for personal privacy, later to be known as the "right to be left alone." [3]

Early decisions by territorial judges reflected the value Alaskans place on individual liberty. [4] But the territorial cases were few and their legal analyses were controlled by legal precedent developed by "outside" federal judges, who were influenced and guided by a different culture. [5] After Alaska achieved statehood in 1959, the burden of melding traditional Alaskan values of personal freedom into a theory of constitutional law fell to the newly created state judicial system. In the ensuing four decades, the Alaska Supreme Court has played an important role in fostering tolerance both for individual freedom of expression and the individual right to be left alone. The court has developed a body of law that provides a strong foundation for constitutional protection of these traditional Alaskan values.

As a member of the Alaska Supreme Court for thirty-one years, [6] Justice Jay Rabinowitz participated in dozens of decisions defining the contours of individual freedom in this state. Two opinions he authored early in his tenure form the foundation for [*pg 3] much of the state's jurisprudence on free expression and privacy. [7] These seminal decisions had significant influence far beyond the expected realm of civil liberties' decisions. This Article examines Justice Rabinowitz's key decisions concerning individual rights and some of the ways these decisions have shaped the case law in diverse areas such as students' rights, election law, child custody and divorce decisions, and the criminal law. Part II of this Article provides the background to the Alaska Supreme Court's protection of personal freedom. Parts III and IV discuss the two cases by Justice Rabinowitz that have shaped protection for free expression and privacy rights in Alaska. Part V elaborates on Justice Rabinowitz's impact on the law of privacy and freedom of expression. Parts VI and VII explore the themes of privacy and free expression rights developed by Justice Rabinowitz and the Alaska Supreme Court in the areas of family law and criminal law.

II. BACKGROUND: INDEPENDENT ANALYSIS OF THE STATE CONSTITUTION

The earliest decisions of the Alaska Supreme Court tended to apply federal constitutional law to interpret the parallel provisions of the state constitution. [8] Justice Rabinowitz was a relatively new member of the court in 1969 when the Alaska Supreme Court formally began developing its doctrine of independent constitutional analysis. In Roberts v. State, [9] the court for the first time explicitly stated, "We are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution." [10] The court [*pg 4] gave fuller expression to its right and obligation to interpret the state constitution independently in Glasgow v. State, [11] Baker v. City of Fairbanks, [12] and State v. Browder. [13]

The court's decisions in Roberts, Glasgow, Baker, and Browder do not reveal explicitly why the court was moved to embark on a theory of independent constitutional analysis at that particular time, but it is likely that the court's direction was responsive to contemporaneous changes in the U.S. Supreme Court. Roberts, Glasgow, Baker, and Browder all were decided between 1968 and 1972. During those years, the composition, balance, and judicial philosophy of the U.S. Supreme Court changed dramatically with the appointment by President Richard Nixon of four conservative justices. [14]

As the reconstituted U.S. Supreme Court embarked on dismantling the work of the Warren court, [15] the Alaska Supreme [*pg 5] Court was left to act independently in its efforts to protect and further develop the law of individual freedom. [16] The court not only accepted this challenge, it embraced it. Ultimately, the success of the Alaska Supreme Court's efforts was the product of three intersecting factors: the philosophical foundation of the strong Alaskan tradition of respect for individual freedom; the explicit acknowledgment of a right to privacy incorporated in the Alaska Constitution [17] ; and the leadership provided by Justice Rabinowitz. [18]

III. BREESE V. SMITH: THE FIRST ALASKA SUPREME COURT DECISION ON FREE EXPRESSION

By 1972, the Alaska Supreme Court's philosophical independence from the U.S. Supreme Court was well established, but untested regarding the state's Article I, section 1 constitutional guarantee of individual liberty in the realm of free expression. [19] In Breese v. Smith, [20] Justice Rabinowitz authored the first Alaska Supreme Court opinion on this topic.

Michael Breese was a seventh grade student at a public junior [*pg 6] high school in Fairbanks, Alaska. Michael's hair violated a school regulation, which required that male students' hair not be over the ears, eyes, or collar. The principal directed Michael to cut his hair, and when, supported by his father, Michael refused to get a haircut, the school district expelled him for willful disobedience of the hair regulation. [21] The Breeses sought injunctive relief, contending that the regulation was unconstitutional. [22] The superior court upheld the regulation as "reasonable." [23] The Alaska Supreme Court reversed. [24]

In the majority opinion, joined by three other members of the court, Justice Rabinowitz surveyed case law from state and federal jurisdictions, noting that the courts had taken several different approaches and had reached conflicting conclusions concerning the validity of school regulations regarding hair. [25] In the absence of uniformity, Justice Rabinowitz determined that the question of whether Michael Breese had a right to wear his hair as he chose and whether the school's hair-length regulation was valid would be decided strictly under the Alaska Constitution. [26]

Justice Rabinowitz began with the "established premise that children are possessed of fundamental rights under the Alaska [C]onstitution." [27] He found that public school students in Alaska have a liberty interest, protected by article I, section 1 of the state constitution, to wear their hair in accordance with their personal tastes. [28] He recognized that the right of individual liberty that is often examined as a right of free expression is closely tied to the right of privacy, or the right to be left alone. [29] Justice Rabinowitz's opinion in Breese explains that[*pg 7]

[t]he United States of America, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles. The spectre of governmental control of the physical appearances of private citizens, young and old, is antithetical to a free society, contrary to our notions of a government of limited powers, and repugnant to the concept of personal liberty. . . . Whatever else "liberty" may mean as used in article I, section 1 of the Alaska [C]onstitution, we hold that the term at least encompasses the fundamental personal right of students to select their own individual hair styles without governmental direction. [30]

The determination that students have a fundamental constitutional right to wear their hair in accordance with their personal tastes was not the end of the analysis for the court. As Justice Rabinowitz wrote in Breese, and repeated in later cases, "'personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.'" [31] The court thus had to decide the applicable standard and burden of proof for evaluating a regulation that infringed upon a fundamental right. The court imposed on the school district the "substantial burden" of establishing that a regulation abridging a fundamental right was justified by a "compelling governmental interest." [32] To attempt to justify the hair-length regulations, the school district advanced its interest in promoting discipline. The supreme...

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