A power of judicial ideas: a tribute to Justice Hans Linde.

• Author: McIntosh, Wayne V.
• Position: Retired Oregon Supreme Court Justice

Several years ago, we embarked on a study of judges as idea entrepreneurs--as individuals who assume the risks of aggressively pursuing concepts of particular interest in the legal marketplace.(1) In order to explore this premise in depth, we limited ourselves to a mere four case studies out of a universe of thousands of jurists. In the end, we selected two United States Supreme Court Justices, Louis Brandeis for his broad privacy jurisprudence, and Sandra Day O'Connor for her more narrow pursuit of the "guarantee clause" as a potential new weapon in the states' rights arsenal. We selected as well, the late United States Circuit Judge Jerome Frank for, among other things, his marketing of a then new "right to publicity." The choices were difficult, for any of dozens (perhaps hundreds) of federal jurists could have told the tale.

So, too, it might be assumed, would our selection of a state jurist be tough. Not only is there the obvious fact that state jurists far outnumber those who have served on the federal bench, but state judges are presented with a far fuller array of subject matter and generally larger dockets. In the face of such a demanding load, a rare jurist indeed it would be who could doggedly pursue conceptual interests. Well, to make a long story very short, we found just such a judge and, thereafter, it was no contest: Justice Hans Linde was to be our state judicial entrepreneur.

As a Justice on Oregon's highest court, Linde quickly became a bona fide star, acknowledged in the legal community as one of the nation's foremost authorities on constitutional law. His focus, though, was not on the United States Constitution. Instead, Linde's gaze was fixed on state constitutions, and his mission was to reinvigorate interest in and to reanimate development of law under the state charters, particularly in the realm of individual rights and liberties. Lest we not leave the impression that Justice Linde was a unidimensional legal figure, it is clear that he had other fish to fry as well. Although far less well recognized outside the parochial Oregon legal establishment, Linde worked with indefatigable zeal to alter the style and substance of his court's contributions to the common law of torts.

STATE CONSTITUTIONS FIRST, PLEASE

As more seasoned legal observers will remember, by the mid-twentieth century, state constitutions, even state bills of rights, had been converted into legal swamplands (necessary perhaps, but no reason to visit them) in the wake of the Warren Court's due process revolution. Indeed, by the 1970s lawyers and judges alike saw the federal constitution as the first line of defense in cases where individual rights and liberties were at issue. Although their language was similar, sometimes identical, state constitutions offered almost no comfort in that environment because almost nobody thought to invoke them. Occasionally someone might throw a state provision into the mix, but judicial opinions replete with lengthy discussions of Fourteenth Amendment case law invariably would respond with only a brief mention of parallel state law, accompanied by little or no analysis. The law schools, too, were captivated by the Supreme Court's sweeping decisions and, in effect, nationalized the civil rights and liberties curriculum. Uninvoked and unstudied, state constitutional law was all but forgotten.

Linde set out to change things, to reinvert that part of the legal world to what he believed to be its proper and logical order. In a 1970 Oregon Law Review article, Professor Linde sketched his image of law's Holy Grail--state law primacy--and challenged his audience to join the quest. He also denounced the common practice of reading state Bill of Rights provisions to be identical to those found in the federal constitution, thus having their meaning determined by United States Supreme Court precedent. As a result, he was critical of the Oregon Supreme Court for relegating the state's constitution to obscurity. In his view, state judges should always go to state law first for guidance in rendering decisions; federal law should always be a secondary consideration. When a constitutional question is presented, the judge should look principally to the state charter. If the issue can be resolved under the state constitution, then there is no federal question--period.

[W]here a state law unavoidably faces a serious claim of constitutional right, the basis for that claim in the state constitution should be...