Choosing a "primacy" approach: Chief Justice Christine M. Durham advocating states rights in our federalist system.

• Author: McLoughlin, Sinead
• Position: Utah Supreme Court

1. INTRODUCTION

   Women today are being appointed and elected to state high courts more frequently than ever before. (1) This is viewed, quite rightly, as an achievement for women, but it is not complete--there is still much more that must be done before true gender equality within the judiciary will have been achieved. In Chief Judge Judith Kaye's words, "this is the time ... [when women in the legal profession] will make a real impact that might serve as a model for all society as it struggles toward gender equality." (2) Judge Patricia Wald, echoing Judge Kaye's message, said:

   The formidable achievements of women lawyers over the past generation have brought us a long way on the road to career equality and recognition. We are at an interesting way station in that trip, perhaps worth a pause to think about what women want to do in and for our chosen profession. There are enough of us now--and many more coming--to make a difference. The question is, quite simply, what kind of difference. (3) Although women now account for almost a third of the nation's lawyers. (4) there remains an open and obvious gender gap in the legal profession--with men occupying most top-level positions in both the judiciary and large law firms. (5) The cracks that only recently began to appear in the "`glass ceiling' in the halls of justice" (6) spread even wider when, in 1982, Christine M. Durham became the first woman ever to sit on the Utah Supreme Court. (7) More recently, the other justices of the Utah Supreme Court elected Durham to Chief Justice, a position that will undoubtedly allow her influence over the court to expand, to the point where--at least in Utah, perhaps--the glass ceiling finally shatters. (8)

   Christine Durham, upon being sworn in on April 3, 2002, became the first woman to ever hold the position of Chief Justice of the Utah Supreme Court. (9) As obviously significant this is culturally and historically, no less important is the impact she has had, and will assuredly continue to have, on the court's jurisprudence institutionally--specifically, by speaking out in support of a primary role for state-constitutionally-based adjudication in our federalist system. This Comment focuses on this aspect of Chief Justice Christine Durham's role on the Utah Supreme Court--as an advocate of the Utah courts' looking to the Utah State Constitution as a primary source of protection for fundamental rights.

   Part I of this Comment introduces highlights of Chief Justice Durham's background and provides a brief overview of the structure and history of the Utah Supreme Court. Part II then discusses the most-recognized approaches to state-constitutionally-based legal analysis generally, and postulates that Chief Justice Durham favors an approach to constitutional analysis specifically that looks to the state constitution first. Part III supports this thesis--by examining a sample of relevant Utah Supreme Court opinions involving state constitutional issues that arose in the context of both death penalty and search-and-seizure cases, as well as an article written by Chief Justice Durham on the subject of state constitutional analysis--and concludes that Chief Justice Durham is firmly committed to state courts' using state constitutions as primary sources of legal protections for fundamental rights and liberties.

   Background of Chief Justice Christine M. Durham

   Chief Justice Durham is an accomplished scholar, educator, and pacesetter. Remarkably, she also manages to balance her professional responsibilities with those concomitant to being a mother of five children. (10) Christine Durham graduated from Wellesley College in 1967 with High Honors, and she earned her J.D. from the Duke University School of Law in 1971, where she currently sits as a member of the Board of Trustees. (11) After receiving her law degree, she practiced law in Durham, North Carolina, and was an instructor of Legal Medicine at the nearby Duke University Medical School. (12) Prior to her appointment to the bench, Chief Justice Durham was a partner with the law firm of Johnson, Durham & Moxley in Salt Lake City and was an adjunct professor at the J. Reuben Law School at Brigham Young University. (13) She then brought her knowledge and experience to the Utah Third District Court, serving from 1978 until, in 1982, Governor Scott M. Matheson appointed her to the Utah Supreme Court. (14)

   Despite her extensive judicial duties and the ever-present responsibilities of motherhood, Chief Justice Durham remains an active contributor to the legal profession. (15) Chief Justice Durham has, of course, made her mark on the state of Utah; but she has also gained attention and recognition on a national level. Chief Justice Durham's hard work and accomplishments have not gone unnoticed--her name appeared on President Clinton's short list of candidates to replace U.S. Supreme Court Justice Byron R. White. (16) Justice Durham, however, was not appointed to the Supreme Court vacancy; (17) Justice Ginsberg filled that position in 1993. (18)

   Chief Justice Durham's appointment as the first woman on the Utah Supreme Court and election to the court's Chief Justice position in April 2002 are both tributes to her perseverance and dedication. Yet this great honor was accompanied by a perhaps even greater degree of pressure--simply put, to execute and perform above any and all criticism. Justice Durham reflected, "`I felt like any mistakes I made, anything I did that might be construed to be inappropriate, would reflect poorly on my gender ... [and] I was very careful to try to do a good job and not do anything particularly controversial.'" (19) Justice Durham's appointment to the Utah Supreme Court and, more recently, to the position of Chief Justice--as the first woman appointed to either position represent achievements for all women; Durham's background and experience also demonstrate, though, that she is the best person for the job.

   The Utah Supreme Court and Utah Constitution

   Understanding the structure of the Utah Supreme Court and the history of the Utah Constitution provides insight into, and facilitates an analysis of, Chief Justice Durham's views on the proper role of state constitutional law in America's federalist system. The Utah Supreme Court is the state's highest court and has "five justices who serve ten-year renewable terms." (20) The justices on the court, as a group, elect by majority vote a chief justice, to serve four years (while associate chief justices serve two-year terms). (21) Currently, the Utah Supreme Court consists of Justice Richard C. Howe, Justice Leonard H. Russon, Justice Michael J. Wilkins, Associate Chief Justice Matthew M. Durrant, and Chief Justice Christine M. Durham--the only woman on the court. (22) On the Utah Supreme Court, the decision-making process begins with one justice being selected randomly to write the opinion, with the other four justices thereafter contributing to the process by either joining in the decision, by concurring, or by dissenting. (23)

   In recent opinions, the Utah Supreme Court has indicated that interpretation of the Utah Constitution may be influenced significantly by the historical events surrounding its drafting. (24) The Utah Constitution is only one hundred years old, but it has had, nonetheless, an arduous history. (25) A thorough account of the legal history of the Utah State Constitution stretches far beyond the reach of this Comment. (26) For purposes of the discussion herein, it will be sufficient to briefly compare the differences in how the Utah Constitution and the United States Constitution have been interpreted, and the varying levels of protections resulting from these disparate interpretations.

   It is a seeming paradox that the Utah Constitution, like any other state constitution, may be more protective of citizen's rights than the federal Constitution, even though the state and federal constitutional provisions at issue happen to "mirror[]" each other textually. (27) Recognizing these textual differences and similarities is helpful in understanding why Chief Justice Durham believes that the Utah Constitution should be the first tool that Utah courts utilize in their decision-making. (28) Ultimately, however, a disparity in the level of fundamental protections afforded by the two charters can come down to something as simple as the state court's and the U.S. Supreme Court's having different concepts of what the parallel constitutional provisions mean, at least with regard to the citizens of a given state. (29)

   Chief Justice Durham's overall career clearly reflects an expansive knowledge of state constitutional law, (30) as well as a decided preference, which will be presented in greater detail below, for looking to the Utah State Constitution before turning to the federal Constitution for guidance. This may be due, at least in part, to her years spent as a trial judge, during which time she presumably had to study, and rule on, state constitutional issues almost on a daily basis. What is certain is that Chief Justice Durham clearly prefers to exhaust state constitutional protections before relying on the federal Constitution to decide a constitutional issue. The following section will discuss this preference in the context of the various means of accomplishing this goal.

2. UTAH STATE CONSTITUTIONAL ADJUDICATION

   Justice Durham is passionate about several state constitutional issues, and she places particular emphasis on the protections and values that the Utah Constitution can offer. (31) A reoccurring criticism of state-constitutionally-based decisions, though, is that state courts tend to cultivate confusion by interpreting similar provisions of the state and federal constitutions differently. (32) Chief Justice Durham has recognized this view and has addressed the issue of whether state or federal law should govern in circumstances where two constitutional provisions mirror each other. (33)

   In...