STATE CONSTITUTIONAL ISSUES.

• Date: 22 June 2018

THURGOOD MARSHALL U.S. COURTHOUSE

Wednesday, May 24, 2017, 4:00pm

Moderator: Carrie Cohen, Morrison & Foerster LLP

Speakers:

Hon. Jonathan Lippman, Latham & Watkins LLP; Chief Judge, New York Court of Appeals (Ret.)

Hon. Victoria A. Graffeo, Harris Beach PLLC; Assoc. Judge, New York Court of Appeals (Ret.)

Vincent M. Bonventre, Justice Robert H. Jackson Distinguished Professor of Law, Albany Law School

Judge Graffeo: Chief Judge Kaye was a woman who made us proud to be female attorneys and jurists. Judge Kaye was appointed to the Court of Appeals in 1983, about six years after Justice William Brennan's famous lecture on State Courts and Social Justice. In a 1995 article, Judge Kaye recalled how impressed she was with his call to "resuscitate our state constitutions" since she, like most attorneys, had been "federalized" and was not very familiar with the contents of our State Constitution. (1) So, even before she began her tenure as an Associate Judge on the Court, Judge Kaye had begun to contemplate the greater role that the New York Constitution could have in state jurisprudence, particularly in common law cases.

In the criminal realm, she publicly expressed her views about how the State Constitution could be an instrument for greater protections for New Yorkers in her concurrence in the 1992 case of People v. Scott (2) and People v. Keta. (3) The plurality writings in this case illustrated the philosophical differences of opinion at the Court regarding the relationship between the federal and state constitutions and when the Court of Appeals should deviate from the parameters established by U.S. Supreme Court precedent. (4) The Scott case involved a classic real property "law school" fact pattern--it was a "curtilage" case. (5) Although Mr. Scott had posted "no trespassing" signs on his 165-acre property, a deer hunter walked on his land and discovered Scott's marijuana crop. (6) The hunter alerted the State Police and a State trooper accompanied the hunter to the property to check out the cultivation. (7) This was, of course, done without Scott's knowledge or permission. (8) The State Police later obtained a search warrant and confiscated the plants, resulting in Scott's arrest for criminal possession of marijuana. (9)

As part of his defense, Scott filed a suppression motion claiming that the police had illegally entered his property. (10) The trial court denied his suppression request, and the Appellate Division affirmed that ruling. (11) Both courts relied on the U.S. Supreme Court's Fourth Amendment analysis in Oliver v. U.S., (12) in which the Supreme Court articulated the "open fields" doctrine. Applying the rationale in Oliver, the lower courts had concluded that Scott was not entitled to an expectation of privacy outside the curtilage of his residence. (13) Since the marijuana plantings were a distance from his home, the courts concluded that no search and seizure violation had occurred under the Fourth Amendment or Article I of the New York State Constitution. (14)

The New York Court of Appeals reversed in an opinion authored by Judge Stewart Hancock. (15) He explained that the Court's previous precedent in People v. Reynolds, (16) (another curtilage case that perhaps could have been distinguished on the basis that the property owner in that case had not posted "No Trespassing" signs) could be disregarded if the Court determined that the Oliver decision did not sufficiently safeguard the constitutional rights of New Yorkers. (17)

This was not the first time the Court of Appeals considered using language in the State Constitution to extend greater protections than those recognized by the U.S. Supreme Court. For instance, People v. P.J. Video, Inc. (18) established the standards for the issuance of search warrants in obscenity situations based upon New York common law and state constitutional principles. (19)

Returning to the Scott opinion, Judge Kaye decided to write separately despite the fact that she agreed with Judge Hancock's analysis. (20) I believe that she felt compelled to author a concurrence in Scott in order to express what she felt were the troublesome implications of the dissent's view regarding when the Court should examine the implications of the State Constitution. She began by observing that "[o]n a Court where more often than not there is consensus, in State constitutional law cases--civil as well as criminal--we have been uncommonly divided." (21) In her usual eloquent and clear writing style, she explained her view that, "[] where we conclude that the Supreme Court has changed course and diluted constitutional principles, I cannot agree that we act improperly in discharging our responsibility to support the State Constitution when we examine whether we should follow along as a matter of State law... ." (22)

Judge Kaye saw distinct advantages to employing the State Constitution because it gave the Court of Appeals the "final say" on an issue since resolving a case on such a basis would, "make plain the State decisional ground so as to avoid unnecessary Supreme Court review." (23) In other words, a New York Court of Appeals decision anchored on state constitutional protections or rights would insulate such a determination from further appellate review by the U.S. Supreme Court.

Judge Kaye also disagreed with the dissent's view that the U.S. Supreme Court had discouraged States from examining their constitutional provisions. She felt that it "shortchanges both the role of the Supreme Court in setting minimal standards that bind courts throughout the Nation, and the role of the State courts in upholding their own Constitutions." (24) Her respect for the importance of dual sovereignty is now well embedded in New York jurisprudence.

During her years as Chief Judge of the New York Court of Appeals, Judith S. Kaye was a staunch proponent of state constitutionalism, and frequently in her presentations before bar associations or law school audiences she would remind attorneys and law students to familiarize themselves with the...