SUPREME STATE COURTS: PROTECTING RIGHTS & LIBERTIES DESPITE THE SUPREME COURT.

• Author: Bonventre, Vincent Martin

INTRODUCTION

The Supreme Court of the United States is the "nation's highest court," and the Constitution--including the Supreme Court's rulings--is the "Law of the Land." In a narrow, technical, and formalistic sense, those assertions are accurate. But in a general, practical, and more realistic sense, they are misleading.

It is axiomatic in our federal system of government that states and their courts are free to pursue their own different priorities and render their own different rulings, as long as they don't actually violate federal law. Yet this bedrock principle seems lost on many attorneys arguing in state courts and the judges who sit on them. This Article explores the constitutional foundation and tradition of judicial federalism: the ability of state high courts to reject the Supreme Court's treatment of civil rights and liberties by providing greater or different protections on the basis of their own state constitutions or other independent and adequate state law grounds. (1) By doing so, state high courts secure the fundamental rights of those within their respective borders when the Supreme Court declines to do so. It is imperative for state high courts to interpret their own state constitutions and laws independently to insure the protection of civil rights and liberties for their citizens, regardless of the dilution or denial of such protections in decisions of the Supreme Court.

"STATES' RIGHTS"

A quintessential example in which a state's highest court granted further protection for a fundamental right than the Supreme Court of the United States is the 1943 New York Court of Appeals decision in People v. Barber. (2) The Supreme Court and the New York Court of Appeals both faced the same question: whether an exemption was constitutionally required for those whose religious practice was burdened by a facially neutral municipal ordinance prohibiting door-to-door solicitation without first obtaining a permit. (3) In 1942, the Supreme Court upheld an Opelika, Alabama municipal ordinance requiring such a permit and affirmed the denial of a religious exemption to the plaintiffs, Jehovah's Witnesses, under the Constitution. (4) The plaintiffs argued that, because door-to-door solicitation was an essential aspect of their religion, they should not be required to obtain a permit in order to engage in their religious practice. (5) The Supreme Court was unpersuaded that requiring a permit prior to solicitation was an invalid burden on the Jehovah's Witnesses' religious practice and held, instead, that the guarantee of religious free exercise in the Federal Constitution did not entitle them to an exemption. (6)

In a markedly similar set of facts the very next year, the New York Court of Appeals held exactly the opposite, relying on the freedoms of worship and press in the New York State Constitution. (7) In People v. Barber, the Court of Appeals granted the plaintiff, a Jehovah's Witness, a religious exemption similar to the one that the Supreme Court had denied in Jones v. Opelika. (8) In perhaps one of the most instructive and poignant, yet simple passages in the history of the Court of Appeals, Chief Judge Irving Lehman wrote:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. (9) In one sentence, Chief Judge Lehman succinctly explained the principle of judicial federalism: state high courts have not just a prerogative, but the duty to use their own independent judgments to determine the protections afforded to fundamental rights by their own state constitutions and have no contrary obligation to follow decisions or rationales of the Supreme Court of the United States. Interestingly enough, only a few months later, the Supreme Court reversed its holding in Jones v. Opelika, when it held, citing Barber, that Jehovah's Witnesses are indeed entitled to a religious exemption from ordinances that required permitting prior to solicitation. (10)

These holdings illustrate an ancillary yet equally critical function of judicial federalism: state high courts can influence national law through their rulings to help protect fundamental rights throughout the country by providing the rationale for amenable justices on the Supreme Court in their concurring, dissenting, and even, ultimately, majority opinions. (11)

Twenty years after Barber, in People v. Donovan, (12) the New York Court of Appeals again granted greater protections under its state constitution and statutory law than the Supreme Court afforded in its interpretation of federal constitutional due process. (13) Prior to Miranda v. Arizona, (14) where the Supreme Court required that suspects being interrogated in custody be advised of their right to counsel, (15) the Court of Appeals was tasked with determining the admissibility of a written confession, given by a suspect, after he was refused the right to see or speak to an attorney. (16)

One of the truly great judges in American history, Stanley Fuld, (17) wrote the majority opinion in People v. Donovan, holding that a suspect is indeed entitled to have counsel present during an interrogation after requesting one. Any confession obtained after refusing such a request, Fuld explained, denies the suspect effective assistance of counsel, at a critical time in the criminal justice process, when that fundamental right is essential. (18) Although the Supreme Court had not yet weighed on this issue, Justice Fuld deemed that to be irrelevant:

Since we have concluded that a confession obtained under the circumstances present here is inadmissible under New York law, we find it unnecessary to consider whether or not the Supreme Court of the United States would regard its use a violation of the defendant's rights under the Federal Constitution. In other words, we are of the opinion that, quite apart from the Due Process Clause of the Fourteenth Amendment, this State's constitutional and statutory provisions pertaining to the privilege against self incrimination and the right to counsel, not to mention our own guarantee of due process, require the exclusion of a confession taken from a defendant, during a period of detention, after his attorney had requested and been denied access to him. (19) Three years later, the Supreme Court of the United States, citing People v. Donovan, decided Miranda v. Arizona, finding in the Federal Constitution an identical right to counsel for a suspect during custodial interrogation. (20)

Continuing into the 1970s, the New York Court of Appeals further enhanced its reputation for protecting rights and liberties as a matter of independent state constitutional law. In the 1978 case of Sharrock v. Dell Buick-Cadillac, (21) the New York court dealt with the relationship between a private enterprise and the Due Process Clause of the New York State Constitution. (22) Earlier that same year, the Supreme Court had held that a New York statute authorizing private entities to sell the property of individuals they had evicted, without notice or a hearing, did not violate the Fourteenth Amendment. (23) That ruling denied the application of due process protection against private, as opposed to government, lienholders. In an opinion penned by Chief Judge Lawrence Cooke, New York's high court rejected that proposition, stating in relevant part,

[O]n innumerable occasions this court has given our State Constitution an independent construction, affording the rights and liberties of the citizens of this State even more protection than may be secured under the United States Constitution. This independent construction finds its genesis specifically in the unique language of the due process clause of the New York Constitution as well as the long history of due process protections afforded the citizens of this State and, more generally, in fundamental principles of federalism. (24) New York's high court held that those provisions of the state's lien law which authorized the foreclosure of a private mechanic's lien through a public sale ex parte, violated procedural due process under the state constitution. (25)

To be clear, the New York Court of Appeals is hardly the only state high court to have utilized its independent authority and state constitution to determine the extent of civil liberties in their borders. The Oregon Supreme Court has regularly exercised its independence in its approach to constitutional questions. In State v. Kennedy, (26) for example, the Oregon Supreme Court was asked to decide whether a defendant could be retried after a mistrial due to prosecutorial misconduct. (27) In this case, following the mistrial, the defendant was retried and convicted. After the case wound its way through the state courts, the United States Supreme Court granted certiorari. That Court held that neither federal constitutional double jeopardy nor due process precluded the second prosecution or the resulting conviction. (28) On remand, Oregon's intermediate court affirmed the conviction, (29) and then the state's supreme court did as well--but, in doing so, it rejected the federal Supreme Court's rationale.

Oregon's high court, relying entirely on Oregon's state constitution, adopted a rule more protective of the rights of the accused than the United States Supreme Court had under the Federal Constitution. The Oregon Supreme Court ruled that the Oregon constitution bars a retrial "when improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal." (30)

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