The Massachusetts Constitution - the last thirty years.

• Author: Wilkins, Herbert P.
• Position: The Massachusetts Constitution of 1780

The Constitution of the Commonwealth has never been more significant for the rights of individuals than in the past thirty years. Although the greater impact has been on the rights of criminal defendants, the Constitution's influence on civil relationships has been substantial, as indicated most particularly by Goodridge v. Department of Public Health (2) on the right to same-sex marriage.

In 1980, this law review published my article comparing the treatment of similar provisions of the Federal Constitution and the State Constitution. (3) My current effort is, in a sense, an updating of the 1980 article. Before 1980, there were only a handful of cases that foretold the impending impact of the Supreme Judicial Court's independent treatment of provisions in the State Constitution that had parallels in the Federal Constitution. For example, Commonwealth v. Soares (4) barred racial discrimination in the use of peremptory challenges to prospective jurors well before the Supreme Court did so in Batson v. Kentucky. (5)

As will be seen, many Massachusetts cases rejected positions then taken by the Supreme Court, and others reached results unlikely to be acceptable to it. Thus, this article, unlike the 1980 article, identifies many instances in which the Constitution of the Commonwealth, particularly its Declaration of Rights, dictated positions not established under the Federal Constitution. The most that I could say in the 1980 article was that

In recent years, the Supreme Judicial Court has exercised the option to impose higher state constitutional standards in some instances and, in many other instances, without exercising that option, the court has explicitly acknowledged its authority to act independently under the state constitution. While these rumblings are not yet powerful... they are intensifying, suggesting that the personal freedoms of the Declaration of Rights may be about to receive new attention. (6) Balanced against the numerous instances of greater rights under the Constitution of the Commonwealth, especially its Declaration of Rights, are the many examples of the Constitution of the United States, particularly the Bill of Rights, overriding the law of the Commonwealth. (7) Massachusetts, for example, did not initially develop its own exclusionary rule. However, after the Supreme Court prescribed an exclusionary rule applicable to the states, the Supreme Judicial Court went beyond this mandate in certain instances to exclude evidence. The reach of freedom of speech under the Federal Constitution has been far greater in many areas than anything identified in the Constitution of the Commonwealth. In fact, a significant portion of my 1980 article discusses the inevitable losing battle that the Supreme Judicial Court waged with the Supreme Court over publication of assertedly obscene books. (8) Recently, the Supreme Judicial Court has had to adapt to the limitations imposed by Crawford v. Washington (9) on the use of "testimonial" hearsay and to the prohibition of Melendez-Diaz v. Massachusetts (10) on the use of laboratory reports (and not the technician who did the tests) to prove that an item seized was a controlled substance. (11) Even more recently, the Supreme Court has held that the Second Amendment, through the Fourteenth Amendment, applies to the states and grants an individual the right to have a gun in the home. (12) Justice Scalia, in writing to uphold a Second Amendment right to have a gun in one's home, asserted in relation to art. 17 of the Massachusetts Declaration of Rights (and three other state constitutional provisions) "that the most likely reading of... these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes." (13) This assertion blatantly ignores the thorough opinion of Justice Kaplan in Commonwealth v. Davis, (14) which convincingly holds that art. 17 does not extend to a homeowner a constitutional right to have a gun in the home. (15)

Differences in results under the two constitutions, however, should not be overemphasized. In many instances, the constitutional standard (and almost always the result) is the same. (16, 17)

I start my discussion of specific subjects with the Supreme Judicial Court's treatment of the Miranda rule, a rule that went beyond anything that the Supreme Judicial Court had required as a prelude to a valid custodial interrogation of a suspect. Since the Miranda rule was adopted, however, the Supreme Judicial Court has added to it substantially. (18) Next, I consider differences that have developed between the two courts in their treatment of search and seizure issues. This differing treatment has resulted in Massachusetts having greater restraints on police conduct, and clearer guidelines for the police to follow, than established by the Supreme Court. Next, I turn to the civil law, first discussing some civil cases that involve differences between the two courts. Then I consider the Goodridge case and cases elsewhere dealing with the question of same-sex marriage. I conclude with an attempt to explain why Massachusetts has gone its own way on many constitutional issues in the past three decades.

1. MIRANDA AND ARTICLE 12

   A prime example of recent significant differences between the Supreme Court and the Supreme Judicial Court on the scope of protection of individual rights is shown by each court's varying treatment of Miranda-related issues. (19) These differences can in part be attributed to differences in the language of the two relevant constitutional provisions. (20) Compare the Fifth Amendment ("No person shall... be compelled in any criminal case to be a witness against himself....") with the broader language of art. 12 of the Declaration of Rights ("No subject shall... be compelled to... furnish evidence against himself."). Another, and I think greater, reason for the differences is attitudinal. As the protection afforded by the federal right against self-incrimination has shrunk, protection afforded by state law has become more prominent. (21)

   The phenomenon that, when the Supreme Court has restricted the scope of the Miranda principle, the Supreme Judicial Court has acted under state law to preserve protections initially provided by the Miranda rule is described in Justice Cordy's carefully crafted opinion in Commonwealth v. Martin. (22) In 2004, the Supreme Court reversed course and decided that the failure to give Miranda warnings to a suspect in custody did not require suppression of physical evidence that was obtained as a result of the suspect's unwarned statement. (23) Because Miranda principles, as thus reconstructed, were no longer adequate to secure the "parallel but broader protections afforded... by art. 12," the Supreme Judicial Court adopted a common-law rule that physical evidence derived from an unwarned statement was presumptively excluded at trial "as 'fruit' of the improper failure to provide [Miranda] warnings." (24)

   The Martin opinion followed an already established pattern of developing "[s]tate law principles as adjuncts to the Miranda rule" protections under the common law that go beyond what the Supreme Court would require under the Fifth Amendment in similar circumstances. (25) In Oregon v. Elstad (26) the Supreme Court abandoned its position that an admission or confession obtained from an accused in violation of Miranda rights was presumed to taint any subsequent admission or confession, even if Miranda warnings were later given. (27) The Supreme Judicial Court refused, as a matter of state common law, to agree. (28) Another time, relying on art. 12 itself, the court in Commonwealth v. Mavredakis (29) declined to follow Moran v. Burbine, (30) which had held that Fifth Amendment principles did not require the police to inform a suspect being interrogated that an attorney was seeking to reach him to provide legal assistance.

   The Mavredakis opinion concerned an issue the court had already faced in three cases, each decided before the Supreme Court's 1986 Moran opinion. (31) The result in the Mavredakis case is consistent with these earlier cases, which seem to rely on Miranda principles, but might possibly be construed as a statement, not of a constitutional mandate, but of a common law requirement. These earlier opinions make no reference to, and seemingly are not based on, the State Constitution. The court cited several jurisdictions that had rejected the Moran position under their state constitutions. (32) Whether constitutionally based, or a product of the common law, the obligation of the police to advise a suspect under questioning that a lawyer wants to speak with him or her was well-established by the time of the Mavredakis decision. (33)

   There may be little difference of consequence between a ruling that, on the one hand, a particular police interrogation practice violates a constitutionally influenced common-law rule, or, on the other, directly violates art. 12. A subsequent court, however, might be more hesitant to overrule a constitutionally based determination than a common-law one. The legislature, of course, could change the common-law rule, at which point the court would have to face the issue as a constitutional one. Would the legislature seek to establish a statutory standard that is less favorable to a defendant than a common-law rule adopted by the Supreme Judicial Court? Does the legislature have the time, experience, impartiality, and interest to become involved in such a controversial endeavor? Courts deal with these issues regularly. The situation discussed here differs from one in which the legislature might pass a law increasing--rather than decreasing--the rights of a criminal defendant. (34)

   In the Supreme Judicial Court's most recent association with the Miranda rule and art. 12, three dissenting justices believed that art. 12 required that Miranda warnings be given even when counsel was present at the...