Tribute to Justice Hans A. Linde.

• Author: Davis, Heather
• Position: Retired Oregon Supreme Court Justice

State Constitutional Commentary is proud to dedicate this issue to one of our founding members, Justice Hans A. Linde. This tribute is long overdue, as Justice Linde has oft been acknowledged as one of the pioneering figures in state constitutional law.

Justice Linde was an extraordinary figure on the Oregon Supreme Court. Now retired from the court, Justice Linde has returned to academia. It was in this setting that Justice Linde first set forth his judicial and constitutional philosophy. When addressing constitutional issues, his approach has always stressed the primacy of fundamental state law.

In addition to his accomplishments on the bench Justice Linde has been an active and vital contributor to our State Constitutional Commentary since its inception. For this we thank and honor him.

Albany Law Review

DEDICATION TO JUSTICE HANS A. LINDE

Justice Hans A. Linde was a founding member of Albany Law Review's State Constitutional Commentary. As a tribute to him, his contributions to American law and legal scholarship, and, especially pertinent for us, his influence on the study of state courts and state adjudication, we are honored to dedicate this volume to him.(1)

Justice Linde has been characterized as one of the "most important state court judges in this century,"(2) and as an "architect of democratic institutions."(3) It is particularly fitting to dedicate a volume whose focus is on state constitutional commentary to Justice Linde, as he may be best known for his contributions in "revitalizing" the role of state constitutional law in contemporary legal practice.

Justice Linde advocated for and established a model of applying state constitutional provisions as opposed to federal constitutional provisions for the purpose of affording independent protections to individual rights.(4) Justice Linde has been credited with this "primacy model," otherwise known as the "self-reliant approach."(5) As Justice Linde has expressed: "it]here were state constitutions protecting [constitutional rights] long before the Federal Bill of Rights was enforced against the states, and they are still there today."(6) As stated by United States District Judge Louis H. Pollak, Justice Linde provided an example to other state court judges that it is their "responsibility to interpret and apply state law, including state constitutional law, as an independent source of law on a parity, within its proper sphere, with federal law, including federal constitutional law."(7) Justice Linde's primacy theory has been described as meaning that:

federal law and analysis are not presumptively correct.... [E]ven when a developed body of federal doctrine is available, and the state and federal texts are similar, the primary model urges that the [state] court look first to the state provision and to state history, doctrine, and structure. Its examination of these state-specific concerns may lead it to a result that diverges from the preexisting federal interpretation. Only if the result grounded in state law falls below the standards of the federal constitution should the court decide the case under federal law.(8) Justice Linde did not accept the contention that if a state constitutional provision and a federal constitutional provision were identical in language the two should be interpreted and applied equally.(9) Justice Linde "rejected the proposition ... that state courts should give special deference to federal court interpretations when the language of the state Constitution was identical to that of a parallel provision in the text of the United States Constitution."(10) In advocating for the responsibility of state courts to independently interpret state constitutions, Justice Linde has stated:

Some state courts make too much of identity ... between the texts of similar constitutional clauses. The first step is to overcome the sense that divergence from Supreme Court doctrines is more legitimate when the state's text differs from its federal counterpart than when they are the same. In truth the state court is equally responsible for reaching its own conclusion in either...