The Supreme Court of Alaska: unique and independent like the people of the last frontier.

• Author: Motta, Christine M.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

1. Introduction

   Is the Alaska Supreme Court "`a north star that could guide other courts?'"(1) Some have suggested that with its independent approach to state constitutional adjudication, the supreme court of the "Last Frontier" is poised to do just that.(2) Part II of this Comment will discuss the manner in which the Alaska Supreme Court as a whole aligns itself with judicial federalism or independent state decision-making.(3) This examination reveals that new judicial federalism is thriving in Alaska.(4) This section will also survey the general approaches utilized by courts in deciding state constitutional issues(5) and then, with reference to these approaches, address the methods employed by the Alaska Supreme Court.(6) This analysis reveals a court that utilizes several different approaches in interpreting its constitution, all tending to lead to an independent decision. This autonomous decisionmaking and heavy reliance on the Alaska Constitution is not surprising, given the unique character of Alaska as "traditionally ... the home of people who prize their individuality and who have chosen to settle [in Alaska] ... to achieve a measure of control over their own lifestyles."(7)

   Part III of this Comment analyzes the voting patterns and ideologies of the members of the Alaska Supreme Court by examining divided cases in which state constitutional issues were considered over the years 1986-August 1996.(8) Divided cases were chosen as a means of ascertaining the propensities of the individual justices because it is in these difficult cases that the justices' deeply held values are most apparent.(9) Based on the voting records established in these divided state constitutional cases, each justice has been characterized as either liberal (demonstrating a tendency to vote to protect the rights of the accused in criminal cases and constitutional liberties and freedoms claimed in civil cases) or conservative (manifesting a propensity to vote for the prosecution in criminal cases and against claims of individual rights and liberties in civil cases)(10.) An attempt has also been made to identify various issues of importance to each justice.

2. State Constitutional Adjudication In Alaska

   In recent years, much attention has been focused on the concept of new judicial federalism. This term refers to state courts' independent adjudication of constitutional claims under their own state constitutions, rather than under the federal charter.(11) Implicit in this practice is the recognition that there are two separate systems of government, state and federal, and within them, separate bases for protecting rights and liberties.(12)

   Some have speculated that the rise of new judicial federalism was a result of the change in the ideology of the United States (U.S.) Supreme Court that occurred with the transition from the Warren to the Burger Court in the late 1960s.(13) While Earl Warren presided over the Court, the doctrine of incorporation was employed to assert most of the Bill of Rights against the states through the Fourteenth Amendment of the federal constitution.(14) To be sure, state courts may provide more or less protection under their state constitutions than is provided under the federal constitution.(15) However, if a state interprets its constitution as being less protective than the federal constitution, it must enforce the minimal standards required by the latter, thus the term the federal "floor."(16) Consequently, due to the expanded protections applicable to the states under the federal constitution during this time period, "it was only natural that ... state courts saw no reason to consider what protections, if any, were secured by state constitutions."(17)

   This has changed, however. During the tenures of Chief Justices Burger and Rehnquist, the U.S. Supreme Court has taken a more restrictive view regarding rights and liberties assertable against the states under the federal constitution, "no longer deem[ing] itself the keeper of the nation's conscience."(18) In the Burger and Rehnquist eras, the federal floor has been lowered, forcing litigants and courts to look to their state constitutions to find protection for rights and liberties not protected by the federal constitution.(19) Although new judicial federalism may be associated with the concept of giving greater protections under state constitutions, this need not be the case.(20) States may also independently interpret their constitutions to give less protection than the federal constitution, in which case they must enforce the federal level of protection.(21)

   Despite the fundamental notion of federalism in the United States, some continue to question the legitimacy of independent adjudication by state courts.(22) There are others, however, who assert the view that independent state adjudication is a viable form of decisionmaking which was practiced even before the Burger Court retrenchment.(23)

   Whether state judges take an independent approach to constitutional decisionmaking may vary depending on their personal beliefs about the relationship between the federal government and the states and, consequently, about their own role in that system.(24) For instance, those who believe that state courts should not take a back seat to anyone (including the U.S. Supreme Court) in interpreting state constitutional questions, may tend to look to, the state constitution first in deciding constitutional questions.(25) This is referred to as the primacy approach.(26)

   Other state court judges, pursuing what has been called the supplemental approach to state constitutional adjudication, look first to the federal constitution (which provides a "lowest common denominator" that, if followed, will lead to uniformity) when deciding constitutional issues.(27) After determining the requirements of the federal constitution, the state court may, under this approach, have some reason for interpreting its own constitution differently, and thereby, provide broader rights as a matter of independent state law.(28) This is referred to as the interstitial or supplemental approach.(29)

   The so called "lockstep" approach is another method that may be utilized by state judges that view their role as secondary to that of the U.S. Supreme Court.(30) Courts which follow this method make an initial determination that state constitutional law should be identical to federal constitutional law.(31) In effect, this approach obviates the need for any analysis of the state constitution because state law will mirror the federal.(32)

   Another approach commonly taken by state courts has been termed dual reliance or dual sovereignty.(33) Courts using this method analyze both federal and state law, even if there are adequate and independent state grounds for the decision.(34) Since one of the resulting opinions will necessarily be advisory -- and it is not always clear which -- the precedential value of the decision is quite limited.(35) In this, as well as in the supplemental approach, state courts may ultimately make an independent determination under the state constitution. But the different paths taken by the courts to reach this result evidence differences in their views about the role of state courts in the federal system.(36)

   The Alaska Supreme Court takes a very independent approach in cases in which constitutional issues are adjudicated.(37) The court often begins its analysis of constitutional issues by proclaiming the court's independence,(38) and, indeed, an examination of divided cases from Alaska reveals that this is not just hp service. The method by which the court reaches an autonomous result, however, varies. In some cases, the Alaska Supreme Court looks first to the Alaska Constitution in determining whether a right is protected.(39) In these situations, the Alaska Supreme Court frequently seeks guidance from opinions of federal and other state courts.(40)

   Alaska's unique sliding scale test for state constitutional equal protection claims is illustrative of its state-based approach to constitutional adjudication. This test differs from the U.S. Supreme Court's more inflexible approach to equal protection cases which first considers whether a fundamental right or suspect class is involved.(41) If, under the federal rule, a fundamental right or suspect class is involved, strict scrutiny is applied instead of the rational basis review which is reserved for rights not deemed fundamental.(42) The U.S. Supreme Court has also created a third level of review which it has applied in gender and illegitimacy cases.(43) Prodded by the belief that the U.S. Supreme Court's equal protection analysis is "`characterized by many starts and many stops, with all too few clear guidelines for enduring policy,'"(44) the Alaska high court developed a single test to provide more flexibility in deciding equal protection claims under the state constitution.(45)

   While some of the court's cases appear to fall within the primacy model, other cases in which the divided court examines both federal and state constitutional law are less easily characterized. There is some evidence that the court is taking a dual reliance approach, deciding these cases on independent state grounds despite a corresponding analysis of federal law.(46) The Alaska court has not, however, in any of the divided cases in which it has discussed both state and federal law, added a plain statement to clarify that it is basing its decision on adequate and independent state grounds. In light of the U.S. Supreme Court's decision in Michigan v. Long,(47) which holds that, in the absence of such a plain statement, the Court will presume that a state decision is based upon application of federal law, the Alaska Supreme Court leaves itself open to a grant of certiorari by the U.S. Supreme Court.(48)

   Language in other cases, however, seems to suggest that Alaska's high court may use an interstitial approach -- first looking to the federal...