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Sterling v. Cupp, 290 Ore. 611, 614, 625 P. 2d 123, 126 (1981). Massachusetts v. Upton, 466 U.S., at 736.10

Since that time, at least four other state courts have expressly endorsed the practice of considering state constitutional claims first.11 In response to Michigan

10"[T]he basis for th[e] claim in the state constitution should be examined first, before any issue under the federal fourteenth amendment. To begin with the federal claim, as is customarily done, implicitly admits that the guarantees of the state's constitution are ineffective to protect the asserted right and that only the intervention of the federal constitution stands between the claimant and the state.... [I]nsofar as the federal fourteenth amendment is invoked to apply the federal Bill of Rights against state action, particularly in the fields of freedom of ideas, criminal procedure, and compensation for the taking of property, there is no reason to accept such an assumption that the values enshrined in a state's constitution, in, say, 1859, must today fall short of those in the federal Bill of Rights of 1789. And to add a reference to the corresponding state provision as an afterthought to a holding under the federal guarantee is worse than merely backwards: A holding that a state constitutional provision protects the asserted claim in fact destroys the premise for a holding that the state is denying what the federal Constitution would assure." Linde, Without "Due Process," 49 Ore. L. Rev. 125, 182 (1970). Accord, Linde, E Pluribus-Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 178 (1984) ("My own view has long been that a state court always is responsible for the law of its state before deciding whether the state falls short of a national standard, so that no federal issue is properly reached when the state's law protects the claimed right" (footnote omitted)); Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379, 383 (1980) (“Just as rights under the state constitutions were first in time, they are first also in the logic of constitutional law"). For thoughtful discussion of other views, see Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Texas L. Rev. 1025 (1985) (advocating that state courts comment on federal issues even in cases decided on state constitutional grounds); Developments in the Law-The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1356-1367 (1982) (contending that state constitutions should be used only to supplement individual rights in the event that protection under the Federal Constitution is unavailable).

"See, e.g., Large v. Superior Court, 148 Ariz.229, 235, 714 P. 2d 399, 405 (1986).... City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me. 1985). . . . State v. Chaisson, 125 N. H. 810, 814-815, 486 A. 2d 297, 301 (1984).... State v. Coe, 101 Wash. 2d 364, 373-374, 679 P. 2d 353, 359 (1984).... See also Collins, Reliance on State Constitutions: Some Random Thoughts, 54 Miss. L. J. 371, 389-394, and nn. 56-58, 69-72 (1984) (citing cases). See generally Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Texas L. Rev. 1141, 1157-1158, n. 54 (1985) (discussing practice in state courts generally).

To implement this practice of considering state constitutional issues in advance of federal ones, state high courts have directed parties to file supplemental briefs illuminating possible state constitutional bases of decision when the initial briefings have neglected such issues. See State v. Kennedy, 295 Ore. 260, 268, 666 P. 2d 1316, 1321 (1983). Cf. State v. Jewett, 146 Vt. 221, 222, 500 A. 2d 233, 234 (1985).

v. Long, 63 U.S. 1032 (1983), for example, the New Hampshire Supreme Court concluded:

When a defendant, as in this case, has invoked the protections of the New Hampshire Constitution, we will first address these claims.

... We live under a unique concept of federalism and divided sovereignty between the nation and fifty States. The New Hampshire Constitution is the fundamental charter of our State. The sovereign people gave limited powers to the State government, and the Bill of Rights in part I of the New Hampshire Constitution protects the people from governmental excesses and potential abuses. When State constitutional issues have been raised, this court has a responsibility to make an independent determination of the protections afforded in the New Hampshire Constitution. If we ignore this duty, we fail to live up to our oath to defend our constitution and we help to destroy the federalism that must be so carefully safeguarded by our people. The Supreme Court of the State of Oregon recently recognized this responsibility and stated:

The point is... that a state's constitutional guarantees . . . were meant to be and remain genuine guarantees against misuse of the state's governmental powers, truly independent of the rising and falling tides of federal case law both in method and specifics. State courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the State themselves choose to abandon them and entrust their rights entirely to federal law.

State v. Kennedy, 295 Or. 260, 271, 666 P. 2d 1316, 1323 (1983)." State v. Ball, 124 N. H. 226, 231, 471 A. 2d 347, 350 (1983).

Since 1983, in over a dozen cases, the New Hampshire Supreme Court has thereby averted unnecessary disquisitions on the meaning of the Federal Constitution.

The emerging preference for state constitutional bases of decision in lieu of federal ones is, in my view, the analytical approach best suited to facilitating the independent role of state constitutions and state courts in our federal system. There is much wisdom in THE CHIEF JUSTICE's admonition that "State courts... are responsible first for resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law." Year-End Report on the Judiciary 18 (1981).

It must be remembered that every State but Rhode Island had a written constitution by the close of the Revolutionary War in 1783. "[F]or the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected the liberties of the people of the several States from abuse by state authorities." Massachusetts v. Upton, 466 U.S., at 738-739 (STEVENS, J., concurring in judgment). The independent significance of state constitutions clearly informed this Court's conclusion, in Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 247-248 (1833)...

While the holding of the Barron case has since been superseded by ratification of the Fourteenth Amendment and selective incorporation of the Bill of

13 To quote the Vermont Supreme Court:

One longs to hear once again of legal concepts, their meaning and their origin. All too often legal argument consists of a litany of federal buzz words memorized like baseball cards. As Justice Linde has noted:

People do not claim rights against self-incrimination, they "take the fifth" and expect "Miranda warnings." Unlawful searches are equated with fourth amendment violations. Journalists do not invoke freedom of the press, they demand their first amendment rights. All claims of unequal treatment are phrased as denials of equal protection of the laws. State v. Jewett, 146 Vt., at 223, 500 A. 2d, at 235 (footnote omitted).

14The early state Bills of Rights were, in fact, specifically motivated by the interest in protecting the individual against overreaching by the majority:

In the period following independence, the state legislatures became increasingly active, enacting a great variety of laws. To many Americans much of this legislation appeared to served the special interests of some groups at the expense of others. Moreover, much of it was thought to violate the natural rights of individuals. For example, the Pennsylvania Council of Censors issued a report in 1784 that listed many examples of legislative violations of the state constitution and bill of rights. The report showed that 'fines had been remitted, judicially established claims disallowed, verdicts of juries set aside, the property of one given to another, defective titles secured, marriages dissolved,' and so forth. Similar abuses were also taking placed in New Hampshire and other states. The injustice of these laws, as James Madison said, brought "into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of public Good and private rights." By the end of the 1780's, the Americans inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the

Rights, the concomitant atrophication of state constitutional theory was both unnecessary and unfortunate.13 State constitutions preceded the Federal Constitution and were obviously intended to have independent significance. 14 The frequent amendments to state constitutions likewise presuppose their continued importance. Thus, whether the national minimum set by the Federal Constitution is high or low, state constitutions have their own unique origins, history, language, and structure-all of which warrant independent attention and elucidation.

State courts remain primarily responsible for reviewing the conduct of their own executive branches, for safe guarding the rights of their citizenry, and for nurturing the jurisprudence of state constitutional rights which it is their exclusive province to expound. 15

Crown and its agents, was transferred to the various state legislatures.

As Americans became more distrustful of democracy, Whig political theory gradually declined. and Federalist theory became predominant. Americans began to impose greater restrictions on their legislatures in order to safeguard individual rights. In the 1770's and 1780's more and more rights were added to bills of rights. Moreover, the power of the legislatures to limit or alienate rights was steadily reduced. Increasingly, bills of rights became binding on legislatures. Instead of saying merely that the legislature ‘ought' not abridge certain rights, bills of rights began to provide that it 'shall' not do so. The prevailing view among the Federalists was that the authority of the legislature and of government generally should extend only to a relatively narrow range of issues.

In summary, during the revolutionary period
a "tidal-wave of democracy... swept over the colo-
nies." Thereafter, during the 1780's, those waters
receded and another wave swept in: a wave of con-
cern about protecting "private rights against un-
controlled legislative power."

Elfenbein, The Myth of Conservatism as a Consti-
tutional Philosophy, 71 Iowa L. Rev. 401, 472-474
(1986).

15This would facilitate the work of federal courts, which under this Court's precedents must address issues of state constitutional law before considering claims under the Federal Constitution. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294-295 (1982) (“[T]here is no need for decision of the federal [constitutional] issue" if the state constitution provides "independent support"); cf. Askew v. Hargrave, 401 U.S. 476, 478 (1971) (abstention under Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941)) Reetz v. Bozanich, 397 U.S. 82, 85 (1970) (same). There exists a growing recognition among Federal Courts of Appeals that it is incumbent upon them to resolve issues of state constitutional law before reaching issues arising under the Federal Constitution. See, e.g., Carreras v. City of Anaheim, 768 F. 2d 1039, 1042-1043 (CA9 1985); Seals v. Quarterly County Court of Madison County, Tenn., 562 F. 2d 390, 392 (CA6 1977).

Because I would not presume that the Delaware Supreme Court failed to discharge this responsibility,

Discussion Notes

1. How do Justice Stevens' views compare with those expressed by Justice Brennan?

Robert F. Utter,

"Swimming in the Jaws of the Crocodile:
State Court Comment on
Federal Constitutional Issues When
Disposing of Cases on

State Constitutional Grounds"

Texas Law Review

63 (March/April 1985): 1027. 1985 Texas Law Review. Reprinted by permission.

II. Models of State Constitutional Analysis

State courts have taken a number of different approaches to analysis and use of state constitutions. These generally have been identified as the primacy, interstitial, and dual sovereignty models. The following subparts briefly describe these models.

A. The Primacy Model

The primacy model, most eloquently articulated by Justice Hans Linde, has also been referred to as the self-reliant approach.8 This model focuses on the state constitution as an independent source of rights and relies on it as the fundamental law. Under the primacy model, federal law and analysis are not presumptively correct. In fact, they are no more persuasive than the decisions of sister state courts. . . .9

8See Developments in the Law-The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1364 (1982) [hereinafter cited as Developments in the Law].

9 See Linde, supra note 5, at 179; Developments in the Law, supra note 8, at 1364. Professor Williams has observed that although state constitutional analysis does not and should not preclude resort to federal doctrine, federal analysis should not be treated like the local court's own constitutional analysis. See Williams, supra note 5, at 403. He agrees, however, that federal analysis should be treated with the same respect as law from other states, taking into consideration the structural differences in the federal and state systems that might influence the analysis. Id.; see infra subpart III(B).

I would dismiss the writ.

2. See generally, Ronald K. L. Collins, “Justice Stevens Becomes Advocate of States' Role in High Court," National Law Journal, August 27, 1984, p. 20.

B. The Interstitial Model

Under the interstitial model, state courts recognize the federal doctrine as the floor and focus the inquiry on whether the state constitution offers a means of supplementing or amplifying federal rights. The New Jersey Supreme Court's decision in State v. Hunt is an excellent example of this approach. . . . C. The Dual Sovereignty Method

The dual sovereignty method, in some ways the original method of state constitutional analysis, analyzes both the state and federal constitutional provisions. For many years, state courts across the county have decided cases on both federal and state constitutional grounds. Most of these courts, however, simply applied a federal construction to state constitutional provisions. But in recent cases some courts have developed state constitutional analysis that is independent of federal analysis and then engaged in federal analysis as well. Courts applying the dual sovereignty model always evaluate both federal and state provisions in the course of their decisions, even when the decision rests firmly on state grounds. This type of analysis reflects the policies underlying our federal system by making available the maximum protections both levels of government offer to citizens.

Unfortunately, the dual sovereignty model, even more than the other models, generates opinion that critics can call "advisory." Of necessity, courts applying the dual sovereignty model will construe federal constitutional provisions even when they base their holding explicitly on adequate and independent state grounds. To some, such an exercise may be viewed as dicta, unnecessary and superfluous. The remainder of this Article rebuts this criticism.

IV. Dual Analysis

The temptation not to explore federal constitutional provisions is especially strong when the state court finds that the state constitutional provisions condemns the challenged conduct. In such a case, the state constitution will have resolved the issue in controversy; analysis of the federal provision will not be necessary to decision of the case. Even in this situation, however, analysis of the federal provision

should not be criticized merely because it may be dictum. To the contrary, this dual analysis, parallel to the dual sovereignty of our federal system, benefits both the state and the federal judiciaries.

When a state-grounded constitutional decision construes a parallel federal provision, the federal analysis has been criticized as dictum. Whether such a criticism is meaningful or relevant depends upon one's definition of dictum and further, upon whether all dictum should bear a negative connotation.... A dual analysis may encompass one of two approaches. A court may render a decision under the state constitution and then determine whether an analysis under the federal law would yield the same result. Or, it can render judgment based on state constitutional grounds and explain, by engaging in an analysis under federal law, why the holding does not conflict with federal law. This second method serves to further policies underlying the supremacy clause. Justice Rehnquist recently emphasized the need for such an approach when he observed that an appeal from a decision resting on a state constitutional provision is properly before the Supreme Court when challenged as a violation of a federally protected right. 158 Dual analysis usually will serve this function, although not explicitly. Because the state court's federal analysis helps the Supreme Court to evaluate the propriety of an appeal from the state decision, that analysis is useful to disposition of the case; it should not be considered dictum.

For example, the Vermont Supreme Court adopted the dual analysis approach in the case of State v. Badger. 159 The Badger court first analyzed the federal constitution's treatment of evidence seized and a confession made after interrogation but prior to a Miranda warning. 160 The court went on to consider the same issues under the Vermont constitution, observing that:

Our first concern is comity between this Court and the United State Supreme Court. We stand on a different footing when we evaluate federal constitutional claims. On federal issues, we are no more than an intermediate court, attempting to apply the "supreme law of the land," as pronounced by the United State Supreme Court.... Yet, if our ruling is based upon an adequate and independent state ground, federal review is

158 Prune Yard Shopping Center v. Robins, 447 U.S. 74, 79 (1980)...

159141 Vt. 430, 450 A.2d 336 (1982).

160Id. at 438-39, 450 A.2d at 341.

limited to a determination of whether Vermont law violates some provision of federal law. 161

But state court analysis of federal law serves more purposes than simply insuring that the state rule does not conflict with federal law. In addition to the unique perspective state courts bring to federal law, the state court's analysis aids sister state courts. A federal analysis by a state court may offer sister states an interpretation closer to their own perspective than a federal court's, especially if the state court consciously approaches the issue without the federalism concerns inherent in the analysis of federal courts. Furthermore, sister states benefit whether or not they have similar state constitutional provisions, because construction of the parallel federal provision by federal courts will always provide only the lowest common denominator of rights.

V. Conclusion

As more state courts engage in examination of their own constitutions, they will have to decide which of the several approaches to state constitutional analysis best helps them to achieve the goal of providing their citizens with the protections contemplated by the drafters of those constitutions. The dual approach, which not only relies on the state constitution but also recognizes and integrates the role and function of the state court and state sovereignty in our federal system, may well offer courts the best opportunity to realize that goal.

To engage in such an analysis, state judges must take care to fully explain why they believe it important to construe the federal provision. They must be equally careful to separate that exposition from their analysis of the state provision. And finally, they must be sure to signal with utmost care their intent to rest the holding on the state law, relying as much as possible on their own and sister states' reasoning and decisions. In this way they can ensure that there will be no mistake as to their extent to comply with the criteria so carefully detailed in Michigan v. Long.162

Although a state supreme court should and often may embark upon the interpretation of its own constitution, relying on it to protect the rights of its citizens, the court should nevertheless continue to comment on federal law. Failure to continue to engage in the federal debate can only weaken the values that underlie our federal system. To engage in the debate can only broaden our understanding of the federal constitution. The result will be a healthy, living document, nourished by the court systems of all fifty states.

161Id. at 447-48, 450 A.2d at 346 (citing Prune Yard Shopping Center v. Robins, 447 U.S. 74 (1980)). . . . 162103 S.Ct. 3469 (1983).

Discussion Notes

1. For a more detailed typology of state court approaches to federal and state law claims, see Ronald K. L. Collins and Peter J. Galie, "Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions," Publius: The Journal of Federalism 16

People v. Class

67 N.Y. 2d 431, 494 N.E. 2d 444 (1986)

PER CURIAM. In our earlier opinion in this case, we held that the police "officer's nonconsensual entry into [defendant's] automobile to determine the vehicle identification number violates the Federal and State Constitutions where it is based solely on a stop for a traffic infraction (US Const, 4th Amdt; NY Const, art. I, sec. 12)" (63 N.Y.2d 491, 493, 483 N.Y.S.2d 181, 472 N.E.2d 1009). The Supreme Court reversed on the Federal Constitution, holding that "the police officer's action does not violate the Fourth Amendment" ( U.S. ,106 S.Ct. 960, 963,89 L.Ed.2d 81), and the case is now before us again.

In support of its own jurisdiction to hear the case, the Supreme Court stated that our decision did not rest on "an independent and adequate state ground"

Discussion Notes

1. Would it make sense for a state court to change its view of a state constitutional requirement after reversal by the United States Supreme Court of its parallel federal constitutional analysis? See Ronald K. L. Collins, "Reliance on State

(Summer 1986): 111, reprinted in University of Cincinnati Law Review, 55 (No. 2 1986): 317.

2. For a more recent version of Justice Utter's views, see Robert F. Utter and Sanford E. Pitler, "Presenting a State Constitutional Argument: Comment on Theory and Technique," Indiana Law Review, 20 (No. 3 1987): 635.

because it lacked the requisite "plain statement" U.S., at p. 106 S.Ct., at p. 964; see Michigan v. Long, 463 U.S. 1032, 1041-1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201). At this juncture, in our consideration of the case under State law, we cannot disregard the fact that we held that article I, sec. 12 of our State Constitution was violated by the search. Although on remand we have in the past, as a matter of State law, followed Supreme Court decisions in several cases. .. in none of those cases had we initially and expressly relied on the State Constitution. . . .

Where, as here, we have already held that the State Constitution has been violated, we should not reach a different result following reversal on Federal constitutional grounds unless respondent demonstrates that there are extraordinary or compelling circumstances. That showing has not been made.

Accordingly, upon reargument, on remand from the Supreme Court of the United States, the order of the Appellate Division should be reversed, the motion to suppress granted, the conviction vacated and the indictment dismissed.

Constitutions-The Montana Disaster," Texas Law Review 63 (March/April 1985): 1095.

2. Could the New York Court of Appeals have avoided its earlier decision being reviewed by the United States Supreme Court? Could it still have addressed the federal constitutional claim?

2. The "Criteria" or "Factor" Approach

Over the years, commentators have studied decisions of state courts interpreting their constitutions to provide more protection for individual rights than provided under the federal constitution. Some of these commentators identified specific factors, or circumstances, under which state courts would rely on their state constitutions to provide expanded rights. Examples of such factors included differences in the state and federal texts, relevant state constitutional history, existence of state precedents prior to the rise of the federal law, unique local circumstances, the ex

tent to which the United States Supreme Court has declined to act in an area, etc. Two particularly good examples of this literature are A.E. Dick Howard, "State Courts and Constitutional Rights in the Day of the Burger Court," Virginia Law Review, 62 (June 1976): 934-44 and Note, "The New Federalism: Toward a Principled Interpretation of the State Constitution," Stanford Law Review, 29 (January 1977): 316-19.

Read the following opinions in State v. Hunt with these ideas in mind.

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