State Constitutions in the Federal System: Selected Issues And

Home , Federal district, Home Rule, Rule of avoidance, Wyoming Constitution

Advisory Commission on Intergovernmental Relations July 1989

Constitutions

Selected Issues and Opportunities for State Initiatives Preface

The following study of state constitutional law governments during the Revolutionary War and the examines a vital aspect of the reinvigoration of the period of Confederation. The U.S. Constitution, states in our federal union. The study also comple- therefore, is one of limited, delegated powers. The ments ACIR's pathbreaking report State Constitu- state constitutions encompass, in principle if not now tional Law: Cases and Materials (1988). In addition, in practice, the many fundamental powers of govern- this study sheds light on several issues that have been ance that have been reserved to the states and to the examined in various ways by the U.S. Advisory Com- people by the Tenth Amendment to the U.S. Consti- mission on Intergovernmental Relations during the tution. The erosion of these inherent state powers by past three decades, especially balance in the federal an imperial vision of federal constitutional law system, the constitutional integrity of federalism, the threatens the very foundation of the federal system. strengthening of state capabilities, and the sorting The U.S. Constitution does not replace state consti- out of responsibilities in the federal system. tutions; instead, it supplements those constitutions The American federal system rests on two consti- by providing for constitutional governance nation- tutional pillars: the 50 state constitutions and the wide on matters of general public interest and, in so United States Constitution. Metaphorically speak- doing, protects the states as co-sovereign constitu- ing, if one or the other pillar is cut down in size or tional polities and guarantees each state a republican raised too high, then the federal system becomes un- form of government. balanced. In manyrespects, this is what has happened A renewal of the vitality of state constitutional to our federal system. The law of the U.S. Constitu- law is also the foundation for strengthening state cation, particularly as developed by the U.S. Supreme pabilities. This is so for three reasons. First, in a con- Court during the past 50 years, has come to over- stitutional democracy, any enhancement of state shadow state constitutional law to such an extent that capabilities must take place within the context of con- state constitutions are, for many citizens, out of sight stitutional rule. In the states, this means that the peo- and out of mind. For example, ACIR's 1988 national ple must decide on the scope and powers of the state poll (see Changing Public Attitudes on Governments government. Second, most state constitutions con- and Taxes, 1988) found that fewer than half of the retain a great deal of detail, much of which limits state spondents even knew that their state has its own con- government. Although contemporary reformers stitution. Yet state constitutions are important often criticize this detail as being too constraining for democratic governing documents, and they can be all elected officials, it should be remembered that much the more important if their role in the federal system of the detail represents efforts by past reformers to is understood properly. As such, a renewed apprecia- assert greater public control over government. The tion of state constitutional law is essential for restor- real question is not detail per se, but what kind of ing a better balance of national-state authority in the constitutional detail represents general public inter- federal system. ests rathcr than spccial interests, and what kind of de- A strengthening of the state constitutional pillar tail is harmful rathcr than beneficial to state action. is also essential for protecting the constitutional in- Third, state capabilities vis-a-vis the federal govern- tegrity of the federal system. This integrity depends ment cannot be enhanced significantly unless there is not only on fidelity to the principles of federalism em- strength in, and respect for, the states as constitu- bodied in the U.S. Constitution but also on the inde- tional politics in their own right (see also ACIR's The pendent vitality of the state constitutions. This state Question of State Government Capability, 1985). constitutional pillar was built first by Americans The development of state constitutional law is when they sought to establish home-rule republican also relevant tothe sorting out of responsibilities in

ii Advisory Commission on Intergovernmental Relations the federal system. One sees this sorting out occur- values federalism, however, and the dual consti- ring in the "new judicial federalism" whereby the tutionalism that underlies it, then one cannot let U.S. Supreme Court has shown greater solicitude for opinions about particular developments overshadow independent state court protections of individual the more fundamental issues of the place that state rights and liberties. If states had no important or in- constitutional law should occupy in a strong and bal- dependent governing responsibilities, there would be anced federal system. The prominence of that place no need for state constitutions. The very existence of is one question; whether that place should be liberal dual constitutionalism signifies both a division and or conservative, activist or restraintist is another sharing of responsibilities between state and nation. question. Furthermore, many new issues emerging on the pub- It is the second question that has to be answered lic scene are not easily encompassed by the U.S. Con- by the actual constitutional choices made by the stitution, but are, or can be, encompassed by state citizens of each of the 50 states. Fortunately for the constitutions. vitality of American democracy, state constitutions We should add, however, that not everyone will provide the general public with many direct and indi- be happy with all of the state constitutional law devel- rect vehicles for shaping the development of state opments reported in this study. Those who believe, constitutional law. Hence, state constitutions, unlike for example, that federal courts have expanded cer- the U.S. Constitution, call on citizens to participate tain rights, such as criminal rights, too far will be dis- very directly in framing the fundamental law of their mayed by activist state supreme courts that have respective polities. expanded rights even further. Others will be dis- mayed that many state courts are not yet active Robert B. Hawkins, Jr. enough in developing state constitutional law. If one Chairman

Advisory Commission on Intergovernmental Relations iii Acknowledgments

This report was prepared by a study team at the Each member of the study team read and com- Center for the Study of Federalism at Temple Uni- mented extensively on all of the draft chapters, so versity. The team members responsible for the vari- that this final report is truly a joint effort. ous chapters are as follows: Thanks are expressed to each of these authors, and also to the following individuals who participated Ellis Katz, Temple University Chapter 1: in reviewing the study as it progressed through vari- Chapter 2: David Skover, Indiana University ous stages: Phyllis Bamburger, Norman Beckman, School of Law Joyce Benjamin, John Callahan, Ronald K. L. Col- lins, William Colman, Vicki Jackson, Carolyn Jour- Chapter 3: Robert F. Williams, Rutgers School of Law, Camden dan, John Kamensky, Mary Kazmerak, Susan Lauffer, Michael Libonati, James Martin, Hon. Mil- Chapter 4: G. Alan Tarr, Rugters University ton Mollen, Thomas R. Morris, John Pittinger, Chapter 5: G. Alan Tarr and Robert F. Wil- Stewart G. Pollock, Douglas Ross, Lee Ruck, Martin liams A. Schwartz, John Shannon, and Harry Swegle. At ACIR, secretarial assistance was supplied by Chapter 6: William W. Greenhalgh and Jeanne Lori A. Coffel. N. Lobelson, Georgetown Univer- ACIR is grateful for the help of all those who sity Law Center contributed advice, research materials, and critical Chapter 7: Peter J. Galie, Canisius College review for this study. Full responsibility for the content of the report, however, lies with the Commission Chapter 8: Mary Cornelia Porter, I3arat Col- and its staff. lege (Emerita) and William Bcans, Northern Illinois University School John Kincaid of Law Executive Director Chapter 9: Ellis Katz, with the assistance of Charles Robinson, Temple Univer- Bruce D. McDowell sity Director Chapter 10: Ellis Katz Government Policy Research

iv Advisory Commission on Intergovernmental Relations Contents

Findings ...... 1 1. State Constitutions "Complete" and "Balance" the Nation's Constitutional Framework: State Constitutions Are Essential ...... 1 2. The States Are Independent Polities with Their Own Philosophies of Government ...... 1 3 . The United States Constitution Allows Substantial Room for the Development of a Separate Discipline of State Constitutional Law ...... 1 4 . State Constitutions Are the Business of Governors. Legislatures. the People. and the Courts . . 2 5 . State Constitutional Law Is an Underdeveloped Field with Great Potential ...... 2 Recommendations ...... 3 Recommendation 1-Promoting Public Understanding of and Support for State Constitutional Law 3 Recommendation 2-Developing the Capability to Improve State Constitutional Law ...... 3 Recommendation 3-Recognizing Shared Responsibility for State Constitutional Action ...... 3 Recommendation 4-Recognizing the Importance of State Constitutional Law in Rebalancing the Federal System ...... 4 Part I: State Constitutions and Constitutional Law in the Federal System Chapterl-Introduction ...... 7 The Constitution of the United States: The Oldest Written Constitution in the World? ...... 7 The Constitution of the United States as an "Incomplete Document" ...... 8 TheStatesasPolities ...... 8 The United States Constitution as a Constraint on the States ...... 9 The Supreme Court and State Economic Policy ...... 9 The Supreme Court and State Civil Liberties Policy ...... 10 The Nature of State Constitutions ...... 11 State Courts and State Constitutions ...... 12 State Constitutional Law and American Federalism ...... 13 The Organization of this Study ...... 13 Chapter 2-Powers of and Restraints on "Our Federalism": State Authority under the Federal Constitution ...... 17 Restraints on State Economic and Police Regulation ...... 18 Authority for State Judicial Declaration of State Constitutional Law ...... 22 Conclusion ...... 24 Part II: Recent Developments in State Constitutional Law Chapter 3-Government Structure under State Constitutions ...... 37 The Function of State Constitutions Regarding Governmental Structure ...... 38 State Constitutions and Separation of Powers ...... 38 The State Legislative Branch ...... 39 The State Executive Branch ...... 41 The State Judicial Branch ...... 42 Local Government and State Constitutions ...... 44 Conclusion ...... 45

Advisory Commission on Intergovernmental Relations v Chapter 4-The States and Civil Liberties ...... 49 A State Civil Liberties Law? ...... 49 Freedom of Speech under State Constitutions ...... 51 Freedom of the Press under State Constitutions ...... 53 Church and State in the States ...... 54 Conclusion ...... 55 Chapter 5-Equality under State Constitutions ...... 59 The First State Constitutions ...... 60 Other Generally Applicable Equality Provisions in State Constitutions ...... 60 Case Study: Gender Equality in the States ...... 62 Conclusion ...... 64 Chapter 6-The States and Criminal Procedure ...... 69 State Courts and Constitutions ...... 69 State Use of Their Own Constitution ...... 70 State Courts' Reliance on Federal Law ...... 71 StateandFederalProsecutions ...... 73 Avoiding Federal Use of Evidence ...... 74 Conclusion ...... 76 Appendix-Cases since Michigan v. Long in Which a State Court Has Granted the Defendant More Protections Than the Supreme Court Finds within the U.S. Constitution .... 79 Chapter 7-State Courts and Economic Rights ...... 83 State Courts and Economic Rights in the 19th Century ...... 84 State Court Activity and Economic Rights. 1897-1987 ...... 84 State Courts and Economic Rights: Constitutional Charge or Reactionary Residue? ...... 88 Conclusion ...... 91 Part III: State Constitutional Law and Public Policy Chapter 8-State Supreme Courts and Workers' Compensation: Change and the Diffusion ofNew Ideas ...... Workers' Compensation: Problems and Proposals for Change ...... Workers' Compensation and the Courts: An Overview ...... The Exclusivity Requirement and State Constitutional Law ...... State Supreme Court Policymaking ...... The Intentional Tort Doctrine: The Case Law ...... An Assessment ...... The California. West Virginia. Ohio. and Michigan Courts ...... Conclusion ...... Chapter 9-State Constitutional Law and State Educational Policy ...... 109 The States and Education: An Historical Perspective ...... 109 The Federal Courts and State School Finance Laws ...... 111 State Courts. State Constitutions. and State School Finance Laws ...... 111 State Legislatures. State Constitutions. and State School Finance Laws ...... 113 Conclusion ...... 114 Part IV Conclusion Chapter 10-State Constitutional Law: The Ongoing Search for Unity and Diversity intheAmericanFederalSystem ...... 119 The Supreme Court and the Scarch for Balance ...... 119 State Constitutional Traditions ...... 120 State Constitutional 1aw and Individual T .ibcrties ...... 120 State Constitutions and Equality ...... 121 State Constitutional Law and the Regulation of Property ...... 121 State Constitutional Law and Public Policy ...... 122 Unity. Uniformity. and Diversity ...... 122

vi Advisory Commission on Intergovernmental Relations Findings

State Constitutions "Complete" 2. The States Are Independent Polities with and "Balance" the Nation's Their Own Philosophies of Government Constitutional Framework Until the present U.S. Constitution was created, State Constitutions Are Essential the states were sovereign governments in their own right. In ratifying the U.S. Constitution, they dele- The state constitutions and the U.S. Constitution gated certain of their powers to the federal govern- are coordinate documents which, together, p-rovide ment and transferred a certain degree of sovereignty. the total framework for government withm the However, they reserved all residual powers to them- United States. Neither can stand alone. However, selves and to the people. with the rise to prominence of federal constitutional The state constitutions are based on diverse un- law and the expansion of federal power, public and derstandings and philosophies of government, are judicial understanding of state constitutional law has substantially easier to amend than the U.S. Constitu- been weakened, so much so that when most people tion, provide for direct citizen involvement in the think of constitutional law, they think only of federal process of amendment and change (unlike the fed- constitutional law. eral Constitution), have a tendency, therefore, to ac- Yet, all of the states in the original confederal cumulate detailed provisions that some people be- Union had constitutions or charters of their own believe should be left to statutory law, and have bills of fore the U.S. Constitution was drafted and ratified in rights that oftcn are different from the U.S. Bill of 1787-1788. Those state constitutions did thcn, and Rights. It is importiint to understand these differ- still do, provide the framework for many aspects of ences between state constitutional law and federal government not covered by the U.S. Constitution. In constitutional law a' the full potentials of the states, addition, they provide alternative approaches to as- and of their local governmcnts, are to be realized pects of government also addressed in the U.S. Con- within the American federal system. stitution. In some cases, state constitutions supplement and go beyond provisions in the U.S. 3. The United States Constitution Constitution. Allows Substantial Room for the Some of the matters addressed in the state con- Development of a Separate Discipline stitutions, but not in the U.S. Constitution, are the of State Constitutional Law structure, functions, and finances of state and local governments; the constitutional standing of local The study of state constitutional law reveals a governments in disputes with the state; state-local re- number of federal constitutional doctrines that po- lationships in the broadest sense; limits on the ability tentially limit federal intrusions into state and local of the state to mandate functions and expenses on lo- affairs, and that limit the jurisdiction of the U.S. Su- cal governments; and the regulation of property, in- preme Court and federal district courts over matters cluding the land development process. These are reserved to the states. For example: matters of immense significance for intergovernmen- A state constitutional grant of authority to tal relations and for the American federal system. It state and local governments is unlikely to be is impossible to appreciate the dynamics of this fed- preempted by federal courts when it (1) eral system, and to realize its potential for producing regulates a subject matter traditionally left diversity within unity, without a sound and fully de- to the slatcs, (2) uses historic police power veloped understanding of state constitutional law. objectives concerning health, safety or mor-

Advisory Commisslon on Intergovernmental Relations 1 als, (3) involves objectives that are compat- legislatures frcqucn tly are involved in providing lead- ible with or supplemental to the purposes of ership for constitutional change. Interpretations by any federal regulation in the subjcct area, (4) statc judgcs, who often are elected, are also a major concerns a subject area that has not been ex- force for changc. However, because of the direct role plicitly preempted by federal law, and (5) af- of citizen participation in state constitutional devel- fects dimensions of an activity not compre- opment, arncndmcnt plays a larger role in the change hensively regulated by federal law. process than it docs for the U.S. Constitution. Judi- The "dormant commerce clause" doctrine cial interprelation, which is the dominant means of furthers the federal interest in national free giving new meanings to the U.S. Constitution, plays a trade, but exhibits a pronounced deference smaller, though still important, role in keeping state to state government rulemaking in the com- constitutions up to date. Thus, the politically respon- mercial realm when it (1) is designed to pro- sive nature of state constitutions is more directly ap- mote traditional police power objectives, parent than that of the U.S. Constitution. such as health or safety, rather than the busi- The prolific amendment capacity of state consti- ness interests of the state's own residents, tutions has yielded many reforms in recent years, as (2) treats out-of-state and in-state economic well as certain causes for concern. Examples of re- entities in an even-handed manner, and (3) forms include home rule, strengthened executive does not vary from national standards to management and budgeting, and more capable legis- such an extent that it imposes conflicting latures. However, concerns arise when the state judi- obligations or cumulative burdens on multi- ciaries, often subject to the electoral process, become state businesses. embroiled in political campaigns, when legislators or governors promote excessive constitutional restric- The doctrine of "adequate and independent tions on local governments, when citizens fail to vote state grounds" prevents the U.S. Supreme for constitutional amendments that seem to be too Court from reviewing a state high court judg- obscure or complcx to understand, or when emo- ment that plainly rests on a determination of tional issucs of the moment produce constitutional state law. changes that lack foresight or sensitivity to certain The "abstention" and "equitable restraint" groups of citizcns. doctrines restrict the original jurisdiction of the federal district courts in favor of state 5. State Constilutional Law court declarations of state constitutional and Is an Underdeveloped Field statutory law. with Great Potential Thus, the federal judiciary has created certain A 1988 Commission poll revealed that only 44 opportunities, within its understanding of the U.S. percent of Americans know that their state has its Constitution, for state foresight and assumption of own constitution. Even among lawyers, state consti- responsibility. The current movement to integrate tutional law is relatively unknown and little practiced. state constitutions into the process of state lawmak- Compared to the U.S. Constitution, state constitu- ing opens the possibility that the promises of diversity tions are less frequently mentioned in the history and within unity in American federalism can be realized. civics classes of public schools or the university, and regular reporting of state constitutional decisions, as well as the statistics of state court activities, has been, 4. State Constitutions Are the Business until very recently, quite rare. Even the law schools of Governors, Legislatures, the People, seldom offercourscs in state constitutional law. If the and the Courts American fedcral system is to be properly balanced- Most state constitutions are amended much giving full rein to the potentials of local governments, more easily and frequently than the U.S. Constitu- the states, and the national government-then the tion. Citizens promote or affirm these changes by in- field of state constitutional law needs to be developed itiative or referendum. In addition, governors and more fully.

2 Advisory Commission on Intergovernmental Relations Recommendations

Recommendation I Recommendation 2 Promoting Public Understanding of Developing the Capability and Support for State Constitutional Law to Improve State Constitutional Law The Commission finds that widespread public The Commission finds that adequate capability understanding of and support for the vital role that to fully develop the. field of statc constitutional law state constitutions and state constilutional law play in does not ycl cxisl within the lcgal profession orwithin maintaining a proper balance in the American fed- the political lcaclcrship of the states. eral system is essential for the full development of The Comnlission recommends, therefore, that the nation's potential. The importance of voter initia- law schools teach state constitutional law as part of tives and referendums in the process of revising state their regular curriculum, that state bar examiners in- constitutions is a major reason for this finding. Yet, clude a section on state constitutional law in their bar most citizens are unaware even of the existence of the exams, and that public and private institutions sup- 50 state constitutions. port research on state constitutional law. Among the The Commission recommends, therefore, that: issues that should be addressed are: the interaction of state judicial, legislative, and executive agencies in 0 The Commission on the Bicentennial of the the development of an independent state constitu- U.S. Constitution recognize the importance tional law; the implications for state constitutional of state constitutions and constitutional law law of elected judiciaries and constitutional docu- in "completing" the U.S. Constitution. ments that are fairly easy to change; how developments in state constitutional law spread from one 0 State bicentennial commissions and humani- state to another; and what legal and other barriers ex- ties councils include consideration of state ist to inhibit the development of an independent constitutions in their public programming. state constitutional law. 0 State associations of judges and legislators The Commission recommends, in addition, the include consideration of state constitutions establishment of a clearinghouse for information on and constitutional developments in their state constilutional developments. Such a function continuing education programs. could be underlakcn by an existing organization (such as the National Association of Attorneys General or State and local education agencies require the National Cenler for State Courts) or by a new or- schools to teach units in state history andlor ganization crealcd ibr the purpose. government in which the state constitution and its development are discussed. (State Recommendation 3 judges, legislators, and executive officials Recognizing Shared Responsibility should involve themselves in this activity.) for State Constitutional Action

0 Colleges and universities give attention to The Commission finds that the growing responsi- state constitutions and state constitutional bilities being placed on the states and their local gov- law on a par with that given to the U.S. Con- ernments require adequate and responsive provi- stitution in history and government courses. sions in state constitutional law. These matters must be addressed independently within each state. taking 0 The mass media provide regular coverage of into account the unique traditions and philosophies state constitutional developments. of government that exist in each state as well as the

Advisory Commission on Intergovernmental Relations 3 direct role played by citizens in the development of rebalancing is recognition of and respect for the co- state constitutional law in contrast to federal consti- equal importance of state constitutional law in the tutional law. American system of constitutional government. The The Commission recommends, therefore, that vitality of federalism rests on two constitutional pil- citizens, legislatures, and governors recognize their lars: (1) independent state constitutional law and (2) own responsibilities for advancing and reforming protections of fedcralism in U.S. constitutional law. state constitutional law rather than relinquishing that The Commission, therefore, commends the U.S. role entirely to the courts or consigning the most dif- Supreme Court for honoring the "adequate and inde- ficult issues to the U.S. Supreme Court. pendent state grounds" doctrine, and recommends The Commission also recommends that each that the Court continue to honor this doctrine and to state give renewed attention to the adequacy and re- allow the states to experiment with solutions to the sponsiveness of its constitution for today's world, and difficult issues that confront our society and to de- that the development of state constitutional law be velop their own principles of state constitutional law understood as a joint responsibility of the legislature, appropriate to thc goalsand conditions of the people, governor, courts, and citizens. The Commission en- institutions. and political subdivisions of the different courages state high courts to develop independent states. bodies of state constitutional law, but also to recog- The Commission also rccornmends that both the nize that U.S. Supreme Court models of jurispru- Congress and thc Suprcme Court refrain from im- dence are not always appropriate to the shared roles posing restrictions on the independence of the states of citizens, legislatures, and governors in state consti- and their political subdivisions unless there is clear tutional change and enforcement. federal constitutional authority to do so and (1) a The Commission further recommends that the clear threat to national unity, (2) a clear need for uni- high court or courts in each state establish principles form national policy, or (3) a clear conflict with ex- for attorneys practicing before the courts of the state press provisions of the Constitution of the United that would require them to look first to the state con- States. It is as important, for example, to provide an- stitution as the basis for litigation rather than to the titrust immunity to the political subdivisions of the U.S. Constitution. states as to the states themselves. The Commission recommends, furthermore, More specifically, the Commission recommends that states take steps to identify and resolve intergov- that the following fcderal constitutional doctrines be ernmental issues and problems that may arise from applied consistently by the courts to limit federal in- existing state constitutional law. Given the decline in trusions into state and local affairs concerning mat- federal aid to local governments and the shifting of ters reserved to the states: responsibilities taking place in the federal system, issues Iikely to need attention now include the provi- A state constitutional grant of authority to sion of adequate local government authority and ca- state and local governments should not be pacity to meet growing responsibilities, stronger preempted by federal courts when it (1) state-local relationships to compensate for weakened regulates a subject matter traditionally left federal-local relationships, and revised allocations of to the states, (2) uses historic police power functions and financial responsibilities between the objectives concerning health, safety, or mor- states and local governments and among local gov- als. (3) involves objectives that are compat- ernments. State constitutions and statutes should ible with or supplemental to the purposes of provide for flexibility of form, function, and finance any federal regulation in the subject area, (4) for local governments. concerns a subject area that has not been explicitly preempted by federal law, and (5) affects dimensions of an activity not compre- Recommendation 4 hensively regulated by federal law. Recognizing the Importance of State Constitutional Law The "dormant commerce clause" doctrine, in Rebalancing the Federal System although it furthers the federal interest in national free trade, should also be used to The Commission finds that the recently renewed bolster deference to state government rule- interest in state constitutional law by judges, attor- making in the commercial realm when it (1) neys, scholars, and state and local policymakers is an is designed to promote traditional police important development in American federalism. Re- power objectives, such as health or safety, balancing of responsibilities in the federal system is rather than the business interests of the necessary in order to give state and local govern- state's own residents, (2) treats out-of-state ments greater authority and discretion to serve the and in-state economic entities in an even- needs of their citizens. One necessary feature of such handed manner, and (3) does not vary from

4 Advisory Commission on Intergovernmental Relations national standards to such an extent that it interpreted, state courts can protect their decisions imposes conflicting obligations or cumula- from U.S. Supreme Court review and thereby foster tive burdens on multistate businesses. the growth of an independent body of state constitu- The doctrine of "adequate and independent tional law. state grounds" should be invoked to prevent The Commission also recommends, as a supple- the U.S. Supreme court from reviewing a mentary measure of protection, that states increase state high court judgment that plainly rests their support for the State and Local Legal Center so on a determination of state law. as to maintain a strong presence on the manyfederal- ism issues that come before the U.S. Supreme Court. The "abstention" and "equitable restraint" The Commission once again urges the Congress doctrines should be invoked to restrict the to recognize and afr'irm the importance of state con- original jurisdiction of the federal district stitutional law in the American federal system and courts in favor of state court declarations of exercise restraint in preempting state and local re- state constitutional and statutory law. sponsibilities as wcll as in mandating responsibilities The Commission recommends, furthcr, that, and expenses on state and local governments. To whenever possible and appropriate, state judges look help bolster the ('ongress' resolve in these matters, to state constitutional provisions first, using the "ade- the Commission recommends that the states estab- quate and independent grounds" doctrine, when de- lish a "federalism impact process" by which they ciding constitutional questions, rather than turning could respond, in a timely fashion, to contemplated immediately to the U.S. Constitution. By interpret- actions by the Congress that might diminish state and ing state constitutional provisions independently of local authority. The Academy for State and Local how similar provisions of the U.S. Constitution are Government should be considered for this role.

Advisory Commission on Intergovernmental Relations 5 6 Advisory Commission on Intergovernmental Relations Chapter 1 Introduction

This study examines selected aspects of the place The Constitution of the United States: of state constitutional law in the American system The Oldest Written Constitution and of recent developments in state constitutional in the World? law, particularly as this body of law has becn dcvel- oped by state high courts. The study is not intendcd to Anothcr indicator of thc cclipsingof state consti- be comprehensive because a full examination of the tutions is that during 1987, the year of the bicenten- many facets of state constitutional law would require nial of the drafting of thc Constitution of the United several large volumes. Instead, we have sought to fo- States of America, that revered document was often cus on certain aspects of state constitutional law that said to be the oldest, still operative, written constitu- highlight the importance, variety, and innovativeness tion in the world. Even forgiving some exaggeration, of developments in the states. This study looks, the careful observer should recognize that the claim therefore, at the bearings of state constitutions on is not true. The oldest, still operative, written consti- state government structure, civil liberties, equality, tution in the world is the Constitution of Massachu- criminal rights (the exclusionary rule), economic and setts, written largely by John Adams and ratified by property rights, workers' compensation, and educa- the citizens of Massachusetts in 1780, a full seven tion.' years before the Constitution of the United States This study takes on particular importance when was written in Philadelphia.3 The Constitution of the one considers the results of ACIR's 1988 national United States, of course, continues to be the oldest, public opinion poll. Only 44 percent of American still operative, written, national constitution in the adults knew that their state has its own constitution, world. and 44 percent of the respondents did not know that Beyond the nced for historical accuracy, the lon- their state constitution has its own bill of rights.* Per- gevity of the Massachusetts Constitution is important haps these results are not surprising because, after because it underscores the limited role that the all, so much attention has been given to federal con- United States Constitution was designed to serve in stitutional law in recent decades that "constitutional the American federal system. The thirteen original law" today is virtually synonymous with federal con- states were fully functioning constitutional entities stitutional law. before 1787. Delaware, Maryland, New Hampshire, This eclipsing of state constitutional law in the New Jersey, North Carolina, Pennsylvania, South minds of not only the general public but also many Carolina, and Virginia all enacted constitutions in policymakers is one indicator of the condition of con- 1776. Georgia and New York wrote constitutions the temporary American federalism. Kenewed attention following year, 1777. Massachusetts adopted its con- to and interest in state constitutional law, therefore, stitution in 1780. Only Connecticut and Rhode Island must be viewed as part and parcel of any effort to re- continued to function under their colonial charters store a better balance of national-state power in the until they replaced them with constitutions in 1818 federal system. The American system of dual consti- and 1842 respectively.4 Thus, Americans had consid- tutionalism represents a unique and highly successful erable experience with written constitutions before experiment in democratic governance, one that the framers met in Philadelphia during the summer needs constant attention if we are to continue to of 1787. Indeed, much of the debate that took place, make it work, and work better. both in the Constitutional Convention itself and in

Advisory Commission on Intergovernmental Relations 7 the state ratifying conventions, dcmonstratcs how the subdivisions) play the dominant role in setting educa- framers of the U.S. Constitution built on these state tion policy. constitutional experiencc~.~In The Federalist, for cx- Today, few iwci3s of public policy belong exclu- ample, one finds repeated references to state consti- sively either to Llic national government or to the tutions, both positive and negative. states. Rather, policy responsibility is shared between the national government and the states. In some ar- The Constitution of the United States eas, such as foreign poky, the federal government is as an "Incomplete Document" the dominant actor; in others, such as education, the states play the principal role. Given the expansion of The Constitution of the United States is depend- national authority, especially since 1937, one can ar- ent on state constitutions in an even more profound gue about how much policymaking "room" is left to and contemporary way. As Donald S. Lutz has sug- the states. Nevertheless, it is important to recognize gested, the Constitution of the United States is "in- that just as we conceive of the federal government as complete."6 It is predicated on the continued exis- a polity, both energized and constrained by the US. tence and vitality of state constitutions. Unlike many Constitution, so also must we think of the states as constitutions in Europe and elsewhere in the world, polities, encrgizetl and constrained by their own con- the Constitution of the United States is silent, or stitutions. mostly silent, on such fundamental constitutional matters as local government finance, education, and the structure of state and local government. These The States as Polities and other constitutional matters are left to the states From this perspective, the American states are to resolve, in keeping with their own needs, prefer- polities within the framework of the American fed- ences, and traditions. Thus, the "complete" Ameri- eral system.? 71at is. the primary role of the states is can constitution includes both the Constitution of the to make policy choices dealing with that wide range of United States and the constitutions of the 50 states- matters assigncd to them by their citizens and left both as they are written and as they are implemented open to them by the very incompleteness of the U.S. and interpreted by judges and other government offi- Constitution. 'To put the matter somewhat differ- cials. ently, and without disparaging the crucial role of the The Constitution of the United States delegates states in the implementation of national programs, limited, although important, powers to the national the states are political arenas for the forging of public government. When exercising those delegated pow- policy, not administrative agencies for the implemen- ers, the laws of the United States are supreme. State tation of policy made by the national government. laws, and even state constitutional provisions, must As polities, the states require rules both for the yield to these legitimate expressions of national management of political conflict and for the determi- authority. At the same time, because national author- nation of what is legitimate public policy. In some ity is limited to those powers delegated by the U.S. federal systems, these basic decisions are made in a Constitution, the states retain broad areas of policy- single, national constitution. The states of India, for making authority to themselves. The areas of public example, do not have their own constitutions; their policy reserved to the states are controlled not by the political authority and organization are provided for U.S. Constitution, but by the constitutions of the 50 in the national constitution.* In Brazil, while the individual states. states write their own constitutions, they make few At least since 1937, however, the constitutional important choices because they must conform to the delegations of authority to the national government detailed provisions of the national constitution.9 have been interpreted broadly; consequently, there is These arrangements may be appropriate for India hardly an area of social or economic life that cannot and Brazil, where the national government is the be reached now by the national government. This is principal arena for policymaking, but a different ar- not to suggest that the national government can, con- rangement is necessary where the states play an im- stitutionally, control all areas of public policy, only portant policymaking role. that it can influence them. For example, few Ameri- Furthermore, if the American states are cans would contend that the national government policymakers, and have the right to enact constitu- could mandate a uniform curriculum for thc nation's tions to serve its thc lrameworks for that policymak- schools. At the same time, few would deny that the ing process, then we would expect considerably more federal government has had a considerable impact on variation, both in tcrms of policy outcomes and policy curriculum through its grant-in-aid system, its cur- processes, than wc might find in federal systems riculum development projects, and its initiatives in which are, in effect, merely decentralized administra- such areas as bilingual education, the education of tive systems. Such diversity may be a blessing or a the handicapped, and school desegregation. Despite curse, depending on one's perspective. In the Ameri- this federal presence, however, the states (and their can federal system, there is always a tension between

8 Advisory Commission on Intergovernmental Relations uniformity and diversity. Unfortunately, there is no has been quite mixed. The charge that a state eco- clear formula to instruct us on when to opt for one or nomic regulation violates the U.S. Constitution is the other; rather, the choice more usually is made in usually based on one of several claims: (1) that the the various arenas of the political process-legisla- challenged state action is in violation of that provi- tures, executive agencies, and courts. sion of the Fifth Amendment which prohibits the taking of private property for public use without just The United States Constitution compensation;Q (2) that a state regulation violates as a Constraint on the States either the due process or equal protection clause of Of course, the U.S. Constitution serves as an the Fourteenth Amendment;l3 (3) that the state law overarching framework in which the states (and the is one "impairing the obligation of contracts" in viola- federal government) perform their governing function of Section 10 of' Article I;l4 (4) that a state law so tions. This framework-as originally written, as favors its own citizens that it violates the interstate amended, and as interpreted-constrains the states privileges and immunities clause of Article N,Sec- in many important ways. tion 2;'s (5) that the state law regulates an aspect of First and clearly foremost, Article VI of the U.S. interstate commerce reserved exclusively to the na- Constitution provides that "This Constitution, and tional government;l6 or (6) that a state revenue the Laws of the United States which shall be made in measure is, in Ihct, a duty on imports or exports in vio- Pursuance thereof; and all Treaties made, or which lation of Article I, Section 10.17 shall be made, under the Authority of the United These claims are treated more fully in chapter 2 States, shall be the supreme law of the Land. . . ." of this study; herc it merely should be pointed out This supremacy clause makes it clear that the Consti- that the six claims fill1 into two different categories: tution, along with legitimate national laws and treaties, are superior to state enactments, including state (1) that the state has violated a right of its own resi- constitutional provisions. dents that is protected by the U.S. Constitution (e.g., Sometimes, the words of the U.S. Constitution as the just compensation, impairment of contracts, due they limit the states are fairly clear, as, for example, process, or equal protection provisions), and (2) that when the Constitution prohibits the states from the state action has an unconstitutional "spillover ef- "grant[ing] Letters of Marque and Reprisal; coin[ing] fect" on other states (e.g., the interstate commerce, Money; [or] emit[ing] Bills of Credit. . .,"lo although privileges and immunities, or duty on imports or ex- even these specific limitations are subject to some in- ports provisions). terpretation. The range of possible interpretations With regard to the first sort of claim-that the increases with the indefiniteness of the language, as, state has violated the property rights of its own citi- for example, when the Fourteenth Amendment re- zens-the U.S. Supreme Court since the 1930s has quires the states to accord their residents "due proc- come to the position of allowing the states consider- ess of law." Debates about the meaning of the Consti- able discretion. only rarely striking down state ac- tution are resolved primarily by the Supreme Court tions.18 Although there has been some revival of the of the United States, so that, according to one ob- "takings" provision of the Fifth Amendment,lQthe server, the Supreme Court is "the umpire of the fed- Supreme Court has shown little recent inclination to eral system."ll support claims of this first type. This umpiring function is performed in three types of cases: (1) where there is an alleged conflict However, the Supreme Court continues to playa between a state constitutional provision or enact- more active role when confronted with claims that a ment and a provision of the Constitution of the state action advcrscly affects the rights or interests of United States, (2) where there is some conflict be- other states or citizens of other states. For example, tween state and federal laws or treaties and the valid- the Court will look closely at state actions that alleg- ity of either or both is called into question, and (3) edly place an "undue burden" on interstate com- where the constitutionality of a fcderal law or treaty merce20 or appear to "discriminate" against other affecting national-state relations is challenged. The states or citizens of other states.21 particular issue involved may concern an economic These two palterns of decisions by the Supreme regulation or a personal liberty. Given that the U.S. Court have important implications for state constitu- Supreme Court applies different standards of review tions. First, to the extent that the U.S. Supreme for each type of issue, each must be discussed sepa- Court no longer protects property rights against state rately. actions, individuals must look to their state constitution and state judiciary for the protection of their The Supreme Court and property rights. Sccond, the states would appear to State Economic Policy have considerablc constitutional discretion in struc- When confronted with a claim that a state eco- turing economic relationships among their own citi- nomic regulation violates some provision of the U.S. zens, so long as the state action has relatively little Constitution, the record of the U.S. Supreme Court impact beyond its borders.

Advisory Commission on Intergovernmental Relations 9 The situation is considerably more complicated states through the process of "selective incorpora- where there is an alleged conflict between state and tion." federal laws affecting the same subject matter. The Supreme Court, as well as other federal and Where the conflict is clear and irreconcilable, then, even state courts, also discovered what might be of course, the supremacy clause mandates that the called "new rights" within the Constitution-the state law must yield.22 When the conflict is not so right of non-English speaking school children to be clear, then the Supreme Court has taken on the role instructed in a language they can understand,32 the of deciding whether the federal law preempts the right of mental patients to treatment,33 the right of field and therefore precludes state regulation of the prisoners to be free of cruel and unusual punish- same subject matter. The standards for deciding ment,34 and the right of married couples to privacy.35 whether a field has been preempted by the federal Finally, the Court found new meaning in the government have not been articulated very clearly,23 equal protection clause of the Fourteenth Amend- and at least one member of the Court-Chief Justice ment. In addition to striking down state-imposed William Rehnquist-has argued that the Court racial segregation in the schools,36 the Court ordered should invoke the doctrine only when Congress has the reapportionmcnt of state legislatures according made a clear decision to preempt.24 to the principle of "one man, one vote."37 The Court Finally, decisions of the Supreme Court either also struck down many state laws giving preference to upholding or striking down national legislation also men over womenP8 and held that indigent defen- have a profound effect on federalism. Prior to 1937, dants have a right to counsel to appeal their convic- the Supreme Court frequently struck down national tions.39 economic legislation, often on the grounds that the Taken together, these four elements constitute federal law invaded a field reserved to the states ex- the "revolution in civil rights and liberties" of the clusively by theTenth Amendment.25 Since the "con- Warren Court em. Although these developments stitutional revolution" of 1937, however, the Court, had their critics,40 supporters argued that they were with one exception,26 has abandoned the Tenth long overdue, because if these unpopular causes Amendment entirely. This abandonment has been so were not championed by the Supreme Court of the complete that one might conclude that there arc vir- United States, thcy were unlikely to receive serious tually no constitutional restraints on national author- consideration at all.4' Whatever merit this argument ity except for those found in the Bill of Rights. Even might have had in the 1950s and 1960s, it needs to be recognizing the exaggeration, it still does suggest that reevaluated in the context of the 1980s. Two impor- to the extent that there are any restraints on federal tant changes appear to make it somewhat less com- authority, they are more likely to be found through pelling. the political process than through the courts.27 First, state political processes are more receptive to the claims of minorities than they were during The Supreme Court and the 1950s and 1960s. The right to vote is much more State Civil Liberties Policy widespread,42 legislatures are more representative,43 It should be recalled that the U.S. Bill of Rights, governors have gained more control over their as originally added to the Constitution in 1791, ap- administrations.44 civil services have been modern- plied only to actions of the national government.28 ized,45 state courts have been unified and profes- For protection against state action, individuals had to sionalized,46 and, most generally, a wide range of in- look to the bills of rights of the state constitutions. terest groups now participate in what have become This situation began to change in 1925, some 57 years much more open political and governmental pro- after the adoption of the Fourteenth Amendment. cesses.47 Although the U.S. Supreme Court was originally Second, the nature of civil liberties issues is dif- hesitant to use the due process and equal protection ferent in the 1980s. For example, rights protecting clauses as grounds for striking down state action as citizens against blatant racial and sexual discrimina- violative of the U.S. Bill of Rights,29 beginning in tion, third-degree police tactics, and the suppression 192530 the Court started the gradual process of incor- of books dealing with sex are all well established. porating provisions of the original Bill of Rights While one should be "eternally vigilant"48 against within the meaning of the Fourteenth Amendment, any erosion of thcse basic rights, many of today's is- thereby making most provisions of the Bill of Rights sues of civil rights and liberties are both more subtle as fully applicable against state action as they are and more complicated than those of the past. For ex- against national action. ample, today's issues of civil rights and liberties often Furthermore, beginning in the 1950s and accel- involve a conflict between rights. What should one erating during the 1960% the Court generally gave do, for example, when the claimed right of a journal- broad interpretations to most of the provisions of the ist to withhold news sources in the name of freedom Bill of Rights31-now made applicable against the of the press conflicts with the right of a criminal de-

10 Advisory Commission on Intergovernmental Relations fendant to all information to plan his or her de- authority to the national government. As is well fense?4QOr when the right of students to pray on the known, the national government has only those pow- grounds of a public university in the name of religious ers delegated to it by the Constitution. The states and freedom clashes with the right to be free of a religious their citizens retain all powers not delegated to the establishment?50 Or when the right of a newspaper to national government or prohibited specifically to publish conflicts with an individual's claim of pri- them. This means that state constitutions are more vaq?51 These are not issues of balancing society's likely to contain limits on governmental authority need for security and order against the liberty of an than is the case with the national Constitution. individual; rather, they involve the claim of one indi- Second, state constitutions must deal with mat- vidual to a civil liberty against a similar claim by an- ters barely touched on in the U.S. Constitution. State other. At the same time, determining an appropriate constitutions, for cxample, have detailed provisions remedy for an alleged violation of rights has become on local government, elections, public education, and more complicated. There is, for example, consider- land management. able dispute about the efficacy of the exclusionary Third, slatc constitutions may be based on differ- rule as a remedy to the problem of unreasonable ent undcrstanclings and philosophies of govern- searches, especially when the violation appears more ment.59 Thc Constitution of the United States is technical than willfu1.52 Other dilficult problems of based on a EWcralist conception of the separation of remedy arise in prisoners' rights cases53 and some powers, with a single strong chief executive, a bicam- gender equity cases." eral legislature in which the states are represented These two developments of the 1980s-the in- equally in one chambcr, and life tenure for judges. creased responsiveness of state political processes to State constitulions, on the other hand, may divide ex- civil liberties claims and the complexity of the issues ecutive authority among several statewide elected of- themselves-may call into question the traditional ficials and provide for the election of judges. justification for federal judicial activism offered in Fourth, state constitutions are easier to amend the 1960s. At least it should suggest the need for ex- and change than is the U.S. Constitution. In fact, the perimentation with both forums and solutions. 50 American states have had a total of 146 different There is some evidence that the U.S. Supreme constitutions since 3775.60 It may be that the relative Court has become sympathetic to these changes and stability of the U.S. Constitution has been made pos- is more willing to defer to the states on matters of sible, in part, because of the capacity of the states to civil rights and liberties. For example, the Court now adopt new constitutions to meet changing social and may be somewhat more accepting of the standards of economic conditions. local communities in obscenity cases55 and substan- Fifth, unlike the U.S. Constitution, state consti- tially less willing to see cases transferred from state to tutions provide for direct citizen participation in the federal courts in habeas corpus and other proceed- process of amendment and change. All state consti- ings.56 Even more important, however, is the appar- tutions provide for citizen ratification of proposed ent willingness of the Court to see cases decided on constitutional amendments; 17 even provide for the state constitutional grounds without review by the initiation of amendments directly by the voters, thus Supreme Court.57 One must be careful not to overes- bypassing the legislature altogether.61 timate this tendency, but the trend does seem to pro- Sixth, because state constitutions must contain vide increased opportunities for states to deal with limits on govcrnrnent, and because they are relatively today's complicated issues of civil rights and liberties easy to amend, some commentators have observed on the basis of their own constitutions, traditions, and that state constilulions tcnd to become "cluttered" standards. with details that would be best left to statutory law.62 While some observers applaud this "new judicial Although this charge can easily be exaggerated, it is federalism," which would give greater scope to the true that slate constitutions contain much more de- states in defining civil rights and liberties, others tail than does the Constitution of the United States. doubt the capacity of the states to protect these rights This detailed nature of state constitutions has impor- adequately. There is no a priori answer to this ques- tant consequences for state judiciaries and for the tion of whether the states will protect civil rights and practice of judicial review. liberties; instead, one must look to the record of state constitutions, state judiciaries, and state political Finally, state bills of rights are often different processes.58 from the U.S. Bill of Rights. Many state civil rights and liberties provisions are more detailed than are their counterparts in the U.S. Constitution. This is The Nature of State Constitutions frequently the case with state provisions protecting State constitutions differ from the Constitution against an establishment of religion, for example.63 of the United States in several ways. First, the Consti- Sometimes the language of state bills of rights ap- tution of the United States, by and large, delegates pears to go beyond what is required in the U.S. Con-

Advisory Commission on Intergovernmental Relations 11 stitution. Free speech provisions and guarantees of Similarly, as the Warren Court expanded the political participation are often of this nature.64 Most scope of national constitutional protections for per- state constitutions contain rights provisions for which sonal liberties, state judges also turned to the U.S. there are no counterparts in the U.S. Constitution. Constitution whcn confronted with cases involving For example, 40 constitutions guarantee a right to personal liberties. In part, this tendency to look to the education, and 19 contain an explicit right to be free U.S. Constitution resulted from the nature of the le- of gender discrimination.65 Again, these differences gal strategy employed: because federal constitutional have important implications for state courts. rights were so broadly interpreted by the U.S. Su- preme Court, lawyers naturally argued their client's State Courts and State Constitutions cause on the brrsisof the U.S. Constitution. Statecon- The Constitution of the United States requires stitutional issucs, when they were raised at all, were that state court judges "be bound by Oath or Affirma- often seen as secondary. tion, to support this [the U.S.] Constitution."66 In im- Furthermore, state court judges began to inter- plementing this requirement, state constitutions usu- pret state constitutional provisions as identical to ally require state judges to take a specified oath equivalent national constitutional provisions. For ex- swearing fidelity to both the U.S. Constitution and ample, the language of Section 8 of the Pennsylvania the state constitution. For instance, the Pennsylvania Constitution's Declaration of Rights-dealing with Constitution prescribes the following oath for judges: searches and seizures-is similar to the language of "I do solemnly swear (or affirm) that I will support, the Fourth Amendment to the U.S. Constitution; obey, and defend the Constitution of the United consequently, Pennsylvania judges have tended to in- States and the Constitution of this Commonwealth. . terpret Section 8 in precisely the same way as federal . ."e7 Given that the supremacy clause of the U.S. judges have interpreted the Fourth Amendment. Constitution provides that "This Constitution, and Clearly, Section 8 of the Pennsylvania Constitution the Laws of the United States which shall be made in could not have been interpreted to deny rights pro- Pursuance thereof. . . shall be the supreme Law of tected by the Fourth Amendment of the U.S. Consti- the Land," state judges, in cases of a conflict between tution. At the same time, Section 8 could have been their two loyalties, must give precedence to the U.S. interpreted by Pcnnsylvania judges to guarantee Constitution and law. In fact, the U.S. Constitution rights beyond what might be required by the Fourth makes this requirement explicit. After declaring the Amendment. Constitution and laws of the United Statcs to be su- This raises thc difficult issue of "floors and ceil- preme, it goes on to provide that the "Judges in every ings." If state judges vicw state constitutional provi- State shall be bound thereby, any Thing in the Con- sions as identical lo U.S. constitutional provisions, stitution or Laws of any State to the Contrary not- then interpretations by the U.S. Supreme Court be- withstanding."68 Yet, even with the clear supremacy come both thc Iloor and the ceiling for the states. of the U.S. Constitution, this does not answer the However, if state court judges interpret state consti- question of whether state judges should look first to tutional provisions independently of the way in which the U.S. Constitution or to the constitution of their the U.S. Supreme Court interprets the U.S. Consti- state when it is claimed that a state action violates tution, then U.S. Supreme Court interpretations irn- both. pose a floor only, and the states are free to develop an Prior to the ratification of the Fourteenth independent constitutional law that goes beyond that Amendment in 1868, state judges, quite naturally, looked to their state constitutions because there was of the U.S. Supreme Court. At least this is the view of little in the U.S. Constitution to limit state action.60 a number of state supreme court justices, including Later, when the U.S. Supreme Court began to find Hans Linde of Orcgon, Stanley Mosk of California, such protections in the Fourteenth Amendment- Robert N. C. Nix, .lr., of Pennsylvania, and Robert first for property rights and then for personal liber- Utter of Washington. ties-state judges also turned to the U.S. Constitu- Interpreting state bills of rights independently of tion.70 After 1937, the U.S. Supreme Court held that the U.S. Rill ol'Rights also raises once again the prob- the Fourteenth Amendment does not limit state eeo- lem of uniformity versus diversity. Should American nomic regulation, except in the most unusual situ- citizens have precisely the same civil rights and liber- ations. State court judges, because they are bound by ties regardless of where they live? Or should the the Supreme Court's interpretations of the U.S. states continuc to play a role in defining civil rights Constitution, likewise turned from the Fourteenth and libertics? If the latter position is admitted, what Amendment as a defense of property rights against should bc thc rolc ol'thc U.S. Supreme Court in set- state action but, of course, continued to use lhcir ting basic standi~rclsfor civil rights and liberties? Be- state constitutions as property rights werc challcngcd cause the Amcricirn rccdcral system is predicated on a by increasingly active state governments. pragmatic and dynamic balancing of uniformity and

12 Advisory Commission on Intergovernmental Relations diversity, one should not be surprised to find these very purposes of the political community? In the difficult considerations arising here. American states, citizens write and approve constitutions, ratify amendments through direct participa- State Constitutional Law and tion, and, in most slates, play a role in selecting or re- American Federalism taining the judges who interpret the constitutions. These matters of constitutional choice are at the very The development of an independent state con- heart of democra~y.Without vital state constitutions stitutional law has important implications for Ameri- and constitutional development, American citizens can federalism, implications that go beyond the issues would be denied any opportunity to participate in this of personal rights and liberties. For example, an inde- most basic decisionmaking process. pendent state constitutional law reaffirms the role of the states as laboratories. It has been argued that to- The Organization of this Study day's issues of civil rights and liberties are cxtraordi- This study is organized into four parts. Part I, narily complicated, often pitting one personal liberty which includcs this chapter and the next, explores the against another. Even the most ardent civil libertari- role of state constitutions and constitutional law in ans disagree on how to resolve such issues as free the American fcdcrnl system and the contemporary press versus fair trial or the free exercise of religion opportunities for the development of an independ- versus the establishment of religion. These are con- ent state constitutional law. Part 11, which includes flicts in which society might benefit from experiment- chapters 3 through 7, explores how state courts have ing with a variety of solutions in different settings addressed fundamental constitutional issues, includ- without imposing a single uniform national standard. ing the organization of state government, civil rights Even beyond issues of civil rights and liberties, ex- and liberties, equality, criminal procedure, and prop- perimentation seems a necessity when confronted erty rights. Part 111, chapters 8 and 9, deals with how with such issues as balancing legislative and executive the development of an independent state constitu- control over bureaucracy or how to achieve equity in tional law affects selected areas of public policy-in educational finance. this case workmen's compensation and educational In addition, an independent state constitutional reform. Finally, Part IV, chapter 10, presents the law would foster diversity, one of the key values un- conclusions of the study. derlying federalism itself. One should not assume NOTES that uniformity in constitutional doctrine means bet- 1 For other overvicw treatments, see U.S. Advisory Com- ter constitutional doctrine. Many contemporary con- mission on Intergovernmental Relations, State Constitic stitutional issues admit of a variety of solutions, no tional Law: Ca.ves and Materials (Washington, DC: one of which is necessarily better than another, only ACIR, M- 159, October 1988), and The Question of State different. Goven~nient(b-lxzbility (Washington, DC: ACIR, A-98, Third, the development of an independent state January 1985) pp. 27-63; John Kincaid, ed., "State Con- stitutions in ii Fcderiil Systcm," The Annals of the Ameri- constitutional law would reinforce the rolc of the can Acatietny of Political and Social Science 496 (March states as polities. Earlier in this chapter, it was argucd 1988): enlire issue; "Ncw I)cvelopments in State Consti- that the principal role of the states in the American tutional Iaw," P~~blirls:771e Jounial of Federalism 17 federal system is to make policy for their own citizens (Winter 1987): entire issue; and Bradley D. McGraw, ed., in keeping with their own needs and traditions. Con- Developmeti~sin Stmte Constitutional Law (St. Paul: West stitutional policymaking, no less than legislative and Publishing Co., 1985). 2U.S. Advisory Commission on Intergovernmental Rela- executive policymaking in such fields as education, tions, Changing Public Attitudes on Governments and social welfare, and domestic relations, is an attribute Taw,1988 (Washington, DC: ACIR, S-17,1988), pp. 6-7 of being a polity. This must not be taken to mean that and 33-34. the states are "sovereign," at least in the classic sense 3For a description of the writing and ratification of the of that word. The American states exist within the Massachusetts Constitution, see Paul C. Reardon, "The framework of the Constitution of the United States, Massachusetts Constitution Marks a Milestone," Publius: The Jounral of Federalism 12 (Winter 1982): whose supremacy clause assures the superiority of 45-56. For fuller treatment, see Ronald M. Peters, The constitutionally legitimate national laws. Neverthe- Massachusetts Cor~stitutionof 1780: A Social Compact less, no matter how broadly we interpret the powers (Amhcrsl: University of MassachusettsPress, 1979). The delegated to the national government, our constitu- Massachusetts Constitution of 1780 now has 117 amend- tional bargain assures a considerable policymaking ments. role for the states. 4For a complcte chronology of state constitution writing, Finally, an independent state constitutional law see Albert I,. Sturm, "The Development of American State Chnstitutions." Publius: The Journal of Federalism can be supportive of democracy itself. Constitutions 12 (Wmler 1982): 57-98. address the most fundamental political questions: 5Sce the comparisons drawn by James Madison and what public policies are legitimate, how is political Alexander F-l am llton in Federalist 650 and Federalist f85, conflict managed and organized, and what are the in Jacob E. Cookc, ed., The Federalist (Middletown, Con-

Advisory Commission on Intergovernmental Relations 13 necticut: Wesleyan University Press, 1961), pp. 343-347 1gSec Loretto v. Teleprompter Manhattan CATV Corp., and 587-595. 458 US. 419 (1982), and Nollan v. California Coastal 6Donald S. Lutz, "The Purposes of American State Con- Commission, 107 S.Ct. 3141 (1987). See also Lee P. stitutions," Publius: The Jounlalof Federalism 12 (Winter Symons, "Property Rights and Land Use Regulation: 1982): 27-44. See also the same author's "The United First English and Nollan," Pirblius: Tlze Journal of Fedeml- Statesconstitution as an Incomplete Text,"Anr~alsoftl~e ism 18 (Summer 1988): 81-96. American Academy of Political and Social Science 496 20See Southern Pacific Company v. Arizona. (March 1988): 23-32. 21 See Philadelphia v. New Jersey, 437 U.S. 617 (1978), for 7For a discussion of the American states as "polities," see example. Daniel J. Elazar and Stephen Schechter, The Role of the 221t was on this point that the U.S. Supreme Court ulti- Statesas Polities in the American Federal System (Philadel- mately decidcd the case of Gibbons v. Ogden, 22 US. 1 phia: Center for the Study of Federalism, 1982), esp. pp. (1824). 4-19. 23For two attempts to articulate such standards, see Hines 8For a discussion of Indian federalism, see D. D. Basu. In- v. Davidowitz, 312 U.S. 52 (1941), and Pennsylvania v. troduction to the Constitiition of India (New Delhi: Pren- Nelson, 350 1J.S. 497 (1957). See chapter 2 of this report tie Hall of India Private Ltd., 1985). for a fuller treatment. gFor a discussion of the relationship between national 24See his dissenting opinion in City of Burbank v. and state constitutional law in Brazil, see Antonio Rulli, Lockheed Air 'I'crminal, Inc., 411 U.S. 624 (1973). See Jr., "Federal and State Law in the Brazilian Fcdcral Sys- also Puerto Kico Department of Consumer Affairs v. tem," paper presented at the meeting of the Compara- Isla Petrolcum Corporation, 56 U.S.L.W. 4307 (1988). tive Federalism Research Group, Philadelphia, PA, 25See, for examplc. Cartcr v. Carter Coal Company, 298 1987. U.S. 238 (1936). 1°Constitution of the United Statcs, Articlc I. Section 10. 26National Imguc of Cities v. Usery, 426 U.S. 833 (1976). l1For a good discussion of this "umpiring function, see But see also Garcia v. San Antonio Metropolitan Transit John R. Schmidhauser, The Suprenze Corrrtas Fina1Arl)i- Authority, 105 S.Ct. 1005 (1985), reversing Usery. ter of Federal-State Relations (Chapel Hill: University of z7Indeed, this was the precise argument of the majority in North Carolina Press, 1958). Garcia. 12" . . . nor shall private property be taken for public use 28This was reaffirmed in Barron v. Baltimore, 32 U.S. 243 without just compensation." Amendment V. (1833). 13". . . nor shall any State deprive any person of life, liberty 29One of the earliest cases raising the issue of the impact of or property, without due process of law; nor deny to any the Fourteenth Amendment on the Bill of Rights was person within its jurisdiction the equal protection of the the Slaughter House Cases, 83 U.S. 36 (1873). See also Laws." Amendment XIV. Twining v. New Jersey, 211 U.S. 78 (1908), Palko v. Con- 14"No state shall pass any 'Law impairing the Obligation of necticut, 302 U.S. 3 19 (1937), and especially Adamson v. Contracts. . . .' " Article I, Section 10. California, 332 U.S. 46 (1947). 15"The Citizens of each State shall be entitled to all Privi- 3OGitlow v. New York, 268 US. 652 (1925), in which the leges and Immunities of Citizens in the several States." Supreme Court "incorporated" freedom of speech Article IV, Section 2. among the "liberties" protected by the due process clause of the Fourteenth Amendment. 18Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and 31 See, for example, Camara v. Municipal Court, 387 U.S. with the Indian Tribes." Article I, Section 8. As early as 523 (1967). Chime1 v. California, 395 U.S. 752 (1969), 1851, the U.S. Supreme Court held that under certain Katzv. Unitccl States, 389 US. 347 (1967) and Mirandav. circumstances, this power is exclusive with Congress and, Arizona, 384 U.S. 436 (1966). even in the absence of national law, state regulation may 32Lau v. Nlchols, 414 U.S. 563 (1974). still be prohibited, but under other circumstances, state 33See, for example, New York Association for Retarded regulation is permissible-giving rise to what has been Children v. liockcfeller, 356 F.Supp. 752 (1973). called "the dormant power of the commerce clause." See 34Holt V.Sarver, 505 F.2d 194 (1974), for example. Also, see Cooley v. Board of Wardens, 53 U.S. 299 (1851). See also generally, Ellis Katz, "Prisoners' Rights, States' Rights Southern Pacific Company v. Arizona, 325 IJ.S. 761 and the I3ayh-Kastenmeier Institutions Bill," Publiiis: (1945), and Bibb v. Navajo Freight Lines, 359 US. 520 Tlze Joirn1al ofl.'ederalism 8 (Winter 1977): 179-198. (1959). 35Griswoltl v. Connecticut, 381 U.S. 479 (1965). 17"No State shall, without the Consent of Congrcss, lay any Impost or Duty on Imports or Exports, except where may 36Brown v. Board of Education, 349 US. 294 (1954). be absolutely necessary for executing its inspection laws. 37Baker v. Carr, 369 U.S. 186 (1962). . . ." Article I, Section 10. 38Reed v. Reed, 404 U.S. 71 (1971), for example. 18Beginningwith West Coast Hotel v. Panish, 300 U.S. 399 39Douglas v. California, 372 U.S. 353 (1963). (1937), the Supreme Court reversed a long string of 40See Clifford M. Lytle, The Warren Court and Its Critics precedents and began to reject constitutional objections (Tucson: University of Arizona Press, 1968). to state economic regulation based on the due process 4lThis is one of the principal arguments of John Ely, De- clause of the Fourteenth Amendment. The situation mocracy and Distnat: A Theory of Jlrdicial Review with regard to claims brought under the equal protection (Cambridge: Haward University Press, 1980). clause is somewhat more complicated. For discussion of the latter issue, see Railway Express Agency v. New 42See Malcolm E. Jewell and David M. Olson, American York, 336 U.S. 106 (1949), and Morey v. Doud, 354 US. State Political Partics arid Elections (Homewood, Illinois: 457 (1957). The Dorsey Press, 1982).

14 Advisory Commission on Intergovernmental Relations 43See Malcolm E. Jewell, Representation in State Legisla- Underlying State Constitutions," Publius: The Jounlalof tures (Lexington: University of Kentucky Press, 1982). Federalism 12 (Winter 1982): 11-26. 44See Lany Sabato, Goodbye to Good-Time Charlie: The "Albert L. Sturm, '"The Development of American State American Goven~orsl~ipTmnsfom~ed (Washington, DC: Constitutions." But Sturm does not include the Con- CQ Press, 1983). necticut and Khtxle Island charters as constitutions, and 45See Mavis Mann Reeves, "Look Again at State Capac- his survey was completed before the adoption of the ity," in Robert J. Digler, ed., American Intergoven~mental Georgia Constitution of 1982. Therefore, the correct Relations Today (Englewood Cliffs, New Jersey: Pren- number might be 148 rather than 145. See also the infor- tice-Hall, 1986), pp. 143-159, esp. 153-154. mation regularly provided by the Council of State Gov- ernments in its annual Rook of the States. 46See Lany Berkson and Susan Carlton, Court Unification: Histoiy, Politics and Imp~ementation(Washington, DC: e1Book of he States, 1988-89 (Lexington, KY: Council of Government Printing Office, 1978). State Govcrnmcnts, 1988), p. 18. 47See Charles Press and Kenneth VerBurg, State and "See, for cxiiniple, John J. Harrigan, Politics and Policy in Community Govenlments in the Federal Sy.vtem (New Statesand Cntnmr~ni/ie.s(Ihston: Little Brown and Com- York: John Wiley and Sons, 1983), pp. 455-494. pany, 1984), csp. pp. 19-34. 48"Etemally Vigilant" is the motto of the American Civil "SCC G. Alan 'I'arr, "Rcligion under State Constitutions," Liberties Union. Annals of thc A~mvicanAcademy of Political and Social Science 496 (March 1988): 65-75. 49See New York Times v. Jascalcvich, 439 U.S. 1301(1978). e4For exan~ple,Article I, Scction 5 of the Michigan Consti- 50See Widman v. Vincent, 454 U.S. 263 (1981). tution provides: "Ehery person may freely speak, write, 51The classic discussion is still Louis D. Brandeis, "The express, and publish his views on all subjects, being re- Right to Privacy," Harvard Law Review 4 (1890). See also sponsible for the abuse of that right. . . ." the discussion in William Cohen and John Kaplan, Con- stitutional Law: Civil Liberty and Individual Rights 65For example, the Pennsylvania Constitution provides: Pineola, New York: The Foundation Press, 1982), pp. "The General Assembly shall provide for the mainte- 181-193. nance and support of a thorough and efficient system of public education to serve the needs of the Common- 52See Thomas Y. Davies, "A Hard Look at What We wealth." (Article 111, Section 14); "The people have a Know (and Still Need to Learn) about the 'Costs' of the right to clean air, pure water, and to the preservation of Exclusionary Rule," American Bar Fozrndation Research the natural, scenic, historic and esthetic values of the en- Journal (1983): 611-690. vironment. . . ." (Article I, Section 27); and "Equality of 53See Ellis Katz, "Prisoners' Rights, States' Rights." rights undcr thc law shall not be denied or abridged in 54See City of Los Angeles v. Manhart, 435 U.S. 202(1978), the Commonweallh because of the sex of the individ- for example. ual." (Article I, Section 28). 55Millerv. California, 413 U.S.15 (1973), although the US. 66Constitution of the Unitcd States, Article VI, Section 2. Supreme Court seems to have retreated from this posi- e7Constitution of Pennsylvania, Article VI, Section 3. tion. 68C~nstituti~nof the United States, Article VI, Section 2. %ee, for example, Stone v. Powell, 428 U.S. 465 (1976). 69Unfortunately, this is an area that is not studied ade- 57See Michigan v. Long, 463 US. 1032 (1983). quately. But sce David B. Rabban, "The First Amend- 58In fact, there is some evidence that state supreme courts ment in its Forgotten Years," Yale Law Journal 90 (Janu- may be just as vigilant about protecting individual liber- ary 1981): 514-595, and Edward S. Corwin, Liberty against ties as is the U.S. Supreme Court. See Craig R. Ducat, Govenrment (13aton Rouge: Louisiana State University Mike1 L. Wyckoff and Victor E. Flango, "Can State Press, 1948). Judges Be Trusted to Defend Federal Constitutional 701n fact, the process may have worked just the other way, Rights?" Paper delivered at the 1988 Annual Meeting of with federal judgcs borrowing the concept of substantive the American Political Science Association, Washing- due process from state constitutional developments. It ton, DC. may be that the concept was first articulated in New 59For a fascinating typology of state constitutional tradi- York in Wynehamer v. People, 13 N.Y. 378 (1856). See tions, see Daniel J. Elazar, "Principles and Traditions Corwin, Liberty against Government. . . .

Advisory Commission on Intergovernmental Relations 15 16 Advisory Commission on Intergovernmental Relations Chapter 2 Powers of and Restraints on "Our Federalism": State Authority under the Federal Constitution

In 1971, Justice Hugo Black wrote of "Our Fed- though a narrow majority of the Burger Court re- eralism" as "a system in which there is sensitivity to fused to cont in~to enforce substantive restraints on the legitimate interests of both State and National Congress' conirncrce powcrs in the interests of state Governments, and in which the National Govern- governmcnts,g the Court may be willing to scrutinize ment, anxious though it may be to vindicate and pro- the congressional procedures for enacting commerce tect federal rights and federal interests, always en- legislation that directly burdens the states.10 More- deavors to do so in ways that will not unduly interfere over, the Supreme Court has limited the access of in- with the legitimate activities of the States."l In 1971, dividual rights plaintiffs to the federal courts, in part however, it was not yet clear that the U.S. Supreme by strengthening the procedural barriers of stand- Court had consecrated a new era of greater, though ing" and by broadening constitutional preferences still bounded, federal constitutional support for state for state court powers in the doctrines of adequate regulatory powers. During the past one-and-one-half and independent state law grounds, state sovereign decades, the U.S. Supreme Court has recast the na- immunity, abstention, and equitable restraint.12 tion's image of the U.S. Constitution and has rede- The Supreme Court's heightened sensitivity to fined its own authority to interpret the Constitution. "Our Federalism" yields much ground for activism to These developments should have special meaning for states in the development of their own constitutional state governments. From the federal judiciary's rec- law. To some extent, state courts have responded to ognition of constitutionally expansive federal admin- the clarion call for leadership in the field of individual istrative authority in 19372 to the late 1970s, the fed- rights protection.13 Yet, vast territories of state con- eral constitutional landscape was not as hospitable to stitutional law remain to be explored by state legisla- state exercises of broad police and economic regula- tures, in thcir cconomic and civil liberties policymak- tory powers as it is today with the Supreme Court's ing, and by statc courts, in their interpretation of the new solicitude for "Our Federalism." mandates of their own constitutions.l4 Particular op- "Our Federalism" has operated on several fronts portunities-and the nature and scope of state in federal constitutional doctrinc. The Burger Court authority to exploit thcm-will be examined in the substantially tempered the activist role that the War- following chapters of this book. ren Court had asserted in expanding individual rights This chaptcr scrves mcrely to sound a warning. guarantees. In turn, the Rehnquist Court has mar- In the stir of a much warranted enthusiasm for state ginalized the force and reversed the momentum of constitutional law development, it must be remem- Warren Court precedents in many areas,3 including bered that "Our Federalism" embodies restraints on criminal procedure,4 constitutional privacy,= and state authority as well as powers. Inherent in coop- Fourteenth Amendment state action6 and equal pro- erative federalism is an expectation that the federal tection doctrine^.^ At the same time, the Court has Constitution will furnish a "floor of security" for the acknowledged the potential for independent state interests of lifc, liberty, and property below which the protection of individual liberties under state constitu- states cannot fall in ordering their policy priorities tional, statutory, and common law.8 Additionally, al- through state law. including state constitutional law.

Advisory Commission on intergovernmental Relations 17 Generous as the U.S. Supreme Court has been of In using the first ground, the judiciary examines a late in sanctioning the independent evolution of state federal statute to determine whether Congress "in- constitutional law, its recent construction of several tended" to occupy the regulatory field. Of course, ex- federal constitutional doctrines has not been wholly plicit statutory language may define the extent to congruent with this attitude. Sound leadership of the which the enactment preempts state law.l8 Even in state constitutional law movement depends on care- the absence of such language, however, an intent to ful study of the ambiguities in these federal doctrines, occupy the field may be inferred where a scheme of which may limit all branches of state government in federal regulation is so pervasive as to preclude sup- their lawmaking authority, or affect only the state ju- plementation by the states,lg or where the area is tra- diciary in its authority to declare state constitutional ditionally left to federal control.20 law. Thejudiciary may find state regulation in "actual Brief analyses of the most relevant of these doc- conflict" with federal law on a number of bases. Pre- trines follow.15 The first section examines the con- emption most likcly occurs when federal and state tours of major federal constitutional doctrines that laws give rise to conflicting obligations, thus making it channel the economic and police powers of statc leg- impossible for thosc who are subject to regulation to islatures, executives, administrative agencies, and comply with both federal and state rules.21 Even courts. In order of treatment, they include the pre- when federal and state laws are not contradictory on emption doctrine, the dormant commerce clause their face, a statc regulation may be invalidated if it doctrine, and the takings clause, and economic due conflicts with 1he aims of federal law, and is, thereby, process and equal protection doctrines. The second an obstacle to the accomplishment of the full pur- section describes federal constitutional boundaries on the authority of state courts to interpret state law, poses and objectives of Congress.22 including state constitutional law. They involve the These standards have not been applied in a uni- adequate and independent state grounds doctrine, form and consistent manner over time. Indeed, in any and various abstention and equitable restraint doc- particular era, the Supreme Court's approach under trines.16 the preemption doctrine appears to reinforce whatever theory of federal-state relations holds sway in constitutional interpretation at the time of a deci- Restraints on State Economic ion.^^ Whereas the Court's earlier views of federal- and Police Regulation ism were bolstered lya presumption of federal pree- Preemption Doctrine mption in any subject area regulated by Congress,24 the current judicial view of "cooperative federal- The preemption doctrine is rooted in the su- ism"25 may be driving the Court's recent preemption premacy clause of the US. Constitution.17 Because decisions. Since 1973,26 the preemption doctrine has federal law is supreme within the realm of its consti- embodied a state-protective presumption: the tradi- tutional authority, state law that interferes with the tional economic and police powers of the states will operation of federal law or that intrudes in the realm not be superscdcd by federal law unless Congress of federal law can be invalidated by the courts. The clearly and manifestly establishes its intent to supremacy clause is the basis on which the federal preempt slate law.27 and state legislatures and judiciaries delineate the This presumption is evident in both grounds of spheres of regulatory power that are delegated exclu- the preemption doctrine. Federal "occupation of the sively to the federal government and those spheres of field" will not likcly bc implicd merely from the exis- concurrent and supplementary federal and state gov- tence of a I'cdcral regulatory scheme.28 Rather, fed- ernmental activity. Accordingly, the preemption doc- eral exclusivity may depend on a clear statement, trine is one of the primary constitutional vehicles by which the Constitution defines the profile of "Our found in the text or legislative history of a congres- Federalism." sional enactment, of the national objective to The preemption doctrine identifies two general preempt all state regulations of the subject area.29 In grounds on which federal law can preempt state law, the absence of such an express provision, the parame- including state constitutional law. First, Congress ters of federal exclusivity may be limited to those dis- may preempt an entire regulatory area within its con- crete aspects of an industry that are extensively and stitutional authority and prevent state involvement, comprehensively regulated in the federal stat~te.3~ regardless of the compatibility of state activity with Similarly, the second ground of "actual conflict" ap- federal rules and objectives, by establishing its deci- pears to be restricted to cases in which compliance sion to "occupy the field." Second, even where Con- with both statc and federal regulations is a physical gress has not displaced state activity in a field of regu- impossibility31 (or an "imminent irnpo~sibility"~~), lation entirely, state law that is in "actual conflict" and in which the state regulation directly and sub- with federal law may be preempted. stantially frustratcs the purposes of federal law.33

18 Advisory Commission on Intergovernmental Relations Thus, the current preemption doctrinc gcneral ly facially ncutral schcmc may be suspect if, in itsopera- accommodates more expansive police and economic tion, it so sul~stnnti:~llyand disproportionately disfa- regulatory authority in state governments, evcn in vors out-of-state interests as to evidence a clear state subject areas affected by federal law. In summary, the purpose to discriminate against interstate com- probability that a state constitutional grant of author- merce.41 Once idcntified as discriminatory, a state ity to state and local governments or the police, and economic regulation typically will be invalidated, uneconomic measures enacted or enforced under such a less the state can demonstrate that the scheme was grant, will be preempted by federal law decreases designed to serve a legitimate purpose other than with the aggregate of the following variables: the protection of the economic interests of its own resi- state constitutional grant or administrative measure dents, such as the promotion of a significant local (1) regulates a subject matter traditionally left to the safety or health objective.@Even if the state law pro- states, (2) has historic police power objectives con- motes a non-protcctionist purpose, differing treat- cerning health, safety, or morals, (3) has objectives ment for out-of-state goods and ventures must be jus- that are compatible with or supplemental to the pur- tified for some reason apart from their state of poses for any federal regulation in the subject area, origin.43 In all probability, a state economic regula- (4) is in a subject area that has not been preempted tion found to discriminate against interstate com- explicitly by federal law, and (5) affects dimensions of merce will run afoul of the commerce clause.44 an activity that have not been regulated comprehen- Although a particular measure may not be dis- sively by federal law. criminatorywhen viewed in isolation because it treats in-state and out-of-state enterprises in an even- Dormant Commerce Clause Doctrine handed manner, it may nonetheless adversely affect Federal constitutional powers that lie "dormant" only the economic interests of multistate businesses are those that have been granted to the fcdcral gov- when considered in the aggregate of all applicable ernment but are not currently bcing used. Even in the state regulations that thc businesses must observe. absence of federal regulation that could preempt the Accordingly, the second category of dormant com- operation of state law, dormant constitutional pow- merce clause cascs restrains state economic schemes ers might be enforced by the judiciary to limit state that subject interstate commercial activities to con- authority. Only one constitutional grant of federal flicting or inconsistent rcgulationsfrom state to state. power has given rise to substantial litigation under In such cases, of course, a state regulation favors lo- the concept of dormant powers-the commerce calized commerce by imposing cumulative burdens clause.34 The Supreme Court has interpreted the on national enterprises. Typically, the judiciary re- constitutional grant of congressional commerce quires either a showing of actual conflict among state power to imply corollary restraints on state authority regulations45 or of direct regulation of extraterrito- to regulate certain interstate economic transactions rial trade46 to invalidate a state economic regulation that Congress has not attempted to control.35 on this basis. The dormant commerce clause doctrine essen- The third category of analysis evaluates whether tially furthers the federal interest in the national free a state rule that is neither discriminatory nor incon- trade unit: it prevents the states from erecting barri- sistent with sistcr-state schemes places economic ers to the movement of goods and services across burdens on interstate commerce that clearly exceed state lines.36 By challenging state regulations that the local bencfits obtained. Under this "balancing" aim to protect local markets and industries from in- approach, the judiciary assesses the nature and the terstate competition, the doctrine curbs sister-state significance of the state's regulatory interests ascom- retaliation and economic balkanization.37 On the pared to the extent of the monetary burdens and eco- assumption that congressional "silence" in the face nomic inefficiencies imposed on interstate commer- of parochial state legislation does not amount to fed- cial transa~tions.~''The continuing viability of this eral approval of local economic protectionism,36 the approach for enforcement of the commerce clause is judiciary stands in the stead of Congress to keep in some doubt. 01' late, a significant minority of the the channels of interstate commerce free of state- Supreme Court ]ins opposed the balancing approach, created obstacles.39 arguing that the judiciary is institutionally incompe- The Supreme Court has developed three calego- tent to weigh thc relative benefits and burdens of ries of analysis in dormant commerce clause litiga- state econonlic rcgulati0ns.~6In this regard, judicial tion. First, state economic regulation is suspect if it skepticism is supported by theoretical arguments that discriminates against interstate commerce. A scheme dormant commerce clause analysis requires courts to is likely to be characterized as discriminatory if, on its operate in a quasi-legislativecapacity that is explicitly face, it treats out-of-state competitors differently disavowed in other constitutional areas.49 than in-state enterprises by imposing greater eco- In the last decade, a major "loophole" in dor- nomic burdens on the out-of-state interests;40 even a mant commerce clause restraints has amplified the

Advisory Commission on Intergovernmental Relations 19 federal constitutional authority of state governments and not merely benefit a politically powerful interest to favor local economic interests. The "market par- group;" moreover, a public good should not be ex- ticipant" exception allows the states to burden inter- torted from any discrete and identifiable individuals, state commerce-indeed, to discriminate against but financed by the public at large.55 out-of-state business concerns in an open and overt As the Supreme Court has interpreted the tak- manner-provided the state itself has "entered the ings clause, the legitimacy of a state's exercise of emi- market" by subsidizing private businesses50 or by op- nent domain can be challenged on four grounds: first, erating a business as a proprietor.51 The analytic dis- the state has "taken" the property, rather than tinction between the state as a "market participant" merely regulated its use by private owners and opera- (i.e., when state activities will not be subject to dor- tors; second, the state cannot establish that the prop- mant commerce clause restrictions) and the state as a erty was taken for a "public use"; third, the state can- "market regulator" (i.e., when state activities will be not demonstrate that the taking is sufficiently related amenable to doctrinal restrictions) is not a bright line, to the public purpose to be justifiable; fourth, the however. Should a state exploit its economic clout to state has not provided adequate compensation, discriminate against commercial transactions occur- whether in cash or in kind. As to most of these issues, ring beyond its territorial jurisdiction and outside of the takings clause doctrine is both unsettled and the particular market in which it is contracting, its be- opaque.56 Recent dcvclopments in the takings havior may be deemed "downstream regulation" clause, which may have particular impact on state rather than market participation.52 land-use regulation. highlight the importance of un- Consistent with the state-protective presump- raveling its tanglctl doctrincs, however. tion in the contemporary preemption doctrine, the The first question-whether the state has current doctrine of the dormant commerce clause "taken" or mcrely "regulated" private property-is promises a broad range of state governmental discre- crucial, for only in the case of a "taking" is the govern- tion in economic regulation when Congress has not ment required to pay compensation for controlling or acted to control the field of interstate commerce. burdening the private uses of property. The border Even if the Supreme Court does not totally abandon between a "taking" and a "regulation" of private the balancing approach in dormant commerce clause property is not marked by any bright and definitive analysis, its increased deference to state governmen- line; nevertheless, it is possible to identify polar posi- tal rulemaking in the commercial realm enhances the tions and characteristic attributes in light of which a opportunities for innovative state economic policy state activity can be deemed a "taking" or a "regula- under state constitutional and statutory law. In gen- tion." eral, a state constitutional grant of economic regula- The classic case of a "taking" is the state's perma- tory powers, or a state constitutional restraint on nent and physical occupation of private property.57 public and private economic transactions, or any leg- Without regard to the importance of the public inter- islative or administrative measure implementing ests served, or to the severity of the imposition on the such powers is likely to survive challenge despite its landowner's usual and expected functions, a state's effects on interstate commerce, provided: (1) it is de- permanent trespass and appropriation of property is signed to promote traditional police power objec- virtually certain to be found a "taking."58 In opposi- tives, such as health or safety, rather than the busi- tion, the classic case of a "regulation" of private prop- ness interests of its own residents; (2) it treats erty is thc statc's prohibition of a noxious use or nui- out-of-state and in-state economic entities even- sance.59 Of coursc, when the state banishes or handedly; and (3) it does not vary from national stan- controls a “harmful" use of private property, it may dards to such an extent that it imposes conflicting ob- be favoring an alternative private use to which sur- ligations or cumulative burdens on multistate rounding property had been or will be committed; businesses. traditional police powers have been stretched conceptually to include regulatory zoning that benefits a Takings Clause Doctrine conforming private use, even when the nonconform- The Fifth and Fourteenth Amendments of the ing use was not recognized as a public or private nui- federal Constitution limit the governmental power of sance at common law.eO eminent domain9 government may "take" private Apart from these polar cases of physical occupa- property, but only for a "public use"; even then, the tion and noxious use, the distinction between a "tak- taking must be accompanied by "just compensation." ing" and a "regulation" has been made on a case-by- By conditioning the power of eminent domain on case basis,@lwith the Supreme Court viewing several both the demonstration of a public purpose and the variables as relcvanl. Among them, diminution in the government's willingness to pay, the takings clause value of property, dcstruction of investment-backed theoretically promotes several objectives: an expen- expectations, and reciprocity of benefits figure diture of public monies should secure a public gain, prominently in Supreme Court precedents. The

20 Advisory Commission on Intergovernmental Relations more substantial the reduction of the value of the pri- cently required a showing that the particular land-use vate property, the more likely it is that a "taking" will regulation chosen by the state would closely and sub- be found.62 Similarly, the more severe the interfer- stantially further the purposes or objectives for the ence with expectations of a reasonable return on pri- regulatory schcme.e8 This "standard of precision," of vate investment, the more vulnerable a state regula- course, far exceeds the burden of proof demanded of tion will be to invalidation for uncompensated the state under the "public use" requirement in emi- losses.63 In contrast, when a state regulatory scheme nent domain or in review of state economic regula- provides a "reciprocity of advantage" by creating par- tion under the due process clause.69 Whether the jus- allel benefits and burdens for all interested parties tices will maintain their hcightened scrutiny of the (for example, in enhancing land value for an alterna- means-ends fit, ol' course, remains to be seen. tive activity at the same time that it diminishes land The fourth issue-whether the state has pro- value for the prohibited activity),64 it is less likely to vided "just compcnsation" for a "taking9'-has as- work a compensable "taking." sumed greater importance since the Supreme Court Despite the judiciary's essentially ad hoc, factual dramatically changcd thc constitutional doctrine of inquiries in distinguishing "takings" and "regula- "inverse condcmnation"70 in 1987. After years of un- tions," it is possible to articulate generally the cir- certainty over the remedial rights of property owners cumstances (apart from the requirements for "public who establish a regulatory "taking,"71 the Supreme use" and "means-ends fit" to be discussed below) in Court has declared that a government must compen- which a state regulatory scheme may impose uncom- sate a property owner for whatever "temporary tak- pensated losses without creating a "taking." The state ing" occurs between enactment and invalidation of an regulation (1) should not impose a permanent and offending regulation, at least when the owner is de- physical occupation of private property; (2) should nied "all use" of the property during that period.72 At not destroy any traditionally recognized attribute of this point, it is not clear how far-reaching the "tempo- the property rights; (3) should not substantially di- rary takings" doctrine will prove to be. For example, minish the commercial value of the property; (4) will the damages remedy be limited to temporary de- should not substantially frustrate expectations of a nial of all ejIective use? What substantial time must reasonable rate of return on investment; and (5) if at pass before a "temporary taking" is likely to be all possible, should secure some reciprocity of advan- found?73 To what damages will the property owner tage for the burdened parties. be entitled-consequential damages, loss of good The second issue in takings clause challenges- wi11?74 Ambiguities notwithstanding, it is evident that whether the state has established a "public use" for the "temporary takings" doctrine will be critical for the private property-is clearly the least problematic state and local land-use regulators: once the doctrine in case doctrine, if only because the Supreme Court is extended to zoning cases, government will has virtually abdicated any serious review of state presumptively be liable for interim damages should regulation under this requirement. As early as 1905, land-use restrictions later be deemed compensable the Supreme Court intimated that any use conducive "taking~."7~Moreover, the doctrine is likely to in- to the public benefit was a "public use" justifying emi- crease economic incentives for challenges to adminis- nent domain, whether or not property was actually trative rulings that inhibit land development.76 devoted to use by the public.65 With the erosion of Cloudy and uncertain as the takings clause doc- the distinction between public and private purposes trine rightly appears, several of its elements have under the takings clause, the "just compensation" re- been revitalized. At the very least, this indicates the quirement has become the surrogate for an inde- potential for a more stringent protection of private pendent inquiry into the public purpose of a "taking" property rights under the federal Constitution that of private property." In its most recent articulation constrains a state's economic regulatory powers un- of the "public use" requirement for eminent domain, der its constitutional and statutory law. Such a signal the Supreme Court acknowledged that the concept is paralleled, as well, in the Fourteenth Amendment of "public use" is essentially "coterminous with the equal protection doctrine. scope of a sovereign's police powers."67 In contrast, the third issue-whether the state Economic Ilue Process can demonstrate an adequate "means-ends fit" (i.e., and Equal Protection Doctrines whether the statutory scheme is sufficiently related Fourteenth Amendment constraints on state to the alleged public purposes)-lately has been res- economic regulation also exist under the due process urrected as a potential obstacle to uncompensated and equal protection cla~ses.~7Although earlier in land-use regulations, and may prove to be an inde- this century thc Supreme Court regularly invalidated pendent requirement in the future for exercises of economic mcasurcs under these clauses,78 the eminent domain even when just compcnsation is pro- Court's decisions since the late 1930s have demon- vided. A narrow majority of the Supreme Court re- stratcd a virtuiil "hands-off'' approach in substantive

Advisory Commission on Intergovernmental Relations 21 review of state economic regulation.79 Generally, the does not rely conceptually and doctrinally on the fed- Court has enforced a rule of "mere rationality": a eral law ruling (i.e., "independence" of state ground), state or local regulation affecting private economic and when the state court's judgment would stand and social interests will not be stricken if there is any even after Supreme Court reversal of its federal law "rational relationship" between the regulatory holding (i.e., "adequacy" of state ground), the judg- scheme and a legitimate legislative objective, even a ment is immunized totally from appellate review by "conceivable" purpose that might have motivated the the Suprcrne Court.89 regulating body.80 At least two ol)jcctives justify the Court's self- In a striking departure from rationality rcvicw, imposed restr;~inlson appellate jurisdiction under the Supreme Court lately has examined much more this doctrine. I:irsl, t he Suprcme Court should avoid carefully the legitimacy of state regulations that dis- unnccessary pronouncements on federal constitu- criminate against the economic interests of out-of- tional and statutory law. particularly if friction with state enterprises.81 A discriminatory measure en- state substantive policies or state judicial procedural acted only for the purpose of promoting domcslic rules might be avoided. Accordingly, the doctrine en- business at the expense of out-of-state trade might sures the necessity for, and the efficacy of, a federal not survive the Court's heightened standard of re- court ruling on appeal that actually resolves a case or view.82 This development is remarkable for at least contro~ersy.~~Second, the Supreme Court should two reasons. First, if it leads to an increased judicial manifest its respect for the state judiciary's role in de- solicitude for private economic interest~,~3the Court veloping and applying state law, constitutional and would be abandoning its post-1930s deference to po- nonconstitutional, substantive and procedural. Thus, litical decisionmaking in areas of socioeconomic pol- the doctrine is a gauge of the strength of "Our Feder- icy. Second, unlike its rulings under the dormant alism." commerce clause, judicial enforcement of the equal The Supreme Court has invoked the doctrine in protection clause would be binding on the Congress both procedural and substantive contexts. In the pro- as well, restricting its authority under the commerce cedural context, a state high court typically refuses to clause to permit parochial favoritism in state eco- decide a fedcral law issue because the federal rights nomic regulation.84 However uncertain the future of claimant has failed to comply with a requirement of equal protection restraints on discriminatory eco- state court procedure. In such a case, it is clear that nomic legislation,85 it is apparent that a state regula- the state procedural ground is "independent" of fed- tion that disfavors out-of-state commercial ventures eral law, and the Supreme Court's inquiry addresses is vulnerable to attack, even with the approval of the "adequacy" of the procedural rationale to bar Congress, if it only furthers a "naked preference" for consideration of the federal law claim.91 In the sub- domestic industry.86 stantive context, however, a state high court judg- mcnt may appcar to rely on both federal and state Authority for State Judicial Declaration substiintivc law, and the Supreme Court's inquiry pri- of State Constitutional Law marily ex~loresthc "independence" of the state law Adequate and Independent grouid:gidid the stale cokunderstand state law as State Grounds Doctrine the basis for its judgment, or did it refer to state law merely as additional support and illustration of a de- Unlike the constitutional provisions described cision controlled by federal law? Discussion will focus above, which restrain all branches of state govern- on the substantive applications of the doctrine, for it ment in their exercise of police and economic regula- is in this context that the doctrine has evolved into a tory powers under state constitutions, the doctrines viable and powerful instrument of "Our Federalism." to be examined in this section focus primarily on the For illustration, compare Case 1 and Case 2 in federal constitutional authority of the federal judici- the following example: ary. These doctrines restrain the federal judicial poweF in the interest of full and effective declara- Case 1: Astate high court holds that a state stat- tion of state law by state courts. Essentially, these ute violates both state and federal con- doctrines recognize and endorse independent state stitutional guarantees. In its considera- judicial development of state law, including state tion of the state law ground, the court constitutional law. finds that the state constitutional stan- Clearly, the independent and adequate state dards violated by the statute are differ- grounds doctrine is the most important among them. ent from those under the federal Con- This doctrine vrevents the U.S. Supreme Court from stitution.g3 reviewing a state high court judgment that ultimately Case 2: A st;~tchigh court holds that a state rests on a determination of state law, even though the st;Wlc violatcs both state and federal state court may have erroneously dccidcd an issue of constiluticlncil guarantees. The court federal law.88 When resolution or the state ground rc;tsons that the state and fedcral provi-

22 Advisory Commission on Intergovernmental Relations trines, these rules generally apply when a fcdcral dis- equitable action for declaratory judgment or injunc- trict court is asked to grant injunctive or declaratory tive relief challenging the federal constitutionality relief to prevent alleged violations of federal consti- of astate law or an official act which is the subject tutional rights by state executive, administrative or of a pending judicial or administrative proceeding judicial officials in their enforcement of state law.103 brought by the state against the federal plaintiff. In federal court actions against state and local gov- The Supreme Court's current solicitude for ernments, familiarity of governmental counsel with "Our Federalism" first congealed in the crucible of these rules will maximize the opportunities for state the equitable restraint doctrine.1l2The intricate web court adjudication of state constitutional law issues. of rules subsumed under this doctrine113 may promote "comity" between federal and state co6rts in Pullman Abstention Doctrine. Where adjudica- several ways. By refusing to intervene in state adjudi- tion of an unclear and unsettled question of state law cations in ordcr to explore a federal constitutional would dispose of a substantial and sensitive federal question, federal district courts do not disrupt the constitutional question, a federal district court must normal processes of the state judiciary, and do not temporarily abstain from exercising jurisdiction in or- foreclose their opportunities for independent devel- der to give the state courts an opportunity to decide opment and enforcement of state substantive law,ll4 the state law issue. including state constitutional law. Furthermore, the The rule of Pullman abstention104 recognizes federal district courts demonstrate confidence in the that federal courts should exercise their equitable competence and good faith of the state judiciary to powers so as to avoid the "waste" of an unnecessary enforce the guaritntccs of the federal Constitu- and tentative decision on fcdcral constitutional tion.l15 Whether thc cquitablc restraint doctrine ef- grounds,lOs and to accord due respect for state adju- fectively attains its purposcs,ll6 it symbolizes the dication of ambiguous state law issues.106 Abstention dedication of contemporary fedcral constitutional is conditioned, however, on real uncertainty in the in- law, in a numbcr ol'areas, to the maintenance of "Our terpretation of a state law; generally, the federal Federalism." court will not be confident that a bona fide dispute over the meaning or purpose of the state law c& be resolved by construing the text or by relying on defini- Conclusion tive state court precedents. Even significant ambigu- This overview of eight federal constitutional doc- ity will not trigger abstention, however, unless clarifi- trines only sketches the outlines of the greater feder- cation of the state law may avoid the need for further alist design. At the same time that it restricts state ac- consideration of the federal constitutional issue. No- tion, American fcderalism recognizes broad state tably, the Supreme Court has not yet required ab- powers to ordcr public rights and private liberties in stention in the face of a potential state constitutional economic ventures and political and civil activities. In challenge, although invalidation of the state law on the efforts of statc government to strike a balance this basis would clearly moot the federal constitu- among competing public policy objectives, state con- tional question.lo7 stitutional law has a central role to play. The potential for state constitutional involvemeni must be un- Abstention in Diversity Actions. A federal dis- derstood and the extent of its authority enforced. trict court may abstain from exercising diversity juris- Understanding this potential is not, however, an diction to adjudicate an unclear and unsettled issue of effortless or risk-free task. As the prior discussion state law where there is the potential for federal in- should illustrate, successfuI navigation of federal terference with the operation of state law in a sensi- constitutional restraints requires careful study of the tive area of state policy. rocks and shoals on which the independent develop- The Supreme Court has extended the abstention ment of state conslitutional law might founder. Reli- doctrine to federal diversity actions challenging state ance on any broad-brushcd or abstract concept of in- policies in significant public regulatory fields, such as herent statc sovereignty is unlikely to immunize state eminent domain proceedings1°8 and management of action from feclentl limitations. Only a precise identi- essential state industries.109 In these instances, ab- fication of the federal constitutional doctrines irnpli- stention often prevents federal intermeddling in the cated by state regulations or judicial rulings, and a de- operation of complex and technical administrative tailed analysis of the parameters within which state schemes involving difficult questions of state 1aw.l lo policymaking may safely operate, will ensure the vi- Federal district courts are not required to relinquish ability of the state constitutional law enterprise. diversity jurisdiction, however, merely because poli- The warning of Justice Robert Jackson, written cies important to the domestic interests of a state are for an analysis of "inherent" presidential powers, cha1lenged.l l takes on a differcnt and special meaning in the con- Equitable Restraint Doctrine. A federal district text of the evolution of state constitutional law: "But court must refrain from exercising jurisdiction in an I have no illusion that any decision by this Court can

24 Advisory Commission on Intergovernmental Relations keep power in the hands of [state government] if it is used by the Warren Court to protect political speech ac- not wise and timely in meeting its problems. . . .If not tivities. See Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Hudgens v. National Labor Railroad Board, 424 U.S. 507 good law, there was worldly wisdom in the maxim at- (1976). Of course. this development set the stage for in- tributed to Napoleon that 'The tools belong to the dependent slate protection of free speech under state man who can use them.' "117 The federal judiciary has constitutions. Scc chapter 4. In addition, the Rehnquist created opportunities for state foresight and assump- Court seriously undermined the potential for finding tion of responsibility. While nascent, the current state action in a "symbiotic" economic relationship between the state and a private party in San Francisco Arts movement to integrate state constitutions into the and Athletics Inc. v. United States Olympic Committee, processes of state lawmaking signifies that the prom- 107 S.Ct. 207 1 (1087). For an analysis of the potential un- ises of "Our Federalism" might be realized. der state constitutional law for rejecting the Fourteenth Amendment state action doctrine, see David Skover, NOTES "The Washington Constitutional 'State Action' Doc- trine: A Fundamental Right to State Action," University Younger v. Harris, 401 U.S. 37,44-45 (1971). of Puget Sound Law Review 8 (1985): 221-82. 21n federal constitutional history, the year 1937 is generally regarded as the birthdate of a radical shift in federal 7The Burger Court has not materially broadened the judicial thought, which ratified the expansion of federal categories of "suspect classes" or "fundamental rights," administrative authority over economic and police which are especially protected under the equal protec- power affairs that formerly had fallen within the domain tion clause, beyond those established by the Warren of state law. This movement in constitutional jurispru- Court. In addition, the Court imposed a substantial bur- dence originated with the Supreme Court's sanction of den on civil rights plaintiffsby requiring proof of inten- broad Congressional powers under the commerce tional discrimination before an equal protection dis- clause. See, e.g., National Labor Relations Board v. crimination claim will be upheld. Washington v. Davis, Jones and Laughlin Steel Corp., 301 U.S. 1 (1937). For 426 US. 229 (1976). Recently, the Rehnquist Court ex- accounts of the post-1937 "revolution" in federal consti- tended this requirement to hold that a challenge of racial tutional doctrine and theory, see Grant Gilmore, The discrimination in a petit jury must be based on proof that Ages of American Law (New Haven: Yale University the jury members acted with discriminatory purpose in Press, 1977); Laurence Tribe, American Constitutional the criminal defendant's own trial. McCleskey v. Kemp, Law (Mineola. New York: Foundation Press. 1988). DD. 107 S.Ct. 1756 (1987)., , 297-316,378-3'97; David Skover, " 'Phoenix ~isin~;'Ed 8Pruneyard Shopping Center v. Robins, 447 U.S. 74 Federalism Analysis," Hastings ConstittitionalLaw Quur- (1980). Further discussion of the Pruneyard decision and terly 13 (1986): 271,281-284. its import for the evolution of free speech doctrine under 3See Ronald Collins and David Skover, "The Future of state constitutions is found in chapler 4, Liberal Legal Scholarship: A Commentary," Micliignn Law Review 87 (October 1989): 1899-239. gGarcia v. Sat1 Antonio Mctropolitan Transit Authority, 105 S.Ct. 1005 ('1985) (no independent Tenth Amend- 4For example, the Burger Court created a "public safety" ment limitation on Congress' commerce powers), over- exception to the Fourth Amendment rules against jnvol- ruling National Izague of Cities v. Usery, 426 U.S. 833 untary confessions in New York v. Quarles, 104 SCt. (1965). 2626 (1984), and a "good faith" exception to the exclusionary rule in United States v. Leon, 104 S.Ct 3405 1°The Garcia decision stressed that judicial limitation of (1984). Moreover, after many years in which federal Congress' commerce powers in the interest of the states habeas corpus had encompassed claims under the exclu- could be justified only by possible breakdowns in the sionary rule, the Burger Court held in Stone v. Powell, structural or procedural restraints that protect the states 428 U.S. 465 (1976), that it would not be available to re- within the national political processes. 105 S.Ct. at view search and seizure decisions reached after full con- 1019-20. This emphasis on judicial review of the national sideration in state courts. Excellent analyses of the cur- political process invites the adoption of standards to en- tailing of constitutional rights for criminal defendants sure adequate consideration and weighing of state inter- recognized by the Warren Court are provided in ests implicated in federal interstate commerce regula- Leonard Levy, Against the Law: The Niron Court and tion. These standards might require a "clear statement" Criminal Justice (New York: Harper and Row, 1974); in legislative history that conscious and deliberate atten- Yale Kamisar, Police Interrogations and Co~lfessions tion was given tostate interests in striking the balance in (Ann Arbor: University of Michigan Press, 1980). favor of federal commerce regulation. In fact, the Court =The right of privacy in sexual relations, recognized for has already hinted at the viability of such standards for married couples in Griswold v. Connecticut,38 1 U.S. 479 judicial review of federal commerce clause legislation in (1965), and for unmarried heterosexuals in Eisenstadt v. United States v. I3ass, 404 US. 336 (1971), and has im- Baird, 405 U.S. 438 (1972), was not extended by the posed a stringent "clear statement" rule in challenges Rehnquist Court in Bowers v. Hardwick, 478 U.S. 186 to commerce clause legislation under the Eleventh (1986) to consenting adult homosexual activity in the pri- Amendment. See, e.g., Atascadero State Hospital v. vacy of the home. Some scholars consider Bowers to sig- Scanlon, 105 S.Ct. 3142,3149-50 (1985). For discussion of nal the demise of the current doctrine of privacy. See judicial review of the national political process under the e.g., Daniel 0. Conkle, "The Second Death of Substan- commerce cli~use.see Skover, " 'Phoenix Rising' and tive Due Process," Indiana Law Jo1r17ml 62 (1987): Fcdcralism Analysis." 1585-94. l1 Sce, e.g.. Vallcy 170rgcChristian College v. Americans 61n its notorious "shopping center" cases, the 13urgcr Ilnilctl, 454 IJ.S. 404 (1982Xfcderal taxpayer standing); Court compromised the force of the "public function" Allen v. Wright, 104 S.Ct 3315 (1984Xminority class rationale for the state action doctrine, which had been standing).

Advisory Commission on lntergovemmental Relations 25 "For analysis and critique of reccnt dcvclcrpmcnts in thc of Art. IV, 2, thc: rcslriclions on state taxation of inter- Eleventh Amendment sovercign ininiunily doctrine, state comnicrcc. t hc breadth of congressional spending see, e.g., Akhil R. Amar, "Of Sovereignty and Fcder;~l- power for the "gcneral welfare," the incorporation of the ism," Yale Law Journal 96 (1987): 1425, and Skovcr, 1311 of Rights through the Fourteenth Amendment due " 'Phoenix Rising' and Federalism Analysis," pp. 298- process clause, the Fourteenth Amendment equal pro- 303. tection clause, and the Art. I11 limits on federal court power (particularly the standing and political question 13See generally Ronald Collins and Peter Galie, "Models doctrines)-all constrain state authority, to a greater or of Post-Incorporation Judicial Review: 1985 Survey of lesser degree, to regulate economic and sociopolitical in- State Constitutional Individual Rights Decisions," terests under state constitutional and nonconstitutional Publius: The Journal of Federalism 16 (Summer 1986): law. Of course, even a cursory study of the full body of 111-140; Collins and Galie, "State Constitutional Cases these doctrines is beyond the scope of this chapter. and Commentaries," National Law Journal (Sept. 29, Three criteria distinguish the doctrines selected for re- 1986): p. S 9, col. 2; Collins, Galie, and John Kincaid, view here. First, traditional federal constitutional con- "State High Courts, State Constitutions, and Individual structs for examination of federalism issues have been Rights Litigation since 1980: A Judicial Survey," Publius: fashioned through these doctrines, particularly the pre- The Journal of Federalism 16 (Summer 1986): 141-163. emvtion and dormant commerce clause doctrines. Sec- 14See Collins and Skover, "The Future of Liberal Legal ond, several of these doctrines have been especially im- Scholarship," Parts IV-A and IV-B. portant in the evolution of the state constitutional law movement, including preemption, independent and 15This chapter's analysis of federal constitutional doc- adequate state law grounds, abstention and equitable re- trines often draws on the rulings in US. Supreme Court straint doctrines. 'Third, recent Supreme Court develop- cases decided in the second half of the 20th century. Such ments in several of these doctrines, including the dor- a reliance neither implies that the federal Constitution mant commerce clause, takings clause and economic means only what the Supreme Court interprets it topro- equal protection doctrines, have taken unanticipated vide nor suggests that the political branchcs of the fcd- turns, which may ;ill'cct significantly the exercise of tradi- era1 government play no role in defining the scope of tional state police powers. primarily with respect to busi- state power under the Constitution. Indeed, it is impnr- ness and land use rcgulation. tant not to equate federal constitutional thought cxclu- sively with courts, or to neglect the impact of congres- 17Article VI, cl. 2 of the U.S. Constitution provides: sional and executive action on the constitutional process. This Constitution, and the Laws of the United See Collins and Skover, "The Future of Liberal Ixgal States which sh;~llbc niadc in Pursuance thereof; Scholarship" (stressing the need for legislative scholar- and all Treatics madc, or which shall be made, ship); William N. Eskridge and Phillip P. Frickey, "Legis- under the Authority of the United States, shall lation Scholarship and Pedagogy in the Post-Legal Pro- be the supreme Law of the Land; and the Judges cess Era," Univemity of Pittsburgh Law Review 48 (1987): in every State shall be bound thereby, any Thing 691-73 1, 691,693,709-10,716-19,724-25); Ronald Col- in the Constitution or Laws of any State to the lins and David Skover, "The Senator and the Constitu- Contrary notwithstanding. tion: An Interview with Omn G. Hatch" (interview and annotations presenting a constitutional "profile" of lBSee, e.g., Jones v. Rath Packing Co., 430 U.S. 519,536-37 Senator Hatch). Rather, this chapter's focus on jurispru- (1977) (state labelling regulation held expressly dence is a function of necessity. Two of the federal con- preempted by congressional prohibition of any labeling stitutional provisions discussed in the first section of the and packaging requirements in addition to those under chavter-the suvremacy and commerce clauses-re- federal statutes). str& astate's la6makingunder its own constitution pri- 19See,e.g., City of Burbank v. Lockheed Air Terminal, 411 marily by force of Supreme Court interpretations that U.S. 624 (1973) (city ordinance regulating aircraft noise either presume an absence of congressional action-in conflicted with purposes of Federal AemnarrticsAct to in- the case of the dormant commerce clause doctrine-or sure the efficient utilization of airspace); Amalgamated take congressional action as a fait accompli-as in the Association of Street, Electric Railway and Motor Coach preemption doctrine. The remainder of the first section Employees of America v. Lockridge, 403 U.S. 274, 296 treats those federal guarantees of individual property (1971Xpervasivencss of federal regulation of labor rela- rights-the takings clause and the due process and cqual tions precluclcs state wrongful discharge actions requir- protection clauses-that have been revitalized by rcccnt ing interpretation of labor contract's union security Supreme Court interpretations to place potentially se- clause). 'The cxistcnce of a federal agency with broad vere constraints on a state's econoniic regulatory powers regulatory powers in a particular subject area is relevant under its constitutional and statutory law. Finally, all of to the issuc of Congressional intent to preempt a field. the doctrines described in the second section of the Scc, e.g., ?'e:~n~stcrsLocal 20 v. Morton, 377 U.S. 252 chapter concern the constitutional power of the federal (1964Xstatt: rcstrict~onson striking activities preempted courts vis-a-vis state judicial and political governmental by national lalnrr regulations). But a federal agency's ex- actors, and derive from Supreme Court constructions of istence is not dispositive of the issue of federal occupa- Article I11 of the U.S. Constitution and of congressional tion, particularly when state regulation of an aspect of in- grants of jurisdiction. terstate commerce may concern itself with "local" '6This chapter presents only a partial vision of the re- matters. See, e.g., Pacific Gas and Electric Co. v. State straints under the U.S. constitution on state lawmaking, Energy Resources Conservation and Development including state constitutional law development. Among Commission. 461 U.S. 190 (1983) (California statute individual rights and federalism doctrines that are not aimed at the cconomic problems of storing and dispos- treated here-the specific limitations on state power in ing of nuclear waste is not preempted by extensive fed- Art. I, 10 (particularly the commerce clause doctrine), eral regulation of the nuclear power industry through the the requirements of the privileges and immunities clause Nuclear Regulatory Commission).

26 Advisory Commission on Intergovernmental Relations Z0Subject areas committed to congressional regulation un- ism, see Note, "The Preemption Doctrine: Shifting Per- der U.S. Constitution, Art. I, 8, such as bankruptcy, pat- spectives on Federalism and the Burger Court," Colum- ent and trademark, admiralty, and immigration, have bia Law Review 75 (1975): 623 (surveying common been found regulatory fields of dominant federal interest directions in preemption decisions from the early 1900s in which state activity may be barred. See, e.g., Hines v. to 1974). Davidowitz, 312 U.S. 52 (1941) (Pennsylvania's Alien ZSThe term "cooperative federalism" refers to the notion Registration Act preempted by federal Alien Registration that national socioeconomic policy is the joint product of Act because regulation of aliens and foreign affairs is of federal and state governmental regulation. The main primary national concern); Ramah Navajo School features of cooperative federalism-overlapping of fed- Board, Inc. v. Bureau of Revenue, 458 U.S. 832 (regula- eral and state spheres of economic and police powers, tion of Indian educational institutions falls within an sharing of political responsibilities and financial re- area of peculiarly federal interest). sources, and interdependence of administration-are 21See, e.g., McDermott v. Wisconsin, 228 US. 115 associated typically with federal grant-in-aid programs. (1913Xproper labelling of syrup for retail sale under Fed- See Edward S. Convin, Constitutional Revolution, Ltd. eral Food and Drugs Act regulations would have violated (Claremont, California: Pomona College, Scripps Col- state statutory requirements for labeling); Southland lege, Claremont College. 1941); Scheiber, "Cooperative Corp. v. Keating, 465 U.S. 1 (1984) (California statute Federalism," in 2 lkcyclopedia, p. 503. nullifying arbitration clauses in contracts in direct con- 26The federal judiciary's contemporary approach in flict with Federal Arbitration Act). preemption-marked by a protective attitude toward state economic and police regulatory power-was ush- 22See, e.g., Nash v. Florida Industrial Commission 389 US. ered in by four Supreme Court decisions in 1973 and 235 (1967) (invalidated state unemployment compensa- 1974: Goldstcin v. California, 412 US. 546 (1973Xstate tion law as applied to deny benefits to applicants bccause prohibition of rcprtduction of misappropriated phono- they had filed an unfair labor practice charge with the graph records uphcld under narrow construction of Art. N.LR.B.); City of Burbank v. Lockheed Air Terminal, I, 8 copyright claust:): Ncw York State Department of So- Inc. It is possible that judicial enforcement of the full pol- cial Services v. Jhblino, 413 U.S. 405 (1973XNew York icy objectives underlying a congressional regulatory requirement that recipients of federal AFDC benefits scheme will have the unantici~atedim~act of discourae- accept employn~entnot preempted by federal welfare ingstate constitutional desigk that dhegate economyc regulations); Kewanee Oil Co. v. Bicron Corp., 416 U.S. and police powers to local governmental units. An inter- 470 (1974Xfederal patent law does not preempt state esting example of this phenomenon is found in Commu- trade secret law); Merrill Lynch, Pierce, Fenner and nity Communications Co., Inc. v. City of Boulder, 455 Smith, Inc. v. Ware, 414 US. 117 (1973Xstate statutory U.S. 40 (1981), in which the television cable broadcasting directive prohibiting judicial enforcement of arbitration regulations of a "home rule" municipality, granted ex- clauses in employee suits for collection of wages not tensive powers of self-government by its state constitu- preempted by a Se~vritiesExchange rule of arbitration tion, were held to be subject to the restraints of federal of any controversy arising from employment termina- antitrust legislation, as the municipality's economiccon- tion). The Burger Court's early change of direction in the trols did not enjoy immunity under the "state action" ex- presumptions underlying the Preemption Doctrine is emption. discussed in Note, "The Preemption Doctrine," 639-51. 23For a description of theoretical stages in the Supreme Z7In the Supreme Court's most recent preemption deci- Court's develo~mentof federalism doctrine. as viewed in sion to date, the Justices unanimously articulated this the context of Congress' interstate commerce powers, presumption as follows: see Skover, " 'Phoenix Rising' and Federalism Analysis," As we have repeatedly stated, "we start with the pp. 273-91. See also Tribe, American ConstitutionalLaw; assumption that the historic police powers of the Scheiber, "Federalism (History)" and Elazar, "Federal- States were not to be superseded by the Federal ism (Theory)," in Leonard W. Levy, Kenneth L Karst, Act unless that was the clear and manifest pur- and Dennis J. Mahoney, eds., Encyclopedia of theAmeri- pose of Congress." can constihihrtion, Vol. 2 (New York: Macmillan Publish- Puerto Rico Department of Consumer Affairs v. Isla Pe- ing Co., 1986), pp. 697-708 (hereinafter Encyclopedia). troleum Corporation, 56 U.S.L.W. 4307, 4308 (1988), z4Two eras of constitutional federalism-the pre-1930s quoting Hillsborough County v. Automated Medical and the period from 1940 to 1973-were characterized Laboratories, Inc. 471 US. 707, 715 (1985) quoting by Supreme Court solicitude for national intcrests under Jones v. Rath Ikking Co., 525. the preemption doctrine, but for different theoretical The state-protective presumption for the constitutional reasons. Prior to the 1930s. the Su~remeCourt's "dual preemption doctrine has been reinforced by recent sovereignty" perspective, which Agidly differentiated guidelines For federal executive interpretation of legisla- federal and state spheres of uower, was fortified by apre- tive policies that have federalism implications. President sumption of federal preemption in any field that theted- Ronald Reagan's Executive Order on Federalism re- era1 government might constitutionally regulate and did quires executive departments and agencies to construe a in fact regulate. In contrast, during the Warren Court federal statute to preempt state law only when the stat- years, an expansive preemptive scope in any federal ute contains an express preemption provision, when scheme that regulated a substantial industry solidified there is compelling evidence of congressional preempt- the jurisdiction of nascent federal administrative agen- ive intent, orwhen the exercise of state authority directly cies, and secured the primacy of federal control in areas conflicts with the exercise of federal authority under the of traditional state economic and police regulation, in- federal statute. See Executive Order 12612, Federal Reg- cluding labor law, civil rights, welfare entitlements. and ister, Vol. 52. No. 210. pp. 41685-688 (October 30, 1987). criminal law. For an excellent analysis of changes in the 28See, e.g., C.T.S. Corp. v. Dynamics Cop. of America, Supreme Court's preemption doctrines in tandem with 107 S.Ct. 1637 (1987)Qndiana statute regulating take- the Court's evolving concepts of constitutional federal- overs not preempted by WilliantsAct that governs hostile

Advisory Commission on Intergovernmental Relations 27 corporate stock tender offers); Wardair Canada, Inc. v. vides for vesting of voting rights 50 days after Florida Department of Revenue, 106 S.Ct 2369, 2372 commencement of an offer, within the 60-day maximum (1986Xstate sales taxation of airline fuel not preempted period Congress established for tender offers); Florida despite the fact that "agencies charged by Congress with Lime and Avocado Growers v. Paul, 373 U.S. 132, 143 regulatory responsibility over foreign air travel exercise (1963) (California law which regulated the marketing of power. . . over licensing, route services, rates and fares, avocados sold in the state did not actually conflict with tariffs, safety, and other aspects of air travel"). If Con- federal regulations of Florida avocado production, be- gress terminates or substantially reduces regulation of a cause joint compliance was not impossible if Florida field, the federal judiciary is not likely to require an ex- growers allowed the fruit to mature beyond the earliest press intent to retransfer regulatory authority to the picking date permitted by federal regulations). states before finding that Congress has abandoned the 32See, e.g., Schneidcwind, 4254 (preemption of Michigan field. See Puerto Rico Department of Consumer Affairs natural gas rate regulation supported by the "imminent v. Isla Petroleum Corp., 4308 (congressional purpose to possibility of collision" bctwcen the state and federal mandate a freemarket regime in the ficld of petrolcum laws, without a tlcn~onstrationthat the impossibility of allocation and pricing and to preempt all state regu lotion dual compliance would I-K: an "inevitable consequence"). of the field cannot be implied merely from thc expiration of a former and comprehensive federal regulatory 33In the absence or a finding that Congress has occupied scheme). the reaulatow ficltl, a state law which either serves identical o~siniili~.ohjcctivcsas fcderal law, or furthers a tra- 29For example, in C.T.S. Corp., the Court noted that the ditional statc purpose which is distinct, yet consonant WilliamsAct would preempt a variety of state corpora- with federal obiectives, is likely to be sustained as ''SUD- tion laws authorizing staggered boards of directors and plementary"st~teaction. see, e.g.,C.T.S. Corp., 1645& cumulative voting, if it were construed to invalidate any (Indiana's protection of shareholders from coercive state statute that may limit or delay the free exercise of takeover offers furthers the federal policy of investor power after a successful tender offer. The Court re- protection in the WilliamsAct); Silkwood v. Ken-McGee sponded: Corp., 464 U.S. 238 (1984) (traditional tort remedies, in- The long-standing prevalence of state regula- cluding compensatory and punitive damages, may be tion in this area suggests that, if Congress had in- awarded to victims of radiation injuries from nuclear tended to preempt all state laws that delay the power plants without frustrating the federal purposes to acquisition of voting control following a tender occupy the entire field of nuclear safety concerns under offer, it would have said so explicitly. the Atomic Ener~yAct; whatever compensation standard 30See, e.g., Schneidewind v. ANR Pipeline Co., 56 the state might impose, the nuclear licensee remains free U.S.L.W. 4249 (1988) (Michigan statute controlling the to operate under the federal standards for construction approval of securities issues by public utilities which dis- and safety and to pay for any injury that results). tributed natural gas in the state preempted by the Naiu- 34Article I, 8, cl. 3 of the U.S. Constitution provides: ml Gas Act). The Court determined that the Michigan [The Congress shall have Power] to regulate statute was designed to protect investors and ratepayers Commerce with foreign Nations, and among the by ensuring "efficient and uninterrupted service at rea- several States, and with the Indian Tribes. sonable rates." The state's attempt to direct rate setting fell within the aegis of the Natural GasAct (NGA), which 35This analysis of dormant commerce clause doctrine does had conferred on the Federal Energy Regulatory Com- not examine the case law particular either to discrimina- mission (FERC) exclusive jurisdiction over the rates and tory and cumulatively burdensome state taxing schemes facilities of natural gas companies that engaged in the or to intergovernmental tax immunities. For useful dis- wholesaling of natural gas in interstate commerce. Al- cussions of thcsc areas, see Paul J. Hartman, Federal though NGA had not expressly authorized FEKC to Litnitations on Stirtc. and Local Taxation (Rochester, New regulate the issuance of securities by natural gas compa- York: Lawyers Ctroperative Publishing Co., 1981) nies, the state's pre-issuance review of securities 21-2:20,6:l-628; Jerome R. Hellerstein, State Taxation: amounted to a regulation in the field of gas wholesales Cotporatc. Inconw rind Franchise Tar RT. 1(New York: that Congress "had occupied to the exclusion of state Warren Gokham and Lamont 1983) Vol. I 4.1-4.16. law" by "a comprehensive scheme of federal regulation." 36For theoretical analyses of the designs and objectives of The Court concluded: the dormant commerce clause doctrine, see, e.g., Earl In short, the things [the Michigan statute] is di- Maltz, "How Much Regulation Is Too Much-An Ex- rected at . . . are precisely the things over which amination of Commerce Clause Jurisprudence," George FERC has comprehensive authority. Of course, Warlringtotl Law Review 50 (1981): 47 ("free location every state statute that has some indirect effect principle" in dormant commerce clause); Henry P. on rates and facilities of natural gas companies is Monaghan, "Foreword: Constitutional Common Law," not preempted. [The Michigan statute's] effect, Hatvard Law Review 89 (1975): 1, (constitutional com- however, is not "indirect." In this case we are mon law doctrine based on national free trade philoso- presented with a state lawwhose central purpose phy); Donald H. Regan, "The Supreme Court and State is to regulate matters that Congress intended Protectionism: Making Sense of the Dormant Com- FERC to regulate. Not only is such regulation merce Clause," Michigan Law Review 84 (1986): 1091 the function of the federal regulatory scheme, (primary purpose is prevention of purposeful economic but the NGA has equipped FERC adequately to protectionism); MarkV. Tushnet, "Rethinking the Dor- address the precise concerns [the Michigan stat- mant Commerce Clause," Wisconsin Law Review (1979): ute] purports to manage. 125 (economic "efficiency" concerns). 31 See, e.g., C.T.S. Corp., 1647 (no actual conflict requiring 37The classic slatcment of the purposes and functions of preemption of Indiana takeover regulation, since it is en- the Dormant Conimerce Clause Doctrine was articu- tirely possible for entities to comply with both the Intli- lated by Justice Robert Jackson in H. P. Hood and Sons, ana statute and the CVilliarnsAct;the Indiana slatutc pro- Inc. v. I>u MonJ, 336 lJ.S. 525,534-39 (1949):

28 Advisory Commission on Intergovernmental Relations While the Constitution vests in Congress the contexts, such as enforcement of the commerce clause power to regulate commerce among the states, it against congressional legislation or enforcement of the does not say what the state may or may not do in contract and takings clauses against state legislation. It the absence of congressional action. [This] must be remembered that the restraints of the dormant Court has advanced the solidarity and prosperity commerce clause operate in the "silence" of Congress. of this Nation by the meaning it has given to Coneress mav alwavs dis~lacedormant commerce clause these great silences of the Constitution. . . .[The] decisons by &irm&tiveiy regulating, either to preempt principle that our economic unit is the Nation, state regulation of interstate commerce or to authorize which alone has the gamut of powers necessary state interference wilh interstate commerce. See, e.g., to control the economy, including the vital Prudential Insurance Co. v. Benjamin, 328 U.S. 408 power of erecting customs barriers against for- (1946) (ICfcCb17utr-l;ergrrsottAct, reserving to the states eign competition, has as its corollary that the the power to regulate insurance, allows for discrimina- states are not separable economic units. . . . Our tory taxes on prcmiums paid to out-of-state insurance system, fostered by the Commerce Clause, is firms). that every farmer and every craftsman shall be %ee, e.g., City of Philadelphiav. New Jersey, 437 U.S. 617 encouraged to produce by the certainty that he (1978) (invalidating a New Jersey law which prohibited will have free access to every market in the Na- the importation of solid or liquid waste collected outside tion, that no home embargoes will withhold his the territorial limits of the state); Hughes v. Oklahoma, exports, and no foreign state will by custom du- 441 U.S. 322 (1979) (invalidating an Oklahoma law that ties or regulations exclude them. Likewise, every barred the export of minnows taken from state waters). consumer may look to the free competition from 41 See, e.g., Hunt v. Washington Apple Advertising Com- every producing area in the Nation to protect mission, 432 U.S. 333,349-51 (1977)(invalidating a North him from exploitation by any. Such was the vi- Carolina statute that prohibited closed containers of ap- sion of the Founders; such has been the doctrine ples shipped into or sold in the state to display any grade of this Court which has given it reality. other than the applicable US. grade or standard). De- Woncurring in Duckworth v. Arkansas, 314 U.S. 390, spite the evenhanded treatment of local and out-of-state 400 (1941), Justice Robert Jackson explaincd that con- producers on the face of the statute, because North gressional inertia in eliminating state obstructions to in- Carolina had no grading requirements at all, the regula- terstate commerce justified judicial activism under the tion exclusively burdened out-of-state producers with dormant commerce clause doctrine: strict grading requirements. The Court attached sub- [These] restraints are individually too petty, too stantial weight to the fact that, by stripping Washington diversified, and too local to get the attention of a of the competitive advantages it had enjoyed through its Congress hard pressed with more urgent mat- rigorous inspection and grading system, the statute ap- ters. [The] sluggishness of government, the mul- peared to serve an intentionally discriminatory purpose. titude of matters that clamor for attention, and 42Sce, e.g., Maine v. 'Taylor, 106 S.Ct 2440 (1986)(Maine's the relative ease with which men are persuaded total ban on the importation of live bait fish, supported to postpone troublesome decisions, all make in- by bona fide concerns for the health and safety of the ertia one of the most decisive powers in deter- slate's wild fish stock, sustained in the absence of reason- mining the course of our affairs and frequently able non~lisc.~.imin;atoryalternatives to the discrimina- give to the established order of things a longevity tion against interstate commerce); Mintzv. Baldwin, 289 and vitality much beyond its merits. U.S. 346 (3933) (upheld New York law requiring all cattle In this regard, see also Ernest J. Brown, "The Opcn importcd into the state for dairy or breeding purposes to Economy: Mr. Justice Frankfurter and the Position of be inspected for Bang's disease). the Judiciary," Yale Law Journal 67 (1957): 219, 222 431n other terms, the state must demonstrate that out-of- ("Nor has Congress been so idle that such matters could state entities are the peculiar source of an evil which the be assured a place on its agenda without competition state may legitimately aim to control. Contrast City of from other business which might often be deemed more Philadelphia (New Jersey's legitimate environmental pressing"). Public choice theory may support the role of goals could have been met by a nondiscriminatory regu- the judiciary in enforcement of the dormant commerce lation of the amounts of waste deposited in the state's clause. If the benefits of economic parochialism are con- private landfills, regardless of their state of origin) with centrated within a small, easily organized group of state Maine v. Taylor (parasites and sea animals that might industries, invalidation of state protectionist legislation upset the ecological balance of Maine's unique fisheries allocates the burden of overcoming congressional inertia were not native to Maine waters, and there existed no on the interest group that has the most economic incen- satisfactory way to inspect baitfish shipments to screen tive to seek favorable federal regulation. See, e.g., James the harmful conditions). Q. Wilson, Tlze Politics of Regulation (New York: Basic 44Asolid majority of the Supreme Court recently affirmed Books, 1980), pp. 366-70 (need for a "watchdog" for the the exacting nature of its review of discriminatory state public interest in the case of "client politics"); Mancur economic regulation under the commerce clause in Olson, The Logic of Collective Action: Public Goods mid Brown-Forman Distillers Corp. v. New York State Liq- the Theory of Groups (Cambridge: Harvard University uor Authority. 106 S.Ct 2080,2084 (1986): Press, 1965), pp. 1-3, 53-65, 125-31 (relatively small When a state statute directly regulates or dis- groups with concentrated economic interests are more criminates against interstate commerce, or frequently able to mobilize political power than rela- when its effcct is to favor in-state economic tively large, latent groups with dispersed economic inter- interests ovcr out-of-state interests, we have ests). generally struck down the statute without fur- 391n one important sense, judicial enforcement of the dor- ther inquiry. mant commerce clause doctrinc against state cconomic 45See, e.g., I3ibh v. Navajo Freight lines, Inc., 359 US. 520 regulation differs from constitutional decisions in other (1959) (invalidating Illinois' mudguard regulation as ap-

Advisory Commission on Intergovernmental Relations 29 plied to interstate trucking intlust~y,as the rcgul;ition Commerce ('lause" (focus of inquiry should be distor- varied from the uniform requircmcnts of other states tions in statc poli1ic;il prt~csscs). without any evident safety advantage and actually con- 50Sce,e.g., I~ughcsv. Alcxanclria Scrap Corp., 426 U.S. 794 flicted with the requirements of one state). (1976) (susta~ninga Maryland program designed to re- 46See, e.g., Brown-Forman Distillers Corp. v. New York duce the number of junked automobiles in the state by State Liquor Authority (invalidating New York price iif- establishing a "bounty" on Maryland-licensed junk cars firmation law, which required liquor distillers and pro- and imposing more stringent documentation require- ducers selling liquor in New York to seek the permission ments on out-of-state scrap processors than on in-state of the liquor authority before lowering prices in other competitors); White v. Massachusetts Council of Con- states, because it effectively gave the state agency the struction Employers, Inc., 460 US. 204 (1983) (uphold- power to control prices beyond the state's borders); ing an order of the mayor of Boston that all construction Edgar v. MITE Corp., 457 U.S. 624,644(1982)(invalidat- projects funded by the city must be performed by a work ing Illinois' takeover statute that regulated tender offers force including one-half bona fide city residents). for multistate corporations if 10 percent of shareholders 51 See, e.g., Reeves v. Stake, 447 U.S. 429 (1980) (upholding were state residents; criticizing the statute's extratenito- the policy of a state-owned cement plant to favor in-state rial sweep, the majority held that a "state has no legiti- customers in times of product shortage). mate interest in protecting nonresident shareholders"); 52See South-Central Timber Development v. Wunnicke, but, compare C.T.S. Corp. (sustaining Indiana's take- 467 U.S. 82 (1984)(invalidating contractual requirement over statute regulating only the corporations that the of Alaskapublic corporation that timber sold by the state state has chartered). at preferential prices be processed within the state. for 47The balancing approach in dormant commerce clause imposition of unconstitutional regulatory conditions doctrine is associated with its most celebrated statement downstream in the timber processing market). in Pike v. Bruce Church, Inc., 397 U.S. 137,142(1970Xin- 53The takings clause of the Fifth Amendment to the US. validating Arizona law requiring fruit grown within the Constitution, which restricts the eminent domain pow- state to be packed locally). See also Southern PacificCo. ers of the federal government, provides: "nor shall pri- v. Arizona, 325 U.S. 761 (1945) (invalidating Arizona's vate property be taken for public use, without just com- restrictions on the lengths of railroad trains on the basis pensation." Identical limitations on the eminent domain that whatever slight or marginal improvements to safety authority of state governments have been enforced the regulation might accrue could not outweigh the great through the Fourteenth Amendment due process expense and delay that it imposed on railroad travel by clause. deviating from nationally standard practices); Kassel v. "As will become apparent, the Supreme Court's current Consolidated Freightways, 450 U.S. 662 (1981Xplurality doctrine on the "public use" requirement understands opinion by J. Powell) (invalidating Iowa limits on the that this objective-the securing of a public good-is length of trucking "doubles" by balancing state's safety likely to be scrved by the "just compensation" require- interest against the burden on interstate commerce). ment: that is, public willingness to pay for a transfer of 48Among the most forceful opponents of balancing in dor- property suggests that some actual public gain underlies mant commerce clause cases is Justice Scalia, who ar- the taking. gued in concurrence in C.T.S. Corp., 1652-53, that "such 55Among the most important studies of the history and an inquiry is ill-suited to the judicial function. . . . I do not normative purposes of the takings clause, see generally know what qualifies us to make . . . the ultimate (and Bruce Ackerman, Private Property and tile Coristit~rtion most ineffable) judgment as to whether, given impor- (New Haven: Yale University Press, 1977); Richard tance level x, and effectiveness level y, the worth of the Epstein, Takings: Private Property and tile Power of Enri- statute is 'outweighed' by impact on commerce z." This nent Domain (Cambridge: Harvard University Press, argument largely echoes the position taken by then- As- 1985); Frank I. Michelman, "Property, Utility and Fair- sociate Justice Rehnquist against balancing state safety ness: Comments on the Ethical Foundations of 'Just considerations against burdens on interstate commerce Compensation' Iaw," Harvard Law Review 80 (1967): in transportation regulations. See, e.g., Kassel, 691-93 1165; Joseph I, Sax, "Taking and the Police Power," Yale (Rehnquist, J., dissenting). Importantly, the majority Law Journal 74 (1971): 36; Joseph L. Sax, "Takings, Pri- opinion in C.T.S. did not examine the validity of the In- vate Property and Public Rights," Yale Law Jorrmal81 diana takeover statute under balancing analysis before (1971): 149. affirming its constitutionality and, in fact, expressed a reluctance "to second-guess the empirical judgments of 5Qhe Supremc Court itself has acknowledged as much, in lawmakers concerning the utility of legislation," C.T.S, admitting a lack of determinate rules or standards in the 1651, citing Kassel, 679 (Brennan, J., concumng). Al- takings clause doctrine. Consider Justice William Bren- though it may be implied that the Court is increasingly nan's statement in the opinion of the Court in Penn Cen- willing to dispense with the balancing approach in the tral Transportation Co. v. New York City, 438 U.S. 104, dormant commerce clause doctrine, the rejection of this 124 (1978): analysis remains to be seen. ['Tihis Court, quitc simply, has been unable to develop iiny "set Ibrniula" for determiningwhen 4gSee Skover, " 'Phoenix Rising' and Federalism Analy- "justice and Cairncss" require that economic in- sis," pp. 295-98 (active judicial intervention in economic juries causctl hy public action be compensated regulation under dormant commerce clause doctrine is by the govcrnmcnt, rathcr than remain dispro- theoretically and practically inconsistent with the Su- portionatcly concentrated on a few persons. preme Court's reliance on "political safeguards of fcderalism" in recent commerce clause doctrine); Julian N. 57See, e.g., Pumpclly v. Green Ray and Mississippi Canal Eule, "Laying the Dormant Commerce Clause to Rest," Co., 80 U.S. 166 (1871) (destruction of private property Yale Law Journal 91 (1982): 425 (evaluation of discrimi- by government-caused flooding). natory economic measures under different constitu- 58In Lmetto v. Teleprompter Manhattan CATV Corp., tional provisions); Tushnet, "Rethinking the Dormant 458 U.S. 419 (1982), the Supreme Court recognized that

30 Advisory Commission on Intergovernmental Relations a "taking" generally will be found in the case of a govern- cisions sustaining other land-use regulations [reject] the mentally authorized permanent physical occupation of proposition that diminution in property value. standing private property. The Court's decision in Loretto invali- alone, can establish a "taking"). Indeed, the viability of dated a New York statute that required landlords to per- Pennsylvania Coal Co. itself is in serious question, as the mit a cable television company to install cable facilities Supreme Court has appeared toundermine its reasoning on rental land and buildings. Compare Federal Commu- (although not to reverse its holding) in the recent deci- nications Commission v. Florida Power Corp., 94 L. Ed. sion of Keystone Bituminous Coal Association v. 2d 282 (1987) (upheld federal statute authorizing the DeBenedictis. 107 S.Ct. 1232 (1987) (upholding Pennsyl- FCC to review the rates that utility companies charge ca- vaniastatute that authorized a regulatoryrequirement of ble operators for the use of utility poles, distinguishing maintenance of 50 percent of coal beneath structures as Loretto on the basis that nonconfiscatory regulation of a means of providing surface suu~ortfor ~ublicbuild- rates chargeable for the use of private property devoted ings, privat&residen&s, and cemkteries, on the ground to publicuses is not a "taking"). See also United States v. that the act would not interfere unduly with investment- Causby, 328 U.S. 256,261 (1946) (frequent flights imme- backed expectations). diately above a landowner's property constituted a "tak- "In this regard, compare Penn Central, 136 (New York's ing" "as complete as if the United States had entercd historic Ii~ndmarkspreservation law permits Penn Cen- upon the surface of the land and taken exclusive posses- tral's continued opxation as a railroad terminal contain- sion of it."). ing off~cespxe and concessions, and thereby "does not 59See, e.g., Northwestern Fertilizing Co. v. Hydc Park, 07 interfere wit I1 wliat must hc rcgardcd as Penn Central's U.S. 659 (1878Xdenying compensation for the banish- primary expectation concerning the use of the parcel [or ment of a fertilizing company, originally located outside its abillty] to obtain a 'reasonable return' on its invest- of Chicago city limits, when the area became inhabited); ment") and Kaiser Actna v. United States, 444 U.S. 164 Village of Euclid v. Ambler Realty Co., 272 US. 365,368 (1979) (federal government's attempt to create a public (1926Xdenying compensation in enforcement of local right of access to a lagoon that had been dredged for use zoning ordinance)("a nuisance may be merely a right as a private marina waterfront found to destroy the in- thing in the wrong place, like a pig in a parlor instead of vestment-backed expectations of the private lagoon the barnyard"). owner). Gosee,e.g., Miller v. Schoene, 276 U.S. 272 (1928Xuncom- 64See, e.g., Penn Central, 137. The New York landmarks pensated governmental destruction of red cedar trees in- preservation law allowed owners of landmark sites who fected with a rust endangering nearby apple trees analo- had not developed their property to the full extent other- gized to the regulatory abatement of a public nuisance at wise permitted under zoning laws to transfer their devel- common law); Goldblatt v. Hempstead, 369 U.S. 590 opment rights to contiguous parcels on the same city (1962Xupholding as a "safety regulation" a zoning law block. In its determination that the economic impact of prohibiting a sand and gravel mining enterprise from ex- the law fell short of a "taking," the Supreme Court took cavating below the water table, in part on the basis of in- account of the provision of these transferable develop- conclusive evidence of substantial diminution of the mental rights as a feature that "enhances the economic property value). position of the landmark owner in one significant respect." The Supreme Court's understanding of the "av- The Supreme Court has acknowledged that the judicial erage reciprocity of advantage" appears to have taken an finding of a "taking" of property involves ad hoc decis- unexpected turn in Keystone Bituminous Coal Associa- ionmaking based on the facts of a particular case. Con- tion v. IkBcnedictis (balancing the burdens on coal sider Justice William Brennan's statement in the major- companies imposed by mine subsidence regulation ity opinion of Penn Central Transportation Co. v. New against the benefits accruing to the companies from re- York City, 123-24: strictions falling on others in different regulatory [The] question of what constitutes a "taking" for schemes). For an insightful critique of this approach, see purposes of the Fifth Amendment has proved to Epstein, "Takings: Descent and Resurrection," in Philip be a problem of considerable difficulty. . . .[In- Ku rland, ed.. 1987Siprenie Court Review (Chicago: Uni- deed,] we have frequently observed that whether vcrsity of Chicago Press, 1987), pp. 22-23 ("For Holmes a particular restriction will be rendered invalid the test of average reciprocity of advantage was really a by the government's failure to pay for any losses way of asking whether the parties whose property was proximately caused by it depends largely "upon taken receivctl compensation in-kind for the loss in ques- the particular circumstances [in that] case." tion in the same transaction. . . . Indeed, under Stevens's misdirected rendering of Holmes's test, no restrictions 62See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 on use ever could be unconstitutional because the state (1922) (state statute prohibiting underground coal min- might also right the balance on some future occasion.") ing which might damage surface property, as applied to affect the rights of a private coal company to engage in "See Clark v. Nash, 198 U.S. 361 (1905); Strickley v. High- such miningunder a deed executed by the surface home- land Boy Gold Mining Co., 200 U.S. 527 (1906). owner's predecessor in title, worked a "taking" as it 66See Tribe, American Constitutional Law,8-5 and 9-2. would “destroy previously existing rights of property and "Hawaii Housing Authority v. Midkiff, 467 U.S. 229,240 contract."). Of course, the Question that is difficult to an- (1984) (Hawaii Land Reform Act served a valid "public swer is how much diminuhon in value is "too much." use" by employingeminent domain to enable homeown- Both before and after Pennsylvania Coal Co., the Su- ers with longterm land leases to purchase the lots on preme Court has indicated a strong reluctance to find a which they 11vcd).In the last three to four decades. the "taking" only on the basis of this variable, at lcast in the "public use" doctrine has bcen assimilated conceptually absence of total destruction of property rights. See, e.g., wth the "publ~cpurpose" and "rational relationshl~" Hadachek v. Sebastian, 239 U.S. 394 (1915) (decrease of standards ippliedin reviewing regulations of economic value from $800,000 to $60,000 sustained as an uncom- interests under the due urocess clause. See. ex.. Berman pensated regulatory loss); Penn Central, 131("[Tlhe de- v. Parker, 348 U.S. 26 (1954). Essentially, the Supreme

Advisory Commission on Intergovernmental Relations 31 Court has established that, so long as the slate's use of ing" is buntl, ihc owner must bc compensated for the eminent domain is rationally rclatcd to a conccivable full period. public purpose, the "public use" rcquircment is satisfied. 75Though exploralion of thc question is beyond the scope See Berman, 17-19 (discussion of "rational rclationship" of this analysis, it is intcrcsting to ask whether state and standard in economic due proccss doctrine). 'l'he rela- local eovcrntnents mav limit somewhat their emosure to tionship between the broad approach to the "public use" crippCng liability for ikterim damages by enac6ng more doctrine in eminent domain and the due process "public stringent statutes of limitation on inverse condemnation purpose" doctrine is described in Arvo Van Alstyne, acti&s challenging land use regulations. "Public Use," 3 Encyclopedia, p. 1494, and Harry N. Scheiber, "Public Purpose Doctrine," 3 Encyclopedia, p. 76Professor Richard Epstein makes the point that a broad 1489. reading of First English and Nollan would have a combined influence that could shift the cost-benefit calcula- 68See Nollan v. California Coastal Commission, 107 S.Ct. tions for land developers who perceive an increased 3141 (1987) (invalidating state land-use regulation that "rate of return" from suits challenging land-use regula- conditioned the issuance of a permit to rebuild an ocean- tions. Epstein, "'Takings: Descent and Resurrection," front residence on the property owners' grant to the pub- pp. 43-44. lic of a permanent easement across their beach). The Nollan Court found that the easement condition did not 77In pertinent part, Amend. XIV, 1to the U.S. Constitu- substantially advance the government's alleged pur- tion provides: poses, including the public's ability to see and gain access or shall any State deprive any person of life, to the beach from the streets in front of the home. The liberty, or property, without due process of law; Court concluded that, "unless the permit condition nor deny to any person within its jurisdiction the serves the same governmental purpose as the develop- equal protection of the laws. ment ban, the building restriction is not a valid regula- 78See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (in- tion of land use but 'an out-and-out plan of extortion.' " validating a New York law regulating the hours and Nollan, 3 148. wages of biikcry employees as an abridgement of the lib- 69"It is [by] now commonplace that this Court's review of erty of contract that violated the due process rights of the rationality of a State's exercise of its police power de- both employees and employers); Adkins v. Children's mands only that the State 'could rationally have decided' Hospital, 261 U.S. 525 (1923) (invalidating a law that es- that the measure adopted might achieve the State's ob- tablished minimum wages for women under due process jective." Nollan, 3151 (Brennan, J., dissenting). and equal protection rationales). Between 1899 and 1937, the Supreme Court invalidated state or federal eco- 70In an "inverse condemnation" action, the private prop- nomic and social regulations under the due process erty owner sues to establish that the government has ef- clause, usually coupled with the equal protection clause, fectively appropriated his property and must pay for it. If in approximately 200 eases. For comprehensive surveys the court finds a "taking," the court will order payment of the Court's rulings in this period, see Benjamin F. of just compensation. This action is distinct from a man- Wright, The Growth of American Constitutional Law damus or a declaratory judgment action, in which the (New York: Reynal and Hitchcock, 1942), pp. 153-168; private owner merely claims that a governmental regula- Normal Jerome Small, ed., The Coristit~rtionof the United tion affecting his property violates his due process rights. States; Analysis and Interpretation (Washington DC: US. Should the court find such a violation, it will merely in- Government Printing Office, 1964) validate the regulation as applied prospectively to the 79Among the most celebrated cases articulating the con- property. temporary doctrines of economic substantive due proc- 71Typically, state courts had not subjected state or local ess and equal protection, see, e.g., Williamson v. Lee Op- governments to damages or an inverse condemnation tical Co.. 348 US. 483 (1955) (sustaining Oklahoma award for a legislative or regulatory action that was statute that prohibited an optician from fitting or dupli- found to be a taking; they regarded the invalidation of cating lenses without a prescription from an ophthal- the regulation as the only proper remedy, leaving the pri- mologist or optometrist, challenged on due process and vate landowner with full prospective use of his property. equal protection grounds); Railway Express Agency v. Essentially, the state courts had denied the private New York, 336 US. 106 (1949) (sustaining a New York owner any compensation for the "temporary taking" of City traffic regulation that banned commercial vehicular his property that occurred between the effective date of advertising, except for the vehicle owner's own prod- the state or local regulation and the effective date of the ucts). judicial invalidation of the regulation. See, e.g., Agins v. sosee, e.g., Williamson v. Lee Optical Co., 488 ("It is Tiburon, 24 Cal. 3d 266,598 P.2d 25 (19792, afl;rnled on enough that thcrc is an evil at hand for correction, and other grounds, 447 U.S. 255 (1980). that it mighl bc though1 that the particular legislative ;*First English Evangelical Lutheran Church of Glcndale measure was a riitio11;d way to correct it."); Minnesota v. v. County of Los Angeles,l07 S.Ct. 2378, 2388 (1987) Clover Ixaf Crea~ncryCo., 449 US. 456,464 (1981)("Al- ("temporary" takings that deny a landowner all use of his though partics challenging legislation under the Equal property are not different from pcrmanent takings, for Protection C'lausc niay introduce evidence supporting which the Constitution clearly requires compensation). their claim that it is irrational, they cannot prevail so long as 'it is evident from all the considerations presented to 73Ibid., 2389 (indicating that the "temporary taking" doc- [the legislature], and those of which we may take judicial trine will not apply in the case of "normal delays in ob- notice, that the question is at least debatable.' "). In con- taining building permits, changes in zoning ordinanccs, trast to the Warren Court years, the Burger Court era ap- and the like"). peared occasionally to infuse a little "bite" into the 74The First Evangelical Court did not address the valu- "mere rationality" standard. See, e.g., City of Cleburne v. ation of the "temporary taking" for purposes of "just Cleburne Living Center, 105 S.Ct. 3249 (1985)(invalidat- compensation." It only indicated that, when such a "tak- ingunder the equal protection clause the application of a

32 Advisory Commission on Intergovernmental Relations municipal zoning ordinance to deny a special permit for be a legitimate state objective to which the laws bore a the operation of a group home for the mentally re- rational relationship. In concurrence, Justice O'Connor tarded). Clearly, however, such cases expressed the ex- argued that the state schemes in Northeast Bancorp ception to "mere rationality," rather than the rule, for were indistinguishable from that in Metropolitan Life the Burger Court. Insurance Co., and suggested that the latter ruling might have confined Metropolitan Life to its peculiar facts. 472 81 See, e.g., Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985) (invalidating Alabama insurance re yla- U.S. 178-9 (O'Connor, J., concurring). tion that taxed out-of-state companies at a higher rate 86See Sunstein, "Nakcd Prcfcrences and the Constitu- than domestic companies for the illegitimatc purpose of tion," Co/'olrrtd~iahw Hcview 84 (1984): 1689. promoting the business of domestic insurers by penaliz- e7Art. II1,2 of the U.S. C~nstilutionprovides: ing foreign insurers); Williams v. Vermont, 105 SCt. The judicial Power shall extend to all Cases, in 2465 (1985) (invalidating Vermont autonlobile sales tax Law and Equ ily. arising under this Constitution, scheme that allowed a credit against state use tax for any the I~wsof' the United States, and Treaties sales tax paid in another state only if the taxpayer were a made, or which shall be made, under their Vermont resident at the time the car was purchased). Authority. 82In Metropolitan Life Insurance Co., the majority rea- The text of Art I11 would appear to grant appellate juris- soned: diction to the Supreme Court to review any state court Alabama's aim to promote domestic industry is decision involving a question of federal law, regardless of purely and completely discriminatory, designed the manner in which the state court resolved the case, only to favor domestic industry within the State, and to grant original jurisdiction to inferior federal no matter what the cost to foreign corporations courts to decide any such case in the first instance. Doc- also seeking to do business there. Alabama's trinal restraints on such an expansive power have been purpose. . . constitutes the very sort of parochial self-imposed by the Supreme Court and lower federal discrimination that the Equal Protection Clause courts, in their interpretation of Art. I11 and federal was intended toprevent.. . . [Tlhis Court always statutory grants of jurisdiction. has held that the Equal Protection Clause for- 88As articulatctl concisely by the Supreme Court in Fox bids a State to discriminate in favor of its own Film Corp. v. Mueller, 296 U.S. 207,210 (1935) the inde- residents solely by burdening "the residents of pendent and adequate state grounds doctrine embodies other state members of our federation." "the settled rule that where the judgment of a state court 83Metropolitan Life Insurance Co. was decided by a nar- rests upon two grounds, one of which is federal and the row majority of five Justices, with Justice Powell writing other non-federal in character, [Supreme Court] juris- the opinion of the Court and Justices O'Connor, Bren- diction fails if the nonfederal ground is independent of nan, Marshall and Chief Justice Rehnquist in dissent. Of the federal ground and adequate to support the judg- course, Justice Kennedy's arrival on the Court and any ment." changes in the Court's composition in the near future 89For example, if a state high court determines that the would render any projections regarding a "new era" of right of the media to broadcast copies of court tape re- constitutional protection for private economic liberty cordings can be upheld under both the First Amend- (under the equal protection clause, however, instead of ment of the IJ.S. Constitution and state constitutional under economic substantive due process) totally specula- guarantees of spcech and press rights, the U.S. Supreme tive. Court should deny appellate jurisdiction to review the 84This point was demonstrated emphatically by the dis- state court's potentially erroneous decision under the senting Justices in Metropolitan Life Insurance co., who First Amendment, provided the state constitutional law viewed the majority opinion as charting an "ominous holding does not rely substantively on the federal lawde- course," that "has serious implications for the authority cision and would sustain the judgment alone if the fed- of Congress under the Commerce Clause." Noting that eral law holding were undermined upon review. See Congress in the McCarran-Ferguson Act had explicitly State v. Coe, 101 Wash. 26 364, 679 P.2d 353, 359-62 placed insurance regulation "firmly within the purview (1984). of the several States," the dissenters objected to the ma- 9OIn Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945), Justice jority's use of the equal protection clause as an instru- Robert Jackson characterized the doctrine as a preven- ment of federalism: "Surely the Equal Protection Clause tative against Supreme Court issuance of "advisoryopin- was not intended to supplant the Commerce Clause, foil- ions" in violation of the Art. I11 case or controversy re- ing Congress' decision under its commerce powers to 'af- quirements. Arguably, use of this metaphor is firmatively permit [some measure] of parochial favorit- unfortunate. By casting the doctrine as a device to pre- ism' when necessary to a healthy federalism." 470 U.S. at vent "advisory opinions," Justice Jackson raised it to the 899 (O'Connor, J., dissenting). level of a constitutional justiciability requirement, simi- 851ndeed, soon after Metropolitan Life Insurance Co, was lar to the standing or political question doctrines. This decided, the Court unanimously upheld against chal- characterization does not recognize the nature of the re- lenges under the commerce and equal proteaion clauses straint as a sclf-imposed or prudential limitation on the the laws of Connecticut and Massachusetts, that limited Supreme Court's appellate jurisdiction. For critiques of the creation or acquisition of in-state banks to banking the constitulional basis for the doctrine, see, e.g., corporations located in the six-state New England re- Richard A. Matasar and Gregory S. Bruch, "Procedural gion. Northeast Bancorp, Inc. v. Board of Governors of Common law. Ktleral Jurisdictional Policy, and Aban- Federal Reserve System, 472 IJS. 159 (1985). The Court donment of the Atlcquale and Independent State found that a federal statute, the Rank I-iolditig ('ot,ipany Grounds 1)tx:lrinc." (bl'olrrt~~l~iu1-aw Review 86 (1986): Act of 1956, itself authorized the individual statcs to 1291, 13 17-22. balkanize the banking industry. Moreover, the Court g1 Several well-cstal)l~shctlprinciples guide Supremecourt deemed the "independence of banking inslitutions" to review of a statc high court judgment that bars consid-

Advisory Commission on Intergovernmental Relations 33 eration of a federal law claim bccausc of a procedural de- and imaginative account of four conceptual models for fault: the "rcl;itionships" of state and federal constitutional 1) The determinative issue-whether a federal law laws is presented in Collins and Galie, "Models of Post- claim was sufficiently and properly raised in the Incorporation Judicial Kcvicw." state courts-is itself ultimatcly a question of the 95Michigan v. Img. 463 IJS. 1032 (1983). Prior to Michi- "adequacy" of the state law ground. 13ecause the is- gan v. Long, the Supreme Court had adopted avariety of sue implicates the scope of the Supreme Court's methods for resolving the issue of the "independence" of own jurisdiction, it presents a federal question as to a state law ground: (1) dismissal in the case of unclear which the Court is not bound by the state court rul- grounds for decision, see, e.g., Lynch v. New York, 293 ing. Street v. New York, 394 U.S. 576,583 (1969). U.S. 52 (1934); (2) remand to the state high court for 2) The enforcement of state court procedure at the ex- clarification of the grounds for decision, see, e.g., Minne- pense of a hearing of a federal law claim, at the very sota v. National Tea Co., 309 U.S. 551 (1940); (3) exami- least, must pass muster under the "fundamental nation of state law rulings to discern whether state courts fairness" requirements of the Fourteenth Amend- generally used federal law merely to guide application of ment due process clause. Reece v. Georgia, 350 state law, see, e.g., Texas v. Brown, 460 US. 730 US. 85 (1955). (1983Xplurality opinion). These cases and other similar decisions were cited and characterized as failing impor- 3) Even if enforcement of a state court procedural tant interests of fcclcralism by the Michigan Court, 1038. rule would meet "fundamental fairness," it will not bar Supreme Court review of a federal claim if the 96 Ibid.,l041. rule were applied with a specific intent to deprive a 971bid. (emphasis added). claimant of his federal rights or if it "unreasonably 98LaurenceTribe considers this ramification of the Michi- interfer[ed] with the vindication of such rights." gan v. Long standard to be central to the autonomy of James v. Kentucky, 466 US. 341,348-9 (1984)(state state law. See Tribe, American Constitrrtio~iaILaw.p. 166. procedural requirement had not been consistently 99Michigan. 1041. Critics of the Michigan v. Long ap- applied in prior cases); Williams v. Georgia, 349 proach have argued, of course, that the balance among U.S. 375,383 (1955) (state court refusal to exercise federalism intcrests was struck in a manner that accords discretion deemed "in effect, an avoidance of the insufficient rcspect for state court autonomy. Mr. Justice federal right"). Stevens, in his dissenting opinion in Michigan v. Long, Although the Supreme Court appeared to expand the claimed to bc "thoroughly baffled by the Court's sugges- scope of its review despite procedural default in Henry v. tion that it must stretch its jurisdiction and reverse the Mississippi, 379 U.S. 443, 447 (1965) (balancing the im- judgment of lhc Michigan Supreme Court in order to portance of the claim of federal right against the utility of show 'respec.t for the independence of state courts.' " the state's enforcement of its procedural requirement in Michigan, 1072 (5. Stevens, dissenting). See, e.g., Ronald the specific case at bar, insofar as it furthers a legitimate Collins, "Reliance on State Constitutions: Some Ran- state interest), subsequent retrenchment in the Court's dom Thoughts," Mississippi Law Journal 54 (1984): 371, standards for federal habeas corpus jurisdiction may 400-01 (suggesting a "less intrusive presumption" to vin- have undermined the intellectual supports for Henry's dicate the autonomy of state judiciaries, such as a rule on broad approach to the Court's direct appellate review. unreviewability in the absence of a "plain statement" See, e.g., Stone v. Powell, 428 U.S. 465 (1976) (no habeas that state law does not provide the relief sought). Con- corpus relief if state court procedure afforded a "full and trast Martin Redish, "Supreme Court Review of State fair" opportunity to litigate a federal constitutional Court 'Federal' Decisions: A Study in Interactive Feder- claim); Wainwright v. Sykes, 433 US. 72 (1977) (habeas alism," Georgia Law Review 19 (1985): 861 (arguing that corpus review of state court judgment turning on failure Michigan v. Long is not "invasive" of state court preroga- to comply with "contemporaneous-objection" rule tives in any meaningful sense). barred unless defendant demonstrates "cause" for the 'o0An enigmatic ftx)tnote in the Michigan v. Long majority procedural defect and resulting "prejudice"). opinion, 1041 n. 6, gives reason for concern over what, 92Assuming the "independence" of a state substantive law indeed, will constitute a sufficient demonstration of a basis for a judgment, as long as the basis itself did not vio- "bona fide separate, adequate, and independent" state late the federal Constitution, it generally would be law ground: deemed "adequate." Thcre may be certain circumstances in which 93See, e.g., State v. Badger, 141 Vt. 430,450 A.2d 336,347 clarification is necessary or desirable, and we will (1982) (claimant's rights sustained independently under not be foreclosed from taking the appropriate Vermont Constitution after determining that thcrc was action. a corresponding right available under federal law); State Post-Iang decisions indicate that the Supreme Court v. Coe, 361-62 (first granting relief under state constitu- may wcll cxcrcisc rcvicw in the face of any ambiguity tional law, and then proceeding to establish fcclcral ovcr the basis of ;i state high court judgment. Compare claims under federal law). Ohio v. Johnson, 467 [J.S. 493 (1984) and Florida v. 94For classicexamples of state court rulings that automati- Myers, 446 US. 380 (1984) (appellate review due to fail- cally presume that federal constitutional decisions shape ure to indicate clcarly that dccision was based ultimately the character and contours of state constitutional law on state law) with Uhlcr v. AFLCIO, 468 U.S. 1310 guarantees, see, e.g., Washington v. Fireman's Fund Inc. (1984) (California Suprcme Court's prohibition of a bal- Co., 708 P.2d 139 (Haw. 1985); State v. Jackson 11, 672 lot initiative rested on independent state ground because P.2d 255,260 (1983) [discussed and critiqued in Ronald of state court's detailed analysis of state law). Collins, "Reliance on State Constitutions: The Montana 101 All of the analytic devices described in the text were em- Disaster," TmLaw Review 63 (1985): 10951. Both deci- ployed to advantage in Carreras v. City of Anaheim, 768 sions sustained the constitutionality of the state laws F.2d 1039 (9th Cir. 1985) (municipal ordinance banning against challenges by the rights claimants. An insightful solicitation of religious donations outside publicconven-

34 Advisory Commission on Intergovernmental Relations tion center violates California's constitutional guaran- judication. . . . The reign of law is hardly promoted if an tees of speech liberties). In particular, sce Carreras, unnecessary ruling of a fcdcral court is thus supplanted 1042-43 (prefatory discussion of the role of state law as by a controllmg tlccision of a state court." Pullman, 500. first basis for consideration of claims of right), 1042 n.4 106For analysis and critique of the functionsof the Pullman (acknowledging rule of avoidance of unnecessary federal abstention doctrine, see Martha A. Field, "Abstention in constitutional questions), 1044 n.7 (establishing trend of Constitutional Cases: The Scope of the Pullman Absten- greater protection for expressive activity under state con- tion Doctrine," Universig of Pennsylvania Law Review stitutional law than under First Amendment), 1043-45 122(1974): 1071; Martha A. Field, "The Abstention Doc- and 1048-50 (analysis of state constitutional precedents trine Today," University of Pennsylvania Law Review 125 alone for governing rules and standards), 1044 n.8 and 9 (1977): 590. (ensuring that controlling state constitutional lawprece- 107Abstention to perniit a state constitutional law attack on dents themselves rested on state law), 1048 11.21 and 1049 a state law is typically deemed improper where the state n. 24 and 25 (explicitly stating that citation to federal ju- constitutional provision is virtually identical to the appli- dicial precedents in past state supreme court decisions, cable federal constitutional provision. See, e.g., Wiscon- and past adoption of analytical frameworks developed by sin v. Constantineau, 400 U.S. 433 (1971)(refusing to or- the Supreme Court under the federal constitution, dcr abstention to permit state court scrutiny of state served only to guide independent interpretation of the liquor regulation under state constitutional law). Ab- state constitution). Given its self-conscious, deliberate, stention in such circumstanceswould be tantamount to a and artful use of the full battery of analytic devices, Car- rule of exhaustion of state judicial remedies before reras stands as an excellent case study and role model for bringing a federal action on federal constitutional the independent interpretation of state constitutional grounds, a prerequisite which the Supreme Court has law. It is interesting to note that a federal appeals court not becn willing to impose. See, e.g., Monroe v. Pape, 365 was responsible for such a splendid example of state con- US. 167 (1961). stitutional exegesis. 108Sce, eg, Imisiana Power and Light v. City of "J2In this regard, a comparison of two state high court deci- Thibodaux, 360 U.S. 25 (1959) (requiring abstention in a sions may be instructive. Compare State v. Badger (ac- diversity action challenging the authority of state mu- knowledging that separate consideration of Vermont nicipalities to condemn utility properties, since the dele- constitutional claims is required and that the state con- gation of eminent domain powers to localities is a ques- stitutional meaning is not identical to federal constitution "intimatcly involved with the sovereign tional meaning even for parallel provisions; relying ex- prerogalive"). clusively on state court precedents in interpreting state lOQSee,e.g.. Burford v. Sun Oil Co., 319 U.S. 315 (1943)(up- constitutional provisions; providing "plain statement" held abstention in a challenge to a drilling permit issued that judgment rests on state constitutional guarantees) under a Texas state scheme creating a complex and co- with Patchogue-Medford Congress of Teachers v. Board herent pattern of administrative and judicial decision- of Education, 70 N.Y.2d 57,510 N.E.2d 325 (1987) (ex- making to resolve oil rights issues); Alabama Public Serv- plicitly acknowledging reliance on both federal and state ice Commission v. Southern Railway Co.,341 U.S. 341, constitutional law because violation of the former is vio- 347 (1951) (requiring abstention in a challenge to the lation of the latter; interweaving discussion of federal commission's order to continue certain local train serv- and state constitutional texts and court precedents; ana- ice, on the rationale that resolution of the dispute de- lyzing the determinative issues as substantively identical pends on the "predominantly local factor of public need under federal and state constitutional law; providing no for the service rendered."). "plain statement" that the judgment is grounded on state constitutional law). 11OFor example, in Rurford, 326-27, the Supreme Court explained that the Texas legislature had established a uni- 103For comprehensive and thoughtful analyses of the ab- fied state administrative and judicial network to regulate stention and equitable restraint doctrines, see H. Fink the production of oil and gas, and that state judicial re- and M. Tushnet, Federal Jlrrisdiction: Policy and Pmctice, view of the commission's orders was speedy and thor- pp. 615638, 655-675, 681-694 (1984); Martin Redish, ough. Indeed, to prevent confusion of multiple review of Federal Jurisdiction: Tensions in the Allocation of Judicial legal issues involving the state scheme, the legislature Power (Indianapolis: Bobbs-Merrill, 1980), pp. 233-58, had provided for concentration of all direct review of the 291-321. commission's orders in the state districts of one county. 104The Pullman abstention doctrine derives from the rule The exercise of federal equity jurisdiction in this case in Railroad Commission of Texas v. Pullman Co., 312 would create thc "very 'confusion' which the Texas legis- U.S. 496 (1941) (requiring federal district court absten- lature and Suprernc Court fcared might result from re- tion from decision of Fourteenth Anicndmcnt equal view by many statc courts or thc Railroad Commission's protection claim, to afford thc Tcxas state courls an op- orders." llurfonl, 327. portunity to rule on the state statutory claim of abuse of 111 See, e.g., Zahltxki v. Redhail. 434 U.S. 374(1978)(invali- discretion in the commission's order to segregate opera- dating Wisconsin statute that required court permission tion of railroad sleeping cars). for remamag or a statc rcsident under legal obligation 105A federal ruling on a sensitive fedcral constitutional is- to provide child support). The Supreme Court distin- sue might be tentative or "wasteful" in the sense that in- guished Burforcl v. Sun Oil on the basis that "this case terpretation of an unclear state law by the state courts does not involve complex issues of state law, resolution might well moot the federal constitutional issue. For ex- of which would be 'disruptive of state efforts to establish ample, the Supreme Court understood in Pullman that a coherent policy with respect to a matter of substantial because the last word on the statutory authority of the public concern.' " Burford, 380. Importantly, the state railroad commission could issue only from the Texas Su- statute in Zablocki implicated a substantial question of preme Court, any decision on the constitutionality of the federal constitutional law, on which resdution of the commission's segregation order would be a "tentative case ultimately turned. Professor Martin Redish argues answer which may be displaced tomorrow by a state ad- that abstention from the exercise of diversity jurisdiction

Advisory Commission on Intergovernmental Relations 35 should be restricted to controversies in which (1) the Vail, 430 1J.S. 327 (1977) (civil contempt proceed- regulatorypolicy is "of significant and special concern to ing to effcctuate a state damage judgment); Trainor the state"; (2) the administrative scheme is, "in fact, de- v. Hernandez, 431 US. 434 (1977) (state civil action tailed and complex"; and (3) any substantial and trouble- to recoup welfare payments obtained by fraud); some federal question "cannot be resolved without re- Moore v. Sims, 442 U.S. 415 (1979) (extending equi- quiring the federal court to immerse itself in the table restraint to federal issues between the parties technicalities of the state scheme." Redish, Federal J~rris- that are not directly implicated in the pending state diction, pp. 246,259. But see Kaiser Steel Corp. v. W.S. civil proceeding). Ranch Co., 391 U.S. 593 (1968) (diversity suit for tres- 4) The rulcs above do not apply if the pending or on- pass, involving no complex regulatory or administrative going state proceeding has been initiated in bad scheme). faith or as part of a program of harassment, or if a 112Mr. Justice Hugo Black first used the term "Our Federal- federal litigant's constitutional claim concerns the ism" in the celebrated case of Younger v. Harris, 401 procedural fairness of the very state proceeding in U.S. 37 (1971), to announce the principle of "comity" be- which constitutional claims would otherwise be tween federal and state courts on which the Court has brought. relied in formulating the rules of the equitable restraint Dombrowski v. Pfister, 380 US. 479 (1965) (excep- doctrine. tion for had faith and harassment); Gibson v. Ber- "3In summary, the equitable restraint doctrine yields the ryhill, 41 1 1J.S. 564 (1973) (bias on state board of followine, rules: optometry); Trainor v. Hernandez, (appropriate ~t ihe time a litigant initiates a federal proceeding forum in which to challenge unconstitutional state to challenge state action as unconstitutional, if the action must be available in state court system). But litigant is a defendant in a pending or ongoing state see Ohio Civil Rights Commission v. Dayton Chris- criminal proceeding, and if the federal litigant can tian Schools, 477 U.S. 619 (1986) (no exception to raise the constitutional claims in the state proceed- equitable restraint principles for federal due proc- ing, ordinarily the litigant will not be able to obtain ess challenge to the jurisdiction of the administra- federal injunctive or declaratory relief. tive tribunal). Younger v. Harris, 401 U.S. 37 (1971) (federal in- "4In Trainor v. Hcrnandcz, 445-56, the Supreme Court junctive relief against state criminal prosecution); recognized that the exercise of federal equitable jurisdic- Samuels v. Mackell, 401 US. 66 (1971) (fetlcral tion at the time that a statc civil enforcement suit was declaratory relief against criminal statutc cnforccd pending wou Id in pending prosecution). . . . confront thc Statc with a choice of engaging A federal district court may grant declaratory or in- in duplicdtive lil igation, thereby risking a tempo- junctive relief against unconstitulional state action rary federal injunction, or of interrupting its en- if the federal litigant does not become a defendant forcement proceedings pending decision of the in a state criminal prosecution concerning the same federal court at some unknown time in the fu- issues before proceedings of substance on the mer- ture. It would also foreclose the opportunity of its have begun in the federal action. the state court to construe the challenged statute Steffel v. Thompson, 415 U.S. 452 (1974) (federal in the face of the actual federal constitutional declaratory relief where genuine threat of enforce- challenges that would also be pending for deci- ment of unconstitutional state statute demon- sion before it, a privilege not wholly shared by strated); Doran v. Salem Inn, Inc., 422 U.S. 922 the federal courts. (1975) (preliminary injunctive relief to preserve "=The Supreme Court has articulated forcefully its pur- status quo pending declaratory judgment); Hicks v. pose to avoid the "unseemly failure to give effect to the Miranda, 422 U.S. 332 (1975) ("proceedings of sub- principle that state courts have the solemn responsibil- stance" restriction). ity, equally with the federal courts 'to guard, enforce, and At the time a litigant initiates a federal proceeding protect every right granted or secured by the Constitu- to challenge state action as unconstitutional, if the tion of the IJnited States.' " Steffel v. Thompson, 415 litigant is a defendant in a pending state civil suit US, at 460-61. brought by state officials to enforce important state policies, and if the federal constitutional claims "BFor a persuasive critique of the contradictory bases for may be raised and litigated fully in the state pro- the equitable restraint doctrine, see Redish, Fedeml Jir- ceeding, ordinarily the litigant will not be able to risdiction, pp. 298-307. obtain federal injunctive or declaratory relief. "7Youngstown Shect and Tube Co. v. Sawyer, 343 U.S. Huffman v. Pursue, 420 U.S. 592 (1975) ("quasi- 579,654 (1952) (Jackson, J., concurring) (original refer- criminal" nuisance abatement action); Juidice v. ence to "powcr in the hands of Congress").

36 Advisory Commission on Intergovernmental Relations Chapter 3 Government Structure under State Constitutions

In the American federal system, there are few We shall assume that when, as here, a state national requirements governing the structure and Constitution sees fit to unite legislative and relationship of state government institutions. States judicial powers in a single hand, there is are not even directly required to have constitutions. nothing to hinder so far as the Constitution Some thought was given to a "model" state constitu- of the United Slates is concerned.5 tion that would have been mandated by the Conti- nental Congress early in 1776, but the idea was Thus, with respect to governmental structure, a state dropped without being considered serious1y.l Article remains free to, in the famous words of Justice Louis IV, Section 4 of the U.S. Constitution does provide Brandeis, "scrve as a laboratory"6 for what Holmes that "the United States shall guarantee to every referred to as "social experiments . . . in the insulated State in this Union a Republican Form of govern- chambers afforded by the several states."7 ment.. . ."2In 1912, however, when the argument was The American statcs have played this role of ex- made that Oregon's constitutional provision for the perimenting with govcrnmcntal structure and rela- passage of legislation by popular initiative violated tionships sincc thc heginning of the Union. Thomas the requirement of a "republican" (government by Paine, defending I'ennsylvania's 1776 constitution, elected representatives) government, the U.S. Su- which featured a unicamcral legislature, weak execu- preme Court reaffirmed its long-held position that tive, and virtually no chccks and balances, wrote in this issue constitutes a nonjusticiable political ques- 1778: tion left to congressional enf~rcement.~Congress, of It is in the interest of all the States, that the course, may require the inclusion of provisions in a constitution of each should be somewhat di- state constitution as a condition to the admission of versified from each other. We are a people new states4 founded upon experiments, and. .. have the In addition, the federal Constitution does pro- happy opportunity of trying variety in order vide a few limitations on the exercise of state power, to discover the best. . . .8 for example, to regulate commerce and coin money. Most of these restrictions on state power were, in One very good example of the states' experi- part, direct responses to perceived abuses perpe- ments with government structure can be seen in the trated by the powerful, and relatively unchecked, area of thc "legislative veto." States put in place state legislatures during the decade before adoption mechanisms by which legislatures could, short of en- of the federal Constitution. acting a law, disapprove of administrative agency ac- Finally, the Fourteenth Amendment and its judi- tions. The separation of powers problems with this cial interpretation for more than a half a century have approach were dcbated in the state courts, with the imposed a range of restrictions on states with respect nearly unanimous conclusion that such mechanisms to various individual rights and liberties. Beyond could not be permitted. Thcn the people in various these limits, however, the American states remain states rcjccted proposed state constitutional amend- free to devise and change governmental institutions ments that would have permitted the practice. Most and arrangements as their citizens see fit. As Justice of this activity prcdated the resolution of similar Oliver Wendell Holmes said: problems in the I'cderal government.9

Advisory Commission on Intergovernmental Relations 37 Despite the permitted diversity with respect to a range of ways that is unfamiliar in the federal gov- governmental structure, there are many identifiable ernment. patterns and similarities among the statc govern- Further, bccause state constitutions are easier to ments. As Frank P. Grad observed: "In spite of their amend than the Scdcral Constitution, they have accu- enormous diversity, it is probably safe to say that the mulated many limiting details reflecting the concerns similarities between government structure in differ- of citizens during the various eras of American his- ent states are considerably greater than their differ- tory. For example, evidence of the periods of distrust ences. . . ."lo of the legislature, the Industrial Revolution, the Pro- gressive Movement, Jacksonian democracy, the set- The Function of State Constitutions tling of the West, bankruptcy in public finance, con- Regarding Governmental Structure cern for efficient management, and many other matters can be seen clearly in any modern state con- At the outset, it must be recognized that the po- stitution. litical and legal functions of state constitutions are Finally, the state constitutions include numerous very different from those of the federal Constitution. mechanisms for direct popular involvement in gov- The U.S. Constitution creates and defines a govern- ernmental decisions that have no analog in the fed- ment of limited, enumerated, delegated powers. The eral Constitution. Amendments or revisions of state federal government must point to some explicit or constitutions themselves must be ratified by the vot- implied grant of power to authorize it to act. There- ers before they can take effect. Beyond this funda- fore, many of the key questions regarding judicial in- mental point, however, direct citizen involvement in terpretation of federal power under the Constitution such governmental decisions as issuing bonds, levying concern implied powers. The state governments, by certain taxes, and even, in some states, approving contrast, are based on a very different fundamental gambling operations, is often required by state con- conception of government. State govcrnmcnts, par- stitutions. Statcs with initiative and referendum pro- ticularly the legislative branch, exercise all residual visions in their constitutions obviously permit direct or plenary powers of sovereign governments, cxcept popular participation in lhc lawmaking process itself. in situations where they are expressly or irnpliedly Also, many stiites permit citizen litigation over gov- limited by the state or federal constitutions, or by ernmental matters by authorizing a wide range of tax- valid congressional legislation or fedcral administra- payer actions. Nonc of these examples of popular tive action. It is sometimes said that state govern- participation in governmental decisions are present ments exercise power similar to that possessed by the in the U.S.Constitution. British Parliament. Therefore, many of the important issues for judicial interpretation of state power State Constitutions under state constitutions concern implied limita- and Separation of Powers tions. James Madison noted in The Federalist, No. 37, In the words of the Supreme Court of Kansas: that "no skill in the science of government" has been It is fundamental that our state constitution able conclusively to define legislative, executive, limits rather than confers powers. Where and judicial power. As a result, "[Q]uestions daily oc- the constitutionality of a statute is involved, cur. . . which puzzle the greatest adepts in political the question presented is, therefore, not science." Matters have remained just as unsettled in whether the act is authorized by the constitu- the state constitutions in the 200 years since Madison tion, but whether it is prohibited thereby." wrote those words. Many state constitutions, by contrast to the fed- According to the Supreme Court of Illinois, "All leg- eral Constitution, contain explicit textual statements islative power is vested in the General Assembly. . . . of the doctrine of separation of powers. For example, Every subject within the scope of civil government Article 11, Section 3 of the Florida Constitution pro- which is not within . . . constitutional limitations may vides: be acted on by it."'* The function of state constitutions, not surpris- The powers of the state government shall be ingly, dictates their form. Generally speaking, be- dividcd inlo legislative, executive, and judi- cause of the necessity to enunciate specific limita- cial branches. No person belonging to one tions on otherwise virtually unlimited governmental branch shall excrcise any powers appertain- power, state constitutions contain much more detail ing to either of the other branches unless ex- with resuect to the structure and operations of gov- pressly proviclcd herein. ernmenf. For example, state conktutions contain These sorts of statcments date from the earliest state long articles on taxation and finance, two of the most constitutions in 1776.13They express two related con- important functions of any government. These provi- cerns: that thepowers of government should be sepa- sions restrict state government taxing and spending in rated; and that thepersons who exercise these powers

38 Advisory Commission on Intergovernmental Relations should be separate individuals. It has always been Despite the legal and political changes that have true, however, that the state constitutions, likc the occurred since 1776, resulting in the types of limita- U.S. Constitution, do not provide for a sharp separa- tions on the state legislative branch described below, tion of powers; instead, they include a number of state legislatures remain extraordinarily powerful. blended powers. For example, it is generally con- They are the local point of policymaking in state gov- ceded that the governor's veto, although assigned to ernment. The prevailing view is illustrated by the Su- the chief executive officer, is actually a legislative preme Court of Illinois: power. An important question must be asked about the Under traditional constitutional theory, impact of placing explicit statements of the separa- the basic sovereign power of the State re- tion of powers doctrine in state constitutions. Should sides in the legislature. Therefore, there is these explicit statements have an impact on judicial no need to grant power to the legislature. All determination of separation of powers controversies that needs to be done is to pass such limita- so as to yield results different from those obtaining tions as are desired on the legislature's oth- under the federal Constitution, where the doctrine is erwise unlimited power.19 merely inferred from that document's creation of three branches? Courts in Florida have concluded Limitations on Legislative Power that with respect to delegations of power to administrative agencies a more strict separation of powers is A commentator observed in 1892 that "one of required because of the explicit textual statement in the most marked features of all recent State constitu- the state constitution.14 New Jersey courts, by con- tions is the distrust shown of the legislature."20 The trast, despite the presence in that state's constitution transition from early state constitutions granting un- of a provision virtually identical to Florida9s,1sreach fettered legislative power to the more recent consti- the opposite conclusion: tutions restricting legislative power reflects one of There is no indication that our State the most important themes in state constitutional Constitution was intended, with respect to law. The cleiirly established pattern during the the delegation of legislative power, to depart founding decade of 1776-1787 was a gradual transi- from the basic concept of distribution of the tion from lcgislalive dominance, or "omnipotence," powers of government embodied in the Fed- to an increased rolc for thc executive and judicial eral Constitution. It seems evident that in branches21 Thc new exccutive and judicial powers this regard the design spellcd out in our operated as a check on rccognizcd legislative power State Constitution would be implied in con- rather than a sharing of lcgislative power. stitutions which are not explicit in this re- In 1776 and the years immediately following, gard. . . . We have heretofore said our State virtually all of the newly independent constitution- Constitution is "no more restrictive" in this makers' trust was placed in the legislative branch, al- respect than the Federal Constitution. . . . beit usually in two houses. It was generally felt that, Indeed in our State the judiciary has ac- under the newly flourishing ideas of republicanism, cepted delegations of legislative power representatives in government should be like the citi- which probably exceed federal experience.16 zens themselves and mirror as closely as possible the Generally speaking, however, state courts seem to makeup of the population.22 The idea of professional enforce the separation of powers doctrine, at least in politicians or representatives had not yet developed. the area of delegations of legislative authority to Rather, the virtuous members of society would serve, agencies, more strictly than is the case with separa- on a rotating basis, for short terms, representing tion of powers doctrine in the federal government." small districts, and honor instructions from their con- stituents. As Gordon Wood has observed, at this The State Legislative Branch time, "a tyranny ly the people was theoretically in- conceivable."23 State legislatures are, historically, the The legislative branch had been identified with fountainhead of representative government the people themselves and was viewed as a safeguard in this country. A number of them have their against exccutive abuses rather than a possible roots in colonial times, and substantially an- source of abuses itself. Under these circumstances, tedate the creation of our Nation and our the 3776 brand of legislative supremacy, although not Federal Government. In fact, the first for- supported unanimously, was not surprising. Effective mal stirrings of American political inde- checks on this legislative power were not viewed by pendence are to be found, in large part, in many as necessary because, aRer so many years of the views and actions of several of the colo- abuses by the Ilritish, the newly independent Ameri- nial legislative bodies. cans did not foresee that "the people," as repre- Chief Justice Earl Warren18 sented in the legislature, would also commit abuses.

Advisory Commission on Intergovernmental Relations 39 This philosophy soon began to change, however, clusio czlterius (the expression of one is the as experience under the new legislative supremacy exclusion of another).26 proved to be less than satisfactory. The range of For these reasons, many apparent grants of authority highly visible legislative abuses, such as suspension of become, through judicial interpretation, limits on debts, seizure of the property of Loyalists, generous legislative power. This can be a hidden dimension of authorization of paper money, and legislative interstate constitutional language, which, when interference with the executive and judicial branches, be- preted by state courts, can transform grants into lim- gan to raise concerns. Increased executive veto power its. For example, many state constitutions contain came to be viewed as not inconsistent with popular fairly explicit provisions on legislative compensation sovereignty but, rather, as a necessary mechanism to which, of course, would be within the legislative limit legislative power. In this way, even within revo- power even in the absence of such constitutional pro- lutionary republican rhetoric, with its absence of reli- visions. If the legislature seeks, by statute, to provide ance on a hierarchial social structure that had justi- some other form of compensation, it is often argued fied "balanced government," the case could be made that the constitutional provision contains an implied for checks on the misuse of power by government of- limitation on lcgislative authority in the area of com- ficials.Z4 In Gordon Wood's words, "The Americans' pensation.27 inveterate suspicion and jealousy of political power, once concentrated almost exclusively on the Crown Procedural Limitations and its agents, was transferred to various statc legisla- on the Enactment of Statutes tures."25 The transition in American history has been The legislative articlcs of virtually all state con- from relatively unfettered legislative powcr to a more stitutions contain a wide range of limitations on state evenly balanced distribution of governmental powers legislative processes. Gcncrally, these procedural among the branches. In addition, the legislative arli- limitations did not appear in the first state constitu- cles of modern state constitutions reflect two impor- tions. Instead, thcy were adopted throughout the tant characteristics: (1) the insertion of specific "con- 19th century in response to perceived abuses of legis- stitutional legislation" into state constitutional texts, lative powers. Last-minute consideration of impor- thereby supplanting legislative prerogatives and tant measures; logrolling; mixing substantive provi- sometimes leading to a limitation of legislative alter- sions in omnibus bills; low visibility and hasty natives through judicially discovered "negative irnpli- enactment of important, and sometimes corrupt, leg- cations" and (2) the insertion into state constitutions islation; and the attachment of unrelated provisions of detailed procedural requirements that the legisla- to bills in the amendment process-to name a few of ture must follow in the enactment of statutory law. these abuses-led to the adoption of constitutional provisions restricting the legislative process. These Lnstitutional provisions seek generally to require a Negative Implication more open and deliberative state legislative process, Many state constitutions include provisions that one that addresses the merits of legislative proposals could be relegated to statutory law. When these pro- in an orderly and deliberative manner. visions mandate legislative actions or grant authority Familiar examples of state constitutional limita- to a legislature vested with plenary power, courts can tions on the legislature include requirements that a transform these apparent grants of power into limita- bill contain a title disclosing its content and include tions on legislative power. As Frank Grad noted: only matters on a "single subject";28 that all bills be referred to comrnittee;29 that the vote on a bill be re- It must be emphasized that very nearly flected in the legislature's journal;30 that no bill be al- everything that may be included in a state tered during its passage through either house so as to constitution operates as a restriction on the change its original p~rpose;~'and that appropria- legislature, for both commands and prohibitions bills contain provisions on no other subject.32 tions directed to other branches of the gov- These procedural restrictions must be distinguished ernment or even to the individual citizen will from the comlnon substantive limits on state legisla- operate to invalidate inconsistent legislation, such as those prohibiting statutes limiting tion. . . . In constitutional theory state gov- wrongful death recoveries33 or mandating a certain ernment is a government of plenary powers, type of civil service system,34 and from the general except as limited by the state and federal limits contained in state bills of rights. constitutions. . . . In order to give effect to Such procedural requirements for enacting stat- such special authorizations, however, courts utes provoke criticism on a number of grounds. rang- have often given them the full effect of nega- ing from the claim that the requirements "have tive implications, relying sometimes on the caused considerable damage through invalidation of canon of construction expressio unius est ex- noncomplying laws on technical grounds,"35 to the

40 Advisory Commission on Intergovernmental Relations assertion "that an argument bascd on the onc sul?jcct cation of public clissat isfriclion with state legislatures. rule is often the argument of a despcratc advocate Initiat ives enablc t t~cpubl ic to bypass unresponsive who lacks a sufficiently sound and persuasive onc."36 statc legislatures, and rcfercnda provide a check on Judicial precedents add little certainty to thc applica- the effect of unpopular statutes. 'I'hese devices are tion of the generally worded title and single-subject more sophisticated than thc earlier procedural re- requirements. strictions, most of which reflected general disap- Despite such criticism, the limitations on state proval of legislative actions. The initiative allows the legislative procedure survived the wave of state con- people to take direct action when the legislature re- stitutional revision that occurred during the middle fuses to act. The referendum enables the people to of the 20th century. Therefore, because these limits target specific enactments rather than depend on the have, in effect, been readopted in contemporary state indirect deterrence of procedural restrictions. constitutions, they reflect policies relating to the na- Although state constitutions contained specific ture of the deliberative process in state legislatures. provisions requiring a referendum on such questions Further, they represent an important limit on legisla- as assumption of debts and changes in the constitu- tive authority and illustrate the lasting result of ear- tional text. the people of South Dakota began the lier public disillusionment with legislative abuses. process of taking back, or reserving to themselves, a Although the procedural limits outlined above measure of gcneral legislative power in a constitu- are usually discussed as if they were all of the same tional amendment approved in 1898. Now, 21 states quality, there are important differences. Some provi- provide for thc statutory initiative, and 25 provide for sions require the legislature to act affirmatively, the referendum.38 One observer predicted that while others prohibit certain acts. A violation of cer- "[tlhe more direct legislation you have. . .the greater tain restrictions, such as title and single-subject pro- the body of judge-made law.'Qg This view raises inter- visions, can be seen from examining the text of the fi- esting and complex questions of political philosophy, nal legislative enactment. By contrast, a violation of especially today when many major public issues are other restrictions, such as the prohibition of a bill be- resolved at the ballot box.40 Legal questions also ing altered on its passage through either house so as arise with regard to initiated statutes: (1) Can they be to change its original purpose, will not be reflected on amended or rcpcalcd by the legislature? (generally the face of the final legislative enactment. Conse- yes, unless the stale constitution provides to the con- quently, a search for this type of violation requires an trary); (2) Can lhey be vetoed by the governor? (gen- examination of the procedure leading to the enact- erally no); (3) Do the title and single-subject limita- ment. tions apply? (generally yes); (4) How should courts State courts have developed a surprisingly wide interpret such statutes? (according to the under- range of approaches to enforcing restrictions on leg- standing of the ordinary, intelligent voter). islative procedure under circumstances where an act on its face does not violate procedural limitations. The State Executive Branch Some courts will not "go behind" an enrolled bill, Public distrust of the executive branch, as re- duly signed by legislative officers, to consider evi- flected in the early state constitutions, historically dence of violation of legislative procedure provisions has been inversely related to public distrust of the in state constitutions. Other courts will scrutinize the legislative branch. The executive branch began in dis- official legislative journals but not other evidence. favor,'+' but has gained more power and authority Still other courts will consider any relevant evidence over the centuries. State constitutions have been of such state constitutional violations. Even within amended gradually to bring gubernatorial powers single jurisdictions, one can detect inconsistent doc- closer to those assigned to the President under the trines and a lack of continuity over time. These widely federal Constilution, including longer terms of office varying judicial doctrines reflect what are essentially (all but two states now have four-year gubernatorial volitical decisions, made in the context of adiudicat- terms) and stronger budgetary authority. hgactual controversies, concerning the extcit of ju- Constitutional Dulies and Agencies dicial enforcement of state constitutional norms. On rare occasions, these procedural provisions may in- Although thc cxccu t ivc branch's main responsi- validate a statute. More importantly, such restric- bility is usually Ihotlght of as the faithful execution of tions make the state legislative process significantly the laws, state constitutions directly assign numerous different from, and more rigidly slructurcd than, the functions to governors and cxecutive branch officials congressional legislative process.37 and agencies. I:or cxitmplc, constitutions often assign the powcr of executive clemency to the governor, Direct Legislation thereby insulating the exercise of that from legislative- or judicial interference. The initiative and referendum movement that The people in many states have created execu- emerged at the turn of this century was another indi- tive agencies through "constitutional legislation."

Advisory Commission on Intergovernmental Relations 41 The status of such constitutional agencies or offices sure requirements and conflict-of-interest guidelines in relation to the legislature can be very different by executive order which, in the absence of clear leg- from statutorily created executive agencies or offices. islative authority, were challenged as being beyond For example, the Florida Supreme Court invalidated the executive power. In the leading case, Rapp v. a statute prohibiting hunting on Sundays on the Carey,49 the New York Court of Appeals invalidated ground that it conflicted with an atlministrutive rule of the executive order: the constitutionally establishcd Gamc and Fish <'om- The crux of thc case is the principle that the mission. The rule provided for a one-month hunting Governor has only thoscpowers delegated to season that included Sundays.42 him by the constitution and the statutes.. . . Most state constitutions also provide for the Under our system of distribution of power statewide election of executivc officials other than with checks and balances, the purposes of the governor. Therefore, such officials as attorncys the executive order, however desirable, may general, secretaries of state, commissioners of educa- be achieved only through proper means. tion, state treasurers, and others, in states where such offices are constitutionally created, develop their Based on the proposition that the executive branch own constitutional and political base or power, neces- may exercise only thosepowers delegated to it by the sarily detracting from centralized gubernatorial constitution or statute, the question of implied pow- power. In Florida, where the governor shares power ers is often crucial. This consideration may be con- with six elected executive officials ("the cabinet"), trasted with the importance of implied limitations on proposals to streamline the system are extremely the legislative branch. The State Judicial Branch The Veto Power Statc constitutions govern the judicial branch in many respccts. They have been the vehicles for In 1776, the exercise of a veto by the executive streamlining and unifying state court systems. State was generally thought to be "aristocratic," and too constitutions usually set forth in some detail the juris- much like the exercise of the veto by the royal colo- diction of most state courts. Finally, the method of se- nial governors. That view began to change, however, lection and tenure of state judges is controlled by the as it was recognized that there needed to be some ex- state contstitulion. ecutive check on legislative power. Now, the gover- Statc suprcme courts serve a number of impor- nors of all states except North Carolina have the tant functions within state government and the legal power to veto enactments of the legislature. systcm. Most familiar is their role in common law de- The gubernatorial "negative voice" in legisla- velopment and statutory and constitutional interpre- tion, however, was basically an "all-or-nothing" tation, functions performed in the context of adjudi- power. The veto power was, therefore, even more cating cases. Interestingly, state supreme courts broadly expanded with the advent, around the turn of developed the concept of judicial review of the con- the century, of the item veto over specific line items stitutionality of statutes well before Marbury v. in appropriations bills.44 Some states go beyond the Madison.50 Most studies of state courts focus on their item veto and permit governors to reduce such line adjudicatory function in deciding cases. A major fo- items without vetoing them.45 President Ronald cus of the study of state constitutional law, however, Reagan suggested that the President be authorized to should be on the nonadjudicatory functions (outside exercise an item veto similar to that of governors;46 the decision of cases) of state supreme courts. thus, the item veto has become a subject of national debate.47 Gubernatorial exercise of the item veto, Rules of Practice and Procedure originally intended to prevent legislative "logroll- Supreme courts in many states have constitu- ing," presents a range of complex issues. For exam- tional authority to promulgate rules of practice and ple, what constitutes an "item" in an appropriations procedure for the courts. Although this power is ex- bill? May a governor veto language or restrictions plicitly granted now in many constitutions, earlier without vetoing the appropriation itself? What con- commentators regarded it as an inherent judicial stitutes an appropriations bill? These and other re- power.51 Exercise of the rulemaking power reaches lated questions have resulted in a relatively large vol- such crucial areas of lawyers' work as discovery and ume of recent litigati~n.~~ class actions. This grant of power to the courts serves as a limitation on legislative authority. Therefore, Executive Orders statutes that inwdc thc proccdural realm may be in- A recent series of cases concerning cthics and validated by thc courts. conflicts of interest addressed thc extent ol' gubcrna- 'I'hc rclntionship between statutes and court torial authority to make policy through cxccutivc or- rules varics from statc to statc, but common issues ders. Several governors promulgated financial disclo- arise. For example, in thc famous case of Winberry v.

42 Advisory Commission on Intergovernmental Relations Salisbury,52 the New Jersey Supreme Courl hcld lhat . . . thc Judiciiiry must possess the inherent the New Jersey Constitution53 prohibits the lcgisla- powcr to tlcterrnine and compel payment of ture from statutorily overriding court rules. Othcr those sums of lnoncy which are reasonable states resolve this issue by rcfercnce to the specific and ncccssary to carry out its mandated re- constitutional language involved. For example, sponsibilities, and its powers and duties to Florida's constitution provides: "These rules may be administer Justice, if it is to be in reality a co- repealed by general law enacted by two-thirds vote of equal, independent Branch of our Govern- the membership of each house of the legislat~re."~ ment.e4 The distinction between practice and procedure This claim of inherent powers raises important ques- is easier to define than to apply. For example, does tions of political theory. However, the issue of the following formulation apply to the law of evi- whether the branches of state government exercise dence? "[Slubstantive law creates, defines, adopts delegated or inherent powers islargely academic. Be- and regulates rights, while procedural law prescribes cause state constitutions provide that all legislative the method of enforcing those rights."55 When the power resides in the legislature, the important task is Florida legislature passed a comprehensive statutory to define the legislative power, not to quibble over evidence code, the Florida Supreme Court resolvcd whether that power is inherent or delegated. State the potential conflict by adopting the evidence code constitutions similarly place the judicial power in as a court rule.56 The Colorado Supreme Court the judiciary; consequently, rather than debating avoided a possible conflict between its rulemaking whether a court's power is inherent, the inquiry authority and a rape shield statute by holding that the should focus on whether the claimed power is prop- statute would stand because there was no conflicting erly and necessarily a judicial function. court rule on the subject.57Taking a different view of its relationship to the legislature, the New Jersey Su- Advisory Opinions preme Court has intimated that because it can make Eleven state constitutions authorize or require substantive law in common law adjudications there is state supreme courts to render advisory opinions to no need for the court to limit itself strictly to practice various governmental officials." States differ, of and procedure in its rulemaking capacity.58 course, as to which officers may request opinions and when thcy may do so. The courts tend to construe Regulation of the Practice of Law strictly their authority and obligations under these Another power initially claimed to be inherent in provisions.66 Interesting questions may arise as to the the judiciary relates to the admission and discipline of precedential value of advisory opinions. After all, ad- attorneys.59 Many state constitutions now expressly visory opinions are not adjudications of actual contro- confer this power on the courts and, again, as a grant versies, and are not exercises of the traditional "judi- of judicial authority, this power serves as a limitation cial power." According to the Supreme Judicial on the legislature. Surprisingly, to many people, state Court of Massachusetts: legislatures may not pass statutes concerning the ad- It has been uniformly and many times held mission and discipline of lawyers. A recent series of that such opinions, although necessarily the cases in Pennsylvania held that the state ethics act result of judicial examination and delibera- could not be applied to lawyers.60 "Sunset" legislation, are advisory in nature, given by the jus- tion applying to statutes regulating professions may tices as individuals in their capacity as consti- not apply to the practice of law. tutional advisors of the other departments of Through the exercise of their power to regulate government and without the aid of argu- the bar, courts have promulgated the modern student ments, are not adjudications by the court, practice rules that form the basis for clinical legal and do not fall within the doctrine of stare education.61 The New Jersey Supreme Court utilized decisis. 67 the power to place limits on attorneys' fccs for tort There secms to be cvidcnce that, in the context of ad- cases,62 and most courts are now grappling wilh law- visory opinions, courts do not accord the same pre- yer advertising and specialization. Thc Florida Su- sumption of corrcclncss to the actions of the other preme Court, now followed by many othcrs. used the branches that they do in adjudicating cases. The advi- power to regulate the practice of law to initiate an in- sory opinion can bc vicwcd as an important safety novative program that permits lawycrs to place funds valve standing in Lhc way of unconstitutional actions. entrusted to them in interest-bearing accounts and to use the revenues for various public service pr0jects.6~ The Position and Function of the State Judiciary in Adjudication Inherent Powers of the Courts In addition to these nonadjudicatory functions of In recent years, particularly with respect to bud- state supreme courts, the state courts differ signifi- getary matters, state courts have been asserting that: cantly from federal courts even with respect to adju-

Advisory Commission on Intergovernmental Relations 43 dication. The typical state court system occupies a dif- Many state supreme courts do not face the same ferent institutional position and performs a different overwhelming caseload pressures and jurisdictional judicial function from its federal counterpart. The restrictions as does the U.S. Supreme Court. Some typical state constitution also differs from its federal state courts even have "reach down" provisions72 that counterpart in many ways. Consequently, state court enable them to obtain jurisdiction quickly over state judicial review of state statutes or executive actions is, constitutional conflicts requiring early resolution. or should be, qualitatively different from the federal Therefore, state courts are able to approach state court judicial review of the same statutes or actions. constitutional analysis on a narrower, more incre- First, as noted earlier, beginning soon after inde- mental basis than the U.S. Supreme Court, which la- pendence, the balance of power between state lcgis- bors under intense pressure for broader, more latures and judiciaries has been gradually shifting, in- sweeping pronouncements. creasing executive (as discussed earlier) and judicial Finally, state courts may be viewed as closer to authority at the expense of legislative authority. In state affairs and as arguably more accountable to addition, the wide range of detailed restrictions on state citizens than federal courts. Many state consti- state governments contained in state constitutions is tutions provide for an elected judiciary, or periodic enforceable by state courts, bringing them into a review of appointed judges. Standing and jus- much more detailed involvement in the workings of ticiability barriers are usually lower in the state the other branches. For all these reasons, statc courts courts. Furthermore, in certain areas, such as crimi- are often deeply involved in the state's ongoing poli- nal procedure, state trial judges are more experi- cymaking processes (constitutional and nonconstitu- enced than fcdcral judgcs in the problems of admini- ti~nal).~*Although the extent of this involvement stering U.S. Suprcme Court formulations on a daily may vary from state to ~tate,~gsuch judicial involve- basis. Many stale judges now view their roles as some- ment nevertheless reflects a very different institu- times requiring controversial constitutional rulings. tional position from that occupied by the federal courts. Judicial Review Second, the typical state court's judicial function By contrast to the federal Constitution, the text is different from the federal court's. For example, of a state constitution may provide explicitly for state state courts have traditionally performed much non- judicial review of legislative and executive action. For constitutional lawmaking. As Justice Hans A. Linde example, Article I, Section 2, paragraph 5 of the observed: Georgia Constitution provides: "Legislative Acts in violation of this Constitution or the Constitution of When a state court alters the law of prod- the United States are void, and the judiciary shall so ucts liability, abolishes sovereign or charita- declare them."The North Dakota Constitution, how- ble tort immunity, redefines the insanity ever, imposes a voting rule on judicial review: "The defense, or restricts the range of self- supreme court shall not declare a legislative enact- exculpation in contracts of adhesion, its ac- ment unconstitutional unless at least four of the tion is rarely attacked as "undemocratic." [five] members of the court so decide" (Article VI, Nor is this judicial role peculiar to matters of Section 4). common law subject to legislative rcvcrsal. Contrary lo the federal experience, most judici- The accepted dominance of courts in statc ary provisions of state constitutions have been re- law extends to their "antimajoritarian" rolc vised and ratified in this ccntury without a serious in review of their coordinate political struggle over the cxercisc of judicial review. As indi- branches in state and local governments.70 cated earlier, judicial rcvicw existed in the states prior to thc fedcriil Constitution and the landmark Federal courts, although they certainly have far- Marbury v. Mudison dccision in 1803, in which Chief reaching powers to enforce federal law, have been Justice John Marshall established the doctrine of ju- denied this general lawmaking power since 1938, dicial review for the U.S. Supreme Court. The fact when, in Erie Railroad v. Tompkins,71 the US. Su- that state constitutions are so much more easily preme Court declared that federal courts do not have amended than is the federal Constitution has led to at the power to make common law decisions binding on least some support for an increased level of judicial states. scrutiny of statutes because "mistakes" can be more As discussed earlier, most state supreme courts easily corrected by the electorate.73 promulgate law through rulemaking powers. They also exercise various "inherent powers," usually at Imal Government the expense of the legislative branch. Once thought and State Constitutions to be legislative in nature, these powers have dc- Local governments have a very wide range of volved on state judiciaries during this century. powers and responsibilities in the American govern-

44 Advisory Commission on Intergovernmental Relations mental system. Actually, the existence of local gov- state constitutional value, at least in litigation over ernments predates national independence and the exclusionary zoning and school finance.83 formation of the states. It is surprising, therefore, to note that the first state constitutions were virtually si- Conclusion lent on the question of local governments and their The evolution of the treatment of government powers. As one commentator noted, the early state structure in state constitutions reflects, to a great ex- constitutions did not separate "powers vertically tent, the progressing understanding of American (state-local) as well as horizontally (executive-legisla- government. As citizens came to understand the tive-judicial)."74 This absence of "constitutional le- need for expanded executive power and the dangers gitimacy"75 for local governments caused a number of unfettered legislative authority, the legislative- of problems in developing legal and political justifica- executive balance was adjusted. As the need for judi- tions for their ongoing existence and exercise of pow- cial independence, court unification, and additional, ers. These justifications varied, until finally, by the intermediate courts was felt, state constitutions were 1860s, the famous "Dillon's Rule" of local govern- amended to accommodate these needs. Calls by local ment subordination to the state legislature gained ac- government 1e;ldet-s for increased powers were, al- ceptance: beit slowly, recognized by constitutional home rule provisions. Municipal corporations owe their origin to, The picture of state constitutions as governmen- and derive their powers and rights wholly tal straitjackets, or inhibitors of change, has been from, the legislature. It breathes into them changing. There has been movement toward what the breath of life, without which they cannot Daniel J. Elazar calls the "managerial pattern" of exist. As it creates, so it may destroy. If it may state constitutions, characterized by "conciseness, destroy, it may abridge and contr01.~" broad grants of powers to the state executive branch, and relatively few structural restrictions on the legis- This dependent status of local governments, par- lature."84 ticularly of large cities, became more and more unsat- Still, however, state constitutions contain many isfactory as cities and their problems grew, while costly restrictions on the way state and local govern- rural-dominated state legislatures tended to give in- ments operate, if not on how they are structured. This sufficient attention to urban problems. Local leaders is particularly true in the area of taxation and finance. began to argue for their own powers, which they It must be remembered, in the words of Frank P. could utilize to address local problems without con- Grad: stantly seeking authority from a sometimes distant and unconcerned state legislature. These local con- The least we may demand of our state consti- cerns led to the home rule movement, a major com- tutions is that they interpose no obstacle to ponent of which involved state constitutional amend- the necessary exercise of state powers in re- ments granting semi-autonomous powers to local sponse to state residents' real needs and ac- governments.77 The forms of these amendments tive demands for service.85 have followed several different models, have evolved NOTES over time,78 and have generated much litigation ovcr 1 Willi Paul Aclams. 7he Fitst Anierican Constit~ctionrRe- the question of whether an area of concern can I)e prrblicun Idedop cind /he Making of the State Constitu- dealt with by local government rather than by the tions in the Kcw~l~rtionaryEra (Chapel Hill: University of state legislature.79 For example, the well-known Vil- North Carolina I'rcss, 198I1), pp. 55-56. lage of Morton Grove gun control case in Illinois 2William M. Wiccck, Tile Gnurantee Clause of the United States Consti~ntion (Ithaca: Cornell University Press, turned on, among other things, the home rule power 1972). to regulate firearms.aO 3~acificStates Telephone and Telegraph Co. v. Oregon, In addition to home rule, many other areas of lo- 223 U.S. 118 (1912). cal government are directly affected by state constitu- 4See Coyle v. Smith, 221 U.S. 559 (1911). See also Peter S. tions. Taxation and finance, for example, including Onuf, "New State Equality: The Ambiguous History of a the tax limitation movement of the 1970s, are treated Constitutional Principle," Publius: The Journal of Feder- in detail in state constit~tions.~'The recent move- alism 16 (Fall 1986): 53-69. ment to require state funding to enable local govern- 5Prentice v. Atlantic Coast Line Railroad, 211 U.S. 210, ments to carry out state-imposed "mandates" has re- 255 (1908). 6New State Icc Co. v. Liebmann, 285 U.S. 262,311 (1932) sulted in constitutional amendments in seven states (13randcis. J.. disscnting). (and statutory provisions in seven other slates) re- 7'I'ruax v. (hrrigan, 257 U.S. 312,344 (1921) (Holmes. J., quiring such legislative funding, although those rulcs disscnting) are not always effective.82 Finally, there appears to 8Pennsylvariiu Packet. December, 1778, The Coniplete be a significant trend in the judicial interpretation of Wtititrgs of '/%omasPuine, ed. Philip S. Foner, 2 Vols. state constitutions that recognizes "localism'? as a (New York: Citaclel Press, 1969), 2:281.

Advisory Commission on Intergovernmental Relations 45 9See L. Harold Levinson, "The Decline of the Legislative cia1 Enforcement," Publirrs: The Journal of Federalism 17 Veto: FederalIState Comparisons and Interactions," (Winter 1987): 91. Publius: The Journalof Federalism 17 (Winter 1987): 115. 38David Maglcby, Direct Legislation: Voting on Ballot loFrank P. Grad, "The State Constitution: It's Function Propositions in the United States (Baltimore: John Hop- and Form in Our Time," Virginia Law Review 54 (June kins liniversi ty Press, 1984), pp. 38-40. 1968): 941. 39Georgc Iefcoe and Barney Allison, "The Legal Aspects 13: 11 State ex rel. Schneider v. Kennedy, 225 Kan. 13, 587 P of Proposition 'l'hc Aniador Valley Case," Southern 2nd 844,850. (1978) California LLW&view 53 (November 1979): 172. 40Sce Richard Ilril'k~ult,"Distrust of Democracy," Terar 12The Italia Shipping Corp. v. Nelson, 323 Ill. 427, 439 Law Review 63 (MarchIApril 1985): 1347 (reviewing (1926). Magleby, Direct 1.rgislatioti). 13Robert F. Williams, "Evolving State Legislative and Ex- 41 "The Americans, in short, made of the gubernatorial ecutive Power in the Founding Decade," Annals of he magistrate a new kind of creature, a very pale reflection American Academy of Political and Social Science 496 indeed of his regal ancestor. This change in the gover- (March 1988): 43. See also John V. Orth, "Separate and nor's position meant the effectual elimination of the Distinct: Separation of Powers in North Carolina," Notth magistracy's major responsibility for ruling the soci- Carolina Law Review 62 (October, 1983): 1. ety-a remarkable and abrupt departure from the Eng- 14Askew v. Cross Key Waterways, 372 So. 2d 913,924 (Fla. lish constitutional tradition." Wood, Creation of the 1978); Robert W. Martin Jr., "Legislative Delegations of American Republic, p. 136. See also pp. 132-43. Power and Judicial Review-Preventing Judicial Impo- 42Whitehead v. Rogers, 223 So2d 330 (Fla. 1969). Compare tence," Florida State Universi~Law Review 8 (Winter Bums v.Butscher, 187 So. 26 594 (Fla. 1966) with District 1980): 51. School Board v. Askew, 278 So. 2d 272,275 (Fla. 1973) 15New Jersey Constitution. Article 111, Section 1. ("constitutional officers"). 16Brown v. Heymann, 297 A 2d 572, 576-77 (NJ, 1972); 43See Jon C. Moyle, "Why We Should Abolish Florida's Martin, "Legislative Delegations," p. 51 n. 41. Elected Cabinet," Florida State Univetsity Law Review 6 (Summer 1978): 591; Malcolm B. Johnson, "Why We 17Frank E. Cooper, State Administrative Law, 2 vols. (Indi- Should Keep Florida's Elected Cabinet," p. 603. anapolis: Bobbs-Merrill, 1965), 1:31. 44See generally Ada E. Bechman, "The Item Veto Power 18Reynolds v. Sims, 377 U.S. 533,564 (1964). of the Executive," Temple Law Quarterly 31 (Fall 1957): 1QClientFollow-Up Co. v. Hynes, 390 N.E. 26 847,849 (Ill. 27; Arthur J. Harrington, "The Propriety of the Nega- 1979). tive-The Governor's Partial Veto Authority," Mar- 20Amasa M. Eaton,"Recent State Constitutions," Haward quette Law Review 60 (Spring 1977): 865. Law Review 6 (October 1892): 109. 451nterestingly. this notion of gubernatorial reduction of 21 Gordon S.Wood, The Creation of the American Republic, appropriation items, as opposed to absolute veto, seems 1776-1787 (Chapel Hill: University of North Carolina to stem from Pennsylvania's judicial interpretation in Press, 1969), p. 452. Commonwealth v. Barnett, 199 Pa. 161,48 A 976 (1901) of its provision lo permit such reductions. Virtually all 22See also Rodney 0. Davis, "The People in Miniature': other courts that hiwe considered the issue have rejected The Illinois General Assembly, 1818-1848," Illinois His- this interpretation. See. e.g., Wood v. State Administra- torical Journal 81 (Summer 1988): 95-108. tion Board 255 Mich. 220 238 N.W. 16 (19311 Mills v. 23 Wood, Creation of the American Republic, p. 62. Porter, 69 Mont. 325, 222 P 428 (1924):A nbmber of 24Peter S. Onuf, "State Politics and Ideological Transfor- states, however, have amended their constitutions to mation: Gordon S. Wood's Republican Revolution," authorize gubernatorial reduction. See generally Note, William and Mary Quarterly, 3rd ser. 44 (July 1987): 614. "Item Veto, Reduction of Items, Elimination of Items Included in a General Sum," Southern California Law 25 Wood, Creation of the American Republic, p 409. Review 12 (March 1939): 321. 2"rad, "The State Constitution," 964-966. 46NewYork Times, October 25, 1981. Not surprisingly, this 27For a case avoiding this negative implication problem, suggestion came from a former governor of California, a see Eberle v. Nielson, 78 Idaho 572,306 P.2d 1083 (1957). state where governors may reduce items. The idea is not new. See for example, Note, "Separation of Powers: Con- 28Millard H. Ruud, "No Law Shall Embrace More than gressional Riders and the Veto Power," Universily of One Subject," Minnesota Law Review 42 (January 1958): Michigan Journal of'Law Reform 6 (NO. 3 1973): 735. 389. 47Louis Fisher and Neal Devins, "How Successfully Can 29See, e.g., Pennsylvania Constitution, Article 111, Section the States' Itcm Veto Be Transferred to the President?" 2. Georgetown Law Journal 75 (October 1986): 159. See also Sosee, e.g., Ohio Constitution, Article 11, Section 9. House Conimlttce on Rules, Item Veto: State Eyerience 31 See, e.g., Pennsylvania Constitution, Article 111, Section and its Application to the Federal Situation, 99th Con- 1. gress, 2nd Session (Committee Print 1986), and U.S. Ad- visory Commission on Intergovernmental Relations, 32See, e.g., Florida Constitution, Article 111, Section 12. Fiscal Discipline in the Federal System: National Reform 33Grad, "The State Constitution," p. 955 n. 92. and the Erpe~iericeof the States (Washington, DC: ACIR, 341bid., pp. 961-62. 1987). 35Ibid., p. 963. 48Scc, for cx;~niplc.Ilrown v. Fircstonc, 382 So. 26 654(Fla. 1080); Sli~tcIT rc:l Scgo v. K~rkpatrick.86 N.M. 359,524 36Ruud, "No Law Shall Embracc," p. 447. P.W 975 (1974): Ki~rchcrv. Kcan, 97 N.J. 483. 479 A.2d 37Robert F. Williams, "State Constitutional Limits on 403 (1984); State ex rcl. Klcc~kav. Conta, 82 W.S. 2d 679, Legislative Procedure: Legislative Compliance and Jutli- 364 N. W. 2d 530 ( 1978).

46 Advisory Commission on Intergovernmental Relations 4944N.Y. 2d at 166-67,375 N.E. W at 750-51,404 N.Y.S.21 5QSccPetition of tlic Florida State Bar Ass'n, 40 S. 2d 902, at 570. See also Buettell v. Walkcr, 59 I11 2d 146,319 N.E. 905-06 (Fa. 1940) and cases cited therein. See also Board 2d 502 (1974) (purpose of executive order appears to be of Overseers of the Bar v. ILC, 422 A.2d 998, 1002 (Me. to formulate a new legal requircnicnt rather than to cxe- 1980). cute an existing one); Shapp v. Butera, 22 1%. Commw. "See Wajert v. Slatc Ethics Commission, 491 Pa. 255,420 229 348 A.2d 910 (1975) (governor has only those powers A.2d 439 (1980); Uallou v. State Ethics Commission, 56 delegated by constitution or statute, or which may be im- Pa. Commw. 240,424 A.2d 983 (1981); Kremer v. State plied from the nature of the duties imposed on him.) See Ethics Commission, 56 Pa. Commw. 160,424 A.2d 968 generally Martin v. Chandler, 318 S.W. 2d 40 (Ky. 1958); (1981)(judges). ContraKnight v. City of Margate, 86N.J. Opinion of the Justices, 118 N.H. 582, 392 A.2d 125 374, 431 A.2d 833 (1981). See generally Joseph D. (1978); Richard E. Faboriti, "Executive Power under the Robertson and John W. Buehler, "The Separation of New Illinois Constitution: Field Revisited," Joi~nMar- Powers and the Regulation of the Practice of Law in shall Journal of Practice and Procedure 6 (Spring 1973): Oregon," Willametie Law Journal 13 (No. 2 1977): 273. 235; Note, "Gubernatorial Executive Orders as Devices 61See for example, Art XVIII, Integration Rule of the for Administrative Discretion and Control," Iowa Law Florida Bar, as amended, cited in Attorney General and Review 50 (Fall 1964): 78. Others to Amend Article XVIII of the Integration Rule SoEdward S. Corwin, "The Progress of Constitutional The- of the Florida Ilar. 339 So. 2d 646 (Fla. 1976). ory between the Declaration of Indepenclcnce and the 62Sce American 'I'rial Lawyers Association v. New Jersey Meeting of the Philadelphia Convention," Anlerican Supreme Court, 66 N.J. 258,330 A.2d 350 (1974). Historical Review 30 (April 1925): 521; William E. Nelson, 63See generally In re Interest on Trust Accounts, 402 So. "The Eighteenth Century Background of John Mar- W 389 (Fla. 1981). The program is discussed in Com- shall's Constitutional Jurisprudence," Michigan Law Re- ment, "A Source of Revenue for the Improvement of Le- view 76 (May 1978): 893. gal Services, Part I," St. Mary's Law Jounlal 10 (No. 3 51See Roscoe Pound, "The Rulemaking Power of the 1978): 539; "Part 11," St. Mary's Law Jountal 11 (No. 1 Courts," American Bar Association Jo~~nal12 (Septem- 1979): 113. ber 1926): 599; John Henry Wigmore, "All Ixgislative 64Commonwcnlth ex re1 Caroll v. Tate, 442 Pa. 45,52,274 Rules for Judiciary Procedure are Void Constitution- A.W 193, 197 (1971). See also Comment, "State Court ally," Illinois Law Review 23 (November 1928): 276. Assertion of I1owcr to Determine and Demand Its Own 525 N.J. 244474 A.2d 406 (1950). Budget," Uuivemity of Pennsylvania Law Review 120 (June 1972): 1187. For a more recent example of the 53The New Jersey Constitution provides: "The Supreme Pennsylvania C~ourt'sthinking, see Beckert v. Warren, Court shall make rules governing the administration of 439 A.2d 638 (Pa. 3!)81). See generally Geoffrey C. Haz- all courts in the State and subject to law, the practice and ard, Jr., Martin B. McNamara and Irwin F. Sentilles, 111, procedure in all such courts." New Jersey Constitution, "Court Finance and Unitary Budgeting," Yale Law Jour- Article 6, Section 2, paragraph 3 (emphasis added). nal 81 (June 1972) 1286: Note. "Judicial Financial 54Florida Constitution, Article 5, Section 2(a). Issues for ~utonom~and ~nhdrentPower," ome ell ~awReview 57 judicial interpretation still remain. See, e.g., Carter v. (July 1972): 975. Sparkman, 335 So. 2d 802,808 (Fla. 1976), cert. denied, Wee generally Comment, "The State Advisory Opin- 429 U.S. 1041 (1977) (repeal by implication not permit- ion in Perspective," Fordham Law Review 44 (October ted): In re Clarification of Florida Rules of Practice and 1975): 81. Procedure, 281 So. 2d 204 (Fla. 1973) (legislature may re- 66See In re House Resolution No 12, 88 Colo. 569, 298 peal but not amend rules). (1931; In re Opinion of the Justices, 314 Mass. 767. 49 55In re Florida Rules of Criminal Procedure, 272 So. 2d 65 N.E. 2d 252 (1943). (Fla. 1973). 67Commonwealth v. Welosky, 276 Mass. 398, 400, 177 56See in re Florida Evidence Code, 376 So. 2d 1161 (Fla. N.E.656,658 (1931). The court continued: 1979); In re Florida Evidence Code, 372 So. 2d 1369 (Fla. When the same questions are raised in litigation, 1979). the justices then composing the court are bound 57People v. McKenna, 196 Colo. 367,585 P. 275 (1978). See sedulously to guard against any influence flow- also Knight v. City of Margate, 86 NJ 374, 386-98, 431 ing from the previous consideration, to examine A2d 833, 839-45 (1981) (distinguishing the existence of the subject anew in the light of arguments pre- judicial rulemaking power from its exercise). sented by parties without reliance upon the views theretofore expressed, and to give the case 58Busik v. Levine, 63 NJ 351,307 A.2d 571 (1973). the most painstaking and impartial study and de- The constitutional grant of rulemaking power iis terminat~onthat an adequate appreciation ofju- to practice and procedure is simply a grant of dicial duty C;I~inipcl. power; it would be a mistake to fincl in that grant Thc New I 1a1npshi1.cSupreme Court "caution[ed] that restrictions upon judicial tcchniclues for the cx- the op~nionis not ;t judicial clccision. . . ." In re Opinion ercise of that power, and still a largcr mistake to of the Justices, 82 N.H. 561,575,138 A. 284,291 (1927). suppose that the grant of that power implicdly The Florida Constitution provides for "interested per- deprives the judiciary of flcxibility in the area sons to bc heard on the qucstions presented." Florida called "substantive" law. Constitution, Art. IV, Section l(c). Id. at 363, 307, A.2d at 577. 68Henry Robert Glick. Supreme Cowts in State Politics The difference, of course, between the two "techniques" (New York: Basic Books, 1971), p. 5: "State supreme of exercising judicial power was that the New Jersey Su- courts are not simply duplications of the national court at preme Court had held that the legislature could not over- a lower level of the judicial hierarchy. Instead, they are rule court rules, although the legislature could ovenule distinctive institutions which are integral parts of state substantive law decisions. political and legal systems." See also Herbert Jacob and

Advisory Commission on Intergovernmental Relations 47 Kenneth N. Vines, Politics in the American States: A 75Ibid. Comparative Analysis, 3d ed. (Boston: Little Brown and 76Clinton v. Cedar Rapids and Missouri River Railroad, 24 Co., 1976), p. 246: "I[t] becomes apparent that the state Iowa 455 (1868), quoted in Michael E. Libonati, "Inter- courts make significant policies in many of the same sub- governmental Relations in State Constitutional Law: A stantive areas in the other organs of government." Historical Overview," Annals of the American Academy 69Glick, Supreme Courts, p. 151; Henry Robert Glick and of Political and Social Science 496 (March 1988): 113. Kenneth N. Vines, State Court Systems (1973). See generally, G. Alan Tarr and Mary Cornelia Porter, State Su- 77Jefferson I3. Forclham, "Foreword: Local Government preme Courts in State and Nation (New Haven: Yale Uni- in the I~rgerScheme of Things," VanderbiltLaw Review versity Press, 1988). 8 (June 1955): 668-71. 70Hans A. Linde, "Judges, Critics, and the Realist Tradi- 78Kenneth Vanlandingham, "Constitutional Municipal tion," Yale Law Journal 82(1972): 248. See also Lawrence Home Rule since the AMA (NLC) Model," Williamand Baum and Bradley C. Canon, "State Supreme Courts as Mary Law Review 17 (Fall 1975): 1. Activists: New Doctrines in the Law of Torts," in Mary %ee, for example. City of Miami Beach v. Fleetwood Ho- Cornelia Porter and G. Alan Tarr, State Supreme Courts: tel, Inc., 261 So. 2d 801 (Fla. 1972) (rent control); City of Policymakers in the Federal System (Westport. Connecti- Miami Beach v. Forte Towers. Inc., 305 So. 26 764 (Fla. cut: Greenwood Press, 1982), p.83. The "legitimacy" of 1974) (same). such common-law decisions is sometimes attacked as in- vading the province of the legislature. See generally 8oKalodimos v. Village of Morton Grove, 103 Ill. 2d 483, Ralph F. Bischoff, "The Dynamics of Tort Law: Court or 474 N.E. W 266 (1984). Legislature?" Vermont Law Review 4 (Spring 1979): 35. 81 David M. Roscnberger, "Historical Perspective on Con- State supreme courts also pursue policy initiatives out- stitutional 1,irnitation of Property Taxes in Michigan," side their formal judicial role in the adversary process, Wayne Low lkvi~w24 (March 1978): 939; M. David Gel- including direct and indirect contact with legislators. See fand, "Seeking Iocal Government Fiscal Integrity Henry Robert Glick, "Policy-Making and State Supreme through Dcbt Ceilings, Tax Limitations, and Expendi- Courts: The Judiciary as an Interest Group," Law and ture Limits: The New York Fiscal Crisis, the Taxpayers' Society Review 5 (November 1970): 271. Revolt, and Beyond," Minnesota Law Review 63 (1979): 71 304 U.S. 64 (1938). 545. 72See, for example, Arthur J. England, Jr., Eleanor 82U.S. General Accounting Office, Legislative Mandates: Mitchell Hunter, and Richard C. Williams, Jr., "Consti- State @eriettces Offer Insights for Federal Action (Wash- tutional Jurisdiction of the Supreme Court of Florida: ington, DC: GAO, September 1988); Libonati, "Inter- 1980 Reform," University of Florida Law Review 32 (Win- governmental Relations," p. 116; Durant v. State Board ter 1980): 193-96; Arthur J. England, Jr. and Richard C. of Education, 424 Mich. 364, 381 N.W. 2d 622 (1985); Williams, "Florida Appellate Reform One Year Later," Boone County Court v. State, 631 S.W. 2d 321 (Mo. Florida State University Law Review 9 (Spring 1981): 1982). 250-53. 83Richard Briffault, "Localism in State Constitutional 73Commonwealth v. O'Neal, 369 Mass. 242, 275, 339 Law," Annals of the American Academy of Political and N.E.2d 676,694 (1975). For the contrary view, see State v. Social Science 496 (March 1988): 117. Baker, 81 N.J. 99, 115-26,405 A.2d 368,375-81 (1979). BeDaniel J. Elazar, "The Principles and Traditions Under- 74James E. Herget, "The Missing Power of Local Govern- lying State Constitutions," Publius: TheJoumal of Feder- ment: A Divergence between Text and Practice in Our alism 12 (Winter 1982): 22. Early State Constitutions," Virginia Law Review 62 (June 1976): 1001. 85Grad, "Thc State Constitution," p. 939.

48 Advisory Commission on Intergovernmental Relations Chapter 4 The States and Civil Liberties

Most Americans today view the protection of U.S. Supreme Court for doctrine and legal prece- civil liberties primarily as the responsibility of the dent. The predictable result was the domination of U.S. Supreme Court, and they look to its rulings in- civil liberties law by the federal judiciary. terpreting the federal Bill of Rights and the Four- Early in the 1970s, this domination was chal- teenth Amendment to discover the scope of individ- lenged by a few state courts that began to rely on state ual rights. Yet this identification of civil liberties with bills of rights to rcsolve civil liberties issues.5 Since the federal Constitution and the U.S. Supreme Court then, this devcloprnent, known as the "new judicial is a relatively recent development in American his- federalism," has bccome a nationwide phenome- tory. For most of the nation's history, the federal Bill non.6 State judges from all sections of the country of Rights was understood to protect solely against have reported significant increases in litigation under federal infringements on rights.' State law-as found state bills of rights.7 Scholars have identified some in state bills of rights, state statutes, and the common 400 cases sincc 1970 in which state high courts have law-served as the primary guarantor of individual either granted greater rights protection under their liberties. state constitutions than was granted by the U.S. Su- The dramatic shift in the relative roles played ly preme Court under the federal Constitution or have state law and federal law in protecting rights began in based their decisions affirming rights solely on their the early 20th century. In 1925 the U.S. Suprcme state constitulions.8 Court ruled that the First Amcndmcnt's ban on The crncrgcncc of lhc ncw judicial federalism abridgements of freedom of speech by thc fcdcral raiscs ancw thc yucstion of what part state law can government is applicable to the states by the due and should play in tlclincating and protecting rights. process clause of the Fourteenth Amcndmcnt.2 Over To answer this qucst ion, wc review in this chapter the the next 50 years, the Supreme Court conlinucd its debate over thc role to be assigned to statelaw in pro- gradual process of selectively extending federal con- tecting civil libertics. Next, to assess the contribution stitutional protection on a case-by-case basis against of state law in protecting rights, we consider how state violations of various other guarantees of the state law has dealt with selected aspects of the free- U.S. Bill of Rights.3 During the 1960s, this process, doms of speech, press, and religion. Clearly, no set of usually referred to as "selective incorporation," ac- three issues can be fully representative. However, celerated significantly, as the Supreme Court incor- because the rights at stake in these three areas are so porated most of the Bill of Rights' criminal justice fundamental, our survey of state efforts to protect guarantees.4 them furnishes some indication of the role currently Selective incorporation influenced both the fo- played by state civil liberties 1aw.QEqually important, rums in which civil liberties claims were advanced and our analysis of these issues illustrates the opportuni- the forms that those claims took. By ruling that the ties that thc statcs have to contribute to the protec- federal Constitution prohibited state violations of tion of civil libcrties, the array of legal weapons at rights, the Supreme Court multiplied its opportuni- their disposal for this purpose, and the use that the ties to address civil liberties issues. At the same time, statcs have made of these weapons. the perception that federal forums were more sympathetic to rights claimants-a perception that often- A State Civil Liberties Law? times was quite accurate-diverted cases from state Thc basic question to be addressed is whether courts, thereby retarding the development of a state thc statcs should play any part in defining and pro- constitutional jurisprudence. Even when civil liber- tecting rights. Opponents of state involvement have ties issues arose in state tribunals, attorneys typically insistcd that thc protection of rights is properly a fed- ignored state bills of rights or treated statc and fcderal rcsponsibil ity because all Americans should en- era1 provisions as interchangeable, relying on the joy thc same rights, rather than having their rightsde-

Advisory Commission on Intergovernmental Relations 49 termined by accidents of geography (i.e., by where becn encouragccl to participate in defining and secur- they live). In addition, they have suggested, whatever ing rights, and throughout the nation's history they the theoretical arguments in favor of state involve- have donc so. ment, the unhappy record of the states throughout Yet in encouraging the states to define and pro- American history in failing to safeguard rights justi- tect rights, the nation almost inevitably committed it- fies lodging this responsibility in thc fedcral govern- self to an interstatc diversity in rights. Even at the ment. time the federal Constitution was adopted, there Undeniably, these arguments for an interstate were important differences in the rights enjoying uniformity of rights and for the protection of those constitutional protection in the various states.12 Al- rights by the national government have considerable though one might have expected the adoption of the force. However, they are hardly the whole story. federal Bill of Rights to promote interstate uniform- There are important reasons rooted in American ity by providing a model for emulation, in fact this has constitutional history and constitutional theory, as not occurred. In some instances, the states have well as in the nature of American federalism, for looked to the fedcral Constitution for direction: for state participation in defining and protecting rights. example, 33 states have adopted constitutional provi- Before elaborating those reasons, however, one might note the implications of the argument for an sions that parallel the Second Amendment by tying interstate uniformity in rights. That argument, ifgen- the right to bear arms to the need for a "well-regu- eralized, would justify the elimination of virtually all lated militia."l3 But more frequently the states have policymaking by the states. For if one's rights should looked to their sister states rather than to the na- not depend on "accidents of geography," neither pre- tional government for guidance: 30 states, for exam- sumably should the availability of any other impor- ple, have modeled constitutional protections on the tant benefit or service provided by government. How- Virginia Constitution's declaration that "all men are ever, Americans have long accepted some state born equally free and independent."l4 Moreover, autonomy and a degree of diversity in the provision of whereas the fcdcral Constitution has been amended benefits and services because we belicvc that. on bal- only infrcqucntly to secure rights beyond those con- ance, the system of federalism that pcrmits such taincd in lhc llill of Rights, the states have not hesi- autonomy and diversity is a good system.10 'This, of tated to amend thcir constilutions to recognize new course, hardly proves that there should be interstate rights or to extend protcction against new threats to differences in rights. Although we wclcome divcrsity rights. Between 1968 and 1976, for example, 16 states in some matters, in others we have opted for national adopted constitutional guarantees of gender equal- uniformity. Nonetheless, it does suggest that the ity.15 Finally, as Table 1demonstrates, several states mere fact of interstate diversity is not, in and of itself, have adopted protections for rights that lack any ana- a sufficient argument against participation in protect- logue in the U.S. Constitution. ing rights. The broader argument in favor of state participation in defining and protecting rights begins with the Table I recognition that such involvement is no innovation Examples of Distinctive but rather an established feature of American consti- State Constitutional Protections tutiona1ism.l Even before the adoption of the fed- Right States eral Constitution, several states had assumed this responsibility by prefacing their constitutions with bills The right to privacy 10 states: of rights. Other states inserted protections for rights 8 as part of protection against unreasonable in the body of their charters. As initially proposed, search and seizure the federal Constitution largely left the task of pro- 2 as free-standing tecting rights in state hands, since it did not include a protections bill of rights. Even when Antifederalist complaints Pennsylvania led to the addition of a bill of rights, the First Con- A right to pure water gress made clear that state declarations of rights could Bans or limits on and should continue to provide protection by reject- imprisonment for debt 39 states ing a proposal that guaranteed various rights against The right to a state infringement. Since then, all 50 states have in- legal remedy for injury 36 states cluded bills of rights in their constitutions and also The right to safe schools California have acted to secure rights through statutes and judi- Prohibition against cial rulings. Although the Fourteenth Amendment to undue harshness 7 states the U.S. Constitution was designed to augment fed- The right to fish California, eral power to prevent state violations of rights, the Rhode Island amendment was meant to supplement, rather than to Prohibition against preempt, state protections. Thus, as a matter of con- sex discrimination 19 states stitutional design, the states have from the outset

50 Advisory Commission on Intergovernmental Relations The diversity of rights protected by the various jeopardized. Admittedly, there is some historical states and the addition of new protections by consti- warrant for this concern. But this concern is less justi- tutional amendment suggest that the states have fied in the contemporary political and legal context. often been responsive to their citizens' demands for As noted in chapter 1, judicial decisions, federal leg- the protection of rights not secured by the federal islation, and intrastate political developments have Constitution. In addition, the states' inventiveness in all combined to make state political systems more discovering rights, as well as the willingness of states representative than in the past. Partially as a result of to seek guidance from their sister states, underlines a this, instances of blatant suppression of minority major advantage of permitting states to contribute to rights arc rare. Thc civil liberties agenda in the states the definition and protection of rights. Requiring a instcad tends to be rather different. The states today uniformity in rights from state to state would prevent are more likely to bc called on to establish the proper the states from performing their historic function as balance when rights seem in conflict-for example, incubators of political change. If uniformity is re- when press claims of freedom of access to pretrial quired, it will necessarily mean adherence to the proceedings collide with the right to privacy or the "lowest common denominator" that is acceptable na- right to a fair trial.17 Or states may be asked to bal- tionally.16 If, however, each state is permitted to pur- ance the competing claims of equality and local sue its own course, within the limits imposed by the autonomy, as in school finance or zoning litigation.18 federal Constitution, then the states' experiments Thus, the civil liberties issues that the states are ad- can contribute to our national understanding of dressing today seldom involve whether basic rights rights. Indeed, American history confirms the impor- should be protected. At the same time, the complex- tance of state leadership in the recognition and pro- ity of these new issues underlines the advantage of al- tection of rights. See Table 2. lowing various political and judicial bodies in a multi- Yet, ultimately, the fear remains that if each plicity of jurisdictions to contribute their thoughts on state can follow its own path, basic rights might b how these issues should be resolved. Finally, it should be remembered that the incorporation of various guarantees of the U.S. Bill of Table 2 Selected State Initiatives in Protecting Rights Rights and the passage of federal civil liberties legislation have, in effect, established a "floor" of basic Press Shield Laws: 18 states enacted press shield laws rights that annot be infringed. This has not ended prior to the U.S. Supreme Court's dccision in state expcrimcntation, nor was it meant to. However, Bmnzburg v. Hayes (1972), which rejected claims the existence of this "floor" has had the effect of that the First Amendment prolccts reporlcrs from having to divulge their sources. After the Suprcme channeling stales' cxpcrimcnts in the direction of ex- Court's decision, another seven states extended panding and sal'cguarding, rather than violating, protection to reporters. rights. Thus, statc involvcmcnt in defining and secur- Right to Counsel: 35 states provided counsel to indigent ing rights should not jeopardize fundamental rights. defendants in felony cases prior to the U.S. Su- preme Court imposing the requirement on the Freedom of Speech states in Gideon v. Wainwright (1963). The Wiscon- under State Constitutions sin Supreme Court imposed the requirement in Carpenter v. Dane (1850), over a century before Every state bill of rights guarantees the freedoms Gideon. of speech and of the press.lg During the 19th century, Exclusionary Rule: The exclusionary rule bars the use of moreover, state rulings interpreting these provisions illegally seized evidence in criminal prosecutions. provided the main body of judicial doctrine on free- The Iowa Supreme Court adopted the exclusionary dom of expression.20 However, when the U.S. Su- rule in State v. Sheridan (1903), 11 years before the preme Court began to address First Amendment is- US. Supreme Court in Weeksv. United States (1914) imposed the rule in federal prosecutions. By the sues during the early 20th century, doctrinal debate time the U.S. Supreme Court imposed the rule as a on the Court quickly detached itself from the body of requirement in state prosecutions, 23 states had state cases, pursuing arguments and directions unan- adopted the exclusionary rule as a matter of state ticipated by thc state courts. Over time the U.S. Su- law. preme Court developed an impressive body of case Equal Pay Provisions: Equal pay provisions forbid wage law, and its decisions spawned a vast scholarly litera- discrimination on the basis of sex. Before Congress ture. Thus, in the early 1970s, when state courts be- enacted an equal pay law in 1963, 19 states had en- gan once again to address speech and press questions acted similar laws. undcr thcir state constitutions, they confronted a Fair Housing Legislation: Fair housing legislation pro- well dcvelopcd and highly sophisticated body of legal hibits discrimination on the basis of race in thc sale doctrine. or rental of housing. Before Congress enacted a Fair housing law in 1968, 17 states had enacted similar In such circumstances, one would expect state laws. courts to rcly heavily on federal law and precedent rathcr than to chart their own independent constitu-

Advisory Commission on Intergovernmental Relations 51 tional course. This has occurred. Yet even where fed- right of free speech, albeit one subject to regulation eral law predominates, state law can make important to prevent abuse. In determining the scope of speech contributions where (1) the national government has rights under state law, then, the states must consider left issues to the states for resolution, (2) the national whether this affirmative right of free speech extends government has failed to provide adequate protec- beyond the prohibition of governmental infringe- tion for rights, andlor (3) distinctive state constitu- ments on the right to speak-that is. beyond state ac- tional provisions afford protection beyond that avail- tion-and requires that speakers be accorded access able under the federal Constitution. to private property to convey their messages. In reaching this determination, however, the states Private Abridgements of Free Speech must also take account of state constitutional protec- By its very terms, the First Amendment protects tions for property rights and, more specifically, of the freedom of speech only against congressional constitutional requirements that they neither take abridgement. As a result of incorporation, the fcd- nor damage property without compensation.26 era1 Constitution is now understood to prohibit state Within thc past decade, several states have ad- infringements on First Amendment rights; howcver, dressed directly the issue of speech rights on private private limitations of expression remain outside its property. 'l'hc scniinal case is Robins v. Pruneyard purview.2' The U.S. Supremc Court has rccognixcd Shopping Cetrfvr (1 979). in which the California Su- that in certain limited circumstances, narncly, whcn preme Court upllcld Robins' right to collect signa- private entities are performing public functions, thcy tures in a privately owncd shopping center for a peti- too are engaged in "state action" and are thus subject tion protesting the Unitcd Nations' anti-Zionism to federal constitutional constraints.22 Nonethclcss, reso1utionP"l'hc California high court noted that the the U.S. Supreme Court has read this "public func- federal due process clause does not preclude the tion" exception narrowly. In particular, it has con- states from regulating the uses of private property in cluded that although privately owned shopping cen- the public interest. It also asserted that the affirma- ters may resemble traditional downtown shopping tive endorsement of freedom of speech in the state areas, this does not mean that they are performing a constitution signals a strong public interest that can, "public function." As a result, shopping center own- at least in some circumstances, override the claims of ers do not violate the First Amendment when they re- property owners. More specifically, the court ob- strict or forbid speech on their premises.23 served that Robins' solicitation of signatures for his The U.S. Supreme Court's rulings, however, are petition neither interfered with the normal business not the final word on the subject. Although the U.S. operations of the mall nor diluted property rights. It Constitution does not secure a right to speak on pri- concluded therefore that he was entitled to protec- vate property, neither does it accord property owners tion under the state constitution. a right to exclude speakers. Rather, it allows the When the U.S. Supreme Court unanimously up- states-through their statutory, constitutional, and held the California court's ruling in Pruneyard, simi- common law- to define the scope of property rights lar cases were filed in several other states.28 Because and to regulate the use of private property in the pub- the affirmativc recognition of speech rights in state lic interest.24 Put differently, the states remain free constitutions is accompanied typically by an "abuse" to balance, as they see fit, the competing claims of limitation, the courts in these states-like the Cali- speakers seeking access and of property owners seek- fornia court in Pruneyard-have had to consider ing to restrict speech on their property. whether speakers had interfered with the legitimate In striking this balance, the states must dcter- claims of propcrty owners. This necessarily required mine whether their constitutional protcctions for state judges to devclop standards for applying the dis- free speech are directly applicable to private restric- tinctive state guarantees. Some courts made impres- tions on speech. Despite variations, what is striking sive strides in this endeavor. For example, in over- about state guarantees is that many do not merely turning the trespass conviction of a member of the echo the First Amendment's ban on governmental United States Labor Party who distributed leaflets on infringements on the freedom of speech. The Michi- the campus of Princeton University without permis- gan Constitution, for example, states: "Every person sion, the New Jersey Supreme Court in New Jersey v. may freely speak, write, express and publish his views Schmid (1980) considered carefully both the nature on all subjects, being responsible for the abuse of of the private property on which Schmid intruded and such right; and no law shall be enacted to restrain or the extent to which Schmid's expression interfered abridge the liberty of speech or of the press."25 with-or, as in this case, promoted-the purposes to Whereas, the second clause of this provision, likc the which the property was dedicated. Similarly, in up- First Amendment, bars governmental intcrfcrence holding an environmental group's right to collect sig- with the freedom of speech, the first does not men- natures and demonstrate in a shopping mall, the plu- tion government. Instead, it announces a positive rality opinion for the Washington Supreme Court

52 Advisory Commission on Intergovernmental Relations noted that the right depended on whether "state law validity of this claim, it has not prompted creation of a confers such a right and . . . its exercise does not un- federal testimonial privilege for reporters. In 1972, reasonably interfere with the constitutional rights of the U.S. Supreme Court concluded that the First the owner."29 Amendment does not protect journalists who refuse However, not all state jurists have concludcd either to testify or to divulge their sources to grand ju- that their constitutions afford speakers a right tocon- ries. Subsequent efforts in Congress to enact a press vey their messages on private property. Several of the shield law have also proved unavailing34 decisions extending protection against private abridg- Perhaps bccause state courts handle the vast ma- ment of speech have provoked sharp disscnts from jority of criminal cases, thc states had begun to ad- justices who found a "state action" rcquircmcnt im- dress thc issue ol'a tcstimonial privilege for reporters plicit in the state's bill of rights. Sincc 1984, courls in long bcl'orc il cmcrpxl on thc fcdcral political and le- Connecticut, Michigan, and New York have all cn- gal agcndus.35 In 1896, Maryland enacted the na- dorsed the dissenters' position.30 Moreover, even tion's first press shicld law, granting a limited testi- those states that have extended constilutionnl pro- monial immunity to rcportcrs. A series of highly tection against private restrictions on specch have publicized dispulcs during the 1930s prompted re- found it difficult to strike a balance between the newed attention to the issue of testimonial immunity, rights of speakers and those of property owners.31 leading ten additional states to adopt shield laws. Yet, the fact that one encounters interstate- During the 1960s and early 1970s, seven more states and even intrastate-disagreements about the inter- passed shield laws, in part in response to complaints pretation and application of state constitutional pro- about the increased issuance of subpoenas to report- visions is hardly surprising. Rather, it would be ers. Finally, when the U.S. Supreme Court ruled that surprising if every state, having recognized that its the First Amendment does not excuse reporters from constitution affords independent protection for testifying, seven more states responded by extending rights, interpreted its constitutional guarantees in ex- protection to reporters. actly the same way. Moreover, the diversity of inter- This is not to say that the states have adopted pretation that results from our system of federalism uniform policies on reportorial privilege. Not all should be viewed as a strength rather than a weak- states accord a testimonial privilege to journalists, ness. This diversity encourages an interstate dialogue and even those that do still differ over who is entitled about the scope of individual liberties that can pro- to the privilege and over what the privilege entails. mote thoughtful, informed decisions.32 As state Some states, such as California, have protected re- judges consider in new contexts the meaning of their porters against contempt citations but not against state's distinctive constitutional guarantees-for charges of obslruction of justice or against directed example, the "abuse" limitations on the freedom verdicts in libel cases. Other states, among them Ari- of speech found in several state constitutions-and zona and Ohio, authorize reporters to withhold only begin to develop a state jurisprudence of free speech, the namcs of sourccs, whereas others, such as Dela- they will undoubtedly benefit from the exchange of ware and Michigan, allow reporters to protect both views with their colleagues on other courts that is their sources and the information they receive. Fi- promoted by state protection of civil liberties.33 nally, some stales afford protection only to professional journalists connected with the formal news Freedom of the Press media, but others extend protection to free1ance;s under State Constitutions and other persons engaged in news gathering or re- In general, witnesses must answer all pertinent search. questions put to them during grand jury investiga- Even within individual states, significant changes tions andlor trials: those who fail to do so may be pun- have occurred over time in the protection afforded to ished for contempt. However, exceptions to this re- reporters. In several states, the scope of press privi- quirement have been recognized, when its leges has emerged through interaction between the enforcement would imperil certain confidential rela- legislature and thc courts, with legislators responding tionships, such as those between doctor and patient to narrowing constructions of press shield laws by ex- or between priest and parishioner. Journalists have tending broader protection. For example, on three contended that the relationship between reporters separate occasions, the New Jersey legislature and their confidential news sources warrants similar amended the state's shield law in response to judicial protection. They insist that because confidential rulings that had construed it narrowly.36 After Cali- sources often are willing to provide information only fornia's courts repeatedly had narrowed the scope of if their identities can remain secret, compclling rc- the statc's shicld law, the citizens responded by porters to name their sources and/or testiljl aboul Lhc amending the California Constitution to give consti- information they receivc impcdcs the gnlhcring of tutional prolcction to rcportcrs' testimonial privi- news and its transmission to thc pul~lic.Wh:~tcvcr the legc.37

Advisory Commission on Intergovernmental Relations 53 Our survey of state responses to claims of rcpor- the original states had to determine whether to main- torial privilege leads to three general observations. tain thcir existing religious establishments. Although First, by the time civil liberties issucs cmcrgc as part most did not immediately eliminate their establish- of the nation's political and legal agendas, ol'lcntimcs ments, indcpcnder~cctriggcrcd a movement toward (as was the case with press shicld laws) the statcs had disestablishrncnt, best exemplified by the famous addressed the issues and confrontcd the difficult task campaign for rcligious libcrty in Virginia. This move- of defining the scope of those libcrtics. This, in turn, ment found expression in carly state constitutional suggests that the federal government can-and provisions guaranteeing freedom of conscience and should-profit from the example and experience of prohibiting prcference to any religious sect. None of the states.38 Again, this underlines how the nation's the states subsequently admitted to the Union cre- federal system promotes a beneficial dialogue on civil ated a religious establishment, and by the 1830s intra- liberties issues. state pressures, as well as the federal example, led Second, the willingness of state legislatures to the original states to eliminate the last vestiges of enact press shield laws and to repudiate narrowing ju- their official establishments. As those states adopted dicial constructions of them confirms that state statu- new constitutions or amended their old one, they tory law, as well as state constitutional law, can pro- used the occasion to remove outdated provisions rec- vide important safeguards for civil liberties. ognizing religious establishments from their funda- Finally, the recent flurry of cases involving the mental law. state constitutional right of reporters to gain access to Despite the climination of official establish- pretrial hearings suggests that both state legislatures ments, many states continued to provide unofficial and state courts will continue to be involved in ad- support to Protestant Christianity, particularly in the dressing the right of journalists to obtain information public schools. As long as the nation's population re- controlled by government.39 mained relatively homogeneous religiously, this support produced little controversy. However, the immi- Church and State in the States gration to America of large numbers of Roman Catholics, who objected to this "Protestantizing" of The Constitutional Context public education, prompted a second phase of state The absence of federal law has afforded states constitution-making. In response to Catholic de- the opportunity to define rights on private property mands for statc funding of their schools and for the and to protect the confidentiality of reporters' elimination of Protestant religious practices in public sources. However, the role of state civil libcrtics law schools, several states strengthened their constitu- is not merely interstitial. The states can pursue an in- tional bans on aid to religious institutions and their dependent legal course and make a substantial con- mandates that school funds be expended only for tribution even when there is a body of federal law public schools. Other states responded to the contro- bearing on an issue. A prime example of such state in- versy by adding similar provisions to their constitu- dependence is to be found in the constitutional law of tions. Finally, several states that were settled later or church and state.40 that escaped sectarian conflict over public education Prior to the Supreme Court's incorporation of nonetheless borrowed the strict constitutional lan- the establishment clause in 1947, the states had pri- guage of their sister states. As a result, long before the federal courts addressed the issue, most state mary responsibility for regulating the relationship be- constitutions had recorded a considered constitu- tween church and state. Incorporation inaugurated a tional judgment on aid to religious institutions. In new era of federal judicial involvement and doctrinal fact, their emphatic and detailed prohibitions of such development. Yet, this increased federal activity has aid appear to justify a separationist reading that may not diminished the importance of state constitutional yield results different from those obtained under the guarantees. Although both federal and state charters First Amendment. enforce some degree of separation between church and state, state bills of rights typically have avoided Aid to Parochial Schools the apparent vagueness of the First Amendmcnl's Given the specificity of these state constitutional ban on laws "respecting an establishment of rclig- prohibitions, it is hardly surprising that few cases ion." Instead, most state constitutions contain spe- have arisen involving direct aid to religious schools cific and detailed provisions governing the rcl'1 1'Ion- and that state courts havc consistently struck down ship between church and statc. Thcsc provisions, such aid as unconstilulional.41 State cases since when considered in light of the controversies that cn- World War It have focuscd instead on indirect aid to gendered them, amply justify an independent state religious schools and thcir students. such as the pro- jurisprudence. vision of transportation or tcxtbooks to children at- Generally speaking, state constitution-making tending parochial schools. While the US. Supreme on church and state has occurred in two phases. The Court has ruled that such programs do not violate the first phase commenced after independence, when First Arnendment,42 the states have divided over

54 Advisory Commission on Intergovernmental Relations their constitutionality. In part, this division reflects lowing its 1913 decision, which ruled out the "use" of textual differences among state constitutions. For ex- money for maintaining or aiding sectarian schools.48 ample, after their high courts had invalidated pro- If the U.S. Supreme Court adopts a more accom- grams authorizing the transportation of students to modationist stance on aid to religious institutions, as parochial schools, Wisconsin and New York adopted has been predicted, it can be expected that state constitutional amendments expressly permitting courts will be called on increasingly to determine their reinstitution.43 On the other hand, the Alaska whether such aid violates the state constitution. Supreme Court concluded that, given Alaska's emphatic constitutional ban on aid to religious institu- Conclusion tions, the failure to include a clause permitting incli- Our survey of how state law has helped to define rect aid implied that such aid was impermi~siblc.~~ and protect civil lilmties, although hardly exhaus- In part, however, interstate disagreements on tive, permits some general observations. First, state the constitutionality of indirect aid can be traced to involvement in protecting rights is nothing new. It whether state judges are willing to read state consti- was the states that first devised bills of rights, and it tutional provisions as independent judgments on the was the states that had primary responsibility for de- permissibility of aid to religious institutions. Gener- fining and protecting rights for over a century after ally speaking, those state courts that have invalidated the nation was created. Thus, the "new judicialfeder- programs of indirect aid have displayed a greater sen- alism" and the recent upsurge of interest in state civil sitivity to the distinctive language in state constitu- liberties law should be heralded not as an innovation, tions and to the historical experiences that produced but as thc rediscovery of a traditional aspect of it. Gamey v. State Department of Education, which in- American fedcral ism. volved the constitutionality of Nebraska's textbook- Second, throughout the nation's history, the loan law, can serve as a model of independent consti- statcs have utilized a variety of legal means to safe- tutional analysis.45 Eschewing the U.S. Supreme guard rights. Anwng the most familiar of these are Court's doctrinal formulations, the Nebraska Su- state bills of rights, which have been employed to preme Court focused instead on the state's constitu- complement, supplement, and extend the protec- tional prohibition of any "appropriation in aid of any tions available under the U.S. Constitution. How- sectarian institution or any educational institution ever, other state constitutional provisions-for ex- not owned and controlled by the state."The clarity of ample, education clauses banning sectarian this language, the court insisted, made interpretation influences in publicly funded schools-also have unnecessary, and its broad sweep admitted of no ex- served to safeguard civil liberties. So, too, have state ceptions. Moreover, the records of the convention statutes, such as those protecting reporters' confi- that drafted the provision confirmed that a major aim dential sources. Finally, state courts have invoked the was to devise a precise prohibition that would prevent common law and their own rulemaking authority to sectarian conflict over the funding of church-related secure individual rights.49Thus, our examples under- schools. The Nebraska Supreme Court therefore score the variety of state initiatives on behalf of ruled the law unconstitutional. rights. Other state courts have likewise emphasized the Third, as the struggle for religious liberty in Vir- distinctive language of their state constitutions in jus- ginia illustrates, these initiatives-constitutional, tifying development of an independent constitutional legislative, and judicial-have served not only to proposition. The California Supreme Court, for exam- tect rights within the borders of the state but also to ple, concluded that the state constitution's ban on cx- provide impetus and guidance for efforts by other penditures for "any sectarian purpose" was designed states and the national govcrnment to secure rights. to prevent the state from providing bcnc fits to scctar- This coincides with the pattern of cooperative activity ian schools that furthered their educational purpose. that has characterized many aspects of American fed- On that basis, the court invalidatcd a textbook loan eralism throughout the nation's history. program.46 Similarly, the Idaho Supreme Court, in Having said this, the fact remains that contempo- striking down a state law authorizing the transporta- rary state el'lorls to safeguard civil liberties occur in tion of students to nonpublic schools, reasoned that the context of a federal system in which the federal the uncompromising prohibitory language in the courts have assumed a major role in protecting rights. Idaho Constitution was purposely included to place This heavy federal influence underlines the crucial even greater restrictions on government than that importance of the legal relationship between federal found in the First Amendment.47 Finally, the Massa- and state law-and particularly between federal and chusetts high court, noting that a challenged textbook state bills of rights. It is well established that state loan program aided sectarian schools in carrying out constitutional rulings resting on "independent and their essential educational function, held that it vio- adequate state grounds" are exempt from federal ju- lated a state constitutional amendment, adopted fol- dicial scrutiny.50

Advisory Commission on Intergovernmental Relations 55 When, then, is it appropriate to interpret state pretation of the state provision. Federal precedent bills of rights independently? Some jurists-most no- may be persuasive, but it is not authoritative; state of- tably, Justice Hans Linde of the Oregon Supreme ficials have an obligation to seek the best possible in- Court-have concluded that the correct answer is al- terpretation of thcir own constitutions. In fact, some ways.51 It is their contention that the logic of our fcd- scholars have argued that state courts should avoid era1 system requires that state judges look first to the taking thcir cucs from U.S. Supreme Court rulings law of their own state in deciding cases and then to because the institutional positions of the state and federal law only when a case cannot be resolved on federal courts arc quite dissimilar.56 As the nation's state grounds. Even jurists who have not endorscd highcst court, thc U.S. Supreme Court is constrained this "state law first" position have recognized that, by considerations of federalism and the separation of when state law diverges from federal law, it must be powcrs that may prevent it from according full pro- given independent effect.52 A moment's reflection tection to rights. Fkcause state courts do not operate suggests that such divergence is likely to occur fre- under such constraints, it is argued, they should feel quently. free to go beyond federal rulings that seem to under- As we have noted earlier, many state constitu- protect civil lihcrtics. In the next two chapters, which tional provisions, such as state guarantees of privacy deal with statc constitutional protections of the rights and prohibitions on undue harshness in punishment, of criminal del'cndants and of equality, we shall see have no federal constitutional analogucs.53 Thus, if how they have done so. states are to remain faithful to their law, they must NOTES seek the meaning of those guarantees independently. 'This was established authoritatively in Baron v. Balti- Furthermore, whereas federal constitutional more, 32 U.S. (7 Peters) 243 (1833). guarantees secure rights only against governmental 2Gitlow v. New York, 268 U.S. 653 (1925) and Stromberg infringement, state guarantees may protect rights v. California. 283 U.S. 359(1931), marked the first invali- against private infringement as well. In some in- dation of a state law on federal free speech grounds, and stances, state constitutions do so e~pressly.5~In oth- Nearv. Minnesota, 283 U.S. 697 (1931), the first invalida- ers, as our discussion of state free speech provisions tion of a state law as an infringement of the federal free- has shown, the state guarantees do not specify to dom of the press. whom their constitutional strictures are addressed. 3For an overview, see Richard C. Cortner, The Supreme Court and the Secorid Bill of Rights (Madison: University Although some state courts have been influenced by of Wisconsin Press, 1981). federal constitutional doctrine to read a "state ac- 4Relevant cases include: Robinson v. California, 370 US. tion" requirement into these constitutional guaran- 660 (1962) (cruel and unusual punishment); Gideon v. tees, many scholars and jurists have challenged this Wainwright, 372 U.S. 335 (1963)(right to counsel); Mur- practice as unwarranted. Indeed, some scholars have phy v. Waterfront Commission, 378 U.S. 52 (1964) (self- incrimination); Pointer v. Texas, 380 US. 400 (1965) insisted that in the absence of express language to the (confrontation of witnesses); Kopfer v. North Carolina, contrary, state guarantees should be read to rcach 386 US. 213 (1967) (speedy trial); Duncan v. Louisiana, private as well as governmental action.55 Whatever 391 US. 145 (1968) (trial by jury); and Benton v. Mary- the validity of this contention, fidelity to state consti- land, 392 1J.S. 784 (1969) (double jeopardy). tutions demands that the scope of stalc protcclion be 5For an overview of lhcse early cases, see Donald E. determined not by reference to federal conslitutional Wilkcs. Jr., "'l'llc Ncw I+dcralism in Criminal Proce- dure: State Court Ihasion of the Burger Court," Ken- doctrine, but rather by independent analysis of state tucky Law Jol1rrial62 (1974): 421-451. guarantees. 6For a bibliography of thc literature on the new judicial In addition, as our discussion of statc provisions federalism and ;I listing of judicial rulings, see Ronald on church and state has shown, even state provisions K.L. Collins and Peter J. Galie, "State Constitutional that restrict only governmental action and have some Rights Decisions,"National Law Journal 11August 1986. sort of federal analogue often differ from their fed- Since December 1987, the Association of State Attor- neys General has published a monthly survey of develop- eral counterparts in language and/or historical ori- ments in state constitutional law. See also John Kincaid, gins. In such circumstances, sensitivity to the federa1 "State Court Protections of Individual Rights under character of the American polity should caution State Constitutions: The New Judicial Federalism," The against assuming too readily that state protections Jo~irnalof State Government 61 (September/October are merely functional equivalents of federal constitu- 1988): 163-169. tional guarantees. 'Ronald K.L. Collins, Peter J. Galie, and John Kineaid, "State High Courts, State Constitutions, and Individual Finally, even when the text of state and federal Rights Litigation since 1980: A Judicial Survey," Pllblirrs: constitutional provisions are identical, this docs not 71ie Jorrr~ialoj'lederalisrn 16 (Summer 1986): 141-162. mean that state officials-be they judges, cxecutivcs, *Collins and Galic, "State Constitutional Rights Deci- or legislators-are obliged to accept thc U.S. Su- sions." preme Court's interpretation of the fcdcral guaran- gFor furthcr discussion of the protection of rights under tee as authoritative, foreclosing independent interstate constitutions, see chapters 5 and 6.

56 Advisory Commission on Intergovernmental Relations 10For a recent elaboration of the justifications for federal- 24This underli~icsthe important point that the states, in ex- ism, see Daniel J. Elazar, &ploring Federalism (Tus- ercising their traditional legal responsibilities, often caloosa: University of Alabama Press, 1987), chapter 3. make decisions that affect civil liberties. 1 It follows that if states have concurrent responsibility for 25Michigan Constitution, Art. I, sec. 5. Other state consti- defining and protecting rights, state officials have a con- tutional provisions. such as those relating to access to the stitutional obligation to honor and enforce this body of ballot, may also be relevant in specificcases. See Batchel- state law, even though doing so may lead to diffcrcnt dcr v. Allicd Storcs International, 445 N.E.2d 590 (Mass. definitions of rights from state to state. 1983). 12Whereas some state constitutions, such as Virginia's and 260n the importance assigned to property rights by state Pennsylvania's, were prefaced by eloquent declarations constitution-makers, see, for example, the Arkansas of individual rights, others-for example, New Jer- Declaration of Rights, Art. 11, Sec. 22: "The right of sey's-had no bill of rights at all. Even those states that property is before and higher than any constitutional adopted bills of rights differed in what was protected. sanction." On the need to compensate property owners, Compare, for example, the treatment of religion under see, for example, Illinois Constitution, Art. I. Sec. 15: the Massachusetts and Virginia constitutions. For a "Private property shall not be taken or damaged forpub- more general treatment of early state constitutional lic use without just compensation as provided by law." guarantees, see William E. Nelson and Robert C. %I- See generally chapter 7 of this study. mer, Liberty and Community (New York: Oceana, 1987). 2'592 P.2d 341 (Cal. 1979). 13For an overview of state provisions, see Robcrt Dowlut 28Cases decidcd shortly after the ruling in Pruneyard and Janet A. Knoff, "State Constitutions and the Right Shopping Center v. Robins, 447 U.S. 74 (1980), include: to Keep and Bear Arms," Oklahoma City University Law State v. Schmid, 423 A.2d 615 W.J. 1980): Common- Review 7 (Summer 1982): 177-241. wealth of Pennsylvania v, Tate, 432A.2d 1382(Pa. 1981): State v. Felmet, 273 S.E.2d 708 (N.C. 1981); Alderwood 14See Ronald K.L Collins, "Bills and Declarations of Associates v. Washington Environmental Council, 635 Rights Digest," in The American Bench, 3rd ed. (Sacra- P.2d 108 (Wash. 1981); and Batchelder v. Allied Stores mento: Reginald Bishop Forster and Associates, 1985), International, 445 N.E.2d 590 (Mass. 1983). pp. 2491-2493. 2Q635P.2d at 1 12. 15For a listing and discussion, see chapter 6. 30Cologne v. WCS~~WIIISAssociates, 409 A.2d 1201 (Conn. 16The U.S. Supreme Court candidly adniittcd as much in 1984); Wootllancl v. Michigan Citizens Lobby, 378 San Antonio Independent School 1)istrict v. Ih~lrigucz. N.W.2tl 337 (Mich. 1985): and Shad Alliance v. Smith 411 U.S. 1 (1973). More generally, see Robcrt F. Wil- Haven Miill, 498 N.Y.S.W 99m.Y. 1985). One court that liams, "In the Supreme Court's Shadow: hgitimacy of initially endowd a right of free speech on private prop- State Rejection of Supreme Court Reasoning and Re- erty appears to be reconsidering its position: Western sult," South Carolina Law Review 35 (Spring 1984): Pennsylvanie Stxii~listWorkers 1982 Campaign v. Con- 353-404, and Lawrence G. Sager, "Fair Measure: The necticut General life Insurance Co., 515 A.2d 1331(Pa. Legal Status of Underenforced Constitutional Norms," 1986). Haward Law Review 91 (April 1978): 1212-1264. 31 See Brown v. Davis, 495 A.2d 900 (N.J. Sup. Ct. 1984), 17For discussion of how state courts have dealt with this is- and Jacobs v. Major, 390 N.2d 86 (Wis. App.1986). For sue under their state constitutions, see G. Alan Tarr, possible solutions to these difficulties, see Martin B. "State Constitutions and First Amendment Rights," in Marguilies, "Westfarms' Unquiet Shade," University of Stanley Friedelbaum, ed., Human Rights in the States Bridgeport Law Review 7 (1986): 1-45; and Sanford Levin- (Westport, Connecticut: Greenwood Press, 1988). son, "Freedom of Speech and the Right of Access to Pri- 18Representative cases include Serrano v. Priest, 487 P.2d vate Property under State Constitutional Law," in Brad- 1241 (Cal. 1971) and Southern Burlington County ley D. McGraw, ed., Developments in State Constitutional NAACP v. Township of Mount Laurel, 336 A.2d 713 Law (St. Paul: West Publishing Co., 1985). (N.J. 1975). 32For discussion of this dialogue, see G. Alan Tarr and lgFor an overview of these provisions, see Collins, pp. Mary Cornelia Porter, State Supreme Courrs in State and 25022505. Nation (New Haven: Yale University Press, 1988) chapter 1. 20For background on state rulings on the freedoins of 33For a ruling that suggests a possible new direction for speech and of the press prior to incorporation, see David state constitutional law dealing with freedom of expres- B. Rabban, "The First Amendment in Its Forgotten sion, see Oregon v. Henry, 732 P.2d 9 (Ore. 1987). Years," Yale Law Journal90 (January 1981): 514-595, arid Margaret A. Blanchard, "Filling in the Void: Speech and 34Branzburg v. Hayes, 408 U.S. 665 (1972). An analysis of Press in State Courts Prior to Gitlow," in Bill F. Chamb- congressional failure to pass a shield law is found in erlin and Charlene J. Brown, eds., The FirstAmendment Maurice Van Gerpen, Privileged Communication and the Reconsidered (New York: Longman, 1982). Ptws (Westport, Connecticut: Greenwood Press, 1979), chapter 7. 21 This focus on governmental infringements on rights is characteristic of the federal Constitution-only the 35Backgro~ndon slate shield laws and their interpretation Thirteenth Amendment directly forbids private viola- can be found in Gcroen, Privileged Communication;Ar- tions of individual rights. thur B. Hanson, An AnalysisofState Newsnten's Privilege Ixgislation and (hses Arising Tliereunder (Washington, 22Marsh v. Alabama, 326 U.S. 501 (1946). UC: 1972): and "Comment, The Newsman's Privilege af- 23Lloyd Corporation v. Tanner, 407 US. 551 (1972) and ter Brazhr~The Case for a Federal Shield Law," Hudgens v. National Labor Relations Board, 424 U.S. U.C. L.A. Law Review 24 (October 1976): 160-192. 507 (1976), overruling Amalgamated Food Employees 36Following judicial rulings in State v. Donovan, 30 A.2d Union v. Logan Valley Plaza, 391 U.S. 308 (1968). 421 (Sup. Ct. 1943) and Brogan v. Passaic Daily News,

Advisory Commission on Intergovernmental Relations 57 123 A.2d 473 (N.J. 1956), the New Jersey legislature 46California Tcachcrs Association v. Riles, 632 P.2d 953 amended the state's shield law to extend coverage, N.J. (Cal. 1981). Stat. Ann. Sec 2A: 84A-21 (West 1976) (cnactctl 1960). 47Epcldi v. Egclking, 488 P.2d 860 (Ida. 1971). After In re Bridge, 295 A.2d 3 (App. Div.), ccrtif. dcnicd, 299 A.2d 78 (1972), cert. denictl. 410 IJ.S. 90 1 (1073), the 48Dbmni v. Scllool Comniittcc of Springfield, 379 N.E.2d legislature again amended the shicld law, 1977 N.J. l~ws 578 (Mass. 1978). 1027. Finally, responding to In rc Farbcr, 394 A.W 330, 49For thc comlnori law as a source of rights, see, for exam- cert. denied, 439 U.S. 997 (1978), the New Jersey Iegkla- ple, State v. %*l;~nowicz,55 A. 743 (E and A 1903), in ture in 1980 further extended the protcction arrordcd re- which the Ncw Jcrsey Supreme Court recognized a porters, N.J. Stat. Ann. Sec. 2Z84A-21.1 to 21.9 (Wcst common-law right against sclf-incrimination, a position Supp. 1983-1984). that it has confirnicd in more recent cases, such as State v. Fary, 117 A.2d 499 (N.J. 1955) and State v. Hartley, 511 37California Constitution, Art. I Sec. 2(b), adopted in re- A.2d 80 (N.J. 1986). For judicial rulemaking as a source sponse to Fan. v. Superior Court, 99 Rptr. 342 (Ct. App. of rights, see People v. Jackson, 217 N.W.2d 22, 27-28 1971), cert. denied, 409 U.S. 1011 (1972) and Rosato v. (Mich. 1974), in which the Michigan Supreme Court es- Superior Court, 124 Cal. Rptr. 427 (Ct. App. 1975), cert. tablished a suspect's right to counsel, absent extraordi- denied, 427 U.S. 912 (1976). The New Mexico Supreme nary circumstances, during identification procedures. Court invalidated the state's shield law as a legislative invasion of the judiciary's authority to establish rules of 5OFor discussion of this doctrine, see Stewart G. Pollock, evidence. See Ammerman v. Hubbard Broadcasting, "Adequate and Independent State Grounds as a Means Inc., 551 P.2d 1354 (N.M. 1976). of Balancing the Relationship between State and Fed- eral Courts," Texas Law Review 63 (1985): 977-94. 38Some federal judges have acknowledged their dcbt to 5lHans A. Iinde, "Without 'Due Process': Unconstitu- state tribunals. See, for example, William J. Drennan, Jr., tional Law in Oregon," Oregon Law Review 49 (1970): "Some Aspects of Federalism," New York UnivetsityLaw Review 39 (1964): 947. 125-87; and State v. Kennedy, 66 P.2d 1316 (Ore. 1983). 52See, for example, Stewart G. Pollock, "State Constitu- 39Relevant cases include: KFGO Radio, Inc. v. Rothe, 298, tions as Separate Sources of Fundamental Rights," Rut- N.W.2d 505 (N.D. 1980), and State ex rel. Oregonian gets Law Review 35 (Summer 1983): 707-722, and State v. Publishing Co. v. Deiz, 613 P.2d 23 (Ore. 1980). Hunt, 450 A.2d 952,965-67 (N.J. 1982). 40For a more detailed treatment of the historical back- S3For an example of state constitutional protection of pri- ground of state provisions on church and state, see G. vacy rights, sce Alaska Constitution, Art. I, Sec. 22: "the Alan Tan., "Religion under State Constitutions," Annals right of the pcoplc to privacy is recognized and shall not of the American Academy of Political and Social Science be infringed." The importance of these state privacy 498 (March 1988): 65-75. guarantees was underscored by the U.S. Supreme Court 41 See, for example, Harfst v. Hoegen, 163 S.W.W 609 (Mo. in Katz v. IJnited States, 389 U.S. 342, (1967): "The pro- 1942), and Berghorn v. School District, 260 S.W.W 573 tection of a person's general right to privacy.. . is.. . left (Mo. 1953). The sole instance of a state ruling permitting largely to the law of the individual states." For an exam- direct aid-Opinion of the Justices, 102 N.E. 464 (Mass. ple of state constitutional protection against excessively 1913)-prompted a constitutional amendment prohibit- harsh punishment, see, for example, Rhode Island Con- ing aid: Massachusetts Constitution Amend., Art. 46, stitution, Art. I, Scc 14: "[N]o act of severity which is not Sec. 2. necessary to secure an accused person shall be permitted." 420n bus transportation, see Everson v. Board of Educa- tion, 330 U.S. 1(1947), and on the loaning of textbooks, 54See, for example, Montana Constitution, Art. 11, Sec. 4: see Board of Education v. Allen, 392 U.S. 236 (1968). "Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the 43Reynolds v. Nusbaum, 115 N.W.2d 761 (Wisc. 1962), re- exercise of his civil or political rights on account of. . . versed by amendment, Wisconsin constitution, Art. I, religious ideas." Sec. 21: and Judd v. Board of Education, 15 N.E.2d 576 55See David M. Skover, "The Washington Constitutional (N.Y. 1938), reversed by amendment, New YorkConsti- 'State Action' Doctrine: A Fundamental Right to State tution, Art. XI, Sec. 4. Action," University of Puget Soiu~dLaw Review 8 (Winter 44Matthew v. Quinton, 362 P.2d 932 (Alas. 1961). 1985): 221-282. 45Gaffney v. State Department of Education, 220 N.W.2d 5"ee Williams. "In the Supreme Court's Shadow," and 550 (Neb. 1974). Sager, "Fair Measure."

58 Advisory Commission on Intergovernmental Relations Chapter 5 Equality under State Constitutions

State governments are responsible for undcrtak- Madison'sconcerns seem to have been proven gener- ing or administering most governmental activities ally true. As responses, state constitutional provi- that directly affect individual citizens. In undcrtaking sions have aimcd a1 a number of demonstrated prob- these activities, they are constantly confronted with lems relating to equality over the years. the task of determining what distinctions between Most statc constitutions do not contain an ex- persons are legitimate and what distinctions violate plicit "equal protcction" clause.4 They do, however, constitutional mandates of equality. Under thc fed- contain a variety of equality provisions. In some eral Constitution, there is only one generally applica- states, broad guarantees of individual rights have ble requirement of equality that binds the actions of been interpreted to require equal protection of the states. This is the equal protection clause of the Four- laws in general.5 Further, most states have generally teenth Amendment, adopted in 1868, which provides applicable provisions prohibiting special and local that: "No state shall. . . deny to any person within its jurisdiction the equal protection of the laws." State laws, grants of special privileges, or discrimination constitutions, in contrast, contain many different against citizens in the exercise of civil rights or on the equality provisions, aimed at a range of different but basis of sex. Finally, many state provisions guarantee related problems. Although the Fourteenth Amend- equality in specific or limited instances-from requir- ment equality requirement is well known and exten- ing "uniform" or "thorough and efficient" public sively analyzed, the state provisions have not received schools to requiring uniformity in taxation. careful attention.' Virtually all ol' these state constitutional provi- James Madison contended that in a large, geo- sions differ significantly from the federal guarantee graphically and politically diverse nation, there would of equal protection. They were drafted differently, be less likelihood of oppression of minorities because adopted at different times, and reflect the diverse of the need for continued coalition, political accom- concerns about equality that surfaced during the vari- modation, and compromise.2 Madison wrote in The ous eras of state constitutional revision. For example, Federalist: the broad guarantees of individual rights found in The smaller the society, the fewer prob- many state constitutions are intended to secure an ably will be the distinct parties and interests equality of rights before the law for all persons. The composing it; the fewer the distinct parties bans on special laws and local laws, however, focus on and interests, the more frequently will a ma- the substance of the law, seeking to ensure equality jority be found of the same party; and thc (understood as uniformity of treatment) by requiring smaller the number of individuals compos- that laws bc of general applicability. The same con- ing a majority, and the smaller the compass cern that all citizens be treated uniformly underlies within which they are placed, the more easily the constitutional prohibitions of special privileges, will they concert and execute their plans of which protect the general public against preferential oppression. Extend the sphere, and you take treatment for a small group, and the requirement of in greater variety of parties and interests; uniformity in taxation. Conversely, state bans on dis- you make it less probable that a majority of crimination on the basis of gender, religion, or race the whole will have a common motive to in- reflect the more familiar concern to protect members vade the rights of other citizens; or if such a of minority groups from majority tyranny. Finally, common motive exists, it will be more diffi- constitutional requirements of "uniform" or "thor- cult for all who feel it to discover their own ough and efficient" public schools reflect a concern strength, and to act in unison with each that the state avoid fhvoritism in the provision of es- other.3 sential state services.

Advisory Commission on Intergovernmental Relations 59 The First State Constitutions Rights. Even though many of these provisions seem only to dcclarc pol&cal truths, they have been inter- A few early state constitutions contained lan- preted to limit state actions.18 At the same time, gen- guage similar to the classic language of equality in the eral provisions that do not expressly mandate equal- Declaration of Independence. Section 1 of the Vir- ity, such as Ncw Jersey's Article I, paragraph I, have ginia Bill of Rights, written by Gcorgc Mason and been intcrprctcd to guarantee equal protection of adopted a month before the Dcclaration of lndc- the law gcn~rally.~~'l'hcNew Jcrsey provision, for ex- pendence, provided: ample, scrvctl as the basis for the state Supreme That all men are by nature equally free and Court's dccision rcjccting thc US. Supreme Court's independent, and have certain inherent equal protection analysis in Harris v. McRae20 and in- rights, of which, when they cnlcr into a slatc validating slntc rcslrictions on Medicaid funding for of society, they cannot by any compact de- abortion.21 prive or divest their posterity; namely, the Most state courts, however, have not developed enjoyment of life and liberty, with the means doctrine independcnt of the federal equal protection of acquiring and possessing property, and clause undcr these kinds of equality provisions.22 In- pursuing and obtaining happiness and stead, they seem content not to read into such provi- safety." sions anything other than what the U.S. Supreme Court has read into the equal protection clause of the Although only Pennsylvania7 and Massachu- Fourteenth Amendment. setts8 initially included broad provisions, like that of Virginia,s many states now have similarly worded Other Generally Applicable provisions.10 Notions of equality, however, perrne- Equality Provisions in State Constitutions ated the first state constitutions with respect to governmental structure, even if not with respect to indi- Jacksonian Equality Provisions vidual rights.l Pennsylvania's "liberal" constitution The wave of constitutional revision in the 1820s of 1776 probably pushed equality of consent as far as did not focus on the generally applicable equality any of the first state constitutions by providing for a provisions contained in the first state constitutions.23 unicameral legislature, with no executive veto.12 Of Instead, equality issues centered around extending course, most states still denied the franchise to the right to vote to blacks and nonfreeholders and re- blacks, women, and those who did not own property. apportioning legislative representation.24 Several of the early state constitutions contained Later in the century, many states amended their another type of general equality provision intended constitutions to curb the granting of "special" or "ex- to prohibit grants similar to royal privilcges. Section clusivc" privileges. In doing so, voters were reacting IV of the 1776 Virginia Bill of Rights, for example, to a series of abusesby the relatively unfettered state provides that "no man, or set of men, is entitled to cx- legislatures, many of which were granting special clusive or separate emoluments or privilcges from privileges to powcrful economic interests.25 These the community, but in consideration of public serv- provisions were modeled after provisions adopted ices."l3 earlier in other states, such as Section IV of the Vir- It is important to remember the historical con- ginia Bill of Rights.26 For example, Article I, Section text in which the first state constitutions were written. 20 of the 1859 Oregon Constitution, which was pat- Contrary to the view prevailing today-that constitu- terned after Indiana's 1851 Constitution,27 provides: tional protections exist to be enforced by the "No law shall be passed granting to any citizen or courtsl4-concepts of judicial review were still in class of citizens privileges or immunities which, upon their infancy in the late 18th century.l5 In other the same terms, shall not equally belong to all citi- words, judicial enforcement of bill of rights provi- zens."28 These provisions commonly are found in sions was probably far from their framers' minds. state bills of rights-not in the legislative articles. Thus, in many ways, these early provisions, some- They reflect the Jacksonian opposition to favoritism times referred to only as "principles of govern- and special treatment for the powerful.29 ment,"l6 can be viewed as descriptive rather than Although these provisions may overlap some- normative. Moreover, one must question the draf- what with federal equal protection doctrine, closer ters' overall commitment to equality because slavery scrutiny revcals significant differences. As Justice and formal inequality in political participation were Hans Lindc of the Oregon Supreme Court has noted, allowed to continue, as they were undcr thc U.S. Oregon's Article I, Section 20 and the federal equal Constitution as well. protcction cla~~sc"were placed in different constitu- Despite these early bcginnings, much of thc tions at difl'ercnt lirncs by different men to enact dif- modem judicial doctrine of equality undcr statc con- fcrcnt historic conccrns into constitutional policy."30 stitutions has its textual basis17 in such state conslitu- Justicc Bctty I

60 Advisory Commission on Intergovernmental Relations Article I, Section 20, of the Oregon ticle IV, Section 13 of the Illinois Constitution, which Constitution has been said to be the "an- provides that "[tlhe General Assembly shall pass no tithesis" of the equal protection clause of the special or local law when a general law is or can be fourteenth amendment. . . . While the four- made appli~able."~~The statute required only own- teenth amendment forbids curtailment of ers of "privatc passenger automobiles" to purchase rights belonging to a particular group or indi- no-fault insurance, but imposed substantial limita- vidual, Article I, Section 20, prevents thc cn- tions on tort rccovcries of persons injured by any type largement of rights. . . .Therc is an hislorical of motor vchiclc. In dislinguishing Illinois' "equal basis for this distinction. The Hcconstruction protcction" clir~~sc,:'~which had been added in Congress, which adopted the hurlccn t I1 1970,40 J uslicc Wa l lcr V. Schacfer observed: amendment in 1868, was conccrncd with dis- While thcsc two provisions of the 1970 con- crimination against disfavored groups or institution cover much of the same terrain, dividuals, specifically, former slavcs. . . . thcy arc not duplicates, as the commentary When Article I, Section 20, was adoptcd as a to Scclion 13 of Article IV points out: "In part of the Oregon Constitution nine years many cases, the protection provided by Sec- earlier, in 1859, the concern of its drafters tion 13 is also provided by the equal protec- was with favoritism and the granting of spe- tion clause of Article I, Section 2."41 cial privileges for a select few.31 He concluded that Article IV, Section 13 imposed a A provision like Oregon's, then, does not seek equal clear constitutional duty on the courts to determine protection of the laws at all. Instead, it prohibitslcgis- whether a gencral law "is or can be made applicable," lative discrimination in favor of a minority. and that "in this case that question must receive an These provisions may differ in other ways from affirmative answer." The constitutionally infirm por- the federal equal protection clause. Justice L.inde tions of the statute were therefore invalidated. suggests that Oregon's provision can cover individu- Prohibitions on special and local laws have broad als in addition to classes of people,32 and that it may application, but thcy do appear limited to the legisla- not apply to corporations or nonresidents.33 More- tures, and therefore not to cover executive action. As over, the specific reference to the "passage of laws" with other state equality provisions, many state may preclude its application to executive action. A courts interprct special laws provisions by applying similar provision prohibiting grants of "exclusive federal equal protcction analysis. privileges" was instrumental in the North Carolina Supreme Court's decision invalidating that state's Discrimination in the Exercise of Civil Rights hospital certificate-of-need ~tatute.3~ In thc mid-20th century, a number of state constitutions wcrc amended to include provisions pro- Prohibitions on Special and Local Laws hibiting discrimination in the exercise of civil rights. Closely related to the provisions prohibiting Pennsylvania, for example, added a provision in 1967 grants of special or exclusive privileges are prohibi- which directs that "[nleither the Commonwealth nor tions on "special" and "local" laws.35 These provi- any political subdivisions thereof shall deny to any sions, found in the legislative articles of state consti- person the enjoyment of any civil right, nor discrimi- tutions, contain either general or detailed limits on nate against any person in the exercise of any civil the objects of legislation.3~peciallaws are those ~-ight."~2Similar provisions in other states typically that apply to specified persons or a limited number of limit the proscription to discrimination on the basis of persons-for example an act granting a divorce or a race, color, or national origin.43 corporate charter. Local laws are those that apply to These antidiscrimination provisions are products specified or a limited number of localities-for exam- of the civil rights movement of the late 1950s and ple an act providing criminal penalties for conduct in the 1960s. In this respect, they are a good example only one county.37 One variety of local law is the of state constitutional amendments that "did not di- "population act" or law which classifies cities accord- rect, but mcrely recorded, the currents of social ing to population. Many states permit this sort of leg- change."44 So far, they have not been treated by the islation if the basis for the classification can bc re- state courts as proclaiming any important new consti- garded as rational. In addition, notice requirements tutional principle. usually are included for those subjects that may be The express proscription of discrimination dealt with by local laws, giving residents of localities against persons in the exercise of their civil rights, in to be affected at least constructive notice of the Iegis- addition to prohibiting the denial of rights, provides a lature's intended action. strong textual basis for extending such protection be- Though intended in part to curb Icgislative yond fcdcral equal protcction doctrine. For example, abuses, these proscriptions on special and loc;~llaws in Harris v. M(~Ruc~,~5thc U.S. Supreme Court held reflect a concern for equal treatment under the law. that restrict ions on Medicaid funding for abortions In 1972 the Illinois Suprcmc Court held that lllc did not vtol:~tc(tic. I'cdcral equal protection clause.46 state's no-fault automobile insurance act violated Ar- The Court conclutlcd that a mere failure to fund the

Advisory Commission on Intergovernmental Relations 61 exercise of the federal constitutional right lo choose explained why it chosc not to base itsdecision on state abortion did not unconstitutionally i)urdcn or limit "cqual protccl ion" doctrinc: the exercise of that right.47 Failurc to fund was held We hesitate to turn this case upon the neither to deny the right, nor to impose an "unconsti- State equal protcction clause. The reason is tutional condition"48 on its excrcisc. that thc equal protcction clause may be un- A state provision, such as Pcnnsylvania's, how- managcablc il' it is callcd to supply categori- ever, provides a different argument concerning such cal answers in the vast area of human needs, policies. For example, the right to choose to have an choosing those which must be met and a sin- abortion is a clearly established constitutional, or gle basis upon which the State must act. . . . "civil" right based on the US. Supreme Court's 1973 [W]e stress how difficult it would be to find decision.49 So too is the right to bear children, under an objective basis to say the equal protection Supreme Court decisions.50 It has been argued, clause selccts education and demands inflex- therefore, that a state legislature in a state with a pro- ible statewide uniformity in expenditure. vision such as Pennsylvania's that provides funding Surely no need is more basic than food and only for child-birth, while excluding abortion from lodging. . . . Essential also are police and fire the Medicaid program, violates the state constitu- protection, iN to which the sums spent per tion.51 rcsidcnt vary with local decision. Nor are State constitutional provisions prohibiting dis- water and sundry public health services crimination in the exercise of civil rights may become available throughout the State on a uniform increasingly important as state governments expand dollar basis.59 from regulation into the provision of services.52 When state governments primarily regulated con- Thus, thc New Jersey court used the state's thorough duct, prohibiting them from denying persons' civil and cfficicnt education provision as a more "specific rights was, if adequately enforced,53 an effective and limitcd" basis for its equality decision, justifying limit. States did not have the leverage of attaching its limitation to the field of education and ensuring "unconstitutional conditions" to the provision of that its holding could not be expanded beyond educa- services; therefore, they could not as easily favor one tion. right over another. When the state acts as a service In addition to the education provisions, most provider, however, as it does in such programs as statcs have uniformity in taxation provisions that pro- Medicaid, it has the opportunity, in Laurence Tribc's vide specific grounds for enforcing equality.60 Tax words, "to achieve with carrots what [it] is forbiddcn uniformity provisions require that once a legislative to achieve with ~ticks."5~Thus, to prevent states from decision is made to tax a type of property or income, illicitly discouraging citizens' exercise of their rights, everything subject to the tax must be treated uni- states have adopted provisions prohibiting discrimi- formly. The legislature may, however, make a deci- nation against persons in the exercise of their civil sion not to tax a type of property, thereby exempting rights. it.61 It is important to note, though, that while these provisions may be limited in focus, they can be far- reaching in effect. The primary effect of tax uniform- Specific and Limited Equality Provisions ity provisions is to mandate equality in property taxa- Although many states have interpreted generally tion.62 Such provisions go well beyond the applicable bill of rights provisions so as to guarantee restrictions of the federal equal protection clause.63 equality under the law, other provisions, not usually Moreover, not all jurisdictions limit their uniformity found in bills of rights, expressly require equality in provision to property taxes. As the Pennsylvania Su- specific and limited instances. When applicable, preme Court noted: these provisions offer state courts sound textual [Tlhe constitutional standard of uniformity bases for invalidating state actions. At the same time, also possesses widespread and far-reaching these provisions warrant extending equality guaran- application. While some other jurisdictions tees beyond those of federal equal protection doc- adhere to the view that uniformity applies trine. These provisions also allow courts to avoid only to propcrty taxes, our particular consti- some of the problems of basing decisions on gcncrally tutional manclatc that "[all1 taxes shall be applicable equality provisions. uniform . . ." is quite clear, and it is settled InRobinson v. Cahi11,55for cxamplc, thc New Jcr- that this mandalc applics to all species of sey Supreme Court held unconstitutional thc statc's taxcs.64 school financing scheme under a provision in the New Jersey Constitution requiring a "thorough and Case Study: efficient" education.56 The provision was added to Gender Equality in the States New Jersey's Constitution in 1875, partly to reflect During the 1960s, gender equality emerged as a public concern over equality in education.=7 After salient political issue, prompting responses from criticizing the U.S. Supreme Court's approach to fed- both the statcs and federal government.65 For the eral equal protection cases,58 the New Jersey court states, this involvement was nothing new: historically,

62 Advisory Commission on Intergovernmental Relations it had been state law-constitutional, statutory, and (unratified) federal Equal Rights Amendment. How- common law-that defined the political and civil ever, instead of promoting doctrinal uniformity rights and the legal capacities of women. State law among the states, this practice has merely duplicated had, for instance, governed contractual relations, on an interstate basis the complexities of the U.S. Su- regulating the capacity of married women to enter preme Court's equal protection jurisprudence. Thus, into contracts without their husbands' consent. It had the Illinois Supreme Court, among others, has inter- defined property rights, including the right of mar- preted its constitution to require "strict scrutiny" of ried women to hold property in their own name. It gender classifications, the same standard used by fed- had regulated domestic relations, including such mat- eral courts in determining the validity of racial classi- ters as divorce, alimony, child support, and child cus- fications.70 Some state courts, however, have tody. It had also established police power regulations adopted a less rigorous standard. The Utah Supreme that affected women's opportunities to seek and ob- Court, for instance, has endorsed the U.S. Supreme tain employment .66 Court's "rational relationship" test, upholding gen- Although federal law and judicial rulings have der distinctions as long as they are reasonably related assumed an increasing importance, state law contin- to the achievement of avalid state aim.71 In contrast, ues to play a major role in defining the legal status of some courts-among them, the Washington, Mary- women. However, constitutional changes have dra- land, and I'cnnsylvnnia supreme courts-have read matically altered the substance of that law. This sec- their constitutions as imposing the same absolute ban tion documents some of those changes in order to on gender discrimination that was sought in the fed- show how state law can contribute-and has contrib- eral FIRA.72 uted-to promoting equality. Although the level and focus of litigation under State Constitutional Guarantees these provisions have varied from state to state. some general patterns have emerged. First, a number of Today, in some fashion or another, 19 state con- constitutional challenges have come from male liti- stitutions expressly bar gender discriminati~n.~~ gants who insisted that state laws or judicial rulings Some state guarantees long antedated federal in- imposed unequal burdens on them. The conflict over volvement in securing women's rights. As early as the child support has been particularly intense. In ad- 1890s, for example, the Wyoming and Utah Constitu- dressing this issue, courts in Washington, Texas, and tions mandated equal enjoyment of civil, political, Pennsylvania have concluded that child support is a and religious rights and privileges for all men and responsibility of both parents. However, mathemati- women. In its 1947 constitution, New Jersey modified cally equal contributions from both parents have not its traditional recognition of natural rights, inserting been required, and in considering child support gender-neutral language in order to ensure gender judges have recognized that nonmonetary as well as equality.68 Most states, however, adopted their con- monetary contributions may be relevant.73 Second, stitutional bans on gender discrimination between men have challenged state laws and practices that al- 1968 and 1976, a period roughly coincident with the legedly penalize them or deny them benefits solely on proposal of the federal Equal Rights Amendment the basis of their sex. Illustrative of such challenges (ERA) and its submission to the states for ratifica- are the constitutional attacks on the "tender years tion. Given the timing of their adoption, it is not sur- doctrine," under which wives are granted a preference in contested custody cases involving young chil- prising that many of the "little ERAS," as they are sometimes called, resemble the proposcd fcdcral dren.74 Third, defendants have asked courts to strike model. However, several have distinctive clcments. down criminal stalules, such as rape laws, that have Montana's, for example, extends broadcr pl-olcclion, used gcndcr-bnscd language in defining crimes. State expressly barring gender discrimination by private courls, however, Iwc gcncrally refused to allow de- parties as well as by government. Several others omit fendants to usc state ERAS as a shield from criminal a "state action" requirement, allhough the guaran- liability.75 Fourth. in scvcral instances, women have tees usually have been interpreted to apply only invoked state constitutional guarantees successfully against governmental infringements on equality.69 against outmoded common-law rules, such as the California's guarantee is more focused than was the prohibition on wives' recovering damages for negli- proposed federal ERA, mandating merely that the gent loss of c0nsortium.~6Finally, women have in- right to engage in a profession shall not be denied on voked state constitutional guarantees to challenge the basis of gender. Louisiana's ERA is more tolerant denials of access or opportunities, most notably in of gender classifications, prohibiting gender distinc- several cases involving restrictions on their participa- tions only if they are arbitrary, capricious, or unrea- tion on athletic teams.77 sonable. What is most striking about the litigation under In interpreting state guarantees of gender equal- state ERAS, howcver, is its infrequency. Whereas ity, state courts have generally looked for direction to one might have expected that the adoption of new the U.S. Supreme Court's interpretations of the state constitutionnl guarantees during the 1970s equal protection clause and to commentaries on the would have produced a flurry of challenges to state

Advisory Commission on Intergovernmental Relations 63 laws and practices, in fact, during the decade no state ernments have all played an important role in pro- supreme court heard as many gender equality cases moting and safeguarding gender equality. as did the US. Supreme Court. In part, the paucity of litigation under state constitutional provisions re- Conclusion flects the preference of litigants for federal forums The states, through provisions included in their and federal law, particularly in such areas as job dis- constitutional texts and through statutes, attorney crimination. In part, however, it also testifies to the general opinions and judicial decisions, have ad- efforts of other branches of state government to vin- dressed a range of equality concerns over the years dicate the constitutional commitment to equal rights. since 1776. State law, in fact, contains a much broader State attorneys general have issued numerous opin- range of provisions concerning equality than is found ions providing guidance on the meaning of these con- in federal law. A combination, however, of the states' stitutional guarantees, thus reducing the need for re- earlier unwillingness to enforce these provisions ag- course to the courts.78 Even more important, state gressively and the highly visible initiatives under fed- legislatures have taken the initiative in reforming eral law since the 1950s, has led to an almost instinc- state law to conform to constitutional requirements. tive tendency to look to the federal government to deal with equality issues. As James Madison warned, threats to equality may be more likely to arise within Legislative Implementation the states, justilying a renewed interest in, and con- When 14 states adopted "little ERAS" between cern with the enforcement of, state law provisions on 1968 and 1976, they committed themselves to eradi- equality. cating gender discrimination and securing increased NOTES opportunities for women. In some states-for exam- For a particularly noteworthy exception, see Susan P. ple, Connecticut-this constitutional commitment Fino, VieHole of State Srprenze Courts in the New Judicial was reflected in an impressive body of Icgislation pro- Federalim (Wcstport, Connecticut: Greenwood Press, moting gender justice.79 In othcrs, adoption ol' the 1987). "little ERA" provided the impctus for st;~tcIcgislo- *SCCgenerally Nok, "A Miidisonian Interpretation of Equal I'rotcction I)octrinc," Yale Law Journal 91 (1982): tures and state attorneys general to eliminate gcnder 1403 (contcntling that fcdcral equal protection doctrine discrimination. New Mexico's experience in imple- should be cnforcctl more strictly against states than the menting its ERA illustrates the crucial role that state fcdcral government); sce also Gordon S. Wood, Tlie legislatures have played in conforming state law to Creatiorz of [lie An~ericarzRepublic, 1776-1787 (Chapel constitutional mandates.80 After ratification of the Hill: University of North Carolina Press, 1969), pp. 504-506 (suggesting that Madison saw Congress as less amendment in November 1972, the New Mexico leg- likely to succumb to the majoritarian democratic "ex- islature appointed an Equal Rights Committee to cesses" exhibited by state legislatures). oversee its implementation. This committee, with the 3The Federalist No. 10, p. 135 (J. Madison) (B. Wright, Ed. assistance of special committees established by the 1961). Madison added in The Fedemlist No. 51: "In the New Mexico state bar association, reviewed the en- extended republic of the United States and among the tire New Mexico code to identify provisions inconsis- great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society tent with the amendment and recommended statu- could seldom take place on any other principles than tory reforms needed to eliminate gender bias from those of justice and the general good," p. 359. New Mexico law. The New Mexico legislature acted 4Sidney Z. Karasik, "Equal Protection of the Law under quickly on most of these recommendations, approv- the Federal and Illinois Constitutions," DePaul Law Re- ing changes in 26 statutes and two amendments dur- view 30 (1981): 270 11.33 ("Illinois was only the eighth ing its first session following ratification of the consti- state to include an equal protection clause in itsconstitu- tutional ban on gender discrimination. tion.") =NewJersey's "equal protection" doctrine, for example, is What occurred in New Mexico has occurred in based on a provision that states: "All persons are by na- other states as well. Several states-among them, ture free and indcpendent, and have natural and unal- Alaska, Texas, and Washington-have undertaken a icnablc rights, among which are those enjoying and de- comprehensive review and revision of their codes fending life and liberty, of acquiring, possessing, and to bring them into conformity with constitutional protecting property, and of pursuing and obtaining safcty and happiness." New Jersey Constitution, Art. I, requirements. Some, such as Connecticut, have es- para. 1 (1947); see. for example, Right to Choose v. tablished permanent commissions to monitor com- Byrne, 91 N.J. 287,303-05,450 A.2d 925,933-34 (1982). pliance with constitutional mandates. Othcrs, such as 6Virginia Constitution, Bill of Rights 1 (1776). Hawaii, have sought to ensure gender equality 7Pcnnsylvania Constitution, Art. I, 1 (1776). through piecemeal reform of their law. Even states, 8Massachusetts Constitution, Pt. I, Art. I (1780). such as Virginia, that have not mounted a compre- 9See Willi Paul Adams, The First Anierican Constit~~tions: hensive reform effort have modified their law to Republican Ideology and the Making of the State Coiistitrr- eliminate glaring inequities.81 In sum, then, the legis- [ions in tlie Revolrrtior~atyEra (Chapel Hill: University of lative, executive, and judicial branches of state gov- North Carolina Press, 1980), p. 176.

64 Advisory Commission on Intergovernmental Relations 'Osee e.g., New Jersey Constitution, Art. I, para I (1844). 22See, for example, Ilaase v. Sawicki, 20 Wis. 2d 308,311 "See generally Ronald J. Peters, Jr., The Massackrisetts n.2, 121 N.W.2d 876,878 n.2 (1963). Constitution of 1780: A Social Compact (Amherst: Uni- 23See generally Merrill Peterson, Democracy, Liberty, and versity of Massachusetts Press, 1978), p. 190 (discussing Pmpeq: The State Constitutional Conventions of the these two facets of political equality). 1820s (Indianapolis: Bobbs-Merrill, 1966) (discussion of 12See J. Paul Selsam, The Pennsylvania Constitution of the Massachusetts, New York, and Virginia conven- 1776: A Study in Revolutionary Democracy (Philadelphia: tions). University of Pennsylvania Press, 1936); Richard A. 24Ibid., pp. 59, 214, 377.24.6 Ryerson,"Republican Theory and Partisan Reality in 25See James Willard Hurst, The Gmwth ofAmerican Law: Revolutionary Pennsylvania: Toward a New View of the The Law Makers (Boston: Little Brown & Co., 1950), pp. PennsylvaniaConstitutionalistParty", in Sovereign States 241-42; William F. Swindler, "Minimum Standards of in an Age of Uncertainly, Ronald Hoffman and Peter J. Constitutional Justice: Federal Floor and State Ceiling," Albert, eds. (Charlottesville: University Press of Vir- Missouri Law Review 49 (1984): 2; A.J. Thomas, Jr., and ginia, 1981), p. 94. Ann Van Wynen Thomas, "The Texas Constitution of 13Virginia Constitution, Bill of Rights 4 (1776). For a simi- 1876," Taus Law Review 35 (1959): 907. larprovision, see Massachusetts Constitution, Pt. 1, Art. 28See note 13 and accompanying text. The concern of the VI (1780). newer provisions was with legislative rather than royal favoritism. Sw I ,intle, "Without 'Due Process,' " p. 141. 14On the nature of "constitutions" in thc revolutionary era, see Cecelia M. Kenyon, "Constitutionalism in Hcvo- 27Scc Lintlc. "Without 'Ihc Process,' " p. 141. As to the lutionary America," in Roland J. I'cnnock and John W. "copying" or "hor~wving"of state constitutional provi- Chapman, eds., Nomos XV;. Cori.~/i/r/tiorwlisr~t(Ncw sions during westward expansion, see Robert F. Wil- York: New York University Press. 1979), pp. 86-92. liams, "State Constitutional Law Processes," William and Mary I,aw Itcview 24 (1983): 174 n.14, '=See William E. Nelson, "The Eighteenth Century nack- ground of John Marshall's Constitutional Jurispru- 280regon Conslitution, Art. I, 20 (1859). dence," Michigan Law Review 76 (1978): 937; William E. 29Historian Rush Welter observed: "Hence the whole Nelson, "Changing Conceptions of Judicial Review: The thrust of Jacksonian thought was in the first instance Evolution of Constitutional Theory in the States, negative, an effort to eliminate institutions and practices 1790-1860," Univemily of Pennsylvania Law Review 120 that an earlier generation had more or less taken for (1972): 1168. granted. The "aristocracy" that Jacksonians complained of consisted of selective access to power, prosperity, or 16Frank P. Grad, "The State Bill of Rights," in V. Ranney, influence. At bottom it was apolitical rather than a social ed., Con-Con: Issues fir the Illinois Constitutional Con- or economic concept: in Jacksonian eyes, an "aristocrat" vention (Urbana: Institute of Government and Public was someone who was empowered by law to affect the Affairs, University of Illinois, 1970), p. 34. But see economic and social welfare of his contemporaries, or Kenyon, "Constitutionalism," pp. 96-99 ("natural law" who enjoyed legal privileges that he could turn to his own concepts, though largely ideological, were thought to be account in an otherwise competitive economy." Rush enforceable through "public opinion, elections. . . [and] Welter, The Mind ofAmerica:1820-1860 (New York: Co- revolution"). lumbia University Press, 1975), pp. 77-78 (footnote omit- 170n the role of textual basis in judicial interpretation of ted). As lo "Jacksonian Democracy," see R. Lawrence state constitutions, see Hans A. Linde, "Without 'Due Hachey, "Jacksonian Democracy and the Wisconsin Process': Unconstitutional Law in Oregon," Oregot1 Law Constitution," Manquette Law Review 62 (1979): 485. Review 49 (1970): 131 30Linde, "Without 'Due Process,' " p. 141. For a listing of l8See, for example, Henry v. Bauder, 213 Kan. 751, 518 similar stale provisions, see p. 182 n.43. For opinions by P.2d 362 (1974). There, the Kansas Supreme Court ob- Justice Linde on Art. I, 20, see State v. Freeland, 295 Or. served: "While. . . [the equality] provisions of our Bill of 367,667 P.2d509.512-16 (1983); State v. Clark, 291 Or. Rights declare a political truth, they are given much the 231,2364,630 P.2d 810,814-18 (1981). same effect as the clauses of the Fourteenth Amend- 31 Hewitt v. State Accident Insurance Fund Corp., 294 Or. ment." 75243,518 P.2d at 365; see also State v. Currens, 33,42.(,53 P.W 970,975 (1982); see also Behrns v. Buake, 111 Wis. 431,434-3587 N. W. 561,562 (1901) (although 89 S.D. 96,100,229 N.W.2d 86,89 (1975X"more stringent phrased like the Declaration of Independence, "life, lib- constitutional standard" than fourteenth amendment); erty, and the pursuit of happiness" provision judicially Comment, kVillarnelte Law Journal 19 (1983): 757 (dis- enforceable); Winters v. Myers, 92 Kan. 414,420-25,140 cussing Hewilt). P. 1033,1036-37(1914) (noting that constitutional provi- 32See State v. Freeland, 667 P.2d 509,512 (1983); State v. sions declare political truths and legislation may not Clark, 291 Or. 231,237-38,630 P.2d 810,814-15 (1981). "trench upon the political truths which they affirm"). 33Linde, "Without 'Due Process,' " p. 142 notes 53 and 54. lgPeper v. Princeton University Board of Trustees, 77N.J. 34See In re Aston Park Hosp., Inc., 282 N.C. 542, 193 5579,389 A.2d 465,477 (1978). New Jersey's constitu- S.E.2d 729 (1973); Comment, "Hospital Regulation after tional provision is quoted in footnote 5. Aston Park: Substantive Due Process in North Caro- 20448 U.S. 297 (1980) (upholding termination of funds for lina," Nodl Carolina Law Review 52 (1974): 763. abortion in the Medicaid program). See generally 35See James Quale Dealey, Growth ofAmerican State Con- Robert F. Williams, "In the Supreme Court's Shadow stitutions from 1776 to the Er7d of the Year 1914 (New Legitimacy of State Rejection of Supreme Court Rea- York: DaCapo Press. 1972, 1915 reprint) pp. 224-26; soning and Result," South Carolina Law Review 35 Hurst, The G~o~r~liofAmericari Law,pp. 241-42; Thomas (1984): 364-365. and Thomas. "'l'hc 'Texas Constitution," 915. 21 Right to Choose v. Byrne, 91 N.J. 287,305,450 A.W 925, 3%ee, for example, Florida Constitution, Art. 111, ll(aX1) 934 (1982). (1968); Pennsylvania Constitution, Art.111, 32

Advisory Commission on Intergovernmental Relations 65 37See generally City of Louisville v. Klusmeyer, 324 S.W.2d 53 Of course, many states did not enforce even these earlier 831. 833-34 (Ky. 1959) (noting that both territorially and provisions in the area of, for example, racial discrimina- substantively "special" statutes are permissible in certain tion. cases). The Tennessee Constitution's "law of the land" 54Iaurence 11. Tribe, American Constitutional Law provision, Tennessee Constitution, Art. XI, 8 (1796) has (Mineola, New York: Foundation Press, 1978) 15-10, p. been interpreted to allow statutes to be restricted to cer- 933 n.77. For a complete discussion of unconstitutional tain counties by population classification only when "the conditions, see Seth Kreimer, "Allocational Sanctions: classification is based upon reason, is natural and not ar- The I'roblcm of Negative Rights in a Positive State," bitrary or capricious." State ex re1 Hamby v. Cummings, U~iivemityof t'ennsylvatiia Law Review 132 (1984): 1293. 166 Tenn. (2 Beeler) 460,463,63 S.W.2d. 515,516 (1933). 55 62 N. J. 473,s 13,303A.2d 273,294, cert. denied, 414 U.S. 38111inois Constitution, Art. IV, 13 (1970); see Grace v. 976 (1973). Howlett, 51 111. 2d 478, 283 N.E.2d 474 (1974). Illinois' 56New Jersey Constitution, Art. VIII, 4, para 1(1947); see "special laws" provision declares further that "whether a Gershon M. Katner, "A New Legal Duty for Urban Pub- general law is or can be made applicable shall be a matter lic Schools: Effective Education in Basic Skills," Tam for judicial determination." Illinois Constitution, Art. Law Review 63 (1985): 815 n. 144; Paul L. Trachtenberg, IV, 13 (1970). On judicial enforcement of this type of "Reforming School Finance through State Constitu- provision, see Truax-Traer Coal Co. v. Compensation tions: Robinson v. Cahill Points the Way," Rutgets Law Commissioner, 123 W. Va. 621, 626-27, 17 S.E.2d 330, Review 27 (1974): 415-28. 334 (1941); Thomas F. Green, Jr., "A Malapropian Pro- vision of State Constitutions," Washington University 57See Cahill, 62 N.J. 501-10,303 A.2d 287-92. For a deci- Law Quarterly 24 (1939): 359; Frank E. Horack, "Special sion dealing with equality of educational opportunity for Legislation: Another Twilight Zone,"Zndiana Law Jour- handicapped students under New Jersey's "thorough nal 12 (1936): 110-21. and efficient" provision, see Levine v. State Department of Institutions and Agencies, 84 N.J. 234,418 A.2d 229 39Illinois Constitution, Art. I, 2 provides: "No person (1980); see also In re G.H., 218 N.W.2d 441, 446 (N.D. shall. . . be denied the equal protection of the laws." 1974) (holding that failure to provide free education to 40See Karasik, "Equal Protection," pp. 270-74. handicapped children violates North Dakota Constitu- 41 Grace v. Howlett, 51 Ill. 2d 478,487 283 N.E.2d 474,479 tion's education and equality provisions). (1974). 58The New Jersey court said: "In passing we note briefly 42PennsylvaniaConstitution, Art. I26 (1967); cf. New York the reason why we are not prepared to accept that con- Constitution, Art. I. 11 (1938) (earlier version of this type cept for State constitutional purposes. We have no diffi- of provision). For discussion of similar provisions in culty with the thought that a discrimination which may other state constitutions, see Albert L. Sturm, "The De- have an invidious base is "suspect" and will be examined velopment of American State Constitutions," 1'11blir~s: closcly. And if a discrimination of that kind is found, the The Joumal of Federalistn 12 (1982): 87-88; Albert L inquiry may well cnd, for it is not likely that a State inter- Sturm and Kaye M. Wright, "Civil 1,ihcrtics in 1lcvisc:il est could suslain such a discrimination. But we have not State Constitutions," in Stephen L. Wasby, cd.. ('ivill~ib- found hclplul thc conccpt of a "fundamental" right." erties: Policy and Policy Making (Carbondale: Southern Cahill, 62 N.J. 491, 302 A.W 282. Illinois University Press, 1976). pp. 182-83. SgIbid., 62 N.J. at 492.495-96,303 A.2d at 283,284. In fact, 43See, for example, New Jersey Constitution, Art. I, para 5 New Jersey has no "equal protection" clause in its consti- (1947). tution. The genctxl state constitutional doctrines of equality arise from New Jersey Constitution, Art. 1,para. 44See Hurst, The Growth ofAmerican Law, p. 246. See gen- 1(1947). See supra note 5. erally Charles Press, "Assessing the Policy and Opera- tional Implications of State Constitutional Change," 60See generally Michael M. Bernard, Constitutions, Taxa- Publius: The Joumal of Federalism 12 (1982): 108-11 (dis- tion and Land Policy, 2 vols. (Lexington, Massachusetts: cussing the politics of constitutional revision). D.C. Heath, Lexington Books, 1979, 1980) (abstracting tax provisions from the federal and all state constitu- 45448 US. 297 (1980). tions); Wade J. Newhouse, Constitutional Uniformityand 46This was a Fifth Amendment equal protection case deal- Equality in State Tauation, 2nd ed. (Buffalo: William S. ing with a federal statute. The companion case, Williams Hein Co., 1984) (analysis of state tax uniformity and v. Zbaraz, 448 US. 358 (1980), applied identical analysis equality provisions, organized into nine prototypical to a state statute under the equal protection clause of the clauses); William LA Matthews, Jr., "The Function of Fourteenth Amendment. Constitutional I'rovisions Requiring Uniformity in 47Williams v. Zbaraz, 315-17. Taxation," Kenlrrchy Law Jounial38 (1949): 31 (d'ISCUSS- ing the development and application of state tax uni- 48Ibid., 317 n.19. formity provisions); David A. Myers, "Open Space Taxa- 49Roe v. Wade, 410 US. 113 (1973). tion and State Constitutions," VanderbiltLaw Review 33 50Eisenstadt v. Baird, 405 U.S. 438,453 (1972); Skinner v. (1980): 837 (differential taxation of farm, timber, and Oklahoma, 316 U.S. 535, 541 (1942). open space land tends "both to countermand and to reinforce the iclcal that absolute equality in state taxation 51 This argument, which contends that such federal constitutional rights constitute "civil rights" under the state can be attained"). constitutional provision, was rejected in Fischer v. De- 61 See, for example, Gottlieb v. City of Milwaukee, 33 Wis. partment of Public Welfare, 509 Pa. 282, 502 A. 2d 114 2d 408, 147 N. W. 2d 633 (1967). (1985). 62Sw Note, "lnccpi~lityin Property Tax Assessments: New 52See generally Frank P. Grad, "The State Constitution: (lures for an Old Ill." Haward Law Review 75 (1962): Its Function and Form in Our Time," Virginia Law He- 1377-80: Note, "'l'hc Road to Uniformity in Real Estate view 54 (1968): 929-939 (describing the shifting functions l'axat ion: Valuation and Appeal," University ofPeririsyl- of state governments). vania l,aw Kcvirw 124 (1976): 1447.

66 Advisory Commission on Intergovernmental Relations 63See Lenhausen v. Lake Shorc Auto Parts Co., 410 U.S. sortium of his spouse, but a wife could not. Darrin v. 356, 359 (1973); Allied Stores, Inc. v. Ilowcrs, 358 US. Gould, 540 1'.2rl 885 (Wash. 1975); Rand v. Rand, 374 522, 526 (1959); Nashville, Chattanooga. and St. Imis A.2d 900 (Md. 1977); and Hopkins v. Blanco, 320 A.2d Railway v. Browning, 310 U.S. 362,368 (1940) (referring 139 (Pa. 1974). to the "narrow and sometimes cramping provision of. . . 73Henderson v. Henderson, 327 A.2d. 60 (Pa. 1974); Smith state uniformity clauses"). v. Smith, 534 P.2d 1033 (Wash. 1975); Cooper v. Cooper, 64Amidon v. Kane 444 Pa. 38,47,279 A.2d 53,58 (1971). 513 S.W.2d 229 (Tex. Civ. App. 1973); Friedman v. Fried- man, 521 S.W.2d Ill(Tex. Civ. App. 1975); and Krempv. 65Federal initiatives include passage of the Equal Pay Act Kremp, 590 S.W.2d 229 (Tex. Civ.App. 1979). of 1963(57 U.S.C. 206 [1976]), the Civil RiglztsActof 1964 (42 U.S.C. 2000e [I976 and Supp. I11 1979]), and Title IX 74The relevant cases, in both "little ERA" and "non- of the Education Act Amendments of 1972 (20 U.S.C. ERA" states, are surveyed and analyzed in G. Alan Tarr 1681 [1976]) as well as Reed v. Reed 404 U.S. 71 (1971) and Mary Cornelia Porter, "Gender Equality and Judi- and subsequent judicial rulings under the equal protec- cial Federalism: The Role of State Appellate Courts," tion clause of the Fourteenth Amendment. State initia- Hastings Coiistitirtional Law Quarterly 9 (Summer 1982): tives include not only the constitutional guarantees of 942-950 and 963-973, Tables E-H. gender equality discussed below but also statutory reforms and judicial decisions demonstrating a commit- 75See, for example, People v. Barger, 550 P.2d 1281 (Col. ment to securing gender equality even in the absence of 1976); Finley v. State, 527 S.W.2d 553 (Tex. Crim. App. express constitutional mandates. See, for example, Sailer 1975); and Brooks v. State, 330 A.2d 670 (Md. 1975). Inn v. Kirby, 485 P.2d 529 (Cal. 1971). 76Sce, for example, Tlopkins v. Blanco, 302 A.2d 855 (Pa. 66For a thorough overview of the changes in state law, see 1973); Whittlcsey v. Miller, 572 S.W.2d 665 (Tex. Civ. Barbara A. Brown, Ann E. Freedman, Harriet N. Katz, App. 1978); and 1-andgrensv. Whitney's Inc., 614 P.2d and Alice M. Price, Women'sRightsand the Law: Tile II~ 1272 (Wash. 1980). For discussion of state elimination of pact of the ERA on State Laws (New York: Praeger, 1977). the discriminatory common-law ban on recovery, see Tarr and Porter, "Gender Equality," pp. 937-942. 67Alaska Constitution, Art. I, 3 (1972); California Consti- tution, Art. I, 8 (19 ); Colorado Constitution, Art. 11,29 ~~SCC,for exi~~lipl~, Packel v. Pennsylvania Interscholastic (1972); Connecticut Constitution, Art. I 20 (1974); Ha- Athletic Association, 334 A.2d 839 (Pa. 1975), and Dar- waii Constitution, Art. 1, 3, and Art. I, 5 (1972); Illinois rin v. Gould. 540 P.2d 885 (Wash. 1975). Constitution, Art. I, 18 (1971); Louisiana Constitution, 78For example, whereas in Texas the right of married Art. I, 3 (1974); Maryland Constitution, Art. 46 (1972); women to revert to their birth names on official records Massachusetts Constitution, Part First, Art. I (1976); was confirmed by judicial decision, in Maryland and Montana Constitution, Art. II,4 (1973); New Hampshire Pennsylvania the issue was resolved by opinions issued Constitution, Part First, Art. 2 (1975); New Jersey Con- by the states' attorneys general. For Texas, see In re stitution, Art. I, para. l(1947); New Mexico Constitution, Erickson, 547 S.W. 2d 357 (Tex. Civ. App. 1977); for Art. 11, 18 (1973); Pennsylvania Constitution, Art. I, 28 Maryland, see 57 Opinions of the Attorney General 234 (1971); Texas Constitution, Art. I, 3a (1972); Utah Con- (11/30/72), cited in NOW Legal Defense and Education stitution, Art. IV, l(1896); Virginia Constitution, Art. I, Fund, ERA Impact Project: Summary-Maryland State 11 (1971); Washington Constitution, Art. 31, s 1 and 2 ERA Experience, pp. 7-8; and for Pennsylvania, see Offi- (1972); and Wyoming Constitution, Art. VI, 1, and Art. I, cial Opinion No. 62, Opinions of the Attorney General 3 (1890). Litigation and legislative action under these 172 (8/20/73), cited in NOW Legal Defense and Educa- provisions through 1980 are surveyed in NOW Legal De- tion Fund, ERA Impact Project: Summary-Pennsylvania fense and Education Fund, ERA Impact Project (unpub- lished. 19811 State ERA Experience, pp. 11-12. 68The revised provision substituted "persons" for "men." 79Connecticut prohibited gender discrimination by private The aim of securing equal rights through this change is employers in 1967 and by public employers in 1969(Con- documented in "Note: Rediscovering the New Jersey necticut Gen. Stats. 4-61,31-12, and 53-35 [I979 Rev.]). E.R.A.: The Key to Successful Sex Discrimination Liti- A year prior to the adoption of the state ERA in 1973, gation," Rutgem Law Review 17 (Winter 1986): 253. the state had made gender neutral all laws concerning divorce, marriage, alimony, division of property, custody, GgSee, for example, McLean v. First N.W. Industries of and child support (Connecticut Gen. Stat. 46b-40 et seq. America, Inc., 600 P.2d 1927 (Wash. 1979). and Junior [I979 Kcv.1). It sliould be noted that many states that did Football Association v. Gaudct, 546 S.W.217 1 (Tcx. <'w. not adopt consl~lutionalprohibitions on gender dis- App. 1976). crimin;~licmIioncll~clcss acted to remove discriminatory 70See, for example, People v. Ellis, 311 N.E.W 98 (111. provisio~isCroni their laws. See Brown et al., Women's 1974). For a contrary view, see Hartrord Accident and Higizts and (Ire Law, chapter 3. Indemnity v. Insurance Commissioner, 482A.241542(Pa. 8OThis account of New Mexico's reform effort is based on 1984). NOW Lrgi~lI)efcnseand Education Fund, ERA Impact 71Salt Lake City v. Wilson, 148 P. 1104 (Ut. 1915), and Project: Siinzmaty-New Mexico State ERA Experience, Stanton v. Stanton, 517 P.2d 1010 (Ut. 1974). pp.8-13. 72Consortium is defined as the "[c]onjugal fellomhip of 8lFor example, two months after the Virginia Supreme husband and wife, and right of each to the company, so- Court in Archer v. Mayes, 194 S.E.2d 707 (Va. 1973), up- ciety, cooperation, affection, and aid of the other in held an automaticexemption from jury duty offered only every conjugal relation." (Black'sLaw Dictionary, 5th ed. to women, the Virginia Legislature replaced the statute [St. Paul: West Publishing Co., 19791, p. 280) Tradition- with one offering an exemption to anyone who is respon- ally, under common law a husband could recover for sible for the care of a child or a handicapped adult (Vir- negligence leading to an impairment or loss of the wn- ginia Code 8.01-341.1 [Rep. Vol. 1977).

Advisory Commission on Intergovernmental Relations 67 68 Advisory Commlssion on Intergovernmental Relations Chapter 6 The States and Criminal Procedure

Rights protections for defendants in criminal rule of the Fourth Amendment to the U.S. Constitu- cases represent another area where state courts have tion. This rule has become central to the American become very active in recent years. State courts are criminal justice system. This rule is also important for often holding that a defendant is afforded more pro- federalism because, even if a state court is able to use tection under a section of a state constitution than state grounds as the basis of its decision, a federal the U.S. Supreme Court has granted through its in- court may still be able to use the evidence that was terpretation of the corresponding provision in the suppressed in the state court. The U.S. Supreme U.S. Bill of Rights. This development has resulted, in Court has hcld that successive prosecutions in state part, from the changes in the substance of U.S. Su- and federal courts are not violative of the double preme Court decisions. Under Chief Justices Warren jeopardy clause of the Fifth Amendment. Burger and William Rehnquist, the Court has slowed The defendant can attempt to stop the federal the expansion of criminal defendant rights and, in court from using evidence that is impermissible un- some areas, narrowed the protections granted to the der the state constitution even if he or she cannot defendant under the U.S. Constitution by the War- avoid the federal prosecution. The state court might ren Court.' be able to enjoin the state official, who obtained the Because of the Supreme Court's post-Wnrrcn evidence in violation of state rules, from testifying or approach to defendant rights, the slate courts are handing thc cvidcnce over to the federal prosecutor. taking initiatives in this field. Justice William Bren- The state court might be able to prohibit the intro- nan approves of these state initiatives. He finds that duction of cvidcnce from a federal official who vio- "state courts no less than federal are and ought to be lated the state constitution through the "reverse sil- the guardians of our liberties."2 In the past, when de- ver platter doctrine." In addition, the defendant can fendants' rights were federalized, the states had no make his or her argument to the federal court. If the reason to consider their own state constitutions. state court is hesitant to act, the federal judge may However, the BurgerIRehnquist Court does not in- rule that the federal officials should not receive evi- terpret these rights as expansively as did the previous dence that a state official obtained in violation of Court. state law. The federal court can also decide to pro- This chapter will demonstrate that, despite sev- hibit state officials from using evidence seized con- eral problems, state courts have turned to their own trary to state law in the federal prosecution. constitutions to guarantee more protection than the Supreme Court's interpretation of the U.S. Constitu- State Courts and Constitutions tion grants to the defendant. State courts may and do Several commentators assert that the states interpret their constitutions independently of the should take the initiative in the area of constitutional federal Constitution. State constitutions are not mir- rights. Ronald Collins, for example, maintains that rors of the federal Constitution; they have their own the states musl take responsibility to protect individ- language and history, which shape state court inter- ual rights in order to revitalize federalism.3 For Jus- pretation. tice William Rrennan, the federal courts are still pri- In order to avoid Supreme Court review and pos- marily rcsponsiblc for protecting individual rights, sible reversal, state courts must make a plain statc- but thc stam should take the role of expanding pro- ment that their decision is based on an independent tections bcyond Scclcral guarantees4 He believes that and adequate state ground and note that whilc fcd- Jamcs Madison would have approved and welcomed era1 law may persuade the court it does not compcl the increase in the reach of state constitutional law.5 the result. This chapter focuses on the exclusionary Perhaps, as onc commentator suggests, the state rule

Advisory Commission on Intergovernmental Relations 69 should simply act as an alternative to federal law be- courts are better suited to decide state than federal cause the states are as able as the federal courts to questions. 'Third, state adjudication on state grounds formulate workable rules for the application of the takes some pressure off the heavy Supreme Court standard formulated by the Supreme Court.6 docket becausc the Court cannot decide state law is- However, some observers argue that the state sues.13 Fourth, the state court can make its decisions courts should not interpret their constitutions in a based on the character of the state where it sits. The manner different than the Supreme Court's under- state can grant benefits to a state defendant due to standing of the U.S. Constitution. As Chief Justice the capabilities of the state, such as counsel on ap- Burger stated in Florida v. Casal, peal, while the Supreme Court must be sure that all states can afford to enact this provision.14 The states . . . when state courts interpret state law to are free to experiment15 and determine the best pro- require more than the Federal Constitution cedures and laws for their unique circumstances. requires, the citizens of the state must be Thus, although the state court's use of its own aware that they have the power to amend constitution may cause some problems, these prob- state law [by referendum in that case] to en- lems do not outweigh the benefits. No other body can sure rational law enforcement.? so easily and efficiently protect rights owed to the defendant under state law. Because many state courts Problems may arise, like those in the pre-Mapp are becoming active,l6 it is now the duty of attorneys era before the exclusionary rule was applied to the in each state to raise and brief the issues based on states uniformly. Two rules of law will exist in each state constitutions. Local practitioners have an obli- state; one federal and the other state. More cases gation to raise the issue that the state court can grant may arise due to this lack of uniformity between broader protection under its own constitution, so that states and the federal government. However, since the client and future defendants can receive the each state has unique interests, complctc uniformity benefits of thosc rights. Yet, as the Vermont court may not be required or desirablc.8 stated in Stutp v. Jcwett, the state court should not Further, there is a custom of looking to federal "use its state constitution chiefly to evade the impact law for the protection of the defendant. Because of the decisions of the U.S. Supreme Court. Our de- courts are accustomed to federal rules, the state cisions must be principled, not result oriented."" judges usually defer to the Supreme Court's interpretation. However, such deference is not necessarily State Use of Their Own Constitution appropriate. Although the U.S. Supreme Court re- ceives the most attention, state courts have often In the first appeal after Michigan v. Long's- guaranteed particular protections to defendants be- Colorado v. NunezlQ-the U.S. Supreme Court dis- fore the Supreme Court has done s0.Q missed the case as improvidently granted because it Another problem that can arise is confusion rested on independent and adequate state law about which rule of law, state or federal, must be fol- grounds. The state court20 decided that the Colorado lowed in a case. Nonuniformity causes difficulties in Constitution grants a trial court discretion to disclose instructing law enforcement officers in their duties. the identity of informants when there is a reasonable In many states, the law enforcement officers may find factual basis to question the informant's statements, that their duties change when the state court decides even though the U.S. Supreme Court did not hold to interpret the state constitution more narrowly that the federal Constitution requires this disclo- than the federal Constitution, which had been fol- sure.21 Thus, the Supreme Court, in dismissing lowed before. Nunez, permilled the state court to go beyond what However, state courts are no longer performing was necessary under the U.S. Constitution. any service when they interpret their state constitu- In a concurrence, Justice John Paul Stevens criti- tions as equal to the federal Constitution because the cized Justice White's opinion. White agreed that the Fourteenth Amendment applies most of the protec- Court had no jurisdiction, but he proceeded with a tions of the U.S. Constitution to the states. State lengthy advisory opinion. For Stevens, White's opin- courts must use the state constitutions as documents ion simply demonstrated the Court's tendency to in- granting more protections to the criminal defendant volve itself in state court proceedings and encourage in order to make a contribution to the 1aw.lOThe state litigants to file writs of certiorari. A party may hope court must make an independent determination in for adviscmcnt 1)y some of the justices, even if the each case.l l state decision is based on state grounds.22 The state courts' practice of deciding issues on In Turner v. Cify of Lawton,23 the Oklahoma court the basis of state constitutional law before reaching held that its constitution does not permit the intro- federal law is useful for several reasons. First, the duction of evidence in a civil case that would be im- state court will avoid adjudication of federal constitu- permissible in a criminal case, although the federal tional questions unless it is necessary.12 Second, state Constitution may allow such civil use.24 For the U.S.

70 Advisory Commission on Intergovernmental Relations

Although the Suprcme Court should rcspcct thc definition of probable cause, which the Court ar- state jurisdiction because of both thc inability of the ticulated in Illinois v. Gates.S8 Gates set out a flexible Court to construe state law and the rcspcct duc to "totality of thc circumstanccs" test that overruled the state courts in a federal system, thc Court will prc- two-prongcd Aguilur-Syinelli test. The U.S. Supreme sume that it has jurisdiction. To avoid federal review, Court overrulcd the judgment of the state court. the state court must include a "plain statement" that Justice Stevens, this time in a concurrence, the state court is basing its decision on independent agreed with the reversal because the state court did and adequate state grounds. Federal precedents are not express whether the warrant was valid and sup- used only as guidance and do not compel the deci- ported by probable cause under the Massachusetts sion.48 Constitution. He suggested that if Massachusetts The Vermont court in State v. Jewett49 instructed were to find thc warrant under state law to be in viola- local practitioners to rely on state law rather than on tion of its constitution on remand, then the first opin- federal law. The court warned that in order to avoid ion, in which the court incorrectly pursued federal federal jurisdiction, the states should not use fcdcral law, was worthless and insufficient.59 This was pre- cases that compel the result. A state court may use cisely what occurred in that case. federal decisions only for their persuasive value, like The state should look to state law and the state decisions from other states.50 If the state court opin- constitution bcforc it turns to the U.S. Constitution. ion relies too heavily on federal precedent, the U.S. According to thc Ninth Amendment, rights are re- Supreme Court in review might find that it has juris- taincd by the pcoplc of the state and are protected by diction, even though the state court plainly states that the state constitution. The state court must guard the its decision is based on independent and adequate liberties of thc citizens of the state and may exceed state grounds. the rights grantcd under the U.S. Constitution.60 The U.S. Supreme Court may hold that the state Many statc courts are able to grant the defendant court's reliance on federal precedent in a particular grcatcr protcctions than the U.S. Supreme Court's case is misguided and, therefore, reverse the decision interpretation of the U.S. Constitution on remand by if the state's use of independent and adequate state explicitly relying on a state ground to obtain a differ- grounds is not clear. In Florida v. Meyers,51 the appel- ent result. In Commonwealth v. Upton,61 for example, late state court reversed the trial court conviction po- the Massachusctts Supreme Judicial Court decided tentially on two grounds.52 The first was a restriction that its constitution exceeded the protection of the on cross examination under state law, which was not defendant granted by the Fourth Amendment prob- challenged on appeal. The second was the use of evi- able cause standard. The court stated that: "The Con- dence obtained in an automobile search.53 stitution of the Commonwealth preceded and is inde- In the U.S. Supreme Court's summarypercuriam pendent of the Constitution of the United States."62 opinion, the issue of independent and adequate state The two constitutions have different language, and grounds is addressed in a footnote. The Court finds the courts have found different results and under- that the state court made no "clear indication" that standings of constitutional doctrine under the two the issue of cross examination was an adequate documents. ground for reversal, independent of the suppression The Massachusetts Court has realized in the past of the evidence obtained in an automobile search.54 that it may protect the defendant more thoroughly Over the strong dissent of Justice Stevens, the Court under the state than the federal Constitution.63 It held that the search of the automobile was proper un- held that the Aguilar-Spinelli test sets a clear and der the Fourth Amendment and reversed the state comprehensible standard, encourages careful work by the police, and reduces the number of unreason- Stevens asserted that the Court should not have able searches in Massachusetts. The court decided granted certiorari. He noted that sincc 1981 the that this stand;trd should be maintained in the Com- Court had summarily reversed lower court decisions monwcalth iintl is rcquircd by the Constitution of upholding constitutional rights 19 timcs. Slcvcns Massach~sclls.6~ stressed that the Court should be "ever mindful of its In Stute v. Neville," the South Dakota Supreme primary role as the protector of the citizcn and not Court held that it could suppress, under the state the warden or the prosecutor."56 Thcrcfore, states constitution, cvidcnce of a potentially intoxicated must base their decisions clearly on statc constitu- driver's rcfusal to take a blood alcohol test. Although tional grounds to protect state defendants. If federal the U.S. Supreme Court has decided that refusal is law is used, the Supreme Court is likely to reverse the admissible under the Fifth Amendment of the U.S. decision, possibly with only a summary proceeding. Constitution,66 the state, acting as the final arbiter of Similarly, in Massachusetts v. Upt~n,~~the Su- the state constitution, can grant the defendant more preme Court, in another per curiam opinion, found rights than the U.S. Constitution. The court deter- that the court in the Commonwealth misunderstood mined that thc federal cases did not control its deter-

72 Advisory Commission on Intergovernmental Relations mination. The words of the state constitution con- double jeopardy clause of the Fifth Amendment did cerning the privilege against self-incrimination are not preclude the second prosecution by the state.74 different and broader than the words in the Fifth Under Bartkus, successive state and federal prosecu- Amendment."The refusal to submit to the test is not tions are not in violation of the Fifth Amendment.75 an admissible physical act, but is a communication In another case, Abbate v. United States,76 the that must be pr~tected.~~The court, therefore, sup- state of Illinois prosecuted and convicted a defendant pressed the evidence. for violation of a state statute. Then, the federal dis- In addressing state laws and constitutions, how- trict court in Mississippi prosecuted the defendant ever, state courts must be careful. They should use for a violation of a federal statute for the same acts.77 federal precedent explicitly only for its persuasive This situation is the opposite of that in Bartkus. The value and state plainly that they are relying on aspects Supreme Court rclied on United States v. Lanza,78 of their own state constitution rather than the U.S. which held that the state conviction did not preclude Constitution. the second fcderal suit. The Court recognized that if Nevertheless, even if the state court specifically the state prosecution barred federal prosecutions for states that it is using the state constitution, the U.S. the same acts, "federal law enforcement must neces- Supreme Court may find that the ground is not com- sarily be hindered."79 This is particularly dangerous pletely adequate or independent and, therefore, re- whcn the defendant's behavior impinges on the fed- verse the decision. In a large number of cascs in eral intercst more than that of the state. which state courts have protected a defendant's These two cases illustrate that the Supreme rights more fully than the Court's interpretation of Court will uphold prosecution of the same act in the the U.S. Constitution, the Supreme Court has re- courts of difl'crent sovereigns. Thus, if the state court versed in per curiam opinions. However, the Su- were to hear the case of the defendant and make its preme Court may be forced to accept state court in- decision based on independent and adequate state terpretations of their own constitutions if there is a grounds, the federal court may still hear the case un- plain statement, as required by Michigan v. Long, and der a federal statute. According to Abbate and Lanza, if there is no real reliance on a federal precedent that after the state court granted the defendant protec- requires the decision. tion greater than the safeguards in the U.S. Constitu- If the state court fails to rely solely on state law in tion, the federal court can try the same defendant for its first opinion, the state court may reverse the deci- the same acts and convict him by using the evidence sion on remand from the U.S. Supreme Court by re- that was not permissible in state court. lying explicitly on independent and adequate state However, the Court in Bartkus noted that many grounds. In response to this action, the Supreme states have statutes that bar a second prosecution af- Court has reversed some cases that had protected the ter the defendant has been tried by a separate sover- defendant without remand to the state court.69 eign for the same actions.80 State and federal officials Therefore, if a state court wishes to have its ruling may decide that the statutes under which the defen- stand, the state should rely on its own constitution in dant is prosecuted are so similar that a second suit is the first place, not only to avoid repetitious litigation, not warranted or necessary, even though it is not pro- but also to avoid the problem in Gates. hibited. The fcdcral government may decide that the federal statutc is so much like the statute that the State and Federal Prosecutions statc uscd to prosccule the dcfendant that the fed- Even if a state court bases its decisions on state eral suit should 11ot proceed. Perhaps the expense of constitutional grounds that are adequate and inde- the second trial should not be incurred because the pendent of the U.S. Constitution, thc fcdcral courts defendant is being punished by the state or has rein the state may still use the evidence that is sup- ceived an acquittal after a fair trial. The defendant pressed in the state court under the less restrictive could argue this point to the federal prosecutor and federal rule. In two cases decided on the same day, to the federal judge as grounds for dismissal. the Supreme Court, in Bartkus v. Illinois70 and Abbate Federal prosecutors have adopted this policy v. United States,71 did not deny the state and federal pursuant to the case of Petite v. United Srates.81 In re- governments the power to prosecute the same act. sponse to Bartkus and Abbate, the U.S. Department In Bartkus, the defendant was tried and acquitted of Justice adopted a policy that "a federal trial follow- in federal district court. Then the federal agents gave ing a state prosecution for the same act or acts is the evidence to the officials of the state of Illinois, barred unless the reasons are compelling."@ In who proceeded to convict the defendant for the same Rinaldi, the U.S. Supreme Court enforced the Justice acts under a state statute.72 As the U.S. Supreme Department's policy that bars the second prosecu- Court stated in Moore v. Illinois, "the same act mayhc tion. Thc Suprcmc Court dismissed the federal in- an offence or transgression of the laws of both"73 the dictment and Icft the state conviction and sentence state and federal sovereigns. The Court held that the intact.

Advisory Commission on Intergovernmental Relations 73 Under this policy as enforced by the courts, a de- done the prwcdure prohibited by the federal rule. fendant who is first tried in a state court may be able The federal agent could not be allowed to flout the to avoid a federal suit where the evidence, which rules that he had the duty to follow.86 would be precluded under the more protective state Similarly, perhaps the state courtscould limit the constitution, could be used. The defendant can argue activity of state agents. The state courts might be per- that the Justice Department policy does not allow the mittcd to stop state agents from testifying or giving second prosecution and that the court must enforce evidcnce to federal agents who could use this evi- this policy. The problem is that the Justice Depart- dencc in federal court. The fact that the procedure ment can change its policy. The court cannot require used by the state agent was proper under federal con- the department to keep this policy. If the department stitutional law would be irrelevant. The state court abandons its policy, a defendant may again be faced would simply be enforcing its own constitutional with two indictments and trials. rules against thc state agents who were bound to fol- A majority of the present U.S. Supreme Court low these rules. If the states could not enforce their would appear to limit the protections granted to de- rules on statc agents, these agents could act as they fendants in criminal cases. This has led the Court to pleased and violate constitutional rights of the defen- admit evidence to convict defendants who were pro- dants. The defendants would have no remedy. tected by a state court that did not specify its reliance In his dissent in Rea, Justice Harlan voiced his on state law. The Supreme Court has even decided concern that a federal "injunction [against federal of- cases without remand in order to avoid state reversal ficials] will operate quite as effectively . . . to stultify under state law. There is reason to believe that the the state prosecution as if it had been issued directly U.S. Supreme Court will continue to permit federal against New Mexico or its officials."87 Even if the courts to grant less protection to defendants in sec- state enjoined only the activities of the state official, ond prosecutions. The lower courts can take many the injunction would, in effect, work against the fed- cases which the Supreme Court as a single body can- eral suit. The state court would be able to prevent the not hear. prosecution of the federal case. This would awaken As recently as 1985, the Supreme Court held the concerns about enabling the sovereign with the that the double jeopardy clause does not bar a second greater interest in the case to hold the trial, even if prosecution of a defendant for the same acts in a the officers of the other sovereign discovered the evi- court with a different sovereign than the first. Heath dence. v. Alabama approved two prosecutions for the same This problcm is exacerbated when it is the state acts in different states.83 The Court did not question enjoining state officials and interfering with federal the fact that consecutive state and fedcral suits are prosecutions. 'l'hc state court could nullify federal permissible. A defendant must arguc that thc secoricl law, which must hc suprcmc to state law.88 A state's suit should not take place on thc grounds ol' respect nullification of a fcdcral prosecution would turn the for the state court, efficiency, and thc wisdom of the supremacy doctrinc on its head: the state could often doctrine that a defendant should not be twice con- control the fcdcral court by refusing to turn over pro- victed for the same crime. However, it is doubtful bative evidcncc. that the federal court is prohibited from hearing the In Wilson v. Schnettler,89 the U.S. Supreme Court suit. reflected this concern for violation of a sovereign's power when it refused to enjoin the use of evidence Avoiding Federal Use of Evidence illegally seized by federal officers in state court. After the defendant was indicted in an Illinois state court State Courts for possessing narcotics under a state statute, he filed If a defendant and the state cannot avoid federal a suit in the federal district court to impound the prosecution, then federal officials may be unable to drugs and enjoin their use in the state trial. The de- use the evidence that was inadmissible under the fendant argued that the injunction should issue state constitution. In Rea v. United States,84 the Su- against the fcdcral officials who seized the narcotics preme Court permitted the federal courts to issue in- and who would be called to testify in the state's case. junctions against federal agents to prevent them from The defendant failed in the Supreme Court as well as giving evidence to the state officials. The Court ap- the lower fcdcral courts. proved of the action of the district court in enjoining a The dccision was based on the rationale that federal official because the relief was not against any courts of one sovereign must avoid interference with state activity, but only against a federal agent who the courts of the other sovereign. Otherwise, embar- abused his authority. As the Court said, "to enjoin the rassing and threatcning conflicts between state and federal agent from testifying is merely to enforce the fcdcral courts would occur. If each court decided to federal rules against those owing obcdience to enjoin the othcr's proceedings, litigants would be left them."85 It was unimportant that the state might con- without a rcmcdy.gOThere would be no finality in the

74 Advisory Commission on Intergovernmental Relations judgment of the first sovereign, which could be re- would be no uniform rules. Further, the state law is versed in a new trial by the other.91 not suprcmc; the federal law overrules conflicting These ideas, voiced in Wilson, were applied in the statc laws. The federal government and officials are later case of Younger v. Harris.92That case held that a not bound by statc laws. federal court cannot enjoin an ongoing state criminal The del'cndant may be able to enforce exclusion proceeding unless there is bad faith, harassment, or of thc evidence obtained legally by federal agents, some other unusual circumstances.93 Similarly, if the but which is contrary to the state exclusionary rule in federal court begins its proceeding, the state court the state court. The state can follow the theory be- should not interfere, particularly because of federal hind Elkins v. United States97 and eliminate the "reverse silver platter" problem that arises in such a situ- supremacy. If the federal proceeding has not yet ation. Given that Elkins held that evidence obtained started, the defendant can argue that enjoining the by state officers in violation of the U.S. Constitution federal officials is not forbidden and is appropriate. is inadmissible in the federal courts, evidence ob- However, there could occur a race to the court tained by federal officers in violation of the state con- house between the defendant going to state court and stitution should not be admitted in the state court. It the federal prosecutor going to federal court. In the would be internally inconsistent for the state court to federal system, however, the state court's supervisory use different rules depending on whether the officers power over the conduct of state officials with respect are state or federal. to violations of state laws might be more important If a search is unreasonable and, therefore, vio- than any inconveniences to the federal prosecutor. lates the state constitution, the products should not The vindication of a state constitutional right of ex- be admitted in the state court, regardless of the ac- clusion of evidence outweighs the federal court's tors. The victim of the search is harmed equally by right to hear evidence obtained in violation of state state or federal officers. Although federal officers are law. One piece of evidence is not likely to cause the not usually required to follow state law, the state federal prosecutor to drop the suit. court should not admit evidence that was obtained in The state court should have supcrvisory powers violation of the constitutional rights of its citizens. over state officials so as to ensure that thc ol'ficcrs clo The fedcral ol'l'iccrs arc not harmed because they not flout state constitutional law. In City of 1.os~Irigc- probably will I)c iil>lc to use the evidence in federal les v. Lyons, the U.S. Supreme Court statcd that the court. 'l'hc stale clocs not interfere with federal law states "may permit their courts to use injunctions to enforcement or federal courts. oversee the conduct of law enforcement authorities on a continuing basis."" Thus, a state court should Federal Courts have no hesitation in supervising state personnel If the state court is hesitant to interfere with the when that is clearly appropriate. actions of the federal court by enjoining its state per- The state court can also attempt to enjoin a fed- sonnel, the defendant can argue to the federal court eral official against violation of state laws. There are that it should refuse to admit the evidence. The fed- many limitations on the power of state courts over eral court could make an evidentiary ruling that the federal officials. In Tarble's Case, the Supreme Court federal officials cannot receive evidence that a state determined that the state court could not inquire officer obtained in violation of state law. Federal about the validity of the enlistment of soldiers into courts should not encourage state officers to violate the militar~.~5Further, in McClung v. Silliman,QQhe their state laws. Further, the federal court may en- Court determined that state courts could not issue a hance this policy prohibiting the federal officers from writ of mandamus against federal officials. Although admitting evidence which they obtained by a knowing the U.S. Supreme Court has never ruled explicitly violation of the state law where they are working. that a state court could not enjoin a federal official, A defendant could request an injunction against the Court would probably not allow such an action. the state official in federal court to prohibit a handing The Supreme Court is likely to find that if the federal over of illegally obtained evidence. Because the state official obtained the evidence, the state court should actor acted in violation of the state constitution, the not interfere with the federal court's jurisdiction. official should lose immunity from suit in federal The defendant could argue that the state court court under Ex Parte Young.98 The state officials must should be able to enjoin its officials, and even federal obcy the U.S. Constitution; violations of neither one officials, from acting contrary to the rule enacted by should be tolerated. The federal court should enjoin the state courts. The federal officials should follow the state officcrs on state constitutional grounds. the state law while they are in the state, if the state However, this position has not been accepted by law is more protective than the federal law. This the U.S. Suprcnic Court. In Pennhurst State School would encourage state officers to act in accordance and Hospitul v. Hulrlerman,99the Court refused to en- with state law. join a statc official for violation of state laws. Only the However, this law would probably be too strin- state court has power over state officials. Therefore, gent for the federal officials. Federal officers would the lower federal courts will probably not enjoin the have to behave differently in each state, and there state officer in deference to Pennhurst.

Advisory Commission on Intergovernmental Relations 75 In United States v. Chavez-Vernaza,loO the federal evidence. Thus the entire Court agreed that this evi- court refused to encourage the state officers to follow dence cannot be admitted. carefully the state constitutional rules announced by Justice Frankfurter also asserted that the federal state courts. In that case, Chavez wanted discovery of courts should not interfere with beneficial state pro- the manner in which state officials obtained evidence cedures that assist the defendant by limiting the ex- against him to determine if their activities violated clusion of evidence to the minimum in the U.S. Con- state law. He claimed that if the evidence was seized stitution. The state court cannot effectively discipline in violation of state constitutional law, comity de- state officers for violations of state laws that are more manded that the federal court suppress it. The appel- protective than the U.S. Constitution. Frankfurter would hold that proper respect for the states de- late court did not agree. mands that thc state courts decide whether the evi- The Oregon court held that evidence is admissi- dence is admissible and that federal courts abide by ble in a federal court under federal standards. Fol- this decision. This doctrine would be particularly ap- lowing state law would hamper federal law enforce- plicable in a casewhere the state is more protective of ment by suppressing probative evidence.101 the defendant under its constitution than the U.S. However, the state constitutional rule would not Constitution as interpreted by the U.S. Supreme hamper federal law enforcement significantly. Obvi- Court. ously, a state would not adopt a rule that would bc impossible for its own law enforccmcnt pcrsonncl to up- Conclusion hold. If the rule did not harm thc statc courl's Statc courts, pcrhaps with the help of federal enforcement of the law, it is unlikely that a Scclcral courts, must try to cnsure the state constitutional court in the state would find it unworkablc. rights of statc citizens. Many states are now granting For the Chavez court, uniformity among fcdcral defendants many rights that the Supreme Court has courts is more important than respect for thc statcs. not found in thc U.S. Constitution. The California Although uniformity is a vital consideration, it does courts were oncc the leaders of the crusade to have not outweigh the Constitution. A court would never the state courts become the chief guardians of the lib- assert that law enforcement officers could uniformly erties of defendants. However, the court's goals were violate the U.S. Constitution. Federal courts should thwarted when the citizens of the state voted in a ref- not sanction the violation of a state constitution by erendum that the California Constitution is identical in meaning to the United States Constitution as in- state officers. Uniform enforcement by the federal terpreted by the U.S. Supreme Court.107 court of rules for federal agents will be maintained, New Jersey, New York, and Connecticut are while the state constitution is also upheld if the fed- leading the eastern states in broad interpretation of eral court suppresses the evidence. their state constitutions. These states and many oth- Finally, the Chavez court asserted that if the state ers are interpreting their constitutions beneficially desires to discipline its officers, other means are for the defcndant. Several western states, such as available as sanctions.102 However, although other Alaska, Oregon, and Washington, are also leading in sanctions exist, none seem to be as effective as the ex- state constitutional interpretation.108 Many states, clusionary rule. In dissent, Judge Harry Pregerson however, have just begun to look toward their own recognized that the federal court should defer to the constitutions, or have not yet attempted to use their state exclusionary rule because otherwise the state own constitutions more broadly than the U.S. Consti- officers would be able to violate state constitutional tution.109 law with impunity.103 In United States v. Henderson,l04 NOTES the federal court reasoned correctly that the deter- Sce Ronald K.L. Collins, "Reliance on State Constitu- rence of a state exclusionary rule would be lessened if tions: Some Random Thoughts," in Recent Develop- the state officer were permitted to introduce the evi- rnerlts in Stule CortstitutionalLaw (St. Paul: West Publish- dence in a federal proceeding. ing Co., 1985). p. 13. In Elkins v. United States,l05 the Supreme Court 2Williani Brennan, "Guardians of Our Liberties-State Courts No Lcss than Federal," Judges Journal (Fall 1976): supported this policy of encouraging adherence to 83. state law. The majority recognized that it must exclude the evidence in order to avoid conflict between 3Collins, p. 17. 4"Developments, The Interpretation of State Constitu- state and federal courts. "When a federal court sit- tional Rights," Harvard Law Review 95 (1982): 1329. ting in an exclusionary state admits evidence lawlessly SBrennan, p. 103. seized by state agents, it not only frustrates state pol- suNote, Statc Constitutional Guarantees as Adequate icy, but frustrates that policy in a particularly inap- State Ground: Supreme Court Review and Problems of propriate and ironic way."106 In dissent, Justice Felix Federalism," Amc.ricari C~iniirialLaw Review 13 (Spring Frankfurter agreed that state law is frustrated if the 1976) 737. federal court does not suppress the illegally seizcd 7462 US. 637 (1983).

76 Advisory Commission on Intergovernmental Relations 8 William Greenhalgh, "Independent and Adequate State the Supreme Court needs to hear a case if the federal Grounds: The Long and the Short of It," in Recent Devel- right has bcen protected because there is no danger that opments in State Cotzstitlitional Law, p. 36. the federal intercst will be lost. QCollins,p. 17. Collins notes that the Iowa Supreme Court 46463 U.S. 1042. upheld an exclusionary rule in State v. Sheridan, 96 N.W. 471bid., 1038, n.4. 73) (1903) before the federal decision in Weeks v. United 481bid., 1041. States, 232 U.S. 383 (1914) and appointed counsel in Car- penter v. Dane County, 9 Wisc. 274 (1859) prior to the 49500 A.2d 233. federal determination in Gideon v. Wainright, 372 U.S. SOIbid., p. 238. 335 (1963). 51 466 U.S. 380 (1984). 1O"Project Report, Toward an Activist Role for State Dills 52432 So.2197 (Ha. 1983). of Rights," Harvard Civil Rights-Civil Liberties Law Re- 53466 US. 381. view 8 (1973): 284. 541hid., 381-82. 1 Ibid., p. 285. 55111itl., 382. Although Stcvcns' opinion is a dissent, it did '%id., p. 288. havc an clkct; pcr curiam reversals occurred less fre- 13Ibid., p. 289. quently sincc tic pointed out the Court's action. 14Ibid., p. 290. 56Ibid., 387. Iktwccn the 1981 and the 1983 term, the 'SIbid., p. 292. Court dcciclctl 19 cases in summary fashion in favor of the wardcn or m;~rshallreversing a decision which up- 'estate v. Jewett, 146 Vt. 221, 500 A.2d 233 (Vt. 1985). held a constitutional right (p. 386). Since 1970,250 cases have held that state constitutions are broader than their federal constitutional counter- 57466 U.S. 727 (1984). parts. 58462 U.S. 213. 17Ibid., p. 235. 5QSeenote 61. 18463 U.S. 1032 (1983). 60466 U.S. 738. lg465 U.S. 324 (1984). 61 394 Mass. 363,476 N.E.2d 548 (Mass. 1985). 20658 P.2d 879 (Colo. 1983). @Ibid., 555. 21 Roviaro v. United States, 353 U.S. 53 (1957). 63Ibid. 22465 U.S. 329. 64Ibid.,556. 23733 P.2d 375 (Okla. 1987). 65346 N.W.W 425 (S.D. 1984). z4Ibid., p. 381. See United State v. Janis, 428 US. 433 66South Dakota v. Neville, 459 US. 553 (1983). (1976). G7346 N.W.2d 328. 25Ibid., p. 378. The exclusionary rule was incorporated in 68Ibid., 429. Hess v. State, 84 Okla. 73, 202 P. 310 (Okla. 1921). 69Gates, 462 U.S. 213; Oregon v. Has, 420 US. 714(1975). 26367 U.S. 643 (1961). 70359 U.S. 121 (1959). 27733 P.2d 379. 7l359 U.S. 187 (1959). 28 127 N.H. 286,499 A.2d 977 (N.H. 1985). 72Bartkus, 359 U.S. 122. 29499 A.2d 981. 7355 U.S. (14 How.) 13,20 (1852). 30Delaware v. Prouse, 440 U.S. 648 (1979). The Supreme "Ibid., 124. At the time the Fourteenth Amendment was Court has yet to grant a writ on this question presented. not understtxxl to incorporate the first eight amend- 31 706 P.2d 317 (Alas. 1985). ments. 32462 U.S. 213 (1983). 75Ibid., 132. 33Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. Unitcd 76359 US. 187. States, 393 U.S. 410 (1969). The two-prong test consists 771bid., 189. of veracity or reliability and basis of knowledge. 78260 U.S. 377 (1922). 34462 U.S. 213. 7QIbid., 195. 35 105 N.J. 95,519 A.2d 820 (N.J. 1987). 80359 US. 138. 36468 U.S. 897 (1984). 8' 361 US. 529 (1960). 37519 A.2d 857. 82Rinaldi v. United States 434 U.S. 22, n.5 (1977). SeIbid., 849. 83474 US. 82 (1985). 3gIbid., 856. 84350 U.S. 214 (1955). 401bid., 854. 85Ibid., 217. 41 Ibid., 856. 861bid., 218. 42468 U.S. 928. e71bid., 219. 43519 A.2d 857. 88United States Constitution, Articlc VI: 44463 U.S. 1032. This Constitution, and the Laws of the United 45Greenhalgh, p. 21. Under this new rule, the Supreme States. . . shall be the supreme Law of the Land: Court will hear the state case if it was based on both state and thc Jutlgcs in every State shall be bound and federal grounds, but the state court increased the thcrcby, any Thing in the Constitution or laws of protection of the federal right. There is no reason why any Statc lo the Contrary notwthstanding.

Advisory Commission on Intergovernmental Relations 77 89365 U.S. 381 (1960). 10084.4 F.2d 1368 (9th Cir, 1987). gobid., 384 n.4. '01 Ibid., 1374. 91 Ibid., 385. 102Ibid. 92401 U.S. 37 (1971). lo31bid., 1378. 93Ibid., 54. '04721 F.W 1220 (9th Sir. 1983). 94461 U.S. 95, 113 (1983). lo5364 US. 206 (1950). 9580 US. (13 Wall.) 397 (1872). loGIbid.,221. 96 19 US. (6 Wheat.) 598 (1821). 97364 U.S. 206 (1959). 107111 rc I~ncc,37 (M.3d 873,694 P.2d 744,210 Cal. Rptr. 631 (Cal. 1985). Sce appendix. 98209 U.S. 123 (1908). A state official who violatcs the Con- stitution loses all immunity. 08See appendix. 99465 U.S. 89 (1984). logSee appendix.

78 Advisory Commission on Intergovernmental Relations Appendix Cases since Michigan v. Long in Which a State Court Has Granted the Defendant More Protections Than the Supreme Court Finds within the U.S. Constitution.

Alabama Fourth Amendment: follow Lance and Proposi- Ex Parte Lynn, 477 So.2d 1385 (1985) tion 8 Sixth Amendment: cross-examination Colorado Bradley v. State, 494 So.2d 772 (1986) Dissent Due Process: pretrial discovery State v. Nunez, 658 P.2d 879 (1983) Due Proccss: disclosure of informants Alaska State v. Deitchman, 695 P.2d 1146 (1985) Concur Reeves v. State, 599 P.2d 727 (1970) Fourth Amendment: good faith exception exists Fourth Amendment: inventory search People v. Drake, 748 P.2d 1237 (1988) Concur and Stephen v. State, 711 P.2d 1156 (1985) Dissent Fifth Amendment: custodial interrogation Fourth Amendment: list examples Best v. Municipality ofAnchorage, 712 P.2d 892 (1985) Fourth Amendment: standing for suppression of Connecticut evidence State v. Cohane, 479 A.2d 763 (1984) State v. Jones, 706 P.2d 317 (1985) Fifth Amendment: self-incrimination Fourth Amendment: probable cause standard State v. Simms, 518 A.2d 35 (1986) Grand jury implied use of state law Arizona State v. Janbek, 529 A.2d 1245 (1987) State v. Adult, 724 P.2d 525 (1986) Due Process: exclude from witness room Fourth Amendment: exigent circumstances, inevitable discovery State v. Hufford, 533 A.2d 1199 (1987) Sixth Amendment: confrontation Kunzler v. Pima County Superior Court, 744 P.2d 669 (1987) Concur State v. Stoddard, 206 Conn. 157 (1988) Sixth Amendment: right to counsel Sixth Amendment: right to counsel State v. Powers, 742 P.2d 792 (1987) Georgia Right to trial by jury State v. Luck, 312 S.E.2d 791 (1984) California Fourl ti A~iicndrncnt:warrant requirement People v. Ramos, 689 P.2d 430 (1984) Williams v. Ne~

Advisory Commission on Intergovernmental Relations 79 Illinois State v. Gilmore, 511 A.2d 1150 (1986) People v. Singleton, 1988 Lexis 27 Jury selection Fourteenth Amendment: Due Process State v. Ramseur, 524 A.2d 188 (1987) Dissent Eighth Amendment: death penalty Indiana Miller v. State, 517 N.E.2d 64 (1987) State v. Fritz, 519 A.2d 336 (1987) Sixth Amendment: Confrontation Clause Sixth Amendment: right to counsel State v. Novembrino, 519 A.2d 820 (1987) Maryland Fourth Amendment: exclusionary rule Hillard v. State, 406 A.2d 415 (1979) Fifth Amendment: voluntariness; follow Mary- New York land nonconstitutional law People v. P.J. 14dc0, 501 N.E.2d 556 (1986) Fourth Amcntlrnent: scarch and seizure Massachusetts People v. C'lri.ss, 404 N.E.2d 444 (1986) Commonwealth v. Ford, 476 N.E.2d 560 (1985) Fourth A~ncndment:search and seizure Fourth Amendment: inventory search People v. Bigclow, 488 N.E.2d 451 (1985) Commonwealth v. Upton, 476 N.E.2d 548 (1985) Fourth A~ncnclrnent:exclusionary rule Fourth Amendment: search and seizure People v. Alvarez, 51 5 N.E.2d 898 (1987) Michigan Fourteenth Amendment: due process State v. Chapman, 387 N.W.2d 835 (1986) North Carolina Fourth Amendment: curtilage State v. Lachat, 343 S.E.2d 872 (1986) Paramount Corporation v. Miskins, 344 N.W.2d 788 Fifth Amendment: double jeopardy (1986) Jackson v. Housing Authority of the City of High Point, Fifth Amendment: self-incrimination 364 S.E.2d 416 (1988) Minnesota Jury selection State v. Fuller, 374 N.W.2d 722 (1985) Dissent Oklahoma Sixth Amendment: double jeopardy Turner v. City of Lawton, 733 P.2d 375 (1987) Fourth Amendment: exclusionary rule Missouri State v. Brown, 708 S.W.2d 140 (1984) Concur and Oregon Dissent State v. Magee, 744.2d 250 (1987) Fourth Amendment: exclusionary rule Fifth Amendment: Miranda Montana Rhode Island State v. Solis, 693 P.2d 518 (1984) State v. VonBulow, 475 A.2d 205 (1984) Fourth Amendment: search and seizure Fourth Amendment: search and seizure State v. Johnson, 719 P.2d 1248 (1986) South Dakota Sixth Amendment: right to counsel State v. Neville, 346 N.W.2d 425 (1984) Nebraska Fifth Amendment: self-incrimination State v. Havlat, 385 N.W.2d 436 (1986) Dissent State v. Auen, 342 N.W.2d 236 (1984) Dissent Fourth Amendment: open fields Jury trial State v. Hinton, 415 N.W.2d 138 (1987) Texas Fourth Amendment: exclusionary rule Sanchez v. State, 707 S.W.2d 575 (1986) Fifth Amendment: Miranda New Hampshire State v. Koppel, 499 A.2d 977 (1985) Wilkerson v. State, 726 S.W.2d 542 (1986) Dissent Fourth Amendment: search and seizure Sixth Amendment: assistance of counsel State v. Mercier, 509 A.2d 1246 (1986) Utah Fifth Amendment: self-incrimination State v. Ashe, 745 P.2d 1255 (1987) Dissent Fourth Amendment: search and seizure New Jersey Grand Jury Proceedings of Joseph Guarino, 516 A.2d Vermont 1063 (1986) State v. Jewett, 500 A.2d 233 (1985) Fifth Amendment: self-incrimination Fourth Amendment: search and seizure

80 Advisory Commission on Intergovernmental Relations State v. Ballou, 535 A.2d 1280 (1987) State v. Box, 745 P.2d 23 (1987) Dissent Fourth Amendment: probable cause Fourteenth Amendment: due process State v. Wood, 536 A.2d 902 (1987) Fourth Amendment: search and seizure West Virginia State v. Wyer. 320 S.E.2d 92 (1984) Dissent Washington Sixth Amcndmcnt: right to counsel State v. Jackson, 688 P.2d 136 (1984) Fourth Amendment: probablc cause Wisconsin State v. Chrisman, 676 P.2d 419 (1984) State v. Rodgerx. 340 N.W.2d 453 (1984) Dissent Fourth Amendment: search and seizure Fourth Amendment: search and seizure State v. Stroud, 720 P.2d 436 (1986) Fourth Amendment: search and seizure Wyoming State v. Gunwall, 720 P.2d 808 (1986) Long v. State, 745 P.2d 547 (1987) Fourth Amendment: search and seizure Sixth Amendment: right to counsel

Advisory Commission on Intergovernmental Relations 81 82 Advisory Commission on Intergovernmental Relations Chapter 7 State Courts and Economic Rights

This chapter examines the role of state courts in nated in thc common law rule against perpetuities protecting economic rights. Since the U.S. Supreme and the granting of exclusive franchises or licenses by Court has decided to expend its constitutional energy the state, but they were also aimed at prohibiting ex- on other issues, the protection of property rights cessive rcgulalions on busines~.~Provisions adopted from unwarranted state regulation rests essentially after the Civil War were written in such a way as to with state supreme courts. The correctness and effec- make them applicable to privately created monopo- tiveness of this state court activism are legitimate and lies as well.6 important concerns for all those interested in pro- Finally, the constitutions of half the states con- moting an effective and balanced role for the state ju- tain taking clauses, which unlike the federal taking diciaries in our constitutional system. The chapter clause contain the phrase property shall not be taken will examine the argumentsfor and against state judi- "or damaged" for public use without just compensa- cial activism in protecting economic rights, and the tion.' The addition of the "or damaged" phrase was standards by which such activism can be judged. It will aimed at providing more protection than the federal be argued that critics of this area of judicial activism equivalent, especially against legalized nuisances, assume too frequently the relevance of the federal which, generally, have not been interpreted as a "tak- experience and generalize their conclusions to the ing" by federal courts.8 These exemplify but do not states without fully appreciating the significant dif- exhaust the variety of property provisions found in ference found in the state constitutional traditions. state constitutions. We conclude by suggesting that it is necessary not One of the most controversial areas of state only for judges but also for legislators and citizens to court activism in this era of the new judicial federal- work together to strike a proper balance between a ism is in the use of state due process, equal protec- judiciary that does too much and one that does too lit- tion, and right-to-remedy clauses to strike down state tle. and local economic regulations interfering with prop- State constitutions are a mine of numcrous, erty intercsts.'l%c movemcnt togrant greater protec- unique, and detailed provisions conccrncd with t he tion to individuirl rights on state constitutional protection of property rights. At least 34 state consti- grounds than the U.S. Supreme Court has granted tutions contain open court or right to acccss provi- under the federal Constitution has met generally sions for which there is no national cquivalenl.' with favorable rcsponses.0 However, when it comes These open court provisions can be found in the ear- to economic rights, the reaction has been less than liest constitutions as well as in ones adopted in the enthusiastic.10 This tepid response is understandable 20th century.2These provisions were included in con- given the association of protecting economic rights stitutions to ensure that state legislatures would not with a period of the U.S. Supreme Court's history tamper with common law remedies available to citi- known as the Lochner era, in which, it is claimed, the zens and that states would not impose unreasonable Court adopted a laissez faire economic philosophy, financial conditions for access to the courts.3 striking down economic regulation in the name of A number of state constitutions also contain free enterprise and property rights." antimonopoly and antiperpetuities clauses for which This is not, however, without its ironies. The one finds no national equivalents. These provisions "new" judicial fcdcralism is not "new" in the area of also appeared in the earliest state constitutions and economic rights. State supreme courts relied on vari- were adopted by other states in the 19th and 20th ous provisions of their respective constitutions to centuries.4 The earlier antimonopoly provisions were protect such rights well before the Supreme Court aimed exclusively at public monopolies. These origi- discovered substantive due process, and they have

Advisory Commission on Intergovernmental Relations 83 continued to do so. These courts are major determi- clusion that the development of substantive due nants of the extent to which property rights are given process was as much a function of state judges inter- protection in the United States, and with regard to preting state constitutions as it was the creation of many areas of economic concern, state courts are the federal judges.21 only judicial forums in which these issues are given a The adoption of the Fourteenth Amendment serious hearing. In part this is the result of the Su- (1868) did not give immediate impetus to the devel- preme Court's decision to play little or no role in po- opment of economic due process as far as the Su- licing economic regulations, at least insofar as due preme Court was concerned, but state courts were process and equal protection challenges are con- quick to add it to their constitutional arsenals. Exem- cerned. As Lawrence Sager puts it: plary in this respect is the case of In Re Jacobs (1885).22 The New York legislature had prohibited With extraordinary generality and finality the manufacturing or preparation of tobacco in tene- federal courts have ceased to find in the ments in citics of 500,000 or more in population. The Constitution any basis for intervening in the New York Court of Appeals voided the law as a de- decisions of governmental entities to tax or privation of liberty without due process of law. In do- regulate economic affairs12 ing so, the court wrote: Justice William Brennan spoke for the Court of the Liberty, in its broad sense as understood in last half century when he noted the wide latitude this country, means the right, not only of granted by the Court "to a valid exercise of the state's freedom from actual servitude, imprison- police power even if it results in severe violations of ment or restraint, but the right of one to use property rights."l3 his faculties in all lawful ways, to live and As pointed out in chapter 1, three clauses of the work where he will, to earn his livelihood in U.S. Constitution have been used by the federal any lawful callings, and to pursue any lawful courts to protect property rights: (1) the taking clause trade or avocation. All laws, therefore, of the Fifth Amendment, (2) the contract clause, and which impair or trammel these rights, which (3) the due process clauses of the Fifth and Four- limit one in his choice of a trade or profes- teenth Amendments. Nearly all state constitutions sion, or confine him to work or live in a speci- contain similar provisions.14 This chapter concen- fied locality, or exclude him from his own trates primarily on the use of due process, equal pro- house, or restrain his otherwise lawful move- tection, and right-to-remedy clauses by state high ments (except as such laws may be passed in courts to review regulations that raise questions of the exercise by the legislature of the police property rights. This focus has four rationalcs: (1) the powcr . . .) are infringements on his funda- bulk of state court activity has been and continues to mental rights of liberty, which are under be focused on due process and equal protection as constilutional protection.23 grounds for protecting property rights; (2) most states This vicw is one that survived the 19th century have incorporated the taking limitation into their due among many statc courts and remains an important process clauses, thus making it difficult to distinguish principle guiding their decisions in this area. New the two limitations;l5 (3) when applying the taking or York was not alone. Between 1885 and 1894, ten contract clauses, state courts generally have followed states adopted the same general approach. Bernard the federal precedents, which involve a balancing of Siegan has suggested that the U.S. Supreme Court private loss against public gain;le (4) the U.S. Su- decision in Allegeyer v. Louisiana, in which the liberty preme Court has remained active in applying the tak- of contract was constitutionalized, thus beginning the ing and contract clauses, deciding at least 18 major era of substantive due process, was not unexpected cases in the last ten years.17 "because the federal judiciary was in fact following trends established in many states."24 Protection of State Courts and Economic Rights property and economic rights was not foisted on the in the 19th Century country by the judiciary: doctrines of vested rights Substantive due process, the idea that legislation and economic due process were developed out of a must not be arbitrary (i.e., it must have a real and sub- commitment to protecting property and economic stantial relationship to a legitimate state interest), liberties that are part of the constitutional and politi- arose first among state courts-a fact that was influ- cal tradition of the United States.25 ential in its adoption by the U.S. Supreme Court.18 Edward S. Corwin, after analyzing state and federal State Court Activity and Economic Rights, cases prior to the Civil War, credits Wynehamer v. 1897-1987 State of New Yorklg as the beacon case whose doctrine The hcyday of federal substantive due process, "less than 20 years from the time of its rendition . . . roughly 1897 to 1937. has been well studied.26There- was far on the way to being assimilated into the ac- action to substantive due process as it was interpreted cepted constitutional law of the country."20 There in Lochner and its progeny was so intense that the were numerous other cases, enough to allow the con- U.S. Supreme Court has, for all intents and purposes,

84 Advisory Commission on Intergovernmental Relations abandoned any serious review of the kind of eco- applied it and in what areas, and the extent to which nomic regulation that had been the prime target of the state courts followed the U.S. Supreme Court in the doctrine. Oliver Wendell Holmes' stinging dis- rejecting substantive due process. To get some idea sent to Lochner became the definitive understanding of state court involvement in protecting economic of Lochner. Holmes' view, that Lochner was no more rights, an examination was made of eight studies that than an attempt to read into the Constitution a par- collected cases in this area.29 Added to the cases ticular economic philosophy derived from Adam noted therein were decisions collected from lists pro- Smith and, more immediately, Herbert Spencer, be- vided by state courts themselves. Finally, to the above came the dominant view among academic commenta- were added =ses collected since 1980 from the re- tors as well as judges. In its place emerged a view that gional reporters. A total of 391 cases were discovered the due process clause, as far as economic regulation using this method. Although this figure by no means is concerned, means what its words suggest, namely, represents all the cases decided by state high courts in procedural but not substantive protection against this area, it is believed that it is representative of the government action.27 While the U.S. Supreme Court activity of state courts in the period from 1897 to has revived the general notion of substantive due 1987.30 process, and has recently indicated that it may be- During thc pcriod of 1897-1937, state courts come more solicitous of property rights, thcrc has definitely emphasized substantive due process, with been no attempt to revive substantive due proccss as 70 percent of thc cases being decided on this basis a basis for stricter review of economic and social rcgu- (see Table I). This figure increased to 81 percent lation.28 during the ncxt pcriod, 1938-1968, but dropped What follows is a look at the extent to which state significantly to 18 percent during 1969-1987. The courts adopted a similar doctrine, how rigorously they emphasis on equal protection decreased slightly

Table 1 State Supreme Court Activity and Economic Rights, 1897-1987 Local Regulations1 Judicial Anti- Miscellaneous Remedy Competitive Totals (%) (No.) (%) (No.) (%) (No.) () (No.) 1897-1937 Substantive Due Process 75.0 15 50.0 1 66.7 10 70.3 26 Equal Protection 15.0 3 50.0 1 13.3 2 16.2 6 Substantive Due Process/ Equal Protection Combined 10.0 2 0.0 0 20.0 3 13.5 5 Total 100.0 20 100.0 2 100.0 15 100.0 37

1938-1968 Substantive Due Process 71.1 27 0.0 0 85.6 143 81.0 170 Equal Protection 18.4 7 60.0 3 7.8 13 11.0 23 Substantive Due Process1 Equal Protection Combined 7.9 3 20.0 1 4.2 7 5.2 11 Miscellaneous 2.6 1 20.0 1 2.4 4 2.9 6 Total 100.0 38 100.0 5 100.0 167 100.0 210

1969-1987 Substantive Due Process 25.8 8 5.1 4 48.0 12 17.9 24 Equal Protection 48.4 15 55.1 43 24.0 6 47.8 64 Substantive Due ProessJ Equal Protection Combined 9.7 3 5.1 4 24.0 6 9.7 13 Miscellaneous* 16.1 5 34.6 27 4.0 1 24.6 33 Total 100.0 31 100.0 78 lnn.0 25 100.0 134

- - - Total Number of Cases 23.4 89 22.3 85 54.3 207 100.0 381 *Most of the cases in this category are open court or right-to-remedy provisions of state constitutions.

Advisory Commission on Intergovernmental Relations 85 from 16 percent during 1897-1937 to 11 percent dur- statutes of limitation which would make suit impossi- ing 1938-1968, but then increased dramatically to 48 ble when those minors reached legal age37 and con- percent during 1969-1987. An increase in state legis- sumers from attempts by legislatures to arbitrarily lative activity involving social and economic regula- limit entry into professions, fix prices, or otherwise tion may account for part of the shift, but does not lessen competition.38 seem to be the primary factor. Decisions as far back as the end of the 19th century decided on due process Standards of Review. 1970-1988 grounds would today almost certainly be decided on equal protection grounds.31 The discrediting of due The most rcccnt period of state court activity re- process as a basis for examining social and economic veals important shifts in the ground for as well as the regulation, as well as the rise of equality as a constitu- standards of review. The 144 cases examined during tional value, have combined to make judges and this period came from 44 states, with the largest num- scholars feel more comfortable with equal protection bers concentrated in Ohio (12), Alabama (12), Geor- analysis, even though the outcomes are the same.32 gia (8), California (8), New Hampshire (5), and Texas A second significantaspect of the data is the exis- (5). Fifty-six percent of these cases involved some tence of a consistent philosophy governing this judi- kind of limitation on liability, whether product liabil- cial activism that persists throughout thc pcriods in ity, guest statutcs, or limitations on plaintiffs in suits question. Fifty-three percent of all t hc caws exam- involving thc mctlical profession. In the majority of ined fell into the anticompctitivc category. State thcsc cases, the cnactmcnts were struck down on court judges struck down measures that cit hcr overtly right-to-rcmccly andlor equal protection grounds, or covertly tended to create monopoly and/or inter- suggesting that slate court activism is most likely to fere with the operation of the markctplacc. In dcci- be triggercd whcn legislatures tamper with tradi- sion after decision, judges concludcd that the rcal as tional common law rcmedies for injuries without pro- opposed to the ostensible purpose of the legislation viding alternative relief. in question was anticompetitive. In doing so, the The movement toward stricter liability in torts judges were being true to what one scholar has dem- and the rise of product liability claims coupled with a onstrated was one of the historically valid purposes of perceived medical malpractice crisis, galvanized a va- the due process clause, namely, protection against riety of groups to seek relief before state legislatures. monopoly.33 The result was legislation placing limitations on li- The most recent period, 1969-1987, reveals a de- ability in a variety of areas, but especially in the velopment of some promise in the use of open court health professions. State courts have not been unani- or right-to-remedy clauses contained in most state mous in their responses to this legislation. With the constitutions. These clauses typically take the form of exception of the guest statutes where state courts guaranteeing that all courts shall be open, and that all have struck down almost all of those remaining on the persons shall have a remedy for injuries suffered to books, state courts have sustained a variety of limita- their persons, property, or reputation. In conjunction tions on liabilit~.~QThe statutes upheld, in most with equal protection clauses, they have been used to cases, have becn less drastic with respect to remedies strike down guest statutes (which preclude liability left for plaintiff^.^^ Prominent examples of state for nonpaying passengers in private vehicles), stat- courts that have upheld such legislation are Califor- utes of repose (which preclude liability), caps on mal- nia and Indiana. The California Medical Injury Com- practice awards, and similar measures. The U.S. Su- pensation Act of 1975 was challenged in four differ- preme Court has not addressed any of these issues ent suits, all of which the California Supreme Court directly. Assuming that at least some of these statutes sustained by using a rational basis test.41A similar act are open to legitimate challenge, the only available adopted in Indiana was also upheld.42 forums for those challenges have been the state judi- Equal Protection. In applying equal protection ciaries. In fact, the single most striking dcvclopment clauses, state courts have resorted to a variety of ap- among state supreme courts in protecting economic proaches, running li-om rational relationship to strict rights since 1980 has been the increasing use of these scrutiny, and in at least two cases, a standard alto- right-to-remedy clauses, frequently in conjunction gether different from the three-tiered federal analy- with equal protection clauses, to strike down a variety sis.43 of legislative schemes.34 Some of the state courts that claim to be applying The protection of economic rights extends be- the rational relationship test are actually requiring a yond the confines of the business world and involves a more demanding standard of review. In Whitworth v. variety of groups and interests. These range from Byn~rn,~~the Texas high court dcclared that the widows of workmen denied access to courts for claims state's guest stalutc had no rational relationship to to compensation35 to suppliers of materials denied a any legitimate statc interest. Applying the same test. special exemption from liability granted to archi- the U.S. Suprcrnc Court upheld similar legislation.45 tects.36 These decisions have protected minors from In Ketcham v. Kings County Medical Service,4Vhe

86 Advisory Commission on Intergovernmental Relations Washington court held an optometrist rcimhursc- authority to al)ritlgc that right."56 Aware of its rela- rnent scheme to be void on a rational rclationship tive isolation, the Georgia court noted that this was standard, while the dissenters had no problem com- its position "no matter what other states or the Su- ing up with facts to sustain the classification. preme Court of the United States may or may not Other courts have applied a means-scrutiny or have decided."57 middle-tier standard.47 The significance of this stan- More typical is Louis Finocchiaro Inc. v. Nebraska dard can be seen in the case of Tabler v. Wallace. In Liquor Control. Here the court required a "clear, real the face of some imaginative "reasonable bases" pro- and substantial connection between the assumed vided by the attorneys for the state, the Kentucky purpose of the enactment and the actual provisions court responded by arguing that the state equal pro- thereof."58 Unlike the federal rational relationship tection clause requires there to be a "substantial and test, these states have required that the rationale be justifiable reason apparent from the legislative his- spelled out explicitly; any conceivable rationale that tory, statute or some other authoritative source," and might be adduced will not suffice. These "pure" sub- that "reasons that could exist without anything of a stantive due process cases are relatively rare in con- positive nature to suggest that they did exist do not temporary state constitutional law. Aside from a few suffice."48 scattered cases elsewhere, they are concentrated in Another approach used by state judiciaries is to the South. combine equal protection analysis with some other provision of their constitution. The most common As with the equal protection cases, due process is combination is with due process and/or right-to-rem- occasionally linked with other provisions of state con- edy clauses. In the cases combining equal protection stitutions. In In re Certificate of Need for Aston Park, and due process, the result looks very much like a Inc.,59 the North Carolina court linked due process substantive due process test.49 In Benson v. North Da- analysis with the constitutional prohibitions against kota Workmen's Compensation Bureau:o the North monopolies and perpetuities; in Nelson v. fiusen,60 Dakota high court demanded a close correspondence due process was coupled with the open court provi- between statutory classification and legislative goals. sion of the Texas Constitution; and in Magna, Inc, v. In Henderson Clay Products, Inc. v. Edgar Woods and Catrania,61 due process was connected with the ex- Associates, Inc., the fusion of equal protection and plicit provisions rcgarding property rights found in due process is equally clear. The Court held that the the Alabama Constitution. Such uses of state due statute was an "unreasonable and arbitrary legislative process clauses to protect property rights find sup- classification. . . ."51 This fusion of equal protection port in the numerous and explicit references to prop- and due process results in an intermediate level of re- erty found in most state constitutions. view under the mantle of the more "respectable" There are some cases that do not rely on equal equal protection clause.52 protection or due process in any way. Most of these Equal protection was combined most frequently cases are based on right-to-remedy or open court pro- with the right-to-remedy clauses of state constitu- visions,62 while still others resort to contract tions. This combination almost always resulted in clausess3 or guarantees for workers' compensation having the remedy clauses being declared fundamen- for injury or dcath.e4 Finally, at least two states, Lou- tal rights, thus triggering strict scrutiny.53 Other com- isiana and New Jersey, have rejected not only the re- binations were also found. In Maryland State Board of sults of various U.S. Supreme Court decisions based Barber Examiners v. Kuhn,54 equal protection was on equal protection but also the federal multiple- combined with the right to pursue a lawful occupa- tier analysis itself. Both states have adopted what ap- tion as guaranteed by Article of the state's Decla- 23 pear to them to be more fluid and protective ap- ration of Rights. proaches.65 Due Process. Under the due process clauscs, State courts have resorted to a variety of combi- similar patterns emerged, though with vaguer stan- nations ol'stntc constitutional provisions and avariety dards. Although some decisions rcstcd on a rational of tests in rcvicwing lcgislation.66 This is not surpris- relationship test, most appear to have involved closer ing. States and their judiciaries are by law and history scrutiny than would be undertaken by federal independent and diverse entities. Moreover, given courts.55 Afew clung to an approach that gocs back to the generally discredited history of the protection of the 19th century. Georgia continues to rely on sub- economic rights, especially through the use of substantive due process of the Lochner variety. "The stantive due process, it is understandable that state right to contract . . . and agree on price is a property judges who believe that their constitution, and their right protected by the due process clause of our Con- position in the federal system, give them a role to play stitution, and unless it is a business affected with the in protecting economic rights, are groping for a sound public interest, the General Assembly is without any basis for this role. The search has involved plotting a

Advisory Commission on Intergovernmental Relations 87 course between the rigidities of Lochnerism and ab- It has been noted that early in the 19th century dication. state courts had construed their due process clauses Judge Michael Zimmerman of the Utah Su- so as to provide substantive protection to property preme Court provides clear evidence of this search. rights. Was there any justification for these states to In sustaining legislation against attacks based on due do so? Or putting the question a bit differently: if process or equal protection, he noted the long tradi- those who insist that there is no indication whatso- tion among state courts toward more careful scrutiny ever that the framers of the Fourteenth Amendment of legislative classifications underlying economic meant to provide for substantive due process, is that regulations. "We do not purport today to settle de- evidence conclusive insofar as the state due process finitively the question of the degree of congruence and law-of-the-land clauses are concerned? In the between the standard of review [required by state most recent work on the history of the due process provisions as opposed to federal equal protection] and law-of-the-land clauses, Frank Strong shows that but our past decisions . . . demonstrate that in the articles 39 and 52 of the Magna Carta were meant to area of economic regulations, the standard of scru- provide "a substantive ban on invasion of ancient tiny [under the relevant state provisions] will always rights of personal liberty and feudal pr~perty."~OIt meet or exceed that mandated by the Fourteenth was Edward Coke who successfully fused the law-of- Amendment. . . ."67 This cautious seeking for that the-land provision of the Magna Carta with due proc- delicate balance augurs well for the future of state ess of law and, in doing so, provided an historical basis constitutional protection of property rights. for a substantive content to the due process clause that would be handed down to the colonists in the State Courts and Economic Rights: New World. Strong shows that government-granted Constitutional Charge or monopolies and expropriation by public conversion Reactionary Residue? were regarded as denials of due process. Due process State supreme courts continue to rely on their was the-ancient enemy of monopoly, a shieldagainst due process, equal protection and, increasingly, their publicly granted monopolies but, at the same time, a right-to-remedy clauses to grant greater protection to sword bolstering state power to deal effectively with economic rights than would be forthcoming from the private mon~polies.~~ federal judiciary. All but three states have refused to Strong concludes his analysis of due process by follow the lead of the U.S. Supreme Court in its re- asserting that the inherited content of substantive jection of substantive due process and equal protec- due process embraces two core meanings: antiex- tion in the area of economic regulation.68 There is no propriation of property interest and antimonopoly in doubt about the continued solicitude for economic economic enterpri~e.~~He contends, therefore, that rights on the part of state supreme courts; however, the perversions of due process occurred, not with there are doubts about the justifications for that ac- reading into the clause a substantive content, but with Allegeyer v. Louisiana and Lochner v. New York. tivism. Seven arguments have been put forth in opposition to judicial activism in this area. Some apply only The substantive due process the Court now to the use of substantive due process, but most apply unanimously embraces was of an utterly dif- to any attempt by courts to scrutinize economic and ferent order from that espoused by Bradley social regulations, though there does seem to be lcss and Ficld. They had stood for opposition to opposition to the use of the equal protection and monopoly, a position with deep historical right-to-remedy clauses to protect economic rights. roots in Ihc Process increasingly articulated as espousal of freedom of trade. The essence Argument 1: of freedom ol' trade was the general right of The Distorted History Argument all to cngagc in the common callings free This view is based on a reading of the due process from constrictions or prohibitions on entry. clause as exclusively procedural. The claim is that In severing this right from its tie with anti- substantive due process had very little pre-Civil War monopoly the Court in one sentence cata- basis; substantive due process was essentially the in- pulted into an uncharted domain in which vention of the judiciary in its ideologically based de- substantive due process could become the termination to protect property interests. This posi- obstacle to endless instances of legal, eco- tion seemed so obvious to Leonard Levy that he could nomic and social reform.73 write, in introducing Walton Hamilton's famous article on the "Path of Due Process of Law," that what The reading of liberty of contract into the due the U.S. Supreme Court did was a "miraculous tran- process clausc was not consistent with the historic substantiation of process into substance and human meaning of substantive due process. The reaction of rights into vested rights. . . .The accomplishment was the U.S. Supreme Court and scholars to this perver- bizarre, haphazard, and ~nplanned."~g sion was to read out of the clause any substantive con-

88 Advisory Commission on Intergovernmental Relations tent, thus throwing the proverbial baby out with the Whatever remains viable in the distinction bath water. The notion of due process historically has between personal and property rights, it cannot, been not only a shield against arbitrary expropriation without additional arguments, determine that all and monopolies, but also a sword enabling the state property rights are less important than all personal to destroy or regulate private monopolies. Whether rights. We may want to say that some kinds of prop- or not this revisionist history provides sufficient rea- erty rights are less important than others, but it would son for the U.S. Supreme Court to re-enter the be difficult to sustain the position that all personal arena, it is certainly relevant to any argument about rights are more important than property rights, even the appropriateness of state supreme courts so doing. supposing we can make the distinction-a supposi- tion which is itself problematic. The intertwining of Argument 2: economic and personal considerations in the cases The Superior Importance of Personal Rights coming before state high courts is extensive enough to make this distinction of little value for judges de- The dichotomization of property versus personal rights, with the attendant elevation of the latter over ciding cases in this area. the former, though well entrenched in the literature Argument 3: and court doctrine, has not gone unchallenged. Lack of Textual Basis Judge Learned Hand once said: "Just why property it- Leonard I .cvy summarizes the textual basis argu- self was not a personal right nobody took time to ex- ment succinctly in responding to the arguments by plain. . . ."74 The consequencc ofthc prcmaturc, not Robcrl McCloskcy for protecting economic rights. to say immodest, embracing of this dichotomy has The problcm. rather, is that the Constitution been the creation of philosophical and practical diffi- quite explicitly protects religious liberty, but culties which have come to light after a half-century radiates Prom the vague contours of due of experience. Judge James Oakes of the Second Cir- process no visible protection to bartend- cuit noted one of these difficulties: ers-nor riverboat pilots, oculists, nor any If property rights are personal rights as the other occupation.79 procedural cases say they are [referring to To the extent there is force to this argument, it Goldberg v. Kelly, 397 U.S. 254 (1970); applies to the U.S. Constitution. The same argument Fuentes v. Shevin, 407 U.S. 67 (1972); and cannot be made with regard to state constitutions. In Matthews v. Eldridge, 424 U.S. 319 (1976)l addition to a due process clause found in almost every why should they not have substantive protec- state constitution, a majority of the state constitution like other personal rights?75 tions explicitly protect the "inalienable right of acquiring, possessing and protecting property."80 Some Recently, Leonard Levy questioned why the states explicitly grant the judiciary review power any right to a livelihood was not included in the right to time a taking for public purposes is an issue.8' The liberty and the pursuit of happiness.76 He challenged clauses in state constitutions concerning the protec- the dichotomy between personal and property rights tion of property are more numerous and more ex- as well as the adequacy of protection granted under plicit than in the U.S. Constitution. For example, the rational relationship test.77 Colorado's Constitution, in addition to the due proc- Beyond these philosophical objections, a num- ess clause, contains nine other provisions dealing ber of practical difficulties arise from this separation. with the protection of property in one form or an- In many of the areas in which state supreme courts other.82 By virtue of their quantity and explicitness, have been active, the distinction breaks down. In property rights under state constitutional law cannot some cases, privacy and autonomy concerns are inex- be placed in a subordinate position to personal rights, tricably interwoven with property rights. How a fam- at least not on textual grounds. ily or group wishes to use a dwelling involves the use of property as one sees fit as well as matters of per- Argument 4: sonal autonomy and privacy.78 Cases involving work- Conservation of Judicial Resources ers' compensation are matters that concern one's This argument is made most forcefully by Robert livelihood, safety, and future well being. In still other McCl0skey.~3The U.S. Supreme Court, he argues, areas, one set of property rights is pitted against an- has all it can do to handle the delicate and intractable other, as in the debate over limits on damages in problems involved in protecting and promoting po- medical malpractice suits. Why is it considered a litical and civil liberties. Since the Court cannot do property question deserving of more deference from everything, it best serves our constitutional order by the courts when a legislature singles out one profes- concentrating on the protection of personal rights. sional group for protection from liability and not oth- To the exlent that this argument has force, that ers, especially when the basis for the classification ap- force is attenuated if not completely dissipated in pears dubious? state constitutional history. Indeed, to the extent that

Advisory Commission on Intergovernmental Relations 89 it is accepted by the U.S. Supreme Court so as to es- to the constitutional traditions of the states. By con- chew any role in policing economic regulations, then stitutional choice, state voters have granted explicit to that extent a stronger case can be made for state ju- protection to property rights, recognized a right-to- diciaries to provide a forum in which redress may be remedy, and in many cases specifically empowered obtained. Levy, while rejecting any role for the U.S. the judiciary to exercise judicial review.88 The tradi- Supreme Court, suggests that "the remedy may prop- tion is one of limited government rather than major- erly lie with state courts and state constitutional ity rule.89 To argue the character of judicial review is law."84 to insist that one tradition be favored over the other or, alternatively, that these constituent choices are Argument 5: wrong ones.90 Lack of Judicial Competence Of course. none of these responses to the argu- This argument, applied to the fcdcral courts by a mcntsagainst jutliciiil activism are meant to be defini- number of scholars, has also been applicd to the stale tive rcfutalions. What they are meant to suggest is judiciaries. However, this transfcr is questionable. that the arguments against judicial activism apply State courts may well be in a better position to assess with less force whcn the arena is shifted from thefed- and judge local conditions and problems than is the era1 to the stalc judiciaries. U.S. Supreme Court. State court decisions do not encompass national issues or problems, and the scope Argument 7: of their decisionmakingis limited to individual states. Lack of Workable Standards for Review The Supreme Court of Pennsylvania put the argu- In spite of the fact that arguments noted above ment most effectively when it wrote: against judicial activism are attenuated at the state This difference [between federal and state level, there remains a final objection, namely, that constitutional law] represents a sound devel- the contours of the various state constitutional opment, one which takes into account the clauses in question are so undefined as to enable, and fact that state courts may be in a better posi- perhaps require, judges to read a particular economic tion to review local economic legislation philosophy into the clauses, one at variance with, but than the Supreme Court, since their prece- no more legitimate than, the one adopted by the leg- dents are not of national authority, may bet- islature.91 ter adapt their decisions to local economic A first response to this charge is to note that in conditions and needs. . . . And where an in- state constitutions many of the clauses protecting dustry is of basic importance to the economy property rights are as specific as the specific provi- of the state or territory, extraordinary regu- sions in the national Bill of Rights, and others are no lations may be necessary and proper.85 less vague than the most important clauses of the It may be that the U.S. Supreme Court ought not Fourteenth Amendment. This argument becomes to spend time on, and lacks the expertise to adjudge, even more strained in the face of the U.S. Supreme antiscalping ordinances in Indiana, but this cannot be Court's adoption of substantive due process to pro- said with the same degree of persuasiveness about tect personal rights. state courts. James Kirby, in addressing this issue, A corollary to this argument is that when state wrote: "State courts. . . do not appear to have thrust judges apply the more general or vague phrases of themselves into unmanageable situations. Review of their constitutions to protect economic rights, they an economic regulation may well be simpler than an have adopted more conservative social and economic theories, thus placing a stranglehold on attempts by apportionment case, a voting rights case, or a product the people to deal with their social and economic liability appeal."86 problems.92 However, there is evidence that when Argument 6: state courts resorted to substantive due process dur- Anti-Democratic Character of Judicial Review ing the Progressive era (1890-1910) to strike down economic reform legislation, no consistent phiIoso- One of the most serious objections to judicial ac- phy or theory governed the cases decided during that tivism is that it conflicts with the basic assumptions of pe,50d.93 ~~l~i~Urofsky'sstudy of state courts and a self-governing polity. This argument applies even p,otective legislation during this era concluded that more strongly when courts are dealing with Protect- "with few exceptions, state courts moved consistently ing economic rights rather than rights that involve the towards approval of a wide range of reform legisla- political process itself. Judicial activism involves tion. . . . Progressives, although occasionally delayed judges deeply and directly in the political Process, in court, were not blocked there."g4 State courts bal- and preempts larger and larger areas of policy from anced legal doctrines of contract and police power decision by the people or their elected representa- and, in most instances, deferred to legislative judg- tives.87 Federal judges are not elected, and they serve ment in policy matters.95 A study of more recent deci- for life. This argument must be recast whcn applicd sions in thc same area concluded: "On balance, most

90 Advisory Commission on Intergovernmental Relations of the economic legislation which state courts have 5State v. Harris 6 S.E.2d 854 (1940); Grempler v. Multiple invalidated during the past 25 years is arbitrary. . . ."Q6 Listing Bureau of Hartford Co., Inc., 226 A.D.2d 1 Judges should not be allowed to substitute per- (1970). sonal prejudice or their own economic philosophies 6For exarnplc, Gcorgia Constitution, 1877, Art. IV, 2; Texas Constitution, 1869, Art. I, 18; Wyoming Constitu- for that of the legislatures: the public ought to have tion, 1889, Art. I, 30. Frank R. Strong, Substantive Due the right to adopt economic and social policies Pmcessof Law: A 1)ichotomy of Sense and Nonsense (Dur- through their elected representatives. Ncvcrthclcss, ham: North Carolina Academic Press, 1986), pp. 69-70. the legislature is not the people, and the policies 7Richard F. Kahlc, Jr., ed., W7zy Hawaii? Constitutional adopted by legislators cannot be automatically Convention Stutlics, Vol. 2 (Honolulu: Legislative Ref- equated with the will of the people. In thc American erence Bureau, 1978): 53. tradition, the existence of a constitution means that BSee, for example, Mosher v. City of Boulder, Colorado 225 F. Supp. (1964): 32,35 (protection available for dam- courts are expected to protect the people from their ages under state constitutional "or damage" provision legislatures when those legislatures act in arbitrary which would not be available under federal law). ways. Some balance must be struck between the com- QSee,for example, A. E. Dick Howard, "State Courts and petingvalues involved. With the U.S. Supreme Court Constitutional Rights in the Day of the Burger Court," unable or unwilling to play any role, state courts need Virginia Law Review 62 (1976): 873; Bradley McGraw, to develop workable standards of review that will en- ed., Developments in State Constitutional Law (St. Paul: West Publishing Co., 1985); and the collection of articles able them to hold the competing interests in a crea- in "New Developments in State Constitutional Law," tive balance. There are a number of approaches or Publius: The Journal of Federalism 17 (Winter 1987). criteria that could provide the guidance to enable 'Osee Hans Iinde, "Due Process of Lawmaking," Nebraska state supreme courts to steer a course between the Law Review 55 (1976): 197,237. Helen Garfield, "Privacy Scylla of judicial abdication and the Charybdis of judi- Abortion and Judicial Review: Haunted by the Ghost of cial arrogance.97 Lochner," WashingtonLaw Review 61(1986): 293,300-02. James C. Kirby, Jr., relates the resistance he encoun- tered at the National Conference of Chief Justices at Conclusion Williamsburg, in his 1984 article "Expansive Judicial Re- view of Economic Regulations Under State Constitu- Although the problems and policy responses will tions," in Developments in State Constitutional Law, pp. 118-119. Herman Schwartz, "Property Rights and the change-from legislative attempts to hold railroads Constitution: Will the Ugly Duckling Become a Swan?" strictly liable in tort actions involving injury to live- The American UnivetsiQ Law Review 37 (Fall 1987): 9. stock to attempts to limit court remedies for victims "This view, generally accepted by commentators, is in of medical malpractice-the importance of having a need of correction. Mary Cornelia Porter, "That Com- judicial forum in which constitutional challenges can merce Shall 13e Free: A New Look at the Old Laissez Faire Court," in Philip Kurland, ed. The Suprune Court be heard is readily apparent. The tests to be used and Review 1976 (Chicago: University of Chicago Press, the extent of judicial activity are legitimate matters 1977), pp. 135-159, has begun that correction. for dispute; what is not disputable is the need for l2Lawrence Sager, "Property Rights and the Constitu- some judicial forum in which constitutional chal- tion," in J. Roland Pennock and John Chapman, eds., lenges can be heard. The U.S. Supreme Court's deci- Property NornosXYII (New York: New York University, sion to deny hearings on these questions provides 1980): p. 380. Perhaps with not so much finality, the Court has granted review in and sometimes struck down both opportunity and obligation for state courts to legislation on the grounds of the taking and contract play an important role in protecting economic rights clauses of the Constitution. See note 17. and, in doing so, to make a signal contribution to 13U.S. Trust Co. v. New Jersey, 431 US. 1,61(1977). [Em- American constitutionalism. phasis added] Brennan's own position represents the extreme of this deferential attitude. Thus he wrote: "any NOTES claim based on due process has no merit." Allied Struc- tural Steel Co. v. Spannaus, 438 U.S. 234,262 (1978). Note, "Right of Access to Civil Courts under State Con- 14Forty state constitutions contain the equivalent of the stitutional Law: An Impediment or Receptacle of Im- federal impairment of contract clause; nearly half con- portant Substantive and Procedural Rights?" Rutgets tain taking clauses. These taking clauses go beyond their Law Journal 13 (Winter 1982): 399. federal counterpart in that they require compensation 2Maryland Constitution, 1776, Art. 41 Declaration of not only when property is taken but also when it is "dam- Rights; Massachusetts Constitution, 1780, Pt. I, Art. IX; aged." Nearly all contain due process clauses or the Oklahoma Constitution, 1907, Art. IT, Scc. 6; Arizona equivalent. 1n addition, 37 state constitutions contain Constitution, 1910, Art. 11, Sec. 2. right-to-rcmctly clauses. For a convenient compilation of statc bills ol'riglits. sec Ronald Collins, "Bills and Dec- 3Pioneer Telephone and Telcgl-sph Co. v. Slate, 1.38 p. I;iralions ol' Kights 1)igcsts." in The American Bench. 3rd 1033 (OK 1914); Note "Right of Acccss," p. 436. ccl. ((lalifornia: 1t.13. ltoster and Assoc., 1985), 4For example, Maryland Constitution, 1776. Art. 42 Dcc- 2522-2533. laration of Rights; North Carolina Constitution, 1776. 15For a list of statcs doing so. sce, Note. "Balancing Private Art. I, Sec. 23; Arizona Constitution, Art. 11. Sccs. 9, 19; Ioss against I'uldic Gain to Test for a Violation of Due Oklahoma Constitution, 1907, Art. 11, Sec. 26. Process or a Taking without Just Compensation." Wash-

Advisory Commission on Intergovernmental Relations 91 ington Law Review 54 (1979): 324-327. Not all states have 28Sce, for example, First English Evangelical Lutheran merged their analysis. See Huttig v. City of Richmond Church of Glendale v. Los Angeles County, 107 S.Ct. Heights, 372 S.W.2d 833 (Mo. 1963); Rockville Fuel and 2378 (1987) (property owners must be compensated Feed Co. v. Gaithersburg, 291 A.2d 672 (Md. 1972);State when use of their land is restricted even temporarily). v. Vestal, 195 S.E.2d 297 (N.C. 1973); Agins v. City of 2gThe studies used are as follows: Monrad Paulsen, "The Tiburon, 598 P.2d 25 (Cal. 1979). Persistence of Substantive Due Process in the States," 'BNote, "Balancing Private Loss. . .," p. 327ff. Minnesota Law Review 34 (1950): 91; Note, "State Views on Economic Due Process: 1937-1953," CoZumbia Law l7The taking clause cases sustained are: Penn Central Review 53 (1953): 827; John A. Hoskins and David A. Transportation Co, et al. v. New York City et al., 438 U.S. Katz, "Substantive Due Process in the States Revisited," 104 (1978); Andrus v. Allard, 444 US. 51 (1979); Hawai- Ohio State Law Jorrn~al18(1957): 384; Robert Carpenter, ian Housing Authority v. Midkiff, 476 U.S. 229 (1984); "Economic Due Process and the State Courts," North- Connolly v. Pension Benefit Guarantee Corp., 106 S.Ct. west University Law Review 53 (1979): 226; Note, "State 1018 (1986); Federal Communications Commission v. Economic Substantive Due Process: A Proposed Ap- Florida Power Corporation, 107 S.Ct 1107 (1986); proach," Yale Law Journal 88 (1979): 1487; Note, Bowen v. Gilliard, 107 S.Ct 3008 (1987); U.S. v. "Counter Revolution in State Constitutional Law," Cherokee Nation of Oklahoma, 107 SCt. 1487 (1987); Stanford University Law Review 15 (1963): 309; James C. cases struck down: Kaiser Aetna v. US., 444 US. 164 Kirby, Jr., "Expansive Judicial Review of Economic (1979); Webb's Fabulous Pharmacies Inc. v. Beckwith, Regulation under State Constitutions," in Developments 449 U.S. 155 (1980); Loretto v. Teleprompter Manhattan in State Constitutional Law, pp. 94-145. CATV Corp., 458 U.S. 419 (1982); Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987); Hodel v. Ir- 30Generally, these articles exclude cases regarding public ving, 107 S.Ct. 2076 (1987); First English Evangelical Tu- utilities rates, the validity of state taxation, and zoning. I theran Church v. Los Angeles County, 107 S.Ct 2378 have followed this exclusionary policy to keep the added (1987). The contract clause cases sustained arc: Exxon cases consistent with those found in the studies. One ma- Corp. v. Eagerton, 462 U.S. 176 (1983); Encrgy Kcscrvc jor caveat: most ol' the rcsearch done on state courts and Group v. Kansas Power and Light Co., 459 US. 400 econon~icrcgul;hons has focused on the 1937-1987 pe- (1983); Keystone Bituminous Coal Association v. riod with a fcw (lone on the period between 1890-1910. DeBenedictis, 107 S.Ct 1272 (1987); cases struck down: The results prescnted in the charts probably under- Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 represent the activity which took place between 1910 and (1978); U.S. Trust Co. v. New Jersey, 438 U.S. l(1977). In 1937. However, the disproportionate number of cases af- some cases, two or three of the relevant clauses are inter 1937 also represents state court reaction to increasing volved. Keystone Bituminous Coal upheld legislation activity on the part of state legislatures, and the fact that against a taking and contract clause challenge. Pennellv. the Supreme Court generally refused to review or strike San Jose, 99 L.Ed.2d 75 (1988), upheld a rent control or- down social and economic legislation passed by the dinance against challenges based on the taking, contract, states after 1937. and due process clauses. 31 Bailey v. People, 60 N.E. 98 (Ill. 1901) is typical of a large number of cases. In Bailey, the Illinois Court struck 18In its initial appearance, substantive due process was as- down a statute that limited the number of people a lodg- sociated with protection of property rights against eco- ing housekeeper may sleep in one room while exempting nomic regulation. More recently it has been resurrected keepers of inns, hotels, and boarding houses from that to protect certain privacy interests and the right to abor- limit. The court reasoned on equal protection terms, and tion. Edward S. Corwin, "Due Process of Law before the the case clearly involves invidious or irrational classifica- Civil War," as reprinted in A.T. Mason and G. Garvey, tion questions, but the court struck the statute down on eds., American Constitutional History (New York: Harper substantive due process grounds, 99. Torchbooks, 1964); Benjamin Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme 32Philip B. Kurland, Politics, tlte Constitution and the War- Court (Princeton: Princeton University Press, 1942). ren Court (Chicago: University of Chicago Press, 1970), especially chapter 4, "Egalitarianism and the Warren 1913 N.Y. 378 (1856). Court," and Alexander Bickel, The Supreme Court and 20Liberty against Government (Baton Rouge: Louisiana the Idea of Progress (New York: Harper Torchbooks, State University Press, 1948), pp. 114-115. 1970), pp. 103ff. For a similar point in another context, see Peter Weston, "The Empty Idea of Equality," Har- 21See e.g. Taylor v. Porter, 4 Hill 140 (N.Y. 1843); In Re vard Law Review 95 (1982): 538. Dorsey, 7 Porter 293 (1883). 33Strong, Substantive Due Process of Law, pp. 14-25,47-67. 2298 N.Y. 98 (1885). 34The importance of these clauses has been recognized by 23Ibid., 106-107. commentators. See David Schuman, "Oregon's Remedy Guarantee," Oqon Law Review 65 (1986): 35; Com- 24 Bernard Siegan, Economic Liberties and the Constitution ment, "State Constitutions' Remedy Guarantee Provi- (Chicago: University of Chicago Press, 1980), pp. 58-59. sions Provide More than Mere 'Lip Service' to Render- 25Ibid., pp. 27-40 provides a history of this commitment. ing Justice," University of Toledo Law Review 16 (1985): 26Laurence Tribe, American Constitutional Law (New 585; Note, "Medical Malpractice Statute of Repose: An York: Foundation Press, 1978), pp. 421-455 provides a Unconstitutional Denial of Access to Courts," Nebmska summary overview; c.f. Siegan, pp. 110-155. Law Review 63 (1984): 150. 35Alvardo v. Industrial Comission of Arizona, 716 P.2d 18 27The view that the due process clause has only a proce- (Ariz. 1986). dural content is put forth in its boldest form by John Ely, Democracy and Distrust: A Theory of Judicial Review 36Henderson Clay Products Inc. v. Edgar Wood and Asso- (Cambridge: Harvard University Press, 1980), pp. 14-21, ciates Inc., 451 A.W 174 (N.H. 1982). and Hans Linde, "Due Process of Lawmaking." 37Mominee v. Shcrbarth 503 N.E.2d 717 (Ohio, 1986).

92 Advisory Commission on Intergovernmental Relations 38For example, Batton-Jackson Oil Co. Tnc. v. Rccvcs, 340 that test "a fair and substantial relationship to theobject S.E.2d 16 (Ga. 1986); Finocchiaro v. Nebraska 1,iquor of the legisl:rtion" (288). Control, 351 N.W.2d 701 (Ncb. 1984): San Antonio Kc- 'knson v. North Ilakota Workmen's Compensation Bu- tail Grocers v. Lafferty, 297 S.W.21 813 ('l'cx. 1057); rcau, 283 N.W.2cl (N.1). 1979); Carson v. Maurer, 424 Vaughan v. State Board of Embalmers ctc. 82 S.E.216 18 A.W 825 (N. I I. 1980); Tabler v. Wallace, 704 S.W.2d 179 (Va. 1954). (Ky. 1986). The 1J.S. Suprcme Court has developed three 390f the 33 states adopting gucst statutes, 11 repcalcd levels of scrutiny when applying the equal protection them; of the remaining 22,17 were declared unconstitu- clause. Strict scruliny has been applied to certain suspect tional by state high courts. For a list of state court deci- categories, such as race and national origin. Minimum sions sustaining a variety of enactments aimed at reliev- scrutiny requires that the legislation further a legitimate ing the medical malpractice crisis, see American Bank state interest and that there be a rational relationship be- and Trust Co. v. Community Hospital, 683 P.2d 670,677 tween the classification and its purpose. Means or mod- (Cal. 1984). erate scrutiny involves "almost suspect" categories such as sex. The level of scrutinv here is not as rieorous as the 40For an elaborate attempt to distinguish legitimate caps first tier but more deman&ng than the thi;d tier. For a on liability from unconstitutional ones, see former Chief clear elaboration of these terms in more depth see Justice Rose Bird's dissent in American Bank and Trust Andrea Bonnicksen, Civil Rights and Civil Liberties (Palo Co. v. Community Hospital, 683 P.2d 670, 687ff (Cal. Alto: Mayfield Publishing Co., 1982), pp. 150-165. 1985). 48704 S.W.2d 179, 186-187. 41 The cases are: Barme v. Wood, 689 P.2d 445 (Cal. 1984); 49Peter Weston, in "The Empty Idea of Equality. . .," ar- American Bank and Trust Co. v. Community Hospital, gues in a more theoretical vein that standards of review, 683 P.2d 670 (Cal. 1984); Fein v. Perminente Medical whether rational relationship or strict scrutiny, have Group, 695 P.2d 665 (Cal. 1985); Roa v. Lodi Medical meaning not by virtue of any equality component but Group, Inc., 695 P.2d 164 (Cal. 1985). "because the state is obliged to have rational and legiti- @Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585 mate reasons for every way in which it treats people. (Ind. 1980). The court in rejecting challenges based on Whatever merit rationality review has must ultimately due process, equal protection, open court, and trial by derive not from notions of equality but from notions of jury provisions claimed to be applying a "fair and sub- substantive due process," p. 577. stantial relationship" test, yet simultaneously claimed 50283 N.W.2d 96,99. that "considerable deference is to be accorded to the leg- 5' 451 A.2d 174, 175 (N.H. 1982). islature" and that the burden of proof of unconstitution- 520ther examples of this fusion are: Arneson v. Olson, 270 ality is on the "attacker" of the law, 591, 600. It is not N.W.2d 125 (N.D. 1978); Jones v. State Board of Medi- clear whether the two are compatible, but the case illus- cine, 555 P.W 399 (Idaho, 1976); Gutierrez v. Glaser trates the variety of combinations of tests and standards Crandall Co., 202 N.W.2d 786 (Mich. 1972). found in state court decisions in this area. 53Cases applying strict scrutiny include: Kluger v. White, 43Example~of legislation struck down on rational relation- 281 S.2d 1 (Ha. 1973); Dangaard v. Baltic Cooperative ship test are: Dunbar v. Hoffman, 468 P.2d 742 (Colo. Supply Association, 349 N.W.2d 419 (S.D. 1984); White 1970); Kinney v. Kaiser Aluminum and Chemical Cop, v. State, 661 P.2d 1272(Mont. 1983); Kenyon v. Hammer, 322 N.E.2d 880 (Ohio, 1975); Cotrill v. Cotrill Sodding 688 P.2d 961 (Ariz. 1984). Cases not involving strict scru- Service, 744 P.2d 895 (Mont. 1987). The two cases with tiny include: Hansen v. Williams County, 389 N.W.2d different standards are Sibley v. Board of Supervisors, 319 (N.D. 1986), wherein the court wrote, "Right to re- 477 S.2d 1094 (La. 1985); and Greenberg v. Kimmelman, cover for personal injuries is an important substantive 494 A.2d 294 (N.J. 1985). Some states, e.g., New York, right. . . triggering an intermediate scrutiny" (325). did not register any significant activity. Two reasons: 54312 A.2d 216 (Md. 1973). states like New York have adopted a more deferential standard of review when social and economic regula- 55For example, Application of Martin, 504 P.2d 14 (Nev. tions are involved; the New York legislature has not 1972). been active in limiting liability for special groups such as 56Batton-Jackson Oil Co. Inc. v. Reeves, 340 S.E.2d 16,18 physicians or with regard to product liability. The case of (Ga. 1986). Colton v. Riccobono, 496 N.E.2d 670 (N.Y. 1986) is illus- 57Strickland v. Ports Petroleum Co. Inc., 353 S.E.2d 17,18 trative. The Court of Appeals upheld a requirement that (Ga. 1987). a medical malpractice panel hear, evaluate, and recom- s8351 N.W.2d 701, 704 (Neb. 1984). See also, Maryland mend on the question of liability. In the teeth of aright- Board of Pharmacyv. Sav-A-Lot, Inc., 311A.U 242(Md. to-remedy provision (Art. I, Sec. 16), the court sustained 1973); Treants Enterprises v. Onslow County, 360 S.E.2d the statute because the legislation bore a rational relationship to the need to provide quality health care, and 783 (N.C. 1987); People ex. rel. Oreutt v. Instantwhip the plaintiff did have other remeclics. Denver, Tnc., 490 P.2d 940 (Colo. 1971). Legislation struckclown in Orcult was similar to that sustained by the 44 699 S. W.2d 194 (Tex. 1985) Suprcmc Court in U.S. v. Carolene Products Co., 304 45Silver v. Silver, 280 U.S. 117 (1929); Carlcr v. Har- U.S. 144 (1938). tenstein, 401 US. 901 (1970) (cert. dcnied). 59 193 S.E.W 729 (N.C. 1973). 46502 P.2d 1197 (Wash. 1972). A Ncw York Appcllatc 60678 S.W.21 9 18 ('l'ex. 1984). Court had no difficulty sustaining similar Icgislation. 61 512 S.2d 9 12 (Ah. 1987). United Medical Services, Inc. v. Holz, 4 App. Div. 2d 62These inclutlc S:u v. Votteler, 648 S.W.2d 661 (Tex. 1017 (N.Y. 1957). In some cases, as in Shibuya v. Archi- 1983); Jackson v. Mannesmann Damage Corp., 435 S.2d tects Hawaii Ltd., 647 P.2d 276 (Ha. 1982), state courts 725 (Ala. 1983); Barrio v. San Manuel Division Hospitals have used a rational relationship test but required under Magma Copper, 692 P.2d 280 (Ariz. 1984); Strahler v. St.

Advisory Commission on Intergovernmental Relations 93 Luke's Hospital, 706 S.W.2d 7 (Mo. 1986); Hardy v. Ver- they were not a family voided); Lopez v. Fitzgerald, 390 Meulan, 512 N.E.2d 626 (Ohio, 1987). N.E.2d 835 (Ill. 1979) (right to privacy prevented disclo- 63Akers v. Baldwin, 736 S.W.2d 294 (Ky. 1987). sure of building inspector's reports to tenant groups concerned with their dwellings); Mountain States etc. v. De- 64Alvaradi v. Industrial Commission of Arizona, 716 P.2d partment of Public Service Regulations, 634 P.2d 181 18 (Ariz. 1986). A fair number of the cases examined are (Mont. 1981) (right to privacy protects corporate utility based on more than two constitutional provisions. In from revealing confidential trade records). Cf. The Su- Wright v. Central DuPage Hospital Association, 347 preme Court's uncomfortableness with the dichotomy N.E.2d 736 (Ill. 1976), and Health v. Sears Roebuck, between privacy and property rights in Moore v. City of Inc., 464 A.2d 288 (N.H. 1983) equal protection, due East Cleveland, 431 U.S. 494 (1977). For discussion of process, and right-to-remedy clauses were involved. In these "hybrid" privacy/autonomy property cases, see Georgia Franchise Practices Commission v. Massey Fer- Susan Fino, "Remnants of the Past: Economic Due guson, Inc., 262 S.E.2d 106 (Ga. 1979), the statute in Process in the States," in Stanley Friedelbaum, ed., Hu- question was found to contravene four separate provi- man Rights in the States (Westport: Greenwood Press, sions of the Georgia Constitution. 19881 145-162. 65See Sibley v. Board of Supervisors of Louisiana State 79Levy,Anierican Coristitutiotial Law, p. 157. University, 477 S.2d 1094 (La. 1985); Greenberg v. Kim- soColorado Constitution 11. 3. See also Alabama I, 35; melman, 494 A.2d 294 (N.J. 1985). Alaska I, 1; Arkansas II,22; Idaho I, 1; Illinois I, 1; Iowa I, 661t should be noted that in a large majority of the cases 1; Louisiana I, 4; Massachusetts I, 1; Missouri I, 2; Mon- under examination, state and federal constitutional pro- tana I, 3; Nebraska I, 1; Nevada I, 1; North Dakota I, 1; visions are cited as the basis for the decision. This means New Hampshire Part I, Art. 2; New Jersey I, para. 1; New that these cases in all likelihood would not meet the Mexico II,4; North Carolina I, 1; Ohio I, 1; Oklahoma 11, "plain statement" requirement of Michigan v. Long, 473 2; Pennsylvania I, 1; South Dakota VI, 1; Utah I, 1; Ver- U.S. 1032 (1983). In that case, the Supreme Court re- mont Ch. I, Art. 1; Virginia I, 1; West Virginia II1,l; Cali- quired state courts wishing to base their decisions on fornia I, 1. state law, thus insulating them from federal review, to For example, Arizona 11, 17; Mississippi, Art. 111, 17. At make aplain statement to the effect. This failure was due least half of the states add to their just compensation in large part to the lack of any clear-cut standard from clauses for property "taken," the phrase "or damaged," the Supreme Court for insulating decisions from review. e.g., Nebraska I, 21; Hawaii I, 20; Missouri I, 26; Texas I, Although Michigan v. Long provided such a standard, 27; Virginia I, 11. Finally, 34 states have right-to-remedy state courts are only gradually developing an awareness or open court clauses which generally read like the Idaho of this requirement. The significance of these decisions constitutional provision: "courts of justice shall be open is not diminished by this failure, as the Supreme Court to every person and a speedy remedy afforded for every turns down petitions for review of these cases nearly all injury of person, property or character." I, 18. of the time. 82Colorado Constitution 11, 3, 6, 7, 9, 11, 13, 14, 15, 27. 67Mountain Fuel Supply Co. v. Salt Lake City Corpora- tion, P.2d (Utah, 1988). Slip opinion, p. 9. 83R~bertMcCloskey, "Economic Due Process and the Su- preme Court: An Exhumation and Reburial," in Levy, 68See Note, "State Views on Economic Due Process," p. American CoristilrttiorialLaw, pp. 185-187. A variation on 827; Kirby reports that 35 states have specifically refused this argument is found in Jesse Choper, Jrrdicial Review to follow the lead of the Supreme Court. "Judicial Re- and the National Political Process: A Frrrictional Recorisid- view of Economic Regulations," pp. 109, 122. eration of the Role of the Slipreme Court (Chicago: Univer- 69Leonard Levy, ed., American Constitutional Law Histori- sity of Chicago Press, 1980). cal Essays (New York: Harper Torchbooks, 1966), pp. 84Levy, American Constitutional Law,p. 157. 129. Cf. Mary Cornelia Porter, "That Commerce Shall 85Pennsylvania State Board of Pharmacy v. Pastor, 272 Be Free," pp. 135-159. A.2d 487 (Pa. 1971), 300. 70Strong, Substantive Due Process of Law, p. 7. EeKirby, "Expansive Judicial Review," p. 120. 71 Ibid., p. 14. 87For statement of the antidemocratic character of the ju- 72Ibid., p. 72. diciary, especially in the area of economic rights, see 73Ibid., p. 91. Paulsen, "The I'cnistence of Substantive Due Process," p. 118; Hoskins and Katz, "Substantive Due Process in 74Learned Hand, "Chief Justice Stonc's Conception of thc the Statcs Kcvisitcd," pp. 400-401. Judicial Function," Colurnbia Law Review 46 (1946): 696, 698. William Blackstone considered property rights as 88These three combine to weaken any argument against among the most important of the civil liberties possesscd an activist rolc for the court based on the separation of by individuals. Commentaries on the Laws ofEngland I1 powers. (Chicago: University of Chicago Press, 1979; orig. pub- 89There is a majoritarian tradition in the states. It is most lished 1765-1769), p. 2. readily apparent in their willingness to change their fundamental law and the majoritarian character of many of 75James L. Oakes, " 'Property Rights' in Constitutional Analysis Today," Wmhington Law Review 56 (1981): 583, the procedures for revising those documents. Between 622. 1970 and 1979, states adopted a total of 976 amendments to their constitutions. Note, "Developments in the 76Leonard Levy, "Property as a Human Right," Constitu- Law. . . ," p. 1354. n. 106. Seventeen states even allow tional Commentary 5 (Winter 1988): 169. amendments by initiative. David Magleby, Direct Legis- 771bid., pp. 171, 184. lation: Voting on Ballot Propositions in the United States 78For example, Charter Township of Deltav. Dinolfo, 251 (Baltimore: Johns Hopkins Press, 1984). p. 36. N.W.2d 831 (Mich., 1984) (ordinance preventing com- 901t has been suggcsted that judicial review at the state munitarian Christians from living in dwelling because level might play the role of safeguarding the interests of

94 Advisory Commission on Intergovernmental Relations majorities, i.e., majoritarian review, and that state courts suggests a similar pattern at the national level, "That are applying such review in the area of economic regula- Commerce Shall Be Free," pp. 141-143. tion without providing this justification. Note, "Develop- g51bid., p. 91. ments in the Law. . .," pp. 1498-1502. This novel sugges- gWote, "Counter Revolution," p. 330. See also Heather- tion only underscores the need to examine and evaluate ington, "State Economic Regulation," pp. 250-251; and the tradition of state constitutionalism on its own terms. Note, "State Economic Substantive Due Process," p. glPaulsen, "The Persistence of Due Process," p. 117; 1510. Schwartz, "Property Rights and the Constitution," pp. 97Among those who have proposed standards that may 36-38. serve as guidance for the judiciary are: Siegan, Economic Liberties and the Co~istitution,pp. 322-331; Gerald Gun- g2 Ibid. ther, "The Supreme Court 1971 Term, Foreword: In 93Lawrence Friedman, "Freedom of Contract and Occu- Search of Evolving Doctrine on a Changing Court: A pational Licensing 1890-1910: A Legal and Social Model for a Newer Equal Protection," Haward Law Re- Study," California Law Review 53 (1965): 487,525. view 86 (1972): 1, 20 ff.; Note, "State Substantive Eco- nomic Due Process: A Proposed Approach," pp. 94Melvin Urofsky, "State Courts and Protective Legisla- 1504-1510; Strong, Srrbstantive Due Pmcess of Law, pp. tive during the Progressive Era: A Reevaluation," Jortr- 79-80, 94, 205-2117, 297-299; Kirby, "Judicial Review of nal of American Histoy 72 (1985): 63, 64. Mary Porter Economic Relations," pp. 118-122.

Advisory Commission on Intergovernmental Relations 95 96 Advisory Commission on Intergovernmental Relations State Supreme courts and Workers' Compensation: Change and the Diffusion of New Ideas

As preceding chapters demonstrate, the dcvcl- fancy. State courts bear a large responsibility for its opment of an independent state constitutional law, in continued growth, and an understanding of what particular the protection of individual rights and lib makes thcsc instiltitions respond to change is essen- erties, sometimes depends on the willingness of tial for those who would persuade courts to take the courts to resuscitate guarantees that have lain dor- fundamental charlers of their states seriously. mant for long periods of time. If courts are to look toward fundamental state charters, they must, for the Workers' Compensation: most part, be prodded by counsel. This, of course, de- Problems and Proposals for Change pends on counsel's awareness that state constitutions Almost two decades ago, Congress, pursuant to contain protections that are not in the federal Consti- the passage of the Occupational Safety and Health tution, and that may serve client interests and/or may Act (OSHA), established a National Commission on help attain desired policy objectives. State guaran- State Workmen's Compensation Laws. The commis- tees for a quality education, clean air and water, pri- sion was mandated to conduct an examination of the vacy, equality of the sexes, and access to courts are il- workers' compensation systems of the 50 states and lustrative. Further, as the preceding chapters make recommendations for change. It was the view of indicate, when individual state courts explicate and the Congress that serious questions had been raised vitalize state constitutions, they often provide prece- concerning the fairness and adequacy of workmen's dent, guidance, and encouragement for courts in sis- compensation laws. Many of the problems could be ter states. traced to the growth of the economy, the changing This chapter, focusing on the intentional tort ex- nature of the labor force, increases in medical knowl- ception to the exclusive remedy requirement of work- edge, changes in the hazards associated with various ers' compensation statutes, examines the manner in types of employment, new technologies creating new which a particular doctrinal change has been adopted risks to health and safety, and increases in the general and dispersed, and speculates about the reasons for level of wages and the cost of living.' its initial acceptance. Since the intentional tort ex- In 1972, the commission issued a wide-ranging ception has been adopted by only a few, but widely report consisting of 84 recommendations that cov- varying kinds of state supreme courts, an in-depth ered the appropriate scope of the compensation sys- look at the characteristics of these courts is possible. tem, and the system's medical care, rehabilitation, The growth of the intentional tort exception demon- safety, and effective delivery objectives. In all of strates that judicial creativity and eagerness to re- these areas, the commission concluded that "state spond to what is regarded in some quarters as a major workmen's compensation laws in general are inade- social problem depends on a variety of idiosyncratic quate and inequitable."Z Although the commission factors. Thus, as we look toward state courts to de- duly noted the efforts made by some states to im- velop state law, we should ask what impels a court to- prove compensation systems, it had few illusions ward assuming a leadership role, and what causes about the possibilities for change. Legislatures are other courts to follow, to lag behind, or to be indiffer- not only bewildered by the system's complexities and ent to change. The development of state constitu- the array of proposals for change but also are well tional law, however widely heralded, is still in its in- aware that other issues command more interest and

Advisory Commission on Intergovernmental Relations 97 demand more attention. Interest groups represent- tion of risk, contributory negligence, and the fellow ing employers, unions, and insurance companies servant rule-either denied recovery to the vast ma- have exercised effective vetoes over many proposals jority of injured workers who brought suits, or ap- for change. Business and industry have raised the proved awards so small as to be virtually worthless.9 specter of large-scale departures from states that, While the judiciary, it has been asserted, was mo- from employer perspectives, provide "excessive" em- tivated by a desire to keep down employer costs, ployee benefits and protections. Taken together, thereby fostering industrial development, some "deficiencies in workmen's compensation in many courts provided legislatures with an impetus for re- states result from lack of leadership, undcrstanding, form. Employer defenses, Wisconsin's chief justice and interest."3 Indeed, following a spatc of activity noted, wcrc "archaic and unfitted to modern indus- engendered by the report, proposals for changcs in trial conditions," a sentiment that reflected growing state compensation systems were rclegatcd to the national consensus. Furthermore, once employers back burner. In response to the report, no doubt, and understood that a scheduled compensation system to state legislative inertia, a National Workers' Com- would not only reduce the financial uncertainties sur- pensation Act was introduced in Congress. Although rounding the common law system but also mitigate not enacted into law, the possibility of federal action, labor unrest, resistance to reform ceased.10 either as supplementary to or in lieu of state law, can- Workers' compensation statutes vary from state not be dismissed as a possibility.4 to state, but all share similar objectives and charac- Of particular concern, and an objective of the teristics. The expenses arising from industrial acci- workers' compensation system, is the protection of dents are borne by insured employers who calculate workers' health and safety.5 However, as the system them into production costs that are then passed on to developed, it was charged that some employers found the consumer. ("The cost of the product should bear it more economical to compensate for employee acci- the blood of the workman."ll) The question of the dents and deaths than to provide safety measures. As employer's negligence or lack thereof is irrelevant. Representative Philip Burton noted when OSHA Equally irrelevant is the employee's responsibility for was debated in the U.S. House of Representatives: his or her injury. Automatic entitlement to and the With today's low level of workmen's com- assumption of liability for the payment of benefits pensation, preventive measures for better carry with them the forfeiture of rights-the employ- health and safety are often the employer's ees' to sue at common law and the employer's to as- most expensive and uneconomic choice. To- sert common law defenses. It is on this compromise, day's workmen's compensation laws. . .offer this quid pro quo, that the workers' compensation an economic incentive to many corporations system is based. to forbear from preventive expenditures be- Workers' compensation laws and their admini- cause they have concluded that the cost of stration, while preferable to common law recovery employee death and injury (potentially practices, are often regarded by employees as some- higher Workmen's Compensation Health what less than satisfactory. Complaints typically fo- Insurance Premiums, etc. . .) are often less cus on low compensation rates, underestimates of de- than the costs of accident prevention.6 grees of impairment, delayed payments, and failure to recompense at all. In addition, and most signifi- While federal and state legislation have been de- cant, the lowering or removal of many of the tradi- signed to protect worker health and safety, thus over- tional barriers to recovery for a wide variety of inju- coming this particular shortcoming of the state work- ries have highlighted the great difference between er's compensation systems, enforcement, due to jury determined awards and workers' compensa- personnel shortages, has been inadequate.7 An alter- tion benefits. For example, about one-half of all native means of reaching the goal has been thein- product liability suits are based on work-related inju- stitution of suits by injured employees against em- ries. As a result, workers are now turning to the com- ployers who fail to maintain a safe workplace. mon law to circumvent the limitations of statutorvl administrative compensation systems.12 Workers' Compensation and the Courts: Among the judicial responses to employee com- An Overview pensation problems have been rulings carving out ex- The nation's first workers' compensation statute, ceptions to the exclusivity rule that allowed workers enacted in 1910 by the New York legislature, was al- to recover more from their employers than the most immediately invalidated on constitutional statutorily prescribed benefits. Commonly employed grounds by the state's highest court.8 The judicial re- exceptions have been the dual capacity and dual in- sponse was not surprising. With the onset of the In- jury doctrines, considered by some commentators as dustrial Revolution, American courts, promulgating adjuncts to or surrogates for the intentional tort ex- the "unholy trinity" of employer dcfcnscs-assump- ception. Thus. injurcd employees have been allowed

98 Advisory Commission on Intergovernmental Relations to sue an employer if the employer acts in some ca- lated the state constitutional guarantee of right to re- pacity that is additional to the employer-employee dress. As an Alabama Justice explained: relationship, and may recover for a second injury that The amended language [of the statute] de- is independent of the original, work-related injury. nies a job-rclalcd injured employee the right While the exceptions are understood, thcy have ly no to sue his negligent co-employee and for this means been accepted in all jurisdictions.13 he gains thc right to negligently inflict an on- In creating exceptions to the exclusivity require- the-job injury to his fellow employee without ments, courts have engaged in statutory intcrpreta- risk of suit.17 tion, and have exercised their common law function. To date, exclusivity requirements that have immu- Two years later, in Fireman's Fund American In- nized employers from suit have not been challenged surance Co., the court extended Grantham to invali- on state constitutional grounds. However, in one date the legislative grant of immunity to supervisory state, Alabama, other immunity provisions of work- employees, corporate officers, and workers' compen- ers' compensation statutes were invalidated on the sation carriers. Here, severe and extensive burns sus- basis of a state constitutional guarantee. This sug- tained by the workers were due to the failure of the gests a potential use for state constitutions, and, spe- employer to provide for proper safety measures, to cifically, the Alabama high court has thereby sug- warn of dangerous working conditions, and to inspect gested another approach for plaintiffs' lawyers the premises. As summarized by the court: seeking favorable judgments for their clients in work- The workmen testify that they were fur- ers' compensation disputes. nished with materials that they were to use by their superiors and they had to work with The Exclusivity Requirement those materials and in that dangerous envi- and State Constitutional Law ronment or quit work. If they refused to apply the scuff bands and screws in the demon- Constitutional challenges to the exclusivity re- strated fashion, they could have been fired quirement are rare and are even more rarely sus- for insubordination. There was dispute tained.14 The basis for these suits has been the right whether or not the federally required sign of access to courts provisions contained in most state indicating that employees could refuse to constitutions, but not in the federal Constitution. work with anything they felt would endanger Section 13 of the first article of the Alabama Consti- them was posted before the fire.18 tution is typical, providing in part, that "Every person, for any injury done him in his lands, goods, per- The employee injuries were, of course, compen- son, or reputation shall have a remedy by due process sable. However, the majority of the court argued that of law." For many years in Alabama and elsewhere, this did not absolve the tortfeasors who failed to carry these right-to-remedy clauses were invoked, but out their prescribed andlor voluntarily assumed re- without much success. However, in the past 20 sponsibilities. years, as their potential has been recognized, suc- Only where the employer, except for em- cessful challenges to long-standing and arguably out- ployer immunity, owes a duty of due care, moded statutes have been mounted, and methodolo- the breach of which causes injury, and this gies for principled constitutional interpretation have duty is delegated by the employer to the co- been advocated.15 The Alabama high court is among employee defendant, or voluntarily assumed those that have devoted considerable time and en- by him and the defendant breaches this duty ergy to reconciling the provisions of the constitution's through personal fault, can liability be im- open court provision with the legislature's un- posed. . . . As in any negligence claim, the doubted right, in keeping with valid public policy ob- breach consists in the defendant's duty to jectives, to immunize certain groups andlor individu- discharge the delegated or assumed obliga- als from suit.16 tion with the degree of care required of a When the Alabama legislature amended the person of ordinary prudence under the same state workers' compensation law to immunizeco- or similar circumstances.~~ employees from suit, the plaintiff's bar determined that the time was ripe to make some practical use of A concurring justice, troubled by the implica- Section 13. In Grantham v. Denke (1978). thc court tions of the case as it pertained to precedent, consti- agreed with the plaintiff's argument that while the tutional explication, and legislativeljudicial relations, employer's immunity was an exchange for his as- summarized her vicw of the ultimate role of Section sumption of liability, there was no such voluntary ac- 13 in our system of government. commodation among co-employees. Put differently, It docs not nicrcly prohibit the legislature deprivation of a common law right to sue for injury from abolishing already accrued rights of ac- without the provision of an alternative recourse vio- tion, nor does it immutably enshrine the

Advisory Commission on Intergovernmental Relations 99 common law beyond the reach of legislative streamlined rulcs of procedure, and the election of attempts to adapt it to our evolving society (currently U.S. Senator) Howell Heflin, who led the and economy. It does prohibit governmental reform movement, to the chief justiceship. Within action which is arbitrary and capricious, only a few years, the court's personnel all but totally while allowing the legislature much latitude changed, the docket became current, and a "new" in drafting laws. But most importantly, it sets court consciously assumed an unprecedented role up a dual system of review which acts as a within the state. cautionary brake when change in the com- The Alabama experience indicates that a variety mon law is contemplated. In effect, Section of factors may explain a court's assumption of an ac- 13 says that the rights enjoyed by individuals tivist stance regarding the state constitution. Simi- at the common law are of such fundamental larly, a variety of factors may explain, in a general importance in our legal systems, that they sense, state high court assertiveness in making public must be changed, if at all, only after careful policy and, specifically, state court intervention in consideration by both legislatures and workers' compensation systems. courts.20 State Supreme Court Policymaking In the broadest terms, Fireman's Fund establishes State supreme courts historically have played a the principles that a state constitution may be of- significant policymaking role within their respective fended by a workers' compensation system that bars states. To the extent that their rulings provide prece- suits for the sort of negligence that, under the com- dent for other state courts as well as federal courts, mon law, constitutes tortious behavior. Further, the decisions of individual courts have national import. In case suggests that open court provisions of state con- some respects, state high court policymaking has stitutions, and by implication due process guarantees, been in response to major and often controversial may provide grounds for suits against employers who problems that the other branches of state govern- knowingly harm employees, the quid pro quo of the ment have failed to address, such as inequitable compensation system notwithstanding. Finally, al- methods of financing public schools, restrictive zon- though the issue was not before the court, Alabama's ing, and the rights of patients to make decisions about compensation benefits are "meager not only when the continuation of life-support systems. In most re- compared to civil verdicts, but even when compared spects, however, judicial policymaking has been di- to Workmen's Compensation Laws." Thus the court, rected toward more routine though equally salient albeit indirectly, addressed what is regarded as one of matters, such as the application of automobile guest the major problems of the compensation system, and statutes, fair trade laws, tenantllandlord relations, aided, as have other courts, employee attempts "to and criminal and family law. circumvent the statutory scheme and bring their It is in developing the common law, however, claims in tort.'Q1 that state supreme courts make particularly impor- The Alabama high court's rulings in Grantham tant contributions to state and national public policy. and Fireman's Fund were criticized on the grounds Abrogation of the doctrines of sovereign, charitable that they constituted piecemeal tinkering with a com- and spousal immunity, and the development of such prehensive legislative scheme, that they created doctrines as product liability and comparative negli- more problems than they purported to solve, that gence that provide greater consumer protection, are they violated precedent and precepts of judicial def- indicative of judicial willingness to abandon out- erence to the legislative branches in matters of estab- moded precedent and to anticipate legislative initia- lishing public policy, and that the majority had en- tives. gaged in unwarranted judicial activism. Similar Common law doctrines initiated in one state will charges have been directed to state and lcdcral almost ccrtainly, in time, be adopted by courts in courts for many years in a variety of contexts. How- other states. The pace of adoption, however, has ever, it has been only recently that the Alabama Su- been uneven. Ikpending on particular historical preme Court has been visible enough to draw fire. eras, some courts lead, some follow willingly, and Fifteen years earlier, the court would not have been others follow with some hesitancy or reluctance. so bold. The court's reputation was one of conserva- Other state courts will, for periods of time, either ig- tism in the common law, of extreme deference to the nore or reject changes taking place elsewhere. Some political branches of government, and with a docket courts may welcome change in particular areas of tort badly in arrears. law, but not in others. Some restraintist courts may Beginning in the 1970s, however, the court un- become activist and vice versa. However, while some derwent a dramatic transformation. A hard fought courts either resist change or have had few occasions battle for judicial reform culminated in the institu- to address the new legal developments, no state has tion of a modem, and model, state court system, been immune from the "tort law revolution" that

100 Advisory Commission on Intergovernmental Relations commenced after the Second World War and contin- perhaps to lead the charge, but unwilling to bring up ues unabated to this day.22 the rear. Exactly what factors motivate individual courts to Taken together, the studies paint a picture of the adopt plaintiff-oriented claims, to follow decisional many-faceted and shifting leadership roles of state trends established in other jurisdictions, or to hold, in supreme courts. Other studies and surveys, such as the classically restraintist manner, that change those directed to the development of "the new judi- should emanate from legislatures rather than courts, cial federalism," are similarly instr~ctive.~~Only a is not clear. However, recent scholarship provides handful of judiciaries, designated as "lighthouse" some clues as to why state high courts may look to the high courts, have rather consistently relied on state rulings of other courts in reaching a decision. constitutions in order to extend greater protections Peter Harris, for example, concluded that state to civil rights and liberties than those guaranteed by high courts typically look beyond their borders when the post-Warren Court's interpretation of the fed- confronting novel legal problems or when contem- eral Constitution. Others have been activist in some plating legal change. However, in attempting to ac- areas, but not in others. Most continue to defer to fedcral preccdcnt on most questions. count for the directions in which a state supreme In sum, whilc state supreme courts that have ex- court looks, and why, Harris could discover no major ercised influence and/or have been deemed prestig- patterns of intercourt citation.Z3 ious have bcen identified, leadership by particular Providing a complementary perspective, Greg- state high courts is not a constant. It changes accord- ory Caldeira's research reveals that the most fre- ing to a variety of factors. Activism in one area, such quently cited courts shared various characteristics, as the law of torts, does not necessarily translate into such as reputations for professionalism, the size of activism in another area, such as the development of their caseloads, and the societal diversity of their state civil liberties. Indeed, variations exist within states. As pertains to the adoption of tort law innova- particular areas. The New Jersey high court's con- tions initiated elsewhere, Caldeira's observation that cern for privacy rights and its interest in effecting in- judges "cited most often in most jurisdictions have a stitutional change, for example, is not matched by a decidedly liberal cast" is useful. Nor is this surprising, concomitant concern for defendants' rights. The Wis- because the more liberal courts "demonstrated a will- consin Supreme Court, while willing to reverse its ingness to move away from the status quo. Announc- own past tort dccisions, has been unwilling to accept ing a change in precedent naturally causes more com- several innovative doctrines initiated elsewhere. Fi- ment and controversy than does a confirmation of nally, activism and/or the assumption of a leadership past practice^."^^ role in one or more areas of the law does not appar- Caldeira and other political scientists, Lawrence ently enhance a court's reputation among courts in Baum and Bradley Canon, have, in separate studies, other states or coincide with assumptions about the identified courts that enjoy the most prestigious roles and function of different state courts. As Canon reputations and have categorized courts according to and Baum notcd in relation to their ranking of inno- the parts they played in initialing and adopling vative tort law courts: changes in the law of torts, and havc sough1 to discover overall national patterns for the adoption of It is not surprising that states such as Minne- sota and ('alifornia rank high, because they plaintiff-oriented innovations.25 The third study re- have reputations for progressivism and in- vealed that the adoption of tort law innovations fol- novativcncss. . . . But the rankings of many lowed no consistent patterns. Although some courts states do not comport very well with conven- were generally more innovative than others, no single tional wisdom about innovativeness-either court or set of courts either claimed national leader- in general or as it relates to judicial doc- ship in all tort law reforms or invariably lagged be- trines. It is almost shocking to see Texas, hind. Canon and Baum concluded that because of the Kentucky and Louisiana among the top ten reactive position of the judiciary (as contrasted with and Massachusetts near the bottom.28 the initiatory role of legislatures and administrative agencies), the pattern of change, reflecting litigant demands, has been purely "idiosyncratic," "embrac- The Intentional Tort Doctrine: ing," as Caldeira added, "an appreciable amount of The Case Law serendipity."26 Interestingly, the two Canon and The intentional tort exception is based on the Baum studies indicate that a state high court'soverall premise that the workers' compensation laws do not propensity to tort law activism does not perfectly cor- give employers the right to abuse workers intention- respond with its general propensity to innovative- ally, and if they do, they may not avoid full tort dam- ness. Thus, while a state court may be generally activ- ages. The problcm, of course, is the meaning of "in- ist, it may not always be adventuresome-hesitant tent," and the extent to which intent may be

Advisory Commission on Intergovernmental Relations 101 separated from negligence that, however heinous, suits resulted in substantial awards, it directly nulli- does not provide a cause of action.29 Almost unani- fied the court's unprecedented construction of the mously, the case law has held that workers' compen- statute's deliberate intent exception.32 sation statutes preclude common law suits when inju- Two years later, in Johns-Manville Products Corp. ries are caused by the employer's willful, gross, v. Contra Costa Superior Court, the California Su- wanton, deliberate, or reckless misconduct, when the preme Court hcld that an employee could bring suit alleged misconduct includes knowingly permitting a against an employer who had fraudulently concealed hazardous work condition to exist, knowingly order- from the plaintiff and his doctors that the plaintiff's ing the plaintiff to perform an extremely dangerous illness was related to asbestos exposure. It was job, willfully failing to provide a safe workplace, and charged that as a result of the defendant's miscon- willfully and unlawfully violating safety laws.30 As Ar- duct, the appropriate treatment was not admini- thur Larson states in his treatise on workers' compen- stered to the employee, who continued to work under sation: conditions detrimental to his health. The ruling. while "heraldcd as providing important rights for tci The most remarkable feature of the doctrine injured worker," was narrow in scope. The court held that "intent means intent" is the way it has that since thc initial injuries arising from the conceal- survived virtually intact in spite of the most ment of workplace hazards were foreseeable, the em- determined onslaughts in dozens of jurisdic- ployer could bc sucd only for an aggravation of injury tions. In the rare instances of its breakdown, by deceit, which was not foreseeable. In other words, the doctrine has usually been restored either the ruling did not create an exception to the exclusive legislatively or judicially.3' remedy requirement that would, in effect, penalize The first "rare instance" of the breakdown of the employers for exposing employees to toxic sub- "intent means intent" dogma occurred in 1978 when stances that employees would not be aware existed in the West Virginia Supreme Court of Appeals held in the work environment. Subsequently, the California Mandolidis v. Elkin Industries that the employer's legislature amended the compensation act to encom- "willful, wanton and reckless misconduct" constitutes pass the Johns-Manville holding.33 an intentional tort for which the common law affords Following Johns-Manvile, the question of the a remedy. Three cases were consolidated in Man- employer's liability for failing to provide a safe dolidis. In the first, the employee suffered severe workplace was addressed directly in a pathbreaking hand injuries while using a power table saw that ruling of the Ohio Supreme Court. Blankenship v. lacked a safety guard. The failure to provide the Cincinnati Milacron Chemicals (1982) involved a suit safety device was in violation of state and federal law, brought by employees who alleged that they had been the employer had been forbidden to use the machin- exposed, during the course of employment, to various ery in question until federal standards had been com- chemicals that made them "sick, poisoned, and plied with, and, despite earlier accidents, the em- chemically intoxicated, causing them pain, discom- ployer did not provide the requisitc guards, and cven fort and cmotionnl distress which [would] continue threatened todismiss employccs who refused to work for the indefinite future. . . causing suffering and per- at the unsafe machines. The othcr two actions wcre manent disability." It was further alleged that the brought by representatives of decedent cmployecs. chemical company knew of and did nothing to rectify The complaints also raised the matter of the employ- the conditions, failed to warn its employees of the ex- er's noncompliance with safety laws. posure to hazardous substances, and failed to report, The West Virginia compensation law provides as requircd by law, the hazardous working conditions that employers are liable if injury arises from their to the appropriate public agencies. Such actions and "deliberate intent." The case law, however, drew a omissions, according to the complaint, were "inten- line between deliberate intent and gross negligence, tional, malicious, and in willful and wanton disregard holding that employers were immune from suit ab- of [the employer's] duty to protect the health of its sent proof of "specific intent" to injure an employee. employees."34 It was argued that employer knowl- Absent that proof, the injury would be attributed to edge of the hazard and awareness that employees negligence, and the employer would retain statutory were contracting an occupational disease constituted immunity. Through the years, a number of bills were an intentional tort and not an injury incurred within proposed in the state legislature that would have pro- the meaning of the exclusivity provision of the com- vided for a more lenient standard, such as a showing pensation law. The court agreed. of willful, wanton, and reckless employer miscon- Two questions, immediately raised by comrnen- duct. All failed of passage. The high court's adoption tators, werc left open in Blankenshiy; both were sub- of precisely this standard in Mandolidis thus might be sequently addrcsscd in Jones v. WPDevelopment Co. viewed as an end-play around the legislature-a posi- (1984). The first, answered in the affirmative, was tion taken by that body when, after similar successful whether an action for an intentional tort could be

102 Advisory Commission on Intergovernmental Relations maintained even after receiving compensation bene- negative implication. That is to say, courts fits. The second concerned the meaning of inten- using this standard define it in terms of what tional tort. The Blankenship plaintiffs did not claim it is not. Thus, it is not sufficient to show that that Milacron had intended to harm them, but had de- there was mere carelessness, recklessness or liberately failed to provide a safe workplace, and had negligence, however gross it may be, because intentionally failed to notify appropriate agencies of deliberate intcnt implies that the employer the workplace hazards. While the Blankenship court must have been determined to injure the referred to the Mandolidis "willful, wanton, and reck- employee. Stated positively, a deliberate in- less misconduct" standard, it was unclear if it had tent to injure was defined as "an intentional been adopted. Jones held that "an intentional tort is or deliberate act by the employer to bring committed with an intent to injure another, or com- about the consequences of the act." [This] mitted with the belief that such an injury is substantially deliberate intent standard of an intentional certain to OCCU~."~~Thus, running entirely contrary to tort is more than merely strict in theory. It is case law (Mandolidis excepting), Blankenship and fatal in fact. In the absence of a "left jab to Junes established the novel principle that if an em- the chin," this standard will preclude an in- ployer had reason to believe that injury would result jured workcr from recovering for the inten- from an unsafe workplace, had failed to warn em- tional removal of a safety device or for the ployees of the dangers to which they were exposed, intentional exposure of an employee to a and had failed to observe safety laws and report dan- dangerous condition. This would appear to gerous conditions, the employer would be liable at be especially true in cases of insidious dis- common law. eases which remain latent for a period of Blankenship and Jones (in combination with a se- many years before any manifestation ap- ries of Ohio Supreme Court rulings that expanded pears.37 the rights of workers) caused a furor. Amid claims A Michigan Supreme Court ruling provides the that the court was discouraging new industries from most recent example of a successful judicial "assault" entering the state and driving established industries on the exclusivity "citadel."38 In Beauchamp v. Dow out,36 the state legislature revised the compensation Chemical Co. (1986)the plaintiff, a research chemist, act. sued to recover for disabilities sustained as a result of The most significant questions addressed for his exposure to "agent orange" in the workplace. purposes here concern the relationship between Wrestling with the definition of "intent," and drawing compensation benefits and common law awards and on Blankenship, the court held that an intentional tort the intentional tort exception. On the former, the law had been committed when the employer knew with provides that if injury, occupational disease, or death "substantial ccrtainty" that working conditions were occurs through the intentionally tortious acts of an harmful. ("If thc injury is substantially certain to oc- employer, then an employee may collcct workcrs' cur as a conscqucnce of actions the employer in- compensation benefits and bring a causc ol' action tcndcd, thc crnploycr is deemed to have intended the against the employer for an excess of damages over injuries as wcll.") On the matter of legislative intent, the amount received or receivable under law. Inten- the court had no compunctions about "theorization." tional tort is defined as "an act committed to injure another or committed with the belief that the injury is Including intentional torts within the ex- certain to occur." Substantial certainty is defined as clusivity provision would mean that the legislature intended to limit substantially an em- an act done with "deliberate intent to cause an employee to suffer injury, disease or condition of death." ployee's recovery for intentional injury As one commentator noted, "the legislature," while inflicted by an employer. It would mean that "adopting the framework of the intentional tort as es- the legislature not only intended to limit the tablished by the Jones court," produced a definition employer's liability but also intended to al- that "stands in marked contrast." For "substantial low an intentional tortfeasor to shift his li- certainty is a concept which is distinct from actual inability to a fund paid for with premiums col- tent to injure. Thus, the legislature has seemingly lected by innocent employers. Intentional made an apple-orange definition of intentional tort misconduct would seem to be the type of be- by defining substantially certain as deliberate intent." havior the legislature would want most to deter and punish. Including intentional torts The almost inevitable outcome will be that within the exclusivity provision would, in in order for an employee to sue his employer that sensc, be counterproductive because for an intentional tort, the employee must the lcgislaturc intended to limit and diffuse show that the injury was the product of the liability for intentional torts. Accidents are employer's deliberate intent. The term, "de- an inevitable part of industrial production, liberate intent," has largely been defined by intentional torts are not.39

Advisory Commission on Intergovernmental Relations 103 The legislative response to Beauchamp struck rather than the factual disputes courts are what has been regarded as a middle ground. The law- theoretically in business to resolve.42 makers thus resembled their California rather than their West Virginia and Ohio counterparts on this is- Mandolidis, Blankenship, and Beauchamp are sue. While the statute in question requires specific such "frontier" cases, similar perhaps to early prod- intent to injure, thus modifying the exclusivity re- ucts liability cases.43 quirement, Beauchamp was softened (from the employer's perspective), by defining intent as "actual The California, West Virginia, knowledge than an injury was certain to occur and Ohio, and Michigan Courts willfully disregarding that knowledge."40 The high courts of California, West Virginia, Ohio, and Michigan differ in a number of respects. An Assessment The California court ranks consistently high in inno- At first blush, the significance of the intentional vation and activism. The West Virginia court has gen- tort cases discussed here may appear negligible, es- erally ranked near the bottom in these regards. The pecially since in two of the four states concerned, the Ohio court ranks relatively high on tort law activism legislatures enacted limitations that not only over- and between the top and middle on innovativeness. rode judicial holdings but also bolstered the exclusive The Michigan court is ordinarily rated very high on remedy of the workers' compensation laws. tort law activism (surpassing California), fairly high What must be kept in mind, however, is that on innovativcness, and, with California, is among the these cases are representative of a movement to "re- state courts best known for developing a state consti- form" the workers' compensation system, not tutional civil liberties law. Thus, two of the courts through legislatures but through courts. Legislative showing aggressivenesswith regard to the intentional responses to the problems of the workers' compensa- tort exception are among the nation's most active tion system, it is rightly or wrongly alleged, have been generally. The California high court took a cautious influenced more by business and less by employee in- approach to the subject. The Michigan Supreme terests. Courts, prodded by the plaintiff's bar, have, Court, which generally enjoys leadership status, took in the classical manner, stepped into the breach. The its bearings from courts that do not have a similar intentional tortlphysical injuryldeath cases, address- reputation. Thus, in at least this area of the law, there ing questions of a duty to warn of novel and insidious is an uncertain correlation between how a court is dangers in the workplace (e.g., the long-term effects characterized and what a court actually does. Further of exposure to toxic substances) and the efficacy of comparison of the four courts is illuminating. state and federal safety laws, provide the most visible Members of the California high court are se- and dramatic examples of judicial efforts to "rewrite" lected by a variant of the merit selection system. Jus- workers' compensation laws.41 The Chief Justice of tices are nominated by the governor, must be ap- the West Virginia Supreme Court of Appeals (who proved by at least two members of a judicial dissented in Mandolidis) put it this way: nominating commission, and face voters in two reten- tion elections. If successful after the second election, There are certain classes of cases on the justices serve a 1%-yearterm and are eligible for any frontiers of the law. . . that are political dis- number of terms thereafter. While there is disagree- putes between interest groups. For example, ment about which judicial selection method produces workers who are injured on thc job arc con- thc most qualified justiccs, there is no gainsaying that stantly going to court in chrts to gcl lhc thc Calilbrnia Supr-cmc Court has produced more courts to erode the statutory immunity lrom than its sharc of both luminaries and outspoken pol- an ordinary lawsuit that an employer who icy advocates. 'l'hc court has long been regarded as a subscribes to a state workmen's compcnsa- leader, not only among state courts, but vis-a-vis fed- tion fund enjoys. In many industrial states, eral courts as well. Since the dual capacity exception courts are nibbling away at immunity in seri- to the exclusivity requirement was initiated in and has ous accident cases where the employer has been nurtured in California, Johns-Manville should failed to follow prescribed safety standards not be considered surprising; what may be surprising or has ordered workers to do things that are is the court's reluctance to permit a common law ac- abnormally dangerous. The workers knew tion for the initial injury, as contrasted to the aggrava- that under prior court interpretation of the tion of the injury. On the other hand, the court might immunity statutes, they could not recover. well have bclicved that the California legislature They went to court to get new interpreta- would take the concerns raised in the compensation tions of these old statutes. . . . [Such] efforts cases seriously. Thc Johns-Manville doctrine. as noted to change existing laws can be characterized earlier, was incorporated by statute. Although the as "disputes," but they are political disputes legislature eliminated the dual capacity doctrine, it

104 Advisory Commission on Intergovernmental Relations did permit worker suits under circumstances that had Celebrezze, the court, as its chief proclaimed, be- previously invoked the dual capacity doctrine.44 came a "people's court," concerned with the "little West Virginia justices are selected in moderately guy or gal." The Ohio court reversed a long line of competitive judicial elections, and are, for the most precedents pertaining to restrictions on suits against part, Democrats. Interim appointees of Republican state and local governments, the rights of tenants and governors are almost invariably defeated when they consumers, and workers injured during the course of must run for election. Furthermore, "West Virginia employment. The court, in a complete turnabout, be- voters have split their tickets when necessary to ex- came prolabor and highly urban in orientation, re- press short-term policy preferences at the gubernato- sponsive to its new constituency. Blankenship, Jones, rial level while relying on their more permanent alle- and other labor cases represented only a part, but a giances at the judicial 1evels2'45 highly significant one, of what was described as a Beginning in 1976, following the election of "quiet revolution." three new justices to the five-member court, the The Ohio Supreme Court's adoption of the in- court commenced to take an activist stand more gen- tentional tort exception may be attributed to a num- erally and in workers' compensation cases specifi- ber of factors. First, the court changed hands, going cally, showing "little reluctance to substitute the ma- from one party to another. Second, the labor unions jority's assessment of the evidence for the factual had been instrumental in changing the partisan com- findings of the workmen's compensation appeal position of the court. Third, Chief Justice Celebrezze board." More precisely, between January 1977 and not only had a judicial agenda, but perhaps hoped to September 1978, the court held in favor of the em- parlay it into political advantage when pursuing his ployee in 49 out of 50 cases. In most, if not all of these gubcrnatorial ambition. Finally, a majority of the jus- cases, the court "redefined well-settled statutory in- tices had no difficulty with the concept of an activist terpretations," and "entered areas not ordinarily con- judiciary-or at least activist in some areas-and saw sidered within the scope of appellate review." A no reason why the court should continue to operate court, long Democratic, began to respond to new in its traditional deferential and self-effacing man- claims, and to assume a sympathetic posture toward ner. (In this sense, the court is similar to at least one working people.40 Indeed, as the dissenting Justice other state court, that of Alabama, described earlier, Richard Neely pointedly commented, "the court was which precipitously and completely changed charac- ready, willing and eager to effectuate change." ter).48 Michigan Supreme Court justices, like their A fair reading of the majority opinion im- Ohio counterparts, are selected in nonpartisan elec- plies to me that this court has been waiting tions. As in Ohio, the partisan primary provides the for years to remove the yoke of oppres- sionfrom the workers of this state by pro- clue. In Michigan, nomination by political party con- viding a vehicle for recovery of common law vention for a place on the ballot, as well as media cov- jury awards for negligently inflicted, work- erage, performs a similar function. The ascendancy of related injuries in addition to the admittedly the Democratic party in the state, coupled with in- parsimonious awards of workmen's compen- terim gubernatorial appointments, resulted, in the sation.47 1950s, in Democratic control of the court. The shift, as in Ohio, prompted substantial changes in the Ohio justices are selected in nonpartisan clcc- court's rulings. A court, closely divided on labor man- tions that are preceded by partisan primaries, a sys- agement issues, hecame decidedly prolabor. As Sid- tem unique to the state. From the end ol' the Second ncy Ulmcr obscrvcd in his study of the Michigan high World War to the late 1970s, the appellate judiciary, court, "it is clear that in workmen's compensation despite the state's strong two-party tradition, was and unemploymcnt compensation cases, Democratic overwhelmingly Republican. State supreme court justice is more sensitive to the claims of the unem- decisions tended to reflect the values of small town ployed and thc injured than Republican justice."49 and rural interests. The justices' party affiliations have been influen- Traditional electoral and jurisprudential pat- tial in other areas as well, such as criminal appeals terns were abruptly shattered in the late 1970s and and reapportionment. Here, as in the labor cases, dis- the early 1980s when the Democrats obtained first a sent rates have not been high, but disagreements on 4-3 and subsequently a 6-1 majority on the court. The the court have been vociferous. In short, the Michi- partisan shift was due to concerted efforts of the la- gan high court, like Ohio's, has reflected the state's bor unions to "win" the court, believing that labor's competitive political climate.50 goals would be more quickly and surely obtained While the Beauchamp court was Republican- through judicial rulings than through the slow and controlled, thc ruling, it might be argued, reflects the often unpredictable legislative process. Under the court's long-standing approach to workers' compen- leadership of its controversial chief justice, Frank sation cases. Further, since the legislature was due to

Advisory Commission on Intergovernmental Relations 105 enact a new definition of disability, the time may have 5Report of the National Commission on State Workmen's appeared ripe to "suggest" further revisions in the Compensation Laws, chapter 5. workers' compensation system. The Michigan court, 6Quoted in Amchan, "Callous Disregard," p. 686. as the opinion and as history indicate, has few com- 7Amchan, "Callous Disregard," p. 686. punctions about prodding or even defying the legisla- 81ves v. South Buffalo Railway, 94 N.E. 431 (N.Y. 1911). t~re.~l gThe often-quoted phrase is William Prosser's. See, for example, William L. Prosser, John W. Wade, and Victor Conclusion E. Schwartz, Torts-Cases and Materials (Mineola, New York: The Foundation Press, 1976), p. 1179. This chapter has shown how one tort law innova- lODriscoll v. Allis-Chalmer Co., 129 N.W. 401, 408-409 tion was adopted and dispersed. It also supports the (Wis. 1911). For a discussion of changing judicial atti- thesis that the patterns of adoption and diffusion of tudes toward the fellow-servant rule, the impetus for re- tort law doctrines are idiosyncratic. Further, it sup- form, and early workers' compensation statutes, see Lawrence M. Friedman and Jack Landinsky, "Social ports the thesis that caution should be employed Change and the Law of Industrial Accidents," Coh~nibia when making assumptions about the characteristics Law Review 67 (1967): 50-82. of state supreme courts. Whatever their reputations 11 The phrase is described as an "old adage." "Election and and traditions-distinguished, ordinary, activist, rest- Co-employee Immunity under Alabama's Workmen's raintist, bold, timid, leaders, followers, negators- Compensation Act," Alabama Law Review 31 (1979): state high courts do not always take positions that run 2-27, 4. true to form. Finally, as Canon and Baum have indi- l2A large literature is devoted to the shortcomings of workers' compensation acts and their administration. cated, and as the Ohio, Alabama, and Michigan su- For a summary of the problems and useful references, preme courts have demonstrated, a court can, in a see "Exceptions to the Exclusive Remedy Requirements relatively short period of time, undergo a radical of Workers' Compensation Statutes." For the perspec- transformation. tive of a plaintiffs lawyer, see Allen Wilkinson, "Alter- This cha~teris not intended to be read as an ad- native Theories to Workers' Compensation: Serving the Injured Worker Better," Trial (October 1983): 90-97; vocacy for the intentional tort exception, nor as a Amchan, "Callous Disregard." criticism of the existing workers' compensation sys- 13"Exceptions to the Exclusive Remedy Requirements," p. tem. Nor is it intended as an argument for a particular 1648. Friedman and Landinsky expressed concern over brand of judicial activism. The chapter's lesson is that the ramifications of accidents, determined by courts to the further development of state constitutional law, be compensable, that had "nothing to do with the impact now that lighthouse courts have pointed the way, may of a machine on a man in an industrial setting." They warned that "if all the tendencies of the case law were come from a variety of sources for a variety of rea- followed to their logical limit, then workmen's compen- sons. A state court that has disregarded its own con- sation would end up covering for all illnesses, injuries stitution may reverse course. One that had lcd the and disabilitics which might somehow be linked to the way (California, for example), may bccomc morc pas- job eilhcr c;~sually, or because they happened during sive. Or a court that had in no way distinguishcd ilsclf working houl.s," "Scxial Change and the Law of Indus- trial Acciclcnts." pp. 80-82. To a degree, their forebod- for many years might become a leader. The excep- ings have bccn realized. "Exceptions to the Exclusive tions to the exclusivity rules carved out by the West Remedy Rcquirernents"; Wilkinson, "Alternative Virginia, California, Ohio, and Michigan courts illu- Theories to Workers' Compensation"; William Bohyer, minate the infinite varieties inherent in the federal Montana Law Review 47 (1986): 157-180; "Exclusivity system, as well as the system's many, and often sur- Provisions of Workers' Compensation Statutes: Will the Dual Injury Principle Crack the Wall of Employer Im- prising, sources of policy initiatives. munity? University of Cincinnati Law Review 55 (1986): 550-571. Many dual injury cases involve alleged em- NOTES ployer deceit. See, for example, Johns-Manville Products The Report of the National Commission on State Work- Corp. v. Contra Costa Superior Court, 612 P.2d 948 (Cal. men's Compensation Laws (Washington, DC: the Com- 1980), and discussion, note 33 and accompanying text. mission, 1972), p. 15. '4''Right of Access to Civil Courts under State Constitu- 21bid., p. 119. tional Law: An Impediment to Modern Reforms or a Receptacle of Important Substantive Rights?" Rutgeis 31bid., pp. 123-124. Law Journal 13 (1982): 399-477. 4"Exceptions to the Exclusive Remedy Requirements of '=For discussion, see chapter 7 of this volume and litera- Workers' Compensation Statutes," Harvard Law Review ture cited, note 25 therein. 96 (1983): 1641-1661, 1647-1658; Arthur J. Amchan, "Callous Disregard for Employee Safety: The Ex- 'GDiscussion of the Alabama high court and cases is based clusivity of the Workers' Compensation Remedy against on G. Alan Tarr and Mary Cornelia Aldis Porter, State Employers," Labor Law Jorrnial (November 1983): Srrpreme Courts in State arid Nation (New Haven: Yale 683-696. For a critical appraisal of the report, and for the University Press. 1988). chapter 3. federal legislation that was proposed, see James Robert "Grantham v. Denke, 359 So. 2d 785 (Ala. 1980). eluci- Chelius, Workplace Safety arid Health: The Role of Work- dated in Fireman's Fund American Insurance Co. v. ers' Conlpensation (Washington, DC: American Enter- Coleman, 394 So. W 334,343 (Ala. 1980), Justice Jones prise Institute, 1977), chapters 4 and 5. concurring.

106 Advisory Commission on Intergovernmental Relations 18Fireman's Fund at 339-340. (1984): 1507-1530. Seven states provide employees with the option of bringing suits for certain kinds of torts. 1gCit. at 347, Justices Jones concurring. "Blankenship v. Cincinnati Milacron Chemicals, Inc.: 2oCit. at 354, Justices Shores concurring. Some Fairness for Ohio Workers and Some Uncertainty 21 "Election and Co-employee Immunity under Ala- for Ohio Employers," UniversityofToledo Law Review 15 bama's Workmen's Compensation Act," Alabama Law (1983): 403-436, 421. Review 31 (1979): 2-27, 14. 30The phraseology derives from a few federal cases and 22Much of the material for this section was drawn from from rulings of high courts in Alabama, Arkansas, Con- Tarr and Porter, State Srcpreme Courts in State and Na- necticut, Florida, Georgia, Indiana, Illinois, Louisiana, tion, pp. 30-40. and Oklahoma-all of which have strictly construed the 23PeterHarris, "Difficult Cases and the Display of Author- immunity provisions of workers' compensation statutes. ity," Jo~rrnal of Law, Economics and Organization 1 Successful intentional tort suits for physical injury have (1985): 209-221, and "Structural Change in the Commu- for the most part, involved physical assault by the em- nication of Precedent among State Supreme Courts, ployer, an early seminal case being Boek v. Wong Hing, 1870-1970," Social Networks 4 (1982): 210. 231 N.W. 233 (Minn. 1930). 24 Gregory A. Caldeira, "The Transmission of Legal Prece- 31 Arthur A. Larson, Tile Law of Workmen's Compensation, dent: A Study of State Supreme Courts," American Po- Sec. 68.13 (1978). For example of advocacy for an expan- litical Science Review 79 (1985): 178-194, 190, 192, and sive interpretation of intentional tort, see "Expanding "On the Reputation of State Supreme Courts," Political the Intentional Tort Exception to Include Willful, Wan- Behavior 5 (1983): 83-108. ton and Reckless Employer Misconduct," Notre Dame ZSCaldeira, "On the Reputation of State Supreme Courts"; Law Review 58 (1982-83); and Wilkinson, "Alternative Bradley C. Canon and Lawrence Baum, "Patterns of Theories to Workers' Compensation." Adoption of Tort Law Innovations: An Application of 32Mandolidis v. Elkins Industries, 246 S.E. 2d 907 (W. Va. Diffusion Theory to Judicial Doctrines," American Po- 1978). For a critical analysis of the case, see David M. litical Science Review 75 (1981): 975-987 and "State Su- Flannery, Joseph S. Beeson, M. Ann Bradley, and preme Courts as Activists: New Doctrines in the Law of Richard P. Goddard, "The Expanding Role of the West Torts," in Mary Cornelia Porter and G. Alan Tarr, eds., Virginia Supreme Court of Appeals in the Review of State Supreme Courts: Policymakers in the Federal System Workmen's Compensation Appeals," West Virginia Law (Westport, Connecticut: Greenwood Press, 1982), chap- Review 81 (1978): 1-144. For its aftermath, see "In the ter 4. Wake of Mandolidis: A Case Study of Recent Trials 26Canon and Baum, "Patterns of Adoption of Tort Iaw Brought undcr the Mandolidis Theory," West K~ginia Innovations," p. 985; Caldeira, "Thc Transmission of Law Review 84 (1982): 893-915. In one case, Cline Joy Legal Precedent," p. 179. M rg. Co., rcv'tl., 3 10 S.E. 2d 835 (W. Va. 1983) the award of tlamagcs was scveral times the employer's worth. The 27For a sampling of the literature on the new judicial fcder- revised statule was enacted in 1983. alism, see G. Alan Tarr, "Bibliographic Essay," Porter and Tarr eds., State Supreme Corrrfs:Policymakers in the 33Johns-Manville Products Corp. v. Contra Costasuperior Federal System, pp. 201-209,206-208. For a case survey, Court, 612 P. 2.41 948 (Cal. 1980). For an unenthusiastic see Ronald K.L. Collins, Peter J. Galie, and John Kin- view of Johns-Manville, see Wilkinson, "Alternative caid, "State High Courts, State Constitutions, and Indi- Theories to Workers' Compensation," pp. 91-92. The vidual Rights Litigation since 1980: A Judicial Survey," New Jersey Supreme Court has seen fit to punish par- Publius: The Journal ofFederalism 16 (1986): 141-162. For ticularly egregious employer behavior under the dual in- an identification, based on the new judicial federalism jury doctrine. Millison v. E. I. du Pont de Nemours and literature, of civil libertarian activist state courts, see G. Co., 501 A. 26 505 (N.J. 1985). In some instances the dual Alan Tarr and Mary Cornelia Porter, "Gender Equality injury doctrine has been held to include nonphysical in- and Judicial Federalism: The Role of Appellate Courts," juries such as defamation, emotional distress, and em- Hustings Constitutional Law Quarter& 9 (1982): 919-974, ployment discrimination and harassment. Battista v. 953-954. For the part played by state high courts in effec- Chrysler Corp., 454 A. 2d 286 @el. Super. 1982): Seals v. tuating institutional and social change, which may be Henry Ford Hospital, 333 N.W. 26 272 (Mich., 1983): considered an outgrowth of the new judicial federalism, Belanoff v. Grayson, 434 N.E. 2d 717 (N.Y. 1982). The see Russell Harrison, "State Court Activism in Exclu- revised California labor code (West's Supplement 1988) sionary Zoning Cases," in Porter and Tarr eds., State Su- states that "an employee may bring an action at law for preme Courts: Policymaking in the Federal System, pp. damages against the employer. . . where the employee's 55-82; Norman C. Thomas, "Equalizing Educational injury is aggravated by the employer's fraudulent con- Opportunity through School Finance Reform: A Re- cealment of the existence of the injury and its connection view Assessment," University of Cincinnati Law Review with the employment, in which case the employer's li- 48 (1979): 225-331. ability shall be limited to those damages proximately Z8''New Jersey: The Legacy of Reform" chapter 5, in Tarr caused by the aggravation. The proof of respecting ap- and Porter, eds., State Supreme Courts in State and Na- portionment of damages between the injury and any tion. Canon and Baum, "Patterns of Adoption of Tort subsequent aggravation thereof is on the employer." Law Innovations," p. 977. Since 1975, however, "the 34Blanken~hipv. Cincinnati Milacron Chemicals, 433 N.E. Massachusetts Supreme Court has begun to take a newly 572 (Ohio 1982): cert. denied, 459 US. 857 (1982). activist position in support of changes in the tort law. As 35Jones v. VIP Dcvclopment Co., 472 N.E. 26 1046 (Ohio, a result, no longer can this court be regarded as a bulwark 1984). (Emphasis added.) Ohio commentary on the case of opposition to tort law activism." Baum and Canon, was mixed, some approving, some disapproving. all "State Supreme Courts as Activists," p. 101. somewhat uncertain as to the rule promulgated. 29"The Intentional Act Exception to the Exclusivity of "Blankenship v. Cincinnati Milacron Chemical Co.: Workers' Compensation," Louisiana Law Review 44 Workers' Compensation and the New Intentional

Advisory Commission on Intergovernmental Relations 107 Tort-A New Direction for Ohio," Capital University ture abolished the doctrine. "Exceptions to the Exclusive Law Review 12 (1982): 287-312; "Tort-Worker Com- Remedy Requirement of Workers' Compensation Stat- pensation-Employer Immunity-An Employee Is Not utes," p. 1653, n. 76. In the 1986 judicial election the Cali- Precluded by the Ohio Workers' Compensation Laws fornia high court lost its Democratic, liberal majority. As from Enforcing a Common Law Rcmcdy for I ntenlional a result, fcwcr rulings favoring workers, consumers, ten- Torts Committed by His Employers," Utiivivsity of Cin- ants, and "untlcnlogs" generally might be anticipated. cinnati Law Review 51 (1982): 682-696. 45 1'11 i l ip I .. I )U ljois, 171~171Ballot to Bench: Judicial Elections 36For discussion of the Ohio Supreme Court's controvcr- and the Qrrest jbr Accountability (Austin: University of sial "prolabor" and generally "populist" position, see Texas Press, 1980), passim, p. 139. The West Virginia Tarr and Porter, eds., State Supreme Courts in State m7d high court is bcst known for its author-Chief Justice, Nation, "Ohio: Partisan Justice," chapter 4. Richard Necly, whose books, while informed by his ex- 37The Ohio statute was enacted in 1986. For its provisions perience on thc slate bench, range far beyond parochial and for discussion, see "The New Workers' Compensa- concerns. Wly the Courts Don't Work, and How Courts tion Law in Ohio: Senate Bill 307 WasNo Accident,"Ak- Govern America (New Haven, Connecticut: Yale Uni- mn Law Review 20 (1987): 491-518,514-515. versity Press, 1981). 38For an account of the ultimately successful efforts toper- 46For discussion of the newly activist West Virginia court, suade courts to adopt an important consumer protection see John Patrick Hagan, "Policy Activism in the West doctrine, see William L. Prosser, "The Assault upon the Virginia Supreme Court of Appeals," West L4ginia Law Citadel (Strict Liability to the Consumer)," Yale Law Review 89 (1986): 159-165. "The Expanding Role of the Journal 69 (1960): 1099-1148 and "The Fall of the Citadel West Virginia Court of Appeals in the Review of Work- (Strict Products Liability to the Consumer)," Minnesota men's Compensation Appeals," pp. 1 and 2, note 4. Law Review 50 (1966): 791-848. There is disagreement about the influence of party affili- 39Beauchamp v. Dow Chemical Co., 398 N.W. 26 882,889 ation on judicial decision making in workers' compensa- (Mich., 1986). tion cases. S. Sidney Ulmer, "The Political Party Vari- able in the Michigan Supreme Court," Journal of Public 40"Intentional Torts and Workers' Compensation: Law 11 (1960): 352-362; Edward Beiser and Jonathan Sil- Beauchamp v. Dow Chemicals," Cooley Law Review 4 verman, "The Political Party Variable: Workmen's (1987): 707-723, 719, 723. Commentary concluded that Compensation Cases in the New York Court of Ap- "despite [legislative] attacks on judicial activism, the peals," Policy 3 (1981): 521-531; David W. Adamany, Beauchamp decision had at least one undeniable effect: "The Party Variable in Judges' Voting: Conceptual it prompted action from a legislature which had failed to Notes and a Case Study," American Political Science Re- correct the situation. There was no statutory intentional view 63 (1969): 57-72. tort exception before the Beauchamp decision, but since then, Michigan has joined the majority of states in refus- 47Mandolidi~v. Elkin Industries, Inc., 246 S.E.26 907,909, ing to allow an employer to hide behind the exclusivity of 921. worker's compensation." The problem here, of course, is 48Discussiondrawn from "Ohio: Partisan Justice," chapter that "intent" has been difficult to define. What one court 4, in Tarr and Porter, eds., State Supreme Courts in State may regard as "intent," another may dismiss an "negli- andNation. (In 1986, the court, by a narrow majority, was gence." recaptured by the Republicans. Chief Justice Celebreese 4lThe National Commission on State Workmen's Com- did not win reelection.) pensation Lam, while conceding that lawsuits oftenpre- 4QUlmer,"The Political Party Variable in the Michigan sented appealing alternatives to the compensation sys- Supreme Court," pp. 354-355. tem, nonetheless cautioned that successful suits required 50The Michigan high court is intensely "political." High substantial financing, and have "concentrated on [only] dissent rates have reflected (often acrimonious) dis- a narrow range of issues which encompass a compelling agreements as well as partisan divisions. For discussion need." Report, p. 123. and a summary of the literature, see "Democratic and 42Richard Neely, Why the Court's Don't Work (New York: Republican Justice: Judicial Decision-Making on Five McGraw-Hill, 1983), p. 166. Neely was an associate jus- State Supreme Courts," Cohrmbia Journal of Law and tice when Mandolidis was decided. Social Pmblerns 13 (1977): 137-181, 160-165. 43See note 38. 5' For the court's pointed reminder to the legislature that it 44Much has been written about the California Supreme would take a dim view of interference with the state con- Court. For an overview, see Mary Cornelia Porter, "State stitutional guarantee of "freedom of expression" on "all Supreme Courts and the Legacy of the Warren Court: subjects," see Porter, "State Supreme Courts and the Some Old Inquiries for a New Situation," in Porter and Legacy of the Warren Court: Some Old Inquiries for a Tarr, eds., State Supreme Courts: Policymakers in the Fed- New Situation," in Porter and Tan eds., State Supreme eral System, chapter 1. For the court's contribution to the Courts: Policymakers in the Fedeml System, chapter 1, p. development of tort law, see G. Edward White, The 15. "When the legislature overturned a 1961 supreme American Judicial Tradition:Profies of LeadingAmerican court decision that had abolished the immunity of local Judges (New York: Oxford University Press, 1976), chap- governments from lawsuit, the court in turn held the leg- ter 13. The California Supreme Court consistently sup- islature's action unconstitutional for procedural reasons. ported the dual capacity doctrine, e.g. Bell v. Industrial Iawrencc 13aun1, American Courts: Process and Policy Vangas, Inc., 637 P2d 266 (Cal., 198 I), until tlic Icgisla- (Ik~ston:I ioq,hton Mifflin Company, 1986), p. 310.

108 Advisory Commission on Intergovernmental Relations Chapter 9 State Constitutional Law and State Educational Policy

The Legislature shall provide for the sup- educational opportunity," and state legislatures be- port of a thorough and efficient system of gan to enact a wide range of educational reforms as free public schools. . . . they responded, in part, to court opinions. The consequence has been a reinvigoration of state educational New Jersey Constitution, Article VIII, Sec. policy, which has spread rapidly throughout the 14, para. 1. United States.3 This chapter will examine the dynamics of that Unlike the Constitution of the United States, the constitutional-political process. This should not be Constitution of New Jersey, like those of almost all taken to suggest that this particular process is some- the states,' mandates that the state legislature pro- how typical of state constitutional-political processes vide for a system of public education. Until recently, generally, for very little is "typical" in the United however, the meaning of this obligation has remained States. However, it will demonstrate the continuing something of a mystery. Whatever its meaning, his- importance of state constitutions and constitutional torically the states have delegated most of the re- law as the basis of state policy. sponsibility for the implementation of this obligation to local school districts. Local school districts carried The States and Mucation: the principal responsibility for defining the content An Historical Perspective of education, for its management and supervision, Of the first 14 American states (including Ver- and for its financial support. mont, which joined the Union in 1791), seven pro- This process of delegation raised interesting vided for some form of education in their first consti- questions under state constitutions: (1) Was the legis- tutions.4 The precise nature of these provisions lature shirking its constitutional obligations by dele- varied. On the one hand, Section 44 of the Pennsylva- gating so much of the responsibility to local districts? nia Constitution of 1776 seemed to mandate the es- (2) Did the unequal distribution of resources among tablishment of schools:5 local districts to support education violate the equal- A school or schools shall be established in ity or uniformity provisions of state constitutions, or each county by the legislature for the con- even the equal protection clause of the Fourteenth venient instruction of youth, with such Amendment to the Constitution of the Unitcd salaries to the masters paid by the public, as States? may cnnblc them to instruct youth at low In 1973, the Supreme Court of thc Unilcd States priccs. . . . rejected the last argument,2 that the school finance law of Texas violated the equal protection clause of On the othcr hand, the Massachusetts Constitu- the U.S. Constitution. State courts, however, have tion of 1780 was ambiguous about the state's obliga- continued to struggle with state constitutional issues: tion: what is a state's obligation to provide a "thorough and Wisdom and knowledge, as well as virtue, efficient" system of education, and what kind of diffused generally among the body of the equality must be guaranteed by a state? peoplc, being necessary for the preservation As state courts-and state legislatures-grap- of their rights and liberties; and as these de- pled with these difficult constitutional issues, the pend on spreading the opportunities and ad- court opinions and legislative debates raised the vantages of education in the various parts of broadest questions about the meaning of "equality of the country and among the different orders

Advisory Commission on lntergovemmental Relations 109 of the people, it shall be the duty of Legisla- nation, and the states' concern began to shift from tures and Magistrates, in all future periods the number of schools to their quality. of this Commonwealth, to cherish the inter- Beginning with the studies of E.P. Cubberley in ests of literature and the sciences, and all New York in the early years of the 20th century,ls seminaries of them; especially the university educational researchers found that even with the sys- at Cambridge, public schools and grammar tem of flat, per capita grants, many districts were un- schools in the towns. . . .6 able to provide an adequate education. The problem was especially acute in rural areas with low property The Massachusetts Constitution went on to provide tax rates. They simply could not generate enough that it was the duty of the legislature revenue to support adequate schools, especially as the provision of education became more cornplex-and . . . to countenance and inculcate the princi- expensive. Therefore, Cubberley and his followers ples of humanity and general benevolence, recommended that the states guarantee each district public and private charity, industry and fru- a certain basic, or "foundation" level of education gality, honesty and punctuality in their deal- funding, regardless of their local property values. ings; sincerity, good humor, and all social af- Thus, property-poor districts would receive more fections, and general sentiments among the state aid than would wealthy ones. The concept people.? spread gradually throughout the states, so that, even During the last decade of the 18th century and today, most states use some form of foundation sup- the first two of decades the 19th, the states began to port.'? implement these constitutional provisions.8 Gener- Although these foundation plans were equaliz- ally, they enacted two types of legislation: (1) laws en- ing, they did not equalize spending among the discouraging and sometimes even requiring local com- tricts. Indeed, it was never claimed that a foundation munities to provide schools, and (2) laws setting up plan would lead to equal per pupil expenditures. In small state schools funds to assist local communities fact, Paul Mort argued that every state needed some in these efforts.9 Two great issues emerged out of "lighthouse" districts that could afford the "risk capi- these experiments in education: (1) Should schools tal" to experiment. Successful experiments, Mort be provided for all children, or only for those from claimed, would gradually be adopted in other, less af- families too poor to afford the tuition at private fluent districts.18 Even beyond this, the foundation academies?"J (2) Should the schools be under public plans were never as equalizing as the reformers or private control?ll hoped they would be. The continuing disparity in By the middle of the 19th century, the propo- school district spending was a consequence of two po- nents of the common school won both of these politi- litical necessities. First, the politics of state founda- cal struggles. Led by reformers, such as Horace Mann tion plans required that all school districts receive of Massachusetts and Henry Barnard of Connecticut, some moncy, so that foundation aid was usually dis- they succeeded in establishing the dominance of pub- trilwtcd ovcr and above the system of flat grants. Sec- lic schools, first in the cities and then in spreading the ond, the plans provided only for a foundation level of common school to the countryside.12 By the 1840s education, and local districts were free to spend be- and 1850s, as states rewrote their constitutions, they yond that levcl.lg Either because of their lack of usually included a provision that the state establish property wealth or their unwillingness to tax them- "public" or "common" or "free" schools and that the selves at higher rates, some districts spent only the system be "efficient" or "thorough" or "uniform" or minimum, or barely above it.20 "general" and "open to a11."13 While the states worked to improve their foun- In addition, more of the states began to establish dation plans, usually by raising the foundation level permanent school funds for distribution to local and by weighing school district needs according to school districts, usually on a per capita basis, and cre- demographic factors and the nature of the student ated state administrative structures to supervise the population, dissatisfaction continued to grow, so that growth and operations of the common schools.14 by the 1960s a variety of forces coalesced to wage a Naturally, the nature and extent of state involvement full-scale legal and political battle against state varied from state to state, depending on its own tradi- school finance systems. tion and circumstance.l5 However, to the extent that Two forces especially seemed to spur this attack. one can generalize at all, it is safe to say that the First, the civil rights movement was in full sway, and states' role was that of encouraging local communi- there was widespread concern for "equality." Second, ties to meet the constitutional obligation for common property taxes, the mainstay of school finance, had schools. risen rapidly, and there was a growing sense that they By the end of the century, public schools, includ- were inefficient and fundamentally unfair.2' Given ing some high schools, were in place throughout the the history of success by public interest lawyers in the

110 Advisory Commission on Intergovernmental Relations federal courts, it is not surprising that many of the in- "compelling state interest" which could justify the itial attacks on school finance systems were waged in differentials among the school districts' capacities to federal courthouses.22 support education. However, these victories were short-lived, be- The Federal Courts cause, in 1973 in San Antonio Independent School Dis- and State School Finance Laws trict v. Rodriguez, the U.S. Supreme Court overruled the federal Court of Appeals in Texas23 holding that One of the first challenges to a state school fi- education is not a "fundamental interest," that the nance law emerged out of a desegregation contro- relationship between property-poor districts and versy in Louisiana. There, a U.S. District Court re- poor people was too tenuous to justify a "suspect jected the plaintiffs' claim that the state's detailed category," and that the state's method of financing constitutional provisions for the distribution of state education served a legitimate state interest, local aid violated the equal protection clause of the Four- control of education. teenth Amendment.23 In unequivocal language, the Much has been written on the Supreme Court's court said: Rodriguez decision, and there is no need to review There is simply no right, privilege or immu- that literature here. Clearly, however, one of the nity secured by the Constitution and laws of Court's major concerns was that of an appropriate the United States in any way being denied by remedy. According to one commentator, "[Tlhe these respondents when they allocate and Court majority saw the danger of a Court-dictated disburse funds pursuant to the provisions . . . financing scheme along . . . simplified lines-one of the Louisiana Constitution.24 child, one budget, or one school district, one taxbase; to the Court, a fearful symmetry."34 Any solution Three years later, a U.S. District Court in Illinois along these lines would raise extraordinarily difficult was equally abrupt when it rejected an attack on the questions. For example: What is the relationship be- state's school finance law.25 Here, the plaintiffs tween equal spending and equal educational oppor- claimed that the only constitutionally permissible tunity? How could a state deal with the special prob- method for the distribution of state school funds lems of school districts with high-cost students, or would be "educational need." In rejecting the claim, with the unusual costs associated with very densely or the court quoted Justice Oliver Wcndcll Holmes' very sparscly populated districts? Would the states be comment that "the Fourteenth Amcndmcnl is not a forccd lo "lcvcl up" all districts to the level of the pedagogical requirement of the irnpracti~al."~~ highest spending district? Could districts tax them- Similarly, another district court rejected a chal- selves at higher rates to provide enhanced educa- lenge to Virginia's school finance law,27 commenting tional programs, and thus perpetuate spending in- that: equalities? Or would the states be forced to place . . . the courts have neither the knowledge, some sort of tax or spending cap on the high spending nor the means, nor the power to tailor the districts? Finally, what would be the effect of a Court- public moneys to fit the varying needs of imposed remedy on the tradition of local control? these students throughout the State.z8 With the rejection of Rodriguez's claim, federal courts were not forced to confront these issues. But The first victory-although a small and tempo- as the battleground shifted from federal courts and rary one-for the challenges of state school finance the U.S. Constitution to state courts and state consti- laws was in Florida.29 There, the federal court over- tutions, these difficult questions were addressed in turned a specific provision of the state's school fi- many states. nance law which had, in effect, placed a limit on local tax rates so that property-poordistricts were prohib- State Courts, State Constitutions, ited from taxing themselves at higher rates so as to and State School Finance Laws provide the same level of school expenditure as more wealthy districts. The court held that this absolute While the annals of American state constitu- limitation was a violation of the equal protection tional history are filled with taxpayer suits challeng- clause of the Fourteenth Amendment. However, two ing state tax and spending programs, including state years later, the U.S. Supreme Court vacated the and local taxation and spending for public schools,35 judgment.s0 the modern period begins with the 1971 decision of In 1971, there were two more far-reaching deci- the California Supreme Court in Serrano v. Priest.3" sions. In both Minnesota3' and Texas,32 federal In Serrano, the California Supreme Court became courts struck down state school finance laws as viola- thc first state supreme court to invalidate a state tive of the equal protection clause of the Fourteenth school finance system on equal protection grounds. Amendment. Reasoning that education is a "funda- Beginning with a determination that education is a mental interest," the courts found that there was no "fundamental interest," the court found that the

Advisory Commission on Intergovernmental Relations 111 state's concern for local control was not compelling that the clause implied only a "basic" education; or enough to meet its "strict scrutiny" test. With regard that the definition of the clause was best left in the to local control, the court said: hands of the Icgislature. For example, the Maryland . . . so long as the assessed valuation within a Supreme said that the constitutional provi- district's boundaries is a major determinant sion requiring "the Legislature . . . [to] establish of how much it can spend for its schools, only throughout the State a thorough and efficient system a district with a large tax base will be truly of free public schools" did not "mandate uniformity able to decide how much it really cares about in per pupil funding and expenditures among the education. The poor district cannot freely State's school di~tricts."~eIn Colorado, the Supreme choose to tax itself into an excellence which Court held47 that its nearly identical constitutional its tax rolls cannot provide. Far from being provision did not bar such disparities "because that necessary to promote local fiscal choice, the clause should not be interpreted to prevent local dis- present financing system actually deprives tricts from supplementing beyond this minimum the less wealthy districts of that option.37 ~tandard."~aIn almost all of these cases, the courts showed great deference to legislative judgments. For Although the court's opinion implies a financing example, in New Y0rk,~9where the plaintiffs had ar- scheme that will provide equal per pupil spending, gued that the school finance system should consider the court did not specify a remedy; rather, it merely "municipal and education overburden" in the distri- remanded the case back to the lower court for further bution of school funds, the Court said: proceedings.38 The following year, in Robinson v. CahiN, the Because decisions as to how public funds will New Jersey school finance law was invalidated by the be allocated among the several services for state's high court, but on an entirely different which by constitutional imperative the Leg- ground.39 The New Jersey court found that the de- islaturc is required to make provision are centralized method of local school finance violated matters pcculiarly appropriate for formula- that provision of the New Jersey Constitution requir- tion by the legislative body (reflective of and ing the legislature to provide for a "thorough and effi- responsive as it is to the public will), we cient system of free public schools."40 The Court did would be reluctant to override those deci- not define the specific contours of such a "thorough sions by mandating an even higher priority and efficient" system, but did note that: for education in the absence, possibly, of gross and flaring inadequacy.50 The constitution's guarantee must be understood to embrace that educational opportu- Similarly, the Idaho Supreme Court51 rejected a nity which is needed in a contemporary set- challenge to that state's school finance system be- ting to equip a child for his role as a citizen MUSC and as a competitor in the labor market.41 . . . to do otherwise would be an unwise and Because education is a "fundamental interest," the unwarranted entry into the controversial Court said, the state must meet its "strict scrutiny"in area of public school financing, whereby this defining and providing a "thorough and efficient" court would convene as a "super-legisla- education. ture," legislating in a turbulent field of so- California and New Jersey were not the only cial, economic, and political policy.52 states to consider the constitutionality of their school In decisions based principally on state protection finance systems. In fact, between 1971 and 1983, the clauses, the courts usually held that education was constitutionality of state school finance statutes was not a "fundamental interest" and, therefore, that the considered by 21 different state supreme courts.42 disparities in school funding and expenditure caused Some were "equal protection" cases, as in Serrano; by state finance systems needed to be justified only by some were "thorough and efficient" cases, as in a "rational purpose" test. For example, after deter- Robinson v. Cahill; others raised different state con- mining that education was not a "fundamental inter- stitutional issues altogether. Whatever the particular est," the Oregon Supreme Court53 balanced "the in- allegation, the state supreme courts were fairly terest impinged upon-educational opportunity . . . evenly divided in their responses: 12 courts upheld against the state objective in maintaining the present the state school finance statutes,43while 9 held that system of school financing-local control."54 In they violated either the "thorough and efficient" or Ohio,55 after rejecting the "fundamental interest" "equal protection" provision of the state constitu- contention, the court hcld that the disparity in fund- tion.44 ing "is the product of a system that is [not] so irra- The courts articulated three reasons for rejecting tional as to be a violation of the equal protection and challenges under the "thorough and efficient" benefit clause."56 Courts reached similar conclusions clauses: that the clause did not suggest uniformity; in Arizona,57 Illinois,58 and Michigan.60

112 Advisory Commission on Intergovernmental Relations On the other hand, nine state supreme courts uted to school districts."ea In some cases-California, struck down school finance statutes under either Connecticut, Kansas, New Jersey, and Washington, state constitutional "thorough and efficient" provi- for example-the legislatures were reacting to state sions or "equal protection" requirements. The Con- supreme court decisions that had held the old sys- stitution of the State of Washington, for example, af- tems to be unconstitutional. In other states-Idaho ter requiring that the legislature "provide for a and Massachusetts-there was the need to address general and uniform system of public schools," goes funding problcms brought about by citizen-initiated on to state that "it is the paramount duty of the state property tax limitations. In most states, however, to make ample provision for all children residing school finance reform was put on the agenda by a va- within its borders."61 The Washington Supreme riety of factors, including not only court decisions and Court,62 in striking down the state's school finance tax limitations, but also the need for property tax re- law, made an explicit connection between these two form, the research and networking activities of such provisions, maintaining that: groups as the Education Commission of the States Flowing from this constitutionally imposed and the National Conference of State Legislatures, "duty" is its jural correlative, a correspon- federally funded studies of state school finance sys- dent "right". . .. Therefore all children resid- tems, and the need to address the special educational ing within the borders of the State possess a requirements of high-cost segments of the pupil "right" arising from the constitutionally im- population, such as handicapped and bilingual stu- posed "duty."63 dents.69 Thus, school finance reform was not designed The legislature, by delegating so much of the finan- merely to equalize per pupil expenditures, although cial responsibility for education to local communities, certainly the reform measures were equalizing in this was shirking its constitutional "duty" and violating sense.70 The school finance reform measures enacted the "rights" of state residents. Similarly, the Con- by the states during the 1970s also addressed taxpayer necticut Supreme Court64 had difficulty with the equity, the high costs of bilingual, compensatory, and delegation of responsibility to local school districts. handicapped educational programs, and educational In finding the state's school finance law to be uncon- improvement generally. It was possible to pursue all stitutional, the court commented that "the duty to of these goals simultaneously because state govern- educate is that of the state; delegating that duty does ments wcre willing to put substantial new revenues not discharge it."65 In finding Arkansas' school fi- into education. The magnitude of this effort can be nance law unconstitutional,66 the Court cornmcntcd gaugcd 1)y thc hct that state spending for education that where local school districts could not provide the triplcd bctwccn 1969 and 1979, increasing from un- "general, suitable, and efficient" education required der $14 billion to approximately $42 billion. While lo- by the Constitution,e7 then the state must. cal spending also increased during this period (from In the five cases in which state school finance about $18 billion to $38 billion), the state share of the laws were found to violate the equal protection state-local cost of education went from about 43 per- clause of the state constitution, the courts tended to cent to 52 percent.71 This increase in state support rely on the reasoning of the California Supreme had several consequences for school finance reform. Court in its Serrano decision, finding that education is First, the states were able to "level up" low a "fundamental interest" and that the state's concern spending districts toward the levels of the higher with "local control" is insufficiently "compelling" to spending districts. Many states simply increased their justify the disparities in funding and expenditure. foundation levels and adjusted their formulas so that Regardless of the basis of the decision, and al- almost all of the new funding went to the poorer dis- most independent of whether the state supreme tricts. A few states, Utah and Montana, for example, court upheld or struck down the finance law, the found it necessary to include "recapture" provisions, court decisions started a virtual revolution in school so that a portion of the "excess" funds generated by finance as state legislatures across the nation were wealthy school districts through property taxation called on to struggle with defining the states' role in went to the state for redistribution to the poorer dis- education and with creating funding mechanisms that tricts.72 Other states made it difficult for high spend- could assure a "thorough and efficient" education. ing districts to increase expenditures, either by requiring local voter approval or by putting a "cap" on State Legislatures, State Constitutions, the rate of increase. and State School Finance Laws Second, the new state money for school finance According to a 1979 study by the Education was often used for property tax relief. Property-poor Commission of the States, "Within the past decade, districts had been forced previously to tax themselves more that half of the states have passed laws signifi- at high rates to meet the rising costs of education. cantly changing the way by which state aid is distrib- Many states-Colorado, Connecticut, Illinois, Kan-

Advisory Commission on Intergovernmental Relations 113 sas, Michigan, New Jersey, Ohio, and Wisconsin, for he was willing to support $800 million in new state example-adopted some form of district power education aid, but only if there were "structural re- equalizing formula, thus providing for a greater de- forms" in education. The resulting bill combined fur- gree of taxpayer equity. In addition, other states ther school finance reform with fundamental changes adopted property tax circuit breakers to provide some affecting both students and teachers. The law, in the property tax relief for elderly and low-income taxpay- words of one commentator, "went beyond the techni- ers. cal periphery of education into the core of the in- Third, many states recognized the special high- structional process to set standards on what should be cost needs of certain school districts and pupil popu- taught, how it should be taught, and who should teach lations. Michigan, for example, recognized the prob- it."T7 Thus, starting with the fairly straightforward, al- lem of "municipal overburden" by providing though complicated issue of "fiscal neutrality," Cali- additional school aid to all districts in which the non- fornia began to address the most fundamental ques- educational tax rate exceeded the state average by tions about the role of the state in education. more than 25 percent. Florida pursued the same goal Developments in other states, while not as dra- by building a cost-of-living factor into its school aid matic or well documented, followed a similar path. In formula. Other states-Utah, New Mexico, Kansas, Arkansa~,~~Connecticut,79 and New Jersey,so what Colorado, Maine, Montana, Nebraska, and Texas, for began as school finance reform moved quickly to example-adjusted their formulas so as to recognize broader questions of school improvement and educa- the special problems of districts with small numbers tional reform. Even in those states where the state of students, sparse populations, or rural isolation. high court had upheld the state school finance law, States also recognized the high costs of special-needs state legislatures felt compelled to deal with matters pupils, either by improving the weighing system in of school finance and educational improvement. For their general aid formulas or by developing targeted example, in New Y~rk,~'where the state court had categorical programs. upheld the school finance law, the legislature never- All of these changes took placc within thc con- thclcss providcd $630 million in new state aid for text of continuing school finance litigation. The situ- education, thc largcst single-year increase in state ation that developed in California is an especially in- history. In addition, the legislature adjusted the teresting example for the interaction of state courts, school aid formula to provide greater aid to low- state legislatures, and political and fiscal develop- wealth districts. In Texas,@where the Rodriguez case ments generall~.~3After the supreme court's original originated, thc legislature provided $2.8 billion over Serrano decision in 1971, holding the state's school fi- three year sforboth equalization and school improve- nance law unconstitutional, the legislature enacted a ment purposes. Under the state's new foundation palliative measure greatly increasing state funding program, "the 71 poorest districts. . . received an ad- for education and placing a cap on local school spend- ditional $220.1 million or an average increase of 46.3 ing. In 1976, the supreme court held that this was in- percent; the 176 wealthiest districts. . .lost $21.6 mil- sufficient and that the amended law still violated the lion, a 20.5 percent decrease in per pupil revenue."a equal protection clause of the California Constitu- The new state money was directed more at education.74 In response, the legislature adopted an en- tional improvement than at equalization.84 In the tirely new school finance law based on a district words of H. Ross Perot, the chairman of Texas' Select power equalizing formula. The new law also con- Committee on Public Education, "A million dollars tained provisions for a massive program of educa- for reform but not a penny for the status quo."85 tional improvement. But nine months later, the vot- In other states where state supreme courts had ers approved Proposition 13, which effectively upheld school finance laws, legislatures nevertheless eliminated 60 percent of local tax revenues and de- took second looks at education policies and often stroyed the fiscal assumptions underlying the school made significant financial and programmatic finance bill. The state legislature promptly passed a changes. State court decisions and opinions, and sometimes even the threat of court action, were series of "bail-out" measures which, in effect, pro- among the many factors that led the states to recon- vided more state funding for those districts most af- sider school finance and the role of the state in educa- fected by Proposition 13. The California Supreme tion generally. Court upheld the new school finance law,75 noting that "significant parity" had been achieved because over 90 percent of the per pupil expenditures within Conclusion the state were within a range of $100. According to some observers, "School finance Nevertheless, the supreme court's approval of through the local property tax is one of those estab- the school finance law did not end the legislature's lished institutions that can profit from forced reex- redefinition of the state's role in In amination."a6 In some ways, the U.S. Supreme 1983, Governor George Deukmejian announced that Court's decision in the Rodriguez case was regretta-

114 Advisory Commission on Intergovernmental Relations ble. Perhaps it might have been better if the court guage. See Robert L. Brunhouse, The Counter- Revolu- tion in Pennsylvatzia 1776-1 790 (Harrisburg: The had overturned Texas' school finance law and re- Pennsylvania Historical and Museum Commission, manded it back to the state for a "forced reexami- 1971). nation." Yet, such a ruling would have been problem- 6Constitution of Massachusetts, Chapter V, Section 11. atic, because it would have subjected the states to 7Ibid. continuing supervision by the federal judiciary. Such 8See R. Freeman Butts, Public Education in the United a forced reexamination has occurred without federal States: From Revolution to Reform (New York: Holt, court mandates. Referring to the decision of the Cali- Rinehart and Winston, 1978). fornia Suureme Court in Serrano, Judith Areen and QFor exam~le.Connecticut established a small school Leonard ROSS claim that it "was a bold and, so far as fund in 1796, funded largely from the sale of public land. can be told, singularly successful undertaking, if SUC- New York also established a small fund in 1795, but repealed it in 1800. Delaware, Maryland, New Jersey, and cess is defined in the precise sense of forcing a reex- South Carolina established similar small funds between amination and encouraging a transition to a less ran- 1811 and 1817. For more details, see Butts, Public Educa- dom system . . . both in California and elsewhere."87 tion in the United States. In a complex area like school finance, there may 1OFor an excellent discussion of the role of the private be important differences between decisions by the academies, see Michael B. Katz, Class, Bureaucmcy and USSupreme Court on the basis of the United States Schools (New York: Praeger Publishers, 1971). Constitution and decisions made by state supreme On the struggle over who should control the schools, see Diane Ravitch, The Great School Wars: New Yo& City, courts on the basis of state constitutions. If the U.S. 1805-1973 (New York: Basic Books, 1974), esp. pp. 3-79. Supreme Court had decided Rodriguez differently, it l2See Butts, Public Education in the United States. would have needed to articulate a single, uniform, 13Today, the most popular language is "general and uni- national standard-probably either fiscal neutrality form," used by seven states, and "thorough and effi- or equal per pupil expenditure. Neither standard cient," also used by seven states. Other phrases in use in- seems flexible enough to accommodate the various clude "general, suitable and efficient," "thorough and purposes that a well-designed school finance system uniform," "general and efficient," "uniform," "general, uniform, and thorough," "complete and uniform," and must serve, including both tax reform and school im- simply "efficient." provement. However, state supreme courts, whether 141n addition to Michael Katz's Class, Bureaucmcy and overruling or upholding state school finance statutes, Schools, see also his detailed study of developments in have encouraged a reexamination of the state role in Massachusetts, The Irony of Early School Reform (Bos- school finance and in education generally-a reex- ton: Beacon Press, 1968). amination that has led to significant changes. '=The character of a state's involvement in education appears to be a function of its political culture, its pattern NOTES and time of settlement, and its geography. For a study of the continuing impact of these factors on state education 'The constitutions of 40 states clearly mandate that the policy, see Frederick Wirt, "School Policy, Culture and legislature "establish," "maintain," "support," or "pro- State Decentralization," in Jay D. Scribener, ed., The vide for" some sort of system of public schools. There is Politics of Education (Chicago: University of Chicago some ambiguity about the constitutions of Iowa, Louisi- Press, 1977), pp. 164-187. ana, Maine, Massachusetts, Mississippi, New Hamp- shire, New Mexico, Rhode Island, Tennessee, and Ver- l6E. P. Cubberley, School Funds and TheirApportionment mont. For example, Article IX, Section 6 of the Iowa (New York: Columbia University Teachers College, 1905). See also the later work of Cubberley's students, G. Constitution provides that "The Legislature shall en- K. courage, by all suitable means, the promotion of intcllcc- D. Straycr and M. Haig, The FinancingofEducationin tual, scientific, moral and agricultural improvcnicnt" the Sfale ofNew York (New York: The Macmillan Com- (emphasis added). However, Section 12 of the same Arti- pany, 1923). cle goes on to require that "The Board of Education shall '7John Augenblick, "Taking Stock on School Finance Re- provide for the education of all the youths of the State, form: A State-Ievel Update," School Finance in the through a system of Common Schools." 1980s (Washington, DC: League of Women Voters Edu- cation Fund, 1982). p. 9. 2San Antonio Independent School District v. Rodriguez, 411 U.S. l(1973). j6See Paul R. Mort, State Support for Public Edzrcation (Washington, DC: The American Council on Educa- 3See Lorraine McDonnell and Susan Fuhrman, "The Po- tion, 1933). Mort was also Cubberley's student at Colum- litical Context of Reform," in Van D. Mueller and Mary bia. P. McKeown, eds., The Fiscal, Legal and PoliticalAspects 19For agood, brief explanation of foundation plans, see El- of State Reform of Elementary and Secondary Education chanan Cohen, Economics of State Aid to Education (Cambridge, Massachusetts: Ballinger Publishing Com- (Lexington, Massachusetts: D.C. Heath and Company, pany, 1986), pp. 43-64. 1974), pp. 50-52. 4The seven were Delaware, Georgia, Massachusetts, New 20The relationship between school district wealth and per Hampshire, North Carolina, Pennsylvania, and Ver- pupil expenditure continues to evoke controversy. While mont. there is a positive correlation between the two, local 5It is interesting to note that this mandatory provision was wealth is not the only determinant of spending. For a not included when Pennsylvania wote a new constitu- fuller discussion, See Patricia R. Brown and Richard F. tion in 1970; rather, it was replaced with permissive lan- Elmore, "Analyzing the Impact of School Finance Re-

Advisory commission on intergovernmental Relations 115 form," in Nelda H. Cambron-McCabe and Allan Odden, 359 (1982); Board of Education v. Walter, 58 Ohio St. editors, The Changing Politics of School Finance 368,390 N.E.2d 813 (1979); Olsen v. Oregon, 276 Ore. 9, (Cambridge, Massachusetts: Ballinger Publishing com- 554 P.2d 139 (1976); Danson v. Casey, 484 Pa. 415, 399 pany, 1982), pp. 107-138. A.2d 476,585 P.2d 71 (1978); Pauley v. Kelly, 162 W. Va. 2l According to a study by the U.S. Advisory Commission 672,255 S.E.2d 859 (1979); Buse v. Smith, 74 Wis.2d 550, on Intergovernmental Relations, citizens rate the prop- 247 N.W.2d 141 (1976), and; Washakie County School erty tax as the "least fair." See Changing Public Attihrdes District No. 1v. Herschler, 606 P.2d 310 (1980). on Governmentsand Taws 1987 (Washington, DC: U.S. 43Arizona, Colorado, Georgia, Idaho, Kentucky, Mary- Advisory Commission on Intergovernmental Relations, land, Michigan,* Montana, New York, Ohio, Oregon, 1987), p. 5. In March 1972, the first date for which the and Pennsylvania. ereversing an earlier decision) data are available, 45 percent of Americans rated the 44Arkansas, California, Connecticut, Kansas, New Jersey, property tax as the least fair. Washington; West Virginia, Wisconsin, and Wyoming. Z2For a good discussion see, Frederick W. Wirt and ereversing an earlier decision) Michael W. Kirst, Schools in Conflict IBerkelev. Califor- 45Hornbeck v. Somerset County Board of Education. nia: ~c~utchanPublishing company, l%82), pp. 461bid., 777. 253-276. 47Lujan v. State Board of Education. Z3LeBeauf v. State Board of Education, 244 F.Supp 256 (1965). 48Ibid., 1025. 24Ibid., 260. 49Board of Education v. Nyquist. 25McInnis v. Shapiro, 293 F.Supp 327 (1968). 501bid., 369. 51 Thompson v. Engleking. ZeIbid., quoting Mr. Justice Holmes in Dominion Hotel v. Arizona, 249 U.S. 265 (1919), 268. 521bid., 640-41. 27Burrus v. Wilkerson, 310 F.Supp 572 (1969). 5301sen v. Oregon. Z61bid., 572. 54Ibid., 155. 29Hargrave v. McKinney, 413 F2d 320 (1969). 55Board of Education v. Walter. 30Askew v. Hargrave, 401 US. 475 (1971). SBIbid., 821. 57Shofstall v. Hollins. 3'Van Dusartz v. Hatfield, 334 F.Supp 870 (1971). 58People ex re1 James v. Adams, 40 Ill. App. 3d 189 (1976). 32Rodriguez v. San Antonio Independent School District, 377 F2d 280 (1971). 59 Woodahl v. Straub. 33San Antonio Independent School District v. Rodriguez 60Milliken v. Green. 411 U.S. 1 (1973). 61 Constitution of Washington, Article IX,Sections 1 and 2. 34 Judith Areen and Leonard Ross, "The Rodriguez Case: Judicial Oversight of School Finance," in Philip B. Kur- 62Seattle School District No. 1v. State. land, ed., The Supreme Court Review 1973 (Chicago: Uni- WIbid., 91. versity of Chicago Press, 1974), p. 38. 64Horton v. Meskill. 35See, for example, Sawyer v. Gilmore, 109 Me. 169,83Atl. (?5Ibid., 816. 673 (1912); Miller v. Korns 107 Ohio St 287,104 N.E. 773 66Duprcc v. Alma School District No. 30. (1923), and; Ehret v. School District, 333 1%. 518,s A.W 67Constilution of Arkansas, Article XIV,Section 1. 188-1 (1939). -, 36Serrano v. Priest, 5 Cal.3rd 584, 584 P.2d 1241 (1971). 66Allan Odden and John Augenblick, School Finance Re- form in the Slates: 1980 (Denver: Education Commission 37Ibid., 1252. of the States, l980), p. 1. 381n Serrano v. Priest, 135 Cal.Rptr. 435 (19761, the trial 69FOr an analysis of the forces behind the school finance court also found the by then revised state school finance reform movement, see Susan Fuhrman, State Education law unconstitutional. Politics: The Case of School Fiance Reform (Denver: Edu- 3gRobinson v. Cahill, 62 N.J. 473,303 A.2d 273 (1972). cation Commission of the States, 1979), esp. pp. 15-20. 40New Jersev Constitution Article VIII, Section 4, ~ara.1. 70There continues to be considerable debate about the 41 Ibid., 295. "equalizing" impact of school finance reform. For an interesting analysisof the various meanings of equality, see 42Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973); the yearly reports published by the Education Commis- Dupree v. Alma School District No. 30,279 Ark. 340,651 sion of the States under the title, School Finance Reform S.W.2d 90 (1983); Serrano v. Priest, 5 Cal.3rd 584, 584 in the States. See also, John E. Coons, "Recent Trends in P.2d 1241 (1971); Lujan v. State Board of Education, 649 Science Fiction: Serrano among the People of Number," P.2d 1005 (1982); Horton v. Meskill, 172 Conn. 615,376 in Roy C. Rist and Ronald J. Anson, eds., Education, So- A.2d 359 (1977); Thomas v. McDaniels, 248 Ga. 632,285 cia1 Science and the Judicial Process (New York: Teachers S.E.2d 156 (1981); Thomspon v. Engleking, 96 Ida. 793, College Press, 1977), pp. 50-71, and Brown and Elmore, 537 P.2d 635 (1975); Kansas v. State Board of Education, "Analyzing the Impact of School Finance Reform." 219 Kan. 271,547 P.2d 699 (1976); Board of Education of Louisville v. Board of Education of Jefferson County, 71Computed from data in Allan Odden and John 458 S.W.2d 6 (1970); Hornbeck v. Somerset County Augenblick, School Finance Refonii in the States: 1980, p. Board of Education, 295 Md. 597,458 A.2d 758 (1983); 25. Milliken v. Green, 389 Mich. 1,203 N.W.2d 457 (1972); 72In Buse v. Smith. the Wisconsin Supreme Court struck Woodahl v. Straub, 164 Mont. 141,520 P.2d 776 (1974); such a "recapture" provision of the school finance law Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1972); because it violated the state constitutional requirement Board of Education v. Nyquist, 57 N.Y.2, 439 N.E.2d for "uniform taxation." On the other hand, the Montana

116 Advisory Commission on Intergovernmental Relations Supreme Court upheld such a provision in Woodahl v. 80On New Jersey, see Richard Lehne, Tlie Quest forJmtice: Strabu. The Politics of School Finance Reform (New York: 73For a description of the politics of school finance reform Longman, 1978). in California, see Fuhrman, State Edircation Politics: The 81 See James G. Ward and Charles J. Santelli, "The Politi- Case of School Fiance Reform, pp. 50-60 and 72-78. cal Economy of Education Reform in New York," in 74Serrano v. Priest, 135 Cal .Rptr. 435,557 P2d 929 (1976). Mueller and McKeown, The Fiscal, Legal and Political 75Serrano v. Priest, 226 Cal. Rptr. 584 (1986). Aqectsof State Reform of Elementary and Secondary Edrr- cation, pp. 203-222. 7%ee Diane Masell and Michael W. Kirst, "State Policy- making for Educational Excellence: School Rcform in @See Deborah A. Verstegen, Richard Hooker, and Nolan California," in Mueller and McKeown, The Fiscal, Legal Estes, "A Comprehensive Shift in Educational Policy- and Political Aspects of State Rejbnn of Elenientary and making: Tcxits Educational Reform Legislation," in Secondary Education, pp. 121-144. Muellcr and McKeown, The Fiscal, Legal and Political Aspectsof State Kefonn of Elementary and Secondary Edu- 77Ibid., p. 135. cation, pp. 277-308. 78On school politics in Arkansas, see Diane D. Blair, Ar- kansas Government and Politics: Do the People Ride? 83Ibid., p. 300. (Lincoln: University of Nebraska Press, 1988), pp. 841bid., pp. 298-304. 252-263. 85Ibid., 284. 79On the politics of school finance reform in Connecticut, see Ellis Katz, American Education 1980:A Kewfrom the 86Areen and Ross, "The Rodriguez Case: Judicial Over- States (Washington, DC: Institute for Educational Lead- sight of School Finance," p. 54. ership, 1981), pp. 14-17. 87 Ibid., p. 55.

Advisory Commission on Intergovernmental Relations 117 118 Advisory Commission on Intergovernmental Relations Chapter 10 State Constitutional Law: The Ongoing Search for Unity and Diversity - - in the American Federal System

The invention of American federalism in 1787 clear, rational formula to make the choice for us. In- represented an attempt to provide for both unity and stead, the choice is left to the political process-to diversity: unity to meet the foreign and domestic chal- courts, legislatures, and executive agencies. lenges that confronted the new nation, and diversity The Supreme Court to accommodate the expanse of the nation and to maintain state and local political arenas in which citi- and the Search for Balance zens could make meaningful decisions. In the words The Supreme Court of the United States has of Daniel J. Elazar: played, and continues to play, an important role in balancing the needs for uniformity and diversity. Federalism involved the linking of individu- Chapter 2 of this study explored contemporary feder- als, groups, and polities in lasting but limited alism doctrines of the U.S. Supreme Court and sug- union in such a way as to provide for the en- gests that the Court's solicitude toward "Our Feder- ergetic pursuit of common ends while main- alism" may create new opportunities for state taining the respective integrities of all par- economic policies. Although the situation is complex ties.' and still evolving, carefully drawn state statutes can pass constitutional muster under the Court's current The pursuit of both unity and diversity is quite com- doctrines of preemption, the dormant power of the patible. Unity and diversity are not opposites: the op- commerce clause, and the takings, due process, and posite of unity is disunity, while the opposite of diver- equal protection clauses of the Fourteenth Amend- sity is uniformity. ment. This does not deny the need for some uniformity, Similarly, as suggested in chapters 4 and 6, the although it is clearly secondary to the need for unity. U.S. Supreme Court seems willing to show greater There are ways in which it is desirable to treat indi- deference to diversity in crucial areas of state civil viduals uniformly, and certainly there are occasions rights and liberties policy. The most promising devel- when the requirements of a national economy man- opment for federalism in this area is the doctrine of date uniform rules. For at least three reasons, how- adequate and independent state grounds, under ever, federalism also places high value on diversity. which thc U.S. Supreme Court will not review state First, diversity in public policies reflects thc plur a I'~sm court dccisions il' they are based clearly and unambi- of the nation itself, in terms of its complex history, guously on state, rather than federal constitutional culture, geography, and people. Second, diversity grounds. The obvious implication of this doctrine is fosters experimentation, allowing states and locali- that if state policies are to be insulated from federal ties to try out a variety of solutions to increasingly review, state court judges must base their decisions complicated problems. Third, by allowing communi- on their state constitutions. ties to make important policy choices, we encourage It needs to be stressed that these Supreme Court participation and foster democratic citizenship. doctrines, both in the economic and civil liberties However, recognizing the need for both uni- fields, are evolving. One cannot predict how these formity and diversity does not tell us when to opt for doctrines will be used in the future. Chapter 2 of this one rather than the other. While common sense and study concluded with Napoleon's observation that, logic are sometimes helpful in sorting out the com- "The tools belong to the man who can use them."The peting needs for uniformity and diversity, there is no U.S. Supreme Court appears to have provided the

Advisory Commission on Intergovernmental Relations 119 states with new opportunities to forge their own con- the late 19th century when their first constitutions stitutional polices. The future of these opportunities were written, and then go on to specify the structure depends, in large part, on how the states use them. of state government and the distribution of powers within it in the style of the times. Their constitutions State Constitutional Traditions tend to be business-like documents of moderate Not only do state constitutions differ in function length and reflect the relative homogeneity of the and style from the Constitution of the United States, states themselves." they also differ among themselves. According to 6. The Managerial Pattern. Written during the Daniel J. Elazar, American state constitutions follow 19.50s, the constitutions of Alaska and Hawaii em- six distinct patterns.2 phasize "conciseness, broad grants of powers to the 1. The Commonwealth Pattern. Typical in the state executive branch, and relatively few structural New England states, these constitutions "are basi- restrictions on the legislature. Their constitutions cally philosophic documents designed first and fore- also feature articles dealing with local government, most to set a direction for civil society and to express natural resource conservation, and social legisla- and institutionalize a theory of republican govern- tion." ment. . . .These constitutions, as brief or briefer than This typology of state constitutional patterns is the federal document, concentrate on setting forth useful in many ways, particularly in reminding us that the philosophic basis for popular government, guar- constitutions are not simple technologies that can be anteeing the fundamental rights of the individual and transferred from one setting to another. State consti- delineating the elements of the state's government in tutions, in Elazar's terms, connect "political ideas, a few broad strokes." political culture and institutional development." One finds both uniformity and diversity among state con- 2. The Commercial Republic Pattern. This pat- stitutions. Within each state constitutional pattern, tern prevails in the Middle Atlantic states and the one finds identical language and similarities in the states to their immediate west. According to Elazar, application of such political ideas as the separation of "These states have built their constitutions upon a se- powers. On the other hand, across patterns, one dis- ries of compromises required by the conflict of ethnic covers considerable diversity in terms of the very pur- and commercial interests and ideals created by the poses of government and the ways in which political flow of various streams of migrants into their terri- authority is distributed, both among the branches of tories, and the early development of commercial cit- government and between the state and its communi- ies. . . . These constitutions tend to be longer than ties. Furthermore, even identical state constitutional those written in the commonwealth mold, primarily provisions can have different meanings in different because the compromises written into them have had contexts. Thus, the phrase "a thorough and efficient to be made explicit and presented in detail to soften system of public education" can take on different potential conflicts between rival elements that have meanings within the contexts of different state con- sharply divergent views of what is politically right and stitutional traditions. proper." It is unlikely that this diversity among state con- 3. The Southern Contractual Pattern. Elazar stitutions threatens national unity or that a uniform- notes that except for North Carolina and Tennessee ity of state constitutions is either necessary or desir- none of the southern states has had fewer than five able. The diversity of state constitutions is an constitutions, and he then goes on to suggest that, expression both ol' the diversity of the nation itself "Southern state constitutions are designed to diffuse and of the commitment of American federalism to al- the formal allocation of authority among many of- low that diversity to be articulated in the most funda- fices in order to accommodate the swings between mental ways. oligarchy and factionalism characteristic of Southern State Constitutional Law state politics. Perhaps because of the fluctuating bal- and Individual Liberties ance of factions in many of the Southern states, their citizens have been more tempted to write into their Whatever the merits of diversity among state constitutions materials normally included in ordinary constitutions, it is sometimes argued that we cannot legislation." accept diversity in matters of individual liberty. Americans, no matter where they live, are citizens of 4. The Civil Code Pattern. Reflecting its unique the United States, and must enjoy equally the rights history, Louisiana's constitutions "have been more guaranteed by the Constitution of the United States. like the basic civil codes of European countries-long The unstated premise underlying this argument is [and] detailed." often the belief that a national definition of rights will 5. The Frame of Government Pattern. Found expand the scope of individual liberty. The states, among the less populated states of the Far West, quite simply, are not to be trusted in this area. these constitutions "are frames of government first Chapter 4 of this study explored this argument in and foremost. They reflect explicitly the republican some detail. It suggests, first of all, that the definition and democratic principles dominant in the nation in of rights is not always a matter of more or fewer

120 Advisory Commission on Intergovernmental Relations rights. Often, it is a matter of resolving a conflict be- 100 cases in the last 20 years in which state courts tween rights, as in the right of reporters to refuse to have struck down state economic regulations as vio- reveal their news sources versus the right to a fair lating state constitutional equality provisions. trial, and the conflict between free speech and the However, many people are concerned about the protection of private property. Different states have protection of racial, ethnic, and religious minori- resolved these conflicts differently. Most important, ties-as well as about sex discrimination-under where state courts have recognized the legitimacy of state constitutions. The preceding chapters suggest the rights claimed on both sides of a conflict, they that the record of the states in this regard has been have struck different balances between them, seek- mixed. On the one hand, chapter 4 points out that 19 ing to accommodate both claims in keeping with its states had enacted equal pay laws before the Con- own state constitutional tradition. gress of the United States passed its equal pay law in Furthermore, the argument that the states are 1963; that 17 states had fair housing laws prior to the incapable of protecting rights adequately seems to passage of a national fair housing law in 1968; and have little merit in the context of the 1980s. Chapter that 19 states have constitutional prohibitions against 4 points out that, today, the states often take the lead sex discrimination despite the failure to add a federal in defining and expanding individual liberty. Chapter equal rights amendment to the U.S. Constitution in 6, which focuses on criminal procedure, documents the 1970s. On the other hand, while chapter 5 reports the extent to which the states have shown sensitivity on some major state supreme court decisions under to the rights of criminal defendants. their state ERAS, state supreme courts, by and large, Today, a total dependence on the national gov- continue to look to the U.S. Supreme Court for lead- ernment for a uniform definition of rights would, in ership in this field. Clearly, the richness of state con- all likelihood, diminish the scope of individual liberty stitutional equality provisions provides opportunity in the United States. The development of an inde- (and perhaps even a mandate) for state courts, as well pendent state constitutional law of civil liberties, on as state legislatures and executives, to address these the other hand, would not only be likely to expand in- concerns. dividual rights but would also encourage experimentation in developing appropriate balances when State Constitutional Law rights are in conflict. and the Regulation of Property Since 1937, the U.S. Supreme Court has allowed State Constitutions and Equality the states a relatively free hand in the regulation of The principal equality provision of the U.S. Con- property. State courts, as chapter 7 reports, continue stitution is the equal protection clause of the Four- to play an important role in the forging of state regu- teenth Amendment, which provides: "No State latory policy. Employing state due process, equal pro- shall. . . deny to any person within its jurisdiction the tection, or right-to-remedy clauses, state supreme equal protection of the laws." State constitutions, on courts have stuck down more than 350 state statutes the other hand, contain a variety of equality provi- since the U.S. Supreme Court all but abandoned the sions, often designed to serve quite different pur- field in 1937. One should not conclude from this, poses. Chapter 5 of this study demonstrates how state however, that statc supreme courts are the captives courts have interpreted these state constitutional of powerful, vested economic interests. equality provisions to reach decisions quite different First, as chapter 3 of this study reminds us, state from those reached by the U.S. Supreme Court inter- constitutions are designed primarily to limit legisla- preting the federal Constitution. For example, an 11- tive authority. Because the states are the repositories linois court held that the state's no-fault automobile of all power not delegated to the federal government, insurance plan, which required the owners of private state constitutions are filled with limitations on the automobiles to purchase the no-fault insurance but exercise of state power, and go into considerably imposed limitations on tort recoveries of persons in- more detail about the protection of personal and jured by any type of motor vehicle, violated the Illi- property rights than does the U.S. Constitution. nois Constitution's prohibition against "special laws," Second, because state constitutions are much and a New Jersey Court held that the state's prohibi- easier to change than is the U.S. Constitution, judi- tion against the use of state money to pay for abor- cial activism by state judges does not pose the same tions violated the state constitution, despite the fact counter-majoritarian problem as would similar activ- that the U.S. Supreme Court had held that such pro- ism by the federal judiciary. State constitutions are hibitions do not violate the equal protection clause of amended regularly as the public mood shifts. the federal Constitution. These and other arguments about the proper Furthermore, while the U.S. Supreme Court has role of the state judiciaries in the protection of prop- all but abandoned the federal equal protection clause erty rights are detailed in chapter 7 of this study. as a defense of property rights, state supreme courts However one resolves this difficult issue, it may be continue to make substantial use of their state consti- that the participation of state judges in the develop- tutional equality provisions to limit state regulation ment of state public policies is quite different from of property. Chapter 7 of this study reports almost the participation of the federal judiciary in state

Advisory Commission on Intergovernmental Relations 121 policymaking. Clearly, the federal judiciary has cer- systems was left to the states. In both cases, state contain national interests to protect; it must, for exam- stitutional provisions and state political processes apple, assure that the economic policies of one state do pear adequate to the task of bringing about signifi- not discriminate against the economic interests of the cant change. other states. On the other hand, state constitutions, This lack of federal involvement also raises the written and ratified by state citizens, define the scope issue of what has been termed "horizontal federal- of state policy and the role of state courts in adjudi- ism"-the diffusion of innovations among the states cating disputes. Some state constitutions provide very without significant participation by the federal gov- detailed protections of property rights and clearly as- ernment. Judicial doctrines concerning school fi- sign to the judiciary the role of enforcing them. nance diffused rapidly among the states, while court Often, these constitutions are fairly easy to amend, rulings on workers' compensation have spread more and unpopular state supreme court decisions can be slowly. In both instances, the states, in adopting these reversed through the amendment process. In a very innovations, have adapted them to their own needs immediate sense, decisions about the legitimacy of and constitutional traditions. public policy and the role of the courts remain with the state and its citizens. Unity, Uniformity, and Diversity State Constitutional Law and Public Policy Every coin of the United States carries the Latin inscription, "E Pluribus UnumV-translated as "one Not only do state constitutions limit state legisla- out of many."3 This commitment to both unity (the tive authority, they also sometimes mandate legisla- "one") and diversity (the "many") captures the value tive action. In the two areas of public policy examined underlying American federalism. The American in this study-workers' compensation in chapter 8 states function within the overarching framework of and educational reform in chapter 9-both state con- the U.S. Constitution and the values it embodies. At stitutional limitations and mandates served as the the same time, the American states are polities, em- framework for the development of state policy. With powered by the U.S. Constitution to make policy regard to workers' compensation, a few state su- choices in keeping with their own needs, cultures, preme courts looked to state constitutional right-to- and traditions. In keeping with this commitment to remedy clauses to create exceptions to the exclusivity diversity, the states adopt their own constitutions ac- requirement of their workers' compensation statutes. cording to their particular circumstances and govern In other words, they used a constitutional right as a themselves in conformity with their constitutional limit on state constitutional authority. On the other choices. As this study has demonstrated, there is con- hand, several state supreme courts turned to the considerable diversity in how the states structure their stitutional mandate that the legislature provide for "a governmental processes and in how state courts in- thorough and efficient system of public education" to terpret these basic charters. strike down what they perceived to be inadequate fi- Critics sometimes argue that either the federal nancing and supervision of public education. Constitution has become so comprehensive that In neither case did the courts act alone; rather, there is little room left for meaningful constitutional they entered into what might be termed a dialogue choices by the states, or that to the extent that there with the political branches of government to bring continue to be gaps in the federal Constitution, they about what many considered to be much needed ought to be filled quickly because the states are sure change. Put somewhat differently, the state supreme to misuse their power. We hope that this study has courts did not, by themselves, make public policy; in- answered both of these criticisms and demonstrated stead, by interpreting their own state constitutional that the states have considerable constitutional limitations and mandates, they placed important pol- space, and, by and large, that they use it responsibly. icy questions on the political agcndas of their states and continued to participate in the poli~ymaking process within the framework of their own state con- Daniel J. Elazar, E~ploringFederalism (Tuscaloosa: Uni- stitutional requirements. versity of Alabama Press, 1987) p. 5. It is also worth noting that these are two impor- 2Daniel J. Elazar, "Principles and Traditions Underlying tant policy areas that remain outside of the purview American State Constitutions," Publilcs: the Jo1rn7al of of the federal Constitution and the federal judiciary. Federalism 12 (Winter 1982): 11-26. Indeed, in the 1970s, the Congress of the United 3Actually, there are five inscriptions on each American States deliberately decided not to enact a national coin: the denomination, the word "Liberty," and the workers' compensation statute, and the U.S. Su- phrases "In God We Trust." "United States of Amer- ica," and "E Pluribus Unum." For an interesting analysis preme Court, in 1973, held that the alleged inequities of America based on these five inscriptions, see John of state school finance schemes did not violate the Kincaid, "E Pluribus Unum: Pluralist Diversity and Fed- equal protection clause of the Fourteenth Amend- eral Democracy in America," in Stephen L. Schechter, ment to the federal Constitution. Thus, the reform of ed., Teaching about Atrierican Federal Democracy (Phila- both workers' compensation plans and school finance delphia: CSF Associates, 1984), pp. 33-48.

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