The Unused Toolbox Forging a Dynamic Future for Arizona’S Constitution © ARIZONA STATE LIBRARY, ARCHIVES and PUBLIC RECORDS, HISTORY and ARCHIVES DIVISION

The Unused Toolbox Forging a Dynamic Future for Arizona’s Constitution © ARIZONA STATE LIBRARY, ARCHIVES AND PUBLIC RECORDS, HISTORY AND ARCHIVES DIVISION. AND HISTORY AND PUBLIC RECORDS, ARCHIVES LIBRARY, ARIZONA STATE ©

Back in my litigation days, any time I had the ear of a state supreme court justice, I asked the same question: “Are you inter- ested in independently interpreting the Arizona Constitution?” Every justice responded with a variant of the same answer: “Absolutely, but we can’t do so unless lawyers raise and develop state constitutional issues.”

Now as a justice, I heartily concur in that state constitution class, would likely judgment. Lawyers who fail to develop state flunk the question. constitutional arguments often leave valu- That is a pity and a shame. One of able arguments—or causes of action and the great attributes of the American even entire cases—on the table. In most cas- republic is that we have not one con- es, even constitutional ones, the state constitution but 51. All state constitutions stitution is an afterthought, if it is thought are chock-full of provisions unknown to about at all. Hence, unless a case arises di- the federal constitution. But ours per- rectly from the Arizona Constitution, we haps more than most, owing to our late rarely have opportunity to consider what its arrival to the Union. As former Chief words mean. Justice Rebecca Berch has observed, That condition owes to the fact that few “The framers had the opportunity to lawyers have ever read their state constitu- ponder more than 100 years of United tions, or taken courses in it. When we took States history before penning their own “constitutional law” in our prescribed legal Constitution, allowing them to adopt or studies, it was as if there was only one con- adjust provisions employed by the fed- stitution. Were we ever to deviously sneak eral government or other states to meet a question about the Arizona Constitution Arizona’s needs.” into the bar examination—which, after all is The framers of our state constitu- the Arizona bar exam—most students, save tion viewed the combination of corpo- the handful who have taken Paul Bender’s rate and government power as a great

40 ARIZONA ATTORNEY OCTOBER 2018 www.azbar.org/AZAttorney CLINT BOLICK serves as a justice on the Arizona Supreme Court. danger, and many of its provisions reflect er protection to individual rights than do state constitutions can be read to provide that progressive-era philosophy. Hence the federal court decisions, but not less. And substantial protections of private property Declaration of Rights protects the right to so long as our decisions do not contravene rights, freedom of contract, and the right to recover damages for injuries and prohibits the national constitution or valid federal keep and bear arms. limiting the amount of recovery. We have an law, our courts have the final word on the State constitutions provide potential independently elected Corporation Com- subject. tools for all practitioners, including greater mission, often referred to as a fourth branch That vital attribute of federalism inspired access to the courts. For instance, our con- of government, empowered to regulate former U.S. Supreme Court Justice William stitution does not contain a “case or contro- utility rates and other corporate activities. Brennan to extol the virtues of state consti- versy” requirement, so that standing con- We have a clause prohibiting gifts of public tutionalism in a pair of law review articles. siderations that thwart many cases in federal funds (by subsidy or otherwise) to private Brennan feared that an increasingly con- courts might be litigated in Arizona courts, corporations, associations and individuals. servative court would erode many of the which treat standing as a prudential rather We have a provision forbidding govern- constitutional rights recognized during the than a mandatory requirement. Likewise, ment-conferred monopolies. We have an Warren era, particularly rights of criminal Arizona courts may consider cases that are explicit privacy guarantee. None of those defendants. So he urged liberal advocates moot or not yet ripe. Indeed, our constitu- provisions appear in the national constitu- to recourse to state constitutions to inde- tion gives the Supreme Court authority over tion, so it is entirely up to Arizona courts to pendently protect those rights. all procedural rules, which need not mirror interpret them and lawyers to litigate them. Many heeded the call, so that only a federal rules and can be initiated by petition. Failing to do so reduces them to mere ver- decade following his initial call to arms, A threshold issue in litigating state con- biage. Brennan was able to cite more than 250 stitutional issues is when and whether our Even when our constitution’s provisions state court decisions providing greater pro- courts should interpret the Arizona Consti- have counterparts in the national constitu- tection to individual rights than recognized tution independently of the federal consti- tion, we are free to interpret them different- under the federal constitution. Brennan rec- tution. So far our courts have done so on a ly than federal courts interpret the United ognized that state constitutionalism is not largely ad hoc basis. Many older cases state States Constitution. But we may do so only just a liberal doctrine but protects rights that we generally follow federal precedents in one direction: Our courts can give great- that conservatives cherish, as well. Indeed, in construing similar provisions in the state constitution, but they Arizona State Constitution, pgs. 1, 68, 69. are typically perfunc- tory and rarely explain why. In some areas, such as our speech provision (which is worded differently than its First Amendment counterpart), we have announced that our constitution provides greater protection than the federal constitution, but the contours of that protection are far from determined. Some states have followed a “lockstep” approach in which state courts follow federal precedents to interpret their state constitutions. I reject such an approach, for it ignores the presumably con- scious decisions of the framers to differentiate the wording of state constitutions from the national document.

www.azbar.org/AZAttorney OCTOBER 2018 ARIZONA ATTORNEY 41 A Dynamic Future for Arizona’s Constitution Making state constitutional Moreover, under the lockstep doctrine, ev- expectation of privacy (four ery time the U.S. Supreme Court changes of us concluded he did). The arguments—or failing to do its mind on a particular issue, it would have latter inquiry required us to the effect of essentially amending our state determine, among other so—can have important constitution. things, whether the privacy Instead, having taken an oath not only interest is “one that society real-world consequences. to the U.S. Constitution but to the Arizona is prepared to recognize as Constitution, I favor recognizing the inde- ‘reasonable,’” a standard I pendent vitality of each. Especially where criticized in a separate opin- the wording is different, we should give ion as “hopelessly subjective” and beyond would have been the same for Randy Bai- effect to those differences. Likewise, where the proper scope of judicial inquiry. ley as it was for Suzette Kelo. Instead, we the wording is similar, we should look to In my opinion, I noted that article 2, litigated it under article 2, section 17 of the meaning of the words when our consti- section 8 of the Arizona Constitution is the Arizona Constitution, which, like the tution was adopted, rather than reflexively worded quite differently from the Fourth Fifth Amendment, limits eminent domain adopting constantly evolving federal con- Amendment, providing that “No person to public use. But it also provides that stitutional precedents that might alter the shall be disturbed in his private affairs, or his “the question whether the public use be intended meaning of our provisions (again, home invaded, without authority of law.” really public shall be a judicial question, without making our constitution less pro- Other state supreme courts, construing and determined as such without regard tective of individual rights than the U.S. similar language in their constitutions, held to any legislative assertion that the use is Constitution). that warrants were necessary for GPS devic- public.” Relying on that distinction, the For courts to address those issues, liti- es in similar circumstances. But because the Court of Appeals, in a decision by Judge gators must take on the task of not merely parties did not fully develop state consti- John Gemmill, rejected the city’s use of raising them, but explaining in detail why tutional arguments in Jean, the Court had eminent domain. Because the Arizona and how we should (or should not) inter- to do its best to navigate difficult Fourth Constitution was held to provide greater pret our provisions differently than U.S. Su- Amendment jurisprudence. Our view could protection than its federal counterpart, the preme Court precedents interpreting similar change depending on future U.S. Supreme result was that even as Suzette Kelo and provisions. In turn, these questions provide Court decisions, whereas a decision under her neighbors were losing their homes and tremendous fertile ground for scholarly de- our constitution would not be subject to ev- businesses, Randy Bailey was able to keep velopment. If you’d like to have a law review er-evolving federal jurisprudence. his family business alive. article cited in a judicial opinion, chances A case that perhaps best illustrates the Surely, not every case asserting rights un- are good if you’re writing on an undevel- importance of independent interpretation der the Arizona Constitution will have such oped area of state constitutional law. is one my former colleagues and I litigat- a happy outcome. The State of Arizona has Our state’s constitutional history is rel- ed earlier in my career. Readers are surely extensive police powers, and it has invested atively scant. John Leshy and others have aware of the Kelo v. City of New London its subdivisions with broad authority. But performed a salutary task in compiling and case in which a 5–4 majority of the U.S. Su- there is no question that the framers of our explaining that history, which can inform preme Court, over a strong dissent by Jus- constitution intended Arizonans to enjoy constitutional interpretation. Arguing con- tice Sandra Day O’Connor, upheld under important freedoms beyond those recog- stitutional meaning also can encompass the the Fifth Amendment the city’s use of its nized under the U.S. Constitution and to meaning of the words at the time they were eminent domain power to take homes and limit the powers of government in signifi- used, examining sources of Arizona consti- businesses to make way for amenities for a cant ways. tutional provisions in other state constitu- local Pfizer plant. The Court reasoned that And unlike the national constitution, tions, and federal and state jurisprudence although the Fifth Amendment restricts ours is fairly easily amended. In recent years, concerning similar provisions at the time eminent domain to takings for “public Arizonans have made a number of rights our constitution was ratified. use,” it was proper in that case because the part of our organic law, including crime vic- Making state constitutional arguments— taking would confer a public benefit. Al- tims’ rights, the right to choose doctors and or failing to do so—can have important though the neighborhood was bulldozed, access potentially life-saving drugs, and the real-world consequences. A recent case, the new facilities were never built. right to secret-ballot elections to organize State v. Jean, presented the issue of whether Around the same time, we were liti- unions. It is safe to say that our constitution a warrant was needed to install a GPS device gating a case on behalf of Bailey’s Brake is an unfinished document. on a commercial vehicle that police suspect- Service against the City of Mesa. The city The meaning of many of our constitu- ed was being used to transport drugs. Under wanted to take the brake shop and sur- tional provisions is yet to be fully deter- Fourth Amendment jurisprudence, we were rounding homes and businesses at the cor- mined. Like all constitutional guarantees, required to determine whether the co-driver ner of Country Club and Main in order they are meaningful only if applied and who did not own the vehicle had a proper- for a local hardware store to relocate and enforced. To all Arizona lawyers fall the ty interest under common law (we unani- expand. Had we litigated the case under responsibility and opportunity of making mously agreed he did not) or a reasonable the federal constitution, the result surely good on our constitution’s guarantees.

42 ARIZONA ATTORNEY OCTOBER 2018 www.azbar.org/AZAttorney