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For the DEFENSE for THE DEFENSE Volume 31, Issue 2 Maricopa County Public Defender Newsletter July, 2021 In This Issue: Litigating Issues Under the Litigating Issues Under the Arizona State Constitution Arizona State Constitution By Mikel Steinfeld, Defender Attorney By Mikel Steinfeld, Defender Attorney Page 1 One important area of constitutional litigation is often forgotten. If it’s not Opinion Summaries forgotten, it’s undeveloped. And even if developed to some extent, it’s April through June, 2021 underdeveloped. Page 12 That area is litigation under the Arizona Constitution. Trial Results April through June, 2021 Attorneys do a fine job of litigating the U.S. Constitution but often fail to Page 47 develop a persuasive separate argument for why the Arizona Upcoming Events Constitution provides greater protection. Page 49 One reason for this failure is the lack of a method. No Arizona court has set forth a process for analyzing our state Constitution. As a result, attorneys are often left arguing in the dark. The goal of this article is to fill that gap and propose a method for litigating claims under the Arizona Constitution. While reasonable minds may differ on what makes a persuasive claim under the state Constitution, this method has two benefits. First, it is grounded in Washington case law. Because Arizona looks to Washington cases for guidance on constitutional issues (as will be discussed below), any argument developed using this approach has a solid foundation. Second, the approach is relatively comprehensive. No approach will ever cover all bases, but the approach proposed herein will cover most. for THE DEFENSE July 2021 Volume 31, Issue 2, Pg. 2 With that said, this article will cover four issues: (1) Why attorneys need to separately litigate the Arizona Constitution, (2) Whether to file a separate motion, (3) The method attorneys should use when addressing the Arizona Constitution, and (4) Resources attorneys can rely upon when developing an argument. Why attorneys need to separately litigate the scope of the Arizona Constitution. When I first started attending trainings as a lawyer, there was a common refrain: Federalize. The notion was that claims often had better success in federal courts, so attorneys needed to make sure to preserve all claims under the federal Constitution. This approach makes some sense. In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton explains that from the 1940s through the 1960s “many state courts (and state legislatures and state governors) resisted protecting individual rights ….”i Lawyers of the era could thus be forgiven “for hesitating to add state constitutional claims to their newly minted federal claims.”ii But this trend changed. When “Chief Justice Burger replaced Chief Justice Warren in 1968 … the kinds of advantages that once prompted resort to federal law and federal courts [became] more fluid than fixed.”iii As a result, Justice William Brennan posited in 1977 that attorneys should first turn to their state constitutions to protect individual rights.iv The shift and consequent recommendation have not caught on. As Judge Sutton frames it, “the question is why just some, as opposed to most, lawyers took Justice Brennan’s advice--why American lawyers did not follow the example of American basketball players by taking two shots rather than one whenever the opportunity presented itself.”v What I’ve seen in appeals is consistent with Sutton’s observations: attorneys do a good job citing the federal Constitution and developing federal constitutional arguments but do little to advance any unique argument under the Arizona Constitution. The Arizona Constitution is not meant to follow lock-step with the U.S. Constitution. As our Supreme Court observed in Pool v. Superior Court, “[T]he concept of federalism assumes the power, and duty, of independence in interpreting our own organic law. With all deference, therefore, we cannot and should not follow federal precedent blindly.”vi And the Tenth Amendment to the U.S. Constitution itself says that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”vii for THE DEFENSE July 2021 Volume 31, Issue 2, Pg. 3 As a result, rather than focusing just on federalization, attorneys should focus on developing at least two claims: one grounded in the federal Constitution and one grounded in the state Constitution. The primary reason attorneys need to litigate Arizona constitutional issues early and often is because there is no opportunity to raise them later. For example, in State v. Ibeabuchi, our Court of Appeals refused to consider an Arizona constitutional issue because it had not been raised at the trial level.viii And mere citation doesn’t save the day. Our Supreme Court recognized in State v. Jean that “[m]erely referring to the Arizona Constitution without developing an argument is insufficient to preserve a claim that it offers greater protection than” the federal counterpart.ix To make an argument that the Arizona Constitution provides greater protection than the U.S. Constitution, attorneys must raise it at the trial court level. And attorneys must do more than merely cite the pertinent provision; they must develop the argument. Some may rightly be frustrated by our appellate courts and see the issue as hopeless. Some Justices have been calling for arguments under the Arizona Constitution for years,x only to have our courts evade such issues or give them short shrift.xi And some may look at a case like State v. Mixtonxii and think there is no way of convincing our courts to provide greater protections. To this, I have two responses. First, the only way to ensure our appellate courts review Arizona constitutional claims is to properly raise the arguments at the trial court level. Following the advice in this article may not guarantee review, as courts will do what they see fit, but it will go a long way toward securing meaningful review of Arizona constitutional issues. Second, for attorneys who believe cases like Mixton were wrongly decided, the only way to correct those mistakes is to thoroughly explore the language, history, and background of the Arizona Constitution, and explain the Court’s error. Expanding on this, all cases work as independent threads in a greater tapestry of case law. Even if attorneys don’t win an issue in their specific case, advocating for a more protective reading of the Arizona Constitution will better protect clients and will improve the chances that our appellate courts adopt a better construction down the road. Jurisprudence is a development, a work in progress, not a final word. for THE DEFENSE July 2021 Volume 31, Issue 2, Pg. 4 How to raise Arizona constitutional claims—The separate motion. When I speak with lawyers about issues they’re raising under the Arizona Constitution, I always give one piece of advice: File a separate motion. In response, I get looks of skepticism, sometimes disbelief. I realize my recommendation requires more work. If attorneys want to do their Arizona constitutional arguments justice, it takes more work. And it takes more space. There are four reasons why attorneys should file a separate motion. First, a separate motion gives attorneys enough room to develop the argument. Space in a motion is already tight. At the trial court level, the limit is 11 double-spaced pages in 13-point font.xiii A reply gains only 6 more pages.xiv If attorneys are setting out the facts and developing an argument, that’s not much room. And following the method set out below, it’s not enough room to make a separate argument that the Arizona Constitution provides greater protections. A separate motion gives attorneys the room needed to develop the Arizona constitutional argument in sufficient depth and detail. Second, a separate motion reinforces the notion that the Arizona constitutional argument is distinct. When attorneys conceptualize a motion to suppress as one motion, they tend to lose sight of the different arguments that can be advanced under the Arizona Constitution. Everything muddles into a single argument. And that single argument is built upon the federal Constitution. By crafting at least two separate motions, attorneys reinforce the separate purposes of the motions.xv Third, a separate motion makes it clear that attorneys are asking for a separate ruling on Arizona constitutional grounds. A separate motion clarifies the unique nature of the Arizona constitutional argument to the court. If attorneys simply file a motion to suppress while citing the Fourth Amendment and Article 2, Section 8, the court is going to issue one ruling. And that ruling will likely be a Fourth Amendment ruling. But when attorneys file two or more motions—one on Fourth Amendment grounds and one on Article 2, Section 8 grounds—they increase the odds that the courts will rule separately on each. It forces the trial judge to engage each motion separately. And fourth, a fully developed separate motion makes it clear to the appellate court that the state constitutional argument is preserved. If attorneys file a single motion that combines federal and state constitutional issues, there is a risk that appellate courts will lose sight of the unique issues. But when attorneys file a separate motion, the room for doubt at the appellate level is minimized. As a result, any time an attorney is filing a motion that is constitutionally grounded, they should actually be filing at least two—a motion under the federal Constitution and one under our state Constitution. for THE DEFENSE July 2021 Volume 31, Issue 2, Pg. 5 The method—The Gunwall analysis. With an understanding that a separate motion should be filed for an Arizona constitutional claim, we’ll move on to how to build that argument.
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