10 Journal of the Kansas Association for Justice

u criminal law

The Loneliness of the Kansas Constitution* by Daniel E. Monnat & Paige A. Nichols

Daniel E. Monnat of Breathing new life into Kansas constitutional law may be challenging, Monnat & Spurrier, but it is the responsibility of the Kansas bar and the Kansas courts in a Chtd., has been a prac- federal system. ticing criminal defense —Steve McAllister, Comment, Interpreting the State Constitution: A Survey and lawyer for the past 34 Assessment of Current Methodology, 35 Kan. L. Rev. 593, 622 (1987). years in his hometown of Wichita, Kan. A cum laude graduate of Cali- fornia State University, San Francisco, he Introduction doctor’s position prevailed.5 received his J.D. from the Creighton Uni- This is but one example of the Kansas versity School of Law. Monnat frequently The year was 1859. The days of Bleed- framers’ intent to create a forward- lectures throughout the United States on ing Kansas had finally come to an end, looking state constitution—a collection a variety of criminal defense topics and and Kansas’ founding fathers were of rights that would have independent has been listed in The Best Lawyers In crowded into a Union Pacific Railway force apart from the federal constitu- America for two decades. Recently, he was office in Wyandotte, Kansas Territory, tion as interpreted by the United States listed as one of the top 100 Super Lawyers debating the terms of the free-state Supreme Court. These framers’ “proud for Kansas and Missouri for 2009. constitution. At issue was whether the and firm” insistence on state sovereignty Monnat is a past two-term president “equal and inalienable” rights guaran- is also evident in their adoption of con- of the Kansas Association of Criminal teed in section one of the Kansas Bill of stitutional provisions prohibiting slavery, Defense Lawyers, a former member of Rights1 should be extended to “all men” exempting homesteads from forced sales, the Board of Directors of the National or just to free (i.e., unenslaved) men. and advancing the property and parent- Association of Criminal Defense Lawyers, One dissenter complained that if the ing rights of women.6 As one early Kansas a member of the KsAJ Board of Governors section did not explicitly exclude per- lawyer observed, “[m]ost of the progres- and Executive Committee, a graduate of sons “owing service” in other states, the sive ideas of the decade were incorpo- the Gerry Spence Trial Lawyer’s College, guarantee would be seen as a “hostile rated” in the Kansas constitution.7 and a Fellow of the American College of blow” toward the fugitive-slave law and Today the original handwritten, eight- Trial Lawyers and the Litigation Counsel the Dred Scott decision upholding that page document lies safely in the archives of America. law under the federal constitution.2 of the Kansas State Historical Society. A country doctor James Blunt pas- single rotating page is displayed under Paige A. Nichols has sionately defended the guarantee as glass in the Kansas Museum of History. been writing motions to all men, observing that “those who And what has become of this document and appellate briefs made the [fugitive slave] law and those in the Kansas courts? With few excep- on behalf of criminal [federal justices] who decide upon its tions, it appears to have been relegated defendants for over 17 constitutionality are but human, and to the archives there, as well. years. She received her liable to err.” 3 The doctor urged his Over the past half-century, Kansas’ J.D. from Northeast- fellow state founders to let “[t]he eyes state constitution has come to play ern University in Bos- of the whole country…see Kansas at second fiddle to the federal constitution ton, and an LL.M. in criminal law from this time place herself proudly and in our courts. The rights that many free- the University of Missouri–Kansas City. firmly upon the ancient doctrine of staters died facedown in the mud to se- She lives and works in Lawrence, Kan. State rights, or State sovereignty.” 4 The cure are rarely treated as sovereign rights Journal of the Kansas Association for Justice 11

independent of the federal constitution. in the aftermath of incorporation, Constitution” relinquishes “an impor- Time and again the Kansas Supreme United States Supreme Court Justice tant incident of this State’s sovereignty,” Court has acknowledged its authority William J. Brennan called upon state and makes it “less of a State than its sis- “to interpret our Kansas Constitution courts to recognize that state constitu- ter States who recognize the independent in a manner different than the United tions “are a font of individual liberties, significance of their Constitutions.”25 States Constitution has been construed,” their protections often extending beyond invoking state sovereignty as a basis and yet the Court has “not traditionally those required by the Supreme Court’s for independently interpreting a state done so.”8 interpretation of federal law.”16 Ever constitution frees up state courts in two This article aims to promote state since, other state courts have struggled important ways. First, courts that recog- constitutionalism in Kansas, and to to develop a coherent methodology of nize the sovereign nature of state consti- offer a few tools and cautionary notes to state constitutionalism.17 But despite tutions need not be overly concerned if those lawyers and courts who wish once Kansas’ proudly forward-looking his- the state constitution is textually simi- again to see “Kansas at this time place tory, the Kansas Supreme Court has lar—or even identical—to its federal herself proudly and firmly upon the only occasionally joined in that struggle. counterpart.26 And second, courts with ancient doctrine of State rights.” 9 a healthy respect for state sovereignty may grant a state constitutional claim Why should Kansas courts even if the United States Supreme Court State versus federal recognize that the Kansas has denied a federal constitutional claim constitutionalism constitution has independent in the very same case.27 in its early opinions, the Kansas meaning? Finally, developing a robust state Supreme Court routinely interpreted The Kansas Supreme Court has previ- constitutional jurisprudence will ensure the Kansas constitution as an indepen- ously warned that any interpretation of that Kansas’ voice is heard when the dent document with force of its own. the Kansas constitution should aim to United States Supreme Court looks to The Court only mentioned the federal “achieve a consistency so that it shall not the states in developing its own consti- constitution in passing (if at all) and be taken to mean one thing at one time tutional jurisprudence.28 treated interpretations of that document and another thing at another time.”18 as having no more authoritative value But by tying our constitution’s interpre- than other interpretive tools such as tation to that of the federal constitution, How should Kansas courts Kansas history, the practices of sister our Supreme Court has guaranteed that independently interpret the states, common law, treatises, and public our constitution will be “taken to mean Kansas constitution? policy.10 one thing at one time and another thing One approach to interpreting a state all that changed in the early 1960s, at another time.”19 Over the past two constitution is by recognizing its force when the United States Supreme Court centuries, the United States Supreme as a freestanding authoritative docu- began to hold that selected provisions Court has reversed itself in the range of ment and analyzing its meaning using of the federal Bill of Rights had been 200-300 times.20 Only by interpreting traditional interpretive tools.29 The New incorporated through the Fourteenth our constitution independently of the Jersey Supreme Court, for example, Amendment to bind the states.11 The federal constitution can our courts en- reads its state constitution through the Kansas Supreme Court had previ- sure that the Kansas document “stands lens of the state’s “constitutional his- ously—and appropriately—been the today and should stand tomorrow, tory,” “legal traditions,” “strong public sole and final arbiter of the Kansas staunch and rigid in its restraints upon policy,” and any “special state concerns” constitution. But after incorporation, governmental powers in our system of warranting vindication of state consti- it suddenly began construing our state democracy.”21 tutional rights.30 The supreme courts of constitutional provisions in lockstep recognizing that the Kansas constitu- Pennsylvania, Vermont, Washington, with the United States Supreme Court’s tion has independent meaning also safe- and Connecticut follow similar ap- construction of similar federal provi- guards and advances several important proaches.31 sions—as though the mere act of incor- aspects of “Our Federalism.”22 It recog- another approach is to invoke the poration had stripped the Kansas high nizes that federalism rejects “centraliza- state constitution when it appears that court of its authority to interpret and tion of control over every important the United States Supreme Court’s inter- enforce the Kansas constitution.12 Today issue in our National Government and pretation of the federal constitution has the Kansas courts for the most part its courts.”23 It recognizes the superior left the basic rights of a given state’s citi- interpret Kansas constitutional provi- practical competence of state courts to zens underprotected. Many courts have sions independently only when they lack decide issues of local concern.24 And it is rejected United States Supreme Court a federal counterpart13 or when their an important assertion of state sover- precedent under their own constitutions federal counterpart has not yet been eignty. Treating a state constitution as irrespective of textual differences, his- held applicable to the states.14 15 “simply a mirror image of the Federal torical traditions, or a unique state per- 12 Journal of the Kansas Association for Justice

spective. For example, in People v. Batts, in Florida v. Powell, the United States two separate and independent constitu- the California Supreme Court rejected Supreme Court reversed a Florida tions—one state and one federal.41 But the federal approach to double-jeopardy Supreme Court decision, holding the Kansas constitution has taken a back claims under the state constitution.32 that the state had violated Defendant seat to its federal counterpart in recent The court observed that the “federal Powell’s federal constitutional rights decades. The Kansas Supreme Court is test, standing alone, is insufficient” to by reading him an incomplete Miranda no less powerful now to interpret the protect a defendant’s double-jeopardy warning.38 Powell had argued that the Kansas constitution than it was in Kan- interests, and cited similar rulings from Florida court’s opinion was based on an sas’ early days. The interests of federal- sister state courts.33 independent and adequate state ground ism and the rights of all Kansans will be The Kansas Supreme Court has never (the Florida constitution), and thus the better served by the development of a explicitly adopted any guidelines for United States Supreme Court had no ju- robust independent state constitutional deciding when and how the Kansas con- risdiction to review or reverse Florida’s jurisprudence. p stitution might protect Kansas citizens decision. even when the federal constitution does The United States Supreme Court re- not. But it has hinted that it will only jected that argument and suggested that Endnotes resort to state constitutionalism if and a state constitutional decision will only * In Part II of this article (to be published when the United States Supreme Court be immune from federal review if (1) at a later date), the authors will walk has “retreated” from a protective posi- the state court explicitly finds the state readers through a sample state constitu- tion previously held by that Court.34 The constitution to be more protective than tional argument. unfortunate flip side of this approach the federal constitution, and (2) the is that Kansas citizens are left wholly state analysis is set out separately from 1 “All men are possessed of equal and inalien- unprotected by their state constitution the federal analysis: able natural rights, among which are life, lib- in circumstances when the United States erty, and the pursuit of happiness.” Kan. Bill Supreme Court has consistently under- Although invoking Florida’s of Rights § 1. protected a basic right (i.e., when it has Constitution and precedent in ad- 2 Wyandotte Constitutional Convention 273- never held a protective position from dition to this Court’s decisions, the 74 (1859). which to retreat). And this approach Florida Supreme Court treated state 3 Id. at 276-79. gives short shrift to Kansas sovereignty, and federal law as interchangeable 4 Id. as it conditions our constitution’s inter- and interwoven; the court at no point 5 Id. at 285. pretation entirely on what happens in expressly asserted that state-law 6 Kan. Const. Art. 15 § 6, § 9; Kan. Bill of Rights the United States Supreme Court. sources gave Powell rights distinct § 1, § 6. from, or broader than, those delin- 7 Hon. Robert Stone, Kansas Laws and Their eated in Miranda.39 Origins, A Standard History of Kansas and Raising a state constitutional Kansans 949 (1918). claim and insulating state The lesson of Gomez and Powell is 8 State v. Crow, 266 Kan. 690, 698 (1999), over- constitutional remedies from that litigants raising state constitutional ruled on other grounds by State v. Laturner, 289 federal review. claims should argue those claims wholly Kan. 727 (2009) . recent opinions in both Kansas and apart from any parallel federal consti- 9 Wyandotte Constitutional Convention 276- the United States Supreme Court have tutional claims. Doing so will ensure 79 (1859). important lessons to teach both liti- that both claims are heard and that any 10 See, e.g., State v. Gleason, 32 Kan. 245 (1884) gants and courts about how to raise and state constitutional wins are insulated (relying on Kansas cases, other state cases, decide state constitutional claims. In the from federal review. Arguing the claims English common law, and a Fourth Amend- Kansas case State v. Gomez, for instance, separately will also serve to emphasize ment treatise to hold that a complaint and the defendant argued on appeal that his the independent and sovereign nature of warrant issued on less than probable cause sentence was disproportionate under the Kansas constitution. violated the Kansas constitution); State v. both the state and federal constitu- White, 44 Kan. 514, 520 (1890) (relying on tions.35 The Kansas Supreme Court Conclusion Kansas history and “punishment common in declined to decide either claim. The when it comes to constitutional all civilized countries” to hold that hard labor Court held that Gomez waived his state questions, “why should we assume for statutory rape did not violate Kansas Con- claim by not raising and developing the that the United States Supreme Court stitution); State v. King, 71 Kan. 287 (1905) issue in the district court.36 More im- is a Delphic Oracle, that it is the only (interpreting Kansas’s constitutional proba- portantly, it held that he abandoned his supreme court in the country able to ble-cause requirement by reference to Kansas federal claim by not briefing it on appeal offer an insightful solution to a dif- cases, a California case, and public policy); separately from and independently of ficult problem?”40 Kansas citizens are State v. Gillmore, 88 Kan. 835, 845 (1913) (re- his state claim.37 “doubly blessed” with the protections of lying on Wisconsin penalty of “six months Journal of the Kansas Association for Justice 13

in jail on bread and water,” to hold that hard on the Eighth Amendment,” and concluding 1167, 1173 (2003) (noting that by 2003, the labor for desertion of wife did not violate that, unlike the Eighth Amendment, the Kan- Rehnquist court alone had “overruled prior Kansas Constitution); Ex Parte MacLean, 147 sas constitution could “be invoked against an authority in over forty cases”); see also http:// Kan. 678, 681 (1938) (relying on treatises and excessive or disproportionate sentence” as de- www.gpoaccess.gov/constitution/html/ Kansas cases to hold that consecutive sentenc- fined by Kansas caselaw); State v. Weigel, 228 scourt.html (listing 204 United States Su- es did not violate Kansas Constitution). Kan. 194, 203 (1980) (same; reasoning that preme Court opinions overruling prior opin- 11 See McDonald v. Chicago, No. 08-1521, ___ “we are not inclined to give up our judicial ions between 1810 and 1992). U.S. ___, 2010 WL 2555188 (U.S. June 28, prerogative of examining disproportionate 21 State v. Hines, 163 Kan. 300, 301 (1947). 2010) (tracing history of incorporation). sentences” under the Kansas constitution); 22 Younger v. Harris, 401 U.S. 37, 44 (1971). 12 See, e.g., State v. Wood, 190 Kan. 778, 788 Farley v. Engelken, 241 Kan. 663, 671, 674 23 Id.; see also Justin Long, Intermittent State (1963) (“the command of the Fourth Amend- (1987) (holding in equal-protection case that Constitutionalism, 34 Pepp. L. Rev. 41, 89-91 ment in the Federal Constitution to federal “the Kansas Constitution affords separate, (2006) (noting that even intermittent state officers is identical to the command of Section adequate, and greater rights than the federal constitutionalism reassures state citizens 15 of the Kansas Bill of Rights to law enforce- Constitution”); but see State v. Bolton, 274 “that Washington, D.C. does not exercise ment officers in Kansas”); State v. Coutcher, Kan. 1, 17 (2002) (refusing to extend Farley plenary power over every matter of public im- 198 Kan. 282, 287-89 (1967) (defendant chal- to equal-protection claim that prosecutor im- portance.” lenged habitual criminal act under both Kan- properly struck African American jurors dur- 24 Steve McAllister, Comment, Interpreting the sas Constitution and Eighth Amendment; ing voir dire in criminal case). State Constitution: A Survey and Assessment court relied on United States Supreme Court 16 william J. Brennan, Jr., State Constitutions of Current Methodology, 35 Kan. L. Rev. 593, cases to reject challenge without distinguish- and the Protection of Individual Rights, 90 Har- 613 (1987) (“Because state courts have better ing between constitutions); State v. Kilpatrick, vard L. Rev. 489, 491 (1977); see also Daniel E. knowledge and understanding of local con- 201 Kan. 6, 18-19 (1968) (defendant chal- Monnat & Paige A. Nichols, “Oh Give Me A ditions and attitudes, they can tailor their lenged death by hanging under both Kansas Home Where the Government Can’t Roam…”: interpretations to enforce constitutional pro- Constitution and Eighth Amendment; court Interpreting the Kansas Constitution to Protect tections aggressively where the United States rejected challenge because “the United States “Open Fields,” J. Kan. Trial Law. Ass’n, Nov. Supreme Court lacks the familiarity to do Supreme Court has upheld every method of 1994, at 17 (urging Kansas courts to heed so.”). execution”). Brennan’s call, especially as to unreasonable 25 Sanders v. State, 585 A.2d 117, 145-46 (Del. 13 See Montoy v. State, 278 Kan. 769, 120 P.3d searches and seizures of “persons and prop- 1990). 306, 311-318 (2005) (noting that federal con- erty”). 26 See State v. Dubose, 699 N.W.2d 582, 597 (Wis. stitution contains no fundamental right to 17 See generally Jennifer Friesen, State Consti- 2005) (“While textual similarity or identity is education, and discussing at length whether tutional Law: Litigating Individual Rights, important when determining when to depart Kansas constitution contains such a right; re- Claims, and Defenses (4th ed. 2006). Recent from federal constitutional jurisprudence, it lying on Kansas constitutional structure and state constitutional decisions of interest in- cannot be conclusive, lest this court forfeit its history and other state court opinions) (Beier, clude State v. Vondehn, ___ P.3d ___, 2010 power to interpret its own constitution to the J., concurring). WL 2607155 (Or. July 1, 2010) (interpreting federal judiciary.”); Friesen, supra note 17 at 14 See State v. Knight, 42 Kan. App. 2d 893 (2009) state counterpart to Fifth Amendment more 1-48 n.200 (“Differences of text, history, or (noting that “the Second Amendment is not protectively); People v. Devone, ___ N.E.2d other factors, though they are important in incorporated in the Due Process Clause and ___, 2010 WL 2265212 (N.Y. App. June 8, guiding an independent interpretation, are thereby enforceable against the states,” and 2010) (interpreting state counterpart to not necessary to justify one.”). thus relying on Kansas cases to conclude Fourth Amendment more protectively); State 27 See, e.g., Commonwealth v. Upton, 476 N.E.2d that concealed-firearms ban did not violate v. Cox, 781 N.W.2d 757 (Iowa 2010) (interpret- 548, 556 (Mass. 1985) (finding state constitu- Kansas constitution), pet. for rev. pending. In ing state due-process clause more protectively tional violation on remand from United States June of this year, the United States Supreme than federal counterpart as interpreted by Supreme Court after that Court rejected state Court held for the first time that the Four- lower federal courts). For discussions of these court’s reading of Fourth Amendment); State teenth Amendment incorporates the Second and similar state constitutional cases, see the v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983) Amendment. McDonald v. Chicago, No. 08- state constitutional law page at http://kansas- (barring defendant’s retrial on double-jeop- 1521, ___ U.S. ___, 2010 WL 2555188 (U.S. defenders.blogspot.com/. ardy grounds under state constitution after June 28, 2010). It will be interesting to see 18 State v. Nelson, 210 Kan. 439, 445 (1972). United States Supreme Court rejected federal whether Kansas’s constitutional right to bear 19 Friesen, supra note 17 at 1-46 (“Conforming to constitutional claim in same case). arms will now be interpreted in lockstep with federal rulings offers short term convenience 28 See, e.g., Lawrence v. Texas, 539 U.S. 558, the federal right. but may achieve only a temporary stability. 570-71, 576 (2000) (looking to state court 15 Two notable exceptions appear in cases in- Practical and logical problems arise when the decisions interpreting state constitutions to volving disproportionate sentences and equal United States Supreme Court changes the ad- determine federal constitutionality of sod- protection. See State v. McDaniel, 228 Kan. opted doctrine.”). omy statute); see also Jeffrey S. Sutton, Why 172, 185 (1980) (“reconsider[ing] . . . reliance 20 monroe H. Friedman, 31 Hofstra L. Rev. Teach—And Why Study—State Constitutional 14 Journal of the Kansas Association for Justice

Law, 34 Okla. City U. L. Rev. 165, 177 (2009) ing state law; (5) structural differences; and case upholding Kansas capital statute under (“Let the state courts be the initial innovators (6) matters of particular state or local con- federal constitution “was not a decision in of constitutional doctrines if and when they cern”); State v. Geisler, 610 A.2d 1225, 685-86 which the United States Supreme Court cre- wish, and allow the United States Supreme (Conn. 1992) (text, state precedent, federal ated a new legal principle deviating or retreat- Court to pick and choose from the emerging precedent, precedent from other states, his- ing from its prior capital sentencing jurispru- options.”). torical analysis—“including the historical dence”); State v. McDaniel, 228 Kan. 172, 185 29 See generally Hans A. Linde, E Pluribus—Con- constitutional setting and the debates of the (1980) (choosing to interpret state constitu- stitutional Theory and State Courts, 18 Ga. L. framers”—and economic/sociological con- tion more protectively than federal constitu- Rev. 165 (1984). siderations), abrogated on other grounds by tion as to non-capital disproportionate-sen- 30 State v. Williams, 459 A.2d 641, 650 (N.J. State v. Brocuglio, 826 A.2d 145 (Conn. 2003). tencing claims; reasoning that recent United 1983). 32 134 Cal. Rptr. 2d 67, 86-95 (Cal. 2003). States Supreme Court case rejecting dispro- 31 See Commonwealth v. Edmunds, 586 A.2d 887, 33 id.; accord State v. Mariano, 160 P.3d 1258, portionality analysis was a “retreat from the 895 (Pa. 1991) (text and history of state pro- 1268 (Haw. App. 2007) (“We cannot con- philosophy” of that Court—a philosophy on vision, case law interpreting state provision, done the parsimonious Fourth Amendment which Kansas cases had relied). case law from other states, and policy con- protection the Supreme Court doled out in 35 no. 101,213, ___ Kan. ___, 2010 WL 2696623 siderations “including unique issues of state [New York v.] Harris”); People v. LaValle, 817 (July 9, 2010). and local concern”); State v. Jewett, 500 A.2d N.E.2d 341, 365 (N.Y. App. 2004) (rejecting 36 id., 2010 WL 2696623 at *7-8. 233, 225-27 (Vt. 1985) (“historical materials,” United States Supreme Court precedent in 37 id. at *7. “[t]he textual approach,” “a sibling state ap- capital case as “unfaithful to the often repeat- 38 ___ U.S. ___, 130 S.Ct. 1195 (2010). proach,” and “economic and sociological ma- ed principle that death is qualitatively differ- 39 id., 130 S.Ct. at 1202. terials,” as well as “the historical, the textual, ent and thus subject to a heightened standard 40 Sutton, supra note 28 at 175. the doctrinal, the prudential, the structural, of reliability”). 41 Judith S. Kaye, A Double Blessing: Our State and the ethical” types of arguments); State v. 34 See State v. Scott, 286 Kan. 54, 97 (2008) (re- and Federal Constitutions, 30 Pace L. Rev. Gunwall, 720 P.2d 808, 811 (Wash. 1986) (“(1) fusing to find state constitution more protec- 844, 854 (2010). the textual language; (2) differences in the tive than federal constitution in capital case; texts; (3) constitutional history; (4) preexist- reasoning that United States Supreme Court

Reprinted from the Journal of the Kansas Association for Justice, Vol. 34, No. 1, September 2010.