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Colorado v. Nunez 465 U.S. 324 (1984)

PER CURIAM.

The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.

JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring.

The Court today concludes that the Colorado Supreme Court relied on independent and adequate state grounds when it affirmed the trial court's decision to suppress a quantity of heroin seized during a search of respondent Nunez' house following the State's refusal to disclose the identity of a confidential informant on which the Denver Police Department had relied to establish probable cause for the search. I write not to challenge the Court's determination that the judgment under review rests on independent and adequate state grounds, but to make clear that neither the Federal Constitution nor any decision of this Court requires the result reached by the Colorado Supreme Court.

JUSTICE STEVENS, concurring.

In view of the growing public interest in the magnitude of our workload, I have on occasion taken note of some of the ways in which the present Court makes use of its resources. Several years ago, I expressed concern about the purely advisory character of individual opinions dissenting from orders denying petitions for certiorari. See Singleton v. Commissioner, 439 U.S. 940, 944-945 (1978) (opinion of STEVENS, J.). More recently I have noted that the Court is prone to grant certiorari in cases that do not merit our attention. See Watt v. Alaska, 451 U.S. 259, 273-276 (1981) (STEVENS, J., concurring); see also Watt v. Western Nuclear, Inc., 462 U.S. 36, 72-73 (1983) (STEVENS, J.,

Discussion Notes

1. Justice Stevens expresses concern about the "undesirability of the rendition of purely advisory opinions by this Court." Why does he refer to Justice White's opinion as an advisory opinion?

2. See also Montana v. Hall, 107 S.Ct. 1825,

1830 (1987) (Stevens, J., dissenting).

3. Scott H. Bice, "Anderson and the Adequate

dissenting).2 Last Term, in South Dakota v. Neville, 459 U.S. 553 (1983), and Michigan v. Long, 463 U.S. 1032 (1983), the Court decided to enlarge its power to review state-court decisions. I dissented from those novel assertions of appellate jurisdiction in part because I was concerned about the undesirability of the rendition of purely advisory opinions by this Court. See id., at 1065 (STEVENS, J., dissenting); 459 U.S., at 566 (STEVENS, J., dissenting); see also 463 U.S., at 1054 (BLACKMUN, J., concurring in part and in judgment in Michigan v. Long) (noting “an increased danger of advisory opinions in the Court's new approach").

Today JUSTICE WHITE "agree[s] that the challenged judgment rests solely on state-law grounds and that this Court lacks jurisdiction to review it." Ante, at 327. He nevertheless provides us with an advisory opinion, in which THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concerning the merits of the case. We of course have jurisdiction to determine our jurisdiction over this case, but once we agree that we lack jurisdiction, this case no more provides a vehicle for deciding the question upon which three Justices now volunteer an opinion than if the petition for a writ of certiorari had never been filed. I, of course, fully respect their right to their opinions concerning that question, just as I respect other scholars who disagree with the wisdom of the choice made in Hayburn's Case, 2 Dall. 409 (1792). I merely note that today's advisory opinion is consistent with the Court's emerging tendency to enlarge its own involvement in litigation conducted by state courts. This tendency feeds on itself, for it can only encourage litigantsparticularly institutional litigants-to file even more petitions for certiorari in the hope of obtaining, if not review and reversal, at least an opinion by a number of Supreme Court Justices in support of their position. In light of the increasing flood of certiorari petitions, today's advisory opinion provides further support for concluding that this situation "will very likely progressively worsen."3

2See generally Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 180 (1982).

3White, Challenges for the U.S. Supreme Court and the Bar: Contemporary Reflections, 51 Antitrust L. J. 275, 280 (1982).

State Ground," Southern California Law Review 45 (Summer 1972): 757:

But although the state court's decision of independent state and federal questions may seem to serve political and judicial economy, under the current Su

Discussion Notes (cont.)

preme Court practice such a course, in addition to preventing Supreme Court review, unfortunately will also have the effect of precluding effective political review of the state court ruling. Decisions based on independent state and federal grounds may substantially discourage any effort to use the state political process to change the relevant state law, because amendment to the state constitution or laws cannot correct the federal defect and therefore cannot change the result of the state court's decision. Of course, the citizens or the legislature may proceed with an amendment to the state laws with the notion that another court test involving only the federal question can be instituted once the state law is changed.23 But it would seem to require a very high degree of organization and commitment to achieve political reform in such circum

23 A new law suit would be necessary unless the change would be accomplished before the time for taking an appeal or seeking certiorari had expired. See SUP. CT. RULE 22; 28 U.S.C. 2101 (1949). It seems quite unlikely that most changes could be accomplished in such a short period.

stances; rather than changing the effect of the state court decision, all reform of state law will accomplish is a "clear deck" upon which a new law suit may be brought. The presence of the federal ground will therefore produce an insulation from the political process beyond that which a state court would otherwise enjoy when it interprets the provision of state law in a fashion unsatisfactory to a substantial portion of the state's citizens. Thus the present operation of the adequate state ground doctrine allows a state court, which may not be motivated by any considerations of efficiency, to insulate its decision from effective review by either the judicial or political processes for what may be a significant period.24

If a state court bases a decision on independent state and federal grounds to gain this "insulation effect," its action is illegitimate.

24 Of course the "chill" on the state political process provided by the federal ground may be decreased significantly if the Court quickly answers the federal question in another case. . . .

F. Advocating and Resisting
Greater Protections under State Constitutions

Any defense lawyer who fails to raise an Oregon Constitution violation and relies solely on parallel provisions under the federal constitution... should be guilty of legal malpractice.

Justice Robert E. Jones
Supreme Court of Oregon*

*State v. Lowry, 295 Or. 337, 365, 667 P.2d 996, 1013 (1983) (Jones, J., concurring
specially).

1. The Sequence of Constitutional Arguments

So far we have looked at cases where courts have been willing to go beyond federal constitutional guarantees and rest their decisions on state constitutional grounds. How do the courts reach such a conclusion? How can lawyers effectively advocate such an approach?

Hans A. Linde, "Without 'Due Process': Unconstitutional Law in Oregon"

Oregon Law Review
49 (February 1970): 133.
© 1970 University of Oregon.
Reprinted with permission.

Convenient as it may be to reduce the diverse federal and state premises in this manner to a single body of "constitutional law," there are two things wrong with it. First, it contradicts the hierarchical logic of the federal constitutional premises. Second, the provisions of the federal and Oregon constitutions are not in fact alike.

First, the logical relationship between the state and federal constitutional claims. The federal source of all "due process” and “equal protection" attacks on state regulation is the fourteenth amendment's command that "No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Whether this command has been violated depends on what the state has finally done. Many low-level errors that potentially deny due process or equal protection are corrected within the state court system; that is what it is for. The state constitution is part of the state law, and decisions applying it are part of the total state action in a case. When the state court holds that a given

state law, regulation, ordinance, or official action is invalid and must be set aside under the state constitution, then the state is not violating the fourteenth amendment.

The point is obvious when a conclusion such as "Regulation X denies defendant's rights under the fourteenth amendment and the corresponding sections of Oregon constitution article I" is broken down into its component parts. When a judgment holds with the defendant that the regulation is invalid under the state constitution, it cannot move on to a second proposition invalidating the state's action under the federal Constitution. By the action of the state court under the state constitution, the state has accorded the claimant the due process and equal protection commanded by the fourteenth amendment, not denied it. While a defendant may have both a state and a federal constitutional claim to present, legally these are not cumulative but alternative: "If this official action is not forbidden by the state constitution, as I claim it is, then the state denies me a federal right." When the Oregon Supreme Court held in 1961 that the distribution of textbooks to parochial schools was forbidden by Oregon's article I, section 5, it would have been contradictory to go on to hold that Oregon supported religion in violation of the federal establishment clause. Similarly, if Portland's "afterhours" ordinance or the gasoline-storage regulation

Discussion Notes

1. Reread the excerpts from Justice Linde's opinion in Oregon v. Kennedy, page 99, and compare them with these views of then-Professor Linde thirteen years earlier.

2. For other expressions of this point of view, see Hans A. Linde, "Book Review," Oregon Law

in Burns is held to violate some provision of the Oregon constitution, then Oregon is not depriving Mr. James or Mr. Leathers of liberty or property and they have no further fourteenth amendment claim to be decided. That claim becomes not merely surplusage, it has in fact been satisfied. Conversely, when an Oregon court holds that Oregon has denied someone due process or equal protection in violation of the federal amendment, it in effect assumes that nothing within Oregon's own law stood in the way of the challenged action.

It should be clear that the point is not merely pedantic. When a decision rests on an independent ground of state law along with the federal constitutional claim, the latter is not reviewable on certiorari in the United States Supreme Court. And in a subsequent litigation of some comparable cases in the federal courts, a federal judge will be bound to follow the state court's holding on the cited state constitutional premise, not on the supposedly "identical" federal premise.

Judicial review of official action under the state constitution thus is logically prior to review of the effect of the state's total action (including rejection of the state constitutional claim) under the fourteenth amendment. Claims raised under the state constitution should always be dealt with and disposed of before reaching a fourteenth amendment claim of deprivation of due process or equal protection.

Review 52 (Spring 1973): 332-41; "First Things First: Rediscovering the States' Bills of Rights," University of Baltimore Law Review 9 (Spring 1980): 379; "E Pluribus-Constitutional Theory and State Courts," Georgia Law Review 18 (Winter 1984): 165.

state-court judgments absent a "plain statement" that such judgments rest on state grounds.

Delaware v. Van Arsdall 475 U.S. 673 (1986)

JUSTICE STEVENS, dissenting.

The Court finds the way open to reverse the judgment in this case because "[t]he opinion of the Delaware Supreme Court, which makes use of both federal and state cases in its analysis, lacks the requisite 'plain statement' that it rests on state grounds." Ante, at 678, n. 3. In so holding, the Court continues down the path it marked in Michigan v. Long, 463 U.S. 1032, 1037-1044 (1983), when it announced that it would henceforth presume jurisdiction to review

III

The Court's decision to monitor state-court decisions that may or may not rest on nonfederal grounds is not only historically disfavored but risks the very confrontations and tensions a more humble jurisdictional stance would avoid. The presumption applied today allocates the risk of error in favor of the Court's power of review; as a result, over the long run the Court will inevitably review judgments that in fact rest on adequate and independent state grounds. Even if the Court is unconcerned by the waste inherent in review of such cases, even if it is unmoved by

the incongruity between the wholly precatory nature of our pronouncements on such occasions and Art. III's prohibition of advisory opinions, it should be concerned by the inevitable intrusion upon the prerogatives of state courts that can only provide a potential source of friction and thereby threaten to undermine the respect on which we must depend for the faithful conscientious application of this Court's expositions of federal law.

Less obvious is the impact on mutual trust when the state court on remand-perhaps out of misplaced sense of duty-confines its state constitution to the boundaries marked by this Court for the Federal Constitution. In Montana v. Jackson, 460 U.S. 1030 (1983), for example, this Court vacated and remanded "for further consideration in light of South Dakota v. Neville, 459 U.S. 553 (1983)." In so doing, this Court presumed that the judgment of the Montana Supreme Court did not rest on Montana's Constitution. Justice Sheehy, joined by the author of the state court's original opinion, rather bitterly disagreed:

In our original opinion in this case, we had examined the rights guaranteed our citizens under state constitutional principles, in the light of federal constitutional decisions. Now the United States Supreme Court has interjected itself, commanding us in effect to withdraw the constitutional rights which we felt we should extend to our state citizens back to the limits pr[e]scribed by the federal decisions. Effectively, the United States Supreme Court has intruded upon the rights of the judiciary of this sovereign state.

Instead of knuckling under to this unjustified expansion of federal judicial power into the perimeters of our state power, we should show our judicial displeasure by insisting that in Montana, this sovereign state can interpret its constitution to guarantee rights to its citizens greater than those guaranteed by the federal constitution.

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The Court's two-sentence analysis notwithstanding, one cannot be confident that we have not trenched on state prerogatives in this very case. Here, the Delaware Supreme Court applied a rule reversing convictions when the defendant had been totally denied the right to cross-examine a witness for bias. The rule was expressly found to be "consistent with Davis v. Alaska, 415 U.S. 308 (1974) and with our ruling in Weber v. State, 457 A. 2d 674 (1983)),] for determining whether a violation of the confrontation clause is harmless." 486 A. 2d 1, 7 (1984) (emphasis added and citations omitted). Weber itself emphasized that "[b]oth the United States and Delaware Constitutions guarantee the right of a defendant to confront the witnesses against him. U.S. Const. amend. VI; Del. Const. art. I, sec. 7." Weber v. State, 457 A. 2d, at 682 (footnote omitted). At no point did the Delaware Supreme Court imply that it reversed the defendant's conviction only because that result was compelled by its understanding of federal constitutional law; rather, the conclusion that its rule was "consistent with" a case of this Court construing the federal Confrontation Clause suggests that it was interested merely in respecting the bounds of federal law as opposed to carrying out its command. The Court rewards the Delaware Supreme Court's circumspection by unceremoniously reversing its judgment.

IV

I agree with JUSTICE MARSHALL that "the Delaware Supreme Court remains free on remand to decide that . . . its harmless-error analysis was the product of state rather than federal law." Ante, at 689. Because the Court's approach does nothing to minimize, and indeed multiplies, future occasions on which state courts may be called upon to clarify whether their judgments were in fact based on state law, it is appropriate to amplify the opinion I expressed in Massachusetts v. Upton, 466 Ū.S. 727, 736 (1984) (concurring in judgment), that the proper "sequence of analysis when an arguable violation of the State Constitution is disclosed by the record" is for the state court to consider the state constitutional claim in advance of any federal constitutional claim. In that case, I described the Oregon Supreme Court's practice of considering state constitutional claims before reaching issues of federal constitutional law:

"The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law."

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