Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees. I suggest to the bar that, although in the past it might have been safe for counsel to raise only federal constitutional issues in state courts, plainly it would be most unwise these days not also to raise the state constitutional questions. Every believer in our concept of federalism, and I am a devout believer, must salute this development in our state courts. Unfortunately, federalism has taken on a new meaning of late. In its name, many of the door-closing decisions described above have been rendered. Under the banner of vague, undefined notions of equity, comity and federalism the Court has condoned both isolated and systematic violations of civil liberties. Such decisions hardly bespeak a true Discussion Notes 1. Justice Brennan's article, although published only in 1977, is among the "most frequently cited law review articles of modern times." Ann Lousin, "Justice Brennan: A Tribute to a Federal Judge Who Believes in State's Rights," John Marshall Law Review 20 (Fall 1986): 2 n.3. Justice Stewart G. Pollock of the New Jersey Supreme Court referred to Justice Brennan's article as the "Magna Carta of state constitutional law." Stewart G. Pollock, "State Constitutions as Separate concern for equity. Nor do they properly understand the nature of our federalism. Adopting the premise that state courts can be trusted to safeguard individual rights,84 the Supreme Court has gone on to limit the protective role of the federal judiciary. But in so doing, it has forgotten that one of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens. Federalism is not served when the federal half of that protection is crippled. Yet, the very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if that trust is, for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own. 84 See Stone v. Powell, 96 S.Ct. 3037, 3051 n.35 (1976); Doran v. Salem Inn, Inc., 422 U.S. 922, 930 (1975) Sources of Fundamental Rights," Rutgers Law Review 35 (Summer, 1983): 716. 2. Justice Brennan updated his views in "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," New York University Law Review 61 (October 1986): 535. 3. Justice Brennan has not confined his views to academic literature, however. This following dissent indicates his views as expressed in judicial opinions. day's distortion of Miranda's constitutional principles can be viewed only as yet another step in the erosion and, I suppose, ultimate overruling of Miranda's enforcement of the privilege against self-incrimination. Michigan v. Mosley 423 U.S. 96 (1976) MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting. But the process of eroding Miranda rights, begun with Harris v. New York 401 U.S. 222 (1971), continues with today's holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect's right to cut off questioning has been "scrupulously honored." To In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719 (1975); Lego v. Twomey, 404 U.S. 477, 489 (1972); Cooper v. California, 386 U.S. 58, 62 (1967). Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now Discussion Notes 1. Why would Justice Brennan write a dissent like this? What role could such a dissent have? Williams, "In the Supreme Court's Shadow," 374-77. 2. Paul Bator, "The State Courts and Federal Constitutional Litigation," William & Mary Law Review 22 (Summer 1981): 606 n.1: I must confess to some misgivings about the extent to which some of this commentary seems to assume that state constitutional law is simply "available" to be manipulated to negate Supreme Court decisions which are deemed unsatisfac Robert F. Williams, "In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result" South Carolina Law Review 35 (Spring 1984): 353. 1984 South Carolina Law Review. Reprinted by permission. Although the state constitution may encompass a smaller universe than the federal Constitution, our constellation of rights may be more complete. Justice Stewart G. Pollock1 II. A New Model of Persons not attentive to the distinctions between federal and state constitutional law might view United States Supreme Court decisions as enunciating the final, definitive constitutional law regarding the validity of state policies. Under this view, Su 'Right to Choose v. Byrne, 91 N.J. 287, 300, 450 A2d 925, 931 (1982). increasingly depreciated by decisions of this Court.... I note that Michigan's Constitution has its own counterpart to the privilege against self-incrimination. Mich. Const., Art. 1, & 17; see State v. Johnson, supra. tory. And I regard it as inappropriate 3. Why would Bator refer to state constitutional law decisions as "unreviewable"? preme Court decisions represent the end of the constitutional decisionmaking process. Other persons, recognizing the state court trend of resorting to independent interpretations of their constitutions in the face of contrary Supreme court holdings, might view the Court's decisions as the beginning of the states' independent constitutional decisionmaking process. This Article's thesis is that Supreme Court federal constitutional interpretations represent the middle of an evolving process of constitutional decisionmaking in our federal system. The ongoing legal and political controversy following Supreme Court decisions holding against asserted federal constitutional rights illustrates an emerging new paradigm of judicial review in cases concerning state activities. The process begins with a series of lower court rulings on federal constitutional challenges to state legislative or executive action. These cases eventually lead to a United States Supreme Court ruling on the federal constitutional question. If the Supreme Court upholds the federal challenge (striking down the state policy), the decision establishes a minimum national standard applicable in every state. But if the Court rejects the asserted federal challenge (upholding the state policy), the decision now triggers a series of "second looks" at the question by statelevel decisionmakers, including the courts, based on state legal and policy arguments. During this second stage, the Supreme Court decision, while certainly not controlling, continues to play an integral role in the unfolding state legislative, executive, and judicial decisions. Supreme Court dissenting opinions on the question play an equally important role. D. State Judicial Reliance on State Constitutions In Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) the Alaska Supreme Court was faced with the question of a defendant's entitlement to a jury trial in an assault prosecution under a municipal ordinance. After discussing the federal constitutional standards outlined in Duncan v. Louisiana, 391 U.S. 145 (1968) (no jury trial required for "petty offenses"), the court went on to say (471 P.2d at 401-02): In interpreting the Alaska Constitution we must consider the consequences of denying jury trial to the person being prosecuted. It is of small moment to the citizen whether the period of incarceration is long or short; one day may be too long. Its results may be serious for one man and less so for another, depending upon a variety of circumstances. Furthermore, the great bulk of the citizenry encounters the judicial process most frequently in the prosecution of what have been called the petty offenses. Punishments inflicted at that level can be as harsh and as devastating to the life of the citizen as those meted out for more serious misdemeanors and for felonious conduct. Why should the remedial process be less just at one level than at another? We should be alert against attempts by government to whittle away fundamental rights on grounds of expediency. It is our constitutional duty to prevent such untoward consequences for the citizen at large. It is well stated in Duncan v. Louisiana, supra, that, "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge he was to have it." 391 U.S. at 156, 88 S.Ct. at 1451. Accordingly, we declare that in any criminal prosecution, whether under state law or for violation of a city ordinance, the accused upon demand is entitled to a jury trial. What is ultimately persuasive to us is the strong indication by other courts that fundamental fairness under the Fourteenth Amendment requires an extension of procedural safeguards in the administration of criminal justice to an area of crimes once deemed outside the pale of protection. In deciding today that appellant has a constitutional right to a jury trial, we have decided to so extend this protection. In doing so, we recognize that this result has not been reached in certain other jurisdictions or by the United States Supreme Court. The mere fact, however, that the United States Supreme Court has not extended the right to jury trial to all types of offenses does not preclude us from acting in this field. While we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage.26 We need not stand by idly and passively, waiting for constitutional direction from the highest court of the land. Instead, we should be moving concurrently to develop and expound the principles embedded in our constitutional law. In Serrano v. Priest, 487 P.2d 1241 (Cal. 1971) the California Supreme Court upheld a complaint alleging California's system of funding public schools violated both federal and state equal protection guarantees. It remanded the case for trial. In 1973, however, the United States Supreme Court ruled a similar public school finance system in Texas did not violate the federal equal protection clause of the Fourteenth Amendment. San Antonio District v. Rodriguez, 411 U.S. 1 (1973). The Supreme Court noted (411 U.S. at 44): It must be remembered, also that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While "[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state 26 Roberts v. State, 458 P.2d 340, 342 (Alaska 1969). We again iterate our position, taken in Roberts, that “[w]e are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution." We also again voice our disapproval of the language in Knudsen v. City of Anchorage, 358 P.2d 375 (Alaska 1960) which would indicate that we are bound by the United States Supreme Court's interpretation of the Sixth Amendment of the United States Constitution. action,"88 it would be difficult to imagine a The foregoing considerations buttress What are the implications of such a statement by the United States Supreme Court in upholding state actions against federal constitutional challenges? Does it provide an argument that the Supreme Court decision is of lesser precedential value in consideration of similar state constitutional claims? See Robert F. Williams, "In the Supreme Court's Shadow,” pp. 389-97. After a lengthy trial in the lower court, Serrano v. Priest again reached the California Supreme Court and was decided in 1976. 557 P.2d 929, 950-52 (1976): The primary position adopted by plaintiffs on this point is the correct one. As Serrano I makes clear through its reference to our second Kirchner opinion (and as all parties hereto are agreed), our state equal protection provisions, while "substantially the equivalent of" the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable. We have recently stated in a related context: “[I]n the area of fundamental civil liberties-which includes... all protections of the California Declaration of Rights-we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental 88 Allied Stores of Ohio v. Bowers, 358 U.S. 522, 530, 532 (1959) (BRENNAN, J., concurring); Katzenbach v. Morgan, 384 U.S. at 659, 661 (Harlan, J., dissenting). rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law".... Thus, the fact that a majority of the United States Supreme Court have now chosen to contract the area of active and critical analysis under the strict scrutiny test for federal constitutional purposes44 can have no effect upon the existing construction and application afforded our own constitutional provisions. Nor can the additional fact-if it be a fact that certain of the high court's former decisions (which may have been relied upon by us in Serrano I) may not be expected to thrive in the shadow of Rodriguez cause us to withdraw from the principles we there announced on state as well as federal grounds. For these reasons then, we now adhere to our determinations, made in Serrano I, that for the reasons there stated and for purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of laws (1) discrimination in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest. Because the school financing system here in question has been shown by substantial and convincing evidence produced at trial to involve a suspect classification (insofar as this system, like the former one, draws distinctions on the basis of district wealth), and because that classification affects the fundamental interest of the students of this state in education, we have no difficulty in concluding today, as we concluded in Serrano I, that the school financing system before us must be examined under our state constitutional provisions with that strict and searching scrutiny appropriate to such a case. 44 We do not think it open to doubt that the Rodriguez majority had considerable difficulty accommodating its new approach to certain of its prior decisions, especially in the area of fundamental rights. Indeed, we share the curiosity of Justice Marshall, who in his dissent states that he "would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma [ex rel. Williamson], 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), or the right to vote in state elections, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), or the right to appeal from a criminal conviction, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)." (Rodriguez, supra, 411 U.S. at p. 100, 93 S.Ct. at p. 1331.) We are fortified in reaching this conclu sion by language appearing in the Rodriguez decision itself. The high court, in passing upon the validity of the Texas system under the federal equal protection clause, repeatedly emphasized its lack of “expertise❞ and familiarity with local problems of school financing and educational policy, which lack "counsel[ed] against premature interference with informed judgments made at the state and local levels." (Rodriguez, supra, at p. 42, 93 S.Ct. at p. 1301.) These considerations, in conjunction with abiding concerns from the standpoint of federalism,46 in the high court's view "buttress[ed] [its] conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny." (Id. at p. 44, 93 S.Ct. at p. 1302.) This Court, on the other hand, in addressing the instant case occupies a position quite different from that of the high court in Rodriguez. The constraints of federalism, so necessary to the proper functioning of our unique system of national government, are not applicable to this court in its determination of whether our own state's public school financing system runs afoul of state constitutional provisions. Moreover, while we cannot claim that we have achieved the perspective of "expertise" on the subjects of school financing and educational policy, our deliberations in this matter have had the benefit of a thoughtfully developed trial record (comprising almost 4,000 pages of testimonial transcript, replete with the opinions of experts of various accomplishments and persuasions, and a clerk's transcript of almost equal size), comprehensive if not exhaustive findings on the part of an able trial judge, and voluminous briefing by the parties and no less than nine amici curiae, 46 The high court explained its misgivings on the federalism question as follows: "It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While '[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,' it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State." (Id. at p. 44, 93 S.Ct. at p. 1302; fn. omitted.) |