It is also settled that when government regulation designed to carry out a legitimate and important State objective would incidentally burden free expression, the government's action cannot be sustained unless the State can prove that it is no broader than needed to achieve its purpose. . . . Although these holdings were based essentially on First amendment principles, they are equally applicable under the State Constitution, since "at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution" (Bellanca v. State Liq. Auth., 54 N.Y.2d 228, 235, 445 N.Y.S.2d 87, 429 N.E.2d 765).

The only remaining question is whether the State constitutional guarantee of freedom of expression is implicated by an order closing the defendant's bookstore to prevent illegal acts by patrons. There can be no doubt that bookselling is a constitutionally protected activity or that closing a bookstore for a year may have a substantial impact on that activity. The prosecutor urges that this impact may be constitutionally ignored when, as here, the State's purpose is not to interfere with the store's legitimate bookselling activities but is aimed at preventing patrons from committing illegal acts having no expressive content. That, however, is just another way of saying that the impact of the State's action is not direct but only incidental. Actions of this type are subject to lesser scrutiny than those directed at restraining free expression, but they cannot be said to have absolutely no constitutional implications. The crucial factor in determining whether State action affects freedom of

expression is the impact of the action on the protected activity and not the nature of the activity which prompted the government to act. The test, in traditional terms, is not who is aimed at but who is hit.

Of course a bookstore cannot claim an exemption from statutes of general operation aimed at preventing nuisances or hazards to the public health and safety. It is, however, entitled to special protection, and no undue burden is placed on the State by requiring it to prove that in seeking to close the store it has chosen a course no broader than necessary to accomplish its purpose. If other sanctions, such as arresting the offenders, or injunctive relief prove unavailing, then its burden would be met.

Finally, we note that not every government regulation of general application, having some impact on free expression, implicates constitutional guarantees. Arresting a newspaper reporter for a traffic violation is one example where the impact would not be constitutionally cognizable, as Justice O'Connor noted in her concurring opinion at the Supreme Court. But closing a bookstore for a year, as is required by this statute, cannot be said to have such a slight and indirect impact on free expression as to have no significance constitutionally.

Accordingly, on reargument following remand from the United States Supreme Court, the order of the Appellate Division should be modified to grant defendant partial summary judgment dismissing those portions of the second cause of action seeking an order directing the closing of the premises in question.

Discussion Notes

1. Are there other areas, such as freedom of expression, where diversity among states has been encouraged by the United States Supreme Court? Is such diversity a sign of a well-functioning federal system?

2. Chief Judge Wachtler refers in this opinion to the court's earlier decision in P.J. Video. That opinion contains an impressive listing of New York Court of Appeals decisions both following and diverging from United States Supreme Court interpretations of the federal constitution.

New York has now clearly adopted the approach of interpreting its constitution independently of federal constitutional law. See, for example, Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337 (1986).

3. For an example of this independent approach, in the first authoritative state constitutional analysis of the drug testing issue, PatchogueMedford Congress of Teachers v. Board of Education,

70 N.Y.2d 57, 510 N.E.2d 325 (1987), the New York Court of Appeals invalidated mandatory drug testing of probationary public school teachers. Chief Judge Wachtler noted:

It is not clear whether the urine test compelled here would satisfy Federal constitutional requirements. The Supreme Court has not yet decided a case involving compulsory drug testing of government employees, and the courts which have considered application of the Fourth Amendment have reached diverse conclusions. All appear to have held that such testing involves a search and seizure, but differ as to whether it is reasonable for the government to act only on reasonable suspicion with respect to a particular employee...or whether some form of random testing of all employees in certain categories is permissible.... A majority of courts appear to

Discussion Notes (cont.)

support the conclusions reached by the courts below in the case now before us, that urine testing compelled by the government does involve a search and seizure, and that reasonable suspicion is required. . . .

As noted, the School District disputes both of those conclusions and contends that it has a right to conduct such tests at will. The question is an important one which should be settled throughout the State and one on which resort to the Federal Constitution would not be dispositive since the practice, even if permitted by the Fourth Amendment, may not satisfy the requirements of the comparable provision of the State Constitution (N.Y. Const., art. I, sec. 12). The heart of the controversy under both Constitutions is whether the particular test infringes on an expectation of privacy which society considers reasonable. To the extent that this case deals with the expectation of privacy of public employees in this State, it presents a type of inquiry appropriate for resolution under the State Constitution.

We therefore consider it necessary and appropriate to decide this case under both the State and Federal Constitutions.

With respect to the suggestion that our reliance on both Constitutions is somehow unfair to the litigants it should be noted that one of the briefs submitted on this appeal was completely devoted to this issue. In addition, the relief sought here is in the nature of a declaratory judgment, where the object is not to determine whether the rights of a particular litigant have been violated, but is instead intended to provide guidance to the parties so that they may conform their future conduct to the law. As indicated above, reliance on the Federal Constitution alone could not provide a complete or adequate response to that inquiry. For the reasons that follow, we conclude that the test ordered in this case does not satisfy the requirements of either the State or Federal Constitutions.

Compare Judge Simons' concurring opinion in this same case.

Generally speaking, the United States Supreme Court may not review a lower court decision which is based on "adequate and independent state grounds." These materials reflect the impact of this doctrine, and the court's recent major change in it.

Williams v. State

210 Ga. 665, 82 S.E.2d 217 (1954)

WYATT, Presiding Justice.

1. The defendant is here attempting by extraordinary motion for new trial to challenge the legality of jury put upon him in the instant case. He relies entirely upon the case of Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, contending that this case is controlling in the instant case. We do not agree with this conclusion. In Avery v. State of Georgia, supra, the defendant, upon being arraigned for trial in Fulton County, filed a written challenge to the array of traverse jurors put upon him for reasons set out, among them that the names of White jurors were put upon white slips of paper and that the names of Colored jurors were put upon yellow paper. See Avery v. State of Georgia, supra, and Avery v. State, 209 Ga. 116, 70 S.E.2d 716. In the instant case, no challenge to the array of traverse jurors was filed, and no question as to the legality of the jury was raised until after the denial of a motion for new trial had been affirmed by this Court. See Williams v. State, 210 Ga. 207, 78 S.E.2d 521.

It is settled law in this State that, when a panel of jurors is put upon the prisoner, he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived and can not thereafter be made a ground of a motion for new trial.

.. In the instant case, the defendant made no objection to the jury when the panel was put upon him, and made no objection until he filed this extraordinary motion for new trial after a new trial had been denied and that judgment affirmed by this court. See Williams v. State, supra. It follows, therefore, that the judgment of the court below dismissing the extraordinary motion for new trial was not error.

3. Defendant in his motion sets forth a practice which has been condemned by this court and the Supreme Court of the United States. However, any question to be considered by this court must be raised at the time and in the manner required under the rules of law and practice and procedure in effect in this State. We can not simply overlook the rules made for the purpose of providing a fair and orderly procedure in the conduct of trials and other legal processes in this State and permit the defendant to stand negligently or purposefully by, taking his chances of an acquittal, and then, upon his conviction, and upon the denial of a new trial which is affirmed by this court, be heard to say that the panel of jurors put upon him was not fairly and properly selected and empaneled. When this defendant failed to raise this question when the panel was put upon him, he waived the question once and for all.

It follows, there was no error in dismissing the extraordinary motion for new trial.

Judgment affirmed. All the Justices concur.

Williams v. Georgia

349 U.S. 375 (1955)

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The Court has here under review the decision of a state court rejecting a claim of infirmity in a conviction for murder based on a constitutional ground raised for the first time in an extraordinary proceeding after the conviction had been affirmed on appeal. Respect for the State's administration of criminal justice requires a detailed narrative of the procedural course of this litigation and an adequate consideration of the legal factors relevant to our disposition.

In his brief on behalf of the State before the State Supreme Court, the Solicitor General of Fulton County had urged, inter alia, that there was no showing of a denial of equal protection in this case. On oral argument here, however, the State, with commendable regard for its responsibility, agreed that the use of yellow and white tickets in this case was, in light of this Court's decision in Avery, a denial of equal protection, so that a new trial would be required but for the failure to challenge the array. .

A state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power. The principle is clear enough. But the unique aspects of the neverending new cases that arise require its individual application to particular circumstances. Thus, we would have a different question from that before us if the trial court had no power to consider Williams' constitutional objection at the belated time he raised it. But, where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right. A state court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner.

Georgia Supreme Court which impels us to remand for that court's further consideration. This is the acknowledgment by the State before this Court that, as a matter of substantive law, Williams has been deprived of his constitutional rights....

The facts of this case are extraordinary, particularly in view of the use of yellow and white tickets by a judge of the Fulton County Superior Court almost a year after the State's own Supreme Court had condemned the practice in the Avery case. That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant. We think that orderly procedure requires a remand to the State Supreme Court for reconsideration of the case. Fair regard for the principles which the Georgia courts have enforced in numerous cases and for the constitutional commands binding on all courts compels us to reject the assumption that the courts of Georgia would allow this man to go to his death as the result of a conviction secured from a jury which the State admits was unconstitutionally impaneled.

Remanded.

MR. JUSTICE CLARK, with whom MR. JUSTICE REED and MR. JUSTICE MINTON join, dissenting.

To borrow a phrase from Mr. Justice Holmes, the opinion of the Court "just won't wash." While I, too, am not deaf to the pleas of the condemned, I cannot ignore the long-established precedents of this Court. The proper course, as has always been followed here, is to recognize and honor reasonable state procedures as valid exercises of sovereign' power. We have done so in hundreds of capital cases since I have been on the Court, and I do not think that even the sympathetic facts of this case should make us lose sight of the limitations on this Court's powers.

We conclude that the trial court and the State Supreme Court declined to grant Williams' motion though possessed of power to do so under state law. Since his motion was based upon a constitutional objection, and one the validity of which has in principle been sustained here, the discretionary decision to deny the motion does not deprive this Court of jurisdiction to find that the substantive issue is properly before us.

In the instant case, there is an important factor which has intervened since the affirmance by the

It is elementary that this Court has no jurisdiction over a case here from a state court where there is an independent and adequate state ground supporting the conclusion reached below. A purported state ground is not independent and adequate in two instances. First, where the circumstances give rise to an inference that the state court is guilty of an evasionan interpretation of state law with the specific intent to deprive a litigant of a federal right. Second, where the state law, honestly applied though it may be, and even dictated by the precedents, throws such obstacles in the way of enforcement of federal rights that it must be struck down as unreasonably interfering with the vindication of such rights.

It is obvious that the Georgia court has not been guilty of "evasion.” Although the Georgia court's interpretation of state law may not be free from doubt, it is not possible to say that the Georgia decision is without "fair support" in the previous cases. I regard it also as noteworthy that Presiding Justice Wyatt wrote this opinion for the Georgia Supreme Court. It was he who, in the Georgia court's decision in Avery, said in dissent:

I cannot agree with the ruling [as to discrimination] for the reason, in my opinion, that this practice is conclusive evidence of discrimination, and for that reason the case should be reversed. 209 Ga. 116, 131, 70 S. E. 2d 716, 726.

In this ruling he went further in protecting the integrity of the jury system than we ourselves thought necessary. Compare Avery v. Georgia, 345 U.S. 559, 562-563 (petitioner established "a prima facie case of discrimination" which the State failed to rebut). One who had so acted would hardly be attempting to evade the very federal right he had previously upheld so strongly.

Similarly, the Georgia procedure is not unduly burdensome. The majority concedes that "[a] state procedural rule which forbids the raising of federal questions at late stages in the case, or by any other than a prescribed method, has been recognized as a valid exercise of state power." Even if the majority could somehow strike down the Georgia court's holding that it lacked discretion, it is not enough to show that Georgia has the power and refuses to exercise it. There is no case to support the implication that the exercise of discretion against a federal right is, without more, an evasion. See Brown v. Allen, 344 U.S. 443, 484-486. Indeed, it would seem that there would have to be a withholding of discretion for the purpose of depriving Williams of a federal right. There is nothing even approaching that here.

A state court's decision cannot be overturned if any one of the grounds supporting it is independent and adequate. There is one ground here which appears so unassailable that the majority does not even attack it. Georgia law makes a showing of due diligence on the part of the movant a prerequisite to granting extraordinary motions for new trial. The state court in this case found that due diligence had not been properly pleaded, and that the facts of which the Georgia court could take notice conclusively demonstrated that diligence was indeed completely lacking.

MR. JUSTICE MINTON, with whom MR. JUSTICE REED and MR. JUSTICE CLARK join, dissenting.

Georgia has a rule of law that the jury panel must be challenged at the threshold, that is, as Georgia expresses it, before the panel is "put upon the defendant." If the panel is not thus challenged, the issue cannot later be raised and is considered as waived "once and for all." Williams v. State, 210 Ga. 665, 669, 82 S. E. 2d 217, 220. Ga. Code Ann., & 59-803. See Jordan v. State, 22 Ga. 545.

This is a reasonable rule. It gives the State an opportunity to meet the challenge and to justify the array, or, if it is improperly constituted, an opportunity to correct it.

In the instant case, the challenge to the array was not presented at the time the panel was put upon the petitioner-defendant. If the defendant thus fails to challenge the array before it is put upon him, he may not raise the question as to its legality for the first time in a motion for a new trial. Lumpkin v. State, 152 Ga. 229, 231, 109 S. E. 664, 665. Such a requirement complies with the Federal Constitution. Brown v. Allen, 344 U. S. 443, 480.

Williams v. State

211 Ga. 763, 88 S. E. 2d 376 (1955) DUCKWORTH, Chief Justice.

The Supreme Court, 349 U.S. 375, 75 S.Ct 814, undertakes to remand the case for further consideration, and in their opinion has pointed to Georgia law vesting in the trial judge discretion in ruling upon an extraordinary motion for new trial and apparently concluded therefrom that this court should reverse the trial court because that discretion was not exercised in the way the Supreme Court would have exercised it. We know and respect the universally recognized rule that the exercise of discretion never authorizes a violation or defiance of law. In this case, as pointed out by us, that law is that the question sought to be raised must be raised before trial and not otherwise.

Not in recognition of any jurisdiction of the Supreme Court to influence or in any manner to interfere with the functioning of this court on strictly State questions, but solely for the purpose of completing the record in this court in a case that was first decided by us in 1953, and to avoid further delay, we state that our opinion in Williams v. State, 210 Ga. 665, 82 S.E.2d 217, is supported by sound and unchallenged law, conforms with the State and Federal Constitutions, and stands as the judgment of all seven of the Justices of this Court.