Beware The Dark Side of Constitutional Law

Author(s): Phylis Skloot Bamberger

Source: Human Rights, Vol. 19, No. 1 (Winter 1992), pp. 22-25
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/27879679
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 Attorneys must understand that
state law will determine who is a
proper party, including who has
standing to sue and who may be
sued. It may be difficult to sue
without engaging in criminal con
duct to set up a test litigation. Stat
utes authorizing taxpayer suits are
very helpful. Immunity of the state
and full or partial immunity of state
or local officials will determine who
the defendant is and what reme
dies are available, such as injunc
tive relief to force cessation of
harmful conduct or relief in the

Constitutional
form of mandamus to compel ac
tion or monetary compensation to
cure prior injuries and to reimburse

Law
for prior denials.
While further injury may be pre
vented, past denials may not be
compensated. And while ongoing
conduct or inaction may be im
proper, the court may be without
power to direct what course of ac
tion officials should take.

Courts often will not intervene in

clearly critical to determine the matters of social priorities, alloca
Know the differences procedural aspects of such litiga
tion. It can affect where a cause of
tion of funds, and resolution of
complicated local problems be
between state and action lies; whether there is a per cause they consider them political
missible plaintiff or a defendant questions for the executive and
federal law before you subject to suit; the cost of the liti legislative branches. However, state
jump into your case gation; the realistic possibility of courts do examine the nonjudicial
meaningful relief; the difficulty of parts of government to determine
proving injury or defending against if they are fulfilling constitutional
By Phylis Skloot Bamberger a claim of injury; and the duration and statutory responsibilities and
of the proceedings. acting within their powers or with
These issues require examina out authorization.
For more than a decade, judges tion of the state law of class action, This review power is exercised
have urged lawyers to present state mootness, standing, liability and the with restraint. Often, these ques
law arguments?based on state immunity of the sovereign or of tions of justiciability require the
constitutions, statutes, and com state and local officials. The attor courts to determine if the function
mon law?to resolve disputes of ney also needs to consider how of the official is mandatory or dis
rights, limits on government intru state law addresses the doctrine of cretionary and if the official is au
sion, and demands for government political question or justiciability; thorized to choose the means of
protection. As the complexity of preservation requirements, the carrying out the function. Gener
state law claims has grown, judicial scope of discovery and availability ally, discretionary functions and
opinion has had to grapple with the of depositions; temporary restrain remedies chosen by the political
relationship between state and fed ing orders and preliminary injunc branch will not be subjected to ju
eral authority and the important tions; availability of prompt trial; the dicial review. What must be deter
doctrines of substantive state law ability to choose the location of the mined by the courts is whether an
and procedure. Scholarly writing state forum and the judge and act in a particular state is viewed as
and practice-oriented articles have whether a single judge will handle discretionary or as mandated by
revealed several conclusions. the entire case; the receptivity of a law. For example, in liggets v.
First, lawyers have not made it a particular judge to state law argu Grinker, 75 N.Y.2d 711 (1990), a
practice to present state law argu ments; the law of summary judg court refused to direct individual
ments. Second, while raising state ment, delay in case disposition, the ized grants for housing but held that
law issues requires complex anal right of a jury, the size of the jury, the executive was required by stat
ysis, it is not qualitatively different conduct of the jury voir dire, the ute to set a schedule for housing
from any other legal anaylsis. Third, level of proof, the burden of proof, allowances to keep poor families
these issues often produce unex the applicable rules of evidence, from being evicted.
pected results both in court and in the accepted use of experts, the Class action litigation is often
the political arena. available forms of relief, and the critical to keep an issue alive or to
right to appeal?both interlocutory avoid expensive, repeated litiga
It is often underestimated but and final. tion. Many states permit class ac

22

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tion certification based on the same
requirements in the Federal Rules
of Civil Procedure: numerosity?
potential plaintiffs so numerous that
joinder is impracticable; typicality
of the claims of representative par
ties; fair and adequate represen
tation of the members; and
superiority of the class action
method. The cost and impact of lit
igation will depend on how strictly
these factors are additional
applied and
whether there are re
quirements.
Compliance with state issue
preservation requirements will
often determine if an issue is prop
erly before the state court and can
be resolved. The state law claim
should be presented at the first op
portunity in the trial court in com
pliance with the state procedural
requirements, including timely
presentation in the authorized
form. Preservation requirements
are often strictly enforced. Failure
to raise the claim acordins to state
law requirement may result in a bar
to presentation and substantial
prejudice to the client.
The law on procedural issues
varies from state to state and often
within state subdivisions. These
laws will affect the results of the
case, making litigation too expen
sive, hopelessly delayed, or with
out a chance of success. They may
provide a defense to the litigation
and result in disposal of the case.
On the subject of substantive
state law arguments, there are many
complex issues that impact on their
development. For instance, the
1983 decision of the U.S. Supreme
Court in Michigan v. Long, 463 U.S.
1032, presents the flip side of the
requirement to comply with state
procedural requirements for the
presentation.
The U.S. Supreme Court held
that it can review state court deci
sions based on state law unless the
state court makes a "plain state
ment" that its decision is premised
on independent and adequate state
law grounds. The decision refers to
state/federal constitutional ana
logues in which both the state and
federal constitutions contain iden
tical or similar provisions. In such
cases, the state courts must decide
whether to use the U.S. Supreme
Court interpretation of the federal
Constitution to interpret its own
constitution or embark on an in
dependent analysis of the state
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constitution that might provide a
higher level of protection.
This dual analysis creates the
floor/ceiling dichotomy that is
mandated by the federal suprem
acy clause. Under that clause, all
federal law, including the Consti
tution, statutes, administrative reg
ulations, executive orders, and
treaties, control any state law pro
visions, including a state constitu
tion. Federal law sets the minimum
level?the floor?of protection for
an analogue right, allowing a state
to offer greater but not lesser pro
tection?the ceiling. To gain a
broader state constitutional right
and to insulate the state court de
cision from Supreme Court review,
it is important for the attorney to
present the state and federal law
argument separately and to urge the
state courts to find that the state law
portion of the decision is based on
solely state law analysis.
One interesting difference be
tween state and federal arises in
identifying fundamental rights and
suspect classes. For example, the
Supreme Court has held under the
federal equal protection clause that
government classifications by race
and religion are suspect and only
justifiedf by compelling govern
ment interests. A state court can
choose to add other suspect clas
sifications, including age, eco
nomic status, gender, andphysical
handicap. Federal regulation of
these categories is under either a
lesser protection or an enumerated
power. Further, the state court may
differ with the Supreme Court
about what constitutes a compel
ling state interest as long as it does
not fall below the federal floor.
Federal and state differences may
also occur in state or local regula
tion of property. In a case now be
fore the U.S. Supreme Court? ample, the Supreme Court has
Lucas v. South Carolina Coastal
Council, No. 91-453 (cert, granted
Nov. 18, 1991)?restrictions on
property use to preserve beach
front may be found invalid under
the Fourteenth Amendment. Even
when property use restrictions are
found valid?as in United Artists
Theater Circuit, Inc. v. City of Phil
adelphia, 595 A.2d 6 (Pa. 1991)
(reargument granted Aug. 30,
1991 )?the state court may find the
intrusion improper under the state
constitution.
Yet another difference arises be
tween free speech rights and com
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mon law or statutory right against
defamation. State causes of action
in defamation are limited by the
Supreme Court. First Amendment
interpretations set the floor for
speech and press rights, but a court
may set a higher protection for a
state speech guarantee, thereby
limiting its own defamation ac
tion?as in Immuno A.C. v. Moor
lankowski, 77 N.Y.2d 235, 248, cert,
denied, 111 S. Ct. 2261 (1991),
compared with Milkovich v. Lorain
journal Co., 110 S.Ct. 2695 (1900).
What's more, greater state free
speech guarantees may offer more
protection from official intrusion
than federal free speech doc
trine?as in New York v. P.J. Video,
475 U.S. 868 (1986), compared with
People v. P.}. Video, 68 N.Y.2d 296
(1986) , cert, denied, 479 U.S. 1091
(1987) .
State and federal differences may
also surface in the Supreme Court's
resolution of conflicting rights that
limit what a state can do to protect
a particular right. For example, in
the conflict between the freedom
of the press to report on a trial or
jury selection and a defendant's
due process right to a fair trial?as
in Nebraska Press Association v.
Stuart, 427 U.S. 539 (1976)?the
Court determined that the right of
the press prevails. If the state court
and the Supreme Court protect dif
ferent rights in the dispute, the fed
eral priority controls. In such a
situation, the attorney must look for
another way to protect the other
interest.
Another spin-off of the suprem
acy of federal law is the preemp
tion doctrine. When the president
and Congress use a power enum
erated in the Constitution, they
have preempted, to some degree,
precluding state action that is in
consistent or interfering. For ex
found improper, under the com
merce clause, state rules that pro
tect its citizens by regulating the
time airplanes land. Pending be
fore the Supreme Court in Morales
v. Trans World Airlines, No. 90-1604
(cert, granted Nov. 27, 1991), is
whether the preemption doctrine
precludes state regulation to pre
vent fraud through airline advertis
ing.
State courts have used three
methods to analysis state rights and
federal analogues. A state court that
views its constitution as the pri

Sources for using state courts
For more information on how to
use state courts to protect indi
vidual rights and liberties, see the
following sources:
Justice Brennan, State Consti
tutions and the Protection of In
dividual Rights, 90 Harv. L. Rev.
489 (1977).
Phylis Bamberger, ed., Recent
Developments in State Constitu
tional Law (P.L.I. 1985).
Ronald K.L. Collins, Govern
ment by Popular Initiative: States
Amend Their Constitutions, Na
tional Law Journal, June 18, 1984,
at 44, col. 1.
Constitutions of the United
States?National and State (Leg
islative Drafting Research Fund of
Columbia University 1980).
Development in the Law?The
Interpretation of State Constitu
tional Rights, 95 Harv. L. Rev.
1324 (1982).
Emerging Issues in State Con
Rev. 169 (1983); Robert F. Wil
stitutional Law (National Associa
tion of Attorneys General); a liams, State Constitutional Law:
journal published annually?to Gases and Materials with 1990-91
date 1988, 1989, 1990.
Judith S. Kaye, Dual Consti
tutionalism in Practice and Princi
mary document looks first to it for
determining if a right exists and if
an intrusion or limitation on the
right is proper. It looks to see if the
federal Constitution requires
greater protection only if it finds
that the state limitation is valid un
der state law.
The second method, called sup
plemental analysis, examines the
federal Constitution first, and only
if it permits the intrusion or limita
tion does the state court look to its
own constitution for greater pro
tection. The last method treats the
federal and state constitutions as
separate but coequal, interpreting
each analogue on its own merits.
Under such analysis, the state court
may conclude each constitution
provides the same protection, but
it may insulate against Supreme
Court review by making the requi
site plain statement.
Under each of these analyses, a
state court considering the state
constitutional claim may reject the
U.S. Supreme Court's decision
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ple, 42 The Record 288 (The
Association of the Bar of the City
of New York 1987) (Cardozo lec
ture).
Anthony Lewis, Make No Law
(Random House 1991).
Hans Linde, E Pluribus, 18 Ga.
L. Rev. 165 (1984).
McGraw, ed., Developments
in State Constitutional Law (The
Williamsburg Conference) (West
1985).
Also note: Rediscovering the
Wisconsin Constitution: Presenta
tion of Constitutional Questions in
State Courts, 1983 Wise. L. Rev.
483; Symposium: The Connecti
cut Constitution, 15 Conn. L. Rev.
1 (1982); Symposium: The Emerg
ence of State Constitutional Law,
63 Texas L. Rev. 959 (1985); Sym
posium: The Washington Consti
tution, 8 U. Puget Sound L. Rev.
157 (1985); Robert F. Williams,
State Constitutional Law Pro
cesses, 24 William and Mary L.
Supplement (Advisory Commis
sion on Intergovernmental Rela
tions).
about the analogue federal right
and provide greater rights. Even
though a decision of the U.S. Su
preme Court based on the federal
Constitution may be made in a case
coming to it from a state court,
other states can rule differently
from the Supreme Court as long as
the federal floor is not breached.
Issues about which states may cur
rently reject Supreme Court hold
ings include: good faith exception
to the warrant requirement as in
United States v. Leon, 468 U.S. 897
(1984), and Massachusetts v. Shep
pard, 468 U.S. 981 (1984); approval
for the power of state educators to
define the free press rights of high
school students as in Hazelwood
School District v. Kuhlmeier, 484
U.S. 260 (1988); the finding that the
use by school teachers of corporal
punishment against students is not
cruel and unusual punishment or a
violation of due process as in In
grahm v. Wright, 430 U.S. 654
(1977); denying the "free exercise"
rights to the use of peyote for reli
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gious purposes as in Employment
Division v. Shuth, 494 U.S. 872
(1990); the decision that allows dis
plays in public places that to some
have religious significance as in
Lynch v. Donnelly, 465 U.S. 668
(1984), and County of Allegheny v.
AGLU, 492 U.S. 573 (1989); and the
ruling that the use of a coerced
confession in a criminal trial can be
harmless error as in Arizona v. Ful
minante, 111 S. Ct. 1246 (1991).
While the emphasis in analyses
of rights in state courts has been on
analogues with the federal Consti
tution, many state constitutions
create affirmative rights or obliga
tions upon the branches of state
government that have no equiva
lent on the federal side. Among
others, state constitutions may pro
vide rights to housing, education,
health care, and counsel in civil
cases. For example, state courts
have found, based on state consti
tutions, a state obligation to pro
vide education for alTchildren paid
for by statewide funding. See the
cases of Abbott v. Burke, 575 A.2d
376 (N.J. 1990); Rose v. Council for
Better Education, Inc., 790 S.W.2d
186 (Ky 1989); also Board of Edu
cation v. Nyquist, 57 N.Y.2d 27
(1982), appeal dismissed, 459 U.S.
1138, 1139 (1983). The Supreme
Court had rejected such an argu
ment under the federal equal pro
tection clause. San Antonio School
District v. Rodriguez, 411 U.S. 1
(1973).
Therefore, it is important before
filing a complaint to review all rel
evant state constitutional provi
sions that may provide an
independent for relief and incor
porate them into the complaint.
Further, federal rights are pro
tected against governmental intru
sions and, therefore, protection is
against state action. Greater rights
may be available under state law
simply because the requisite level
of state action required by the fed
eral Constitution is not present.
The U.S. Supreme Court has not
been consistent about what it views
as state action. In one case, Shelly
v. Kraemer, 334 U.S. 1 (1948), state
enforcement of a contract for sale
of land with a racial covenant was
held to be state action. In another
case, Flagg Brothers, Inc. v. Brooks,
436 U.S. 149 (1978), state lien law
authorization of private seizure of
property without notice was held
not to be state action.
 On the other hand, many states
broadly interpret state action to
provide a basis for court interven
tion to resolve the conflict. For ex
ample, in the case of Sharrock v.
Dell Buick-Cadillac, Inc., 45 N.Y.2d
152 (1978), a state decision found
state action in the sale of property
under the state lien law because the
lien law itself legalized the sale.
In another case, Robins v. Prune
yard Shopping Center, 592 P.2d 341
(Cal. 1979), state courts sustained
free speech rights to leaflet or pe
tition in a private shopping center
that sought to preclude such con
duct despite the fact that the U.S.
Supreme Court found no federal
protection in similar circumstances
because of lack of state action in
the case of Lloyd v. Tanner, 407 U.S.
551 (1972). In fact, the U.S. Su
preme Court subsequently held in
Pruneyard Shopping Center v. Rob
ins, 447 U.S. 74 (1980), that states
were free to decide and to balance
state free speech rights with federal
Fourteenth Amendment property
rights in such cases as long as the
latter were not unconstituionally
restricted. State decisions have
gone on to resolve this conflict both
ways?some favoring speech rights
and some property rights on a va
riety of theories, including com
mon law. See Lloyd Corp. Ltd. v.
Whiffen, 773 P.2d 1294 (Ore. 1989),
and Shad Alliance v. Smith Haven
Mall, 66 N.Y.2d 496 (1985).
The proper analysis of state con
stitutions is the same for both
analogue and nonanalogue provi
sions. The presentation of a state
constitutional issue on its merits re
quires an examination of the prec
edents to learn whether the state
judiciary uses an interpretative or
noninterpretative analysis of the
state constitution. The interpreta
tive analysis is text-based. It looks
at the language of the state consti
tutional provision and the history of
its adoption. The test may show the
state's provision grants a broader or
different right than federal text. The
noninterpretative approach, in ad
dition to the text itself, looks at the
particular history of the right, in
cluding statute and common law,
the history and tradition of the state,
the treatment of the right as special
or unique, and the attitude of the
citizenry about the right. See Bock
v. Westminster Mall Company, No.
90-SC-433 (Col. Oct. 7, 1991)
(WESTLAW No. 1991 WL 198073).
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In determining the history or state
policy concerning a protection,
look to whether the state has by
policy and history accepted as its
own any Supreme Court definition
of the right and chosen to adhere
to that determination despite a Su
preme Court change of law. For ex
ample, many states have continued
to recognize protection provisions
previously held within the federal
Fourth Amendment but now aban
doned by the U.S. Supreme Court.
Although lawyers may base ar
guments on state constitutional
guarantees and protections, state
statutes and the common law are
also sources of rights. Indeed, it is
appropriate to rely first upon such
state statutes and to apply state
principles of statutory construc
tion. Only as a last argument should
counsel seek relief under the state
constitution. Many courts are un
der restraint, self-imposed or oth
erwise, to look to the most limited
basis for decision making. It serves
that judicial mandate to argue a po
sition from the narrowest grounds.
The New York Court of Appeals
found a right to fair allocation for
housing pursuant to New York stat
ute. The Oregon Supreme Court
looked to the common law of in
junctive relief and trespass to fash
ion relief that would allow
petitioners to gather signatures at a
private shopping mall.
Significantly, a constitutionally
based state law decision reduces
the flexibility of all branches of state
government to address issues and
resolve problems. Once a right or
remedy is constitutionally decreed,
a constitutional amendment is re
quired for change unless the court
repudiates its own decision. A ju
Human Rights Magazine:
A Source to Consider
Each issue of Human Rights
magazine contains invaluable in
formation on topics of law and
society, offering practical mate
rial to lawyers involved in civil
and criminal cases.
Recent issues have dealt with
first amendment rights, the rights
of gays and lesbians, a look at
whether our Bill of Rights are still
valid, the drug war's impact on
constitutional rights, problems
25
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dicially evolved rule or statutory
construction is more easily modi
fied than is a constitutional hold
ing.
Further, constitutional decisions
on hotly controverted issues invite
constitutional amendments. Each
state's amending processes vary in
complexity, but they are generally
easier than the federal process. The
danger is that a current and tem
porary majority position will be
constitutionalized and bind exec
utive regulations, legislation, and
judicial precedents to an inflexible
and nonresponsive position. For
example, amendments to the Cali
fornia and Florida constitutions
have precluded, in some circum
stances, interpretations of the state
constitutions to provide rights
greater than federal rights.
State constitutions, statutes, and
common law were for many years
not used as sources of protection
for individual rights. Lawyers relied
on the federal Constitution in fed
eral court proceedings as the pri
mary basis for protection. However,
as federal protections are retracted
by the Supreme Court, lawyers
have begun to look again to state
law. There is, however, another
compelling reason to look to state
law applied by state courts. Many
contemporary problems are more
appropriately resolved by refer
ence to state law, which is closer to
the community and consequently
more responsive to local needs and
policies. hr
fudge Phylis Skloot Bamberger is
with the New York State Court of
Claims and designated to the New
York State Supreme Court in Bronx
County.
involving the rights of Native
Americans, suggestions for im
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