A Precious Birthright or Federal Porridge: Which Should Utah Lawyers Choose?
by Paul Wake
In recent months, several attorneys have written interesting Utah Bar Journal articles exploring constitutional interpretation. Unfortunately, these articles have tended to assume that “the Constitution” means “the U.S. Constitution.” For years, the Utah Supreme Court has encouraged attorneys to remember the Utah Constitution. In State v. Earl, 716 P.2d 802 (Utah 1986), the Court suggested that Utah constitutional law is a precious birthright that we have sold for a bowl of federal porridge. In November of 1989, Justice Durham – now Chief Justice – took to the pages of this journal with an article entitled Employing the Utah Constitution in Utah Courts, and urged attorneys to help the Court develop a jurisprudence of state constitutional law. Yet in the past decade Utah’s appellate courts rejected dozens of different attempts to advance constitutional arguments in appellate briefs, because the analyses were too slipshod to be considered seriously. The same problem plays out in trial courts.
Why have so many attorneys neglected to consider Utah’s own constitution when drafting their pleadings and briefs? And why, of those who have cited to the Utah Constitution, have so many attorneys failed to successfully press constitutional arguments? This article will examine three possible explanations: 1) attorneys do not know there is a Utah Constitution, or do not understand why it is important; 2) attorneys do not know how to do the requisite research, or do not have the time it takes to do the research required to provide a sound basis for creating legal doctrine; and 3) attorneys see incorporating such arguments into their pleadings and briefs as futile. This article will also suggest ways to fix these problems, and will argue that we do so. It will also address how the recent American Bush case sheds light on how arguments over “original intent” versus “living constitutions” now fare in Utah.
What Do You Mean By “The Constitution?”
It is easy to forget that Utah has a constitution. After all, in discussing constitutional law we often hear arguments about Article III, the First Amendment, and so forth. One need not even add “to the U.S. Constitution,” since most people assume that “constitution” means “U.S. Constitution.” This is, however, an odd and even unfortunate situation.
At the time of the Revolutionary War, the colonies fought to become sovereign states. After defeating the British they unified as a loose confederation, and several years later strengthened that union by replacing their Articles of Confederation with the United States Constitution. Under that constitution the separate states retained most political power while allowing the federal government supremacy only in enumerated areas. As Chief Justice Rehnquist observed in United States v. Lopez, 514 U.S. 549 (1995) (striking down a federal gun control law that Congress lacked the power to create), “We start with first principles. The Constitution creates a Federal Government of enumerated powers.
... As James Madison wrote, ‘[t]he powers delegated to the federal government are few and defined. Those which remain in the State governments are numerous and indefinite.’” Given the political philosophy underlying our history, it is odd that many people now seem to view the fifty states as dependent subdivisions of a national government, with no sovereignty of their own and no distinctive constitutional law worth exploring.
It is also unfortunate. If the U.S. Supreme Court decides more cases like Lopez and returns power to the states, attorneys will increasingly need to turn to Utah’s fundamental law to keep up with the times. Utah’s governors and legislators have repeatedly shown an inclination toward strengthening state’s rights. The Utah Constitution should become, and may well become, more important, and attorneys who seize the opportunity to put it to work will be the attorneys who shape Utah’s future.
Perhaps of most interest to attorneys, the Utah Constitution can protect rights to an extent that often goes unrecognized. Until the lifetimes of most people reading this article, the U.S. Constitution’s Bill of Rights largely only restricted the federal government, not state governments. For most of the past two centuries, the declarations of rights in state constitutions – declarations that often included protections not listed in the Bill of Rights – provided the definitive lists of rights states knew they were obliged to respect. Lately, these declarations of rights have been neglected. Since the Utah Constitution’s Declaration of Rights protects a number of rights not mentioned in the U.S. Constitution, giving the Utah Constitution due attention can pay off by giving attorneys additional legal arguments to propound. Attorneys curious about what these rights may be can find the Constitution printed in volume 4 of the unannotated Utah Code, and located online at http://www.le.state.ut.us/%7Ecode/const/const.htm; they include an equal rights provision, protection for labor, and a prohibition against treating prisoner with unnecessary rigor.
Giving attention to state constitutional law also provides important indirect benefits. Greater focus on the Utah Constitution will remind attorneys and other citizens of the importance of structural protections such as federalism. Restoring the role of state and local governments will return political power back home to the people, who can then keep better track of what their government is doing and be better able to influence what government does to and for them.
Whether for mercenary reasons, or out of a sense of civic virtue, Utah lawyers should recognize that the Utah Constitution has much to say about political, economic, and social life in Utah. Attorneys who want an effective say in the development of Utah law will embrace the legal birthright our state’s founders bestowed upon us.
Nuts and Bolts: Assembling an Argument Based on the Utah Constitution
In the Earl decision, the Utah Supreme Court recommended that attorneys who want to construct effective arguments applying the Utah Constitution should first become familiar with the analytical approach used in a Vermont case, State v. Jewett, 500 A.2d 233 (Vt. 1985). The Jewett decision was written in part as a primer on how to do state constitutional law analysis. Jewett pointed out that there is a “resurgence of federalism” sweeping the country, and quoted former Oregon Supreme Court Justice Hans Linde’s statement that “’[a] lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating on the edge of malpractice.’” It then went on to explain how to make such arguments correctly.
After explaining the need for greater attention to state constitutional law, the Jewett court suggested some approaches to analyzing state constitutions. The obvious approach is textual in nature. Ideally, a court will be able to determine what a provision means simply by assessing the fair meaning of the words. Another approach is to use historical materials. Such things as legislative history and the social or political context in which a provision originated can provide insight into how a provision should be interpreted. A third approach is the sibling state approach, which looks to how courts in states with identical or similar provisions have interpreted their similar provisions. A fourth approach involves studying economic and sociological materials supporting or discrediting contentions at issue. Other approaches are also possible; it is up to attorneys to find an appropriate approach.
Until recently, the definitive Utah example of state constitutional law analysis was Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993). In Society of Separationists, the Utah Supreme Court analyzed the constitutionality of prayer in city council meetings. The Court described the importance of considering textual and historical evidence, sister state law, and policy arguments, but ultimately relied primarily on using historical materials to inform the Court’s reading of the religious freedom provision. The holding determined that a historical analysis makes clear that prayers are protected by freedom of religion (a freedom the Court would later say should have allowed a citizen to open a meeting with a prayer that Mother in Heaven “strike down” those who would use prayer “for their own selfish political gains”). Although the Court reached a principled decision, its call to include policy arguments in constitutional analysis was troublesome, because policy concerns are for legislators.
Quite recently the Court fixed that problem, and also may have answered questions one might ask about how the “original intent” and “living constitution” interpretive controversies described in recent Utah Bar Journal articles apply to the Utah Constitution. In American Bush v. City of South Salt Lake, 2006 UT 40, the Supreme Court looked at nude dancing and narrowly decided that South Salt Lake could ban such behavior despite the claim that the Utah Constitution protects such freedom of expression. The Court properly observed that constitutional analysis begins with reading the text of the provisions in question. History can help clarify the text. However, current policy arguments do not determine the meaning of a constitutional provision, because the Court’s job is to discern the intent of the drafters and especially of the citizens who voted for the Constitution. Viewing its task in that light, the majority concluded that citizens in 1895 did not believe that freedom of speech protects nude dancing.
There were some odd aspects to American Bush (apart from the fact that Utah’s appellate courts have until this year been diligently protecting vulgar and offensive speech). Although it is clear that in 1895 the drafters of Utah’s Constitution valued natural law and a study of sister state constitutions as wellsprings from which to draw constitutional provisions for Utah, the majority in American Bush substituted common law principles described in Blackstone’s pre-Revolutionary War Commentaries on the Laws of England for natural law and – to some extent – sister state law in looking for the motivations of Utah’s founders. (For a different opinion on the level of respect for the common law among the pioneers, see Michael W. Homer, The Judiciary and the Common Law in Utah: A Centennial Celebration, Utah Bar Journal, Sept. 1996, at 13.) This is peculiar, as few prior cases or articles on the Utah Constitution have emphasized Blackstone’s times over Brigham’s. Also, the majority described itself as adopting the primary approach, although that approach is usually applied to situations where a state constitutional provision is identical or very similar to a federal constitutional provision. It is good that the majority analyzed the Utah Constitution’s distinctive provisions on their own terms, but it is not clear that in such a situation “primacy” is the correct analytical descriptor. In addition, no one floated the idea that Utah’s unenumerated rights provision might protect nude dancing even if the free speech provisions do not. Perhaps there were too few poles in Deseret’s saloons to allow anyone to say that with a straight face.
Especially in the wake of American Bush, Utah attorneys should be familiar with the history of the Utah Constitution, including the rationales behind the drafting of its various provisions. The main difficulty in gaining such information is that it often cannot be found in a few minutes on Lexis or Westlaw. Indeed, some such research cannot be done without digging through historical materials available only on paper or microform, in a limited number of archives. However, some shortcuts are available. One comment dealing in greater depth both with state constitutional law analysis and with the general history of the Utah Constitution and the seven preceeding proposed constitutions was written by this author for the Utah Law Review in 1996: entitled Fundamental Principles, Individual Rights, and Free Government: Do Utahns Remember How to Be Free?, a slightly improved version is online at http://www.xmission.com/~wake/utahconstitutionallaw.html. Jean Bickmore White’s book Charter for Statehood: The Story of Utah’s Constitution, also published in 1996, is quite interesting and helpful. Some specific legal issues have been subjected to readily available scholarly analysis, although the conclusions may not be definitive, as exemplified by the contrast between Kenneth R. Wallentine’s 1991 article in the Journal of Contemporary Law, Heeding the Call: Search and Seizure Jurisprudence Under the Utah Constitution, Article I, Section 14, and Paul G. Cassell’s 1993 article in the Utah Law Review, The Mysterious Creation of Search and Seizure Rules Under State Constitutions: The Utah Example. Other issues may require considerable additional research in primary sources.
Attorneys should be aware of the U.S. Supreme Court’s decision in Michigan v. Long, 431 U.S. 1032 (1983). There, the U.S. Supreme Court stated that if a state court decision is appealed to the U.S. Supreme Court and the state court decision appears to be based on both federal and state law but the “adequacy and independence” of the state law ground is not clear, the U.S. Supreme Court will assume that the state court decided as it did because it was required to do so by federal law. Consequently, when arguing specifically on state constitutional law grounds, attorneys should make it clear when their argument rests on independent and adequate state grounds.
This raises an issue specific to state constitutional provisions that are similar or identical to provisions in the U.S. Constitution: how should such provisions be interpreted? It should be obvious that the Utah Supreme Court can interpret distinctive provisions within the Utah Constitution as the Court sees fit. However, a number of approaches are possible when a Utah provision is very similar to a federal provision. These include the primacy, dual sovereignty, interstitial, and lockstep approaches.
Under the primacy approach, the state court first analyzes the state provision and turns to the federal provision only if the state provision is not dispositive. Under the dual sovereignty approach, a court looks at both state and federal provisions even if the federal provision alone could be dispositive. Under the interstitial approach, the state court turns to a state provision only if the federal provision does not adequately protect a right. Under the lockstep approach, a state court follows the federal provision if it is identical or similar to a state provision.
Attorneys arguing the meaning of state provisions that are similar to federal provisions will likely have to argue that the Court adopt one of these approaches. The Utah Supreme Court seems to be favoring the primacy approach, and it seems clear that a proper respect for state sovereignty and for federalism would militate against a lockstep or interstitial approach.
Constructing a legal argument based on the Utah Constitution is like constructing a legal argument based on other sources of legal authority. It requires selecting the correct analytical approach and working perhaps harder than usual to find the meaning of what are sometimes old and obscure constitutional provisions. Of course, the most important thing is making sure that the Constitution actually supports the point you are arguing.
Is Resistance Futile?
The Utah Advance Reports bring not just a steady stream of new case law, but also a predictable trickle of cases with the now-familiar paragraph declining to address state constitutional law issues mentioned by an attorney but not fully briefed. Too many attorneys resist doing the hard work necessary to muster an adequate constitutional argument. Such resistance is futile. Simply claiming that the Utah Constitution supports the attorney’s point is not an adequate means of convincing a court that the Constitution supports that point, and such bare assertions will be rejected.
To succeed in making an argument based on state constitutional law, attorneys must persist. Admittedly, building a successfully argument grounded on neglected constitutional provisions is not easy. It is complicated by the fact that the Utah Supreme Court has been somewhat uneven in its approach to state constitutional analysis. Sometimes, the Utah Supreme Court has talked a good talk about its willingness to interpret the Utah Constitution, and then resorted to the easy lockstep approach in interpreting the state’s constitution. Occasionally, the Court has not even been able to agree on what analytical approach it was taking. Yo-yoing on issues such as the extent of protections against self-incrimination or the constitutionality of the Judicial Conduct Commission has not helped inspire confidence, nor has dithering about its open courts provision jurisprudence. And it is disheartening to attorneys to build an argument based on lengthy original research, only to have it spurned.
Still, as Justice Durham described, there are a number of cases spanning the breadth of practice areas in which the Utah Supreme Court has used the Utah Constitution to settle legal questions. Attorneys have successfully convinced the Court that Utah standing standards are broader than federal standards, that under our Constitution parents deserve support against overly aggressive state intervention, that prisoners should be protected from unnecessary rigor, and more. Ultimately, attorneys who believe the Utah Constitution bears on their legal issues must persevere and do the work required to muster convincing arguments. Such efforts may be rewarded by success for a client, and in the process the State will be better off for the focus on its most important law.