Friday, January 06, 2006
At scotusblog, commenter Kent Sheidegger points to an interesting discussion
in the Utah Supreme Court about a search and seizure case the US Supreme Court will be hearing. The issue in the case is whether cops should have knocked before entering a party to stop a fight. It's not about election law at all, but I put it in this blog because it relates to my concerns that election lawers are missing the boat by not raising state constitutional claims. Questions that interest me include, when is it malpractice to fail to raise state claims, and, is there an ethical duty to raise state claims?
¶10 Our aspiration to provide useful guidance to those charged with the day-to-day responsibility of putting search and seizure law into practice is handicapped by the manner in which search and seizure cases are presented to us. This case, like Brake and an array of its search and seizure predecessors,(2) either does not raise or inadequately briefs a state constitutional claim. The reluctance of litigants to take up and develop a state constitutional analysis is surprising in light of our repeated statements that federal Fourth Amendment protections may differ from those guaranteed our citizens by our state constitution. See, e.g., State v. Debooy, 2000 UT 32, ¶ 12, 996 P.2d 546 ("While this court's interpretation of article I, section 14 has often paralleled the United States Supreme Court's interpretation of the Fourth Amendment, we have stated that we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens."); State v. Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) ("[C]hoosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state's citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts."); State v. Hygh, 711 P.2d 264, 271-73 (Utah 1985) (Zimmerman, J., concurring) (stating that state and federal search and seizure law are not identical).
¶11 In Brake, for example, we took issue with the usefulness of federal Fourth Amendment jurisprudence concerning the police officer safety justification for warrantless automobile searches. Brake, 2004 UT 95 at ¶¶ 27-31. Our reasoning in Brake emanated to a great extent from cases in which we concluded that article I, section 14 of the Utah Constitution provides a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court.
¶12 Where the parties do not raise or adequately brief state constitutional issues, our holdings become inevitably contingent. They carry within them an implicit qualification that if properly invited to intervene, our state's Declaration of Rights might change the result and impose different demands on police officers and others who in a very real sense are the everyday guardians of constitutional guarantees against unreasonable searches and seizures.
¶13 In the not so distant history of this court, we engaged in an ongoing and robust discussion over whether and to what extent we should defer to the federal courts when called upon to interpret provisions of our Declaration of Rights, which parallel the federal Bill of Rights. State v. Anderson, 910 P.2d 1229, 1234-42 (Utah 1996); State v. Poole, 871 P.2d 531, 534-36 (Utah 1994); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990). In Anderson, we counseled against departing from the guidance from federal courts except when "compelling circumstances" required it. 910 P.2d at 1235. To do otherwise would cause unnecessary confusion and undercut the policy objective of giving clear direction to judges and law enforcement officials. Id. Justice Stewart in his concurrence cautioned against unquestioning fealty to federal precedent on matters of individual liberty. Id. at 1240. He defended his view by noting that "[t]he framers of the Utah Constitution necessarily intended that this Court should be both the ultimate and final arbiter of the meaning of the provisions in the Utah Declaration of Rights and the primary protector of individual liberties." Id.
¶14 The debate over the proper relationship between the Bill of Rights and Declaration of Rights has lain dormant for almost a decade. This lull does not signal resolution of the matter. The mere passage of time and the accumulation of decisions issued by this court on appeals brought solely on Fourth Amendment grounds may, however, ultimately overpower the merits of an independent analysis of search and seizure law under our Declaration of Rights. It would be unfortunate, indeed, if such a de facto abdication of our responsibility as guardians of the individual liberty of our citizens were to occur. Because we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed, State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are once again foreclosed from undertaking a principled exploration of the interplay between federal and state protections of individual rights without the collaboration of the parties to an appeal. This collaborative effort should be renewed
in the Utah Supreme Court about a search and seizure case the US Supreme Court will be hearing. The issue in the case is whether cops should have knocked before entering a party to stop a fight. It's not about election law at all, but I put it in this blog because it relates to my concerns that election lawers are missing the boat by not raising state constitutional claims. Questions that interest me include, when is it malpractice to fail to raise state claims, and, is there an ethical duty to raise state claims?
¶10 Our aspiration to provide useful guidance to those charged with the day-to-day responsibility of putting search and seizure law into practice is handicapped by the manner in which search and seizure cases are presented to us. This case, like Brake and an array of its search and seizure predecessors,(2) either does not raise or inadequately briefs a state constitutional claim. The reluctance of litigants to take up and develop a state constitutional analysis is surprising in light of our repeated statements that federal Fourth Amendment protections may differ from those guaranteed our citizens by our state constitution. See, e.g., State v. Debooy, 2000 UT 32, ¶ 12, 996 P.2d 546 ("While this court's interpretation of article I, section 14 has often paralleled the United States Supreme Court's interpretation of the Fourth Amendment, we have stated that we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens."); State v. Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) ("[C]hoosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state's citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts."); State v. Hygh, 711 P.2d 264, 271-73 (Utah 1985) (Zimmerman, J., concurring) (stating that state and federal search and seizure law are not identical).
¶11 In Brake, for example, we took issue with the usefulness of federal Fourth Amendment jurisprudence concerning the police officer safety justification for warrantless automobile searches. Brake, 2004 UT 95 at ¶¶ 27-31. Our reasoning in Brake emanated to a great extent from cases in which we concluded that article I, section 14 of the Utah Constitution provides a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court.
¶12 Where the parties do not raise or adequately brief state constitutional issues, our holdings become inevitably contingent. They carry within them an implicit qualification that if properly invited to intervene, our state's Declaration of Rights might change the result and impose different demands on police officers and others who in a very real sense are the everyday guardians of constitutional guarantees against unreasonable searches and seizures.
¶13 In the not so distant history of this court, we engaged in an ongoing and robust discussion over whether and to what extent we should defer to the federal courts when called upon to interpret provisions of our Declaration of Rights, which parallel the federal Bill of Rights. State v. Anderson, 910 P.2d 1229, 1234-42 (Utah 1996); State v. Poole, 871 P.2d 531, 534-36 (Utah 1994); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990). In Anderson, we counseled against departing from the guidance from federal courts except when "compelling circumstances" required it. 910 P.2d at 1235. To do otherwise would cause unnecessary confusion and undercut the policy objective of giving clear direction to judges and law enforcement officials. Id. Justice Stewart in his concurrence cautioned against unquestioning fealty to federal precedent on matters of individual liberty. Id. at 1240. He defended his view by noting that "[t]he framers of the Utah Constitution necessarily intended that this Court should be both the ultimate and final arbiter of the meaning of the provisions in the Utah Declaration of Rights and the primary protector of individual liberties." Id.
¶14 The debate over the proper relationship between the Bill of Rights and Declaration of Rights has lain dormant for almost a decade. This lull does not signal resolution of the matter. The mere passage of time and the accumulation of decisions issued by this court on appeals brought solely on Fourth Amendment grounds may, however, ultimately overpower the merits of an independent analysis of search and seizure law under our Declaration of Rights. It would be unfortunate, indeed, if such a de facto abdication of our responsibility as guardians of the individual liberty of our citizens were to occur. Because we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed, State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are once again foreclosed from undertaking a principled exploration of the interplay between federal and state protections of individual rights without the collaboration of the parties to an appeal. This collaborative effort should be renewed
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