Indiana Law Review


Speech

Presenting a State Constitutional Argument: Comment on
Theory and Technique*

Robert F. Utter**

Sanford E. Pitler***

I. Introduction

Your invitation to join you as a Distinguished Jurist-in-Residence

affords me an opportunity to make some small contribution towards
repaying the large constitutional debt we in the Pacific Northwest owe
the people of Indiana. Few citizens of Indiana realize that both Wash-
ington and Oregon modeled their bills of rights on the Indiana Con-

stitution of 1851. ' Indiana's charter, adopted initially in 1816, has

antecedents dating back to revolutionary era state constitutions. 2 Each

of these state constitutions provides a rich source of civil liberty pro-

*This Article is an adaptation of an address given by Justice Utter as Distinguished

Jurist-in-Residence at the Indiana University School of Law—Indianapolis on February 10,
1987.

**Justice, Washington Supreme Court. B.S., 1952, University of Washington; LL.B.,

1954, University of Washington School of Law.

***Clerk to Justice Utter. B.A., 1967 City University of New York—Queens College;
M.A., 1972, City University of New York—City College; J.D., 1986, University of Washington
School of Law.

'Washington's Declaration of Rights, adopted in 1859, borrowed heavily from the

Indiana Constitution. See The Journal of the Washington State Constitutional Con-

vention 1889, at 496 n.12 (free expression), 500 n.19 (no religious test for office), 511

n.37 (rights of criminally accused), 501 n.20 (equal privileges) (B. Rosenow ed. 1962)

[hereinafter Washington Journal]. Oregon adopted its Bill of Rights in 1859, copying

its provisions almost verbatim from Indiana. The Oregon Constitution and Proceedings
and Debate of the Constitutional Convention of 1857, at 302, 478-79 (Salem, Or.

1926) [hereinafter Oregon Proceedings]. Delegates to the Oregon convention considered
the Indiana Constitution to be the best of all the state constitutions in existence at that

time. Id. at 101 (statement of delegate Delazon Smith).

In choosing the Indiana Constitution as a model, rather than the federal Bill of

Rights, Oregon and Washington continued a long tradition of states taking their bills of

rights from preexisting state constitutions. Linde, First Things First: Rediscovering the

States' Bills of Rights, 9 U. Balt. L. Rev. 379, 381 (1980).
2Both the 1816 and 1851 bills of rights derived many of their constitutional guarantees

from the Kentucky Constitution of 1792 and the Ohio Constitution of 1803. Twomley,

The Indiana Bill of Rights, 20 Ind. L. J. 211, 212-13 (1945). Ohio had based its rights

provisions on guarantees found in the original thirteen written constitutions, each of which

predated the federal Bill of Rights. Linde, supra note 1, at 381. See also Carson, "Last

Things Last": A Methodological Approach to Legal Argument in State Courts, 19 Wil-
liamette L. Rev. 641, 655 (1983).

635



636 INDIANA LAW REVIEW [Vol. 20:635

tections. However, despite borrowing from earlier state charters, each

state constitution reflects, in its wording and protections, the unique

concerns and history of its state. For example, as a rule, in the area

of religious freedoms, state constitutions differ significantly from the

free exercise and establishment provisions of the first amendment. 3 The
Indiana Bill of Rights makes the point vividly with six separate clauses

dealing with freedom of religion,4 reflecting an intention to have an

absolute separation of state and church in their respective fields. 5

Framers of the various state constitutions intended their charters as

the primary devices to protect individual rights. The federal Bill of Rights

was perceived as a secondary layer of protection, applying only against

the federal government. 6 Nevertheless, we have witnessed in our lifetimes

a complete reversal in roles due to the United States Supreme Court's

application of much of the federal Bill of Rights against the states
through selective incorporation into the fourteenth amendment's due

process clause. 7 As federal constitutional law came to dominate the
individual rights field, state constitutional rights litigation all but dis-

appeared. Out of the countless decisions reached by state courts during

the 1950's and 60' s, only ten state court decisions relied on state con-

stitutional provisions to protect individual rights. 8

In recent years various state supreme courts across the nation have

begun to rediscover the broad, and often unique, protections their state

constitutions afford. Relying on the rich constitutional heritage it inherited

from Indiana, Oregon has become the nation's second leading court in

state constitutional rights decisions. 9 In one case, the Oregon Supreme

3Collins, Bills & Declarations of Rights Digest, in The American Bench 2483, 2496
(1985).

4Ind. Const, art. 1, § 2 (natural right to worship), § 3 (freedom of religious opinions

and conscience), § 4 (freedom of religion), § 5 (no religious test for office), § 6 (no

public funds), § 7 (witness competent regardless of religious opinions).
5Twomley, supra note 2, at 223 (citing Op. Att'y Gen. of Ind. 358 (1934)).
6Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions

and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 497 (1984).
The historic role of state judges included serving as "the primary defenders of civil liberties

and equal rights." Wright, In Praise of State Courts: Confessions of a Federal Judge,

11 Hastings Const. L.Q. 165, 188 (1984).
n
See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (sixth amendment right to a

jury); Malloy v. Hogan, 378 U.S. 1 (1964) (privilege against compelled self-incrimination);

Mapp v. Ohio, 367 U.S. 643 (1961) (fourth amendment exclusionary rule); NAACP v.
Alabama, 357 U.S. 229 (1958) (freedom of association); Wolf v. Colorado, 338 U.S. 25

(1949) (fourth amendment but not the exclusionary rule); Everson v. Board of Educ, 330

U.S. 1 (1947) (establishment of religion clause); Cantwell v. Connecticut, 310 U.S. 296

(1940) (free exercise of religion clause); Gitlow v. New York, 268 U.S. 652 (1925) (freedom
of speech and press).

8Collins, Galie & Kincaid, State High Courts, State Constitutions, and Individual
Rights Litigation Since 1980: A Judicial Survey, 16 Publius 141, 142 Table 1 (1986).

9
Id. at 161 (measured in terms of actual number of decisions rendered based on

state constitution).



1987] STATE CONSTITUTIONAL ARGUMENTS 637

Court held that punitive damages were unavailable in a libel suit, 10 basing

its decision on the interplay between the free speech guarantee and the

constitutional guarantee of a remedy for injuries to a person's repu-

tation,
11 provisions copied directly from Indiana. 12 In Washington, we

found that the language of our state free speech provision, which is

nearly identical to that of Indiana, 13 prohibits prior restraints on protected

speech under any circumstances. 14

State constitution based decisions do not always result in rights

broader than those guaranteed by the federal Constitution. For example,

suppose you were involved in an effort to get an initiative on the ballot

in your state. You approach the owners of the largest private shopping
mall in your area and request permission to gather signature petitions

at the mall. Other mall proprietors in the area have already agreed, but

this owner denies your request. Believing such denial to be unconsti-

tutional, you seek the protection of the courts. What result? 15 If you
based your claim on the first amendment to the federal Constitution,

you would lose on a 12(b)(6) motion; the United States Supreme Court

has repeatedly held that due to the state action requirement, the first

amendment does not protect free speech activities in private shopping

centers.
16 Similar results would occur under the state constitutions of

North Carolina, 17 Connecticut, 18 and Michigan. 19 However, the state

10Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979) (rejecting federal approach

adopted in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)).

"Or. Const, art. 1, §§ 8, 10.
12Ind. Const, art. 1, §§ 9, 12.
13The Washington Declarations of Rights provides that "[e]very person may freely

speak, write and publish on all subjects, being responsible for the abuse of that right."

Wash. Const, art. 1, § 5. By comparison, the Indiana Bill of Rights provides that "[n]o
law shall be passed, restraining the free interchange of thought and opinion, or restricting

the right to speak, write, or print freely, on any subject whatever: but for the abuse of

that right, every person shall be responsible." Ind. Const, art. 1, § 9. In Washington,

a plurality of the state supreme court has viewed the difference in text as negating a state

action requirement under art. 1, § 5. Alderwood Assocs. v. Washington Envtl. Council,

96 Wash. 2d 230, 635 P.2d 108 (1981).
l4State v. Coe, 101 Wash. 2d 364, 374, 679 P.2d 353, 358 (1984).
15For a case with facts similar to these, see Alderwood Assoc, v. Washington Envtl.

Council, 96 Wash. 2d 230, 635 P. 2d 108 (1981).
16
See, e.g., Hudgens v. NLRB, 424 U.S. 507 (1976) (no first amendment right to

enter private shopping center to advertise strike against employer located in center); Lloyd

Corp. v. Tanner, 407 U.S. 551 (1972) (federal first amendment does not prevent shopping

center owner from prohibiting handbill distribution); see also Pruneyard Shopping Center

v. Robins, 447 U.S. 74, 83 (1980) (while federal constitution does not protect free speech

in a shopping center, application of California's free expression provision to shopping

centers does not violate any federally protected property rights).
17State v. Felmet, 303 N.C. 171, 273 S.E.2d 708 (1981) (state constitution does not

protect solicitation of petition signatures in private parking lot).
l8Cologne v. Westfarms, 192 Conn. 48, 469 A.2d 1201 (1984).

'"Woodland v. Michigan Citizens Lobby, 128 Mich. App. 649, 341 N.W.2d 174

(1983) (state constitution grants no right to petition signature gatherers to solicit in shopping

mall).



638 INDIANA LA W REVIEW [Vol. 20:635

constitution would protect your right to gather petition signatures at

shopping centers located in Washington,20 California,21 and Massachu-

setts.
22 Broader protection, however, is not always the issue. A recent

example of a state constitution providing less protection than the federal

minimum occurred, ironically, in Oregon. A plurality of the Oregon
Supreme Court held that unlike federal law, the Oregon Constitution

does not require Miranda-style warnings before police officers can in-

terrogate a suspect.23

Undoubtedly, a resurgence has occurred in the amount of attention

paid to, and the importance of, state constitutions. United States Supreme

Court Justice William J. Brennan described this reawakening of state

constitutional law as "probably the most important development in

constitutional jurisprudence of our time." 24 Yet, despite the notable

increase in the serious consideration of state constitutional issues since

1980,25 the majority of states have a low level of state constitutional

rights litigation. 26 Some state courts have virtually no record of reliance
on their state constitutions27 so that large sections of the country, in-

cluding the Midwest, remain largely unaffected by the growing trend

toward development of independent state constitutional jurisprudence. 28

As we shall see, one of the major reasons for state court reluctance

to interpret and to apply state constitutions is the failure of litigators

to claim state constitutional errors.29 Consequently, I urge you to discover

20Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 635 P.2d 108

(1981) (plurality found state free speech provision has no state action requirement).
21 Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal.

Rptr. 854 (1979) (state free speech guarantee requires access to shopping center, but court

expressed no opinion on state action requirement), aff'd, 447 U.S. 74 (1980).
22Batchelder v. Allied Stores Int'l Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (relying

on state's fundamental interest in elections, rather than the state's free expression provision).
23State v. Smith, 301 Or. 681, 725 P.2d 894 (1986).

^"The Fourteenth Amendment" Address by Justice William J. Brennan, Jr., American
Bar Association Section on Individual Rights and Responsibilities, New York University
Law School (Aug. 8, 1986).

"Collins, Galie & Kincaid, supra note 8, at 143-44.
26
Id. at 160-61. A 1982 study identified only fourteen states as having a moderate

or better reputation for protecting civil liberties under their state constitutions. Tarr &
Porter, Gender Equality and Judicial Federalism: The Role of State Appellate Courts, 9

Hastings Const. L.Q. 919, 953-54 app. (1982) (Table A) (Alaska, California, Hawaii,

Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon,
Pennsylvania, Washington, and Wisconsin). As of 1985, Wisconsin Justice Shirley Abra-

hamson suggested adding four states for a total of eighteen. Abrahamson, Criminal Law
and State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L. Rev.

1141, 1181 (1985) (Arizona, Mississippi, New Hampshire, and Vermont).
27
Collins, Galie & Kincaid, supra note 8, at 146.

28
Id. at 146 (Table 3) (of 311 actual cases decided since 1950 on independent state

constitutional grounds, the Midwest accounted for only 6.8%).
19See infra note 31.



1987] STATE CONSTITUTIONAL ARGUMENTS 639

the richness of the Indiana Constitution. Hopefully, I can provide you

with some of the tools necessary to formulate persuasive state consti-
tutional arguments. First, we will review why gaining a working familiarity
with your state constitution plays an important role in your future legal

career. Next, we will discuss some of the key concepts you need to
master, including an understanding of the pivotal effect federalism has

on a state judge's constitutional perspective and how various state courts
approach state constitutional analysis. Our focus then turns to what
factors play the most important roles in framing a state constitutional

argument. Finally, we will look at how state courts have interpreted and
applied several bill of rights provisions that have analogs in the Indiana

Constitution.

II. The Importance of State Constitutional
Law to the Practitioner

Given the slower development of state constitutional litigation in the

Midwest, you may be asking why you should be concerned with learning
about the use of state constitutions. Commentators have identified several

reasons, over which you as lawyers will have little control, for a court's

failure to examine the state constituton. 30 However, whether you raise

the state constitutional issue is within your control, and the failure to

squarely raise the issue is cited often as the major reason why state
appellate courts do not look to the state constitution. 31 An example will
illustrate the point. Under its usual practice, the Maine Supreme Court

reviews the state constitution before addressing federal constitutional

issues.
32 The 1984 case of State v. Phiibrick23 implicated important state

constitutional issues. 34 Nevertheless, because of judicial restraint consid-

erations, the Maine court departed from its usual practice and refused

to examine the state constitutional issues because the defendant did not

argue that his state constitutional rights had been infringed. 35

30Abrahamson, supra note 26, at 1160 (possibilities include judicial oversight and

carelessness, constitutional issue not ripe for decision, author of majority opinion not

sympathetic to use of state constitution).
31Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 238, 635 P.2d

108, 113 (1982). Almost 80% of the state supreme court justices responding to a recent
survey indicated that their court would decline to hear a state constitutional claim if the

litigant failed to raise the claim below. Collins, Galie & Kincaid, supra note 8, at 154.
Justices of the Indiana Supreme Court were among those responding. Id. at 142 n.2.

32See generally Comment, The Primacy Method of State Constitutional Decision-
making: Interpreting the Maine Constitution, 38 Me. L. Rev. 491 (1986).

"481 A.2d 488 (Me. 1984).

"Id. at 493 n.3.
35
Id. Even where the United States Supreme Court remands and explicitly reminds

a state court that it is free to interpret its own constitution, some state courts refuse to



640 INDIANA LAW REVIEW [Vol. 20:635

In order to protect your clients, you will have a duty to raise, and

effectively develop, state constitutional issues where appropriate. If you

intend to practice here in Indiana, you should note that decisions by

the Indiana Supreme Court display a willingness to examine the state

constitution. 36 Your responsibility to your client will dictate that you

take advantage of the court's willingness. If you intend to practice

outside Indiana, state supreme court justices across the country have

increasingly urged lawyers to base claims for individual protections on

state constitutions.
37 The failure to raise state issues could have a serious

effect on you personally; various jurists and commentators believe that

lawyers "skate on the edge of malpractice" if they fail to argue and

adequately brief state constitutional issues in claiming constitutional

protections for their clients. 38

State constitutional law is still in the initial stages of reawakening. 39

I cannot overemphasize the importance of the role you play in the

rediscovery of civil liberty protections contained in state constitutions.

As Vermont State Supreme Court Justice Thomas L. Hayes has pointed
out, "[ljawyers have an unparalleled opportunity to aid in the formulation

of a state constitutional jurisprudence that will protect the rights and

liberties of our people."40

III. Historical and Legal Relationship Between State and
Federal Constitutions

To construct a successful state constitutional argument, a lawyer must
understand the relationship, both historical and legal, between the state

and federal constitutions. Early constitutional history of the United States

reveals that while federal law was to be supreme,41 the framers intended

the states' bills of rights to work independently of the federal Consti-

tution. 42 Most of the states had declarations of rights years before the

United States Constitution. 43 Somewhat later, the federal Bill of Rights

address the issue when the parties fail to raise it. See, e.g., White v. State, 521 S.W. 2d

225, 258 (Tex. Crim. App. 1974), rev'd. per curiam, 423 U.S. 67 (1975).
l6
See, e.g., Reilly v. Robertson, 266 Ind. 29, 360 N.E.2d 171, cert, denied, 434 U.S.

825 (1977) (state court interpretation of a state constitutional provision is an independent

judicial act and federal cases have only persuasive force); Sidle v. Majors, 264 Ind. 206,

210, 341 N.E.2d 763, 767 (1976) (interpreting article 1, section 12).

"Bamberger, Boosting Your Case with Your State Constitution, 72 A.B.A. J. 49,

49 (1986).
38Welsh & Collins, Taking State Constitutions Seriously, Center Mag., Sept. -Oct.

1981, at 6-12.

39Abrahamson, supra note 26 at 1186.

""State v. Jewett, 146 Vt. 221, 224, 500 A.2d 233, 235 (1985).
4, U.S. Const, art. VI.

"Bamberger, supra note 37, at 49.
43Utter, supra note 6, at 496.



1987] STATE CONSTITUTIONAL ARGUMENTS 641

was finally added to the Constitution to meet demands for the same

guarantees against federal power as people enjoyed against state gov-

ernments.44 During the early years of the republic, some argued that the

federal Bill of Rights also limited state authority. However, in the 1833

case of Barron v. Mayor of Baltimore, 45 the Supreme Court confirmed
that state authority remained unfettered by the federal Bill of Rights,

which the Court found served only as a limit on the power of the federal

government. Thus, throughout the nineteenth and early twentieth cen-

turies, state constitutional rights guarantees, as interpreted by state courts,

served as the primary protection of individual liberty against the gov-

ernment expected to have the most effect on everyday life—the individual
states.

46

During the ascendancy of state constitutional law, state judges were

the "primary defenders of civil liberties and of equal rights."47 State

court interpretations of state civil liberty protections often served as

models for later Supreme Court interpretations of the federal Consti-

tution. Most notably, state decisions shaped federal law in the areas of

judicial review, substantive due process, freedom of speech and religion,

eminent domain, the right to bear arms, and the rights of the accused. 48

For example, decades before the United States Supreme Court acted in

Gideon v. Wainwright, 49 the Indiana Supreme Court held that the state

constitutional right to counsel entitled indigent criminal defendants to

counsel at state expense. 50

As the simple agrarian society of the founders metamorphosed into

a national, high technology, industrialized society, power naturally shifted

from the states to the federal government. 51 As part of this power shift,
civil liberties became federalized. Several historical events played a crucial

role in this federalization process: the ratification of the fourteenth

amendment, selective incorporation of the federal Bill of Rights into the

due process clause, and the Warren Court's revolutionary use of the

"Id.; Linde, supra note 1, at 381; see also Mosk, State Constitutionalism: Both

Liberal and Conservative, 63 Tex. L. Rev. 1081, 1083 (1985).
4532 U.S. (7 Pet.) 243, 250 (1833).
46The Federalist No. 45 at 319 (J. Madison) (E. Bourne ed. 1937).
47Wright, supra note 6, at 188.
48
Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal

Constitutional Issues When Disposing of Cases on State Constitutional Grounds, 63 Tex.
L. Rev. 1025, 1030 (1985).

49372 U.S. 335 (1963).
50 Rader v. State, 181 Ind. App. 546, 552, 393 N.E.2d 199, 203 n.3 (1979); Note, The

Indigent Defendant in the State Criminal Proceeding: Betts v. Brady Is Interred, 38 Ind.

L.J. 623 (1963); see also Campbell v. State, 229 Ind. 198, 203, 96 N.E.2d 876, 878 (1951).
51Wisdom, Foreword: The Ever Whirling Wheels of American Federalism, 59 Notre

Dame L. Rev. 1063, 1078 (1984).



642 INDIANA LAW REVIEW [Vol. 20:635

equal protection clause to guarantee equality. 52 Most importantly, how-

ever, application of federal guarantees against state authority arose be-

cause, despite their role as the primary protector of individual liberty,

state courts often did not give serious consideration to civil liberty

protections. 53 Take Indiana's free speech provision, article 1, section 9

for instance. During the 1920's, the Indiana Supreme Court had a poor

record for protecting the right of free speech. 54 In one case the Indiana

court upheld a city ordinance making it unlawful to carry any banner,

placard, advertisement, or handbill in any public place. 55 In another

case, the court upheld an ordinance prohibiting all picketing. 56 Indiana

was by no means alone. Other states also failed to adequately assure

freedom of expression. 57 As a result, the United States Supreme Court

stepped in, applied the first amendment to state authority, 58 and inval-

idated both types of ordinances. 59

Today,, much of the federal Bill of Rights has been incorporated
into the fourteenth amendment. 60 Because of incorporation and the

supremacy clause, Supreme Court interpretations of federal civil liberty

guarantees set a minimum level of protection.61 While state courts must
enforce these minimum federal constitutional standards, no one questions
a state court's power to construe state provisions as providing broader

protection for individual rights. 62 Incorporation of federal guarantees

into the fourteenth amendment does not relieve state courts from their
primary responsibility for protecting individual rights. 63

At the very heart of a state court's responsibility you will find the

concept of federalism, America's gift to political theory.64 The framers

52Kurland, The Supreme Court, J963 Term-Foreword: "Equal in Origin and Equal

in Title to the Legislative and Executive Branches of the Government," 78 Harv. L.
Rev. 143, 145-62 (1964) (Warren Court worked an "egalitarian revolution"); Mosk, supra

note 44, at 1084.
5i
See, e.g., Mosk, The State Courts, in American Law: The Third Century 213,

216 (B. Schwartz ed. 1976).
54Twomley, supra note 2, at 223.

"Waters v. Indianapolis, 191 Ind. 671, 134 N.E. 482 (1921).
56Thomas v. Indianapolis, 195 Ind. 440, 145 N.E. 550 (1924).
51See generally Simon, Independent But Inadequate: State Constitutions and Protection

of Freedom of Expression, 33 Kansas L. Rev. 305 (1985).
58Gitlow v. New York, 268 U.S. 652 (1925); see Simon, supra note 57, at 305.
59
See, e.g., Thornhill v. Alabama, 310 U.S. 88 (1940) (invalidating bans on picketing);

Schneider v. New Jersey, 308 U.S. 147 (1939) (invalidating bans on handbill distribution
in public places).

^See supra note 7 and accompanying text.
61
See, e.g., Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980); Oregon

v. Haas, 420 U.S. 714, 719 n.4 (1975).
62Pruneyard, 447 U.S. at 81; Haas, 420 U.S. at 719.
63Utter, supra note 6, at 497.
MLinde, E. Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165,

194 (1984).



1987] STATE CONSTITUTIONAL ARGUMENTS 643

of the United States Constitution designed a compound American re-
public, in which the people surrendered power to dual sovereign gov-

ernments—state and federal. 65 By choosing this "classical model" of
federalism,66 the framers intended to provide double security for the

people's individual rights. 67 The dual sovereignty federal structure also

provides the people of each state with the opportunity to serve as

constitutional laboratories, experimenting with "novel social and eco-

nomic experiments." 68 The federal nature of our compound republic
mandates that state courts determine the scope of a state constitution's

liberty protections. 69 When a state court fails to independently evaluate
its state constitution, it deprives the people of the double security the

nation's founding fathers intended to provide.

Even though state courts have the power to independently interpret

their state constitutions, defining the scope of state protections in the

face of federally mandated minimum standards can lead to tensions
between the federal and state judicial systems. 70 The type of state con-

stitutional provision determines whether such tension exists. Interpre-

tations of state provisions without federal analogs need not take into

account federal minimum standards. As a result, such decisions create
no tension with federal law. Most often, a state court will look to other

state court decisions interpreting analogous state provisions. For example,

unlike the federal Constitution, the Indiana Constitution contains a right

to a remedy for personal injury. 71 When the Indiana Supreme Court
held that automobile guest statutes do not violate that provision, the

court had no need to look to federal law. Instead, the court reached

its result after an independent analysis, which included reviewing decisions

by sister state supreme courts.72

65The Federalist No. 51, at 339 (A. Hamilton or J. Madison) (Modern Library ed.
1937).

^Comment, supra note 32, at 503. Federalism often gets divided into separate concepts.
Vertical federalism refers to the general relationship between a state and the federal

government. See M. Porter & G. Tarr, State Supreme Courts Policymakers in the
Federal System xix-xx (1982). Horizontal federalism refers to the general political and

legal relations among the states. Comment, supra note 32, at 503 n.37.
67See Comment, supra note 32, at 503 n.37.
68 "It is one of the happy incidents of the federal system that a single courageous

State may, if its citizens choose, serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country ..." New State Ice Co. v. Liebmann,
285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); see also Williams v. Florida, 399 U.S.

78, 133 (1970) (Harlan J., concurring).
69Utter, supra note 6, at 493 (quoting Alderwood Assocs. v. Washington Envtl.

Council, 96 Wash. 2d 230, 237-38, 635 P.2d 108, 113 (1981) (citations omitted)).
10See Comment, supra note 32, at 521.
71 Ind. Const, art. 1, § 12.
72
Sidle v. Majors, 264 Ind. 206, 211, 341 N.E.2d 763, 767 (1976).



644 INDIANA LA W REVIEW [Vol. 20:635

When you intend to raise state provisions that have federal analogs,
you should be aware of the tensions created by the supremacy clause

and federal minimum standards. There are two types of analogs. Lan-
guage analogs exist when federal and state provisions have identical or
nearly identical text. Substantive analogs occur when federal and state
provisions have different text, but provide similar substantive protec-

tion.
73

In determining the meaning and scope of state provisions that

have either type of federal analog, state courts often refer to federal

precedent in their analysis. In so doing they run the risk of Supreme

Court review and reversal. In Michigan v. Long, 14 the Supreme Court

established a presumption of federal review of state decisions that do

not "indicate clearly and expressly that the [decision] is alternatively

based on bona fide, separate, adequate and independent grounds." 75

Under this approach, the Court will exercise jurisdiction if the state

decision interweaves state and federal law excessively or if a state court's

reasoning and conclusion appear compelled by federal precedent. 76

Federal minimums and the potential for Supreme Court review and
reversal create tension when state courts determine the scope of state
constitutional provisions. Often, this tension manifests itself within a

state supreme court over what approach to take in state constitutional

interpretation. For example, members of the New Jersey court split over
the need to refer to a neutral set of criteria to determine if state provisions

provide protections broader than federal minimums.77 State court de-

cisions that interpret a state provision more broadly often create tension
with United States Supreme Court Justices. For example, before retiring,

United States Supreme Court Chief Justice Warren E. Burger criticized
state court broader-protection-decisions favoring criminal defendants as

not being "rational law enforcement."78 The response this comment
generated highlights state-federal tensions, with one state justice char-

acterizing the Chief Justice's approach as exemplifying a Supreme Court

policy of unwarranted intrusion into state authority. 79

73See infra notes 160-69 and accompanying text.
74463 U.S. 1032 (1983).
15
Id. at 1048. The Long approach has reversed the traditional Supreme Court pre-

sumption that state courts act independently unless the record establishes differently. Id.

at 1066 (Stevens, J., dissenting). See Utter, supra note 48, at 1026 n.2.
16See Comment, supra note 32, at 512 n.56.

"Compare State v. Hunt, 91 N.J. 338, 364-68, 450 A.2d 952, 965-67 (1982) (Handler,

J., concurring) (proposing neutral criteria to justify departure from federal precedent) with

Right to Choose v. Byrne, 91 N.J. 287, 332-33, 450 A.2d 925, 948-49 (1982) (Pashman,

J., concurring in part and dissenting in part) (arguing that state constitutions must be

interpreted separately unless there are good reasons of policy to establish a uniform

interpretation). See infra notes 114-25 and accompanying text.
78Florida v. Casal, 462 U.S. 637, 639 (1983).
79State v. Jackson, 672 P.2d 255, 264 (Mont. 1983) (Shea J., dissenting), overruled,

State v. Johnson, 719 P.2d 1248 (Mont. 1986).



1987] STATE CONSTITUTIONAL ARGUMENTS 645

Electoral tensions also arise between state courts and the people.

Various states have experienced attempts, some successful, at amending

the state constitution to counter independent grounds decisions. One
such attempt failed in Washington,80 but succeeded in California and

Florida. 81 Chief Justice Burger may have exacerbated federal-state tensions
when he applauded the good sense of the people of Florida for amending
their state constitution's analog to the fourth amendment to require
judicial conformance with Supreme Court announced fourth amendment
standards. 82 These various intra-state and state-federal tensions continue

to have a significant impact on state constitutional decisionmaking.

IV. Methods of State Court Analysis

In interpreting the scope of state constitutional provisions, state

courts should have as their goal providing their citizens with the pro-

tections contemplated by the drafters of the state constitution. 83 Courts,

however, choose an approach to state constitutional analysis for a variety

of reasons. Often, that choice reveals how a state court perceives its
role in the federal structure and what weight it will give to federal

precedent. Some courts vary their approach according to the type of
civil liberty being protected. 84 In preparing a state constitutional argument,

counsel should carefully analyze the approach the state court has chosen.

Several approaches or methods have been adopted, including the absolute

harmony, primacy, interstitial, and dual sovereignty approaches. 85

A. The Lock-Step or Absolute Harmony Approach

Some state courts employ a lock-step or absolute harmony approach
in interpreting state provisions having federal analogs. In reality, this is

a non-approach to state interpretation because it results in "absolute

deferential conformity" with Supreme Court interpretations. 86 The ab-

solute harmony approach has a long history. For example, in the early

1920's, when it was widely recognized that the fourth amendment did
not apply to the states, several state courts adopted the federal exclu-

sionary rule because they felt bound to conform their interpretations of

80A 1985 bill proposing to substitute fourth amendment language for Wash. Const.
art 1, § 7 failed to get out of committee. See Comment, The Origin and Development

of Washington 's Independent Exclusionary Rule: Constitutional Right and Constitutionally

Compelled Remedy, 61 Wash. L. Rev. 459, 489-90 (1986).
8l
Id.

"Florida v. Casal, 462 U.S. at 638.
83Utter, supra note 48, at 1050.
84Abrahamson, supra note 26, at 1176.
85See Utter, supra note 48, at 1027-30.
86
Id. at 1168.



646 INDIANA LAW REVIEW [Vol. 20:635

the state constitution with Supreme Court analysis. 87 More recently, the
Texas Court of Criminal Appeals expressed its commitment to absolute
harmony with Supreme Court fourth amendment interpretations "until
such time as [it is] statutorily or constitutionally mandated to do other-

wise." 88

Absolute harmony has been criticized on a variety of grounds. As
we have seen, this approach contradicts the historical relationship between
the state and federal constitutions. 89 It is also inconsistent with the roles

that state and federal governments play in the classical model of fed-

eralism. 90 Most importantly, absolute deference violates a state judge's

duty to independently interpret the scope of the state constitution. 91 As
a result of these criticisms, state courts continue to struggle with the

appropriateness of a lock-step approach. While they follow such an

approach in criminal matters, Texas courts do not absolutely defer in

civil cases.
92

Montana provides the best example of a court struggling with absolute
harmony. In 1977, the Montana Supreme Court applied the absolute
harmony approach to the state privilege against compelled self-incrim-
ination.93 Then in 1981, Montana adopted an independent grounds ap-
proach, 94 only to reassert the absolute harmony approach in the same
case after its original decision was vacated by the United States Supreme

Court. 95 Most recently, in 1986, the Montana court reversed itself again,
making it clear that from now on it would no longer " 'march lock-
step' with the United States Supreme Court where constitutional issues

are concerned, even if the applicable state constitution provisions are

identical or nearly identical to the United States Constitution." 96

87Comment, supra note 80, at 473 n.83.
88Brown v. State, 657 S.W.3d 797, 799 (Tex. Crim. App. 1983) (en banc).
S9See supra notes 42-46 and accompanying text; see also Linde, supra note 1, at 380-

83.

^See supra note 67 and accompanying text; see also State v. Badger, 141 Vt. 430,

447-49, 450 A.2d 336, 346-47 (1982).
9l See Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (court has duty to

develop additional constitutional protections if within the intention and import of state

constitution); State v. Kimbro, 197 Conn. 219, 234, 496 A.2d 498, 506 (1985) (court has

duty to interpret state constitution's civil liberty protections); Alderwood Assocs. v. Wash-

ington Envtl. Council, 96 Wash. 2d 230, 237-38, 635 P.2d 108, 113 (1981) (courts are

obliged to interpret state constitution).
92See Abrahamson, supra note 26, at 1167 n.96.

"State v. Finley, 173 Mont. 162, 164-65, 566 P.2d 1119, 1121 (1977). See generally

Collins, Reliance on State Constitutions— The Montana Disaster, 63 Tex. L. Rev. 1095

(1985).
94
State v. Jackson, 195 Mont. 185, 637 P.2d 1 (1981), vacated, 460 U.S. 1030 (1983).

See Collins, supra note 93, at 1095-1102.
95State v. Jackson, 672 P.2d 255 (Mont. 1983), overruled, State v. Johnson, 719 P.2d

1248 (Mont. 1986). See Collins, supra note 93, at 1108-11.
96State v. Johnson, 719 P.2d 1248, 1254 (Mont. 1986) (holding that unlike under



1987] STATE CONSTITUTIONAL ARGUMENTS 647

B. Primacy Approach

On the opposite end of the spectrum from the absolute harmony
approach you will find the primacy approach, first articulated by Oregon

Supreme Court Justice Hans A. Linde. 97 Under this approach, a state
court examines state constitutional issues first, reasoning that a federal

question cognizable under the fourteenth amendment's due process clause

becomes an issue only if state law does not protect the right in question. 98

Courts using this approach do not consider federal law and analysis

presumptively valid, viewing them instead as no more persuasive than
decisions of sister state supreme courts. 99 Thus, primacy courts focus

on the state constitution as an independent source of rights, rely on it

as the fundamental law, and do not address federal constitutional issues

unless the state constitution does not provide the protection sought. 100

The primacy approach flows out of the classical model of federalism

by assuming "that the states are the primary sovereigns and that the

state constitutions are the basic charters of individual liberties and of

the limits of governmental authority/' 101 States applying this approach

include Oregon, 102 Maine, 103 and New Hampshire. 104

Commentators identify a variety of benefits of the primacy approach.

These include development of a sound body of state constitutional law,

protection of state decisions from federal review, and promotion of

healthy federalism, in which federal and state courts respect each others'

authority in their respective spheres. 105 Although the primacy approach

may insulate state decisions from Supreme Court review, state primacy
does not necessarily result in state court decisions expanding upon federal
minimums. 106

federal law, defendant's request to speak with somebody invoked his constitutional right

to counsel, but the failure to suppress his tape recorded statements was harmless error

in the case at hand).
97See Linde, supra note 1, at 383-84; Linde, supra note 64, at 178.
98Linde, supra note 64, at 178.

"Id.

I00Utter, supra note 48, at 1028.
101 Note, Developments in the Law—The Interpretation of State Constitutional Rights,

95 Harv. L. Rev. 1324, 1357 (1982).
l02

See, e.g., State v. Kennedy, 295 Or. 260, 262-63, 666 P.2d 1316, 1318 (1983).
,03

See, e.g., State v. Cadman, 476 A.2d 1148 (Me. 1984). See generally Comment,
supra note 32. In many instances prior to 1984, Maine's highest court applied constitutional
analysis totally dependent upon federal doctrine. State constitutional provisions were tacked

on as afterthoughts or characterized as equivalent to their federal counterparts. Id. at 499

n.19, 501 n.21. After adopting the primacy approach, the Maine court cites federal cases

because it finds them persuasively reasoned, not because it feels bound to do so. State
v. Flick, 495 A.2d 339, 343-44 n.2 (Me. 1985); Cadman, 476 A.2d at 1150.

i04
See, e.g., State v. Ball, 124 N.H. 226, 230-32, 471 A.2d 347, 350-52 (1983).

l05
See, e.g., Comment, supra note 32, at 507-24.

l06
See, e.g., State v. Smith, 301 Or. 681, 725 P.2d 894 (1986) (plurality concluded

that Oregon constitution does not require Miranda-style warnings); see also Comment,



648 INDIANA LAW REVIEW [Vol. 20:635

As you would expect, the primacy approach has generated heated
criticism. Many commentators argue that the classical federalism model
of distinct bodies of law, providing double protection, has become
unnecessary due to the extensive incorporation of the federal Bill of

Rights. 107 Others contend that the need for nationwide uniformity, at

least in the area of criminal law, makes the primacy method ill-advised. 108

I also see the primacy method as creating some problems. In particular,
primacy courts often address only the state constitution, resulting in

state decisions that do not comment on federal law. Consequently, state
courts would no longer play their crucial and historic role in the de-
velopment of federal jurisprudence.

C. Interstitial or Supplemental Approach

Under the supplemental approach, a state court always addresses
the federal claim first. Only if the federal claim fails does the court

look to the state constitution to determine if it "offers a means of

supplementing or amplifying federal rights." 109 This approach flows out

of a perceived need to foster uniformity and avoid conflict with federal

precedent if at all possible. Apparently, decisions by the Indiana Supreme

Court indicate that it will follow this approach. 110

The supplemental approach differs from both the primacy and ab-
solute harmony models. Unlike under the primacy model, courts using
the supplemental approach view federal interpretation of analogous pro-

supra note 32, at 525 n.95 (arguing that despite Maine's adoption of the primacy approach,

expanded state rights remains the exception, not the rule).
107

See, e.g., Maltz, The Dark Side of State Court Activism, 63 Tex. L. Rev. 985

(1985); Note, supra note 101, at 1336.
i0
*See, e.g., People v. Corr, 682 P.2d 20, 33 (Colo.) (Erickson, C.J., dissenting), cert,

denied, 469 U.S. 855 (1984) (need for state officers to be able to rely on federal inter-

pretations in criminal area); State v. Ringer, 100 Wash. 2d 688, 703, 674 P.2d 1240, 1250

(1983) (Dimmick, J., dissenting) (independent interpretation in criminal area will confound

the police); Maltz, supra note 107, at 1005; Simon, supra note 57, at 318-19 & n.113;
Comment, supra note 32, at 518-19 n.72.

109Utter, supra note 48, at 1028.
110 [W]here a provision of a state Constitution is similar in meaning and

application to a provision of the federal Constitution, it is desirable that there

should be no conflict between the decisions of the state courts and the federal

courts on the subject involved. While a decision of the Supreme Court sustaining

the validity of a state statute as not violative of any provision of the Fourteenth

Amendment is not absolutely binding on the courts of the state when the statute
is attacked as being in conflict with a provision of the state Constitution having

the same effect, still, the federal decision in such cases is strongly persuasive

authority, and is generally acquiesced in by the state courts.

City of Indianapolis v. Wright, 267 Ind. 471, 476, 371 N.E.2d 1298, 1300, 1301 (1978)

(citation omitted).



1987] STATE CONSTITUTIONAL ARGUMENTS 649

visions as presumptively correct. 111 Unlike courts that follow the absolute

harmony approach, under the supplemental approach, state courts do
not automatically follow the federal interpretation in construing state

provisions. 112 Thus, a similarity between parallel state and federal pro-

visions makes federal precedent persuasive, not binding. Although Indiana

often recognizes that it has the power to go beyond the federal minimum,
it seldom, if ever does. An interesting comparison can be made with
states such as New Hampshire, which often treats parallel state and
federal provisions similarly, but also selectively uses its power to afford

greater protection under the state constitution. 113

New Jersey's experience provides an example of the organic devel-
opment of the supplemental approach. In 1982, in Right to Choose v.
Byrne, n * the New Jersey Supreme Court considered the constitutionality
of a state statute that restricted Medicaid funding for abortions necessary

to save the life of the mother. After finding that the statute did not

run afoul of the federal Constitution, 115 the court invalidated the statute

under the New Jersey Constitution. 116 In rejecting the federal analysis,
the court noted that it would proceed cautiously in interpreting state

provisions because of the "general advisability" of uniform interpre-

tations of state and federal analogs. 117 However, because of the significant

textual differences between the state and federal due process guarantees

and a preexisting New Jersey jurisprudence, the court used its power
to independently interpret the state constitution more broadly than the
federal minimum. 118

In State v. Hunt, 119 the New Jersey court again used the supplemental
approach to hold that, unlike its. fourth amendment analog, the state
search and seizure provision protected an individual's long distance

telephone records. In a concurring opinion, Justice Handler criticized

the court's supplemental approach because of the lack of consistent

standards to justify departure from federal analysis. Instead, he offered

a set of seven neutral criteria to solve the perceived problem. 120 One

'"Utter, supra note 48, at 1028.
u2See Abrahamson, supra note 26, at 1176.
ui

See, e.g., State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985) (non-random roadblocks

violate the state constitution); State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983) (officer's
reaching into defendant's automobile to retrieve suspicious-looking cigarette butt violated

state constitution).

" 491 N.J. 287, 450 A.2d 925 (1982).
U5See Harris v. McRae, 448 U.S. 297 (1980).
U6Right to Choose, 91 N.J. at 293, 450 A.2d at 928.
ul

Id. at 301, 450 A.2d at 932.
ng

Id. at 303, 450 A.2d at 932.
" 991 N.J. 338, 450 A.2d 952 (1982).
xl0

Id. at 343-46, 450 A.2d at 965-67 (Handler, J., concurring). The criteria included:
textual differences, legislative history, preexisting state law, structural differences between



650 INDIANA LAW REVIEW [Vol. 20:635

year later in State v. Williams, 121 a majority of the New Jersey court
adopted the neutral criteria approach in the context of whether pretrial

proceedings should be open. 122 Most recently, in January 1987, the New
Jersey court used neutral criteria to support its refusal to adopt, under

the state search and seizure provision, the federal good faith exception

to the exclusionary rule. 123

Former New Jersey Supreme Court Justice Morris Pashman has
articulated one of the major criticisms of the supplemental approach's

neutral criteria. He correctly pointed out that use of criteria creates an
unwarranted presumption of validity for federal analysis under the state

constitution.
124 According to Justice Pashman, a state court has a duty

to interpret the state constitution on its own merits. Thus, "particular
reasons" must exist before a state court eschews its responsibility to

independently interpret the state constitution in favor of conforming to

the Supreme Court's result. 125

Another major criticism of the supplemental approach focuses on

the advisability of relying solely upon federal grounds for state deci-

sions.
126 Massachusetts' experience highlights the problem. In Common-

wealth v. Upton, 127 the Massachusetts court reversed a conviction for

lack of probable cause, grounding its decision solely on the fourth

amendment. Because the decision did not involve independent and ad-

equate state grounds, the Supreme Court asserted jurisdiction and re-

versed, 128 disagreeing with Massachusetts' application of Illinois v. Gates. 129

state and federal constitutions, matters of particular local or state interest, state traditions

or history, and particular attitudes of the state's citizens. Washington has adopted a

similar set of nonexclusive criteria. State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 831

(1986).
121 93 N*J. 39, 459 A.2d 641 (1983).
n2

Id. at 57-58, 459 A.2d at 650. Despite New Jersey's attempt to develop a set of
neutral principles underlying its supplemental approach, it has not escaped criticism. See

Note, The New Jersey Supreme Court's Interpretation and Application of the State
Constitution, 15 Rutgers L.J. 491, 499-505 (1984) (suggesting that the court arbitrarily

applies its neutral criteria).

'"State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987).
l24See Hunt, 91 N.J. at 355, 450 A.2d at 960 (Pashman, J., concurring). Justice

Handler argued that by proposing neutral criteria, he did not intend to create a presumption

favoring federal analysis. See id. at 367 n.3, 450 A.2d at 967 n.3; Handler, Expounding

the State Constitution, 35 Rutgers L. Rev. 202, 206 n.29 (1983).
,25Hunt, 91 N.J. at 355, 450 A.2d at 960 (Pashman, J., concurring). See generally

Cohn, Justice Pashman as Federalist: The New Jersey Constitution Unbound, 35 Rutgers
L. Rev. 213 (1983). For further discussion of the New Jersey approach, see Handler,
supra note 124; Pollock, State Constitutions as Separate Sources of Fundamental Rights,

35 Rutgers L. Rev. 707 (1983).
n6See Massachusetts v. Upton, 466 U.S. 727, 735 (1984) (Stevens, J., concurring).
127 390 Mass. 562, 458 N.E.2d 717, rev'd, 466 U.S. 727 (1983).

'"Massachusetts v. Upton, 466 U.S. 727 (1983).
I29

A/.



1987] STATE CONSTITUTIONAL ARGUMENTS 651

On remand, the Massachusetts court turned to the state constitution,
independently adopted the two-prong Aguilar-Spinelli probable cause test,

and affirmed its earlier decision. 130 United States Supreme Court Justice

John Paul Stevens criticized Massachusetts' use of the supplemental

approach, characterizing it as creating needless work for the Supreme

Court and unnecessarily inviting Supreme Court review and possible

reversal.
131 Finally, Massachusetts' experience highlights Justice Linde's

criticism of the supplemental approach. Because the supplemental ap-

proach requires review of the state constitution only when federal doctrine
fails to provide protection, state court decisions that provide broader

protection run the risk of being criticized as pragmatic and result oriented,

rather than principled. 132

D. Dual Sovereignty Approach

Thus far we have seen the strengths and weakness of the absolute
harmony, primacy, and supplemental approaches. Several state courts

have adopted another model, the dual sovereignty approach, 133 which

attempts to use the other approaches' strengths while avoiding their

weaknesses. Under this approach, courts always evaluate both federal

and state constitutional provisions, reaching conclusions as to the pro-

tection afforded under each, even if the decision rests firmly on state

grounds. 134 According to Vermont Supreme Court Justice William C.
Hill, who calls this the "Vermont approach," reaching independent
decisions under both constitutions "accommodates, rather than evades,

the relationship of state and federal constitutional rights." 135

A Washington case offers an excellent example of the approach at
work. In State v. Coe, 136 the trial court held a radio and television

station in contempt for violating a court order prohibiting the broadcast

of accurate, lawfully obtained copies of tape recordings played at a

criminal trial. We first analyzed the trial court's prior restraint order
under Washington's free speech provision, the text of which differs

significantly from its federal analog. 137 We concluded that the Washington
Constitution absolutely forbade prior restraints against publication or

130Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985).
131 Massachusetts v. Upton, 466 U.S. at 735 (Stevens, J., concurring).
132Linde, supra note 64, at 178.
ni

See, e.g., State v. von Bulow, 475 A.2d 995 (R.I.), cert, denied, 469 U.S. 875

(1984); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984); State v. Badger, 141

Vt. 430, 450 A.2d 336 (1982); State v. Coe, 101 Wash. 2d 364, 679 P.2d 353 (1984).
U4See Utter, supra note 48, at 1029.
135Hill & Marks, Foreword: Toward a Federalist System of Rights, 1984 Ann. Sur.

Am. L. 1, 11.
,36 101 Wash. 2d 364, 679 P. 2d 353 (1984).
ulCompare Wash. Const, art. 1, § 5 with U.S. Const, amend. I.



652 INDIANA LAW REVIEW [Vol. 20:635

broadcast of constitutionally protected speech. 138 We then turned to the
federal Constitution, holding that the first amendment also prohibited
prior restraints against the broadcast in question. 139 Other states that

have employed the dual sovereignty approach, notably Rhode Island,
Utah, and Vermont, differ from our approach in Coe only to the extent
that they address the federal issue prior to discussing the state consti-

tution.
140

In addition to authoring the Coe opinion, I have- written separately
in the Texas Law Review in support of the dual sovereignty approach. 141

In some ways reaching dual decisions under the federal and state con-
stitutions was the original method of constitutional analysis. 142 "It reflects

the policies underlying our federal system by making available the max-

imum protection both levels of government offer to citizens." 143 The
major criticism lodged against the dual sovereignty approach is that once

a court affords protection under the provision analyzed first, subsequent

discussion under the other constitution constitutes dicta, unnecessary to

the final disposition of the case. 144 In addition, Justice Stewart G. Pollock

of the New Jersey court thinks that the dual approach may lead to a
"body of state law that merely mimics the federal rulings." 145 Mimicry,

he correctly pointed out, would be inconsistent with federalist principles

that underlie state independent analysis. 146 My Texas Law Review article
attempted to rebut such criticisms by focusing on the need to accom-

modate a state court's duty to interpret its own constitution and the
crucial role state court commentary has played in the development of

federal jurisprudence. 147 Moreover, unlike Justice Pollock, I see the dual

sovereignty approach as facilitating the primary goal of a state court:

development of a principled, independent state jurisprudence.

V. Formulating State Constitutional Arguments

Regardless of which approach a court takes, state constitutional law

consists of state court pronouncements based on federal constitutional

138Coe, 101 Wash. 2d at 375, 679 P.2d at 361.
139

/tf. at 380, 679 P.2d at 363.

"°See, e.g., State v. von Bulow, 475 A.2d 995 (R.I.), cert, denied, 469 U.S. 875

(1984); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984); State v. Badger, 141

Vt. 430, 450 A.2d 336 (1982).
,4i See generally Utter, supra note 48.
,42

Id. at 1029.

w
Id.

l "See, e.g., Collins, supra note 93, at 1101 n.60; Linde, supra note 64, at 176 &
n.26.

,45Pollock, supra note 125, at 718.
i46

Id.

l47Utter, supra note 48, at 1030-50.



1987] STATE CONSTITUTIONAL ARGUMENTS 653

precedent and analytics, as well as state court decisions that depart

significantly from the federal model. In addition, adherence to a particular

analytical approach is by no means set in concrete. Thus, you must

become familiar with the various approaches in order to frame a per-

suasive state constitutional argument on behalf of your client. In most

states, framing a state constitutional argument presents counsel with

largely uncharted territory. State courts often observe that even where

parties squarely raise state constitutional issues, briefing frequently falls

short of the mark, failing to make any substantive analysis or argument
on the issue. 148 Even where state courts demonstrate a willingness to

carefully review state issues, as we have in Washington, lawyers often
view state issues as "throw-ins" most likely because they have not learned

how to frame well thought out, persuasive state constitutional argu-
ments. 149 For this reason, I will attempt to provide you with some

fundamentals useful for building your state analysis. 150 Keep in mind

that your goal is to persuade a state court to examine its state constitution

and to find that because of its historical mandate or other factors, a

decision favoring your client is required. 151

A. Structural Considerations

In structuring your argument, you need to consider the effect of

topics we have discussed thus far. To take account of a state court's
role and responsibility in our federal system, you should present your

state constitutional analysis at each stage of the proceedings—prior to
trial, during trial, and on appeal. The bona fide, independent grounds

requirement announced in Michigan v. Long152 affects your structural
presentation in several ways. You must take care to keep your state
and federal claims separate and distinct. To do so you should refer
specifically to the state provisions upon which you rely, separate your
federal and state analysis, and be sure to set out your state law position

as a separate argument in all written documents. 153

i4S
See, e.g., State v. Jewett, 146 Vt. 221, 223-29, 500 A.2d 233, 234-36 (1985) (court

admonished parties for their inadequate briefs and ordered supplemental briefing on the

state issues).

149
Justice Shirley Abrahamson has made a similar observation concerning Wisconsin.

Abrahamson, supra note 26, at 1163.
1S0For other discussions of techniques to effectively argue state constitutional issues,

see Bamberger, supra note 37; Carson, supra note 2, at 658-62; Tinkle, The Resurgence

of State Constitutional Law, 18 Me. Bar. Bull. 257, 288-91 (1984); Utter, supra note

6, at 504-24; Comment, supra note 32, at 544-87.
151 Utter, supra note 6, at 504-07.
xslSee supra notes 74-76 and accompanying text.
l53See Bamberger, supra note 37, at 50.



654 INDIANA LAW REVIEW [Vol. 20:635

As Wisconsin Supreme Court Justice Shirley Abrahamson observed,
a state court's choice of approach to state constitutional interpretation

may reflect the court's view of the relation between the state and federal
constitutions. 154 As a result, you may wish to order your presentation
of federal and state claims to reflect the approach your state court

adopts. Thus, in primacy states, discuss state issues first; in supplemental

states, discuss your federal claim prior to your state claim; and in dual

sovereignty states—since different states order their issue consideration
differently—become aware of your state's choice. In addition, as discussed
above, some supplemental approach states employ neutral criteria. 155

Consequently, you may wish to order your discussion of the state
constitution by referring to the list of criteria and by proposing additional

criteria.

B. Argument Building Blocks

Commentators and jurists often refer to various types of constitu-

tional arguments including textual, historical, doctrinal, prudential, struc-

tural, and ethical. 156 For example, the Vermont Supreme Court encourages

parties to focus on the textual approach, supported by reference to

historical, economic, and social materials. 157 For the purposes of today's

discussion, I will focus briefly on the use of constitutional text, state

constitutional history, preexisting state jurisprudence, and current values.

7. Constitutional text.—The text of the constitutional provision in
question provides the starting point for building your argument. In

framing your textual argument, feel free to apply the general maxims

of statutory construction. 158 Keep in mind the differences between con-

stitutions and statutes. Where the people ratified the provision you rely
upon, the common and ordinary meaning of the constitutional language
is the meaning understood by the majority of voters, or as the Wisconsin

Supreme Court put it, by "the general run of voters to whom the
[provision] was submitted." 159 As an additional aid in framing your
textual argument, look also to the Enabling Act which paved the way
for and set limits on the state constitutional convention.

154Abrahamson, supra note 26, at 1169.
155See supra notes 120-25 and accompanying text.
,S6

See, e.g., P. Bobbitt, Constitutional Fate: Theory of the Constitution (1982);

see also State v. Jewett, 146 Vt. 221, 234, 500 A.2d 233, 237 (1985) (court referred parties

to Professor Bobbin's work); Linde, supra note 64, at 180-93 (discussing the various

constitutional arguments).
i51Jewett, 146 Vt. at 234, 500 A.2d at 237.
,58Utter, supra note 6, at 509; see In re Todd, 208 Ind. 168, 193 N.E. 865 (1935)

(rules for construing statutes should be applied to constitutional provisions).

159B.F. Sturtevant Co. v. O'Brien, 186 Wis. 10, 19, 202 N.W. 324, 327 (1925).



1987] STATE CONSTITUTIONAL ARGUMENTS 655

Your textual argument will have to take into account the existence

of federal analogs. Where the state constitution guarantees a right un-
addressed in the federal Constitution, your job is much easier. For
example, article 1, section 12 of the Indiana Constitution specifically

recognizes that every person shall have a remedy by due course of law

for injuries to his or her reputation. 160 The federal Constitution recognizes

no constitutional right to a reputation. 161 However, several state courts

have relied on provisions nearly identical to article 1, section 12 to hold

that reputation is a fundamental constitutional interest. 162 Recognition

of reputation as a fundamental interest has far reaching implications

for your client. Once recognized as such an interest, state infringement

arguably gives rise to a section 1983 federal civil rights action. 163

Where a substantive protection analog exists, the difficulty of your
job increases. Nevertheless, few provisions of a state's constitution,

including Indiana's, contain precisely the same language as their federal

protection analogs. In framing your argument, you must persuade your

state's judiciary to assign meaning to that textual difference. In Wash-

ington, our fourth amendment analog, article 1, section 7, provides that
"[n]o person shall be disturbed in his private affairs, or his home invaded,
without authority of law." 164 The Washington Supreme Court gives

substantive meaning to this textual departure from the fourth amendment.

For example, in State v. Myrick, 165 we rejected the federal open fields
exception to the warrant requirement as inapplicable under our state

constitution. While open fields do not come within the limited scope
of fourth amendment protection—that is, persons, homes, papers, and
effects—section 7's protection sweeps much broader by guaranteeing the
sanctity of one's "private affairs," as well as one's home. 166

i60Ind. Const, art. 1, § 12.
161 Paul v. Davis, 424 U.S. 693 (1976) (federal courts lack authority to hear claims

based on a right to reputation).
i62

See, e.g., Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975) (in-

dividual may recover damages to reputation under state constitution); McCall v. Courier-
Journal, 623 S.W.2d 882 (Ky. 1981) (state constitution protected attorney from defamation

by newspaper), cert, denied, 456 U.S. 975 (1982); Madison v. Yunker, 180 Mont. 54, 589

P.2d 126 (1978) (retraction statute unconstitutional as incomplete remedy); Davidson v. Rogers,

281 Or. 219, 574 P.2d 624 (reputation is constitutionally protected but retraction statute

does not violate remedy guarantee). Montana has relied on a guaranteed remedy provision
similar to Indiana's to invalidate municipal immunity for torts. White v. State, 661 P.2d

1272, 1273-75 (Mont. 1983).

16342 U.S.C. § 1983 (1981). See Paul v. Davis, 424 U.S. 693 (1976).
iMCompare Wash. Const, art 1, § 7 with U.S. Const, amend. IV.
,65 102 Wash. 2d 506, 688 P. 2d 151 (1984).
l66

Id. at 512, 688 P.2d at 155.



656 INDIANA LAW REVIEW [Vol. 20:635

Your job becomes most difficult when the state provision has a
language analog in the federal constitution. When the state constitution
employs language identical or nearly identical to federal provisions, state

courts come under pressure to conform their decisions to federal prec-
edent. This pressure is particularly acute in the criminal area. 167 Never-

theless, you must overcome the notion that the divergence from the

Supreme Court becomes more legitimate when the state constitution has

different text. 168 In either case, state courts have equal responsibility for

independently interpreting their state constitutions; a textual difference

simply makes it easier for a court to see its responsibility. 169

Take article 1, section 11 of the Indiana Bill of Rights, which

contains language identical to the federal fourth amendment. A state
court must seek to discover what the people of Indiana meant by the

wording of article 1, section 11. When Indiana's framers drafted section
11 in 1816 and readopted it in 1851, the United States Supreme Court's

first significant interpretation of the fourth amendment was still thirty-
five years in the future. 170 Undoubtedly, given the independent devel-

opment of state constitutions, the Indiana framers never intended section

11 to be dependent upon, or interpreted in light of, the fourth amend-

ment. 171 Moreover, significant structural differences exist between state

and federal bills of rights. State charters recognize affirmative rights,

while the federal charter places limits on federal power. 172 In addition,

the differing perspectives of state and federal courts require significantly

different analysis of similarly worded provisions. 173

Regardless of the similarity in constitutional text and regardless of

whether a state court looks to the state constitution before, after, or

simultaneous with the federal Constitution, you should feel free to adopt

modes of analysis that differ from those employed by the United States

Supreme Court. 174 State constitutions offer counsel and the courts the

ability to be free of inconsistencies, complexities, and restrictions of

federal case law. 175 Once free of federal analytics, both counsel and

court can rethink fundamental issues involved. 176 In drafting your state

161See Abrahamson, supra note 26, at 1155 ("criminal law is probably the most public

and controversial arena ....").
l68Linde, supra note 64, at 182.
l69
Id.

mSee Boyd v. United States, 116 U.S. 616 (1886); Comment, supra note 80, at 520
n.318.

171 See Utter, supra note 6, at 496.
xl2

Id. at 494. See generally Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243

(1833).
173Utter, supra note 48, at 1042.
,74Utter, supra note 6, at 506.
175Abrahamson, supra note 26, at 1181; Utter, supra note 6, at 506.
116

Id.



1987] STATE CONSTITUTIONAL ARGUMENTS 657

argument, you should heed the Vermont Supreme Court's advice and

avoid the "litany of federal buzz words." 177 If you incorporate federal

analysis and law into your state analysis, do so only after careful thought.

2. Use of State Constitutional History.—To support your textual
argument and to shed light on ambiguous constitutional language, look

to the original intent and understanding underlying the constitutional

provision. Because a state constitution is the expression of the people's

will, a state court must be concerned primarily with the intent of those

who ratified the document. 178 Evidence of the drafters' intent becomes
important because, in many cases, it is the only evidence we have of
the people's understanding. 179 In general, historical arguments focus on

the legislative history of a particular clause or provision, the treatment

the clause or provision received in subsequent constitutions, and the

social and political setting in which the provision originated or when

the changes took place. 180

To frame your argument you should look to the various sources,
both primary and secondary, which shed light on the original under-

standing of a particular state provision. As in any historical research
project, primary sources provide the best building blocks for your ar-

gument. Look to the Enabling Act, which authorized the State Con-
stitutional Convention's work, and to available published records of the

state convention. The Indiana Supreme Court considers state constitu-

tional convention debates as an important tool for interpreting its con-

stitution.
181 In Washington, unfortunately, full proceedings of the state

convention have not been made available. Nevertheless, the brief minutes
in the convention journal reveal that the Washington framers rejected

fourth amendment language in favor of the text of article 1, section
7.

182 This decision to reject federal wording, along with article 1, section

7's broad language, formed the basis of Washington's independent anal-

ysis of search and seizure cases under the state constitution. 183 In contrast

to Washington's lack of primary sources, in Indiana you have a rich

supply of primary sources from both the 1816184 convention and the

revisions adopted in 1851. 185

177State v. Jewett, 146 Vt. 221, 223, 500 A.2d 233, 235 (1985).
178
Utter, supra note 6, at 511.

n9
Id.

l80Linde, supra note 64, at 183.
mSee In re Todd, 208 Ind. 168, 183 N.E. 865 (1935).
182Washington Journal, supra note 1, at 51, 497.
iSi

See, e.g., State v. Jackson, 102 Wash. 2d 432, 443, 688 P.2d 136, 141 (1984). For

a critique of Washington's use of article 1, § 7, see Nock, Seizing Opportunity, Searching

for Theory: Article I, Section 7, 8 U. Puget Sound L. Rev. 331 (1984).
n4

See, e.g., Journal of the Convention of the Indiana Territory (Louisville 1816).
li5

See, e.g., Journal of the Convention of the State of Indiana to Amend the
Constitution (1851); Report of the Debates and Proceedings of the Convention of



658 INDIANA LAW REVIEW [Vol. 20:635

Substantial insight can also be gained from newspaper accounts of

the constitutional convention, as well as from looking to the constitutions

that the Indiana delegates copied from or referred to in drafting specific

provisions. 186 However, as noted earlier, 187 even where the Indiana Con-

stitution contains the same or similar language to the federal or other

state constitutions, it is quite possible that the framers intended something

different from those who drafted the source documents.
As to secondary sources, you can rely on the writings of individual

framers as indicative of the intent underlying particular provisions. In

Indiana, for example, Robert Dale Owen was a prominent and influential
delegate to the 1852 Convention. 188 Consequently, books by and about

Owen may offer additional insights into the meaning of various civil
liberty guarantees. 189 Other secondary sources include books and articles

that concern the convention itself or that detail the history of events

leading up to the framing and ratification of the state constitution. 190

3. Reference to Current Values.—A court's primary goal in de-
termining the scope of a constitutional provision is to give effect to the

intent of the framers of the state constitution. Utilizing "interpretivist"

review, 191 courts determine original intent by using the textual analysis

and historical sources discussed above. In contrast, under a noninter-

pretative review, 192 courts look to current values such as sound policy,

justice, and fundamental fairness to shed light on the scope of a con-

stitutional protection. 193 The pros and cons of the United States Supreme

Court's use of the competing approaches have been debated extensively

in the literature. 194 As can be expected, the debate over the appropriateness

the Revision of the Constitution of the State of Indiana (1850). For comments about

the Indiana constitution, see generally Oregon Proceedings, supra note 1.
l86See Barnhart, Sources of Indiana's First Constitution, 49 Ind. Mag. Hist. 55 (1943).
187Supra notes 170-72 and accompanying text.
188R. Leopold, Robert Dale Owen 269 (1969); Madison Courier, Feb. 10, 1851.
l89

See, e.g., R. Leopold, supra note 182; R.D. Owen, Treading My Way (New York
1874); R.D. Owen, The Wrong of Slavery (Philadelphia 1864).

190
See, e.g., J. Barnhart & D. Riker, Indiana to 1816 (1971); Constitution Making

in Indiana- 1916-1978 (Kettleborough ed. 1979); D. Dunn, Indiana and Indianans (1919);
Barnhart, supra note 186; Dionisopoulos, Indiana, 1851, Alaska, 1956: A Century of
Differences in State Constitutions, 34 Ind. L.J. 34 (1958-59); Lambert & McPheron,
Modernizing Indiana's Constitution, 26 Ind. L.J. 185 (1950-51); Twomley, supra note 2.

,9[ See J. Ely, Democracy and Distrust 1 (1980).
l92

Id.

""People v. P.J. Video, Inc., 68 N.Y.2d 296, 501 N.E.2d 556, 508 N.Y.S.2d 907

(1986); White, Reflections on the Role of the Supreme Court: The Contemporary Debate

and the "Lessons" of History, 63 Judicature 162, 166-67 (1979) (using the terms

supraprofessionalist and intraprofessionalist in place of noninterpretivist and interpretivist).

^Compare White, supra note 193 (arguing that "[w]hen the Supreme Court decides
constitutional cases, it is justified in looking beyond the Constitution to the values of

American society today") with Downs, Judges, Law-making and the Constitution: A



1987] STATE CONSTITUTIONAL ARGUMENTS 659

of constitutional review based on judicial perception of current values

now takes place in the state supreme court forum as well. 195

Understandably, state judges may feel reluctant to interpret a con-
stitutional provision by referring to their perceptions of current values.

Nevertheless, situations arise that require a state court to employ a

noninterpretative review. Determining the intent of a single person is

often a difficult chore; yet, the task grows "geometrically more complex"

when courts attempt to assess the intent of delegates to a constitutional
convention that took place one or two centuries ago. 196 Sometimes little

practical objective guidance exists concerning the original intent and

understanding of a particular provision. 197 Often the text is ambiguous

or unclear, or the intent of the people and framers is undiscoverable

or obscure. More importantly, the original intent or understanding of
a constitutional provision may become inappropriate in the context of
modern conditions and values. 198

The larger principle contained in a constitutional guarantee should

not be confined to what the generation that adopted it was willing to

live by. 199 For example, at the time of the Indiana Constitutional Con-

vention of 1851, delegates had conflicts over the right of married women,
"negroes," and "mulattos" to acquire property. 200 This conflict led to

Response to Professor White, 63 Judicature 444 (1979) (arguing that "(w]hen the Supreme

Court substitutes its judgment for that of Congress, it steps outside its constitutional

role—and endangers both law and democracy").
x95

See, e.g., Maltz, supra note 107 (arguing that state courts should only use interpretivist

review in construing state constitutional provisions). Wisconsin Justice Shirley Abrahamson

has predicted that state constitutional interpretation will raise

the questions posed in the ongoing debate as to the legitimacy of judicial review

of constitutional questions by the United States Supreme Court. Thus, the

academicians ask whether state courts shall adopt an interpretative or a non-

interpretative approach to their state constitutions; whether state courts will take

an historical approach or a doctrinal approach; whether judicial review by state

courts and elected judges is countermajoritarian; whether the ease of amending

the state constitution affects the manner of interpreting the state constitution.

The academicians ask us to consider the questions being discussed in the writings

of Dean Jesse Choper, Dean John Ely, Professor Phillip Bobbitt, Professor

Michael Perry, and others. The academicians raise important issues—issues that
state courts have dealt with in the related area of statutory interpretation and

will have to consider in interpretation of the state constitutions.

Abrahamson, Homegrown Justice: The State Constitutions, in Developments in State
Constitutional Law: The Williamsburg Conference 308 (B. McGraw Ed. 1985).

196Rakove, Mr. Meese, Meet Mr. Madison, Atlantic Monthly, Dec. 1986, at 77,
78.

197Utter, supra note 6, at 520.
i9S

Id.

'"Linde, supra note 64, at 182.
200Twomley, supra note 2, at 213. The 1851 Constitution did, however, outlaw slavery

and involuntary servitude. Ind. Const, art. 1, § 37.



660 INDIANA LAW REVIEW [Vol. 20:635

the express decision to leave the inalienable right to acquire property

out of the list of specific inherent and inalienable rights guaranteed by

article 1, section 1 of the Indiana Constitution.201 Today, few would

argue that Indiana courts should refuse to look to modern values in
order to honor the inferior legal position assigned to blacks and women
in 1851. As Washington courts have long recognized, a state constitution
is "designed to endure through the years, and constitutional provisions

should be interpreted to meet and cover changing conditions of social

and economic life."202

Within the past few months, the New Jersey Supreme Court, in
State v. Novembrino, 203 and the New York Court of Appeals, in People
v. P.J. Video, Inc.,204 employed noninterpretative review to construe

their state search and seizure provisions as providing broader protection

than their fourth amendment analog. Because of the identity of language
between the fourth amendment and the state analogs,205 and because of
the history of the state provisions, both courts acknowledged that in-

terpretivist review offered no grounds for providing broader protection. 206

Nevertheless, in Novembrino, New Jersey refused to adopt the United
States Supreme Court's good faith exception to the exclusionary rule

because of "particular state interests" such as "the likely [negative]

impact ... on privacy . . . and on the enforcement of [New Jersey's]

criminal laws." 207 In P.J. Video, a case implicating both the right of

free expression and the right to be free from unlawful government

201Twomley, supra note 2, at 213.
202State ex rel. Evans v. Brotherhoods of Friends, 41 Wash. 2d 133, 147, 247 P.2d

787, 795 (1952) (quoting State ex rel. Linn v. Superior Court, 20 Wash. 2d 138, 145,

146 P.2d 543, 547 (1944)).
203State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987).
204People v. P.J. Video, Inc., 68 N.Y.2d 296, 501 N.E.2d 556, 508 N.Y.S.2d 907

(1986). The New York court listed the various noninterpretative factors it looks for as
follows:

any preexisting State statutory or common law defining the scope of the individual
right in question; the history and traditions of the State in its protection of the

individual right; any identification of the right in the State Constitution as being

one of peculiar State or local concern; and any distinctive attitudes of the State

citizenry toward the definition, scope or protection of the individual right.

Id. at 303, 501 N.E.2d at 560, 508 N.Y.S.2d at 911.
205Compare U.S. Const, amend. IV with N.Y. Const, art. 1, § 5; N.J. Const, art.

1, para. 7.
206Novembrino, 519 A.2d at 849-50; P.J. Video, 68 N.Y.2d at 304, 501 N.E.2d at

561, 508 N.Y.S.2d at 912.
201Novembrino, 519 A.2d at 850. The court noted that "[although the language of

article 1, paragraph 7 of the New Jeresy Constitution is virtually identical with that of
the Fourth Amendment, we have held in other contexts that it affords our citizens greater

protection against unreasonable searches and seizures than does the Fourth Amendment."
Id. (citations omitted).



1987] STATE CONSTITUTIONAL ARGUMENTS 661

intrusions, the New York court relied on principles of federalism and
New York's long tradition of protecting fundamental rights, and refused
to apply the Illinois v. Gates208 "totality of the circumstances" test to

determine probable cause.209

4. Preexisting State and Federal Law.—Framing a state argument
becomes more difficult when the United States Supreme Court relaxes
federal minimum standards. This becomes a jurisprudential problem when
the Supreme Court overrules or reinterprets a large body of federal law

that state courts have consistently applied.210 Once a state supreme court

decides a state case using federal standards, does the decision continue

to bind state courts even when the United States Supreme Court changes

direction?211 A state supreme court has two choices: it can adopt the
new federal standard without much comment, or it can squarely address
state cases applying the old federal doctrinal analysis and decide whether

those standards had evolved into state constitutional requirements. 212 For

example, in Novembrino and in P.J. Video, the New Jersey and New
York courts chose to continue adhering to preexisting federal and state

law because it proved more persuasive on legal and normative grounds

than more recent Supreme Court interpretations of the fourth amend-

ment. 213 Thus counsel must be prepared to argue the question.

Counsel should take notice of the analysis state courts use in rejecting

or following new Supreme Court doctrine. For example, state supreme
courts have had varied reactions to Illinois v. Gates. 214 In Gates, the

Supreme Court abandoned the well established Aguilar-Spinelli two-

pronged probable cause test215 in favor of the less demanding "totality

of the circumstances" analytic.216 Although they had applied the two-

prong approach for many years, some state courts simply changed
direction with the Supreme Court and followed Gates.211 In State v.

208462 U.S. 213 (1983).
2WP.J. Video, 68 N.Y.2d at 305, 501 N.E.2d at 562, 508 N.Y.S.2d at 913. The court

observed that although the identity of text often called for federal-state uniformity, it

does not hesitate to adopt independent standards "when doing so best promotes 'pre-
dictability and precision in judicial review of search and seizure cases and the protection

of the individual rights of our citizens.' " Id. (citations omitted).
210Comment, supra note 32, at 527-28.
211 Linde, supra note 64, at 177.
2X2See Comment, supra note 32, at 527-28 (criticizing the Maine court for failing to

address the issue of the evolution of independent state standards).
2nNovembrino, 519 A.2d at 857; P.J. Video, 68 N.Y.2d at 305, 501 N.E.2d at 562,

508 N.Y.S.2d at 913.
214462 U.S. 213 (1983).
2l5See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108

(1964).

216462 U.S. at 238.
2n

See, e.g., Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984); Potts v.



662 INDIANA LA W REVIEW [Vol. 20:635

Jackson, 218 the Washington Supreme Court rejected Gates and continued

to employ the Aguilar-Spinelli test as a matter of state constitutional

law. 219 A number of states have done likewise.220 In Jackson, we based
our decision to reject the Gates standard on several factors. We found
the Court's rationale for departing from the Aguilar-Spinelli standard

singularly unpersuasive; the Gates approach lacked "sufficient specificity

and analytical structure to adequately inform magistrates as to the

appropriate standards required to protect the right of privacy secured

by [the state constitution]."221 Finally, Washington had an established

jurisprudence in which the Aguilar-Spinelli test was applied under the

state constitution. 222

Even in the absence of a pre-existing state jurisprudence that applied

federal doctrine under the state constitution, state courts often find that

state constitutions require rejection of Supreme Court departures from

established law. A 1986 New York Court of Appeals case, People v.
Bethea, 223 illustrates the point. Several years ago, in People v. Chappie 224

the New York Court of Appeals interpreted the federal Miranda doctrine
as requiring suppression of defendant statements made after proper
warnings, when they came in close sequence with prior unwarned state-
ments. 225 Recently, the United States Supreme Court, in Oregon v.

Elstad, 226 held that interpretations such as Chappie misconstrued federal

law. Only if the police coerced the unwarned statements would the

subsequent warned statements have to be suppressed. 227 In Bethea, the

New York court had to determine whether Chappie remained good law
in New York. 228 The court of appeals rejected the Elstad approach.
Despite the lack of pre-existing state cases applying Chappie under the

State, 300 Md. 567, 575-76, 479 A.2d 1335, 1340 (1984); State v. Arrington, 311 N.C.

633, 643, 319 S.E.2d 254, 261 (1984). New Jersey decided to follow Gates as a matter
of state law. Novembrino, 519 A.2d at 857. Maine opted to follow Gates without

addressing the state constitutional issue. State v. Knowlton, 489 A.2d 529, 532 (Me. 1985).

See Comment, supra note 32, at 527-28 n.ll (pointing out that despite both its adoption

of the primacy approach and the fact that the defendant squarely raised the state con-

stitutional issue, the Maine court did not acknowledge any state constitutional issue).
218 102 Wash. 2d 432, 688 P.2d 136 (1984).

™Id. at 438-39, 688 P. 2d at 143.
220

See, e.g., State v. Jones, 706 P.2d 317 (Alaska 1985); State v. Kimbro, 197 Conn.

219, 496 A.2d 498 (1985); Commonwealth v. Ford, 394 Mass. 421, 476 N.E.2d 560 (1985);
People v. Johnson, 66 N.Y.2d 398, 488 N.E.2d 439, 497 N.Y.S.2d 618 (1985).

22i Jackson, 102 Wash. 2d at 443, 688 P.2d at 143.
222

Id.

22367 N.Y.2d 367, 493 N.E.2d 937, 502 N.Y.S.2d 713 (1986).
22438 N.Y.2d 112, 341 N.E.2d 243, 378 N.Y.S.2d 682 (1975).
225Chapple, 38 N.Y.2d at 114, 341 N.E.2d at 246, 378 N.Y.S.2d at 685.
226470 U.S. 298 (1985).
221

Id. at 318.

22867 N.Y.2d at 366, 493 N.E.2d at 938, 502 N.Y.S.2d at 714.



1987] STATE CONSTITUTIONAL ARGUMENTS 663

state constitution, the New York court continued the Chappie rule as
"a matter of state constitutional law." In refusing to follow Elstad, the

court observed that without the Chappie rule, the state privilege against

self-incrimination would lose all deterrent effect.229

As a result of the Warren Court's expansion of civil liberties, pre-
existing federal law almost always aids a more expansive view of the

state constitution. By contrast, pre-existing state precedent, dating back
to preincorporation days, often fails to adequately assure and protect

state constitutional rights.
230 Consequently, when the Supreme Court

curtails federal minimum protections, state courts must look to prein-
corporation cases as a starting point for their analysis. During the

preincorporation period, few states developed a theoretical basis to build

a principled civil rights jurisprudence. Thus, these preincorporation cases

challenge courts, counsel, and scholars to analyze prior case law's un-

derlying principles and theoretical bases in light of the plain, historical,

or modern meaning assigned to the constitutional text.
Ironically, Oregon, one of the leading state constitutional law courts,

provides the most vivid example of the struggle with the limitations

of preincorporation case law. Just this past year, the defendant in State

v. Smith231 relied solely on Oregon's privilege against compelled self-

incrimination to argue that the state constitution required Miranda-style

warnings to be given at an earlier time than required under federal

law. 232 This argument raised the threshold issue of whether the Oregon

Constitution required Miranda warnings at all. The plurality examined

cases, dating back to 1896, finding that although Oregon statutes and

the Oregon Constitution required a magistrate to explain the right to

remain silent, there was "no question" that the state constitution did

not require a police officer to give similar warnings.233 In dissent, Justice

Linde pointed to several recent cases, arguing that in each the Oregon

court held that Oregon law independently required warnings before

interrogation. 234 The plurality characterized the same cases as merely

22Hd. at 368, 493 N.E.2d at 938-39, 502 N.Y.S.2d at 714-15.
230See Simon, supra note 57, at 311 (prior to incorporation little judicial concern

existed for the protection of free expression and other civil rights).
23l 301 Or. 681, 725 P.2d 894 (1986).
232M at 684, 725 P.2d at 896.
23i

Id. at 687-98, 725 P.2d at 897-904. In one prior case the Oregon Supreme Court

held that "[a]n extra-judicial confession is admissible in this State even though the officer

to whom it was made did not inform the accused of his right to consult counsel, of his
own right to remain silent and of the fact that his declarations would be used against
him." State v. Henderson, 182 Or. 147, 173, 184 P.2d 392, 403 (1947) (citations omitted).

2MSmith, 301 Or. at 703-05, 725 P.2d at 907-08 (Linde, J., dissenting) (citing State

v. Sparklin, 2% Or. 85, 672 P.2d 1182 (1983); State v. Mains, 295 Or. 640, 669 P.2d
1112 (1983)).



664 INDIANA LAW REVIEW [Vol. 20:635

assuming, without deciding, that the Oregon Constitution required Mi-

randa-style warnings. 235 Because it found Oregon statutes and case law

provided sufficient protection against coerced statements, the plurality

found "no good reason' ' to overrule preincorporation case law to in-
terpret the state constitution as requiring extrajudicial warnings. 236

Cases such as Elstad will require state courts to evaluate preincor-

poration state law. Many states, including Indiana, have preincorporation
jurisprudence similar to Oregon's concerning the need to require warnings

to protect the privilege against compelled self-incrimination. 237 With the

Supreme Court no longer acting as the conscience of the nation,238 Smith

stands as a reminder that state courts must choose between retreating

to preincorporation case law or employing their state constitutions to

maintain decisional consistency with post-incorporation cases.239 As Jus-
tice Linde observed, State v. Smith also serves to remind us that, "despite

recent progress in many state courts, people in Oregon as elsewhere still
need the protection of federal law for the basic liberties common to the
national and states' bills of rights.

"

24€

VI. Practical Applications of State Bill of Rights Provisions

Now that the importance of asserting client rights under the state
constitution has been demonstrated, and needed concepts and the build-
ing blocks of constructing state constitutional arguments have been set

out, it is also important to understand the practical applications of state

constitutional protections. Most states have a scarcity of decisions under

various constitutional provisions. To frame a persuasive state-based ar-
gument, counsel should become aware of and use decisions by sister

state courts.
241 To illustrate practical use of state constitutional pro-

tections, let us look at how state courts outside Indiana interpret and
apply a small sample of state provisions that have analogs in the Indiana

Constitution. 242 As we have discussed earlier, counsel should always be

aware of whether the state provision he or she intends to rely on has

an analog in the federal Constitution.

2i5
Id. at 681, 725 P.2d 894 (1986) (distinguishing State v. Sparklin, 296 Or. 85, 672

P.2d 1182 (1983); State v. Mains, 295 Or. 640, 669 P. 2d 1112 (1983)).
236

Id. at 701, 725 P.2d at 906.
231

See, e.g., State v. Campbell, 229 Ind. 198, 96 N.E.2d 876 (1951) (holding that

warnings as to right of counsel and right to remain silent must be given by trial court

at time of arraignment); Wilson v. State, 222 Ind. 63, 51 N.E.2d 848 (1943) (same).
238Mosk, supra note 44, at 1087-88.
239

Id.

^Smith, 301 Or. at 722, 725 P.2d at 914. (Linde, J., dissenting).
241 See Carson, supra note 2, at 656-58.

^To identify which states have provisions similar to Indiana, see Constitutions of
the United States: National and State (F. Grad 2d ed. 1982); B. Sachs, Constitutions

of the United States—Fundamental Liberties and Rights, A Fifty State Index (1980);



1987] STATE CONSTITUTIONAL ARGUMENTS 665

A. No Federal Analog: Article 1, Section 13 of
the Indiana Constitution

Suppose your clients are male inmates at the state penitentiary. They

ask you to seek an injunction prohibiting prison officials from assigning

female guards to duties that involve frisking male prisoners or observing

them while they shower or use the toilets. Assuming that a statutory

claim is unavailable, what constitutional interest should you claim was

violated? This exact situation arose in the Oregon case of Sterling v.

Cuppy, 243 where the Oregon Supreme Court reviewed a lower court

decision in favor of the inmates, based on the federal "constitutional

right to privacy." 244 The Oregon Supreme Court found a federal privacy

right to be a difficult premise for decision and turned instead to the

Oregon Constitution. 245

In addition to the state constitution's ban on cruel and unusual

punishment, which has a federal analog, the Oregon court noted that

the Oregon Constitution establishes penal principles in four provisions,

which have no federal analogs. 246 After observing that each of these

provisions came out of Indiana's Constitution,247 the court traced the
history of penal reform in the states during the post-revolutionary dec-

ades. The court focused on article 1, section 13, because it directly

addressed prison practices. 248 Oregon's section 13 is identical to article

1, section 15 of the Indiana Constitution, which provides:

"No person arrested, or confined in jail, shall be treated with
unnecessary rigor."

The Oregon court held that male prisoners had a constitutionally founded

objection to searches by female officers under the unnecessary rigor

clause, which prohibited such searches unless performance by officers

of the opposite sex was compelled by necessity. 249

W. Swindler, Sources & Documents of United States Constitutions (1979). To keep
track of state court interpretations of their own constitutions, Oregon Justice William P.
Carson, Jr. suggests the following: (1) West's Key Number 18 Under the Heading "Con-
stitutional Law;" (2) Developments in the Law—The Interpretations of State Constitutional
Rights, 95 Harv. L. Rev. 1324-1502 (1982); and (3) most importantly, Ron Collins column,
Developments in State Constitutional Law, published regularly in The National Law Journal.
Carson, supra note 2, at 658.

243290 Or. 611, 625 P.2d 123 (1981).
244Sterling v. Cupp, 44 Or. App. 755, 757, 607 P.2d 206, 207 (1980).

"'Sterling, 290 Or. at 616, 625 P.2d at 127-28.
246

Id. at 616, 675 P. 2d at 128 (citing Or. Const, art. 1, §§ 15, 25, 16, 13).
247

Id. at 617, 625 P.2d at 129. Compare Or. Const, art. 1, §§ 15, 25, 16 and 13
with Ind. Const, art. 1, §§ 18 (penal code founded on reformation, not vindictiveness),

30 (effect of conviction), 16 (excessive bails and fines), and 15 (no unnecessary rigor).

^Sterling, 290 Or. at 619, 625 P.2d at 130.

™Id. at 632, 625 P.2d at 136.



666 INDIANA LA W REVIEW [Vol. 20:635

To support its conclusion that the unnecessary rigor prohibition goes
beyond standards contained in other constitutional sections, and in sup-

port of its belief that the unnecessary rigor standard was not confined

to physical abuse, the Oregon court quoted the Indiana Supreme Court's

explanation of the unnecessary rigor prohibition.250 Whether the Indiana

Constitution provides inmates with the protection sought in Sterling

remains to be seen. Nevertheless, Sterling provides counsel with a strong

argument to that effect.

B. Substantive Protection Analogs

1. Equal Protection: Article 1, Sections 1, 12 and 23.—Like most
state constitutions, Indiana's Bill of Rights does not contain an "equal

protection" clause per se. 251 It does, however, contain a guarantee of

equal privileges and immunities,252 a guarantee of a remedy by due course

of law, 253 and a broad guarantee of inalienable rights.254 The wording

of these provisions differs substantially from that of their federal con-

stitutional analogs, yet at one time or another, the Indiana Supreme

Court has interpreted each of these provisions as providing protections

substantively identical to the equal protection clause of the fourteenth

amendment to the United States Constitution.255 Although recognizing

250
Id. at 619-20, 625 P.2d at 120-30 (quoting Bonahoon v. State, 203 Ind. 51, 56,

178 N.E. 570, 571 (1931) (upholding a conviction of police officers for assault and battery

against a prisoner). For other Indiana cases construing the unnecessary rigor prohibition,

see, e.g., Roberts v. State, 159 Ind. App. 456, 307 N.E.2d 501 (1974) (citing the prohibition

to support tort recovery for physical abuse); Matovina v. Hult, 125 Ind. App. 236, 123

N.E.2d 893 (1955) (same).
2SiSee Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev.

1195, 1196 (1985).
252 "The General Assembly shall not grant to any citizen, or class of citizens, privileges

or immunities, which, upon the same terms, shall not equally belong to all citizens."

Ind. Const, art. 1, § 23.
253 "Every man, for injury done him in his person, property, or reputation, shall have

remedy by due course of law." Ind. Const, art. 1, § 12.
254 WE DECLARE, That all men are created equal; that they are endowed by
their CREATOR with certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness; that all power is inherent in the People; and that

all free governments are, and of right ought to be, founded on their authority,

and instituted for their peace, safety, and well being.

Ind. Const, art. 1, § 1.
255

See, e.g., South Bend Pub. Transp. Corp. v. City of South Bend, 428 N.E.2d 217

(Ind. 1981) (art. 1, § 12 contains due process and equal protection guarantees like the

fourteenth amendment); Reilly v. Robertson, 266 Ind. 29, 360 N.E.2d 171, cert, denied,

434 U.S. 825 (1977) (art. 1, § 23 intended to protect rights identical to those in fourteenth

amendment equal protection clause); Department of Ins. v. Schoonover, 225 Ind. 187, 72

N.E.2d 747 (1947) (art. 1, § 1 is similar in meaning and application to fourteenth

amendment).



1987] STATE CONSTITUTIONAL ARGUMENTS 667

federal equal protection decisions as having only persuasive force,256

Indiana courts seem to employ the federal suspect class/fundamental

right/level of scrutiny approach,257 and will usually acquiesce in, rather

than conflict with, federal decisions. 258

A recent Indiana Court of Appeals case illustrates the Indiana ap-
proach. 259 The plaintiff served as a police officer in a small Indiana

community from 1977 until 1982, when she was hired by the South
Bend Police Department. However, a state statute forbade hiring police

officers after the age of thirty-six, with an exception for those who had
previously participated in the state pension plan. Because she was hired

after her thirty-sixth birthday and her prior police employer participated

in a different pension plan system, state statutes required South Bend

to discharge her. The plaintiff invoked the protection of the fourteenth

amendment and article 1, section 23 of the Indiana Constitution, bringing
an equal protection challenge against the state statute. 260 The court

256City of Indianapolis v. Wright, 267 Ind. 471, 476, 371 N.E.2d 1298, 1300 (1978);

Reilly, 266 Ind. at 37, 360 N.E.2d at 175; Schoonover, 225 Ind. at 194, 72 N.E.2d at

750.
251

See, e.g., Reed v. United States, 604 F. Supp. 1253 (N.D. Ind. 1984) (same standard

of review applies under Indiana's art. 1, § 23 and the fourteenth amendment); Reilly,

266 Ind. at 36 n.l, 260 N.E.2d at 175 n.l (court found rational basis test invalidated

use of actuarial tables to determine payments of benefits to retired teachers, making it

unnecessary to determine whether United States Supreme Court employs an "intermediate"

level of scrutiny in sex-based classifications); Sidle v. Majors, 264 Ind. 206, 210, 341

N.E.2d 763, 767 (1976) (if neither a fundamental right nor a suspect class is involved,

standard of review applied by Indiana courts is that the classification not be arbitrary or

unreasonable); Sobieralski v. City of South Bend, 479 N.E.2d 98 (Ind. Ct. App. 1985)
(finding no fundamental right or suspect class, court applied rational basis standard to

uphold age classification for hiring police officers); Scalf v. Berkel, Inc., 448 N.E.2d 1201

(Ind. Ct. App. 1983) (analysis under Indiana case law is applicable to federal equal

protection questions).
258

It is the province of the state courts to interpret and apply the provisions

of their state Constitutions, but where a provision of a state Constitution is

similar in meaning and application to a provision of the federal Constitution,

it is desirable that there should be no conflict between the decisions of the state

courts and the federal courts on the subject involved. While a decision of the

Supreme Court sustaining the validity of a state statute as not violative of any

provision of the Fourteenth Amendment is not absolutely binding on the courts
of the state when the statute is attacked as being in conflict with a provision

of the state Constitution having the same effect, still, the federal decision in

such cases is strongly persuasive authority, and is generally acquiesced in by

the state courts.

Wright, 267 Ind. at 476, 371 N.E.2d at 1300-01 (quoting Sperry & Hutchinson Co. v.
State, 188 Ind. 173, 180, 122 N.E. 584, 587 (1919)). See also Haas v. South Bend

Community School Corp., 259 Ind. 515, 289 N.E.2d 495 (1972) (because rights intended
to be protected under both constitutional provisions were identical, a violation of the

fourteenth amendment necessarily violates art. 1, § 23).
259Sobieralski v. City of South Bend, 479 N.E.2d 98 (Ind. Ct. App. 1985).
260

Id. at 99-100.



668 INDIANA LAW REVIEW [Vol. 20:635

rejected the challenge by citing the equivalency of the state and federal

protections, applying the federal analytic, determining that neither a

fundamental right nor a suspect class was involved, and upholding the

statute under rational basis scrutiny.261

Many states have been willing to break free from the federal approach
and the perceived need to conform their results with federal decisions. 262

State equal protection doctrine preceded by two centuries today's federal

model, which originated relatively recently in what Professor Robert

Williams calls "the Warren Court's brief 'egalitarian revolution.' "263

Several states with provisions similar to Indiana's have begun to rediscover

state constitutional equality guarantees. 264 Under a provision similar to
Indiana's article 1, section 23, California independently applies the federal

analytic, often reaching conclusions different from federal decisions. 265

Washington also has a similar provision, and we relied upon it to reject
the federal intermediate scrutiny for sex classifications, in favor of a

strict scrutiny/suspect class approach. 266 Similarly, Oregon modeled its

equal privileges guarantee on Indiana's provision and relied on it to

develop its own equal protection approach. 267 Under a general equality
provision similar to Indiana's article 1, section 1, New Jersey rejected
the federal two-tiered analysis and employed a balancing test that con-

siders three factors: the nature of the right affected, the extent of the

government's intrusion, and the public need for the restriction. 268

261
Id. at 99-101.

262Williams, supra note 251, at 1197.
263

Id. at 1196. Indiana has long applied a rational basis type scrutiny, but has also

required that differences used to classify must be inherent, substantial, germane to the

subject and purpose of the legislative classification, and must include all within the class.

See, e.g., School of City of Elwood v. State ex rel. Griffin, 203 Ind. 626, 180 N.E. 471

(1932), overruled on other grounds, McQuaid v. State ex rel. Sigler, 211 Ind. 595, 6
N.E.2d 547 (1937); Bolivar Township Bd. of Fin. v. Hawkins, 297 Ind. 171, 191 N.E.2d

158 (1934).
264State constitutions with provisions similar to Ind. Const, art. 1, § 23 include:

Ariz. Const, art. 1, § 13; Cal. Const, art. 1, § 7; Iowa Const, art. 1, § 7; N.D.
Const, art. 1, § 20; Or. Const, art. 1, § 20; S.D. Const, art. 1, § 18; and Wash.

Const, art. 1, § 12.
265

See, e.g., Committee to Defend Reproductive Rights v. Meyers, 29 Cal. 3d 252,

257, 625 P.2d 779, 783, 172 Cal. Rptr. 866, 868 (1981) (taking a different view concerning

abortion financing); Hardy v. Stumpf, 21 Cal. 3d 1, 7, 576 P.2d 1342, 1344, 145 Cal.

Rptr. 176, 178 (1977) (finding sex to be a suspect class).
266Hanson v. Hutf, 83 Wash. 2d 195, 201, 517 P.2d 599, 603 (1973) (decided prior

to passage of state equal rights amendment, art. 31, § 1).
267

See, e.g., Hewitt v. State Accident Ins. Fund Corp., 294 Or. 33, 653 P.2d 970

(1982) (adopted federal suspect class analysis and applied it to sex classifications, but

rejected other aspects of federal analytic).
268Greenberg v. Kimmelman, 99 N.J. 552, 564, 494 A.2d 294, 302 (1985); Right-To-

Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982) (under art. 1, part 1 of state constitution,

court used a balancing approach to assess competing government and individual interest,



1987] STATE CONSTITUTIONAL ARGUMENTS 669

Counsel seeking to frame an innovative and persuasive equal pro-

tection argument in Indiana should focus on the basic assumption un-

derlying the present Indiana approach: that the equal privileges and

immunities provision was intended to provide the same substantive pro-

tection as the fourteenth amendment. However, article 1, section 23

differs in text, origin, and focus from the fourteenth amendment. 269

Inserted into the Indiana Bill of Rights in 1851, the provision probably

reflects the "Jacksonian opposition to favoritism and special treatment

for the powerful." 270 Acting nine years before the Civil War and seventeen
years before the Reconstruction Congress enacted the fourteenth amend-

ment, the Indiana delegates' most likely target was prohibition of special

privileges. Thus, the purpose of Indiana's provision probably differed

substantially from that of the fourteenth amendment, which was con-

cerned with discrimination against disfavored groups, such as former

slaves.
271

In developing its own equal protection approach, the Oregon Supreme
Court reviewed this history and concluded that a historically based

distinction exists between state equal privileges and immunities provisions

and the fourteenth amendment. 272 The former prevent the enlargement

of rights, while the latter forbids curtailment of rights belonging to a

group or individual.273 Of course, the question in Indiana is whether
the Indiana Supreme Court will recognize this distinction and use it to

develop its own equal protection analytic. The answer depends upon
whether, in an appropriate case, counsel makes a well-researched and

persuasive argument. As I have pointed out elsewhere, counsel has the
responsibility for providing a -state supreme court with the opportunity

to "scrutinize older state court pronouncements to determine whether

they constitute actual holdings and, if not, whether they were based on

assumptions that are no longer valid." 274

2. The Right to Bear Arms: Article 1, Section 32.—At first glance,
Indiana's right to bear arms guarantee, article 1, section 32, appears to

and invalidated state statute restricting Medicaid funding); see also Carson v. Maurer,

120 N.H. 925, 931-32, 424 A.2d 825, 830-32 (1980) (under N.H. Const, part 1, arts. 2

& 12, court invalidated state restrictions on medical malpractice claims using a reasonable
classification and fair-and-substantial-relation style of analysis).

269See Williams, supra note 251, at 1208.
270

Id. at 1207. Unlike drafters of earlier state constitutions, the 1851 delegates dem-

onstrated their commitment to equality by outlawing slavery and involuntary servitude.
Ind. Const, art. 1, § 37. See Williams, supra note 242, at 1205 (questioning commitment

to equality of those who allowed slavery to continue).
2n See Linde, Without "Due Process:" Unconstitutional Law in Oregon, 49 Or. L.

Rev. 125, 182-83 (1970).
272Hewitt v. State Accident Ins. Fund Corp., 294 Or. 33, 42, 653 P.2d 970, 975 (1982).
21Hd.
274Utter, supra note 6, at 507.



670 INDIANA LAW REVIEW [Vol. 20:635

provide a guarantee substantively identical to the second amendment
right.

275 However, because article 1, section 32 contains the phrase "for

the defense of themselves and the State," and the second amendment
does not, the state provision appears to provide a broader protection.

A case now wending its way through Indiana's appellate process provides
an excellent illustration of the significance of this textual difference.

In Kellogg v. City of Gary,
216

citizens of Gary, Indiana, sought a

state court injunction and damages from city officials for an alleged

violation of their right to bear arms. In an effort to control the number
of handguns on the streets of Gary, the Mayor of Gary and the Chief
of Police had adopted a policy of no longer distributing handgun permit

applications from the Chief's office.277 The plaintiffs claimed this policy
violated their right to bear arms because, under state statute, citizens

of Gary could not obtain the application forms elsewhere.278 The trial
court and the jury agreed.279 Although the city's appeal of the jury's

damage award raises a number of interesting issues, 280 what concerns us
here are the state and federal right to bear arms arguments.

The facts of Kellogg highlight the narrowness of the second amend-

ment's effect and scope. Because the federal Bill of Rights does not

apply in and of itself to the states, the second amendment may not
offer Gary citizens any protection at all. 281 In Quilici v. Village of
Morton Grove,282 the Seventh Circuit concluded that the second amend-

275Ind. Const, art. 1, § 32 provides that "[t]he people shall have the right to bear

arms; for the defense of themselves and the State." U.S. Const, amend. II provides that

"[a] well regulated militia being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed."
276No. 380-163 (Lake Superior Court, Civ. Div., April 6, 1983).
277Motley v. Kellogg, 409 N.E.2d 1207, 1209 (Ind. Ct. App. 1980).

™Id. at 1208-09.
279

Initially the trial court issued a preliminary injunction in the plaintiffs' favor, which

was affirmed on appeal. Id. After the initial appeal, a jury verdict awarded the plaintiffs

over $200,000 in compensatory damages and $440,000 in punitive damages. Brief for

Appellant at 5-10, City of Gary v. Kellogg, No. 3-983 A291 (Ind. Ct. App. filed Sept.

10, 1983).

280The City's appeal of the damage award has not yet been decided. City of Gary

v. Kellogg, No. 3-983 A291 (Ind. Ct. App. filed Sept. 10, 1983). Issues awaiting resolution

include: whether a 28 U.S.C. § 1983 suit lies for a violation of a state right; whether

any federal right was violated; whether the Indiana Tort Claims Act recognizes an action

of this type; and whether the defendants have absolute or qualified immunity from suit.

Brief for Appellants at 2-5.
281Although the Supreme Court has not recently ruled on the issue, several older

cases cast serious doubt on whether the Court will incorporate the federal right to bear

arms as a fourteenth amendment due process requirement. See Presser v. Illinois, 116

U.S. 252, 265 (1886) (holding that the second amendment applied only to actions by the

federal government); United States v. Cruikshank, 92 U.S. 542, 553 (1875).
282695 F.2d 261 (7th Cir. 1982).



1987] STATE CONSTITUTIONAL ARGUMENTS 671

ment does not affect city ordinances regulating or even prohibiting

handgun ownership. 283 Even if the federal guarantee applies, the Supreme
Court has held that the second amendment embraces only those arms
necessary to maintain a well regulated militia. 284 This conclusion led the

Seventh Circuit to reject a claim similar to that in Kellogg, and to hold

that the second amendment does not guarantee the right to keep and
bear handguns.285

Because Indiana's provision explicitly recognizes an individual right

to bear arms, the Kellogg plaintiffs have a greater chance of prevailing

under the state constitution.286 In State v. Kessler,281 the Oregon Supreme
Court relied on Oregon's right to bear arms, which is identical to
Indiana's,288 and invalidated a statute that made possession of a "slugging
weapon" a criminal offense. 289 After tracing the history and underlying
rationale of Indiana's right to bear arms provision, the Oregon court
concluded that unlike the federal analog, the state provision provided

an individual the right to possess arms for personal defense. 290 In Kellogg,

counsel on both sides rely on Oregon's analysis in Kessler. In their
briefs, counsel for both parties have framed excellent state constitutional

arguments in support of their positions, making good use of each building
block discussed earlier in this Article. 291 How the Indiana courts decide

28iId. at 270.

284United States v. Miller, 307 U.S. 174, 178 (1938.); see Lewis v. United States, 445

U.S. 55 (1980) (citing the Miller holding with approval).
2S5 Quilici, 695 F.2d at 270-71 (holding that a Morton Grove, Illinois, ordinance

prohibiting the possession of handguns did not violate the Illinois or the federal Con-

stitutions).

286Plaintiffs obviously reached the same conclusion because up until this latest appeal,

they explicitly based their right-to-bear arms claim on the Indiana Constitution, rather

than on the second amendment. Amicus Curiae Brief of National Rifle Association &
Indiana Sportmen's Council at 70, City of Gary v. Kellogg (Ind. Ct. App. filed Sept.

10, 1983) (No. 3-983 A291). Nonetheless, plaintiffs argued on appeal that if presented

with the issue, the United States Supreme Court would be "compelled" to incorporate

the second amendment into the fourteenth and hold that the city policy violated federally

guaranteed rights. Id. at 71-80.
287289 Or. 359, 614 P. 2d 94 (1980).
288Oregon's guarantee combines Indiana's art. 1, §§ 32 and 33 into one section,

providing that "[t]he people shall have the right to bear arms for the defense of themselves,

and the State, but the Military shall be kept in strict subordination to the civil power."

Or. Const, art. 1, § 27; Ind. Const, art. 1, §§ 32, 33.
289Kessler, 289 Or. at 369, 614 P.2d at 99-100.
290However, this is not an unrestricted right to carry or use personal weapons in all

circumstances. Id. at 369, 614 P. 2d at 95-99.
291See Amicus Curiae Brief for National Rifle Association & Indiana Sportmen's

Council at 6-29, City of Gary v. Kellogg (Ind. Ct. App. filed Sept. 10, 1983) (No. 3-

983 A291). Appellants at Al-11, City of Gary v. Kellogg (Ind. Ct. App. filed Sept. 10,

1983) (No. 3-983 A291).



672 INDIANA LA W REVIEW [Vol. 20:635

Kellogg may have far reaching effects both inside and outside Indiana. 292

Yet, regardless of which party prevails, Kellogg vividly demonstrates that

state constitutional provisions, even those with substantive federal an-

alogs, offer counsel and courts the opportunity to develop independent

state constitutional law.

C. Textual Analogs: Article 1, Section 11

As noted earlier, framing a persuasive independent state argument
becomes most difficult when the state provision contains text identical
to its federal analog. Due to the great number of criminal law cases
and the similarity between state and federal constitutional protections

for those accused of a crime, criminal law cases have become "the

crucible where the development of a body of state constitutional law is

most heatedly disputed and resisted.'' 293 Perhaps the most public and

most controversial are the state and federal protections against unrea-

sonable search and seizure. Like Indiana's article 1, section 11, many
state search and seizure provisions contain language identical to the

federal fourth amendment. 294 Regardless of whether a state provision

employs identical text, state courts have equal responsibility for inde-

pendently interpreting their state constitutions. Resort to some simple

fact patterns provides an opportunity to compare the approaches adopted

by various state courts.

Suppose the police get an anonymous tip that a certain individual

is involved in drug trafficking. Based on this tip, the police approach

the phone company, which agrees to place a pen register (a device that

records the numbers dialed) on the phone and to turn over the suspect's

long distance call records. As a result of information gleaned from the
phone records, the police arrest the suspected individual, who moves at
the beginning of his trial to suppress the pen register and toll call records.

What result?
Under the federal Constitution the suppression motion would be

denied. In Smith v. Maryland,295 the Supreme Court held that the fourth

amendment does not prohibit installation of pen registers on personal

292Plaintiffs argued that the Indiana right to bear arms is a fundamental right, the

infringement of which is actionable under both the remedy guaranty in Ind. Const, art

1, § 12 and 28 U.S.C. § 1983. See Amicus Curiae Brief of National Rifle Association

& Indiana Sportmen's Council at 36, City of Gary v. Kellogg, No. 3-983 A291 (Ind. Ct.
App. filed Sept. 10, 1983); Brief of Appellees at 29-31, 65, City of Gary v. Kellogg, No.

3-983 A291 (Ind. Ct. App. filed Sept. 10, 1983). If Indiana courts agree, state constitu-

tional rights litigation will increase significantly.

293Abrahamson, supra note 26, at 1144.
294See e.g., Ark. Const, art. II, § 15; Mont. Const, art. Ill, § 7; N.D. Const.

art. I, § 18; W. Va. Const, art. Ill, § 6; Wis. Const, art. Ill, § 11.
295442 U.S. 735 (1979).



1987] STATE CONSTITUTIONAL ARGUMENTS 673

telephone lines without a warrant or court order.296 The Court's rationale

emphasized that telephone users voluntarily convey phone numbers to

the phone company and therefore no longer have any legitimate expec-

tation of privacy in the information. 297 While no case has provided the

right opportunity, the Indiana Supreme Court has indicated that it agrees

with the federal "no expectation of privacy" rationale. 298

One rather doubts that the framers of any of the state constitutions
intended to tie the state guarantee against unreasonable search and seizure

to a federal analytic developed a century later. Even if we accept that
to be the case, the framers would certainly expect a state court to make
its own independent determination of the inherently subjective choice
involved in deciding whether an individual has a legitimate expectation

of privacy which society is willing to recognize. Several state courts have

rejected the Supreme Court's subjective choice, for one of their own
choosing. For example, in People v. Sporleder,299 the Colorado Supreme

Court expressed its conviction that "merely because the telephone sub-

scriber has surrendered some degree of privacy for a limited purpose

to those with whom she is doing business does not render the subscriber
'fair game for unrestrained police scrutiny' by virtue of that fact." 300

The court did not reach its conclusion on the basis of different con-

stitutional text; Colorado's article II, section 7 is "substantially similar"

to the fourth amendment. 301 Rather, after finding the Supreme Court's

reasoning unpersuasive, 302 the Colorado court fulfilled its responsibility

by acting on its own well-reasoned conclusion.
Often, conformity of state and federal decisions in the search and

seizure area results from a perceived need for uniformity in the criminal

enforcement arena. 303 The need for conformity rationale does have some

merit. 304 The Oregon Supreme Court, which has a reputation for in-

296
Id. at 742.

291
Id. at 742-43.

298In re Order for Indiana Bell Tel. Co. to Disclose Records, 274 Ind. 131, 133, 409

N.E.2d 1089, 1090 (1980) (quoting Smith with approval in rejecting Phone Company's
first amendment challenge to a subpeona duces tecum, ordering it to turn over long
distance phone records to the police).

299666 P. 2d 135 (Colo. 1983).
100

Id. at 142 (quoting 1 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 2.7, at 408 (1978)).

w
Id.

™2
Id. at 142-43 n.6. The Colorado court noted the Indiana case on the issue, but

found its reasoning equally unpersuasive. Id.

"'See, e.g., People v. Corr, 682 P.2d 20, 33 (Colo. 1984) (Erickson, C.J., dissenting) cert,

denied, 469 U.S. 855 (1984) (need for state officers to be able to rely on federal inter-
pretations in criminal area); State v. Ringer, 100 Wash. 2d 688, 703, 674 P. 2d 1240, 1250

(1983) (Dimmick, J., dissenting) (independent interpretation in criminal area will confound
the police); Maltz, supra note 107, at 1005; Simon, supra note 57, at 318-19 & n.113.

iMSee Comment, supra note 32, at 518-19 n.72.



674 INDIANA LA W REVIEW [Vol. 20:635

dependent decisionmaking, believes that a uniform set of simple Miranda-

style warnings is required. 305 Nevertheless, the very nature of federalism

means that the scope of individual rights will vary from state to state.

As the New York Court of Appeals recently observed, "[t]he interest
of Federal-State uniformity, however, is simply one consideration to be

balanced against other considerations that may argue for a different
state rule. When weighed against the ability to protect fundamental
constitutional rights, the practical need for uniformity can seldom be a

decisive factor." 306 Comparison of the recent application of federal and

state exclusionary rules illustrates New York's point.
Let us assume that your client has been arrested as a result of

evidence discovered pursuant to a search under warrant. A neutral
magistrate issued the warrant based on a police officer's affidavit that

included the following: for unknown reasons, a police informant con-
cluded your client dealt drugs; a person previously arrested for drug

possession was seen at your client's gas station; after viewing unspecified

suspicious activity at the station, a detective, with an unknown level of
expertise and experience, concludes that your client is dealing drugs. At

trial you move to suppress the evidence. The trial court finds the warrant
issued without probable cause, but refuses to suppress because the police

officer acted in objectively reasonable belief that the warrant was valid.

You appeal. What result?307

Under the fourth amendment, the evidence need not be suppressed.

This fact pattern fits squarely into the Supreme Court's good faith

exception adopted in United States v. Leon.308 The Court's rationale for

creating the good faith exception was that the only purpose of the

exclusionary rule, deterrence of police misconduct, cannot be served by

excluding evidence when officers have a good faith belief in the con-
stitutionality of their actions. 309 Under state law, results will differ.

Arizona, for example, often follows an independent path in construing

the scope of its search and seizure rule. It adopted the good faith

exception, however, because it believed that "one of the few things

worse than a single exclusionary rule is two different exclusionary rules." 310

Here in Indiana, the court of appeals explicitly adopted the good faith

305State v. Sparklin, 296 Or. 85, 672 P.2d 1182, 1184 (1983) (refusing to adopt different

warnings under state constitution).
3<*People v. P.J. Video, Inc., 68 N.Y.2d 296, 501 N.E.2d 556, 508 N.Y.S.2d 907

(1986).
307This identical fact pattern occurred in a recent New Jersey case, in which the court

refused to adopt the good faith exception under the state constitution. State v. Novembrino,

105 N.J. 95, 519 A.2d 820 (1987).
308468 U.S. 897 (1984).
309Id. at 906-08.
310State v. Bolt, 142 Ariz. 260, 268, 689 P.2d 519, 527 (1984).



1987] STATE CONSTITUTIONAL ARGUMENTS 675

exception on the grounds that the Indiana rule has historical ties to its

federal counterpart, the identity of constitutional text, and no compelling

reason existed to reject Leon.3n Although the Indiana Supreme Court

has applied the exception in dicta, it did so in the fourth amendment
context because the defendant did not raise or argue the state consti-

tutional issue.
312 As a result, the good faith issue remains open in Indiana.

Counsel preparing to challenge the exception on state constitutional

grounds will find the approach adopted in Washington and New Jersey
applicable to the Indiana experience. Both Indiana and Washington

adopted state exclusionary rules313 six decades before the Supreme Court

applied the federal rule against the states in Mapp v. Ohio. 314 In State
v. White, 315 the Washington Supreme Court rejected the good faith

concept and the deterrence rationale on which it is based. We found
them inconsistent with the state constitution's broad privacy protection,

with over forty years worth of independent state exclusionary rule jur-

isprudence, and with federal exclusionary rule jurisprudence. 316 While

Indiana's article 1, section 11 text differs substantially from Washington's

privacy protection, Indiana's independent exclusionary rule jurisprudence

reflects the same influences as Washington's317 and provides persuasive

support for counsel's argument. For example, how does one square a
good faith exception with the Indiana Supreme Court's stated belief that

"[i]f the search warrant under which . . . officers searched [a defendant's]

premises is invalid for any reason, the evidence must be excluded." 318

Review of Indiana's exclusionary rule development may lead counsel and
the courts to reach the same conclusion as the Oregon and Washington

Supreme Courts: the state exclusionary rule's essential purpose is to

protect personal constitutional rights by affording a remedy for the

31l Mers v. State, 482 N.E.2d 778, 783 (Ind. Ct. App. 1985).
312Blalock v. State, 483 N.E.2d 439, 444 (Ind. 1985) (court held that affidavit was

sufficient to establish probable cause under fourth amendment, but remarked in dicta that

the Leon good faith exception would render the evidence seized admissible).
3liSee Callender v. State, 193 Ind. 91, 138 N.E.2d 817 (1922); State v. Gibbons, 118

Wash. 171, 203 P. 390 (1922).
3,4367 U.S. 643 (1961).
3I597 Wash. 2d 92, 640 P. 2d 1061 (1982).
il6

Id. at 110-12, 640 P.2d 1071-72.
3,7For an in depth discussion of Washington's independent exclusionary rule, see

Comment, supra note 77. Indiana case law parallels Washington's. Compare the cases
cited in id. with Bumen v. State, 203 Ind. 237, 179 N.E. 716 (1932); Mata v. State, 203
Ind. 291, 179 N.E. 916 (1932); Wallace v. State, 199 Ind. 317, 157 N.E. 657 (1927);

Flum v. State, 193 Ind. 585, 141 N.E. 353 (1923); Callender v. State, 193 Ind. 91, 138
N.E. 817 (1923).

318Bumen v. State, 203 Ind. 237, 239, 179 N.E. 716, 717 (1932). Another interesting
question would be if an officer's good faith provides immunity to a tort action, then

does not the good faith exception deprive the defendant of all possible remedies for the

violation of his rights in derogation of Ind. Const, art. 1, § 12.



676 INDIANA LAW REVIEW [Vol. 20:635

violation of those rights, the protection of which may result in deterrence,
but only as an incidental by-product. 319

As for other compelling reasons to reject the good faith exception,
the New Jersey Supreme Court's decision in State v. Novembrino320

offers counsel a host of persuasive arguments. Even though New Jersey
had no state exclusionary rule prior to Mapp, the New Jersey Supreme
Court relied on the state constitution because twenty-five years of ex-

clusionary rule application imbedded the rule in state constitutional

jurisprudence. 321 In addition, the court concluded that the Leon decision
will undermine police motivation to comply with the constitutional re-

quirement of probable cause. 322 The state interest in preventing the

ultimate reduction in respect for, and compliance with, the probable cause

standard outweighed the perceived need to maintain federal-state uni-

formity with regard to the exclusionary rule. 323

The criminal law offers state courts greater opportunity to decide
both state and federal constitutional issues. While several other state

courts have agreed with Colorado's rejection of the Smith v. Maryland

pen register rule, 324 others adopt the federal approach. 325 State courts

have divided over the appropriateness of the Leon good faith exception. 326

The issue, of course, is not the particular result reached. Rather, state

courts should be judged on whether they have created a principled body

of state law based on their own independent analysis and interpretation.
The importance of counsel's role in the creation of that body of law

cannot be overstated.

319State v. Davis, 295 Or. 227, 235, 666 P.2d 802, 806-07 (1983); State v. White, 97

Wash. 2d 92, 108-12, 640 P.2d 1061, 1070-72 (1982); Comment, supra note 77, at 496-

515.

32O 105 N.J. 95, 519 A.2d 820 (1987).
321 519 A.2d at 856.
322519 A.2d at 854 (citing 1 W. LaFave, Search and Seizure, § 1.2, at 20 (1986

Pocket Part)).
323M
i24

See, e.g., State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Gunwall, 106

Wash. 2d 54, 720 P.2d 808 (1986).
325

See, e.g., Hasteter v. Behan, 196 Mont. 280, 639 P. 2d 510 (1982); People v. Guerra,

116 Misc. 2d 272, 455 N.Y.S.2d 713 (N.Y. Sup. Ct. 1982).
326Examples of courts choosing to follow Leon include: McFarland v. State, 284 Ark.

533, 684 S.W.2d 233 (1985); State v. Sweeney, 701 S.W.2d 420 (Mo. 1985) (dictum);

State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986); McCary v. Commonwealth, 228

Va. 219, 321 S.E.2d 637 (1984). Courts rejecting the Leon approach include: Commonwealth

v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985); People v. Sundling, 153 Mich. App.

277, 395 N.W.2d 306 (1986); People v. Bigelow, 66 N.Y.2d 417, 488 N.E.2d 548, 497
N.Y.S.2d 630 (1985); State v. Grawien, 123 Wis. 2d 428, 367 N.W.2d 816 (Ct. App.

1985). See also Stringer v. State, 491 So. 2d 837 (Miss. 1985) (Robertson, J., concurring).



1987] STATE CONSTITUTIONAL ARGUMENTS 671

VII. Conclusion

The structural integrity of our federal system depends upon state

constitutions and state courts providing an independent guaranty of

individual rights. While the system's state constitutional component was

in danger of being overwhelmed by its national counterpart, the danger

has subsided with the recent rediscovery of the rich heritage and unique

protections offered by our state constitutions. The trend towards de-

velopment of a principled body of state constitutional law needs nurturing

if it is to continue to spread and mature. Each component of a state's

legal system—state bar, law schools, and judiciary—bears a measure of
responsibility for breathing life into a state constitution.

Practitioners, students, and law faculty each have a unique role to

play in the rebirthing process. Due to the low level of state civil rights
litigation, especially here in the Midwest, counsel must assume the role

of catalyst, presenting well-researched and persuasive arguments on behalf

of state constitutional protection for their client's rights. Law students
and faculty must also serve as catalysts by fostering change in the content

of our constitutional law and individual rights courses to include sig-

nificant discussion of the history, scope, and meaning of their state

constitution. Better academic preparation will assist lawyers in meeting

their responsibility to familiarize themselves with the techniques being

developed to frame persuasive state constitutional arguments.

Once presented with a squarely-raised and well-argued state consti-

tutional claim, state judges become the key actors in the rebirthing

process. They must acknowledge their power to independently interpret

and apply their state constitutions. Having done so, state courts will

develop a principled decisionmaking process for interpreting the historical

mandates contained in their state bill of rights. Explanations will then

be offered for why a state court finds the United States Supreme Court's
interpretations of federal analogs persuasive or unconvincing and how
the state courts will treat future variations in federal doctrine. Once a
state court begins to develop an independent jurisprudence, practitioners,

students, and faculty must provide scholarly analysis and commentary,

which should closely scrutinize the court's interpretations of the state

constitution.

As lawyers, students, and faculty take their roles seriously, each can
significantly influence the direction and development of a principled body

of state constitutional jurisprudence. Limitless opportunities exist for

reevaluating the validity of old assumptions and for developing new
analytics to solve the difficult constitutional problems facing state courts.