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among which are included the state Superintendent of Public Instruction. We believe that this background amply equips us to undertake the searching judicial scrutiny of our

Discussion Notes

1. See also, Robinson v. Cahill, 62 N.J. 473, 490, 303 A.2d 273, 282 (1973) as to the lack of federalism concerns at the state level.

2. Justice Brennan referred to the concept of "federalism" in his article on state constitutional rights. What does "federalism" mean? What role should it play in the resolution of the issues in these cases?

3. Justice Brennan also contended many "door closing decisions" had been rendered by the Supreme court in the name of federalism. On this aspect of federalism, see Louise Weinberg, "The New Judicial Federalism," Stanford Law Review 29 (July 1977): 1191.

state's public school financing system which is required of us under our state constitutional provisions guaranteeing equal protection of the laws.

4. On federalism generally, see "Symposium on Federalism," Yale Law Journal 86 (May 1977): 1018; "Symposium-Aspects of Federalism," Suffolk University Law Review 12 (Fall 1978): 1087; "Symposium, State Courts and Federalism in the 1980's," William & Mary Law Review 22 (Summer 1981): 599.

5. Would there be other reasons such as lack of federalism concerns, that United States Supreme Court decisions holding against asserted federal constitutional rights ought not to be accorded much weight? See Lawrence Sager," Fair Measure: The Legal Status of Underenforced Constitutional Norms," Harvard Law Review, 91 (April 1978): 1218-20. See also infra, pp. 116-19.

Hansen v. Owens

619 P.2d 315 (Utah 1980)

CROCKETT, Chief Justice:

In original proceedings, the petitioner requests this Court to enjoin enforcement of an order of the defendant, Circuit Judge of Washington County, which directs petitioner to furnish examples of his handwriting for use in connection with a charge of forgery against him.

This petition focuses attention upon the meaning and effect to be given to the protective provisions of our state and federal constitutions relating to being required to incriminate one's self.' It is to be noted that the Fifth Amendment to the United States Constitution provides that "[No person] shall be compelled in any criminal case to be a witness against himself,..." Whereas, our state provision provides that "The accused shall not be compelled to give evidence against himself."

On defendant's behalf, it is urged that the two constitutional provisions, even though not identical in wording, are essentially the same in meaning. From that premise, support is garnered from holdings of the United States Supreme Court that the privilege against self-incrimination does not protect an accused from being the source of real or physical

1U.S. Const., Amend. V; Utah Const., Article I, sec. 12.

evidence against him.2 It is urged that such rulings are applicable in the instant case.

We take cognizance of the fact that federal courts have generally held that the privilege applies only to evidence of a "testimonial" nature; and we do not doubt their soundness as applied to their particular facts. However, it seems significant that the framers of our Utah Constitution, in Section 12 of Article I, stated that "The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife...." (All emphasis herein is added.)

In legal formulations, it is to be assumed that the words used were chosen advisedly. This is particularly true in such foundational documents as constitutions, which it can be assumed are framed with greater than usual care and deliberation. Consequently, when terms of clearly different meanings are used within the same framework, each should be given its own separate, commonly understood meaning. Judged in that light, it seems reasonable to assume that the phrase "to give evidence against himself," as used in our constitution, was intended to mean something different and broader than the phrase "to be a witness against himself" as used in the federal constitu

2Schmerber v. Califomia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and U.S. v. Dionisio, 410 U.S. 1, 93 S.Ct. 764; 35 L.Ed.2d 67 (1973).

tion. Such a distinction has heretofore been recognized by this Court.4

4See Carter v. Cummings-Neilson Co., 34 Utah 315, 97 P. 334 (1908) wherein the court so stated and quoted the language of Chief Justice Bartch in the case of Crooks v. Harmon, 29 Utah 304, 81 P. 95 (1905) wherein he stated:

The word "testimony" is a restricted, limited term, consisting only of the statements of witnesses, while the word "evidence" is a comprehensive term, embracing not only testimony, or the statements of witnesses, but also documents, written instruments, admissions of parties, and whatever may be submitted to a court or a jury to elucidate an issue or prove a case.

Consistent with this is Rule 1(1), Utah Rules of Evidence which states that:

"Evidence," as used in these rules, includes the means, oral, documentary or physical, used as proof on issues of fact.

Discussion Notes

1. Using a variety of additional techniques of interpreting the state constitution the Utah Supreme Court significantly restricted its Hansen v. Owens holding in American Fork City v. Cosgrove,

Beirkamp v. Rogers 293 N.W. 2d 577 (Iowa 1980)

REES, Justice.

The sole issue presented by this appeal is whether the Iowa guest statute, section 321.494, The Code,' is violative of Article I, section 6, of the Iowa Constitution. We conclude that the statute is constitutionally offensive and affirm the ruling of the trial court.

I. Before reaching the merits of this appeal we once again wish to explain why our review is limited to the Iowa constitutional ground. As we noted in Beitz v. Horak, 271 N.W. 2d 755, 758-59 (Iowa 1978), in 1929 the United States Supreme Court held that Connecticut's guest statute did not violate the equal

1"The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of an alcoholic beverage, a narcotic, hypnotic or other drug, or any combination of such substances, or because of the reckless operation by him of such motor vehicle."

The significant aspect of this case is made evident by comparison with our case of State v. Van Dam, cited by the defendant. There it was held not to be error to introduce evidence relating to hair samples obtained from the accused. There was not involved any compulsion or affirmative act by him. This situation is quite different. Here, the accused has made timely objection to being compelled to give evidence, which he asserts may be incriminating. In reference to the cases relied upon by the defendant, we note that this case goes beyond making observations or comparisons of an accused's appearance, or of his body, or its parts or substances obtained therefrom. We do not mean this decision to be understood as going beyond its particular facts. The order directs the accused to do the affirmative act of writing. Considered under our Utah constitutional provision, we see no controlling distinctions between making him respond to questions for possible use against him relating to an alleged crime, and making him write for that purpose.

701 P.2d 1069 (Utah 1985). The case is reproduced in Chapter 5, Section D, page 200.

2. How important is the difference in language between the federal and state constitutions, discussed in this case?

protection clause of the Fourteenth Amendment. Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929).

In Silver the court found a rational distinction between gratuitous passengers in automobiles and those in other means of conveyance. Id., 280 U.S. at 123, 50 S. Ct. at 59, 74 L.Ed. at 225. Several courts, in evaluating the federal constitutional claim, have sought to distinguish Silver by considering a different classification, that separating paying and nonpaying automobile guests. E.g., Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973); McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975); Ramey v. Ramey, S.C., 258 S.E.2d 883 (1979).

In a series of recent appeals from court decisions upholding the guest statute the Supreme Court has chosen to dismiss for want of a substantial federal question. . . . As we acknowledged in Beitz, 271 N.W.2d at 758, these dismissals constitute adjudications on the merits and are binding on both state and federal courts. See Hicks v. Miranda, 422 U.S. 332,343-45, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223, 235-36 (1975). While the Silver opinion did not pass on the paying-nonpaying passenger distinction, that classification was raised in the aforementioned appeals which were dismissed for want of a substantial federal question. Thus these cursory dismissals effectively foreclose our evaluation of any of the distinctions or classifications challenged in those cases on federal constitutional grounds. See Sidle v. Majors,

536 F.2d 1156 (7th Cir.), cert. denied 429 U.S. 945, 97 S.Ct. 366, 50 L.Ed.2d 316 (1976). Section 321.494 does not violate the equal protection clause of the Fourteenth Amendment. Beitz v. Horak, 271 N.W.2d at 759; Keasling v. Thompson, 217 N.W.2d 687, 692 (Iowa 1974).

II. The result reached by the United States Supreme Court in construing the federal constitution is persuasive, but not binding upon this court in construing analogous provisions in our state constitution. See Chicago Title Insurance Co. v. Huff, 256 N.W.2d 17, 23 (Iowa 1977); Davenport Water Co. v. Iowa State Commerce Commission, 190 N.W.2d 583, 593 (Iowa 1971). We acknowledged the possibility of varying interpretations or conclusions in Beitz v. Horak, 271 N.W.2d at 759, while discussing the guest statute. The constitutionality of the guest statute under the Iowa constitution was not before us at that time. The issue is properly raised in the case at bar.

As neither a suspect classification nor a fundamental right is involved, a traditional equal protection analysis is appropriate. Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980); Hawkins v. Preisser, 264 N.W.2d 726, 729 (Iowa 1978). The plaintiff has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained.. .. This standard has been articulated by the United States Supreme Court in McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, 228 (1964): "Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of a class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose...."

The source of this standard in the Iowa Constitution is Article I, section 6, which provides: "All laws of a general nature shall have a uniform operation; 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." We have long found a standard similar to

Discussion Notes

1. Is Article I, section 6 of the Iowa Constitution really similar to the equal protection clause of the Fourteenth Amendment? See generally, Robert F. Williams, "Equality Guarantees in State Constitutional Law," Texas Law Review, 63 (March/April 1985): 1195.

2. How does the Iowa Supreme Court's "equal protection" analysis compare with that applied in Serrano v. Priest?

3. What should be the role of stare decisis in

that of McLaughlin to flow from Article I, section 6.... In light of this standard we evaluate the classifications made in section 321.494.

Our review of the trial court's ruling is de novo as it involves the resolution of a constitutional issue. State v. Matlock, 289 N.W.2d 625, 627 (Iowa 1980). The burden of proof remains on the party challenging the constitutionality of the statute.

Two separate distinctions drawn by the statute are challenged by Beirkamp. She challenges the rational basis of distinguishing between paying and nonpaying guests in automobiles as well as that of establishing a different standard of care for guests in the automobile context as opposed to other guests. In response the defendant relies on the decision of this court in Keasling v. Thompson, 217 N.W.2d 687, 692 (1974), in which we placed great reliance on Silver v. Silver and the apparently pervasive existence of guest statutes in other states in finding section 321.494 constitutional on both federal and state grounds. We are being asked to reconsider our five-four decision in Keasling insofar as that holding rests on Iowa constitutional grounds.

There has been a recent trend among state courts considering the validity of their guest statutes under an equal protection analysis to find the statutes without a rational basis, concluding that whatever rational basis they once possessed no longer exists.... At the same time several states have sustained the constitutionality of their guest statutes in the face of equal protection challenges. ...

V. We hold that the classifications contained in the guest statute do not rationally further the legitimate state purpose of preventing collusive recoveries from insurance companies. We further hold that the classification drawn in section 321.494 bear no rational relationship to any conceivable legitimate state purpose and is therefore violative of Article I, section 6, of the Iowa Constitution. Whatever feature or features which may once have distinguished automobile guests from guests in other conveyances or other contexts no longer exist. Our holding in Keasling v. Thompson is therefore overruled and the ruling of the trial court in this case is affirmed.

state constitutional law? On stare decisis, see Earl M. Maltz, "Some Thoughts on the Death of Stare Decisis in Constitutional Law," Wisconsin Law Review, 1980 (No. 3 1980): 467.

4. The Iowa Supreme Court indicates that whatever justification for the automobile guest statute once existed was no longer valid. Under this type of judicial review, can a rational basis for legislation be eroded by the passage of time? See Miller v. Boone County Hospital, 394 N.W.2d 776, 779-80 (Iowa 1986).

mented because they require additional security measures which would increase costs.

Cooper v. Morin

399 N.E.2d 1188 (N.Y. 1979)

The facts so far as necessary to determination of the issues remaining before us are not in dispute. The named plaintiffs are three pretrial detainees and three convicted and sentenced inmates of the Monroe County jail, and they represent as a class all women inmates since February, 1974. The jail occupies 55% of the space in the Monroe County Public Building, which is a modern facility opened in 1971. It was originally intended that female inmates would occupy one half of the fourth floor of the new facility. However, subsequent events required the closing of the nearby county penitentiary, and in the fall of 1971, sentenced male prisoners transferred from that jail to the new facility occupied the fourth floor space.

Lacking room for the female inmates, the county contracted with the City of Rochester to convert and use existing "lockup facilities" on the third floor of the abutting city public safety building. Although the new female detention area did not meet the requirements of the regulations of the State Commission of Correction then in effect, the commission approved the use of the facility on a temporary basis. At the time of trial in 1976 that "temporary" operation had continued for over five years.

Of the women lodged in that facility, more than 90% were pretrial detainees; the rest were serving sentences upon conviction. Currently the women are limited to noncontact visits from family and friends. Visiting hours are between 1: 00 and 4: 30 p.m. on Tuesday, Thursday and Sunday. While it appears from the stipulation of the parties that visits can be limited to 10 minutes, the trial court found that women inmates are permitted 15-minute visits and they frequently ran longer. The facility's three visiting booths separate the inmates from their visitors by a floor-to-ceiling steel barrier, in which there is a window about two feet by seven inches in size, through which the inmate and her visitor can see each other. Conversation can take place only by use of telephones. Thus, there is no physical contact whatsoever between the inmate and her loved ones or friends.

Direct contact visits are permitted at the Monroe County jail between inmates and attorneys, clergymen, parole and probation officers, drug counselors and persons involved in community projects at the jail. The evidence established also that in another correctional facility, run by the State, convicted female felons are permitted longer visits in an informal setting which allows for direct contact between the inmate and her family or friends. Indeed, the Monroe County prison officials agree that contact visits would be desirable, but state that they have not been imple

The Appellate Division, in a decision written some nine months prior to the decision of the United States Supreme Court in Bell v. Wolfish (441 U.S. 520, 99 S.Ct. 1861, 60 LEd.2d 447), held that the due process clause of the Fourteenth Amendment of the Federal Constitution requires that a system of contact visitation be instituted, but that the manner and duration of the visits is a matter wholly within the discretion of the prison officials, and as such, beyond the reach of judicial supervision....

For the reasons hereafter set forth we conclude: (1) that (A) contact visitation is not required by either the due process or the equal protection clause of the Fourteenth Amendment to the Federal Constitution but (B) contact visitation of reasonable duration is required by the due process clause of the State Constitution;

I A

In Wolfish v. Levi, 573 F.2d 118 the Court of Appeals for the Second Circuit held that the due process clause of the Fifth Amendment requires that pretrial detainees in Federal custody be allowed contact visitation, and proscribes certain other practices then in force at the Metropolitan Correctional Center in New York. Though the matter was appealed to the Supreme Court, the ruling as to contact visitation was not appealed, and that court noted (Bell v. Wolfish, 441 U.S. 520, 559, n. 40, 99 S.Ct. 1861, 1885, n. 40, 60 L.Ed.2d 447, supra), that it expressed no opinion on that phase of the matter. Notwithstanding that it did not pass directly on contact visitation, it would seem from its analysis of the other issues in the case that its ruling will be that contact visitation between a pretrial detainee and his or her family or friends is not constitutionally required. In Bell the court considered challenges to: (1) the practice of double-bunking, (2) the "publisher only" rule, (3) body-cavity searches after contact visits, (4) the prohibition against receipt of packages, and (5) the practice of surprise searches of inmates' cells. The Court of Appeals for the Second Circuit had held that since pretrial detainees had not been convicted, and therefore were presumed to be innocent, due process required that they be subjected only to those restrictions and privations which inhere in their confinement itself or which are justified by compelling necessities of jail administration.

Rejecting what it considered an intrusive standard of review, the Supreme Court focused instead on the various constitutional limitations on punishment in the criminal judicial process. The court

agreed that the Eighth Amendment proscription against cruel and unusual punishment had no application to pretrial detainees, for they had yet to be convicted. It recognized that the due process clause of the Fifth Amendment proscribed punishment of pretrial detainees, but held that not all prison practices which go beyond the "compelling necessities of jail administration" constitute "punishment."

It, thus, appears that neither as a matter of Federal due process nor Federal equal protection are plaintiffs entitled to an order requiring the allowance of contact visits.

B

That conclusion does not end the inquiry, however, for plaintiffs claim constitutional protection under the State as well as the Federal Constitution. While neither the Trial Judge nor the Appellate Division considered State constitutional claims, the complaint clearly presents them and they may, therefore, be reached by us.

We have not hesitated when we concluded that the Federal Constitution as interpreted by the Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that document defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rulemaking authority. . . .

Section 6 of article I of our Constitution mandates that "No person shall be deprived of life, liberty or property without due process of law." As we have noted in Wilkinson v. Skinner, 34 N.Y.2d 53, 58, 356 N.Y.S.2d 15, 20, 21, 312 N.E.2d 158, 161, "The requirements of due process are not static; they vary with the elements of the ambience in which they arise." While we are in agreement with the Supreme Court's holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447, supra, that due process forbids the punishment of pretrial detainees because punishment can only by imposed after conviction, we cannot agree that the validity of the regimen imposed upon such persons during detention turns on no more than whether a regulation has a legitimate purpose other than punishment and is not excessive in relation to that purpose. So one-sided a concept of due process we regard as unacceptable. In our view what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.

On the detainee's side of the balance is the fundamental right to marriage and family life on the one hand and to bear and rear children on the other, recognized in our decisions. . . . The detrimental effect upon spousal and parent-child relationships of the denial of contact, if not obvious, is attested to not only by expert testimony... and numerous books and articles... but also by the prison officials of Monroe County who candidly admitted that contact visits would be beneficial and a more humane method of detention, which they have not provided simply because of budgetary limitations.

On the State's side of the equation deterrence, retribution and rehabilitation play no part since we speak, by hypothesis, of persons as yet untried. The only legitimate purpose for pretrial detention then is to assure the presence of the detainee for trial. To this end the State may adopt security measures intended to frustrate possible attempts at escape or the passage of contraband from a visitor to a detainee, and in the adoption of such measures the expertise of professional administrators is entitled to respectful consideration. But when so fundamental a right as the maintenance by pretrial detainees of relationships with family and friends is involved the measure adopted must be both reasonable and necessary to the maintenance of security.

The imposition upon the detainee's rights of the system of noncontact visitation outlined above when contact visitation is recognized by the authorities as the more desirable is clearly unreasonable unless sustained by a strong showing of necessity. Here we are told only that contact visitation would require additional expenditure for rearrangement of the facility and for added personnel to conduct required search procedures. But as we have previously noted "to exalt economic considerations over the rights of our citizens is nothing more than abdication of this court's constitutional responsibility" (Sharrock v. Dell BuickCadillac, 45 N.Y.2d 152, 167, n. 7, 408 N.Y. S.2d 39, 49, n. 7, 379 N.E.2d 1169, 1178, n. 7, supra....

We agree, therefore, as a matter of State constitutional law, with the Appellate Division's requirement that a program of contact visitation for female detainees of the Monroe County jail must be instituted within a reasonable period of time. We disagree with its disposition only with respect to the length of the visitation period allowed. The stipulation of the parties tells us that visitation may be limited to 10 minutes, but the Trial Judge's findings indicated that 15 minutes is usual and that visitation often runs longer. Limitations of space and time and the requirements of daily routine must, of course, be met, but so woefully short a period as 10 minutes will hardly be meaningful in most situations. The program as devised should, therefore, provide for visitation during a sufficient number of hours per week to allow for visitation of reasonable duration for each

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