Discussion Notes 1. The United States Supreme Court denied certiorari from the second opinion of the Georgia Supreme Court. 350 U.S. 950 (1956). 2. The defendant, Aubry Williams, was executed. The case is discussed in Stephen L. Wasby, The Impact of the United States Supreme Court (1970), p. 198, and Walter Murphy, "Lower Court Checks on Supreme Court Power," American Political Science Review 53 (December 1959): 1019-20. 3. How would this doctrine come into play in the area of State constitutional protection of civil liberties in the federal system? See Scott H. Bice, "Anderson and the Adequate State Ground," Southern California Law Review 45 (Summer 1972): 750 and Jerome B. Falk, Jr., "Foreword, The State Constitution: A More Than 'Adequate' Non-federal Ground," California Law Review 61 (March 1973): 273. 4. In Robins v. Pruneyard Shopping Center, 447 U.S. 74 (1980) the United States Supreme Court reviewed a California Supreme Court decision holding that the California Constitution protected persons who solicited signatures on petitions in a shopping center. The United States Supreme Court had earlier ruled the federal constitution did not provide equivalent protection. Lloyd v. Tanner, 407 U.S. 551 (1972); Hudgens v. NLRB, 424 U.S. 507 (1976). The owner of the shopping center, however, contended that the California Constitution, as so construed, constituted a "taking" of his property-a violation of his federal constitutional rights under the Fifth and Fourteenth Amendments. The Court accepted the case on this basis, but ruled against the owner of the shopping center. Why was the California court's decision not insulated from Supreme Court review by the adequate and independent state ground doctrine? If this case was reviewable, why are not all others? 5. Kenneth L. Karst, “Serrano v. Priest: A State Court's Responsibilities and Opportunities in the Development of Federal Constitutional Law," California Law Review 60 (May 1972): 744: Where the challenged state law is itself a part of the state constitution, it is not possible for the decision to be so insulated from Supreme Court review of the federal constitutional issues, for there is no opportunity to rest a decision on alternate state grounds. Michigan v. Long 463 U.S. 1032 (1983) JUSTICE O'CONNOR: II Before reaching the merits, we must consider Long's argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the state constitution in its opinion, but otherwise relied exclusively on federal law.3 Long argues that the Michigan courts have 3On the first occasion, the court merely cited in a footnote both the state and federal constitutions. See 413 Mich., at 471, n. 4, 320 N.W.2d, at 869, n. 4. On the second occasion, at the conclusion of the opinion, the court stated: "We hold, therefore, that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, sec. 11 of the Michigan Constitution." Id., at 472-473, 320 N.W.2d, at 870. provided greater protection from searches and seizures under the state constitution than is afforded under the Fourth Amendment, and the references to the state constitution therefore establish an adequate and independent ground for the decision below. It is, of course, “incumbent upon this Court ...to ascertain for itself... whether the asserted non-federal ground independently and adequately supports the judgment." Abie State Bank v. Bryan, 282 U.S. 765, 773, 51 S.Ct. 252, 255, 75 L.Ed. 690 (1931). Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds, we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue. In some instances, we have taken the strict view that if the ground of decision was at all unclear, we would dismiss the case. See, e.g., Lynch v. New York, 293 U.S. 52, 55 S. Ct. 16, 79 L.Ed. 191 (1934). In other instances, we have vacated, see, e.g., Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 20 (1940), or continued a case, see e.g., Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945), in order to obtain clarification about the nature of a state court decision. See also California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972). In more recent cases, we have ourselves examined state law to determine whether state courts have used federal law to guide their application of state law or to provide the actual basis for the decision that was reached. . . . In Oregon v. Kennedy, 456 U.S. 667, 670-671, 102 S.Ct. 2083, 2086-2087, 72 L.Ed.2d 416 (1982), we rejected an invitation to remand to the state court for clarification even when the decision rested in part on a case from the state court, because we determined that the state case itself rested upon federal grounds. We added that "[e]ven if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits." Id., at 671, 102 S.Ct., at 2087. This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary. The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties. Vacation and continuance for clarification have also been unsatisfactory both because of the delay and decrease in efficiency of judicial administration, see Dixon v. Duffy, 344 U.S. 143, 73 S.Ct. 193, 97 L.Ed. 153 (1952), and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction. . . . Finally, outright dismissal of cases is clearly not a panacea because it cannot be doubted that there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. We have long recognized that dismissal is inappropriate "where there is strong indication... that the federal constitution as judicially construed controlled the decision. below." National Tea Co., supra, 309 U.S., at 556, 60 S.Ct., at 679 (1940). Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision. This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law. "It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action." National Tea Co., supra, 309 U.S., at 557, 60 S.Ct., at 679. Justice STEVENS, dissenting. The jurisprudential questions presented in this case are far more important than the question whether the Michigan police officer's search of respondent's car violated the Fourth Amendment. The case raises profoundly significant questions concerning the relationship between two sovereigns-the State of Michigan and the United States of America. The Supreme Court of the State of Michigan expressly held "that the deputies' search of the vehicle was proscribed by the Fourth Amendment of the United States Constitution and art. 1, sec. 11 of the Michigan Constitution." Pet. for Cert. 19 (emphasis added). The state law ground is clearly adequate to support the judgment, but the question whether it is independent of the Michigan Supreme Court's understanding of federal law is more difficult. Four possible ways of resolving that question present themselves: (1) asking the Michigan Supreme Court directly, (2) attempting to infer from all possible source of state law what the Michigan Supreme Court meant, (3) presuming that adequate state grounds are independent unless it clearly appears otherwise, or (4) presuming that adequate state grounds are not independent unless it clearly appears otherwise. This Court has, on different occasions, employed each of the first three approaches; never until today has it even hinted at the fourth. In order to "achieve the consistency that is necessary," the Court today undertakes a reexamination of all the possibilities. Ante, at It rejects the first approach as inefficient and unduly burdensome for state courts, and rejects the second approach as an inappropriate expenditure of our resources. Ibid. Although I find both of those decisions defensible in themselves, I cannot accept the Court's decision to choose the fourth approach over the third-to presume that adequate state grounds are intended to be dependent on federal law unless the record plainly shows otherwise. I must therefore dissent. If we reject the intermediate approaches, we are left with a choice between two presumptions: one in favor of our taking jurisdiction, and one against it. Historically, the latter presumption has always prevailed.... The Court today points out that in several cases we have weakened the traditional presumption by using the other two intermediate approaches identified above. Since those two approaches are now to be rejected, however, I would think that stare decisis would call for a return to historical principles. Instead, the Court seems to conclude that because some precedents are to be rejected, we must overrule them all. Even if I agreed with the Court that we are free to consider as a fresh proposition whether we may take presumptive jurisdiction over the decisions of sovereign states, I could not agree that an expansive attitude makes good sense. It appears to be common ground that any rule we adopt should show "respect for state courts, and [a] desire to avoid advisory opinions." Ante, at And I am confident that all members of this Court agree that there is a vital interest in the sound management of scarce federal judicial resources. All of those policies counsel against that exercise of federal jurisdiction. They are fortified by my belief that a policy of judicial restraint-one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene-enables this Court to make its most effective contribution to our federal system of government. The nature of the case before us hardly compels a departure from tradition. These are not cases in which an American citizen has been deprived of a right secured by the United States Constitution or a federal statute. Rather, they are cases in which a state court has upheld a citizen's assertion of a right, finding the citizen to be protected under both federal and state law. The complaining party is an officer of the state itself, who asks us to rule that the state court interpreted federal rights too broadly and "overprotected" the citizen. Such cases should not be of inherent concern to this Court. The reason may be illuminated by assuming that the events underlying this case had arisen in another country, perhaps the Republic of Finland. If the Finnish police had arrested a Finnish citizen for possession of marijuana, and the Finnish courts had turned him loose, no American would have standing to object. If instead they had arrested an American citizen and acquitted him, we might have been concerned about the arrest but we surely could not have complained about the acquittal, even if the Finnish Court had based its decision on its understanding of the United States Constitution. That would be true even if we had a treaty with Finland requiring it to respect the rights of American citizens under the United States Constitution. We would only be motivated to intervene if an American citizen were unfairly arrested, tried, and convicted by the foreign tribunal. In this case the State of Michigan has arrested one of its citizens and the Michigan Supreme Court has decided to turn him loose. The respondent is a United States citizen as well as a Michigan citizen, but since there is no claim that he has been mistreated by the State of Michigan, the final outcome of the state processes offended no federal interest whatever. Michigan simply provided greater protection to one of its citizens than some other State might provide or, indeed, than this Court might require throughout the country. I believe that in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard. . . . Until recently we had virtually no interest in cases of this type.... Some time during the past decade... our priorities shifted. The result is a docket swollen with requests by states to reverse judgments that their courts have rendered in favor of their citizens. I am confident that a future Court will recognize the error of this allocation of resources. When that day comes, I think it likely that the Court will also reconsider the propriety of today's expansion of our jurisdiction. Discussion Notes 1. Which approach, Justice O'Connor's or Justice Stevens', is more likely to encourage state courts to develop an independent state constitutional jurisprudence? See generally Stewart G. Pollock, "Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts," Texas Law Review 63 (March/April 1985): 977. 2. Regarding the recent trend in the United States Supreme Court's practices in accepting cases where state courts have ruled in favor of their citizens, see Robert C. Welsh, "Whose Federalism-The Burger Court's Treatment of State State of Oregon v. Kennedy 295 Or. 260, 666 P.2d 1316 (1983) LINDE, Justice. Convicted of theft, defendant obtained a reversal in the Court of Appeals because his trial followed a mistrial brought on by what the court described as "flagrant overreaching" by the prosecutor. 49 Or.App. 415, 418, 619 P.2d 948 (1980). After this court denied review, 290 Or. 551 (1981), the state obtained a writ of certiorari from the Supreme Court of the United States. The Supreme Court reversed the decision insofar as it rested on prior double jeopardy and due process clauses [sic] of the United States Constitution and remanded the case to the Court of Appeals. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). On remand, the Court of Appeals reconsidered the nature of the Prosecutor's misconduct and its consequences under Oregon law and this time affirmed the conviction. 61 Or.App. 469, 657 P.2d 717 (1983). We allowed review to examine the court's assumption that Oregon law concerning retrials after prosecutor-induced mistrials, a question that first reached this court in State v. Rathbun, 287 Or. 421, 600 P.2d 392 (1979), is identical to the view of the federal double jeopardy clause expressed by the majority of the Supreme Court in this case. We conclude that Oregon law is not identical but nevertheless leads to an affirmance of this conviction. Before reaching the merits, we take up the procedural history that brings the issue before this court. I. Procedure The history of this case demonstrates the practical importance of the rule, often repeated in recent decisions, that all questions of state law be considered and disposed of before reaching a claim that this state's law falls short of a standard imposed by the federal constitution on all states.... Like most states, Civil Liberties Judgments," Hastings Constitutional Law Quarterly, 10 (Summer 1983): 819. 3. What about a federal court decision based on a state constitutional law ground? Would it be insulated from United States Supreme Court review? See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 291-95 (1982); Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir. 1985). 4. Should a federal court abstain from deciding federal law claims where there are possible independent state law grounds for decision? See Fields v. Rockdale County Georgia, 785 F.2d 1558, 1561 (11th Cir. 1986). Oregon throughout its history has had a constitutional ban against placing anyone twice in jeopardy for the same offense. Or. Const. art. I, sec. 12. That guarantee has in the past been given independent interpretation with results that might not correspond to those in other states or in federal law.... In its initial decision reversing this conviction, the Court of Appeals cited no statutory or constitutional source at all for that result. It quoted from two opinions of the United States Supreme Court to summarize what it called a "general rule" about the permissibility of reprosecution after mistrials. The court then cited its own decision in State v. Rathbun, 37 Or.App. 259, 586 P.2d 1136 (1978), noting only that it had been reversed "on other grounds" by this court. It might not be apparent to a reader that this court in fact had reversed the Court of Appeals on the very point at issue under Oregon's double jeopardy clause. We denied the state's petition for review of the decision of the Court of Appeals. That, of course, implied nothing as to its correctness. 1000 Friends of Oregon v. Board of County Commissioners, 284 Or. 41, 44, 584 P.2d 1371 (1978). In response to the state's petition to the United States Supreme Court for a writ of certiorari, defendant pointed out that, given the appellate court's cryptic silence on the point, its decision might rest on the Oregon Constitution's double jeopardy clause that was applied by this court in Rathbun. The Supreme Court nevertheless granted the petition, carrying forward its current campaign not to let state or lower federal courts draw more protective constraints from the federal constitution's guarantees in matters of criminal law than the Court itself is prepared to recognize. The possibility that the result might rest on an independent state ground was pursued by the justices both on oral argument and in the opinions. The majority took note of the studied citation by the Court of Appeals of its own opinion in Rathbun, which purported to apply federal law, despite this court's reversal of that decision under Oregon law. Four justices, however, thought the role of state law in this case more complex, as expressed by Justice Stevens: Although I am willing to accept the Court's reading of the Oregon Court of Appeals' opinion as having been based on federal law, I find the question somewhat more difficult than does the Court because the Oregon Supreme Court declined to review the case without explaining its reasons. Since the Oregon Supreme Court seems to have interpreted the state constitutional protection against double jeopardy to be broader than the federal provision, see State v. Rathbun, 287 Or. 421, 600 P2d 392 (1979), it is entirely possible that that court's refusal to review the Court of Appeals' decision was predicated on its view that the decision was sound as a matter of state law regardless of whether it was compelled by federal precedents. 456 U.S. at 681 n. 1, 102 S.Ct. at 2092 n. 1 (Stevens, J., concurring, joined by Brennan, Marshall, and Blackmun, JJ.). This quotation makes clear that a practice of deciding federal claims without attention to possibly decisive state issues can create an untenable position for this state's system of discretionary Supreme Court review. It can also waste a good deal of time and effort of several courts and counsel and needlessly spur pronouncements by the United States Supreme Court on constitutional issues of national importance in a case to whose decision these may be irrelevant. In effect, when this court might reach the same result under the Oregon law that a lower court reaches by citing federal precedents, we would have to allow review at Discussion Notes 1. Note the concluding sentence in this excerpt from Justice Linde's opinion, and compare it with the "plain statement" requirement of Michigan v. Long. Justice Linde's opinion was handed down on the same day as Justice O'Connor's opinion. 2. With respect to Justice Linde's point that state law claims should be decided prior to federal law claims, see the next section of these materials. 3. Could a state "harmless error" rule provide an adequate and independent state ground? In Cooper v. California, 386 U.S. 58, 62 (1967) the Court held that the California Supreme Court had incorrectly applied a Fourth Amendment precedent and that federal law did not require suppression of the disputed evidence. Justice Black, however, observed: Our holding, of course, does not af the instance of a losing party objecting only to the federal holding, while the successful party who might prefer a decision on state grounds has no reason to petition us for review. Surely a practice that requires a winning party to seek review solely in order to shift a favorable judgment from federal to state grounds is wholly unreasonable, apart from its logical flaws. In the present case, we in fact do not reach the same result as the Court of Appeals' did in its initial decision. Had that decision given its attention first to the state law precedent of Rathbun and reversed defendant's conviction under article I, section 12, we might have allowed review in order to compare this case with Rathbun. If so, we might not only have decided that state claim against the defendant, as we do today, but also his federal claim, thereby relieving the Supreme Court of concern about a reading of the fifth amendment more expansive than its own. As it is, we reach the issue of Oregon law two and one-half years and hundreds of pages of briefs after it might have been decided in the Oregon courts. ...This court like others has high respect for the opinion of the Supreme Court, particularly when they provide insight into the origins of provisions common to the state and federal bills of rights rather than only a contemporary "balance" of pragmatic considerations about which reasonable people may differ over time and among the several states. It is therefore to be expected that counsel and courts often will refer to federal decisions, or to commentary based on such decisions, even in debating an undecided issue under state law. Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines. fect the State's power to impose higher For a discussion of California's constitutional harmless error rule in the field left to it after Cooper, see Note, "The California Constitution and the California Supreme Court in Conflict Over the Harmless Error Rule," Hastings Law Journal 32 (January 1981): 687. |