Mining Unexplored Riches:
Litigating State Constitutional Claims

State constitutional claims have since the 1970s afforded counsel an alternative means to seek protection for rights not found or not as well protected under the United States Constitution and Bill of Rights.  Minnesota’s Supreme Court has followed its own path in this respect, and counsel can benefit from becoming familiar with its state constitutional jurisprudence.

By David A. Schultz

It goes without saying that the statement, “Things you didn’t learn in law school but should have,” refers to practical tasks or concepts commonly used in everyday law practice but which are not really taught in school.  These may include what legal forms to use, where to file them, or how to structure an argument for a trial-level and not an appeals court.  Among the things not generally learned in law school is state law — especially state constitutional law — and how it may be useful either to supplement or supplant the federal claims being raised.

While constitutional law is standard fare of a law school education, few teach or offer state constitutional law.  Most students probably graduate law school and practice without ever having read their own state’s constitution.  More likely, they have not even thought about their state constitution and bill of rights!  If cited at all in briefs, state constitutions generally receive perfunctory treatment.  Few attorneys are prepared to argue state constitutional claims, and most assume that such claims are no different from their federal cognates.

Yet attorneys who ignore the unique richness of state constitutional law do so at their and their clients’ peril.  Increasingly, states such as Minnesota have drawn more heavily upon their own constitutions to reach claims and arguments that often differ from and provide for more protections than offered under the United States Constitution.

The New Judicial Federalism

Until the 1970s, the federal courts, especially the Supreme Court under Chief Justice Earl Warren, were the locus of action on issues such as reapportionment, voting rights, criminal due process, and a host of other issues.1  But beginning in the 1970s state courts became new and active players in protecting individual rights and settling policy disputes.  In part because he saw the Burger Supreme Court as retreating from the liberal activism of the Earl Warren era, Justice Brennan in 1977 urged state courts to use their own constitutions and authority to protect individual rights.2 What has come to be called the “new judicial federalism” developed from the seed Justice Brennan planted.3

Using their own state constitutions, state courts have decided cases differently from the federal courts, often providing more constitutional protection for rights than had been found at the federal level.  As social issues such as gay rights or same-sex marriage are being litigated at the state level, state constitutions and courts have become important players, drawing significant  attention in the cultural wars.4  Political parties also have come to recognize state courts as important players in addressing reapportionment of state legislatures and congressional seats.5  Finally, as Justice Stevens pointed out in the recently decided in Kelo v. City of New London, states may impose greater constitutional restrictions on eminent domain than offered under the 5th Amendment, with Michigan having already done that in County of Wayne v. Hathcock.6

Overall, state constitutions matter, but how do they compare to the United States Constitution?

Comparing Constitutions

State constitutions are different from one another and from the United States Constitution in several fundamental ways.  Perhaps the most important difference between state constitutions and the federal one is the nature and purpose of governmental power addressed by each.  The United States Constitution is a power-conferring document.  Under the Constitution, the federal government has no inherent authority to act unless such power is expressly granted by the text of the Constitution or implied by the necessary and proper clause or another suitable part of the document.7

Conversely, state constitutions are power-limiting documents.  State legislatures have many inherent powers that are essential attributes of their sovereignty.  For example, eminent domain is considered an inherent attribute of sovereignty in Minnesota, as are both taxation and the police power.8  What this means is that states have inherent power to act or undertake a variety of functions, and the purpose of a state constitution is not necessarily to confer state power but to place limits upon it.  When in doubt, states have broad power to act unless their constitutions limit it.

This broad inherent power of states naturally leads to a second contrast with the federal constitution:  States generally have longer constitutional texts.  The average state constitution is over three times the length of the United States Constitution.9  Length is the product of several factors.  First, the more expansive text is needed to place more detailed limits upon the inherent power of states.  Second, states have clauses in their constitutions that reflect their unique powers.  For example, Minnesota, like all states, provides constitutional language that provides for a right to a public education (K-12), something absent and rejected at the federal level.10  The Minnesota Constitution also has detailed language about maintenance of a highway system and the dedication of revenues for that purpose.

A third issue distinguishing the federal from state constitutions is the distribution of power and the issue of separation of powers.11  Minnesota, for example, has an explicit separation-of-powers clause (Article III, section 1)that is absent at the federal level.  This means the state can define the relative distribution of powers among its branches of government in ways that differ from their distribution at the federal level.12

For example, courts at the federal level cannot issue hypothetical or advisory opinions; at the state level, including in Minnesota, that is often permitted.13  In addition, while recent United States Supreme Court confirmation debates have questioned the legitimacy of federal judges making policy or reviewing the powers of the other branches, state constitutions may permit such review.  In Minnesota, the “single subject” rule of the state constitution was used to invalidate the first conceal-and-carry law, and the state courts stepped in to allocate funding and money when the state legislature failed to pass a budget on time in 2005.14  Perhaps because judges, as in Minnesota, are elected, they may be able to claim mandates or political or electoral authority that federal judges lack.

Unique Constitutional Clauses

Another trait distinguishing state constitutions from the federal counterpart is the unique clauses the former have.  State constitutional clauses can be distinguished in a couple of ways; first by their substance and then by the way they operate or are interpreted.

Substantively, state constitutions such as Minnesota’s contain clauses not found in the federal constitution.  As noted above, Article XIV of the Minnesota Constitution provides for a trunk highway system.  Article VIII, section 6 describes the provisions for recall of state elected officials, and Article IX allows for citizens to vote on constitutional amendments or even a new state constitution.  Other unique clauses include a ban on allodial and feudal land arrangements (Article I, section 15), a single-subject rule for legislation (Article IV, section 17), a line-item veto by the governor (Article IV, section 23), and various Article X provisions providing for taxation on taconite, aircraft, and fuel, as well as a provision authorizing pari-mutuel betting.

Clauses such as those addressing specific forms of taxation or authorizing highway systems seem like oddities for a constitution; they appear instead more like typical legislation.  Clauses like these implicate a second distinguishing feature of state constitutional clauses, namely, how they operate or are to be interpreted.  There are two types of clauses found in the Minnesota Constitution and other state constitutions. First there are the “great ordinances,” broad constitutional clauses that announce real principles of government.  Second are those clauses that are no more than ordinary legislation distinguished by their placement in the constitution.¹⁵  The general rule is to interpret the former like traditional constitutional clauses, the latter like statutes.

Another important distinction in state constitutional law is between provisions that are self-executing and those they are not.  Self-executing clauses do not require the state legislature to act in order for them to be enforced.16  In Minnesota, the courts have said that most of the prohibitory clauses, such as the state Bill of Rights and the due process clause, are self-executing,17 but not all parts of the Constitution are.18

Another distinction is between mandatory and directory provisions.  Mandatory provisions are those that must be followed as written while directory clauses allow some departure from the text so long as the basic goals of the text are secured.19  While the Minnesota courts have suggested that most if not all provisions of the state constitution are mandatory,20 specific provisions, such as the single-subject rule (most recently used to invalidate the first conceal and carry law) and the education clause are considered to be of this type.21

Individual Rights and State Duties

Judicial federalism first took hold in the area of individual rights.  In comparing a state constitution such as Minnesota’s to the United States Constitution and Bill of Rights, there are four possible ways rights may be contrasted:  First, where both constitutions protect the same rights with the same textual language; second, where the same rights are protected with different textual language; third, where there is a federal right but no analogous state right in the text; and fourth, where there is a state right in the text but no analogous federal right.

One issue that arises in the first two scenarios is how the state constitution should be interpreted.  Specifically, are the state courts required to interpret a textually identical or similar clause the same as the United States Supreme Court reads the federal right, or can they depart, offering different and perhaps more protection at the state level?  Some contend that states should follow a “lockstep approach” in state constitutional interpretation,22 simply following the Supreme Court interpretation of parallel provisions of the United States Constitution or indicating that they consider these as binding on their constitution.  Florida, for example, constitutionally mandates this for 4th Amendment search and seizure issues.23  Most state courts follow interpretations offered by the Supreme Court in cases of parallel or similar clauses.24  But should that be the norm?  James Gardner argues that unique state interpretations should only occur when there is a need to check abuses of national power.25  Otherwise, he contends, departures from the federal norm are illegitimate.

Adopting this perspective on interpretation generally means that when confronted with parallel federal and state constitutional clauses, a state judge should address the federal constitutional issue first and if dispositive, ignore state claims.  Conversely, some like former Oregon Supreme Court Justice Hans Linde advocate a state-constitution-first approach.26  By that, courts seek to address state constitutional claims first and, if they are not dispositive, then examine the federal claims.

There are several merits to adopting Linde’s approach.  For one, it does not commit a state court to a lockstep jurisprudence.  Given that state constitutional clauses may have unique origins, perhaps even from other states, Linde’s approach enables state judges to read in light of what other states have said.27  It gives states an opportunity to draw upon the intent of their own constitutional framers and it allows states to develop their own jurisprudence.  Finally, there is a strategic reason for this approach.  A state’s highest court is the final word on its constitution and interpretations based solely on the state constitution are not reviewable by the United States Supreme Court.  As Justice O’Connor wrote for the Court in 1983, if a state offers adequate independent state grounds for its holding, its decisions are insulated from federal review.28  Thus, state courts wishing to retain control over the construction of their state constitution, and plaintiffs wishing to stay out of federal court, can achieve that by addressing only state constitutional claims.

Minnesota Constitutional Claims

Several rights included in the Minnesota Constitution and Bill of Rights — such as liberty of the press, bans on cruel and unusual punishments, and protection against unreasonable searches and seizures (all found in Article I) — are similar to those found at the federal level, but the language is not identical in the competing texts.  However, unique rights are also found in the Minnesota Constitution.  Article I, section 8 states that “every person is entitled to a certain remedy in all the laws for all injuries or wrongs which he may receive.”  Additionally, Article VII, section 1 explicitly grants the right to vote, whereas the federal constitution does not clearly provide for such a right.

Given the similarities and differences between the Minnesota and United States constitutional texts, what stance has the Minnesota Supreme Court taken in interpretation?  Does it follow the intent of the framers?  A lockstep approach?  Or has it been willing to interpret the state constitution to offer more rights than found at the federal level?  Analysis of its jurisprudence reveals a mixed pattern.

First, simple reliance on the intent of the Minnesota constitutional framers is problematic.  The reason for this is that not one, but two conventions — one run by the Republicans and one by the Democrats — wrote the original Minnesota Constitution.29  Issues such as franchise rights for immigrants and former slaves, as well as whether the state should be dry or allow alcohol, were the cause of this division.30  Thus, isolating a single intent is problematic.  However, if the plain text of a constitutional text is unclear, Minnesota courts have been willing to look to the intent of its authors or framers.31

Second, the Minnesota Supreme Court has definitely demonstrated willingness to depart from the lockstep approach in many situations.  For example, this Court has declared that there is greater protection under the state constitution in search and seizure, religious freedom and freedom of conscience, abortion and the right to privacy, the right to a 12-person jury, the right to education, equal protection, and the right to counsel.32  In addition, unlike the United States Supreme Court, which has not addressed the issue of profiling in the context of Terry v. Ohio-like traffic stops, Minnesota courts have struck down profiling stops and drawn clear limits to when police have probable cause to stop individuals and search them.33  Conversely, the Minnesota courts have not been as generous regarding issues of due process, obscenity, free speech, and the right to vote, where they have been unwilling to grant more protection under the state than the federal constitution.34  How does one explain this pattern?

In Kahn v. Griffin, the Minnesota Supreme Court described the conditions under which it would be willing to depart from a lockstep interpretive strategy:

As the Court made clear in Kahn, not only differences in text, but belief that the federal courts have retrenched on Bill of Rights protections serve as critical variables in turning to the state constitution.  It is not a Hans Linde state-constitution-first approach, but perhaps a more pragmatic searching of which document offers more protection that guides its interpretive philosophy.

Finally, in Kahn, the Court also offers advice on the factors to consider when making a case for a state constitutional analysis.

Kahn appears, then, to offer a two-stage analysis or process that lawyers should employ when advocating a state constitutional analysis: First, demonstrate that the federal courts have unpersuasively retrenched or retreated from previously recognized Bill of Rights protections to the detriment of the rights and liberties of Minnesotans; second, indicate the textual, historical, precedential, and policy factors that justify interpreting the Minnesota Constitution as giving more protection for these rights than found under the United States Constitution.

Conclusion

State constitutions and constitutional law matter.  While few attorneys think about using state constitutional claims to advance client interests, there are good reasons to think that the Minnesota courts may be receptive to them.  Given a choice between arguing federal and state constitutional claims, counsel may find that raising the latter could be of strategic value in many cases.

Notes
1 See, e,g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press) and Bernard Schwartz, Super Chief, Earl Warren and His Supreme Court: A Judicial Biography (NY: NYU Press, 1983).

2 William J. Brennan, Jr., “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977).

3 G. Alan Tarr, Understanding State Constitutions (Princeton: Princeton University Press, 1998), at 161.

4  See, e.g., Goodridge v. Department of Health, 440 Mass. 309, 798 N.E.2d 941 (Mass. 2003).

5 People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo.2003).

6 471 Mich. 445, 684 N.W.2d 765 (2004), cited in Kelo v New London, 125 S.Ct. 2655, 2668, fn. 22 (2005).

7 McCulloch v. Maryland, 17 U.S. 316 (1819).

8 State by Head v. Christopher, 284 Minn. 233, 170 N.W.2d 95 (1969) (eminent domain); Trustees of Pillsbury Academy v. State, 204 Minn. 365, 283 N.W. 727 (1939) (taxation, police power).

9 Tarr, supra, at 11-12.

10 San Antonio Independent School District  v. Rodriguez, 411 U.S. 1 (1973).

11 Tarr, supra, at 14.

12  In re Marriage of Sandra Lee Holmberg, 588 N.W 2d 720 (1999).

13  Scheibel v. Pavlak, 282 N.W. 2d 843 (1979).

14 See, Unity Church of St. Paul v. State, 694 N.W. 2d. 585 (Minn. App. 2005) (conceal and carry); In re Temporary Funding of Core Functions of the Executive Branch of the State of Minnesota, No. C0-05-5928 (June 23, 2005) (budget).

15 Tarr, supra, at 190.

16 State v. Kiewell, 86 Minn. 136, 137, 90 N.W. 160, 160 (1902); Willis v. St. Paul Sanitation Co., 48 Minn. 140, 150, 50 N.W. 1110, 1111 (1892).

17 Payne v Lee, 222 Minn. 269, 274, 24 N.W.2d 259, 263 (1946); In re Wretlind, 225 Minn. 554, 563, 32 N.W.2d 161, 167 (1948).

18 Aase v. Lang, 175 Minn. 161 (1928).

19 Freeman v. Goff, 206 Minn. 49, 287 N.W. 238 (1939).

20 Midway Reality v. City of St. Paul, 124 Minn. 300 (1914); Sjoberg v. Security Sav. & Loan Ass’n, 73 Minn. 203, 212 75 N.W. 1116, 1118 (1898).

21 See, Unity Church of St. Paul v. State, 694 N.W.2d 585, 594 (Minn. App. 2005) (single-subject rule); State v. Skeen, 505 N.W.2d 299 (Minn. 1993) (education clause).

22 Tarr, supra, at 180.

23 Id.

24 James A. Gardner, Interpreting States Constitutions: A Jurisprudence of Function in a Federal System (Chicago: University of Chicago Press, 2005), at 46.

25 Id. at 194.

26 Hans Linde, “First Things First:   Rediscovering the State’s Bill of Rights,” 9 U. Balt. L. Rev. 379 (1980).

27 Tarr, supra, at 199.

28 Michigan v. Long, 463 U.S. 1032 (1983).

29 William Anderson and Albert J. Loeb, A History of the Constitution of Minnesota with the First Verified Text (Minneapolis: University of Minnesota Press, 1921).

30 William Watts Fowell , A History of Minnesota, vol. 1. (St. Paul: Minnesota Historical Society Press 1956), at 411-12.

31  Kahn v. Griffin, 701 N.W. 2d. 815 (Minn. 2005); Skeen v. State, 505 N.W.2d 299 (Minn. 1993); In re Hagberry, 448 N.W. 2d 363 (Minn. 1989).

32 See, e.g., State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991); Ascher v. Commissioner of Public Safety, 519 N.W. 2d 183 (Minn. 1994); Matter of Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993); Matter of the Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003) (search and seizure).  See also State v. Hershberger, 462 N.W.2d 393, 397-8 (Minn. 1990) (freedom of conscience); Women of the State of Minnesota v. Gomez, 542 N.W. 2d at 30-1(1995) (abortion); Doe v. Ventura, 2001 WL 543734, 8-9 (Minn. App. 2001) (privacy); State v. Hamm, 423 N.W. 2d. 379, 380-1 (Minn. 1988) (12-person jury); Skeen v. State, 505 N.W. 2d 299 (Minn. 1993) (education); State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991) (equal protection); State v. Nordstrom, 331 N.W.2d, 901, 904-5 (Minn. 1983) and State v. Dumas, 587 N.W. 2d 299 (Minn. App. 1999) (right to counsel).

33 St Paul v. Uber, 450 N.W.2d 623 (Minn. App. 1990) (profiling); State v. Burbach, (Minn. 2005) and State v. Askerooth, 681 N.W. 2d 353 (Minn. 2004) (stop and search).

34 State v. Morrow, 492 N.W. 2d 539 (Minn. App. 1992) (due process); State v. Davidson, 481 N.W. 2d 51 (Minn. 1992) (obscenity); State v. Wicklund, 589 N.W. 2d 793 (Minn. 1999) (free speech); Kahn v. Griffin, 701 N.W. 2d. 815 (Minn. 2005) (right to vote).

35 Kahn v. Griffin, 701 N.W. 2d. 815, 828 (Minn. 2005) (citations omitted).

36 Id. at 829.

DAVID SCHULTZ is professor in the Hamline University Graduate School of Management and in the Department of Criminal Justice and Forensic Science.  He also holds adjunct appointments at the Hamline and University of Minnesota law schools.