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tion center violates California's constitutional guarantees of speech liberties). In particular, sce Carreras, 1042-43 (prefatory discussion of the role of state law as first basis for consideration of claims of right), 1042 n.4 (acknowledging rule of avoidance of unnecessary federal constitutional questions), 1044 n.7(establishing trend of greater protection for expressive activity under state constitutional law than under First Amendment), 1043-45 and 1048-50 (analysis of state constitutional precedents alone for governing rules and standards), 1044 n.8 and 9 (ensuring that controlling state constitutional law precedents themselves rested on state law), 1048 n.21 and 1049 n. 24 and 25 (explicitly stating that citation to federal judicial precedents in past state supreme court decisions, and past adoption of analytical frameworks developed by the Supreme Court under the federal constitution, served only to guide independent interpretation of state constitution). Given its self-conscious, deliberate, and artful use of the full battery of analytic devices, Carreras stands as an excellent case study and role model for the independent interpretation of state constitutional law. It is interesting to note that a federal appeals court was responsible for such a splendid example of state con

stitutional exegesis. 102 In this regard, a comparison of two state high court deci

sions may be instructive. Compare State v. Badger (acknowledging that separate consideration of Vermont constitutional claims is required and that the state constitutional meaning is not identical to federal constitutional meaning even for parallel provisions; relying exclusively on state court precedents in interpreting state constitutional provisions; providing “plain statement" that judgment rests on state constitutional guarantees) with Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 510 N.E.2d 325 (1987) (explicitly acknowledging reliance on both federal and state constitutional law because violation of the former is violation of the latter; interweaving discussion of federal and state constitutional texts and court precedents; analyzing the determinative issues as substantively identical under federal and state constitutional law; providing no "plain statement" that the judgment is grounded on state

constitutional law). 103 For comprehensive and thoughtful analyses of the ab

stention and equitable restraint doctrines, see H. Fink and M. Tushnet, Federal Jurisdiction: Policy and Practice, pp. 615-638, 655-675, 681-694 (1984); Martin Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power (Indianapolis: Bobbs-Merrill, 1980), pp. 233-58,

291-321. 104 The Pullman abstention doctrine derives from the rule

in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941) (requiring federal district court abstention from decision of Fourteenth Amendment cqual protection claim, to afford the Texas state courts an opportunity to rule on the state statutory claim of abuse of discretion in the commission's order to segrcgate opera

tion of railroad sleeping cars). 105 A federal ruling on a sensitive federal constitutional is

sue might be tentative or “wasteful” in the sense that interpretation of an unclear state law by the state courts might well moot the federal constitutional issue. For example, the Supreme Court understood in Pullman that because the last word on the statutory authority of the railroad commission could issue only from the Texas Supreme Court, any decision on the constitutionality of the commission's segregation order would be a "tentative answer which may be displaced tomorrow by a state ad

judication. ... The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted

by a controlling decision of a state court.” Pullman, 500. 106 For analysis and critique of the functions of the Pullman

abstention doctrine, see Martha A. Field, “Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine,University of Pennsylvania Law Review 122(1974): 1071; Martha A. Field, “The Abstention Doctrine Today,” University of Pennsylvania Law Review 125

(1977): 590. 107 Abstention to permit a state constitutional law attack on

a state law is typically deemed improper where the state constitutional provision is virtually identical to the applicable federal constitutional provision. See,

e.g., Wisconsin v. Constantineau, 400 U.S. 433 (1971) (refusing to order abstention to permit state court scrutiny of state liquor regulation under state constitutional law). Abstention in such circumstances would be tantamount to a rule of exhaustion of state judicial remedies before bringing a federal action on federal constitutional grounds, a prerequisite which the Supreme Court has not been willing to impose. See, e.g., Monroe v. Pape, 365

U.S. 167 (1961). 108 Sec, e.g., Louisiana Power and Light v. City of

Thibodaux, 360 U.S. 25 (1959) (requiring abstention in a diversity action challenging the authority of state municipalities to condemn utility properties, since the delegation of eminent domain powers to localities is a question "intimately involved with the Sovereign

prerogative"). 109 See, e.g., Burford v. Sun Oil Co., 319 U.S. 315 (1943)(up

held abstention in a challenge to a drilling permit issued under a Texas state scheme creating a complex and coherent pattern of administrative and judicial decisionmaking to resolve oil rights issues); Alabama Public Service Commission v. Southern Railway 341 U.S. 341, 347 (1951) (requiring abstention in a challenge to the commission's order to continue certain local train service, on the rationale that resolution of the dispute depends on the “predominantly local factor of public need

for the service rendered."). 110 For example, in Burford, 326-27, the Supreme Court ex

plained that the Texas legislature had established a unified state administrative and judicial network to regulate the production of oil and gas, and that state judicial review of the Commission's orders was speedy and thorough. Indeed, to prevent confusion of multiple review of legal issues involving the state scheme, the legislature had provided for concentration of all direct review of the commission's orders in the state districts of one county.

The exercise of sederal equity jurisdiction in this case would create the “very confusion' which the Texas legislature and Supreme Court scared might result from review by many state courts of the Railroad Commission's

orders.” Bursord, 327. 111See, e.g., Zablockiv. Redhail, 434 U.S. 374 (1978) (invali

dating Wisconsin statutc that required court permission for remarriage of a state resident under legal obligation to provide child support). The Supreme Court distinguished Bursord v. Sun Oil on the basis that “this case does not involve complex issues of state law, resolution of which would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.' ” Burford, 380. Importantly, the state statute in Zablocki implicated a substantial question of federal constitutional law, on which resolution of the case ultimately turned. Professor Martin Redish argues that abstention from the exercise of diversity jurisdiction should be restricted to controversies in which (1) the regulatory policy is “of significant and special concern to the state”; (2) the administrative scheme is, “in fact, detailed and complex”; and (3) any substantial and troublesome federal question “cannot be resolved without requiring the federal court to immerse itself in the technicalities of the state scheme.” Redish, Federal Jurisdiction, pp. 246, 259. But see Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593 (1968) (diversity suit for trespass, involving no complex regulatory or administrative

scheme). 112 Mr. Justice Hugo Black first used the term “Our Federal

ism” in the celebrated case of Younger v. Harris, 401 U.S. 37 (1971), to announce the principle of “comity” between federal and state courts on which the Court has relied in formulating the rules of the equitable restraint

doctrine. 113 In summary, the equitable restraint doctrine yields the following rules: 1) At the time a litigant initiates a federal proceeding

to challenge state action as unconstitutional, if the
litigant is a defendant in a pending or ongoing state
criminal proceeding, and if the federal litigant can
raise the constitutional claims in the state proceed-
ing, ordinarily the litigant will not be able to obtain
federal injunctive or declaratory relief.
Younger v. Harris, 401 U.S. 37 (1971) (federal in-
junctive relief against state criminal prosccution);
Samuels v. Mackell, 401 U.S. 66 (1971) (federal
declaratory relief against criminal statute enforced

in pending prosecution).
2) A federal district court may grant declaratory or in-

junctive relief against unconstitutional state action
if the federal litigant does not become a defendant
in a state criminal prosecution concerning the same
issues before proceedings of substance on the mer-
its have begun in the federal action.
Steffel v. Thompson, 415 U.S. 452 (1974) (federal
declaratory relief where genuine threat of enforce-
ment of unconstitutional state statute demon-
strated); Doran v. Salem Inn, Inc., 422 U.S. 922
(1975) (preliminary injunctive relief to preserve
status quo pending declaratory judgment); Hicks v.
Miranda, 422 U.S. 332 (1975) (“proceedings of sub-

stance" restriction).
3) At the time a litigant initiates a federal proceeding

to challenge state action as unconstitutional, if the litigant is a defendant in a pending state civil suit brought by state officials to enforce important state policies, and if the federal constitutional claims may be raised and litigated fully in the state proceeding, ordinarily the litigant will not be able to obtain federal injunctive or declaratory relief. Huffman v. Pursue, 420 U.S. 592 (1975) ("quasicriminal” nuisance abatement action); Juidice v.

Vail, 430 U.S. 327 (1977) (civil contempt proceeding to effectuate a state damage judgment); Trainor v. Hernandez, 431 U.S. 434 (1977) (state civil action to recoup welfare payments obtained by fraud); Moore v. Sims, 442 U.Š. 415 (1979) (extending equitable restraint to federal issues between the parties that are not directly implicated in the pending state

civil proceeding). 4) The rules above do not apply if the pending or on

going state proceeding has been initiated in bad faith

or as part of a program of harassment, or if a federal litigant's constitutional claim concerns the procedural fairness of the very state proceeding in which constitutional claims would otherwise be brought. Dombrowski v. Pfister, 380 U.S. 479 (1965) (exception for bad faith and harassment); Gibson v. Berryhill, 411 U.S. 564 (1973) (bias on state board of optometry); Trainor v. Hernandez, (appropriate forum in which to challenge unconstitutional state action must be available in state court system). But see Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986) (no exception to equitable restraint principles for federal due process challenge to the jurisdiction of the administra

tive tribunal). 114 In Trainor v. Hernandez, 445-56, the Supreme Court

recognized that the exercise of federal equitable jurisdiction at the time that a statc civil enforcement suit was pending would

... confront the State with a choice of engaging
in duplicative litigation, thereby risking a tempo-
rary federal injunction, or of interrupting its en-
forcement proceedings pending decision of the
federal court at some unknown time in the fu-
ture. It would also foreclose the opportunity of
the state court to construe the challenged statute
in the face of the actual federal constitutional
challenges that would also be pending for deci-
sion before it, a privilege not wholly shared by

the federal courts. 115 The Supreme Court has articulated forcefully its pur

pose to avoid the “unseemly failure to give effect to the principle that state courts have the solemn responsibility, equally with the federal courts 'to guard, enforce, and protect every right granted or secured by the Constitution of the United States.'” Steffel v. Thompson, 415

U.S. at 460-61. 116 For a persuasive critique of the contradictory bases for

the equitable restraint doctrine, see Redish, Federal Ju

risdiction, pp. 298-307. 117 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.

579, 654 (1952) (Jackson, J., concurring) (original reference to “power in the hands of Congress”).

[blocks in formation]

We shall assume that when, as here, a state Constitution sces fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the Constitution of the United States is concerned.5

Thus, with respect to governmental structure, a state remains free to, in the famous words of Justice Louis Brandeis, "serve as a laboratory" for what Holmes referred to as “social experiments ... in the insulated chambers afforded by the several states."?

The American states have played this role of experimenting with governmental structure and relationships since the beginning of the Union. Thomas Paine, defending Pennsylvania's 1776 constitution, which featured a unicamcral legislature, weak executive, and virtually no checks and balances, wrote in 1778:

In the American federal system, there are few national requirements governing the structure and relationship of state government institutions. States are not even directly required to have constitutions. Some thought was given to a “model” state constitution that would have been mandated by the Continental Congress early in 1776, but the idea was dropped without being considered seriously." Article IV, Section 4 of the U.S. Constitution does provide that “the United States shall guarantee to every State in this Union a Republican Form of government...."2 In 1912, however, when the argument was made that Oregon's constitutional provision for the passage of legislation by popular initiative violated the requirement of a “republican” (government by elected representatives) government, the U.S. Supreme Court reaffirmed its long-held position that this issue constitutes a nonjusticiable political question left to congressional enforcement.3 Congress, of course, may require the inclusion of provisions in a state constitution as a condition to the admission of new states.

In addition, the federal Constitution does provide a few limitations on the exercise of state power, for example, to regulate commerce and coin money. Most of these restrictions on state power were, in part, direct responses to perceived abuses perpetrated by the powerful, and relatively unchecked, state legislatures during the decade before adoption of the federal Constitution.

Finally, the Fourteenth Amendment and its judicial interpretation for more than a half a century have imposed a range of restrictions on states with respect to various individual rights and liberties. Beyond these limits, however, the American states remain free to devise and change governmental institutions and arrangements as their citizens see fit. As Justice Oliver Wendell Holmes said:

It is in the interest of all the States, that the constitution of each should be somewhat diversified from each other. We are a people founded upon experiments, and ... have the happy opportunity of trying variety in order to discover the best....8

One very good example of the states' experiments with government structure can be seen in the area of the “legislative veto." States put in place mechanisms by which legislatures could, short of enacting a law, disapprove of administrative agency actions. The separation of powers problems with this approach were debated in the state courts, with the nearly unanimous conclusion that such mechanisms could not be permitted. Then the people in various states rejected proposed state constitutional amendments that would have permitted the practice. Most of this activity predated the resolution of similar problems in the federal government.

Despite the permitted diversity with respect to governmental structure, there are many identifiable patterns and similarities among the state governments. As Frank P. Grad observed: “In spite of their enormous diversity, it is probably safe to say that the similarities between government structure in different states are considerably greater than their differences. ..."10

a range of ways that is unfamiliar in the federal government.

Further, because state constitutions are easier to amend than the federal Constitution, they have accumulated many limiting details reflecting the concerns of citizens during the various eras of American history. For example, evidence of the periods of distrust of the legislature, the Industrial Revolution, the Progressive Movement, Jacksonian democracy, the settling of the West, bankruptcy in public finance, concern for efficient management, and many other matters can be seen clearly in any modern state constitution.

Finally, the state constitutions include numerous mechanisms for direct popular involvement in governmental decisions that have no analog in the federal Constitution. Amendments or revisions of state constitutions themselves must be ratified by the voters before they can take effect. Beyond this fundamental point, however, direct citizen involvement in such governmental decisions as issuing bonds, levying certain taxes, and even, in some states, approving gambling operations, is often required by state constitutions. Statcs with initiative and referendum provisions in their constitutions obviously permit direct popular participation in thc lawmaking process itself. Also, many states permit citizen litigation over governmental matters by authorizing a wide range of taxpayer actions. None of these examples of popular participation in governmental decisions are present in the U.S.Constitution.

The Function of State Constitutions

Regarding Governmental Structure

At the outset, it must be recognized that the political and legal functions of state constitutions are very different from those of the federal Constitution. The U.S. Constitution creates and defines a government of limited, enumerated, delegated powers. The federal government must point to some explicit or implied grant of power to authorize it to act. Therefore, many of the key questions regarding judicial interpretation of federal power under the Constitution concern implied powers. The state governments, by contrast, are based on a very different fundamental conception of government. State governments, particularly the legislative branch, exercise all residual or plenary powers of sovereign governments, except in situations where they are expressly or impliedly limited by the state or federal constitutions, or by valid congressional legislation or federal administrative action. It is sometimes said that state governments exercise power similar to that possessed by the British Parliament. Therefore, many of the important issues for judicial interpretation of state power under state constitutions concern implied limitations.

In the words of the Supreme Court of Kansas: It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitu

tion, but whether it is prohibited thereby.11 According to the Supreme Court of Illinois, “All legislative power is vested in the General Assembly.. Every subject within the scope of civil government which is not within ... constitutional limitations may be acted on by it.”12

The function of state constitutions, not surprisingly, dictates their form. Generally speaking, because of the necessity to enunciate specific limitations on otherwise virtually unlimited governmental power, state constitutions contain much more detail with respect to the structure and operations of government. For example, state constitutions contain long articles on taxation and finance, two of the most important functions of any government. These provisions restrict state government taxing and spending in

State Constitutions

and Separation of Powers James Madison noted in The Federalist, No. 37, that “no skill in the science of government” has been able conclusively to define legislative, executive, and judicial power. As a result, “[Q]uestions daily occur. .. which puzzle the greatest adepts in political science.” Matters have remained just as unsettled in the state constitutions in the 200 years since Madison wrote those words.

Many state constitutions, by contrast to the federal Constitution, contain explicit textual statements of the doctrine of separation of powers. For example, Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be
divided into legislative, executive, and judi-
cial branches. No person belonging to one
branch shall exercise any powers appertain-
ing to either of the other branches unless ex-

pressly provided herein. These sorts of statements date from the earliest state constitutions in 1776.13 They express two related concerns that the powers of government should be separated; and that the persons who exercise these powers Despite the legal and political changes that have occurred since 1776, resulting in the types of limitations on the state legislative branch described below, statc legislatures remain extraordinarily powerful. They are the focal point of policymaking in state government. The prevailing view is illustrated by the Supreme Court of Illinois:

Under traditional constitutional theory, the basic sovereign power of the State resides in the legislature. Therefore, there is no need to grant power to the legislature. All that needs to be done is to pass such limitations as are desired on the legislature's otherwise unlimited power. 19

should be separate individuals. It has always been true, however, that the state constitutions, like the U.S. Constitution, do not provide for a sharp separation of powers; instead, they include a number of blended powers. For example, it is generally conceded that the governor's veto, although assigned to the chief executive officer, is actually a lcgislative power.

An important question must be asked about the impact of placing explicit statements of the separation of powers doctrine in state constitutions. Should these explicit statements have an impact on judicial determination of separation of powers controversies so as to yield results different from those obtaining under the federal Constitution, where the doctrine is merely inferred from that document's creation of three branches? Courts in Florida have concluded that with respect to delegations of power to administrative agencies a more strict separation of powers is required because of the explicit textual statement in the state constitution.14 New Jersey courts, by contrast, despite the presence in that state's constitution of a provision virtually identical to Florida's, 15 reach the opposite conclusion:

There is no indication that our State Constitution was intended, with respect to the delegation of legislative power, to depart from the basic concept of distribution of the powers of government embodied in the Federal Constitution. It seems evident that in this regard the design spelled out in our State Constitution would be implied in constitutions which are not explicit in this regard. ... We have heretofore said our State Constitution is no more restrictive" in this respect than the Federal Constitution. ... Indeed in our State the judiciary has accepted delegations of legislative power

which probably exceed federal experience. 16 Generally speaking, however, state courts seem to enforce the separation of powers doctrine, at least in the area of delegations of legislative authority to agencies, more strictly than is the case with separation of powers doctrine in the federal government.17

Limitations on Legislative Power

A commentator observed in 1892 that “one of the most marked features of all recent State constitutions is the distrust shown of the legislature."20 The transition from early state constitutions granting unfettered legislative power to the more recent constitutions restricting legislative power reflects one of the most important themes in state constitutional law. The clearly established pattern during the founding decade of 1776-1787 was a gradual transition from lcgislative dominance, or "omnipotence," to an increased role for the executive and judicial branches.21 The new exccutive and judicial powers operated as a check on recognized legislative power rather than a sharing of Icgislative power.

In 1776 and the years immediately following, virtually all of the newly independent constitutionmakers' trust was placed in the legislative branch, albeit usually in two houses. It was generally felt that, under the newly flourishing ideas of republicanism, representatives in government should be like the citizens themselves and mirror as closely as possible the makeup of the population.22 The idea of professional politicians or representatives had not yet developed. Rather, the virtuous members of society would serve, on a rotating basis, for short terms, representing small districts, and honor instructions from their constituents. As Gordon Wood has observed, at this time, "a tyranny by the people was theoretically inconceivable.”23

The legislative branch had been identified with the people themselves and was viewed as a safeguard against executive abuses rather than a possible source of abuses itself. Under these circumstances, the 1776 brand of legislative supremacy, although not supported unanimously, was not surprising. Effective checks on this legislative power were not viewed by many as necessary because, after so many years of abuscs by the British, the newly independent Americans did not foresce that "the people," as represented in the legislature, would also commit abuses.

The State Legislative Branch

State legislatures are, historically, the fountainhead of representative government in this country. A number of them have their roots in colonial times, and substantially antedate the creation of our Nation and our Federal Government. In fact, the first formal stirrings of American political independence are to be found, in large part, in the views and actions of several of the colonial legislative bodies.

Chief Justice Earl Warren 18

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