California Law Review
Volume 61 | Issue 2
Article 2
March 1973
The State Constitution: A More Than Adequate
Nonfederal Ground
Jerome B. Falk Jr.
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Recommended Citation
Jerome B. Falk Jr., The State Constitution: A More Than Adequate Nonfederal Ground, 61 Cal. L. Rev. 273 (1973).
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The Supreme Court of California
1971-1972
Foreword
The State Constitution: A More Than
"Adequate" Nonfederal Ground
Jerome B. Falk, Jr.*
To most lawyers "the constitution" means the Federal Constitution
and, because commerce clause cases are not plentiful these days, more
particularly the Bill of Rights. This is in part the consequence of the
many decisions of the Warren Court applying to state and local gov-
ernments nearly all the restraints of the Bill of Rights. As our rights
and liberties became increasingly federalized, there was little need to
consider what protections, if any, were secured by state constitutions.
It was not always so. At the time the California constitution of
1849 was adopted, it was understood that the Federal Bill of Rights was
inapplicable to the states and functioned solely as a restraint upon the
national government.'
The adoption of the fourteenth amendment by
which various protections of the Bill of Rights were made applicable to
state and local governments has been a phenomenon of this century,
* A.B. 1962, I.D. 1965 University of California, Berkeley. Member of the
California Bar; Lecturer in Law, University of California, Berkeley.
The author was co-counsel for Appellant Robert Page Anderson by appointment
of the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 100 Cal. Rptr.
152, 493 P.2d 880 (1972), cert. denied, 406 U.S. 958 (1972), a decision which is
discussed in this Forward, as well as in a number of other cases challenging the constitutionality of capital punishment. The foregoing statement will, I trust, be understood
as made solely in the spirit of full disclosure by one who might be thought to be, in the
phrase of Mr. Justice Douglas, a "special pleader." Douglas, Law Reviews and Full
Disclosure, 40 WASm L. Rv. 227, 228 (1965). What credit for Anderson is due
counsel must be alloeated almost entirely to Professor Anthony G. Amsterdam who,
when not illuminating the classrooms of Stanford Law School, has often as not been
found in the past several years in courtrooms around the country tirelessly and brilliantly asserting the unconstitutionality of capital punishment. Yet I suspect that decisions such as Anderson result not as much from the cleverness or eloquence of counsel (which, in Professor Amsterdam's case, can be substantial) as from the independent
intellectual and moral resources of the judges.
1. Barron v. Baltimore, 32 U.S. (7 Pet.) 242 (1833).
CALIFORNIA LAW REVIEW
[Vol. 61:273
and largely of the last two decades. 2 For most of the life of this nation the Federal Constitution offered no protection for the personal, religious, intellectual and political rights of its citizens in their relations
with state and local government. In California those protections were
provided by the Declaration of Rights-Article I of the California constitution-which contains provisions much like those of the Federal Bill
of Rights.
Yet when, in February, 1972, the Supreme Court of California
ruled in People v. Anderson' that the imposition of the death penalty
violated the proscription against "cruel or unusual punishments" of
Article I, section 6 of the California constitution, many objected
that the court improperly premised its decision on the state charter.
The Attorney General of California was one of the more vociferous
critics. In his view, the state court's assertion that Anderson relied
solely upon Article I, section 6 of the California constitution 4 was unworthy of belief; he advised the United States Supreme Court that it was
"not bound to accept the California Supreme Court's self-serving characterization of its opinion as being premised upon" the California consti-
tution.5 Moreover, he asserted, it constituted an "unseemly rush to
judgment"" for the court to have reached the state constitutional issue
while the United States Supreme Court had the federal constitutional
7
question before it.
2. See, e.g., Malloy v. Hogan, 378 U.S. 1, 4-6 (1964).
3. 6 Cal. 3d 628, 100 Cal. Rptr. 152, 493 P.2d 880 (1972).
4. 6 Cal. 3d at 633-34, 493 P.2d at 883-84, 100 Cal. Rptr. at 154-55.
5. Petition for Writ of Certiorari, State of California v. Robert Page Anderson,
Oct. Term, 1971, No. 71-1248, cert. denied, 406 U.S. 958 (1972), at 13. The quotation
here of the Attorney General's arguments does not imply agreement with their propriety.
In fact, the Attorney General responded to the Anderson decision with an attack upon
the court which in tone and timing strongly suggested political motivation. That assault
was levelled not only in the media but in subsequent pleadings filed in the Anderson
case. In his Petition for Rehearing, for example, the Attorney General stated:
The Court's lack of respect for the constitutional doctrine of separation
of powers and for the Court's own precedents can only be viewed by the
public as indicative of a lack of judicial restraint and responsibility, thereby
decreasing the already-declining respect of the public for our courts.
Petition for Rehearing, People v. Anderson, supra, at 25. This remarkable document
was followed by a letter addressed directly to Mr. Justice McComb, the sole dissenter
in Anderson, urging that in the event the court were to deny the Petition for Rehearing, he "consider incorporating [the] Petition into an opinion dissenting from such a
denial." Letter from Attorney General Evelle J. Younger to Justice Marshall F. McComb,
March 8, 1972. Justice McComb dissented, but without assisting the Attorney General
in converting the CaliforniaReports into a political podium.
6. Petition for Writ of Certiorari, supra note 5, at 7.
7. Furman v. Georgia, No. 69-5003; Jackson v. Georgia, No. 69-5030; Branch
v. Texas, No. 69-5031; Aikens v. California, No. 68-5027. The U.S. Supreme Court dismissed the writ in Aikens as moot following the decision in Anderson, 406 U.S. 813
(1972), and subsequently proceeded to hold capital punishment, at least as presently
administered through selective, discretionary procedures, federally unconstitutional. Fur-
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CALIFORNIA SUPREME COURT
Of course the criticism of Anderson-and of the Supreme Court's
subsequent qualified invalidation of the death penalty in Furman v.
Georgia8 -was also premised on broader grounds. The Attorney
General told the California Supreme Court that its decision demonstrated
that the judges were "oblivious to the nature of constitutional separation of powers." 9 But rather than focus on these questionable attacks upon the court, 1" I prefer to discuss the notion-implicit in the criticism of the California decision-that it was impermissible for the
Supreme Court of California to have decided Anderson while Furman
was pending, and beyond that court's power to invalidate capital punishment on state constitutional grounds alone. These are the more
serious contentions, requiring appraisal here.
The issue is anything but academic. Anderson was based solely
on independent state constitutional grounds; it was beyond the reviewing power of the United States Supreme Court-even had that court
held in Furman that capital punishment did not violate the Federal Constitution." The principle that the United States Supreme Court will
not review state court decisions based on adequate nonfederal grounds
is a familiar and fundamental one. 2 It rests, the Court has said,
in the partitioning of power between the state and federal judicial
systems and in the limitations of our own jurisdiction. . . . We
are not permitted to render an advisory opinion, and if the same
judgment would be rendered by -the state court after we corrected its
views of Federal laws, our review could amount to nothing more
than an advisory opinion.'t3
This principle has been applied both when the state court has explicitly premised its decision on state law alone, without reference to
man v. Georgia, 408 U.S. 238 (1972). The controversy over Anderson was in part
premised on the generally unspoken assumption that the U.S. Supreme Court would uphold capital punishment.
8. Furman v. Georgia, 408 U.S. 238 (1972).
9. Petition for Rehearing, supranote 5, at 20.
10. The Chief Justice of the Supreme Court of California prepared a thoughtful
address on the subject of judicial review, commenting specifically upon the Anderson
case, in the third annual Roger J.Traynor Lecture at Boalt Hall. Wright, The Role of
the Judiciary From Marbury to Anderson, 60 CALIF. L. Rav. 1262 (1972).
11. E.g., Jankovich v. Indiana Toll Road Comm'n, 379 U.S. 487 (1965).
12. See Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875); see generally, Hill,
The Inadequate State Ground, 65 CoL. L. REv. 943 (1965); Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup.
Cr. Rav. 187 (1965); Bice, Anderson and the Adequate State Ground, 45 So. CALIF. L.
REV. 750 (1972). The exceedingly delicate questions which arise where a state court
has refused to consider an asserted federal claim on grounds (usually procedural in nature) resting in state law are not at issue here; in such a case, the Court must determine whether the nonfederal basis for refusing to reach the federal claim is constitutionally "adequate." See, e.g., Shuttlesworth v. Birmingham, 376 U.S. 339 (1964)
(per curiam), N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964).
13. Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945).
CALIFORNIA LAW REVIEW
[Vol. 61:273
the Federal Constitution (as in Anderson), and when the state ground
is "independent" of federal principles, although the state court opin-
ion discusses federal law. 4
The controversy over Anderson reflected dissatisfaction, not so
much with these well-established principles, 15 as with the California
Supreme Court's practice, exemplified by Anderson, of resting important public law determinations on the California constitution. Much of the
14. E.g., Jankovich v. Indiana Toll Road Comm'n, 379 U.S. 487 (1965). When the
Court cannot determine with reasonable assurance whether the state court decision
rested independently on state law or, alternatively, viewed the state law issues as dependent upon interrelated, overriding or identically worded federal provisions, its
practice is to vacate the judgment below and thereby permit the parties to obtain from
the state court a determination of the precise basis of its judgment. E.g., Minnesota v.
National Tea Co., 309 U.S. 551 (1940). See discussion of California v. Krivda, 409
U.S. 33 (per curiam) and Department of Mental Hygiene v. Kirchner, 380 U.S. 194
(1965), note 17, infra.
15. But see Bice, Anderson and the Adequate State Ground, 45 So. CAMF. L. Rnv.
750 (1972). Professor Bice suggests that where a state court has (unlike the Anderson court) grounded its judgment on both federal and state law, the Court ought to review the federal question and, if it finds the lower court has decided it incorrectly,
vacate for such further proceedings as the state court might wish to hold. His concern
is that, absent such a procedure, the state court's dual-premised decision "will also
have the effect of precluding effective political review . . . because amendment to
the state constitution or laws cannot correct the federal defect and therefore cannot
change the result of the state court's decision." Id. at 757. In other words, the Supreme
Court ought to review the state court's resolution of the federal question-even though
technically dictum-so that if legislators (or the people, through the initiative process)
wish to change the state constitution or laws on which the decision also rests they will
be able to proceed with the assurance that the federal constitution is not an obstacle
to their objective. Two factors persuade me to disagree.
First, no matter how delicately phrased, the remand of a judgment-which by definition rests on an independent and adequate nonfederal ground [see note 12, supra]
-in such circumstances would inevitably be abrasive. The state court would be placed
in an exceedingly awkward position, for no reason related to the case at hand. The
matter would have been remanded for further proceedings not inconsistent with the
Supreme Court's resolution of the federal question; of course the state court will be
compelled to adhere to its original judgment as to the state law question, but from a
posture uniquely susceptible to political pressure and public misunderstanding.
Second, Professor Bice's proposal seems to require the United States Supreme Court
to render "advisory" opinions of the most hypothetical sort. The lower ,ourt's judgment will not be affected; nor will any immediate, present controversy be resolved.
The justification offered is that someone might wish to introduce legislation or propose
a constitutional amendment to change the underpinning of the state-law portion of the
decision. But the Court, of course, will not rule as to the constitutionality of proposed
but unenacted legislation. Here the controversy would be yet another step more hypothetical, for the legislation or state constitutional amendment which a determination
of the federal question might affect would not even have been proposed. In this connection, it is significant that in recent years the California Supreme Court has refused
to entertain pre-election challenges to initiative measures (even where the constitutionality of the challenged ballot measure was open to serious doubt). See, e.g., Lewis
v. Jordan, Calif. Sup. Ct., Sac. No. 7549 (June 3, 1964), order reprinted in Clancy and
Nemerovski, Some Legal Aspects of PropositionFourteen, 16 HAsT. L.I. 3 (1964); Levit
v. Brown, Calif. Sup. Ct., Sac. No. 7950 (August 3, 1972).
1973]
CALIFORNIA SUPREME COURT
criticism, although unrefined, rested on the notion that the court should
have either awaited the United States Supreme Court's decision on the
eighth amendment challenge or, at the least, that it should have decided
only that federal question so that the United States Supreme Court could
review the California judgment. At its core, the dispute centered on the
emphasis placed on the state constitution in constitutional adjudication
by the courts of California. How much independent significance should
California courts give to the state charter?
Although People v. Anderson was based on the state constitution,
it was no sport. The California Supreme Court has long regarded the
Declaration of Rights of the California constitution 6 as a charter of independent significance.
In some cases the court has relied on both the
California and United States constitutions.
7
In others, however, the
16. The California Supreme Court has also decided cases on grounds of state policy or in exercise of its inherent supervisory powers which, like dispositions based
upon the California constitution, provide an independent nonfederal ground and avoid
the necessity of deciding a federal (and, for that matter, state) constitutional question.
For example, in In re Anderson, 69 Cal. 2d 613, 447 P.2d 117, 73 Cal. Rptr. 21 (1968),
the court avoided a constitutionally-founded challenge to California's failure to provide counsel for men under sentence of death at the post-automatic appeal stage by providing that condemned men might, as a matter of state policy, obtain counsel as a matter
of right for purposes of instituting state and federal post-conviction proceedings. In
People v. Vickers, 8 Cal. 3d 451, 503 P.2d 1313, 105 Cal. Rptr. 305 (1972), the
court adopted a similar state policy assuring the right to counsel at probation hearings,
thus avoiding the question reserved in Morrisey v. Brewer, 408 U.S. 471 (1972). In
People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905 (1955), the court adopted the exclusionary rule as to evidence seized in violation of the prohibition against unlawful searches
and seizures although at that time the Federal Constitution had been held not to require
such a rule. In In re Berry, 68 Cal. 2d 137, 436 P.2d 273, 65 Cal. Rptr. 273 (1968),
the court declined, presumably as a matter of state policy, to hold in contempt a person
who disobeyed an unlawful court order despite the United States Supreme Court's approval of such a result in Walker v. Birmingham, 388 U.S. 307 (1967). Cf. Jackson v.
Pasadena City School Dist., 59 Cal. 2d 876, 382 P.2d 878, 31 Cal. Rptr. 606 (1963)
(school authorities have affirmative duty to alleviate racial imbalance; opinion unclear
whether result compelled by Federal Constitution, state constitution, or state policy of
nonconstitutional dimension).
17. See, e.g., Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388
(1973) (equal protection); People v. Triggs, 8 Cal. 3d 884, 506 P.2d 232, 106 Cal.
Rptr. 408 (1973) (search and seizure); People v. Murphy, 8 Cal. 3d 349, 352 n.2, 503
P.2d 594, 596 n.2, 105 Cal. Rptr. 138, 140 n.2 (1972) (prohibition against ex post
facto laws); People v. Vickers, 8 Cal. 3d 451, 503 P.2d 1313, 105 Cal. Rptr. 305
(1972) (due process); People v. Barksdale, 8 Cal. 3d 320, 332, 503 P.2d 257, 266, 105
Cal. Rptr. 1, 10 (1972) (due process-void for vagueness rule); People v. Taylor, 8 Cal.
3d 174, 501 P.2d 918, 104 Cal. Rptr. 350 (1972) (unreasonable search and seizure);
Curtis v. Board of Supervisors, 7 Cal. 3d 942, 951, 501 P.2d 537, 104 Cal. Rptr. 297
(1972) (equal protection; independent significance of California constitution explicitly
noted); Raffaelli v. Committee of Bar Examiners, 7 Cal. 3d 288, 496 P.2d 1264, 101
Cal. Rptr. 896 (1972) (equal protection); McDermott v. Superior Court, 6 Cal. 3d 693,
493 P.2d 1161, 100 Cal. Rptr. 297 (1972) (prohibition against excessive bail); Hayes v.
Superior Court, 6 Cal. 3d 216, 490 P.2d 1137, 98 Cal. Rptr. 449 (1971) (equal protection); Serrano v. Priest, 5 Cal. 3d 584, 596 n.11, 487 P.2d 1241, 1249 n.11, 96 Cal.
Rptr. 601, 609 n.11 (1971) (equal protection); Randone v. Appellate Dep't, 5 Cal. 3d
CALIFORNIA LAW REVIEW
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California constitution has been the sole basis for decision, sometimes
without reference to the Federal Constitution or even without acknowledgement that a different result might follow if only the Federal Constitution were considered.1 8
536, 488 P.2d 13, 96 Cal. Rptr. 709 (1971) (due process); Blair v. Pitchess, 5 Cal. 3d
258, 486 P.2d 1242, 96 Cal. Rptr. 42 (1971) (due process); Sail'er Inn, Inc. v. Kirby, 5
Cal. 3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971) (equal protection); Richard M. v.
Superior Court, 4 Cal. 3d 370, 482 P.2d 664, 93 Cal. Rptr. 752 (1971) (double jeopardy); People v. Montalvo, 4 Cal. 3d 328, 482 P.2d 205, 93 Cal. Rptr. 581 (1971) (right
of jury trial); Jones v. Superior Court, 3 Cal. 3d 734, 478 P.2d 10, 91 Cal. Rptr. 578
(1970) (speedy trial); In re King, 3 Cal. 3d 226, 474 P.2d 983, 90 Cal. Rptr. 15 (1970)
(equal protection); Prudhomme v. Superior Court, 2 Cal. 3d 320, 323 n.4, 466 P.2d 673,
675 n.4, 85 Cal. Rptr. 129, 131 n.4 (1970) (privilege against self-incrimination);
People v. Bradley, 1 Cal. 3d 80, 460 P.2d 129, 81 Cal. Rptr. 457 (1969) (unreasonable search and seizure); People v. Edwards, 71 Cal. 2d 1096, 1105, 458 P.2d 713, 718,
80 Cal. Rptr. 633, 638 (1969) (unreasonable search and seizure); In re Harris, 69 Cal.
2d 486, 446 P.2d 148, 72 Cal. Rptr. 340 (1968) (due process); People v. Crovedi, 65
Cal. 2d 199, 417 P.2d 868, 53 Cal. Rptr. 284 (1966) (right to counsel of defendant's choice); Barker v. Municipal Court, 64 Cal. 2d 806, 415 P.2d 809, 51 Cal. Rptr.
921 (1966) (speedy trial); People v. Gallegoes, 62 Cal. 2d 176, 397 P.2d 174, 41
Cal. Rptr. 590 (1964) (search and seizure); People v. Cruz, 61 Cal. 2d 861, 395
P.2d 889, 40 Cal. Rptr. 841 (1964) (search and seizure); People v. Douglas, 61 Cal.
2d 430, 392 P.2d 964, 38 Cal. Rptr. 884 (1964) (right to counsel); People v. Reeves,
61 Cal. 2d 268, 275, 391 P.2d 393, 38 Cal. Rptr. 1 (1964) (search and seizure).
The parallel citation of federal and state constitutional provisions has, on occasion, led to uncertainty as to whether the decision rests independently on the California constitutional provision (even if the Supreme Court were to disagree as to
the interpretation of the federal provision). In Department of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965), the United States Supreme Court vacated and remanded a
judgment of the California Supreme Court which had invalidated state legislation with
an opinion citing the equal protection provisions of the state and federal constitutions.
The Court stated that it was "unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground." Id. at 196-97. Compare Jankovich v. Indiana Toll Road
Comm'n, 379 U.S. 487 (1965). The Court took the same action on review of the California Supreme Court decision holding a warrantless search unconstitutional [California v. Krivda, 409 U.S. 33 (1972)] and on review of a decision invalidating the
suspension of a driver's license without a hearing. Department of Motor Vehicles v.
Rios, 35 L. Ed. 2d 398 (1973) (per curiam). In each instance, the California Supreme
Court determined, on remand, that its prior decision had been based upon both federal
and state constitutional provisions, with the latter independent of the former. Department of Mental Hygiene v. Kirchner, 62 Cal. 2d 586, 400 P.2d 321, 43 Cal. Rptr. 329
(1965); People v. Krivda, 8 Cal. 3d 623, 504 P.2d 457, 105 Cal. Rptr. (1973) (per curiam). Procedural tangles of this sort are aided by the sometimes casual treatment the
state law provisions are given by the California Supreme Court. For example, in its
landmark decision on school financing, the court discussed the federal provisions and, in
a footnote, added the observation that Article I, sections 11 and 21 of the California constitution are "'substantially the equivalent' of the equal protection clause." Serrano v.
Priest, 5 Cal. 3d 584, 596 n.11, 487 P.2d 1241, 1249 n.11, 96 Cal. Rptr. 601, 609 n.11
(1971). Recent efforts have been more careful. E.g., People v. Triggs 8 Cal. 3d
884, 506 P.2d 232, 106 Cal. Rptr. 408 (1973) (search and seizure).
18. E.g., In re Lynch, 8 Cal. 3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972)
(cruel or unusual punishment); Kiopping v. City of Whittier, 8 Cal. 3d 39, 500 P.2d
1345, 104 Cal. Rptr. 1 (1972) (just compensation); People v. Anderson, 6 Cal. 3d 628,
493 P.2d 880, 100 Cal. Rptr. 152 (1972) (cruel or unusual punishment); People v.
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CALIFORNIA SUPREME COURT
For example, in Cardenas v. Superior Court,19 the California Supreme Court acknowledged that the United States Supreme Court had
held that a mistrial, granted on the trial court's own motion without
the defendant's consent but for his benefit, does not constitute a violation of the double jeopardy clause of the fifth amendment. It concluded, nonetheless, that such a mistrial does violate Article I, section
13 of the California constitution. After Benton v. Maryland" made
the fifth amendment protection against double jeopardy applicable
to state criminal prosecutions, the California Attorney General urged
the court to reconsider Cardenas. The court declined, observing:
Benton requires only that the states accord their citizens at least
as much protection against double jeopardy as is provided under
the Fifth Amendment of the United States Constitution; it does not
forbid a state from according a greater degree of such protection.2 1
Similarly, in People v. Henderson,"2 the California Supreme Court
held that the state constitution bars imposition of a harsher sentence
following retrial of a defendant who has successfully appealed a criminal conviction. That rule was applied in People v. Hood 3 notwithstanding an intervening decision of the United States Supreme Court
allowing, in certain circumstances, the imposition of a harsher penalty
following retrial. 24 And although the United States Supreme Court has
not yet extended its right-to-counsel rulings to state misdemeanor prosecutions, 25 the California Supreme Court has found the state constitution
Compton, 6 Cal. 3d 55, 490 P.2d 537, 98 Cal. Rptr. 217 (1971) (double jeopardy);
Curry v. Superior Court, 2 Cal. 3d 707, 470 P.2d 345, 87 Cal. Rptr. 361 (1970) (double jeopardy); In re Lopez, 2 Cal. 3d 141, 465 P.2d 257, 84 Cal. Rptr. 361 (1970)
(right to counsel in misdemeanor cases); In re Tahl, 1 Cal. 3d 122, 460 P.2d 449, 81
Cal. Rptr. 557 (1969) (waiver of jury trial); In re Haro, 71 Cal. 2d 1031, 458 P.2d 507,
80 Cal. Rptr. 595 (1969) (right to counsel); People v. Superior Court, 67 Cal. 2d 929,
932, 434 P.2d 623, 64 Cal. Rptr. 327 (1967) (criminal jury verdict must be unanimous); In re Smiley, 66 Cal. 2d 606, 614-15, 627 n.15, 427 P.2d 179, 184-85, 192
n.15, 58 Cal. Rptr. 579, 584-85-592-93 n.15 (1967) (right to counsel, right to speedy
trial, express disclaimer of reliance upon sixth amendment); In re Perez, 65 Cal. 2d 224,
418 P.2d 6, 53 Cal. Rptr. 414 (1966) (right of defendant in criminal case to be present,
defend, and have counsel); People v. Clark, 62 Cal. 2d 870, 402 P.2d 856, 44 Cal. Rptr.
784 (1965) (right to speedy trial); In re Johnson, 62 Cal. 2d 325, 398 P.2d 420, 42
Cal. Rptr. 228 (1965) (right to counsel); People v. Henderson, 60 Cal. 2d 482, 49597, 386 P.2d 677, 685-86, 35 Cal. Rptr. 77, 85-86 (1963) (double jeopardy); Cardenas
v. Superior Court, 56 Cal. 2d 273, 363 P.2d 889, 14 Cal. Rptr. 657 (1961) (double
jeopardy).
19. 56 Cal. 2d 273, 363 P.2d 889, 14 Cal. Rptr. 657 (1961).
20. 395 U.S. 784 (1969).
21. Curry v. Superior Court, 2 Cal. 3d 707, 716, 470 P.2d 345, 350-51, 87 Cal.
Rptr. 361, 366-67 (1970).
22. 60 Cal. 2d 482, 386 P.2d 677, 35 Cal. Rptr. 77 (1963).
23. 1 Cal. 3d 444, 459, 462 P.2d 370, 379, 82 Cal. Rptr. 618, 627 (1969).
24. North Carolinav. Pearce, 395 U.S. 711 (1969).
25. The United States Supreme Court did not extend the right to counsel to misdemeanor cases until 1972 [Argersinger v. Hamlin, 407 U.S. 25 (1972)], and then
CALIFORNIA LAW REVIEW
[Vol. 61:273
requires appointed counsel in such cases. 26
The court's willingness to read the state constitution independently
of the Federal Bill of Rights has not been widely emulated by its counterparts in other states.2 7 In many state courts, judges often treat state
and federal constitutions as if they were interchangeable; some even
rely upon a principle of construction that requires them to treat decisions interpreting the Federal Constitution as dispositive when considering counterpart provisions of their state charters.-" Thus California's commitment to the continuing development of a significant body
of state constitutional law is uncommon. In fact, as the decisions of the
United States Supreme Court begin to reflect the philosophies of its newest members, it is likely that California constitutional law principles
will increasingly differ from federal principles. The criticisms of Anderson, then, must be viewed in a larger context. Is it proper for the
courts of California to read language of the California constitution that
mirrors provisions of the Bill of Rights as more protective 20 of civil
rights and liberties than the federal charter? In interpreting the state
constitution, what significance, if any, should a state court attach to a
decision of the United States Supreme Court rejecting the identical claim
as a matter of federal constitutional law?
The California Supreme Court has not, at least in recent years, disPerhaps the court thinks too
cussed these questions at any length."
only to the extent that a prison or jail sentence is imposed. Compare Blake v. Municipal Court, 242 Cal. App. 2d 731, 51 Cal. Rptr. 771 (lst Dist. 1966).
26. In re Johnson, 62 Cal. 2d 325, 398 P.2d 420. 42 Cal. Rptr. 228 (1965).
27. Countryman, Why a State Bill of Rights?, 45 WASH. L. REV. 454 (1970);
Mazor, Notes on a Bill of Rights in a State Constitution, 1966 UTAH L. Rnv. 326 (1966);
Paulsen, State Constitutions, State Courts and First Amendment Freedoms, 4 VAND. L.
REv. 620 (1951); Linde, Book Review (to be published in ORE. L. REv. 1973). This
caution on the part of most state courts in finding scant independent protection of civil
liberties in their state charters has not been matched in the field of economic regulation; the reign of substantive due process, generally thought to be largely at an end in
the federal domain [see, e.g., Ferguson v. Skrupa, 372 U.S. 726 (1963)], continues to
have vitality in many state courts-on the authority, of course, of their respective
state constitutions. See Paulsen, The Persistence of Substantive Due Process in the
States, 34 MINN. L. REv. 91 (1950); Note, Counterrevolution in State Constitutional
Law, 15 STAN. L. Rv. 309 (1963).
28. Mazor, Notes on a Bill of Rights in a State Constitution, supra note 27, at
334.
29. It goes without saying, of course, that any reading of a state constitution
which affords less protection to individual rights and liberties than is required by the
Federal Constitution cannot affect the outcome; the question here is not whether state
constitutions can be read more restrictively than the federal (they can, but the supremacy clause requires enforcement of at least what the Federal Constitution demands)
but whether they can and should be read more broadly.
30. Its terse statement in Curry v. Superior Court quoted in the text at note 21,
supra might have been the introduction to a discussion of that nature, but the court did
not see fit to elaborate. Chief Justice Wright, the author of the Anderson opinion, re-
1973]
CALIFORNIA SUPREME COURT
obvious for explanation the principle that the state constitution is an
independent document binding upon it. Perhaps, too, the court should
not stoop to answer the intemperate, and perhaps politically inspired,
criticisms of Anderson."1
But respectable and serious expressions of
concern are beginning to appear. Thus Professor Bice recently wrote:
A more difficult question of propriety is posed when a state court
attempts to preclude Supreme Court review because it fears that
the Supreme Court will give the federal constitutional provision a
32
narrower, more restricted interpretation.
Although Professor Bice does not provide it,33 the answer to the
question he poses seems clear: there is not the slightest impropriety
when the highest court of a state3 4 invalidates state legislation or state
sponded to some of the criticism of that decision in an address which properly reminded the critics of the accepted principles of judicial review dating at least from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Wright, The Role of the Judiciary:
From Marbury to Anderson, 60 CALIF. L. REv. 1262 (1972). But the Chief Justice
did not direct his remarks (which were completed before the United States Supreme
Court had decided the death penalty case in June, 1972) to the relationship between the
state and federal constitutions. The fullest discussion of the print appears in People
v. Triggs, 8 Cal. 3d 884, at 891-92 n.5, 506 P.2d 232, 237 n.5, 106 Cal. Rptr. 408,
413 n.5, where the court acknowledged the potential confusion in referring to both
state and federal provisions with a single phrase and expressly stated that in referring
to fourth amendment rights, it intended an independent reference to Article I,
section 18 of the California constitution.
31. See note 4-7, supra, and accompanying text, See also the remarks of Governor Reagan and others quoted in Barrett, Anderson and the Judicial Function, 45 So.
CALr. L. REv. 739, 743-44 (1972).
32. Bice, Anderson and the Adequate State Ground, 45 So. CAMP. L. REv. 750,
756 (1972).
33. His concern, as previously noted [see note 15, supra], is with the impact on
state political processes of a decision invalidating legislation on both state and federal
constitutional grounds; he argues that by adding a holding of federal constitutional invalidity to a like conclusion based on state constitutional grounds the decision impermissibly deters use of the political process to amend the state constitution since to do
so would be a futile act. While he recognizes that in some instances there are legitimate ends served by deciding both federal and state questions [see id. at 759-60],
Professor Bice contends that if the court "bases a decision on independent state and
federal grounds to gain this 'insulation effect,' its action is illegitimate" since to do
so "uses the limitations on the power of federal courts in the federal system to increase
the state court's decision-making power vis-a-vis other branches of state government."
Id., at 757. He advocates no change in state court decision-making as such; rather,
he proposes that the Supreme Court revise its jurisdictional doctrines and consider itself free to review decisions of state courts based on both state and federal constitutions. See note 15, supra. My concern here, however, is at the state court level
and with the jurisprudential considerations that arise whenever decisions are founded
upon state constitutions, whether or not the Federal Constitution is invoked as well.
34. I do not mean to create a negative implication that there is a potential for impropriety when an inferior state court invalidates legislation on state constitutional
grounds. There is a tradition-more or less well established in California-that limits
the courts of appeal to a generally less innovative role, and thus one expects that most
of the path-breaking will be performed by the supreme court. Whether this tradition
-perhaps it is more accurately described as an attitude of mind by the judges of the
CALIFORNIA LAW REVIEW
[Vol. 61:273
administrative action as violative of the state constitution. That remains true even where the state constitutional provision is similar or
identical to the Federal Constitution, where the Federal Constitution's
meaning is uncertain, or where the state court suspects or knows to
a certainty that the United States Supreme Court would reject an analagous federal constitutional claim. Moreover, state courts ought to
regard decisions of the United States Supreme Court interpreting like
provisions of the Federal Constitution as binding only to the extent the
Court's reasoning is intellectually persuasive. These unequivocal assertions warrant elaboration.
The controversy over the Anderson decision provides a useful
starting point, for the court's critics seemed particularly outraged at
the significance attached to the relatively slight difference in wording
between the federal prohibition against "cruel and unusual punishments" and the state proscription of "cruel or unusual punishments."
But the court concluded in Anderson that "the delegates to the constitutional convention of 1849. .. were aware of the significance of the
disjunctive form and that its use was purposeful."' ' The Anderson
critics assumed that the United States Supreme Court would find capital
punishment to be constitutional under the eighth amendment prohibition against "cruel and unusual punishments" and the difference of
a single word would not have justified the difference in result. But
that view rested upon an implicit assumption which is entirely false:
that if California and federal constitutional provisions had been identical
in wording, an identical result would necessarily follow from their application. If one accepts that premise, it is not difficult to understand the
consternation which Anderson generates.
But the premise is incorrect. It is certainly no novel perception
that different men may employ identical language yet intend vastly different meanings and consequences. Some state constitutions preceded the Federal Bill of Rights; most were drafted thereafter. The
courts of appeal-is desirable in a state where the jurisdiction of the highest court is
discretionary and in practice limited to a small percentage of the appellate caseload
is certainly open to serious question. As a practical matter, in all but a small number
of cases the court of appeal is the court of last resort. For a court of appeal to let a
presumption as to its proper function govern the disposition in a case not clearly controlled by precedents of the California Supreme Court is to allow (unless, of course, the
importance of the case warrants review in the discretion of the supreme court) a factor
unrelated to the merits to affect the outcome. But all of this is another subject; for present purposes, my focus is on the California Supreme Court's exercise of its function
as the final arbiter of the California constitution's meaning.
35. People v. Anderson, 6 Cal. 3d 628, 634, 493 P.2d 880, 883, 100 Cal. Rptr.
152, 155 (1972).
I admit to being less than an impartial observer in this matter, having urged the very
distinction between the conjunctive and disjunctive forms upon the court.
1973]
CALIFORNIA SUPREME COURT
California constitution, for example, was first adopted in 1849;36 a
substantial revision occurred in 1879;11 and revisions have taken place
since that date. The authors of the Declaration of Rights were not the
authors of the Federal Bill of Rights; and while they doubtless were familiar with the federal provisions, they placed heavy reliance on the constitutions of other states-principally Iowa and New York. 33 Their
life experiences, their sense of the evils against which an enumeration
of liberties must guard, their understanding of the historical antecedents
for the language chosen-all surely differed in no small measure from
those of the framers of the Federal Bill of Rights.
But even had the framers of the state constitution intended to
adopt for California a declaration of rights embodying the very same
generalized principles as are in the Bill of Rights, they knew those
principles would be applied in a concrete, case-by-case fashion by the
state judiciary. Even if there were no disagreement as to the overall
purpose of any given constitutional provision, such as a prohibition
against harsh punishments, the state constitutional framers must have
realized that reasonable men could differ over its precise application.
Nothing in the history of the California constitution or in the structure
of American federalism commands that California judges yield to the
reasoning of federal judges in interpreting similarly worded constitutional provisions. 9
State judges, however, need not ignore the reasoning of the United
States Supreme Court in opinions rejecting a comparable federal constitutional claim. For a state court interpreting a state constituion,
opinions of the United States Supreme Court are like opinions of sister state courts or lower federal courts. While neither binding in a
constitutional sense nor precedential in a jurisprudential one, they are
entitled to whatever weight their reasoning and intellectual persuasiveness warrant. One would expect a state court to deal carefully with a
Supreme Court opinion and to explain forthrightly why it found
itself constrained to reason differently. But such a difference in rea36. PALMER AND SELVIN, THE DE VELOPMENT OF LAW IN CA.IFORNIA, WEST'S
ANNo. CODES, CONsTITUTION, 1, 16 (1954).
37.
Id. at 18-20.
38. See BROWNE, REPORT OF THE DEBATES IN THE CONVENTION OF CALIFORNIA, ON
THE FORMATION OF THE STATE CONSTITUTION, IN SEPTEMBER AND OCTOBER 1849 at
24, 31, 221 (1850); HuNT, Tim GENESIS OF CALrORNIA's FIRST CONsT~ruTiON 55-
60 (1895).
39. The principle is no less true when state court judges conclude that the state
constitution does not protect a claimed right or privilege but the United States Supreme
Court finds the claim well-founded as a matter of federal law. While the supremacy
clause requires the state to respect the rights and privileges the Supreme Court finds
grounded in the Federal Constitution, nothing requires the state judiciary to re-interpret the state constitution in a conforming manner.
CALIFORNIA LAW REVIEW
[Vol. 61:273
soning should be no more alarming than the differences which impel
one judge to dissent from another's opinion, one court to disagree
with another, or the judges of any court to disagree with a precedent
established by their predecessors.
Recognition that the American constitutional system neither requires nor prefers that state judges conform their interpretation of state
constitutions to the United States Supreme Court's interpretation of the
federal charter is especially vital in light of the changing philosophy of
the Supreme Court. After a consistent pattern of decisions making
applicable to state and local governments provisions of the Federal
Bill of Rights, a process of re-examination has commenced. The late
Mr. Justice Harlan, for example, expressed the view that the Fourteenth
amendment does not require that the strong prohibitions against censorship of expression imposed by the first amendment on the federal
government in dealing with sexual matters apply with equal rigor to
state and local governments.4 0 That view now appears to have at least
two additional adherents in Chief Justice Burger and Mr. Justice Blackmun. 41 Another shift is exemplified by Justice Powell's conclusion
that, although the sixth amendment commands a unanimous verdict for
conviction in a criminal case, the states may convict without unanimity because "not . . . all of the elements of jury trial within the
meaning of the Sixth Amendment are necessarily
embodied in or incor'42
porated into. . . the Fourteenth Amendment.
It may well be that these recent views narrowing the sweep of the
fourteenth amendment will not command a majority of the Court. But
a single Justice who subscribes to them can have a critical effect on decisions which determine the meaning of constitutional provisions controlling state and local action. The unanimous jury decision which
prompted an expression of Justice Powell's view provides a vivid illustration. There four members of the Court thought the sixth amendment requires unanimous juries to convict; four members disagreed and
voted to overrule a long line of cases requiring unanimity.43 Justice
Powell's conclusion that the sixth amendment requires unanimity but
that the fourteenth permits the states to convict with something less
40. See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 203-04 (1964) (Harlan, J.,dissening); Memoirs v. Massachusetts, 383 U.S. 413, 455-60 (1965) (Harlan, J.,dissenting);
compare Ginzburg v. United States, 383 U.S. 463, 493-97 (1966) (Harlan, J., dissent-
ing).
41. See Hoyt v. Minnesota, 399 U.S. 524 (1970) (Blackmun, J., dissenting);
Walker v. Ohio, 398 U.S. 434 (1970) (Burger, C.J., dissenting); Cain v. Kentucky, 397
U.S. 319 (1970) (Burger, CJ., dissenting).
42. Johnson v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J., concurring); see
also Bloom v. llinois, 391 U.S. 194, 211-15 (1968) (Fortas, J., concurring).
43. Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404
(1972).
1973]
CALIFORNIA SUPREME COURT
was dispositive: his approach, not joined in by any other member of
the Court, becomes (for the moment, at least) the law of the land.
In such circumstances, state judges must look to their own state constitutional provisions for guidance, without feeling obligated to follow
the reasoning of the Supreme Court.
Indeed, Justice Powell's belief that reading the fourteenth amendment as incorporating "'jot-for-jot and case-for-case' every element of
the Sixth Amendment. . . derogates principles of federalism that are
basic to our system" 14 and "deprives the States to freedom to experi'45
ment with adjudicatory processes different from the federal model
surely contemplates the exercise of a high degree of responsibility on
the state and local levels. State judges who insist that state government conduct itself in accordance with the specifications of the state
constitution are an essential component of the kind of federalism Justice Powell envisions.
In a distinct but equally fundamental sense, the practice of looking first to the state constitution as a basis for disposing of a claim of
right or privilege accords with our traditions of federalism. Professor
Linde has persuasively argued that the state courts must reach and
resolve claims in state constitutional terms before proceeding to a consideration of the federal question; only if the state constitution does not
offer the protection sought does it become appropriate to consider the
case in federal constitutional terms:
Whether [the fourteenth amendment] has been violated depends
on what the state has finally done. Many low-level errors that
potentially deny due process or equal protection are corrected within
the state court system; that is what it is for. The state constitution
is part of the state law, and decisions applying it are part of the
total state action in a case. When the state court holds that a given
state law, regulation, ordinance, or official action is invalid and must
be set aside under the state constitution, then the state is not violating the fourteenth amendment.
The point is obvious when a conclusion such as "Regulation
X denies defendant's rights under the fourteenth amendment and
the corresponding sections of [the state constitution]" is broken
down into its component parts. When a judgment holds with the
defendant that the regulation is invalid under the state constitution,
it cannot move on to a second proposition invalidating the state's
action under the federal Constitution. By the action of the state
court under the state constitution, the state has accorded the claimant the due process and equal protection commanded by the four44. Johnson v. Louisiana, 406 U.S. 356, 375 (1972) (Powell, J., concurring)
(notes omitted).
45. Id.
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teenth amendment, not denied it. While a defendant may have
both a state and a federal constitutional claim to present, legally
40
these are not cumulative but alternative. ....
Disposition of claims by reference first to the state constitution is
consistent with the familiar principle that controversies ought to be resolved at the lowest possible level. Just as courts traditionally avoid,
by statutory construction and like techniques, the necessity of invalidating legislation on constitutional grounds, 47 disposition upon state
constitutional grounds 47 avoids unnecessary federal constitutional adjudication. As a consequence, the result may be altered by constitutional amendment at the state level (unless, of course, the Federal Constitution is subsequently held to have the same meaning) without the
necessity of a federal constitutional amendment.
In the pages which follow, the work of the California Supreme
Court in 1972 will be discussed and dissected. As will happen when
scholars with a fair amount of time and a fresh perspective closely
scrutinize the decisions of busy courts, flaws in reasoning will be detected, unanswered countervailing arguments will be identified, disregarded considerations will be discussed. But the review of the
court's 1972 decisions also discloses the deep commitment of California's highest court-a commitment all too often not matched by its
brethren in other states-to deal with the hard questions which are
presented to it and to resolve them in a fashion which is faithful to the
profoundly important values enshrined in the fundamental laws of the
land. That commitment has required that serious attention be paid
to the Declaration of Rights of the California constitution. More than
twenty years ago, Professor Paulsen's review of the performance of
state courts in enforcing the provisions of their respective state constitutions persuaded him to observe that "if our liberties are not protected in Des Moines the only hope is in Washington." 8 We are fortunate that the perspective from California requires that observation to
be inverted.
46. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 ORE.
L. REv. 125, 133-34 (1970).
47. E.g., San Francisco Unified School Dist. v. Johnson, 3 Cal. 3d 937, 479 P.2d
669, 92 Cal. Rptr. 309 (1971).
48. Paulsen, State Constitutions, State Courts and First Amendment Freedoms, 4
VAND L. REv. 620, 642 (1951).