State 

Advisory Commission on 

Intergovernmental Relations 

Constitutional 

Compiled by 

Robert F. Williams 

Ru tgers University 

School of Law 

1990-91 Supplement 
1990-91 Supplement 

This supplement is intended to be used with State 

Constitutional Law: Cases and Materials, published by 

the Advisory Commission on Intergovernmental Relations (ACIR) in 1988. The additions are keyed lo the 

pages of the original publication. 

United States Supreme Court Justice William J. 

Brennan, Jr., had the following to say about the 1988 

publication: 

I congratulate you most enthusiastically 

upon your State Constitutional Law. I’d been 

hoping for some time that a casebook would 

be published. With the growing interest in 

reliance by state courts on their own constitutions, it’s been very badly needed. I shall 

certainly encourage any deans I run into to 

follow the lead of the other law schools already using it. 

ii 
Contents 

Introduction-At end of page 3 ................................................................ 

The Evolving State Constitutions during the Founding Decade-At end of page 13 .................. 

Coyle v . Smith-Page 20. Discussion Notes ...................................................... 

State Constitutions as Instruments of Lawmaking-Following page 25 .............................. Omaha National Bank v . Spire 223 Neb . 209. 389 N.W.2d 269 (1986) ............................ 

Pacific States Telephone and Telegraph Company v . Oregon-Page 41. Discussion Notes ............. 

Trombetta v . State of Florida-Page 49. Discussion Notes ........................................ 

Note on Garcia v . San Antonio Metropolitan Transit Authority-Page 54. top Discussion Notes ....... 

Wheeler v . Barrera-Page 59. Discussion Notes ................................................. 

McInnis v . Cooper Communities. 1nc.-At end of page 62 ........................................ 

State Constitutional Protections beyond Minimum Federal Constitutional Rights-At end of page 69 . . 

Michigan v . Mosley-Page 77. Discussion Notes ................................................. 

Cooper v . Morin-Page 87. Discussion Notes .................................................... 

People v . Class-Page 110. end of bottom Discussion Note 1 ...................................... 

Robert F . Williams. “In the Supreme Court’s Shadow .. ...- Following page 117 ...................... 

Following page 124-State v . Mollica 114 N.J. 329. 554 A.2d 1315 (1989) ............................ 

Following page 126-State v . Smith 301 Or . 681. 725 P2d 894 (1986) ................................ 

Page 133. after the Discussion Notes-Southcenter Joint Venture v . National Democratic Policy Committee 

Western Pennsylvania Socialist Workers 1982 Campaign v . Connecticut General Life Insurance CompanyPage 137. Discussion Notes ............................................................... 

People v . Zelinski-Page 142. Discussion Notes .................................................. 

Florida v . Casal-Page 152. Discussion Notes .................................................... 

113 Wash.2d 413. 780 €?2d 1282 (1989) ........................................................ 

Page 161. following the Discussion Notes-Davidson v . Rogers 281 Or . 219. 574 R2d 624 (1978) 

Page 164. following the Discussion Notes-In re TW . 551 So.2d 1186 (Fla.1989) ..................... 

Butte Community Union v . Lewis 712 P.2d 1309 (Mont . 1986) .................................. 

....... 

Sterling v . Cupp-Page 163. Discussion Notes ................................................... 

Tbcker v . Toia-Page 166. Discussion Notes ..................................................... 

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Page 168. Discussion Notes .................................................................... 

Page 177. at end of page-Woodruff v . Bd . of Trustees of Cabell Huntington Hospital 319 S.E.2d 372 

(W.Va. 1984) ............................................................................. 

Page 188. Discussion Notes .................................................................... 

Page 200. Discussion Notes .................................................................... 

Page 204. Discussion Notes .................................................................... 

Page 210. Discussion Notes .................................................................... 

Robert F . Williams. “State Constitutional Limits on Legislative Procedure .. ...-fig e 217. 

Discussion Notes ......................................................................... 

Ammerman v . Markham-Page 234. Discussion Notes ............................................ 

Page 236. add the following paragraph .......................................................... 

Page 265. at the end of the first full paragraph. right column ...................................... 

Page 281. at end of Discussion Note 1 .......................................................... 

American Trial Lawyers Association v . New Jersey Supreme Court-Page 284. Discussion Notes ...... 

Commonwealth v . Pennsylvania Labor Relations Board-Page 289. Discussion Notes ................ 

Page 292. following Discussion Notes-Lehman Brothers v . Schein 416 U.S.386 (1974) ............... 

State. ex rel., Kleczka v . Conta-Page 311. Discussion Notes ...................................... 

Florida Department of Natural Resources v . Florida Game and Fresh Water Fish Commission-Page 314. 

Discussion Notes ......................................................................... 

Page 328. after Discussion Notes-Benderson Development Co., Inc . v . Sciortino 372 S.E.2d 751 (Va . 1988) 

State. ex re1 . Barker v . Manchin-Page 343. Discussion Notes ..................................... 

Following page 359 ........................................................................... 

Richard Briffault. “Our Localism: Part 11--Lo calism and Legal Theory” ........................ 

vex . 1989) ............................................................................... 

Richard Briffault. “Our Localism: Part I-The Structure of Local Government Law ............. 

Page 412. after Discussion Notes-Edgewood Independent School District v . Kirby 777 S.W. 2d 391 

Page 415. Discussion Notes .................................................................... 

Following page 451-Grose v . Firestone 422 So.% 303 (Fla . 1982) .................................. 

James Willard Hurst. “The Growth of American Law”-Page 425. Discussion Notes ................. 

Meyer v . Grant-Page 464. Discussion Notes .................................................... 

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Introduction 

At end of page 3: 

New research sources in state constitutional law 

include an “Annual Issue on State Constitutional 

Law,” published in the Rutgers Law Journal for the 

first time in 1989. The issue includes commentary on 

all the important st ate const it utional interpretations 

during the previous year. See especially, Earl M. 

Maltz, Robert F. Williams, and Michael Araten, “Selected Bibliography on State Constitutional Law, 

1980-1989,” Rutgers Law Journal 20 (Summer 1989): 

1093. See also Bernard D. Reams, Jr., and Stuart D. 

Yoak, eds., The Constitutions of the States: A State-byState Guide and Bibliography to Current Scholarly Research (Dobbs Few, N.Y.: Oceana, 1988); ‘The 1970 

Illinois Constitution in Review: A Symposium on Issues 

for Change,” Northern Illinois University Law Review 8 

(1988): 565; “Symposium on the Texas Constitution,” 

Tm Lay Review 68 (June 1990): 1337. 

A 1988 national poll by ACIR revealed that 52 

percent of the respondents did not know that their 

state had its own constitution. John Kincaid, “The 

New Judicial Federalism,” The Journal of State Government 61 (SeptJOct. 1988): 169. In 1989, ACIR 

made the following finding: 

Even among lawyers, state constitutional law is relatively unknown and little practiced. Compared to the US. Constitution, 

state constitutions are less frequently mentioned in the history and civics classes of 

public schools or the university, and regular 

reporting of state constitutional decisions, as 

well as the statistics of state court activities, 

has been, until very recently, quite rare. 

Even the law schools seldom offer courses in 

state constitutional law. If the American fed- eral system is to be properly balanced-giving 

full rein to the potentials of local governments, 

the states, and the national govemment-then 

the field of state constitutional law needs to be 

developed more fully. 

The Commission recommended that “law 

schools teach state constitutional law as part of their 

regular curriculum, that state bar examiners include a 

section on state constitutional law in their bar exams, 

and that public and private institutions support research on state constitutional law.” Advisory Commission on Intergovernmental Relations, State 

Constitutions in the Federal System: Selected Issues and 

Opportunities for State Initiatives (1989) pp. 2, 3. 

In 1988, West Publishing Company introduced its 

State Constitutional Law in a Nutshell, by Thomas C. 

Marks, Jr., and John F. Cooper. Also in 1988, the 

National Association of Attorneys General began 

publishing an annual law review, Emerging Issues in 

State Constitutional Law, two issues of which have 

appeared. In Fall 1989, the first issue of the quarterly 

publication State Constitutional CommentariRF and Notes 

appeared, under the editorship of Stanley H. Friedelbaum, director of the Edward McNall Bums Center for 

State Constitutional Studies at Rutgers University. Finally, Greenwood Press has announced the publication 

of a 50-volume reference work on each state’s constitution, three of which will be available in late 1990. 

The Evolving State Constitutions 

during the Founding Decade 

At end of page 13: 

For more detailed discussion of state constitution 

making during the Founding era, see Robert E Williams, 

“The State Constitutions of the Founding Decade: 

Pennsylvania’s Radical 1776 Constitution and its In- fluences on American Constitutionalism,” Temple 

Law Review 62 (1989): 541. See also Robert J. Steinfeld, “Property and Suffrage in the Early American 

Republic,” Stanford Law Review 41 (1989): 335; “Sym- posium on State Constitutional History: In Search of 

a Usable Past,” Albany Law Review 53 (Winter 1989): 

253; Donald S. Lutz, The Origins of American Con- stitutionalism (Baton Rouge: Louisiana State Univer- sity Press, 1988). 

Consider the following perspective on the state 

constitutions of the Revolutionary period: 

The growing importance attached to 

written constitutions reveals the change in 

mentality that had been worked by the 

spread of print culture between the sixteenth 

and the eighteenth centuries. By the 18th 

century, the middle class, then on the verge 

of acquiring political power, had learned to 

read. Reading was of fundamental impor- tance because it promoted a transformation 

in the way humans learn. Reading involved a 

move from learning through hearing to 

learning through seeing, a change that had 

far-reaching implications for political culture. 

Reading promoted a desire for precise infor- mation, and hence encouraged belief in the 

perfectibility of knowledge. One who reads is 

encouraged to define, to classify, and to speci- fy. In the eighteenth century, this new mental- ity was characterized as “clarity of mind.” In 

other words, reading creates a mentality that 

wishes to set precise rules and boundaries. The 

desire to set down in writing universal princi- ples, grounded in reason, was promoted by the 

underlying imperative for precision that the 

print revolution had engendered. 

Patrick H. Hutton, ‘The Print Revolution of the 

Eighteenth Century and the Drafting of Written Constitutions,” Kmnont Histoy 56 (Summer 1988): 158. 

1 
Coyle v. Smith 

Page 20, Discussion Notes: 

Discussion Notes 

4. For a brief discussion of the process of 

approval of the Arizona constitution during the 

admission process, see John D. Leshy, ‘The 

Making of the Arizona Constitution,” Arizona 

Stale Law Journal 20 (Spring 1988): 1. 

State Constitutions as Instruments 

of Lawmaking 

Following page 25: 

Omaha National Bank v. Spire 

223 Neb. 209,389 N.W.2d 269 (1986) 

GW, Justice. 

This is a declaratory judgment action brought by 

the plaintiff-appellant, The Omaha National Bank, a 

corporation, against the defendant-appellee, Attorney General of the State of Nebraska. . . . Omaha National further alleged that on November 

2, 1982, the voters of the State of Nebraska adopted 

Initiative Petition 300, which purports to amend article 

XI1 of the Nebraska Constitution by adding a new section, designated as sec. 8. As stated in the initiative 

petition, the enactment provided in part as follows: 

That Article XI1 of the Constitution of 

the State of Nebraska be amended by adding 

a new section numbered 8 and subsectionsas 

numbered, notwithstanding any other provisions of this Constitution. 

Sec. 8(1) No corporation or syndicate shall 

acquire, or otherwise obtain an interest, 

whether legal, beneficial, or otherwise, in any 

title to real estate used for farming or ranching 

in this state, or engage in farming or ranching. 

.... 

The Secretary of State shall monitor 

corporate and syndicate agricultural land 

purchases and corporate and syndicate farming and ranching operations, and notify the 

Attorney General of any possible violations. 

If the Attorney General has reason to believe that a corporation or syndicate isviolating this amendment, he or she shall 

commence an action in district court to enjoin any pending illegal land purchase, or 

livestock operation, or to force divestiture of 

land held in violation of this amendment. 

Omaha National alleged that “[ilf Initiative 300 is 

construed to apply to the acquisition and administration 

of farm and ranch lands by [Omaha National] for 

non-corporate and non-syndicate beneficiaries, it will 

greatly limit [Omaha National’s] ability to caq on a 

trust business in the State of Nebraska.” 

* * * * * 

With regard to appellant’s contentions, we are 

aided not only by the briefs of appellant and amici but 

by a law review article prepared by appellant’s counsel. See Brown & Brown, Constitutionality of Nebraska S Initiative Measure Prohibiting Corporate Farming and 

Ranching, 17 Creighton L.Rev. 233 (1984). In opposition 

thereto, we have available the defendant’s brief, and 

those of certain amici who support the Attorney General’s position in part, as well as a responding law review 

article. See Lake, Constitutionality of Xnitiative 300’: An 

Answer, 17 Creighton L.Rev. 261 (1984). 

We first discuss Omaha National’s contention that 

Initiative 300 is statutory in nature rather than an 

amendment to the Constitution of the State of Nebraska. The authority of the people of Nebraska to amend 

the Constitution of the State of Nebraska is set in article 

111, sec. 2, of that Constitution, which provides in part: 

The first power reserved by the people is 

the initiative whereby laws may be enacted 

and constitutional amendments adopted by 

the people independently of the Legislature. 

This power may be invoked by petition 

wherein the proposed measure shall be set 

forth at length. If the petition be for the 

enactment of a law, it shall be signed by 

sevenpercent of the electorsof thestateand 

if the petition be for the amendment of the 

Constitution, the petition therefore shall be 

signed by ten per cent of such electors. . . . (Adopted, 1912. Amended, 1920.) 

Other provisions of article 111, secs. 2 and 4, set 

out further procedural requirements that must be 

met before an enactment initiated by a petition becomes a part of the statutory law of Nebraska or a part 

of the Nebraska Constitution, as provided in article 

111, sec. 4. There is no allegation in this court that all 

requirements to enact Initiative300 were not met, but 

only an attack on the effect of what was done by the 

electorate of Nebraska. 

The initiative petitions circulated and filed with 

the Secretary of State of the State of Nebraska stated 

in part: 

Wc, thc undersigned legal voters of the 

State of Nebraska . . . respectfully demand 

that the following constitutional amcndrnent 

shall be submitted to the voters of the State 

of Nebraska. . . . 

2 
That Article XI1 of the Constitution of 

the State of Nebraska be amended by adding 

a new section numbered 8 and sub-sections 

as numbered, notwithstanding any other 

provisions of this Constitution. 

The ballot submitted to the electorate afforded 

the voters the opportunity to vote “For” or “Against” 

in response to the question, “Shall a constitutional 

prohibition be created prohibiting ownership of Nebraska farm or ranch land by any corporation, domes- tic or foreign, which is not a Nebraska family farm 

corporation. . . ?” The ballot also stated: 

“A vote FOR will create a constitutional prohibi- tion against further purchase of Nebraska farm and 

ranch lands by any corporation or syndicate other 

than a Nebraska family farm corporation. 

“Avote AGAINSTwill reject such aconstitutiona1 restriction on ownership of Nebraska farm and 

ranch land.” 

The parties stipulated, “On November 2, 1982, 

the voters of Nebraska passed Initiative Petition 300. . . which states that it amendskticle XI1 of the Nebraska Constitution. . . .” 

With that background, Omaha National would 

have us determine that Initiative 300 is not a constitu- tional amendment but a statute passed by the initiative 

process. Omaha National contends that the Preamble 

to our Constitution controls and that all amendments to 

that Constitution must fully comply with the 31 words 

set out in that Preamble, or such enactments are stat- utes only and not constitutional amendments. The 

Preamble states: ‘We, the people, grateful to Almighty 

God for our freedom, do ordain and establish the fol- lowing declaration of rights and frame of government, 

as the Constitution of the State of Nebraska.” 

In support of this assignment of error-that Initiative 300 is a statute and not a constitutional amend- ment-Omaha National first contends that the 

Preamble to our Constitution is a part of that Constitution and that a proposed enactment must be one 

that relates directly to the purposes set out in the 

Preamble, or the enactment is a statute rather than a 

constitutional amendment. Omaha National reasons 

that if the proposed enactment is one which changes 

the “declaration of rights” or the “frame of government,” as set out in the Nebraska Constitution 

Preamble, the enactment is an amendment; if not, it 

is a statute. Brief for Appellant at 14. 

There are at least two reasons we cannot adopt 

the position of Omaha National in this regard. First, 

the Preamble is not a part of the Constitution, but 

only a general statement of purpose. . . . Similarly, we hold that the State of Nebraska does 

not derive any of its substantive powers from the 

Preamble to the Nebraska Constitution. The Preamble 

cannot exert any power to secure the declared objects of 

the Constitution unless, apart from the Preamble, such 

power can be found in, or can be properly implied from, 

some express delegation in the Constitution. 

Secondly, even if the Preamble were considered 

to be an operative part of our Constitution, it could be 

amended in any way that any other part of the Consti- tution may be amended. No part of the Constitution, 

including the Preamble, is inviolable. To hold to the 

contrary would give absolute finality to a portion of 

the Constitution and would thwart the express will of 

the people when they retained the right to amend 

their Constitution. The people specifically reserved 

this right to themselves in secs. 2 and 4 of article I11 

and in article XVI of the Nebraska Constitution. 

Even if, as we have held, the provisions set out in 

the Preamble do not control the determination as to 

whether Initiative 300 is an amendment or a statute, 

Omaha National’s position remains-that Initiative 

300 is a statute and not an amendment. That position 

is based on a three-step approach: (1) Labeling a 

legislative measure as a constitutional amendment 

does not make it so. (2) A constitutional amendment 

must deal with fundamental rights or the organization of government. (3) If an initiative measure is 

statutory in nature, it is, regardless of its label, void if 

it conflicts with constitutional provisions. 

Basic to a consideration of this contention is article 111, sec. 2. The pertinent part of that article is set 

out above. The people of Nebraska have established a 

Constitution, and within that Constitution they have 

set forth a procedure which sets out methods in which 

they may amend that Constitution. The word “amend- ment,” as defined in Black’s Law Dictionary 74 (5th 

ed. 1979), means: “To alter by modification, deletion, 

or addition.” To the same effect, see Webster’s Third 

New International Dictionary, Unabridged 68 (1981). 

For this court to hold that we must make an indepen- dent judgment as to whether an enactment is an 

amendment or a statute before it may be considered as 

an amendment to the people’s Constitution would be to 

give the judicial branch of our government an effective 

veto over the rights the people have reserved to them- selves to change their Constitution. 

We can put it no clearer than did the trial court in 

its memorandum: 

The ultimate source of power in anydemocratic form of government is the people. Our Ne- braska Constitution is a document belonging 

to the people. Subject only to the supremacy 

clause of the United States Constitution, the 

people may put in their document what they 

will. Even to the shock and dismay of constitutional theoreticians, the people may add provisions dealing with “non-fundamental” rights, 

as well as provisions bearing the most tenuous 

of relationships to the notion of what consti- tutes the basic framework of government. The 

3 
people may add provisions which legal scholars 

might decry as legislative or statutory in na- ture, But the people may do it nonetheless. 

We hold that the deciding factor in determining 

whetheragroposed initiative enactment is an amendment or a statute is the manner in which the proposal 

is denominated in the initiative petition submitted to 

the voters; provided, of course, that the provisions of 

the remainder of article III, sec. 2, of our Constitution 

are complied with. In part, that section provides: “If the 

[initiative] petition be for the enactment of a law, it shall 

be signed by seven per cent of the electors of the state 

and if the petition be for the amendment of the Constitution, the petition therefore shall be signed by ten per 

cent of such electors.” 

Voters are involved in an initiative proceeding at 

two separate and distinct times. First, a petition must 

be signed by electors equal in number to at least 7 

percent or 10 percent of “[tlhe whole number of votes 

cast for Governor at the general election nextpreceding the filing of an initiative or referendum petition. . . .” 

Neb. Const. art. 111, sec. 4. The signers of an initiative 

petition are stating that they desire to submit a specific 

proposed enactment to the voters. By signing the 

petition, those signers have stated the form of the 

proposed enactment. 

The issue stated on the initiative petition, therefore, sets out the issue which the signers of that petition 

desire to submit to the electorate. If an initiative petition states that the signers wish to submit an amendment to the Constitution to the voters, the persons who 

sign such a petition want an amendment voted on. If 

such a petition were to obtain the number of signatures 

equal to 7 percent of the electors of those who voted in 

their most recent election for the office of Governor, 

but not 10 percent of such electors, the petition could 

not then be submitted to the voters of the state as a 

proposed law. The petition signers have stated that each 

desires an amendment, not a law, to be voted on. 

Similarly, if an initiative petition sets out that the 

signers want a proposed law submitted to the electorate, the mere fact that the petition contains a number 

of signatures equaling 10 percent or more of the appropriate number of electors could not mean that the 

petition could be voted on as an amendment. Each of 

the signers has stated that that voter wants to have a law 

voted on-not a constitutional amendment. Tb hold 

otherwise would mean that numbers control, and not 

the specific intention of people signing a petition. 

The differences between a law enacted by the 

initiative procedure and an amendment are obvious 

and great. While a law enacted by the initiative pro- cess may not be vetoed by the Governor of the state 

(article 111, sec. 4), any law may later be repealed by 

the Legislature. An amendment to the Constitution, 

on the other hand, may not be repealed by the Legislature, but only by the people in a subsequent amend- ment to the Constitution. 

In response to appellant’s approach, we hold that 

under the Nebraska Constitution, in an initiativeproceeding, the labeling attached to a proposed enact- ment determines the nature of the proposed 

enactment. Otherwise, neither the signers of initiative petitions nor the voters at an election will ever 

know what they are signing or voting for. There are 

voters who would not sign a petition for, nor vote for, 

a constitutional amendment, while they would so sign 

and vote for an initiative statute, and vice versa. 

It then follows that a proposed amendment to 

our Constitution does not have to deal with funda- mental rights or the organization of government, but 

may deal with any subject. 

Such an approach not only leaves the people of 

this state in charge of their Constitution, as a matter 

of logic, but follows the stated conclusions of this 

court and accords completely with past actions of 

Nebraskavoters. Inlnre Senatefile 31,25Neb. W,41 

N.W. 981 (l889), we held that a proposed amendment to 

our Constitution could be submitted to the electorate. 

The proposed amendment provided that “the manufac- ture, sale, and keeping for sale of intoxicating liquors as 

a beverage in this state shall be licensed and regulated 

by law.” Id. at 869-7441 N.W. at 982 A licensing provi- sion could hardly be considered as affecting a “declaration of rights” or “frame of govemment,” and yet this 

proposed enactment was held to be proper to submit, as 

an amendment, to the people for their vote. 

Similarly, in 1934, an amendment was submitted 

to the people, and adopted as article 111, sec. 24, of the 

Nebraska Constitution, authorizing parimutuel wagering on horseraces. In 1958, the voters again 

amended the same article to permit bingo games. In 

short, the people of the State of Nebraska have 

amended their Constitution in many ways that disinterested observers might well conclude were theoretically legislative in nature. 

In so holding that the people of Nebraska may 

amend their Constitution in any way they see fit (so 

long as the amendment does not violate the Constitution of the United States or conflict with federal stat- utes or treaties), we find ourselves in agreement with 

the holding of the Supreme Court of the United States 

in construing amendments of the U.S. Constitution. In 

Nurional prohibition Cam, 253 U.S. 350, 386, 40 S.Ct. 

486,488,64 LEd. 946 (192Q the Court held, in the face 

of contentions that the 18th amendment to the Constitution of the United States was really only an exercise of 

ordinary legislative power: 

4. The prohibition of the manufacture, 

sale, transportation, importation and exportation of intoxicating liquids for beverage 

purposes, as embodicd in the Eighteenth 

4 
Amendment, is within the power to amend 

reserved by Article V of the Constitution. 

5. That Amendment, by lawful proposal 

and ratification, has become a part of the 

Constitution, and must be respected and given effect the same as other provisions of that 

instrument. 

Article V of the U.S. Constitution places only two 

restrictions on the right to amend that Constitution: 

Provided that no Amendment which may be 

made prior to the Year One thousand eight hundred 

and eight shall in any Manner affect the first and 

fourth Clauses in the Ninth Section of the first Ar- ticle; and that no State, without its Consent, shall be 

deprived of its equal Suffrage in the Senate. 

The 18th amendment of the U.S. Constitution 

did not conflict with the express conditions of the 

amendment process, and the amendment was determined to be part of the Constitution, although legisla- tive in nature. 

In Ex Parte Marsh v. Bartlett, 343 Mo. 526, 121 

S.W.2d 737 (1938), the Missouri Supreme Court 

upheld an amendment legislative in nature. The 

amendment provided generally for the repeal of ex- isting fishing statutes and established a “Conserva- tion Commission.” The court held that the people 

had delegated to the Missouri General Assembly the 

authority to legislate, “subject to the referendum 

clause, and to propose constitutional amendments by 

enactment of joint and concurrent resolutions”; and 

that the people had reserved “to themselves power to 

propose laws and amendments to the Constitution 

and to enact or reject the same at the polls, independently of the legislative assembly. . . .” 343 Mo. at 537, 

121 S.W.2d at 742. We note also that a contention was 

made in that case that the amendment was submitted 

in such a fashion that the voters did not know whether 

they were voting on a law or an amendment, a con- cern not present in the instant case, since Initiative 

300 was clearly labeled an amendment. 

Omaha National contends that earlier Missouri 

cases have adopted the position first set forth in Stare 

er rel. Halliburton v. Roach, 230 Mo. 408,438-39, 130 

S.W. 689,6% (1910) that “the petitioners [for an ini- tiative amendment to the Missouri Constitution] 

have no right to undertake to put in the Constitution, 

which is regarded as the organic and permanent law 

of the State, mere legislative acts providing for the 

exercise of certain powers.” 

Omaha National’s reliance on Hallibutton was 

shown to be mispfaced when in Union Eiec. Co. v. 

Kirkpatrick, 678 S.W.2d 402, 404-05 (Mo.1984), the 

Missouri Supreme Court stated: 

This holding in Halliburton, however, is 

no longer good law. . . . The 1945 Constitution 

resolved the Halliburton problem by discour- aging use of the initiative for constitutional 

amendments while encouraging use of the 

process for statutes. “[Tlhe entire theory of 

the Committee in drafting this section 58 

[now Sec. 50, Art.1111 was to try to make it 

necessary for those people who want to write 

legislative matters into the constitution to so 

announce it by placing an enacting clause 

that says we are trying to write this matter 

into the constitution,. . .” and getting the 

additional signatures on the proposed consti- tutional amendment. 

Legislative matters may now be enacted as amend- ments to the Missouri Constitution subject only to the 

provisions that the initiative show, on its face, that it 

proposes an amendment to the Constitution. This con- clusion squares entirely with our holding herein. 

* * * * 

The position we take herein has been adopted by 

the Supreme Court of Michigan in City ofJackson v. 

Com’r of Rewnue, 316 Mich. 694,26 N.W.2d 569 (1947), 

and by the Supreme Court of Oklahoma in In m Initiative Petition Number 259, etc., 316 P2d 139 (Okla. 1957). 

Since we have determined that Initiative 300 was 

adopted as an amendment and not a statute, we need 

not consider whether Initiative 300, if a statute, is in 

violation of our Constitution. 

If it then be contended that even if Initiative 300 

is an amendment to our Constitution, it conflicts with 

that same Constitution, we find that position without 

merit. We agree with the Massachusetts Supreme 

Judicial Court, which stated in a footnote simply that 

“tilt is difficult to comprehend how the proposed 

constitutional amendment can be ‘unconstitutional’ 

under our Constitution.” Answer ofthe Justices, 375 

Mass. 847,849, n. 2,377 N.E.2d 915,916 n. 2 (1978). 

Similarly, in Floridians Against Casino Takeover v. 

Let’s Help, 363 So.2d 337,341-42 (Fla. 1978), the Su- preme Court of Florida stated: 

“[Clonflict” with existing articles or sections of the Constitution can afford no log- ical basis for invalidating an initiative 

proposal. Such an assertion ignores estab- lished patterns of constitutional construc- tion. When a newly adopted amendment 

does conflict with preexisting constitutional 

provisions, the new amendment necessarily 

supersedes the previous provisions. Other- wise, an amendment could no longer alter ex- isting constitutional provisions and the 

amendment process might, in every case, be 

frustrated by the judicial determination that a 

given proposal conflicts with other provisions. 

It would completely subvert our role as one of the 

three branches of government established by the peo- ple in the Constitution to expand our jurisdiction to 

tell the votersof thisstate that although theconstitution states that the people have reserved the power to 

amend that Constitution, they many only amend it in 

5 
ways that we determine are fundamental or have 

something to do with our “organic” law. Omaha Na- tional’s first assignment is without merit. We affirm 

the holding of the trial court that Initiative 300 is an 

amendment of the Constitution of Nebraska. 

Pacific States Telephone 

and Telegraph Company v. Oregon 

Page 41, Discussion Notes: 

Discussion Notes 

4. What if the initiative provisions had 

been in the Oregon constitution at the time it 

applied for admission to the Union? 

5. See State v. Wagner, 752 I? 2d 1136,1197 

n. 8 (Or. 1988) (Linde, J., dissenting): 

8. Another question that has not been 

briefed is whether a plebiscite that by- passes the legislature and the governor in 

order to repeal parts of the Bill of Rights 

and to impose a penal regime which is mor- ally repugnant to a substantial minority of 

citizens remains compatible with the state’s 

obligation to maintain a republican form of 

government, U.S. Const. Art. W para. 4, as 

well as with the original purposes of 

amended Or. Const. Art. n! para. 1. An 

iriltiative measure not only short-circuits the 

hearings, study, debate, and adjustments 

made in the normal legislative process, see 

OEA v. Phillips, 302 Or. 87,10647,727 P. 2d 

602 (1986) (Linde, J., concurring), it replaces 

a representative body‘s resistance to over- riding intensely felt minority concerns with 

a purely majontarian plebiscite. The ques- tion whether republicanism limits this pro- cess dropped from sight for lack of judicial 

opinions after the United States Supreme 

Court held it beyond the reach of the feder- al courts in its more generalized form, i.e., 

whether the existence of a nonrepublican 

feature would make the entire state govern- ment illegitimate, Pacific Telephone Co. v. 

Oregon, 223 U.S. 118,32 S.Ct. 224,56 LEd. 

377 (1912) (challenge to a license tax en- acted by an initiative measure). 

This did not relieve state courts of 

responsibility under their state constitutions and the Supremacy Clause, 

U.S. Const., Art. VI, to determine 

whether their governments had acted 

by institutions or processes that remained “republican” within the meaning of the Guarantee Clause, as this 

court did in Kieman v. Portland, 57 Or. 

454, 111 F? 379, reh. den., 57 Or. 454, 

land, 44 Or. 118,74 I? 710, reh. den., 44 

Or. 118,75 F? 222 (1903). See also Van 

Sickle v. Shanahan, 212 Kan. 426,511 I? 

2d 223 (1973); Kohler v. Tugwell, 292 

dom, J., concurring); seegeneralty, Tnk, 

American Constitutional Law 98-100 

(2d ed. 1987); Heaton, Guarantee 

Clause: A Role for the Courts, 16 

Cumb.L.Rev. 477 (1985-8); Bonfield, 

The Guarantee Clause of Article XI? Section 4: A Study in Constitutional Desuetude, 46 Minn.L.Rev. 513 (1962); Wiecek, The Guarantee Clause of the US. 

Constitution (1972). 

The case of I/an Sickle v. Shanahan, 212 Kan. 

426, 511 P.2d 223 (1973), referred to by Justice 

Linde, held that a guarantee clause claim was 

justiciable in state court. For further elaboration 

of this theme by Justice Linde, see Hans A. 

Linde, ‘When is Initiative Lawmaking Not ‘Republican Government’?” Hastings Comitutionai 

Luw Qumedy 17 (Fall 1989): 159. 

112 F? 402 (1910) and &ddm& V. PortESU~~. 978, 985 (ED La 1968) (WisTrombetta v. State of Florida 

Page 49, Discussion Notes: 

Discussion Notes 

3. In Hemon v. Southern Pacijic Co., 283 U.S. 

91 (1931), the United States Supreme Court 

held that a federal Court sitting in Arizona could 

direct a verdict for the defendant on the grounds 

of contributory negligence or assumption of the 

risk, despite the following Arizona constitutional 

provision: ‘The defense of contributory negligence or of assumption of risk shall, in all cases 

whatsoever, be a question of fact and shall, at all 

times, be left to the jury.” 

4. For cases on the Federal Age Discrimination Act and its effect on state constitutional 

mandatory retirement provisions for judges, 

see EEOC v. Massachusetts, 858 F.2d 52 (1st. 

Cir. 1988); “Developments in State Constitutional Law: 1988,” Rutgers Law Journal 20 

(Summer 1989): 1034-35. 

5. In McDaniel v. Pafy, 435 U.S. 618 (1978) 

the United States Supreme Court struck 

down, on federal constitutional grounds, a 

Tennessee statute which, based on a state constitutional prohibition on clergy serving in the 

legislature, barred clergy from serving in a 

state constitutional convention. 

6 
Note on Garcia v. San Antonio 

Metropolitan Transit Authority 

Page 54, top Discussion Notes: 

Discussion Notes 

3. Could there be any other limit on Congress’ power to legislate with respect to matters 

of importance to the states? How about to override state constitutional rights? See Calvin R. 

Massey, “Antifederalism and the Ninth Amendment,” Chicago-&nt Law Review 64 (1989): 987; 

“Federalism and Fundamental Rights: The 

Ninth Amendment,” Hastings Law Journal 38 

(1987): 305. 

Wheeler v. Barrera 

Page 59, Discussion Notes: 

Discussion Notes 

4. In Aguilar v. Felton, 473 U.S. 402 (1985), 

the U.S. Supreme Court held that providing 

‘Iitle I educational services in parochial schools 

violated the First Amendment’s Establishment 

Clause. 

McInnis v. Cooper Communities, Inc. 

At end of page 62: 

3. Conflict with Federal Regulations 

Federal regulations have no less 

preemptive effect than federal statutes. 

Where Congress has directed an administrator to exercise his discretion, his judgments 

are subject to judicial review only to deter- mine whether he has exceeded his statutory 

authority or acted arbitrarily. When the ad- ministrator promulgates regulations intended to pre-empt state law, the court’s 

inquiry is similarly limited: If [hlis choice 

represents a reasonable accommodation of 

conflicting policies that were committed to 

the agency’s care by the statute, we should 

not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would 

have sanctioned. 

fidelity Federal Savings and Loan Ass’n v. De La Cuesfa, 458 U.S. 141,153-54 (1982) [quoting United States 

v. Shimer, 367 U.S. 374, 383 (1961)l. 

State Constitutional Protections 

beyond Minimum Federal 

Constitutional Rights 

At end of page 69: 

Compare the following statement to Monrad 

Yet, with an increased awareness on the 

part of the Iowa bar and bench of the potential presented by reliance on the Iowa Constitution as an independent source of power 

and protection, the predictions of Justice 

Brennan and others may come true. The 

state of Iowa for one can make sure its reopened laboratory is active and productive. 

For if our liberties are not protected in Washington, the only hope is in Des Moines. 

Michael A. Giudicessi, “Independent State Grounds 

for Freedom of Speech and of the Press: Article I, 

Section 7 of the Iowa Constitution,” Drake Law Review 38 (1988-89): 29. 

Paulsen’s 1951 quote on page 68 

Michigan v. Mosley 

Page 77, Discussion Notes: 

Discussion Notes 

4. See Robert F. Williams, “In the Supreme 

Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result,” 

South Carolina Law Review 35 (Spring 1984): 

375-76 

It is now becoming clear that Supreme Court dissenting opinions may 

influence the legislative branch or state 

courts as well as current or future 

Court majorities. That is, Supreme 

Court dissents can and do have a signif- icant impact upon state courts confronting the same constitutional problem the dissenter believes the Court 

decided incorrectly. In this sense, state 

courts have become a new audience for 

Supreme Court dissents on federal 

constitutional questions that may also 

arise under state constitutions. Thus, 

dissenters may be vindicated more 

quickly, but only on a state-by-state ba- sis. One might ask, then, whether Jus- tice Brennan’s and Marshall’s dissents, 

among others, have not enjoyed a much 

higher vindication rate in state cases 

than Holmes ever achieved in later Supreme Court decisions. 

5. For an argument that Justice Brennan’s 

approach does not serve the interests of federalism, see Earl M. Maltz, “False Prophet-Justice Brennan and the Theory of State Constitutional Law.” Hastings Constitutional Law 

Quarterly 15 (Spring 1988): 429. 

7 
Cooper v, Morin 

Page 87, Discussion Notes: 

mick v. Schiedt, supra, may provide material for 

our analysis, but they do not direct us. 

Chief Justice Callow’s advocation of Tull 

conceptually distorts the rule we developed 

in State v. Gunwafl, 106 Wash. 2d 54,720 P. 26 

808 (1986), which in turn relied on the concurring opinion of Justice Handler in the 

New Jersey decision of State v. Hunt, 91 N.J. 

338, 450 A.2d 952 (1982). Chief Justice Callow relies on Gunwall and Hunt to support his 

implication that this court should defer to 

Supreme Court interpretation of a compara- ble federal provision unless an analysis of the 

six Gunwall criteria indicate that we should 

take an independent course. Callow, C.J., 

dissenting, at 730. 

This implication is contrary to the rea- soning of Justice Handler and was specifical- ly rejected by him in Hunt. In footnote 3 of his 

opinion, he stated, “To the extent that Justice 

Pashman suggests in his concurring opinion 

that this approach establishes a presumption in 

favor of federal constitutional interpretations, 

supra at 355,450 A.2d 952, no decision of this 

Court has recognized such a presumption, 

and nothing in this opinion or in the majority 

opinion , as I read it, calls for or encourages 

the establishment of such a presumption.” 

Hunt, at 367 n. 3,450 A.2d 952. 

After criticism that the Gunwall criteria 

could be misinterpreted to support the view 

now espoused by the dissent8 this court clari- fied the test in State v. Wethered, 110 Wash.26 

466,472,755 l?2d 797 (1988). In Wethered, we 

reemphasized the statement that the Gunwall factors were nonexclusive and added 

that they were to be used as interpretive 

principles of our state constitution. 

Discussion Notes 

ed.) provides: 

8. Mass. General Laws c. 276, sec. 1 (1986 

A search conducted incident to 

an arrest may be made only for the 

purposes of seizing fruits, instrumentalities, contraband and other evidence of, 

the crime for which the arrest has been 

made, in order to prevent its destruction or concealment; and removing 

any weapons that the arrestee might 

use to resist arrest or effect his es- cape. Property seized as a result of a 

search in violation of the provisions of 

this paragraph shall not be admissible 

in evidence in criminal proceedings. 

This statute provides more protection, 

statutorily, than United States v. Robinson, 414 

U.S. 218 (1973). See discussion in Commonwealth v. Madera, 402 Mass. 156, 521 N.E. 2d 

738,740 (1988). See also John C. Cooper, “Beyond the Federal Constitution: The Status of 

State Constitutional Law in Florida,” Stetson 

Law Review 18 (Spring 1989): 268-72. 

People v. Class 

Page 110, end of bottom Discussion Note 

1: 

See also Brown v. State, 657 S.W. 2d 797 vex. 

Crim. App. 1983). 

Robert F. Williams, 

“In the Supreme Court’s Shadow. . .” 

Following page 117: 

Justice Robert Utter made the following com- ments in Sofie v. Fibreboard Cop., 771 F’. 2d 711,725 

(Wash. 1989): 

The dissenters make much out of their 

citation to Tull v. United States, 481 U.S. 412, 

107 S.Ct. 1831,95 L.Ed. 2d 365 (1987). As we 

state above, the conclusion in Tull has no bear- ing on this court because we base our dccision 

on adequate and independent state grounds. 

Since 1889, Washington’s jurisprudence on the 

right to a jury in civil trials has always been 

based on the state constitution. Tuil and DiFollowing page 124: 

State v. Mollica 

114 N.J. 329,554 A.2d 1315 (1989) 

HANDLER, J. 

In this case federal law-enforcement officers 

without a search warrant obtained hotel billing records relating to the use of an occupant’s room telephone. They then turned these records over to state 

law-enforcement officers who, using this informa- tion, obtained search warrants and undertook a 

search of defendants’ hotel rooms, seizing evidence 

of gambling offenses. In the ensuing criminal proses See Note, Federalisni, Uiiifonnity, arid the State Coiistitwtion-Stale v. Girriwall, 62 Wash. LRev. 569 (1987). 

8 
cution two major issues emerged. The first is whether 

New Jersey’s constitutional protections against unreasonable search and seizure extend to hotel billing 

records relating to a person’s use of his or her ho- tel-room telephone. The second is whether such a 

state constitutional protection applies when the sei- zure of such evidence is by federal officers who there- after transfer the evidence to state officers for 

prosecutorial use against a defendant. 

* * * * * 

It therefore follows ineluctably that the official 

seizure of hotel-telephone billing or toll records relating to a guest’s use of a hotel-room telephone is 

subject to the requirements of antecedent probable 

cause and the issuance of a search warrant. See Hunt, 

supra, 91 N.J. at 348 (police wrongfully obtained toll 

billing records where these were procured “without 

any judicial sanction or proceeding.”). In this case 

there was no attempt to show antecedent probable 

cause for the seizure of these telephone toll records, 

nor was any search warrant sought or obtained to authorize their seizure. Hence, the seizure of these telephone records is critically vulnerable to a challenge 

under the State Constitution. Whether that challenge can succeed in this case, however, depends on 

the applicability of the state constitutional doctrine 

expressed in Hunt, supra, 91 N.J. 338, to the seizure of 

the telephone records by federal agents. This poses 

the second substantive issue in this appeal. 

Iv. 

With regard to law-enforcement activities, a state 

constitution ordinarily governs only the conduct of 

the state’s own agents or others acting under color of 

state law. It is this fundamental understanding of the 

jurisdictional reach of state constitutions that has 

guided courts in determining whether, if at all, a state 

constitution can be applied to the officers of another 

state exercising only the lawful authority of that state. 

This principle is illustrated throughout the abundant 

case law that has addressed an issue presently before 

us: the use by officers of one jurisdiction of evidence 

seized by agents of another jurisdiction acting lawful- ly pursuant to their own governmental authority and 

in accordance with legal standards that are less pro- tective than those of the jurisdiction in which the 

evidence is sought to be used. The historical development and application of this principle, although complicated by the various stages of extension of the 

exclusionary rule to federal and state agents, is nonetheless instructive. 

The problem of evidence acquired and used respectively by officers who are subject to differing legal 

standards has been with us a long time. It was raised 

sharply when the Supreme Court, in Weeks v. Unired 

States, 232 U.S. 383,34 S.Ct. 341,58 L.Ed. 652 (1914), 

first instituted the exclusionary rule. In doing so, the 

Court held that the rule would not apply with respect 

to the conduct of non-federal officers who had not 

“acted under any claim of federal authority.” Id. at 

398,34 S.Ct. at 346,58 L.Ed. at 658. This was based on 

the Court’s view that “the 4th Amendment is not di- rected to individual misconduct of such officials. Its 

limitations reach [only] the federal government and its 

agencies.” Id. at 398, 34 SCt. at 346, 58 L.Ed. at 658. 

For many years, federal standards for lawful 

searches and seizures were usually more protective 

than the standards followed by the several states. . . . This disparity required federal courts to evaluate the 

etiology of evidence that was turned over to federal 

officers for federal prosecutorial use after having 

been seized by state officers. Such an inquiry was 

necessary to determine whether the state officers, 

who had obtained the evidence in accordance with 

state standards less protective than federal mandates, 

had acted wholly independently of federal officers. 

Because state officers were not subject to the fourth 

amendment and its remedial exclusionary rule, it was 

recognized that any evidence that was independently 

obtained by state officials could be “turned over to the 

federal authorities on a silver platter.”lustigv. United 

States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 

(1949); see Byars v. United States, 273 U.S. 28,47 S.Ct. 

248,71 L.Ed. 520 (1927). Such evidence could then be 

used by the federal agents provided they had not 

violated federal-constitutional standards by participating in the initial seizure. 

The essential principle underlying the development of this “silver platter” doctrine is that protections afforded by the constitution of a sovereign entity 

control the actions only of the agents of that sovereign entity. As the Supreme Court stated in Burdenu 

v. McDowell: “[the] origin and history [of the fourth 

amendment] clearly show that it was intended as a 

restraint upon the activities of a sovereign authority, 

and was not intended to be a limitation upon other 

than governmental agencies . . .” 256 U.S. 465,475,41 

S.Ct. 574,576,65 LEd. 1048,1051 (1921). This principle 

explains why the conduct of ordinary citizens acting only 

in their capacity as private individuals will not trigger the 

constitutional protections that would otherwise apply if 

the identical acts were undertaken by government 

agents exercising governmental authority. . . . By parallel reasoning, a state’s constitution that 

will not be invoked to control the conduct of its private citizens will not be applied to control the conduct 

of the officers of a foreign jurisdiction. See Commonwealth v. Wallace, 356 Mass. 92, 95, 248 N.E.2d 246, 

248 (1969) (statements obtained by Canadian police 

treated just like statements related by private citizens 

in United States); State v. Olsen, 212 Or. 191,317 €!2d 

938 (1957) (search in Washington by Washington po9 
lice, independent of Oregon agents, is analogous to 

search by private individuals); Kuufman v. State, 189 

Tenn. 315, 320, 225 S.W.2d 75, 77 (1949) (officers of 

other state jurisdictions treated as being “in the same 

plight . . . as private citizens . . .”). The law-enforcement officers of another state jurisdiction have been 

analogized to the private citizens of the forum jurisdiction in terms of the applicability of the latter’s 

constitutional restrictions. See, e.g., Pooley v. State, 

705 P.2d 1293,1301 (Alaska App. 1985) (Alaska court 

allows admission of evidence obtained in Alaska 

through actions of California official in California 

airport that might have violated Alaska state constitution); People v. Phillips, 41 Cal.3d 29,79-80,711 P.2d 

423,45557,222 Cal.Rptr. 127,160 (1985) (California 

court allows admission of evidence obtained through 

Utah officials’ inspection of inmate’s mail in Utah 

jail, although such inspection illegal under California 

law); McClellan v. State, 359 So.2d 869,873 (Fla.App. 

1978) (evidence seized in Alabama pursuant to valid 

Alabama search warrant held admissible in Florida 

trial despite invalidity of warrant under Florida standards), cert. den., 364 So.2d 892 (1978). 

This treatment of officers of another jurisdiction 

with respect to the admissibility of evidence seized by 

such officers is analogous to the treatment accorded 

the officers of a foreign country, who, in the exercise 

of their own government’s authority, are not subject 

to the federal constitution. . . . The critical element in these lines of cases is the 

agencyvel ?on between the officers of the forum state 

who seek to use the evidence and the officers of the 

state who obtained the evidence. It is this elementthe presence or absence of agency between the officers of the two sovereigns-that determines the 

applicability of the constitutional standards of the 

forum jurisdiction. This is illustrated by early cases in 

which the courts of a state chose to dismiss or not 

address contentions of illegality of the seizure under 

its constitutional standards because its own officers 

were not involved in the seizure. . . . The essential dynamic of the silver platter doctrine remains pertinent in the context of the parallel 

jurisdiction that is exercised by federal and state officers within the territorial boundaries in each of the 

several states. However, as a result of Worfv. Colorado, 338 U.S. 25,69 S.Ct. 1359, 93 L.Ed. 1782 (1949), 

which held that fourth amendment search-and- seizure standards were applicable to the states through 

the fourteenth amendment, the application of the 

doctrine changed from its pristine form, exemplified 

by Byars and Lustig. In light of Wolf, the Supreme 

Court, in Elkins v. United States, 364 U.S. 206, 212, 

213,80 S.Ct. 1437,1442,4 L.Ed.2d 1669, 1675 (1960), 

observed that “[tlhe foundation upon which the admissibility of state-seized evidence in a federal trial 

originally rested-that unreasonable state searches 

did not violate the Federal Constitution-thus disappeared in 1949.” With the uniform extension of the 

exclusionary rule to evidence offered in all of the 

state courts, traditional silver platter applications and 

considerations of intergovernmental agency were no 

longer necessary to sterilize evidence gathered in violation of fourth amendment standards. See Mapp v. 

Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 

108 1. 

This era of constitutional homogeneity faded, 

however, when various states began to establish 

search-and-seizure standards more protective than 

the minimum standards derived from the fourth 

amendment. See, e.g., Stare v. Johnson, 68 N.J. 349 

(1975). With this development of differing standards, 

the silver platter doctrine surfaced in situationsimplicating the parallel jurisdiction of federal and state 

officers. It again became necessary as a condition for 

use in a state court to sanitize evidence that may have 

been obtained under less protective federal-constitutional standards. However, the polarity of the transfer process was reversed. Instead of evidence being 

transferred to federal officers from state officers 

working under more lenient local standards, evidence 

might now flow to state officers from federal officers 

governed by more lenient standards. 

As with the earlier manifestations of the silver 

platter doctrine, and as seen in the numerous 

post-Mapp examples of interstate transfers of evidence, the salient factor continues to be agency vel 

non between the officers of the respective jurisdictions. 

The nature of the relationship between the officers 

participating in the search or seizure and the officers 

seeking to make use of such evidence is critical. 

Because federal officers necessarily act in the 

various states, but in the exercise of federal jurisdictional power, pursuant to federal authority and 

in accordance with federal standards, state courts 

treat such officers as officers from anotherjurisdiction. See State v. Bradley, 105 Wash.2d 898,719 P.2d 

546 (1986) (neither state law nor state constitution 

controls federal officer’s conduct in border search, 

which is equivalent to search conducted in a different jurisdiction). This understanding obtains even 

though the conduct of such officers would not satisfy the requirements of the state’s constitution. See 

Morales v. State, 407 So.2d 321 (Fla.App. 1981) (evidence seized by Coast Guard in manner inconsistent with state standards is admissible in state 

criminal trial); Stare v. Dreibelbis, 147 Vt. 98, 511 

A.2d 307 (1986) (affirming conviction for transporting drugs within state when evidence used was obtained by federal officers using methods consistent 

with federal standards, although impermissible by 

Vermont standards). Stated simply, state constitutions do not control federal action. 

10 
Recognition of this inherent jurisdictional limitation on the application of the state constitution is 

consonant with principles of federalism. It is now 

firmly recognized that state constitutions do not simply mirror the federal constitution; they are abasisfor 

independent rights and protections that are available 

and applicable to the citizens of the state. See Pruneyard Shopping Center v. Robins, 447 US. 74, 100 S.Ct. 

2035, 64 L.Ed.2d 741 (1980). Reflecting this, states 

have the power to impose higher standards than required by the federal constitution. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 LEd.2d 730 (1967). 

We have in many areas acknowledged in our 

State Constitution protections that exceed those pro- vided under the federal constitution. . . . Because the constitution of a state has inherent 

jurisdictional limitations and can provide broader 

protections than found in the United States Constitution or the constitutions of other states, the applica- tion of the state constitution to the officers for 

another jurisdiction would disserve the principles of 

federalism and comity, without properly advancing 

legitimate state interests. Such considerations also 

serve in large measure to explain why it does not 

offend the constitutional principles of a forum jurisdiction to allow the transfer of criminal evidence from 

the officers of another jurisdiction to those of the 

forum when the evidence has been obtained lawfully 

by the former without any assistance by the latter. 

In determining the validity of a search and sei- zure conducted by officers of another jurisdiction, the 

critical assumption that obviates the application of 

the state constitution is that the state’s constitutional 

goals will not thereby be compromised. In our jurisdiction, we recognize that an essential objective of 

our constitutional protection against unreasonable 

search and seizure and the remedial exclusionary rule 

is to deter unlawful police conduct. See Delguidice v. 

New Jersey Racing Comm’n, 100 N.J. 79 (1985). These 

constitutional protections may also implicate concerns for judicial integrity. Id. at 88-89. Further, the 

exclusionary rule serves to vindicate the impairment 

of an individual’s state constitutional right to be free 

from unreasonable search and seizure. State v. Novembrino, supra, 105 N.J. 95. 

None of these constitutional values, however, 

is genuinely threatened by a search and seizure of 

evidence, conducted by the officers of another jurisdiction under the authority and in conformity 

with the law of their own jurisdiction, that is totally 

independent of our own government officers. Thus, 

in that context, no purpose of deterrence relating to 

the conduct of state officials is frustrated, because 

it is only the conduct of another jurisdiction’s officials that is involved. See, e.g., Pooley,supra, 705 P.2d 

at 1302-03. Judicial integrity is not imperiled because there has been no misuse or perversion of 

judicial process. See, e.g., Phillips, supra, 41 Cal.3d at 

79-80,711€?2d at 45557,222 CaLRptr. at 160. Further, no citizen’s individual constitutional rights 

fail of vindication because no state official or per- son acting under color of state law has violated the 

State Constitution. See Burdeau, supra, 256 US. at 

475,41 S.Ct. at 576,65 L.Ed. at 1051. 

In this case, the telephone toll records relating to 

the use of Ferrone’s hotel-room telephone were obtained by federal agents exercising federal authority 

in a manner that was in conformity with federal standards and consistent with federal procedures. See 

Smith v. Maryland, supra, 442 U.S. 735,99 S.Ct. 2577, 

61 L.Ed.2d 220. Once seized legally, no legal prohibition barred the interjurisdictional transfer of this evidence. See United States v. Lester, 647 E2d 869, 875 

(8th Cir.1981) (“Evidence legally obtained by one po- lice agency may be made available to other such agencies without a warrant, even for use different from 

that for which it was originally taken.”), quoted in 1 W. 

LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment, sec. 1.6, at 119 (26 ed. 1987). There was 

no federal restriction against such a transfer. Nor was 

there any state-constitutional, statutory, or regulatory proscription against the receipt of such evidence. 

Thus, in constitutional terms, the transfer can be 

analogized to transfer from private citizens, which do 

not implicate constitutional limitations. See United 

States v. Jacobsen, 466 U.S. 109,113,117-18,104 S.Ct. 

(both the seizure of evidence by a private citizen not 

acting with the knowledge of the government and the 

transfer of such evidence to government authorities 

do not implicate search-and-seizure standards). 

We endorse the principle that federal officers 

acting lawfully and in conformity to federal authorityare unconstrained by the State Constitution, and 

may turn over to state law-enforcement officers 

incriminating evidence, the seizure of which would 

have violated state constitutional standards. This 

holding, however, is subject to a vital, significant 

condition. When such evidence is sought to be used 

in the state, it is essential that the federal action 

deemed lawful under federal standards not be 

alloyed by any state action or responsibility. We are 

required therefore to determine whether in any 

legally significant degree the federal action can or 

should be considered state action. 

1652, 1656, 1658-59, 80 L.Ed.2d 85, 94, 96-97 (1984) 

I? 

This case thus requires us to consider the impli- cations of the silver platter doctrine and its key ele- ment: intergovernmental agency. An important 

aspect of this determination is whether for constitu- tional purposes the federal agents can be said to be 

acting under the “color of state law.” The assessment 

of the agency issue necessarily requires an examina11 
tion of the entire relationship between the two sets of 

government actors no matter how obvious or obscure, 

plain or subtle, brief or prolonged their interactions 

may be. The reasons and the motives for making any 

search must be examined as well as the actions taken 

by the respective officers and the process used to find, 

select, and seize the evidence. 

Our answer to this kind of question can be informed by silver platter decisions in the era before 

Elkins. Many of these considered the significance of 

the relationship between federal and state officers in 

the search and seizure of evidence in determining the 

applicability of more protective federal-constitutiona1 standards to actions by state officers. As earlier 

noted, the critical element in the application of the 

silver platter approach was the agency vel non between the officers of the respective jurisdictions.. . . Differing relationships and interactions may suffice 

to establish agency. Thus, antecedent mutual plan- ning, joint operations, cooperative investigations, or 

mutual assistance between federal and state officers 

may sufficiently establish agency and serve to bring 

the conduct of the federal agents under the color of 

state law. On the other hand, mere contact, awareness of ongoing investigations, or the exchange of 

information may not transmute the relationship into 

one of agency. See, e.g., Shunnan v. United States, 219 

E2d 282 (5th Cir.) (refusing to find joint operation 

where federal agent merely informed state officer of 

suspicion that defendant’s car contained narcotics, 

without requesting any action), cert. den., 349 U.S. 

921, 75 S.Ct. 661, 99 L.Ed. 1253 (1955); Droutman, 

supra, 143 N.J. Super. at 328-29 (search and seizure by 

private citizen not subject to constitutional limita- tions as government had no preknowledge and did 

not acquiesce in search); see also, eg, Corngold v. 

United States, 367 E2d 1 (9th Cir.1966) (airline employee said to have been acting in joint operation with 

federal customs officer where he would not have conducted a search but for the insistence of the federal 

agent). This inquiry thus will always pose a fact-sensitive exploration that is influenced greatly by the surrounding circumstances. 

Here, the trial court examined the actual relationship between the federal and state police officers 

in terms of the initial search and seizure of the hotel 

telephone toll records. Its factual findings would lead 

to the conclusion that the federal officers were not 

the agents of our state police. See Mallica I, supra, 214 

N.J. Super. at 664. There may well be in this record 

facts sufficient to justify the conclusion that there was 

an insufficient connection between the respective officers, thus permitting the state’s prosecutorial use of 

the seized evidence. Nevertheless, the trial court invalidated the search and seizure, and resultant 

turn-over of the telephone toll records. It may have 

assumed under all the circumstances that the connection between federal and state officers, such as it was, 

justified application of the State Constitution. We 

cannot be sure of the intended effect of the trial 

court’s findings in light of our opinion, which reformulates the standards governing the application of 

the State Constitution and explains the heightened 

significance of intergovernmental agency and cooperation in the acquisition of criminal evidence. It is 

therefore appropriate to remand the matter to the 

trial court to enable it to reconsider its findings or 

determine anew the issues of intergovernmental 

cooperation, agency and state action either on the 

existing or a supplemental record. 

Discussion Notes 

1. See generally, Comment, “DO Silver Plat- ters Have a Place in State-Federal Relations? 

Using Illegally Obtained Evidence in Criminal 

Prosecutions,” Arizona State Law Journal 20 

(Spring 1988): 285. 

Following page 126: 

State v. Smith 

301 Or. 681,725 R2d 894 (1986) 

CAMPBELL, Justice. 

The question is whether Article I, section 12, of 

the Oregon Constitution’ requires that persons detained for questioning by law enforcement officers be 

given warnings similar to those required by Miranda v. 

Arizona, 384 U.S. 436,86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966), under the federal Fifth Amendment? We 

hold that it does not. 

Two deputy sheriffs responding to a report of a 

vehicle off the road observed defendant about 150 

yards from the disabled vehicle. When defendant saw 

the deputies he began to run, but stumbled and fell. 

The deputies approached defendant and assisted him 

back to their patrol car. The deputies suspected that 

defendant had been drinking, but at that time did not 

connect him with the disabled vehicle or suspect him 

of any crime. Defendant denied owning the vehicle. 

He told the police that he and another person had 

been drinking behind a nearby warehouse. 

The officers learned from their dispatcher that 

defendant owned the car. Defendant then admitted 

‘Article I, section 12, of the Oregon Constitution provides: 

“No person shall *** be compelled in any criminal prose- cution to testify against himself.” 

*The Fifth Amendment to the federal constitution, appli- cable to the states through the Due Process Clause of the 

Fourteenth Amendment, provides: 

“No person **I shall be compelled in any criminal case to 

be a witness against himself *** ” 

12 
that he owned the car and that he had been driving it 

when it went off the road. He was then arrested, given 

Miranda warnings, and later made further incriminating statements. 

At trial on the charge of driving while under the 

influence of intoxicants, defendant moved to suppress his statements to the officers, relying on both 

the federal and state constitutions. The motion to 

suppress was denied. The trial court found that defendant’s initial responses were obtained during a 

field interrogation and that he was not “in custody” 

for the purposes of Miranda v. Arizona until he was 

arrested. The trial judge further found that defendant’s 

incriminating statements were made voluntarily. 

Defendant was convicted. He appealed, relying 

on both the Fifth Amendment and Article I, section 

12, of the Oregon Constitution. The Court of Appeals 

affirmed the trial court. 70 0r.App. 675,691 I?2d 484 

(1985). In his petition for review to this court defendant relied solely on Article I, section 12, saying that it 

requires a Miranda-type warning to be given earlier in 

point of time than does the federal Fifth Amendment 

under Berkemer v. McCariy, 468 U.S. 420, 104 S.Ct. 

3138, 82 L.Ed.2d 317 (1984). 

THE RIGHT TO REMAIN SILENT 

IN OREGON 

The State of Oregon has recognized that its citizens have the right to remain silent in various circumstances by virtue of two statutory schemes, the 

adoption of common-law rules, and a constitutional 

provision. That right is spelled out in the following: 

(1) ORS 135.Mql) provides that in a preliminary hearing the magistrate shall inform the defendant that he is not required to make a statement. 

(2) ORS 136.425(1) provides that a confession 

or admission of a defendant “cannot be given 

evidence against the defendant when it was made 

under the influence of fear produced by threats.” 

(3) State v. Wintzingerode, 9 Or. 153, 163 

(1881), held that the common-law rules governing the admissibility of confessions are in force in 

Oregon, hcluding the rule that “confessions 

made by a prisoner while in custody, and induced 

by the influence of hope or fear, applied by a 

public officer having the prisoner in his charge” 

are not admissible in evidence. 

(4) Article I, section 12, of the Oregon Constitution provides in part: “NO person shall * * * 

be compelled in any criminal prosecution to testify against himself.” 

One of the issues in this case is whether the 

Oregon Constitution requires warnings similar to 

those specified in Miranda v. Arizona. In Miranda the 

Court required that “[plrior to any questioning, the 

person must be warned that he has a right to remain 

silent, that any statement he does make may be used 

as evidence against him, and that he has a right to the 

presence of an attorney, either retained or appointed.” 384 U.S. at 444, 86 S.Ct. at 1612. In our 

review of the Oregon law, in addition to the right to 

remain silent, it will be necessary for us to examine 

defendant’s related right to an attorney and defendant’s right to know that any statement he or she 

makes may be used in evidence. 

* * * * * 

The above cases consistently demonstrate that 

under a combination of the common-law rules and 

ORS 136.425 that: (1) there is a distinction between 

judicial and extra-judicial confessions; (2) an out-ofcourt confession is not inadmissible because the defendant has not been advised of the right to counsel, 

the right to remain silent and of the fact that any 

statement may be used against the defendant; (3) the 

confession is initially deemed to be involuntary and 

the burden is upon the state to prove that it was 

voluntary; (4) the ultimate test is whether the confession was free and voluntary; (5) the key to the “free 

and voluntary” character of the confession is the inducement made to the defendant-was there any 

promise or threat made to the defendant which would 

elicit a false confession; and (6) since 1957 “admissions” have been treated the same as “confessions.” 

(4) Article I, section 12, of the Oregon Constitution. 

The relevant portion of Article I, section 12, of 

“NO person shall * * * be compelled in 

any criminal prosecution to testify against 

himself.” 

Our cases have not always been consistent when 

considering this provision of the Oregon Constitution. 

the Oregon Constitution is: 

* * * * * 

This brings us to State v. Mains, 295 Or. 640,669 

P.2d 1112 (1983), and State v. Sparklin, 296 Or. 85,672 

P2d 1182 (1983), from which it could be inferred that 

this court has already adopted an Oregon Miranda 

rule. In fact, the Court of Appeals has so inferred in 

State v. Kell, 77 0r.App. 199,712 P2d 827 (1986). and 

State v. Rowe, 79 0r.App. 801, 720 P2d 765 (1986). 

In State v. Mains, supra, one of the issues was 

whether the defendant was entitled to Miranda-type 

warnings before he was examined by a state psychiatrist. We noted that the details of the Miranda warnings were regarded as a judicial means to effectuate 

the federal Fifth Amendment’s guarantee against 

self-incrimination. We went on to elaborate: 

“The Oregon Constitution similarly guarantees the right not to be compelled to testify 

13 
against oneself in a criminal prosecution. Or. 

Const., Art I., sec. 12. Like the United States 

Supreme Court, this court is called upon from 

time to time to specify the procedure by which a 

guarantee is to be effectuated. Such specifica- tions are not the same as interpretations of the 

guarantee itself, that is to say, they may not always and in all settings be the only means toward 

its effectuation but may be adapted or replaced 

from time to time by decisions of this court or by 

legislation in the light of experience or changing 

circumstances. In the absence of legislation, we 

believe that the following are the relevant information and warnings required in the setting of a psy- chiatric examination of a defendant conducted on 

behalf of the state to guarantee the right not to be 

compelled to test@ against oneself in a criminal 

prosecution under Article I, Section 12, of the Oregon Constitution.” 295 Or. at 645,669 P2d 1112. 

* * * * * 

We think that a fair reading of the above cases 

commencing with State v. Andrew, supra, through 

State v. Sparklin, supra, demonstrates that Article I, 

section 12, of the Oregon Constitution includes and 

guarantees to a defendant the common-law rule that 

before a confession or admission can be received in 

evidence the state must prove that it was voluntarily 

made without inducement from fear or promises. To 

hold otherwise would mean that if an involuntary 

confession was received in evidence the defendant 

would be forced to testify against himself or herself. 

Article I, section 12, includes both the common-law 

rule requiring confessions to be voluntary and the 

common-law privilege granting every person the right 

to refuse to testify against himself or herself. 

Presently included in the common-law rule on 

voluntary confessions is the sub-rule that an extrajudicial confession is admissible even though the officer to whom it is made did not inform the accused of 

his right to consult counsel, of his right to remain 

silent and of the fact that his declarations would be 

used against him. State v. Henderson, supra. The tail 

goes with the hide and the Henderson rule is a part of 

this court’s interpretation and application of the right 

to remain silent guaranteed by Article I, section 12. 

Nowhere in Article I, section 12, is there any mention 

of any required warnings. It does not say that the 

defendant shall be informed of the right to an attorney, of the right to remain silent, and of the fact that 

any statement may be used against the defendant. 

In 1983, prior to the publication of the decisions 

in State v. Mains, supra, and State v. Sparklin, supra, 

the law of this state did not require Oregon Mirunda 

warnings. Mains and Spurklin merely assumed without deciding that the Oregon Constitution required 

warnings similar to those required in Miranda v. Arizona. Our prior caselaw, spanning more than a century, concerning the requirement of voluntary 

confessions and admissions was not considered or 

discussed. 

CONCLUSION 

If this court had a strong reason for doing so it 

could overrule the Henderson line of cases and require Miranda-type warnings to help ensure the guarantees of Article I, section 12. That is what the United 

States Supreme Court did in Miranda v. Arizona. The 

Fifth Amendment is similar to Article I, section 12. 

(See footnotes 1 and 2.) This court previously has said 

that the difference in the language of the two constitutional provisions is not important. Statev. Cram, 176 

Or. 577, 580, 160 P.2d 283 (1945). 

There is no question that the Oregon Constitution does not require the giving of Miranda-type 

warnings. Nor does any state statute require the 

warnings, except at the preliminary hearing procedure before a magistrate. ORS135.070 et seq. What is 

at issue is the appropriate procedure “by which a 

guarantee [here, the right not to be compelled] is to 

be effectuated.’’ State v. Mains, supra, 295 Or. at 645, 

669 Wd 1112. 

In Miranda v.Arizona the United States Supreme 

Court elevated the required warnings to constitutional status through the application of the Fourteenth 

Amendment due process provision to the Fifth 

Amendment guarantee against compulsion. The 

warnings then were given constitutional status, the 

violation of which automatically resulted in suppression of the confession regardless of the underlying 

question of compulsion. Since the adoption of that 

court-made guarantee, the United States Supreme 

Court has seen fit to fashion “exceptions” to the requirement to ease the obviously inelastic proscription 

of the requirement. . . . It has been said that one reason for the Miranda 

v. Arizona decision was to negate the necessity for an 

ad hoc determination of voluntariness. History has 

shown the folly of this theory. First, a defendant remains free to contest the voluntariness of his confession even in cases where the warnings were given. 

Secondly, the horde of cases on this point suggests 

that the ad hoc inquiry of voluntariness has been 

replaced with the ad hoc (or, at least, the ever-shifting) determination of when the warnings must be given. See, e.g., Berkerner v. McCarty, 468 U.S. 420, 104 

S.Ct. 3138, 82 L.Ed.2d 317 (1984). The federal shift 

has been to the judicially created battlefield of “custody,” with its subjective/objective components and 

the search for the ever-elusive “free-to-leave” standard. Raising the warning incantation to constitutional status has not secmed to lessen the litigation upon 

appcal. A WESTLAW search of reported decisions 

discloses over 3,300 fcdcral court and over 10,000 

state appellate court decisions, including 269 appel14 
late court decisions from Oregon that have wrestled 

with Mirundu v. Arizona. 

From the advantage of 18 years of hindsight, 

the United States Supreme Court in Berkemer v. 

McCarty, supra, gave the following reasons for the 

Mirunda warnings: 

“* * * The purposes of the safeguards prescribed by Mirandu are to ensure that the police do 

not coerce or trick captive suspects into confessing, to relieve the ‘inherently compelling pressures’ generated by the custodial setting itself, 

‘which work to undermine the individual’s will to 

resist,’ and as much as possible to free courts 

from the task of scrutinizing individual cases to 

try to determine, after the fact, whether particular confessions were voluntary. * * *” 468 U.S. at 

433,104 S.Ct. at 3147 (footnotes omitted; emphasis in original). 

Miranda v. Arizona was more specific about one 

(I* * * The use of physical brutality and violence is not, unfortunately, relegated to the past 

or to any part of the country. Only recently in 

Kings County, New York, the police brutally 

beat, kicked and placed lighted cigarette butts on 

the back of a potential witness under interrogation 

for the purpose of securing a statement incrimimting a third party. People v. Portelli, 15 N.Y.2d 235, 

205 N.E.2d 857,257 N.Y.S.2.d 931 (1965)” 

384 U.S. at 446,86 SCt. at 1613 (footnote omitted). 

It is not the purpose of this opinion to argue with 

Miranda v. Ariwnu, but it made a mistake including 

Oregon within the “part of the country” where physical brutality and violence by the police exist. We have 

cases that show police misconduct. . . . No one has demonstrated to us how an Oregon 

Mirandu rule would help eliminate police misconduct 

of the type set forth in the above examples. We do not 

understand how an Oregon rule identical to the federal rule would increase the chances to “relieve inherently compelling pressures generated by custodial 

settings which work to undermine the individual’s will 

to resist.” If we adopted a different Oregon Mirunda 

rule or placed a different interpretation upon the 

present federal rule, then we have created confusion. 

We doubt that the “task of scrutinizing individual 

cases to try to determine, whether particular confessions were voluntary” would have created a greater 

case load for the courts than the flood of cases in the 

last 20 years that have tried to determine the correct 

application of the federal Mirundu warnings. 

Oregon is in this situation: We have the federal 

Miranda warnings. By virtue of the Fifth Amendment 

and the Fourteenth Amendment we have no choice. 

We are not arguing about that. Miranda v. Ariwna is 

of the reasons for the warnings: 

now 20 years old. A whole generation of police, lawyers, and judges has grown up with the federal Mirundu warnings, We will not speculate what Oregon 

would be like without them. We also have a body of 

law on confessions. The bottom line in Oregon for 

over 100 years has been that before a confession or 

admission can be received in evidence, the state must 

prove that it was free and voluntary. For the most part 

during the last 20 years our law on confessions has 

been in a standby position gathering rust. Most of the 

questionable confessions and admissions have been 

eliminatedby the federal Miranda rule. However, it is 

possible to have an involuntary confession or admission even though the Mirundu warnings have been 

properly given. We think that it is important to keep 

the Oregon law on confessions and admission intact.12 

?b adopt an Oregon Mirunda rule identical to the 

federal rule without any commitment to future interpretation would be unwise. We would be in the same 

position as we are today, except that the ranch would 

have been sold with no down payment. To adopt an 

Oregon Mirundu rule identical to the federal rule and 

tie it to future interpretation by the federal caselaw 

would be foolish. We do not know what may be waiting 

in the alley. To adopt an Oregon Mirundu rule identical 

to the federal rule and place our own future interpretation on it would only further confuse an already confused area of the law. To adopt an Oregon Mirandu rule 

different from the federal rule is not warranted. 

Article I, section 12, of the Oregon Constitution 

prohibits compulsion, which we interpret to require 

voluntariness. Past judicial decisions of this court 

have used the evidentiary device of “deeming” any 

confession to be involuntary and require the state to 

bear the burden of overcoming that judicial predisposition. In cases where the state has given Mirandu- 

‘*The federal Mimndu warnings have become a part of our 

culture. They have been widely discussed and quoted in all 

areas of our society. In some places the name of “Ernest0 

Miranda”is better known than the names of “Babe Ruth” 

and “Calvin Coolidge.” In the event the United States Supreme court retracts 

or retreats from the present Mimndu warnings, Oregon 

might consider warnings similar to those set out in the 

English “Judges’ Rules.” Those rules were described by 

Justice Harlan in his dissent in Mimldu v. Arizona, 384 

U.S. at 522,86 S.Ct. at 1652 53 

In that country, a caution as to silence 

but not counsel has long been mandated by the 

‘Judges’ Rules,’ which also place other somewhat 

imprecise limits on police cross examination of 

suspects. However, in the court’s discretion confes- sions can be and apparently quite frequently are 

admitted in evidence despite disregard of the 

Judges’ Rules, so long as they are found voluntary under the common law test. * *” 

Warnings similar to the English ‘‘Judges’ Rules” 

would be consistent with Oregon’s Stare v. Hetidemoti, 182 

Or. 147, 184 P.2d 392 (1947), line of cases. 

LL. 8 * 

15 
type warnings and avoided any form of compulsion, the 

state has met its burden. Where the Miranda-type 

warnings were not given, the burden fully remains on 

the state to establish that the confession was voluntary. 

We know of no strong and compelling reason to 

overturn a long-standing precedent of this court in order to adopt a rule which we consider to be unnecessary 

and confusing under the present circumstances. 

The Court of Appeals is affirmed. 

* % * * * 

LINDE, Justice, dissenting. 

Throughout its history, Oregon’s Bill of Rights 

has guaranteed that no one may be compelled in any 

criminal prosecution to testify against himself. Or. 

Const., Art. I, sec. 12. Throughout practically all of 

that history, Oregon statutes have secured this guar- antee in a preliminary hearing by requiring that the 

magistrate inform a defendant of his rights to remain 

silent and to counsel, so that a defendant would not 

from ignorance of those rights or from the stress of 

his situation feel compelled to testify against himself. 

ORS 135.070(1), General Laws of Oregon sec. 379 

(Deady & Lane 1843-1864). Failure to give this information requires the exclusion of any evidence ob- tained thereby. ORS 136.435. 

The plurality opinion begins by stating the ques- tion to be whether the Oregon Constitution itself 

requires law enforcement officers to give prescribed 

warnings before interrogating a detained person. 

That loads the question, because the Constitution 

obviously does not mention warnings. But the Consti- tution forbids the state to prosecute upon “compelled” statements of the defendant. The question is 

how this guarantee is to be made effective. Like the 

legislature that adopted the Deady Code provision in 

1864 and reenacted it in 1981, I believe that one obvious way to reduce the likelihood of “compelled” 

admissions or confessions is to tell suspects that they 

need not answer questions, that their answers maybe 

used against them, and that they may consult counsel. 

Like the United States Supreme Court in applying 

the Fifth Amendment, I further believe that these 

warnings that Oregon long has required in a magistrate’s hearing are equally necessary and by analogy 

extend to interrogation by law enforcement officers 

before a detained person is brought before a magistrate. 

I. 

Only three years ago this court held warnings to be 

required in order to give effect to Article I, section 12. in 

Stare v. Muins, 295 Or. 640,645,669 I?2d 1112 (1983). . . . All but one member of the court joined in the 

Mains opinion; there was no dissent. Thereafter, the 

quoted paragraph was repeated and applied to police 

interrogation in State v. Sparklin, 296 Or. 85, 88,672 

P.2d 1182 (1983), in which the court went on to hold 

that the familiar federal Miranda formulation of the 

warnings also satisfied Oregon requirements. Again, 

there was no dissent. 

Today, three members of the court would disown 

what the court wrote in Mains and Sparklin. The other 

three members of the court would stand by the principle there stated, although, as Justice Jones’s concurring opinion shows, we disagree on its application to 

the facts in this case. 

Judge Campbell’s opinion for three judges, all of 

whom joined in Sparklin, attempts to dismiss Mains 

and Sparklin as “assuming” to require warnings to 

carry out Article I, section 12. That will not hold 

water. Presumably the author of Mains saw a reason 

for including the careful statement of this court’sduty 

“to specify the procedure by which [Article I, section 

121 is to be effectuated.” Presumably the court read 

and agreed with that statement and with its further 

elaboration in State v. Sparklin. The judges joining in 

the plurality opinion can hardly say that they erro- neously “assumed” something about the proper 

application for the Oregon Constitution, as if that 

depended on someone other than themselves. When 

this court assumes a disputed proposition for purposes of argument only, it knows how to say so. Nor 

can Sparklin’s reliance on Article I, section 12, be 

dismissed as obiter dicta, when the court went on to 

deal with and to reject on the merits Sparklin’s claim 

for more elaborate warnings than those required by 

Miranda. Had the court not first concluded that Ore- gon law independently required warnings before interrogation, it could never have reached a question 

what those warnings should be. 

The plurality should not so readily denigrate its 

recent opinions as “assumptions” and “dkra.” I doubt 

that the court would welcome seeing a trial court or 

the Court of Appeals dismiss in that fashion a directive that is stated in the terms used in Mains. In fact, 

the Court of Appeals in this and in other cases correctly 

understood that Sparklin required cautionary warnings 

as a matter of state law; only the circumstances under 

which they are required was disputed. . . . But I leave to members of the plurality whether it 

is more embarrassing to say that they did not mean 

what they wrote or joined in Mains and Sparklin. or 

that they did not know their own minds. Conceding 

that judges like other mortals may change their 

minds, the present decision on its own merits is a 

wrong and backward step. 

* * * * * 

III. 

Arguments about precedents can show the weakness of a judicial opinion,but to little effect. As I have 

said, a judge who thinks he was wrong may change his 

mind. Today’s decision is wrong on its own merits. 

16 
The plurality itself treats its recital of the earlier 

cases only as a prologue to its conclusion. The conclusion does not purport to follow from the quoted opinions. Rather, the plurality’s retreat from our 1983 

opinions expressly rests o%n its rejection of a need for 

Miranda warnings in Oregbn, at least at this time. The 

plurality singles out “police brutality” as the reason 

why Miranda warnings may once have been needed 

elsewhere but are not needed in Oregon today. If 

courts explain a rule of law as a deterrent to “police 

misconduct,” it is little wonder if law enforcement 

officers and some members of the public think that 

the judges are against the police. Nor are warnings 

before questioning simply a matter of judicial conve- nience, to be abandoned if they do not reduce the 

“case load,” as the plurality suggests. The practice of 

explaining a detained person’s rights before question- ing has a legal footing independent of any police 

misconduct or numbers of appeals. 

As to the first argument, I do not know how the 

conduct of Oregon police officers compares with that 

of police officers elsewhere. The record before us 

contains nothing about that, nor should it. A rule 

should not be derived from stereotypes and judicial 

generalizations about police conduct that differs over 

time, from one place to another, and with respect to 

different kinds of crimes, suspects, and circum- stances. What we may assume about a rule law is that 

officers (or others) ordinarily will abide by the rule; 

when a rule requires a search warrant or a cautionary 

warning, officers will obtain a warrant or give a warning, and if the rule allows them to search without a 

warrant or to question people without informing 

them of their rights to counsel and to remain silent, 

officers ordinarily will search or interrogate without 

seeking a legally unnecessary warrant or volunteering 

gratuitous advice not to answer their questions. We 

may assume this, not as an empirical fact, but because 

any rule is premised on the assumption that it affects 

and guides conduct, especially official conduct, unless 

it is known never to be enforced. 

The plurality says that Oregon should be satisfied 

to return to the common-law rules governing the 

exclusions of “involuntary” confessions as they stood 

at the time of Srare v. Henderson, if the Supreme 

Court of the United Stateswould let it.Henderson was 

decided almost 40 years ago. Under that standard, law 

enforcement officers could pursue their questioning 

of any person in their own way and in any setting, 

leaving it to later dispute and adjudication whether 

the answers were “voluntary.” It is hard to believe 

that this court in the 1980s would wish to return to the 

1940s and 1950s and revive all the problems that led 

the United States Supreme court 20 years ago to con- clude that ad /wc determinations of voluntariness were 

inadequate to safeguard due process of law, let alone 

the rights to counsel and against self-incrimination. 

No generalion would choose to relive that history 

unless it has forgotten it. I shall not recount it in detail 

here. In sum, for 30 years after Brown v. Mississippi, 

297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), the 

Supreme Court granted certiorari in case after case to 

review convictions based on confessions to state officers. Some of the confessions, as in Brown, had been 

obtained by physical torture, some by long, uninterrupted questioning of an isolated prisoner by relays of 

officers, and some by playing on the inexperience and 

fear of young, black, or ignorant suspects, and by denying them access to legal counsel or to family or 

friends. . . . Some of the cases involved “police brutality,” others did not, nor even “police misconduct,” 

unless intensive questioning before letting a suspect 

see a defense lawyer or a magistrate is first defined as 

misconduct. 

Because the Supreme Court had not then held the 

states to the express constitutional standards of the 

federal Fifth and Sixth Amendments, the Court reviewed these cases only for “due process of law” under 

the Fourteenth Amendment, and it held that “involuntary” confessions (though not denial of access to counsel) violated due process. One effect was to turn the 

“voluntariness” of evely confession into a federal constitutional question to be decided by appellate courts, 

including the United States Supreme Court. Eventually, of course, the court recognized the rights to remain 

silent, to the assistance of counsel, and to the exclusion 

of unlawfully obtained evidence as essential elements of 

due process, and it formulated the Miranda warnings as 

neceq to safeguard against the uninformed, 

thoughtless or frightened sacrifice of those rights. 

The striking fact about the Supreme Court’s 

cases under the “voluntariness” standard extolled by 

today’s plurality opinion is that in each case a state trial 

court let a jury find that the defendant’s confession was 

voluntary. In each case, a state appellate court &firmed 

that finding before the Supreme Court held that, on the 

undisputed facts, the confession was involuntary. 

The plurality says that it is important to keep Oregon law on involuntary confessions and admissions intact. Of course it is. No one suggests that reading a 

suspect a statement of his rights does away with the rule 

against involuntary confessions or admissions. Obviously a suspect may still wrongfully be induced to confess by 

“hope or fear,” Srare v. Wintzingerode, 9 Or. 153, 163 

(1881), after the warnings have dutifully been read to 

him. But in Oregon, too, the fact is that despite repeated recitals of the rule, not once has this court 

actually found a confession “involuntay” by reawns of 

the coercive pressures of police questioning, although a 

few cases have excluded confessions induced by promises of leniency. But the requirement of warnings, as I 

have said, has independent legal footing. 

Iv. 

What Article I, section 12, of the Oregon Constitution guarantees is that no person “be compelled in 

any criminal prosecution to testify against himself.” As 

the United States Supreme Court recently repeated: 

17 
“The privilege against self-incrimination enjoined by the Fifth Amendment isnot designed to 

enhance the reliability of the fact-finding determination; it stands in the Constitution for entirely independent reasons. Rogers v. Richmond, 365 

(1961) (Involuntary confessions excluded ‘not because such confessions are unlikely to be true but 

because the methods used to extract them offend 

an underlying principle in the enforcement of 

our criminal law: that ours is an accusatorial and 

not an inquisitorial system’).” 

Allen v. Illinois, - U.S.-, -, 106 S.Ct. 2988, 

2995,92 L.Ed.2d 296,308 (1986). 

Article I, section 12, like other constitutional 

provisions, is addressed to the conduct of public officials, not to the reaction of the individual private 

citizen. It forbids acts designed or likely to compel 

self-incriminating answers. That a person in fact gives 

no such answer does not exonerate acts of the proscribed kind, any more than a fruitless search yielding 

no seizure exonerates a failure to obtain a required 

warrant. The application of Article I, section 12, 

therefore poses an issue beyond the common-law test 

whether a particular confession in fact was “voluntary.” Application of Article I, section 12, corresponds to the United States Supreme Court’s shift in 

the 1960s from its earlier, unsatisfactory, “due process” review of confessions deemed “involuntary” on 

appeal to the direct application of the Fifth (and the 

Sixth) Amendment to investigatory practices. For an 

Oregon court, unlike the federal courts, the difference between “voluntariness” and application of Ar- ticle I, section 12, requires no shift at all, because the 

direct application of the state’s own guarantees in its 

courts does not depend upon any intermediate “due 

process” clause. 

US. 534, 540-541 [81 S.Ct. 735, 5 L.Ed.2d 7601 

* * * * * 

To conclude, I have refrained from stating that 

Article I, section 12, itself requires warnings before 

questioning. Sometimes it is unavoidable to spell 

out in detail how a broad constitutional principle is 

to be administered, but there is no need for a court 

to freeze details into constitutional law when guidance can be found in laws like ORS 135.070(1) and 

136.435 that can be further considered and refined 

by the ordinary lawmaking process. Regrettably, 

the court’s present approach is to say that if the 

legislature wants to protect the rights of Oregonians beyond the inescapable minimum that this 

court finds in the constitution itself, the legislature 

is free to do so. I believe, to the contrary, that a 

court should assume that individual liberty is to be 

protected unless and until politically accountable 

lawmakers legislate to the contrary and force the 

constitutional issue. “It is the government that 

must ask lawmakers for authority against the citi- zen, not the citizen that must ask lawmakers to 

enact laws against ‘inherent’ official power.” State 

v. Brown, 301 Or. 268, 298, 721 P.2d 1357 (1986) 

(Linde, J., dissenting). 

Today’s plurality opinion would take Oregon 

back 40 years and overturn all that has been learned 

about the inadequacy of excluding “involuntary” confessions as a protection for the constitutional right 

against self-incrimination, if the United States Supreme 

court did not bind Oregon to more civilized national 

standards than the plurality ascribes to our own laws. It 

is a reminder that, despite recent progress in many state 

courts, people in Oregon as elsewhere still need the 

protection of federal law for the basic liberties common 

to the national and the states’ bills of rights.’” 

LENT, J., joins in this dissenting opinion. 

Page 133, after the Discussion Notes: 

Southcenter Joint Venture v. 

National Democratic Policy Committee 

113 Wash3d 413,780 R2d 1282 (1989) 

FACTS OF CASE 

This case presents the question of whether a political organization has a right under the free speech provilo Justice Brennan recently told the American Bar Association: 

ANDERSON, Justice. 

“[we must not be beguiled with thinking 

that, because state supreme courts are increas- ingly evaluating their state constitutions and 

concluding that those constitutions should be 

applied to confer greater civil liberties than their 

federal counterparts, we can safely ignore the 

deterioration being worked on Fourteenth 

Amendment protections. We can and should 

welcome this development in state constitution- al jurispredence-indeed, my own view is that 

this rediscovery by state supreme courts of the 

broader protections afforded their own citizens 

by their state constitutions * * * is probably the 

most important development in constitutional 

jurisprudence of our times. * * * “ But this most 

welcome development does not mean that we can 

stop resisting cut backs, particularly by the Su- preme Court of the United States, of Fourteenth 

Amendment protections. One of the great 

strengths of our federal system is that it provides a 

double source of protection for the liberties of our 

citizens. Federalism is not served when the federal 

half of that protection is crippled.” 

“The Fourteenth Amendment,” address by Justice 

William J. Brennan, Jr., American Bar Association Section on Individual Rights and Responsibilities. New York 

University Law School (August 8, 1986). See ulso Cabranes, The Need for Coritirirred Fedeml Avtectiori of bidividird Rights, 15 Conn. L Rev. 31 (1982). 

18 
sion of the Constitution of the State of Washington to 

solicit contniutions and sell literature in a privately 

owned shopping mall. We conclude that it does not. 

Southcenter Joint Venture (Southcenter) owns 

the Southcenter Shopping Center, an enclosed shopping mall comprised of numerous retail stores. The 

Southcenter Shopping Center will be referred to 

herein simply as the “mall”. Southcenter acquired the 

mall from its previous owner in December of 1985. At 

all times pertinent herein, it maintained a policy of 

allowing charitable, civic and political groups to use 

designated “public service centers” within the mall. 

Southcenter promulgated regulations governing the 

use of these areas by such outside groups. These 

regulations required that groups wishing to use the 

public service centers first submit an application to do 

so. One of the regulations prohibited solicitation of 

funds in the mall. 

On June 20, 1986, an organization named the 

National Democratic Policy Committee (NDPC) submitted an application requesting the use of a public 

service center. The NDPC is a political organization 

apparently devoted to advancing the political views of 

one Lyndon LaRouche. Despite its name, the NDPC 

is not affiliated with the Democratic Party. 

In its application, the NDPC stated that it wished 

to use a public service center for the purposes of 

distributing literature, signing up members, and soliciting contributions. Southcenter denied the application due to its regulation against soliciting funds. . . . 

ISSUE TWO 

CONCLUSION. The free speech provision of the 

Constitution of the State of Washington (Const.art. 1, 

sec. 5) affords protection to the individual against actions of the State. It does not protect an individual 

against the actions of other private individuals. The free 

speech provision of our state constitution thus does not 

afford the NDPC a constitutional right to solicit contributions and sell literature at the mall. 

* * * * * 

It is significant that the position we adopt herein 

commands the support of the overwhelming majority 

of courts that have addressed this issue. The highest 

courts of Connecticut, Michigan, New York, North 

Carolina, Pennsylvania and Wisconsin have all recently concluded in cases involving similar facts that 

the free speech provisions of their respective state 

constitutions do not protect against infringement by 

private individuals. It appears that only the California 

and New Jersey courts have gone so far as to discover 

such a right in their state constitutions. 

Our decision on the “state action” issue in this 

case is also consistent with the decision of this court in 

Alderwood Assocs. v. Washington Envtl. Coun., 96 

Wash.2d 230, 635 P.2d 108 (1981). In Alderwood, the 

Washington Environmental Council asserted that it 

had the right to solicit signatures for an initiative at a 

shopping mall. A 4-member plurality of this court, 

i.e., less than a majority of the court, maintained that 

there was no “state action” requirement under the 

free speech and initiative provisions of the state constitution. That plurality then followed what it termed 

a “balancing approach” for determining when these 

guaranties prevail over the rights of a private property 

owner and concluded that the balance tipped in favor 

of the initiative supporters in that case. 

Although a fifth member of the court, Justice 

Dolliver, concurred “with the result,” he sharply rejected the plurality’s reasoning, branding its free 

speech analysis “constitution-making by the judiciary 

of the most egregious sort.” Alderwood, at 248, 635 

F?2d 108 (Dolliver, J., concurring). The concurrence 

nonetheless reasoned that the activity of soliciting 

signatures for an initiative was authorized by the initiative provision of the state constitution (Wash. 

Const. art. 2, sec l(a) (amend. 72) and the initiative 

and referendum statute (RCW 29.79). As the concurring opinion pointed out, unlike the free speech provision, the initiative provision is not part of our state 

constitution’s Declaration of Rights and does not establish a right against the government but declares 

that the people are part of the legislative process. 

The remaining four members of the court of Alderwood dissented. The dissent agreed with the objection of the concurrence to the plurality’s free speech 

analysis, though it disagreed with the analysis of the 

concurrence concerning the initiative provision of the 

state constitution. 

Thus, in Alderwood, a 5-member majority of this 

court rejected the argument nowpsited by the NDPC that 

the free speech provision of our state constitution does 

not require “state action.” As a consequence, the holding in Alderwood was simply that people have a right 

under the initiative provision of the Constitution of the 

State of Washington to solicit signatures for an initiative 

in a manner that does not violate or unreasonably restrict the rights of private property owners. We expressly 

do not here disturb that holding. 

* * * * * 

UTTER, Justice (concurring in the result). 

I agree with the majority that, given the facts of 

this case, Const. art. 1, sec. 5 (hereinafter section 5) 

does not allow the petitioners the right to solicit donations and memberships within a private shopping 

mall. The majority’s rationale for reaching this result, 

however, is one with which I cannot agree. 

In applying the interpretive criteria we developed in State v. Gunwall, 106 Wash.2d 54,720 l?2d 808 

19 
(1986),[1] I find a different basis for our common 

result. There simply is no compelling reason why we 

should append a state action requirement to section 5 

when the plain language and drafting history of the 

provision suggest otherwise. Worse, the majority fails 

to address arguments that the state action doctrine is 

generally inappropriate at the state level. It also does 

not articulate what form of state action in today’scase 

and leaves trial courts, which must frequently apply 

our rules, without guidance. The majority also fails to 

discuss the fact that for 8 years the courts of our state -including the court below-have successfully used 

the balancing test developed in Aldmd hsocs. v. 

Washington Envtl. Coun., 96 Wash.2d 230, 635 P2d 108 

(1981). The rulings of these courts indicate that Alderwood functions as a more coherent limiting principle 

than the ill-defined state action doctrine. Such a balancing approach is mandated by Runeyard Shopping CR v. 

Robins, 447 U.S. 74, 83-87, 100 S.Ct. 2035, u)41-44,64 

L.Ed.2d 741 (1980), in cases where a state seeks to 

enforce a state constitutional speech right. The majority 

leaves undisturbed the result in Alderwood which recognizes the state’s duty to enforce an individual’s right to 

petition on certain private property. See Alderwood, 96 

Wash.2d at 251-53, 635 P2d 108 (Dolliver, J., concurring). Thus, this court must use a balancing approach 

when analyzing that manifestation of the right to 

speech; we do not give an adequate rationale why bal- ancing should not be used in the speech issue presented 

today. Further, in abandoning the Alderwood test, the 

majority also leaves without a principled underpinning 

the possibility of enforcing speech rights against other 

types of private infringements-such as actions by polit- ical parties, private universities, labor unions, private 

clubs, and civic organizations. These are common prob- lems in our complex society. For these reasons, I ConCuT 

with the majority in result only. 

I 

Analysis of this case following the nonexclusive 

criteria developed in State v. Gunwall, supra, shows that 

the state action doctrine is incongruent with much of 

the state constitution in general and with section 5 in 

particular. The first two Gunwall criteria involve the text 

of the state constitutional provision. These two criteria 

encourage analysis of the language of the provision 

itself as well as textual contrasts with its federal parallel. 

Gunwall, 106 Wash.2d at 61, 720 R2d 808. 

The majority does undertake a brief analysis of 

section 5’s language. As the majority must acknowledge, the text makes no reference to governmental 

actions. The provision states simply: “Every person 

may freely speak, write and publish on all subjects, 

being responsible for the abuse of that right.” The 

[‘]The majority claims, at page 12!N n. 37, that its analysis, 

‘‘reflects consideration of the relevant Girriwall criteria.” 

Nonetheless, the opinion makes no overt reference to that 

case’s interpretive criteria and interaction with section 5. 

unambiguous nature of these words stands as a major 

obstacle to any attempt to read a state action requirement into them. If constitutional provisionsare textually clear, this court will give the words their plain 

meaning. See Anderson v. Chapman, 86 Wash.2d 189, 

191, 543 P2d 229 (1975). Such a plain meaning here 

could not include a state action requirement-the 

language simply is not present in section 5. 

Moreover, as the majority also acknowledges, the 

committee that drafted the speech provision specifically deleted state action language from its finished 

product. The first version of section 5 read: “That no 

law shall be passed restraining the free expression of 

opinion or restricting the right to speak, write or print 

freely on any subject.” (Italics mine.) Tacoma Daily 

Ledger, July 13, 1889, at 4, col. 3; see also Utter, The 

Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgement, 8 U. Puget Sound L.Rev. 157,172 (1985) (hereinafter “Right 

to Syeak”). After a number of revisions, the Preamble 

and Declaration of Rights Committee submitted the 

text of the speech provision minus the state action language to the convention for passage. This version was 

based in part on the speech guarantee of the California 

constitution. fight to Speak, at 175-77. The convention 

passed this version of section 5 without debate. 

The most logical and direct conclusion one can 

draw from this history is that the committee members 

considered the impact of the state action language 

and decided against it. One must assume that they 

were aware of United States Supreme Court cases on 

state action, notably the seminal Civil Rights Cases, 

109 US. 3,3 S.Ct. 18,27 L.Ed. 835 (1883), decided just 

a fewyearsbefore the convention. Likewise, the committee members must have been familiar with Justice 

Harlan’s dissent in that case: he argued that the Fourteenth Amendment would allow Congress to regulate 

private behavior that discriminated against nonwhites. 

Civil Rights Cacies, 3 S.Ct. at 27 (Harlan, J., dissenting). 

This example, as well as the state-action-less Thirteenth 

Amendment, demonstrated to the Washington Constitution’s framers that even the federal constitution, 

when aiming to secure personal liberties, could directly 

regulate the actions of private individuals. 

The deliberateness of omitting the state action 

language becomes even more apparent when one 

compares the language of section 5 with other provi- sions in Washington’s Declaration of Rights. Many of 

these other provisions contain an express state action 

requirement. . . . The majority concludes, however, that the omission of “state action” language in section 5 served 

another purpose. It posits a “much more likely and 

reasonable explanation.” First, the majority surmises 

that the framers thought the state action language 

redundant. Second, it hypothesizes that the framers 

sought to protect freedom of speech from assaults by 

all branches of government rather than simply the 

20 
Legislature, as might be implied by the First Amend- ment’s reference to “Congress shall make no law.” 

Majority, at 1287-88. Given the fact that the majority 

cites no authority for either prong of this “explanation,” 

one must accept it for what it is mere conjecture. 

4 * * * * 

I1 

Aside from the specific language of section 5, 

reasons inherent to the structure of our state consti- tution argue against a generalized state action re- quirement in state constitutional jurisprudence. The 

majority cursorily dismisses commentary developing 

these reasons as “an array of theoretical arguments”’ 

and declares that constitutional analysis “must spring 

not from pure intuition, but from a process that is at 

once articulable, reasonable and reasoned.” Major- ity, at 1290, quoting State v. Gunwall, 106 Wash.2d at 

63, 720 F?2d 808. Ironically, these dismissed reasons 

relate directly to the fifth criterion we announced in 

Gunwall: “[d]ifferences in structure between the federal 

and state constitutions.” Gunwall, at 62, 720 P.2d 808. 

One cannot overlook the fact that the state action 

doctrine was developed around the text of and policies 

behind the Fourteenth Amendment to the federal con- stitution-not the constitution of any individual state. 

The Fourteenth Amendment is drafted around a 

scheme speclficaly aimed at the actions of states: 

No state shall make or enforce any law which 

shall abridge the privileges or immunities of ,citizens of the United States; mi shall any state deprive 

any person of life, liberty, or property, without due 

process of law; nor deny to any person within its 

jurisdiction the equal protection of the laws. 

(Italics mine.) As mentioned above, the United 

States Supreme Court formally developed the state 

action requirement for cases involving federal legisla- tion based on the Fourteenth Amendment in the Civil 

Rights Cases, supra. 

The marked contrast between the state and 

federal texts is, once again, one of the more obvious 

reasons why “state action” should not be required 

when interpreting a state constitution. At a deeper 

level, however, these textual differences highlight 

interests of federalism essential to the application 

’In this area of state constitutional interpretation, where 

records of the delegates’ debates and committee mem- bers’ discussions are scanty, reasoned theoretical discus- sion-supported by legal and historical authority-is 

essential to our task. In this regard, even the majority’s 

position is no more than a “theoretical argument.” Status 

as such an argument, however, is not necessarilybelittling, 

as the majority would acknowledge in its own argument’s 

case. What is essential is, as the majority tell us, “a process 

that is at once articulable, reasonable and reasoned,” in 

other words, a fair examination of ideas, authority, and 

evidence. The majority fails to do this. 

of the federal constitution but irrelevant to state 

constitutional jurisprudence. 

* 4 * * * 

Thus, while the applicability of state action to a 

case like the one at hand is apparently a matter of 

controversy, the majority does not shed any light on 

the subject. It would have us affiv a state action re- quirement to section 5-when the plain language of 

that provision suggests otherwise-and then not tell 

us how to use it. The majority’s adherence to the 

“conceptual disaster area”18 of state action leaves 

behind a number of unanswered questions. Primarily, 

under the constitutional interpretive criteria adopted 

by this court, what aspects of the federal doctrine, if 

any, are appropriate? What exceptions will we adopt? 

How does the federal requirement-with its numer- ous exceptions-transpose to a state constitutional 

provision which is admittedly more protective than its 

federal counterpart? See majority, at 1286. The ma- jority does not answer these questions. 

Western Pennsylvania Socialist Workers 

1982 Campaign v. Connecticut General 

Life Insurance Company 

Page 137, Discussion Notes: 

~~ ~~ 

Discussion Notes: 

3. Is there any possible remaining remedy 

for advocates of free speech rights on private 

property in Pennsylvania? See Coatesville Development Co. v. United Food and Commercial 

Workers, 374 Pa.Super.330, 542 A.2d 1380 

(1988) (common law rights). For a discussion of 

common law alternatives to state constitutional rights analysis, see Judith S. Kaye, “A 

Midpoint Perspective on Directions in State 

Constitutional Law,”Emerginglssues in State 

Constitutional Law 1 (1988): 25-27. 

18Black, The Supreme Court, 1966 Enit Foreword: ‘State 

Action, ” Equal Pmtection, and California’s Proposition 14, 

81 HarvLRev. 69,95 (1967). Indeed, law reviews are full 

of commentary and criticism of the state action doctrine 

(or “anti doctrine” as described by Professor Tribe). Some 

scholars advocate abandoning the doctrine altogether. See 

genemlly Chemerinsky, supra note 16. Professor Chemerinsky argues that one of the original assumptions behind 

the state action doctrine was that the common law gener- ally protected individual rights from private invasions. 

Individual rights expanded under constitutional analysis 

as applied to government action-largely through a nor- mative analysis-while a more positivist common/private 

law lagged behind. The common law, then, did not fulfill 

its function of protecting private invasions of natural 

rights recognized by the courts under the constitution. 

Chemerinsky goes on to argue that under any theory of 

individual rights (positivist, natural law, or consensus), the 

state action doctrine is obsolete. 
People v. Zelinski 

Page 142, Discussion Notes: 

Discussion Notes: 

5. In Luedtke v. Nabors Alaska Drilling, 

Znc., 768 F?2d 1123,1129-30 (Alaska 1989), the 

Alaska Supreme Court held that the privacy 

provision in the Alaska Constitution, Article I 

Sec. 22, did not apply to private action in the 

employee drug testing context. 

6. On the state action doctrine under state 

constitutions generally, see Kevin Cole, “Federal 

and State ‘State Action’: The Undercritical Embrace of a Hypercriticized Doctrine,” Georgia 

Law Review 24 (Winter 1990): 327; John Devlin, 

“Constructing an Alternative to ‘State Action’ as 

a Limit on State Constitutional Rights Guarantees: A Swey, Critique and Proposal,” Rutgers 

Law Joud 21 (1990): 2 Jennifer Friesen, 

“Should California’s Constitutional Guarantees 

of Individual Rights Apply Against Private Actors?” Hartings Constitutional Law Quartedy 17 

(Fall 1989): 111; Scott E. Sundby, “Is Abandoning State Action AskingW Much of the Constitution?’ Hastings Constitutional Law Quarterly 17 

Fall 1989): 139. 

Florida v. Casal 

Page 152, Discussion Notes: 

Discussion Notes: 

4. For further information on Florida’s 

search and seizure amendment, see Christopher Slobogin, “State Adoption of Federal 

Law: Exploring the Limits of Florida’s ‘Forced 

Linkage’ Amendment,” University of Florida 

Law Review 39 (Summer 1987): 653. See also 

State v. Ridenour, 453 S0.2d 193,194 (Fla. App. 

1984) (Hubbart, J., concurring): 

HUBBm, Judge (concurring). 

I concur in the opinion and judgment of 

the court, I write separately, however, to express my sincere regret at the passage of the 

recent amendments to Article I, Section 12 of 

the Florida Constitution, inasmuch as they 

amount, in effect, to a virtual repeal of the entire 

state constitutional right. By these amendments, Florida no longer has a separately protected constitutional right of search and seizure; it is now inexorably linked to the Fourth 

Amendment and has no independent existence 

apart from the Fourth Amendment. I doubt 

whether the voters realized that they were, 

22 

in effect, repealing Article I, Section 12 of the 

Florida Constitution when they overwhelmingly 

approved the recent amendments in the November 1982 elections, but that is exactly what 

they did. Perhaps, with the passage of time, we 

will learn what a mistake that decision was and 

will act to restore Article I, Section 12 to its 

rightful place in the Florida Constitution. Until 

then, I think it clear that Article I, Section 12 of 

the Florida Constitution is a dead letter and that 

decisions such as State v. Sarmiento, 397 So.2d 

643 @a, 1981), interpreting this constitutional 

provision to give our citizens greater rights than 

that guaranteed by the Fourth Amendment, are, 

most regrettably, relics of the past. 

5. In a state like Florida, what if there is 

also an explicit privacy provision in the state 

constitution? See Shaktman v. State, 553 So.2d 

148, 150-51 (Fla.1989): 

The right of privacy, assured to 

Florida’s citizens, demands that individuals 

be free from uninvited observation of or 

interference in those aspects of their lives 

which fall within the ambit of this zone of 

privacy unless the intrusion is warranted by 

the necessity of a compelling state interest. 

In an opinion which predated the adoption 

of section 23, the First District aptly characterized the nature of this right: 

A fundamental aspect of personhood’s integrity is the power 

to control what we shall reveal 

about our intimate selves, to 

whom, and for what purpose. 

Bryon, Harless, Schaffec Reid & Assocs., Znc. v. State ex rel, , Schellenberg, 360 

So.2d 83,92 (Fla. 1st DCA 1978). quashed 

and remanded on other grounds, 379 S0.2d 

633 (Fla.1980). Because this power is exercised in varying degrees by differing individuals, the parameters of an individual’s 

privacy can be dictated only by that individual. The central concern is the inviolability of one’s own thought, person, and 

personal action. The inviolability of that 

right assures its preeminence over 

“majoritarian sentiment” and thus cannot 

be universally defined by consensus. 

The telephone numbers an individual 

dials or otherwise transmits represent per- sonal information which, in most instances, 

the individual has no intention of communi- cating to a third party. This personal expectation is not dcl’cated by the fact that the 

telephone company has that information. 

As the Supreme Court of Colorado noted: 
The concomitant disclosure to 

the telephone company, for internal business purpose, of the numbers dialed by the telephone subscriber does not alter the caller’s 

expectation of privacy and transpose 

it into an assumed risk of disclosure 

to the government. . . . [I]t is somewhat idle to speak of assuming risks 

in a context where, as a practical 

matter, the telephone subscriber has 

no realistic alternative. 

People v. Sporleder, 666 P.2d 135, 141 

(Colo.1983) (citations omitted). 

We agree with the Third District that 

the privacy interests of article I, section 23 

are implicated when the government gathers telephone numbers through the use of 

a pen register. See Winfield v. Division of 

Pan-Mutuel Wagering, 477 S0.U 544, 548 

(Fla.1985). This gathering of private information clearly affects a matter within that 

zone of privacy. Accordingly, we adopt the 

analysis of the district court and answer the 

first certified question in the affirmative? 

See also Riley v. State, 549 So.2d 673 

(Fla.1989); State v. Brown, 755 R2d 1364, 

1370-71 (Mont.1988); StatevJones, 706 P2d 317 

(Alaska 1985); Slobogin, “State Adoption of 

Federal Law,” pp. 710-16. 

*We add that the district court concluded and the 

petitioners now concede that article I, section 12 of 

the Florida Constitution, is not implicated by the 

facts of this case. 

Page 161, following the Discussion Notes: 

Davidson v. Rogers 

281 Or. 219,574 R2d 624 (1978) 

HOLMAN, Justice. 

Plaintiff brought an action for libel based upon a 

magazine article published by defendants. Only general damages were requested. Defendants’ demurrer 

to the complaint was sustained upon thebasis that the 

facts stated were insufficient to constitute a cause of 

action for general damages because it was not alleged 

that a retraction had been requested of defendants 

and refused by them as required by ORS 30.160. 

Plaintiff appeals. 

Plaintiff concedes that under our present decision in Holden v. Pioneer Broadcasting Co. et al., 228 

Or. 405,365 P2d 845 (1961) he cannot maintain his 

action. However, he urges us to reconsider that decision and to hold that the statute is unconstitutional as 

being in violation of that part of Art. I, sec. 10, of the 

Oregon Constitution which provides that “* * * every 

man shall have remedy by due course of law for injury 

done him in his person, property or reputation.” 

We see no reason to depart from this court’s prior 

decision upon the subject. The language of the constitution does not specify that the remedy need be the 

same as was available at common law at the time of 

the adoption of the constitution; and the statute, 

while restricting the remedy, does not abolish the 

cause of action. Even though a retraction is not requested, the right of action still exists for an intentional defamation and, in any event, for recovery of 

specific demonstrable economic loss. Such a limitation is not violative of Art. I, sec. 10, for the reason 

that it does not wholly deny the injured party a remedy for the wrong suffered. Holden v. Pioneer Broadcasting Co. et al., supra at 412,365 P.2d 845; Noonan v. 

City of Portland, 161 Or. 213,244,88 €?2d 808 (1939); 

Pullen v. Eugene, 77 Or. 320,328,146 P.822,147 P. 768, 

147 €? 1191, 151 I? 474, Ann.Cas.1917B 933 (1915). 

In addition, the legislature has made available a 

retraction as a substitute for the remedy which the 

law would otherwise have provided. Holden v. Pioneer 

Broadcasting Co. et al., supra 228 Or. at 415,365 P.2d 

845. As a practical matter, retraction can come nearer 

to restoring an injured reputation than can money, 

although neither can completely restore it. 

If the specific remedies available at common law 

were frozen at the adoption of Oregon’s Constitution, 

the legislature would have been helpless to enact limitations upon actions such as those provided by the Workmen’s Compensation Law and the guest passenger 

statute, or to concern itself with other similar matters 

about which it is usual for legislatures to take action. 

The judgment of the trial court is affirmed. 

LINDE, Justice, concurring. 

In joining the court’s opinion I do not endorse 

everything that was said in Holden v. Pioneer Broadcasting Co., 228 Or. 405,365 €?2d 845 (1961). Some of 

the points made by the dissenters in that case and by 

Justice Lent today are well taken. But I think the 

question whether retraction of a defamatory statement is an “alternative remedy” that can satisfy article I, section 10, was and remains a false issue. 

The guarantee in article I, section 10, of a “remedy by due course of law for injury done [one] in his 

person, property, or reputation” is part of a section 

23 
dealing with the administration of justice.l It is a 

plaintiffs’ clause, addressed to securing the right to 

set the machinery of the law in motion to recover for 

harm already done to one of the stated kinds of interest, a guarantee that dates by way of the original state 

constitutions of 1776 back to King John’s promise in 

Magna Charta chapter 40: To no one will We sell, to 

no one will We deny or delay, right or justice.”2 It is 

concerned with securing a remedy from those who administer the law, through courts or otherwise. But ORS 

30.160 and 30.165 do not purport to entitle anyone to 

the “remedy” of a retraction. Indeed, if they did, they 

really would raise genuine constitutional difficulties. 

See Miami HeraldPublishingCo. v. Tornillo,418U.S. 

241,94 S.Ct. 2831,41 L.Ed.2d 730 (1974). These sections 

merely provide the publisher of the alleged defamation 

Article I, section 10, provides: 

No court shall be secret, but justice shall be 

administered, openly and without purchase, 

completely and without delay, and every man 

shall have remedy by due course of law for injury 

done him in his person, property, or reputation. 

See Sources of Our Liberties 145,342348 (R. Perry ed. 1959); 

A.E. Howard, The Road from Runnymede 210,284 297,483 

484 (1968). As a claim to a remedyprovided by the govern- ment, this section should not be confused with the guarantee 

of Magna Charta chapter 39 against deprivatioris by the 

government “except by the lawful judgment of [one’s] peers 

and by the law of the land,” which gave us the “law of the 

land” and “due process” clauses of our 18th century constitu- tions. Several of these constitutions contained both of these 

distinct guarantees. For instance, the first constitution of 

Maryland in 1776 declared in one paragraph 

That every freeman, for any injury done 

him in his person or property, ought to have 

remedy, by the course of the law of the land, and 

ought to have justice and right freely without 

sale, fully without any denial, and speedily with- out delay, according to the law of the land. 

and in another: 

That no freeman ought to be taken, or im- prisoned, or disseized of his freehold, liberties, 

or privileges, or outlawed, or exiled, or in any 

manner destroyed, or deprived of his life, liberty, 

or property, but by the judgment of his peers, or by 

the law of the land. Md. Decl. of Rights secs. XVII, 

XXI (1776) 

See also Pa.Const. art. IX, sea. 9, 11 (1790), 

DelConst. art. I, secs. 7,9, (1792), Ky. Const. art. XII, sea. 

10,13 (1792). Other states adopted only one or the other, 

as did the precursors of Oregon’s version of Magna Charta 

chapter 40 stated in article I, section 10. A century earlier 

William Penn had included the equivalent of Magna 

Charta chapter 40 in his Frame of Government for Penn- sylvania (see the Laws Agreed Upon in England art. V 

(1682) reprinted in B. Schwartz, The Bill of Rights: A 

Documentary History 140 (1971)). and New York included 

both it and a version of chapter 39 in its Charter of Libertyes and Priviledges (1683). B. Schwartz srpm at 165. 

with an opportunity to retract if he wishes by this means 

to limit his possible liability. A step taken by a putative 

defendant which the law does not compel but leaves 

entirely to his own balance between his sense of inno- cence or stubbornness on the one hand and his sense of 

obligation or calculation of risk on the other is not a 

“remedy by due course of law.” If an optional retraction 

plays a role at all in the validity of limiting the measure 

of damages for defamation, it would have to be that the 

retraction is deemed to reduce the “injury,” not that it is 

a substitute legal remedy. 

But the validity of ORS 30.160 does not rest on 

the contingency of a retraction. The statute does not 

withdraw the common-law action for defamation. It 

limits the financial scope of the remedy, at least for 

unintentional defamation, to a measure of damages 

that corresponds to injuries measurable in money. 

We need not pursue here the question how far the 

legislature must retain money damages as a constitu- tionally required remedy for noneconomic injuries 

when they existed at common law. Defamation is a 

special case, addressed by more than one provision of 

article I, Oregon’s Bill of Rights. The focus of section 10 

is on assuring a remedy to one whose reputation has 

been injured. At the same time, article I, section 8, 

forbids all laws “restraining the free expression of opinion, or restricting the right to speak, write, or print 

freely on any subject whatever,” with the proviso that 

“every person shall be responsible for the abuse of this 

right.” They yield a coherent view of freedom and responsibility. The responsibility prescribed in section 8 is 

to others for injuries done to them, such as the injury to 

reputation accorded constitutional statute in section 10. 

Laws limited to remedying such injuries alone are not 

laws restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any 

subject whatever. Laws that in terms impose sanctions 

on speech or writing beyond the needs of remedying 

such injuries, whether statutory or common law, are 

restraints and restrictions forbidden by section 8. See 

Derm v. Myers, 272 Or. 47, 535 F?2d 541 (1975). Given 

the interrelation of our two explicit sections on freedom 

of speech and press and the right to a remedy for injury 

to reputation, a statdte that matches financial compensation for unintentional defamation to demonstrable 

injuries measurable in money arguably exhausts the 

scope of that remedy under article I, section 8. In any 

event, it satisfies article I, section 10. 

Sterling v. Cupp 

Page 163, Discussion Notes: 

Discussion Notes: 

3. In Grubbs v. Brudley, 552 F. Supp. 1052, 

1124-25 (M.D. Tenn. 1982) a federal district 

judge made the following statements: 

C. State Law Claims 

24 
I Article I, Section 16 of the Rnnes- Page 164, following the Discussion Notes: 

see Constitution is a verbatim duplication of the Eighth Amendment to the 

United States Constitution. At the time 

of its enactment, 1870, it is assumed 

that the framers intended the provision 

to be entirely coextensive with the parallel Eighth Amendment. As noted, 

supra, the Eighth Amendment’s cruel 

and unusual punishments clause at the 

time was thought to be strictly a prohibition upon the imposition of tortures 

and other barbarous forms of punishment. 

Thus, the framers of the Tennessee Constitution apparently thought 

that in order to ensure the humane 

treatment of incarcerated offenders, a 

separate provision was needed. Article 

I, Section 32 of the Tennessee Constitution provides: 

That the erection of safe 

and comfortable prisons, the 

inspection of prisons, and the 

humane treatment of prisoners, shall be provided for. 

This provision has never been construed 

In view of the development of federal 

Eighth Amendment litigation, and the 

now well-established principle that the 

cruel and unusual punishments clause requires the humane treatment of prisoners, and their housing in facilities that provide for basic needs in accordance with 

“evolving standards of decency,” Pop, 

supra 356 U.S. at 101,78 S.Ct. at 598, the 

court is convinced that the protections intended to be ensured by Tenn. Const. Art. 

I, sec. 32, are now provided by the Eighth 

Amendment. In the opinion of the court, 

Art. I, sec. 32 simply does not afford greater protection than is now available under 

the aegis of the Eighth Amendment. See 

n. 2 and accompanying text, supra. 

Therefore, the standards applicable 

to conditions of confinement by virtue of 

the Eighth Amendment are equally applicable to both of the relevant provisions of 

the Tennessee Constitution. Despite the 

rather unique language of the state constitution, that document does not, insofar as 

is relevant here, substantially extend the 

rights guaranteed to lawfully incarcerated 

persons under the United States Constiin any reported case. 

1 tution. 

In re T.W. 

551 So.2d 1186 (Fla.1989) 

SHAW, Justice. 

We have on appeal In re TW, 543 So.2d 837 (Fla. 

5th DCA 1989), which declared unconstitutional section 390.001(4)(a), Florida Statutes (Supp.1988), the 

parental consent statute. We have jurisdiction. Art. V, 

sec. 3(b)(l), Fla. Const. We approve the opinion of 

the district court and hold the statute invalid under 

the Florida Constitution. 

I. 

The procedure that a minor must follow to obtain 

an abortion in Florida is set out in the parental consent statute and related rules. Prior to undergoing an 

abortion, a minor must obtain parental consent or, 

alternatively, must convince a court that she is sufficiently mature to make the decision herself or that, if 

she is immature, the abortion nevertheless is in her 

best interests. Pursuant to this procedure, TW., a 

pregnant, unmarried, fifteen-year-old, petitioned for 

a waiver of parental consent under the judicial bypass 

provision on the alternative grounds that (1) she was 

sufficiently mature to give an informed consent to the 

abortion, (2) she had a justified fear of physical or 

emotional abuse if her parents were requested to 

consent, and (3) her mother was seriously ill and 

informing her of the pregnancy would be an added 

burden. The trial court, after appointing counsel for 

T.W. and separate counsel asguardian ad litem forthe 

fetus, conducted a hearing within twenty-four hours 

of the filing of the petition. 

The relevant portions of the hearing consisted of 

T.W.3 uncontroverted testimony that she was a 

high-school student, participated in band and flag 

corps, worked twenty hours a week, baby-sat for her 

mother and neighbors, planned on finishing high 

school and attending vocational school or community 

college, had observed an instructional film on abortion, had taken a sex education course at school, 

would not put her child up for adoption, and had 

discussed her plans with the child’s father and obtained his approval. She informed the court that due 

to her mother’s illness, she had assumed extra duties 

at home caring for her sibling and that if she told her 

mother about the abortion, it would kill her.” Evidence was introduced showing that the pregnancy was 

in the first trimester. 

The guardian ad litem was accorded standing and 

allowed to argue that the judicial bypass portion of 

the statute was unconstitutionally vague and that parental consent must therefore be required in every 

instance where a minor seeks to obtain an abortion. 

The trial court ruled that the judicial bypass provision 

25 
of the statute was unconstitutional because it failed to 

make sufficient provision for challenges to its validity, 

was vague, and made no provision for testimony to 

controvert that of the minor. The court denied the 

petition for waiver and required TW. to obtain parental 

consent under the remaining provisions of the statute. 

The district court found that the statute’s judicial 

alternative to parental consent was unconstitutionally vague, permitting arbitrary denial of a petition, and 

noted the following defects: failure to provide for a 

record hearing, lack of guidelines relative to admissible evidence, a brief forty-eight-hour time limit, and 

failure to provide for appointed counsel for an indigent minor. The court declared the entire statute 

invalid, quashed the trial court’s order requiring parental consent, and ordered the petition dismissed. 

The guardian ad litem appealed to this court. The 

Florida Attorney General was granted permission to 

appear as amicus curiae. The guardian filed a number 

of motions to block the abortion but was unsuccessful 

and T.W. lawfully ended her pregnancy, which would 

normally moot the issue of parental consent. 

Because the questions raised are of great public 

importance and are likely to recur, we accept jurisdiction despite T.W.’s abortion. See Holly v. Auld, 450 

So.2d 217 (Fla.1984). . . . The seminal case in United States abortion law is 

Roev. Wade,410U.S.113,93S.Ct.705,35L.Ed.2d147 

(1973). There, the Court ruled that a right to privacy 

implicit in the fourteenth amendment embraces a 

woman’s decision concerning abortion. Autonomy to 

make this decision constitutes a fundamental right 

and states may impose restrictions only when narrowly drawn to serve a compelling state interest. The 

Court recognized two important state interests, protecting the health of the mother and the potentiality 

of life in the fetus, and ruled that these interests 

become compelling at the complction of the first 

trimester of pregnancy and upon viability of the fetus 

(approximately at the end of the second trimester), 

respectively. Thus, during the first trimester, states 

must leave the abortion decision to the woman and 

her doctor; during the second trimester, states may 

impose measures to protect the mother’s health; and 

during the period following viability, states may possibly forbid abortions altogether. Although the workability of the trimester system and the soundness of 

Roe itself have been seriously questioned in Webster v. 

Reproductive Health Services, - U.S. -, 109 S.Ct. 

3040, 106 L.Ed.2d 410 (1989), the decision for now remains the federal law. Subsequent to Roe, the Court 

issued several decisions dealing directly with the matter 

of parental consent for minors seeking abortions. See 

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 103 

S.Ct. 2517,76 LEd.2d 733 (1983); City ofAkron v.Ahon 

Center for Reproductive Health Inc., 462 U.S. 416, 103 

S.Ct. 2481, 76 LEd.2d 687 (1983); Bdotti v. Baird, 443 

U.S. 622,99 S.Ct. 3035,61 L.Ed.2d 797 (1979) (plurality 

opinion); Planned Parenthood v. Danforth, 428 U.S. 52, 

% S.Ct. 2831,49 L.Ed.2d 788 (1976). 

To be held constitutional, the instant statute 

must pass muster under both the federal and state 

constitutions. Were we to examine it solely under the 

federal Constitution, our analysis necessarily would 

track the decisions noted above. However, Florida is 

unusual in that it is one of at least four states having 

its own express constitutional provision guaranteeing 

an independent right to privacy, see Note, Toward a 

Right of Privacy as a Matter of State Constitutional Law, 

5 F1a.St.U.L. Rev. 632, 691 (1977) (others include 

Alaska, California, and Montana): and we opt to 

examine the statute first under the Florida Constitution. If it fails here, then no further analysis under 

federal law is required. 

As we noted in Winjield v. Division ofpan-Mutuel 

Wagering, 477 So.2d 544 (Fla. 1985), the essential concept of privacy is deeply rooted in our nation’s political and philosophical heritage. . . . In 1980, Florida voters by general election 

amended our state constitution to provide: 

Section 23. Right of privacy.-Every 

natural person has the right to be let alone 

and free from governmental intrusion into 

his private life except as otherwise provided 

herein. This section shall not be construed to 

limit the public’s right of access to public 

records and meetings as provided by law. 

Art. I, sec. 23, Fla. Const. This Court in Winjield 

described the far-reaching impact of the Florida 

amendment: 

The citizens of Florida opted for more 

protection from governmental intrusion 

when they approved article I, section 23, of 

the Florida Constitution. This amendment is 

an independent, freestanding constitutional 

provision which declares the fundamental 

right to privacy. Article I, section 23, was 

intentionally phrased in strong terms. The 

drafters of the amendment rejected the use 

of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as 

strong as possible. Since the people of this 

state exercised their prerogative and enacted 

an amendment to the Florida Constitution 

which expressly and succinctly provides for a 

4See Alaska Const. art. I, sec. 22; Cal. Const. art. I, sec. 1; 

Mont. Const. art. 11. sec. 10. A second group of states has 

incorporated the privacy right into constitutional provi- sions dealing with additional matters. See Ariz. Const. art. 

11. sec. 8; Haw. Const. art. I, sea. 6.7; Ill. Const. art. I. sea. 

6. 12; La. Const. art. I, sec. 5; S.C. Const. art. I. sec. 10; 

Wash. Const. art. I, sec. 7. 

26 
strong right of privacy not found in the 

United States Constitution, it can only be 

concluded that the right is much broader in 

scope than that of the Federal Constitution. 

Winfield, 477 So.2d at 548. In other words, the 

amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution. 

Consistent with this analysis, we have said that 

the amendment provides “an explicit textual foundation for those privacy interests inherent in the concept of liberty which may not otherwise be protected 

by specific constitutional provisions.” Rasmussen v. 

South Fla. Blood Sen, 500 So.2d 533, 536 (Fla. 1987) 

(footnote omitted). We have found the right implicated in a wide range of activities dealing with the 

public disclosure of personal matters. See Barron v. 

Florida Freedom Newspapers, 531 S0.Z 113 (Fla.1988) 

(closure of court proceedings and records); Rasmussen (confidential donor information concerning 

AIDS-tainted blood supply); Winfield (banking re- cords); Florida Bd. of Bar Examiners re: Applicant, 443 

S02d 71 (Fla.1983) (bar application questions concerning disclosure of psychiatric counselling). Florida 

courts have also found the right involved in a number 

of cases dealing with personal decisionmaking. See 

Public Health Tmst v. Wons, 541 So.2d 96 (Fla.1989) 

(refusal of blood transfusion that is necessary to sus- tain life); Corbett v. D ’Alessundro, 487 So.2d 368 (Fla. 

26 DCA), review denied, 492 So.2d 1331 (Fla.1986) 

(removal of nasogastnc feeding tube from adult in 

permanent vegetative state); In re Guardianship of 

Berry, 445 So.% 365 (Ha. 26 DCA 1984) (removal of life 

support system from brain-dead infant); see also Satz v. 

Perlmutter, 379 So.2d 359 (Fla.1980) (removal of respirator from competent adult, decided prior to passage of 

privacy amendment under general right of privacy). 

The privacy section contains no express standard 

of review for evaluating the lawfulness of a government intrusion into one’s private life, and this Court 

when called upon, adopted the following standard: 

Since the privacy section as adopted con- tains no textual standard of review, it is important for us to identify an explicit standard 

to be applied in order to give proper force 

and effect to the amendment. The right of 

privacy is a fundamental right which we believe demands the compelling state interest 

standard. This test shifts the burden of proof 

to the state to justify an intrusion on privacy. 

The burden can be met by demonstrating that 

the challenged regulation serves a compelling 

state interest and accomplishes its goal 

through the use of the least intrusive means. 

Winfield, 477 So.2d at 547. When this standard 

was applied in disclosural cases, government intrusion 

generally was upheld as sufficiently compelling to over- come the individual‘s right to privacy. We reaffii, 

however, that this is a highly stringent standard, emphasized by the fact that no government intrusion in the 

personal decisionmaking cases cited above has survived. 

Florida’s privacy provision is clearly implicated in 

a woman’s decision of whether or not to continue her 

pregnancy. We can conceive of few more personal or 

private decisions concerning one’s body that one can 

make in the course of a lifetime, except perhaps the 

decision of the terminally ill in their choice of whether to discontinue necessary medical treatment. See 

Wons; Perlmutter. 

Of all decisions a person makes about 

his or her body, the most profound and inti- mate relate to two sets of ultimate questions: 

first, whether, when, and how one’s body is to 

become the vehicle for another human being’s 

creation; second, when and how-this time 

there is no question of ‘‘whethey-one’s body 

is to terminate its organic life. 

L. Tribe, American Constitutional Law 1337-38 

(2d ed. 1988). The decision whether to obtain an abor- tion is fraught with specific physical, psychological, 

and economic implications of a uniquely personal 

nature for each woman. See Roe, 410 U.S. at 153,93 

S.Ct. at 727. The Florida Constitution embodies the 

principle that “[fJew decisions are more personal and 

intimate, more properly private, or more basic to indi- vidual dignity and autonomy, than a woman’s decision . . . whether to end her pregnancy. A woman’s right to 

make that choice freely is fundamental.” i?zornburgh v. 

American College of Obstetricians and Gynecologists, 416 

U.S. 747, 106 S.Ct. 2169, 2185,W L.Ed.2d 779 (1986). 

The next question to be addressed is whether this 

freedom of choice concerning abortion extends to 

minors. We conclude that it does, based on the unambiguous language of the amendment: The right of 

privacy extends to “[elvery natural person.” Minors 

are natural persons in the eyes of the law and “[c]onstitutional rights do not mature and come into being 

magically only when one attains the state-defined age 

of majority. Minors, as well as adults, . . . possess 

constitutional rights.” Danforth, 428 U.S. at 74, 96 

S.Ct. at 2843. See also Ashcrojl; Ciiy of Akron; H.L. v. 

Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 

388 (1981); and Bellotti. 

11. 

Common sense dictates that a minor’s rights are 

not absolute; in order to overcome these constitu- tional rights, a statute must survive the stringent test 

announced in Winfield The state must prove that the 

statute furthers a compelling state interest through 

the least intrusive means. The Roe Court recognized 

two state interests implicated in the abortion deci- sion: the health of the mother and the potentiality of 

27 
life in the fetus. Under Roe, the health of the mother 

does not become a compelling state interest until 

immediately following the end of the first trimester 

because until that time, “mortality in abortion maybe 

less than mortality in normal childbirth.” Roe, 410 

U.S. at 163. 93 S. Ct. at 731. Due to technological 

developments in second-trimester abortion procedures, the point at which abortions are safer than 

childbirth may have been extended into the second 

trimester. See City ofAkron, 462 U.S. at 429 n. 11,103 

S.Ct. at 2492 n. 11. We nevertheless adopt the end of 

the first trimester as the time at which the state’s 

interest in maternal health becomes compelling under Florida law because it is clear that prior to this 

point no interest in maternal health could be served 

by significantly restricting the manner in which abortions are performed by qualified doctors, whereas 

after this point the matter becomes a genuine concern. See id. Under Florida law, prior to the end of the 

first trimester, the abortion decision must be left to 

the woman and may not be significantly restricted by 

the state. Following this point, the state may impose 

significant restrictions only in the least intrusive manner designed to safeguard the health of the mother.6 

Insignificant burdens during either period must substantially further the important state interests. Compare id. at 430,103 S.Ct. at 2492 (“Certain regulations 

that have no significant impact on the woman’s exercise of her right may be permissible where justified by 

important state health objectives.”). 

Under Roe, the potentiality of life in the fetus 

becomes compelling at the point in time when the 

fetus becomes viable, which the Court defined as the 

time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid. 

Roe, 410 U.S. at 160,163,93 S.Ct. at 730,731. Under 

our Florida Constitution, the state’s interest becomes 

compelling upon viability, as defined below. Until this 

point, the fetus is a highly specialized set of cells that 

is entirely dependent upon the mother for sustenance. No other member of society can provide this 

nourishment. The mother and fetus are so inextricably intertwined that their interests can be said to 

coincide. Upon viability, however, society becomes 

capable of sustaining the fetus, and its interest in 

preserving its potential life thus becomes compelling. 

See Webster, 109 S.Ct. at 3075 (Blackmum, Jr., concurring/dissenting). Viability under Florida law occurs at 

that point in time when the fetus becomes capable of 

meaningful life outside the womb through standard 

medical measures. Under current standards, this point 

generally occurs upon completionof the second trimester. See id. at 307511.9 (no medical evidencs exists indicating that technological improvements will move viability forward beyond twenty-three to twenty-four 

weeks gestation within the foreseeable future due to 

the anatomic threshold of fetal development). Following viability. the state may protect its interest in 

the potentiality of life by regulating abortion, provided that the mother’s health is not jeopardized. 

111. 

The challenged statute fails because it intrudes 

upon the privacy of the pregnant minor from conception to birth. Such a substantial invasion of a pregnant 

female’s privacy by the state for the full term of the 

pregnancy is not necessary for the preservation of 

maternal health or the potentiality of life. However, 

where parental rights over a minor child are concerned, society has recognized additional state interests-protection of the immature minor and 

preservation of the family unit. For reasons set out 

below, we find that neither of these interests is sufficiently compelling under Florida law to override 

Florida’s privacy amendment. 

In evaluating the validity of parental consent and 

notice statutes, the federal court has taken into consideration the state’s interests in the well-being of the 

immature minor, see Ashcroff; City offion; Mnrheson; Bellotti; Danforth, and in the integrity of the family, see Matheson; Bellatti. In Bellotti, the Court set 

forth three reasons justifying the conclusion that 

states can impose more restrictions on the right of 

minors to obtain abortions than they can impose on 

the right of adults: “[Tlhe peculiar vulnerability of 

children; their inability to make critical decisions in an 

informed, mature manner; and the importance of the 

parental role in child rearing.” Beflorri, 443 U.S. at 

634, 99 S.Ct. at 3043. The Court pointed out that 

“during the formative years of childhood and adolescence, minors often lack the experience, perspective, 

and judgment to recognize and avoid choices that 

could be detrimental to them,” id. at 635,99 S.Ct. at 

3044, and that the role of parents in “teaching, guiding, and inspiring by precept and example is essential 

to the growth of young people into mature, socially 

responsible citizens,” id. at 638, 99 S.Ct. at 3045. In 

assessing the validity of parental consent statutes, the 

federal Court applied a relaxed standard; the state 

interest need only be “significant,” not “compelling,” 

to support the intrusion. 

We agree that the state’s interests in protecting 

minors and in preserving family unity are worthy objectives. Unlike the federal Constitution, however, 

which allows intrusion based on a “significant” state 

interest, the Florida Constitution requires a “compelling” state interest in all cases where the right to privacy 

is implicated. Winfieid. We note that Ronda does not 

recognize these two interestsasbeing sufficiently mmpelling to justlfy a parental consent requirement where 

6Restrictions to protect the state’s interest in the potential- ity of life. BS explained infra, also may be imposed, but only 

after viability, as defined infra, is reached. 

28 
procedures other than abortion are concerned. Section 

743.065, Florida Statutes (1987), provides: 

743.065 Unwed pregnant minor or minor mother; consent to medical services for 

minor or minor’s child valid.- 

(1) An unwed pregnant minor may consent to the performance of medical or surgical care or services relating to her pregnancy 

by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and 

such consent is valid and binding as if she had 

achieved her majority. 

(2) An unwed minor mother may consent 

to the performance of medical or surgical care 

or services for her child by a hospital or clinic 

or by a physician licensed under chapter 458 or 

chapter 459, and such consent is valid and 

binding as if she had achieved her majority. 

(3) Nothing in this act shall affect the provisions of s. 390.001 [the abortion statute]. 

Under this statute, a minor may consent, without 

parental approval, to any medical procedure involving her pregnancy or her existing child-no matter 

how dire the possible consequences-except abortion. Under In re Guardianship of Barry, 445 So.2d 365 

(Fla. 2d DCA 1984) (parents permitted to authorize 

removal of life support system from infant in pennanent coma), this could include authority in certain 

circumstances to order life support discontinued for a 

comatose child. In light of this wide authority that the 

state grants an unwed minor to make life-or-death 

decisions concerning herself or an existing child without parental consent, we are unable to discern a spe- cial compelling interest on the part of the state under 

Florida law in protecting the minor only where abortion is concerned. We fail to see the qualitative difference in terms of impact on the well-being of the 

minor between allowing the life of an existing child to 

come to an end and terminating a pregnancy, or between undergoing a highly dangerous medical procedure on oneself and undergoing a far less dangerous 

procedure to end one’s pregnancy. If any qualitative 

difference exists, it certainly is insufficient in terms of 

state interest. Although the state does have an interest 

in protecting minors, “the selective approach employed 

by the legislature evidences the limited nature of the. . , 

interest being furthered by these provisions.” Ivey v. 

Bacardi Imports Co., 541 So.2d 1129,1139 (Fla.1989). We 

note that the state’s adoption act similarly contains no 

requirement that a minor obtain parental consent prior 

to placing a child up for adoption, even though this 

decision clearly is fraught with intense emotional and 

societal consequences. See ch. 63, Fla.Stat. (1987). 

The parental consent statute also fails the second 

prong of the Winfield standard, i.e., it is not the least 

intrusive means of furthering the state interest. 

* * * * * 

GRIMES, Justice, concumng in part, dissenting 

in part. 

The United States Constitution does not explicitly refer to the right of privacy. However, in Roe v. 

Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 

(1973), the United States Supreme Court construed 

the due process clause of the fourteenth amendment 

to provide a right of privacy with respect to a woman’s 

decision to have an abortion. In several subsequent 

decisions, the United States Supreme Court has delineated the extent to which the state may qualify or 

otherwise burden a woman’s right to have an abortion. 

In 1980, the Florida Constitution was amended to 

specifically guarantee persons the right to privacy. As 

a consequence, it was thereafter unnecessary to read 

a right of privacy into the due process provision of 

Florida’s equivalent to the fourteenth amendment. 

However, this did not mean that Florida voters had 

elected to create more privacy rights concerning 

abortion than those already guaranteed by the United 

States Supreme Court. By 1980, abortion rights were 

well established under the federal Constitution, and I 

believe the privacy amendment had the practical effect of guaranteeing these same rights under the Florida Constitution. If the United States Supreme 

Court were to subsequently recede from Roe v. Wade, 

this would not diminish the abortion rights now provided by the privacy amendment of the Florida Constitution. Consequently, I agree with the analysis 

contained in parts I and I1 of the majority opinion, 

which I read as adopting, for purposes of the Florida 

Constitution, the qualified right to have an abortion 

established in Roe v. Wade. 

In part 111, however, the majority opinion interprets the Florida Constitution differently than the 

United States Supreme Court has interpreted the 

federal Constitution with respect to a minor’s right to 

an abortion. Recognizing that the constitutional 

rights of children may not be equated with those of 

adults, the United States Supreme Court in Bellotri v. 

Baird, 443 U.S. 622,633-34,99 S.Ct. 3035,3042-43,61 

L.Ed.2d 797 (1979), said: 

The Court long has recognized that the 

status of minors under the law is unique in 

many respects. As Mr. Justice Frankfurter 

aptly put it: “[Clhildren have a very special 

place in life which law should reflect. Legal 

theories and their phrasing in other cases 

readily lead to fallacious reasoning if uncritically transferred to determination of a 

State’s duty towards children.” May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 844.97 

29 
L.Ed. 1221 (1953) (concurring opinion). The 

unique role in our society of the family, the 

institution by which “we inculcate and pass 

down many of our most cherished values, 

moral and cultural,” Moore v. East Cleveland, 

L.Ed.2d 531 (1977) (plurality opinion), requires that constitutional principles be 

applied with sensitivity and flexibility to the 

special needs of parents and children. We 

have recognized three reasons justifying the 

conclusion that the constitutional rights of 

children cannot be equated with those of 

adults: the peculiar vulnerability of children; 

their inability to make critical decisions in an 

informed, mature manner; and the importance of the parental role in child rearing. 

Referring to the need for parental guidance upon 

the decisions of minors, the Court went on to say: 

Properly understood, then, the tradition 

of parental authority is not inconsistent with 

our tradition of individual liberty; rather, the 

former is one of the basic presuppositions of 

the latter. Legal restrictions on minors, especially those supportive of the parental 

role, may be important to the child’s chances 

for the full growth and maturity that make 

eventual participation in a free society meaningful and rewarding. Under the Constitution, the State can “properly conclude that 

parents and others, teachers for example, 

who have [the] primary responsibility for 

children’s well-being are entitled to the support of laws designed to aid discharge of that 

responsibility.” Ginsbee v. New York, 390 

U.S. [629], at 639,88 S.Ct. [1274], at 1280 [20 

L.Ed.2d 195 (1%8)]. 

Id. 443 US. at 638-39,99 S.Ct. at 3045-46 (footnotesomitted). 1nH.L. v. Matheson, 450 U.S. 398,411, 

101 S.Ct. 1164,1172,67 L.Ed.2d 388(1981), the Court 

acknowledged the impact of abortion on a minor 

when it said that: 

431 US. 494,503-504,97 S.Ct. 1932,1938,52 

The medical, emotional, and psychological consequences of an abortion are serious 

and can be lasting; this is particularly so when 

the patient is immature. 

Thus, the United States Supreme Court has consistently recognized that a state statute requiring parental 

consent to a minor’s abortion is constitutional if it provides a judicial alternative in which the consent is &- 

viated if the court finds that the minor is mature enough 

to make the abortion decision or, in the absence of the 

requisite maturity, the abortion is in the minor’s best 

interest. Planned Pamthood Ass’n v. Ashcroft, 462 US. 

476, 103 S.Ct. 2517,76 L.Ed.2d 733 (1983); L3elIorri. 

While purporting to acknowledge the state’s in- terest in protecting minors and in preserving family 

unity, the majority reaches the conclusion that these 

interestsas reflected in the instant statute must fall in 

the face of its broad interpretation of the privacy 

amendment. In effect, the Court has said that the 

state’s interest in regulating abortions is no different 

with respect to minors than it is with adults. Under 

this ruling, even immature minors may decide to have 

an abortion without parental consent. I do not agree 

with either the majority’s broad interpretation of the 

privacy amendment or its limited view of the state’s 

interest concerning the conduct of minors. 

Tucker v. Toia 

Page 166, Discussion Notes: 

Discussion Notes: 

3. The New York Constitutional provision 

applied in Tucker is what Professor Burt Neuborne has recently referred to as a “positive” 

as opposed to “negative” right. See Burt Neuborne, “Foreword: State Constitutions and the 

Evolution of Positive Rights,” Rutgers Law 

Journal 20 (Summer 1989): 881. See also Peter 

Galie, “Social Services and Egalitarian Activism,” in Human Rights in the States (Stanley 

Friedelbaum, ed., 1988). 

4. See also Article XI, Sec. 4 of the North 

Carolina Constitution, which provides “Beneficent provision for the poor, the unfortunate, and the orphan is one of the first dutiesof 

a civilized and a Christian state. Therefore, the 

General Assembly shall provide for and define 

the duties of a board of public welfare.” This 

provision, dating from 1868, is discussed in 

Dennis R. Ayers, “The Obligation of North 

Carolina Municipalities and Hospital Authorities to Provide Uncompensated Hospital Care 

to the Medically Indigent,” Wake Forest Law 

Review 20 (Summer 1984): 330-34. See also 

Board of Managers v. City of Wilrnington, 237 

N.C. 179,74 S.E.2d 749 (1953); Michael A. Dowell, “State and Local Governmental Legal 

Responsibility to Provide Medical Care for the 

Poor,” Journal of Law and Health 3 (1988-89): 

6-7 (“Fifteen states have constitutional provi- sions which authorize or mandate the provision of medical care for the poor.”). 

Butte Community Union v. Lewis 

712 R2d 1309 (Mont. 1986) 

MORRISON, Justice. 

The District Court of the First Judicial District 

issued a preliminary injunction enjoining Dave Lewis, 

30 
Director of Montana’s Department of Social and Rehabilitation Services (SRS), from implementing certain provisions of House Bill 843 (Chapter No. 670, 

1985 Mont. Laws). Lewis appeals. We affirm the is- suance of the preliminary injunction and issue a per- manent injunction for the same purpose. 

In response to a complaint filed by Butte Community Union in February of 1984, the Honorable 

Arnold Olsen ikued a preliminary injunction June 

29, 1984, prohibiting the Department of Social and 

Rehabilitation Services (SRS) from implementing 

proposed regulations establishing AFDC guidelines 

as the guidelines for determining general assistance 

(GA) benefits. Thereafter, the 1985 Montana Legis- lature enacted House Bill 843 establishing cash payment levels for GA recipients in accordance with 

Judge Olsen’s order. House Bill 843 also eliminates 

GA payments to able-bodied individuals under thirty- five who have no minor dependent children and sub- stantially restricts GA payments to able-bodied individuals between thirty-five and fifty who have no minor 

dependent children. 

On June 3, 1985, Butte Community Union (re- spondents) filed an amended complaint challenging the 

constitutionality of HB 843 and requesting the court to 

issue a preliminary injunction forbidding SRS from implementing that part of HB 843 which restricts or denies 

GA benefits to able-bodied individuals with no minor 

children. Following a hearing and briefing by the parties, the trial court issued a preliminary injunction on 

July 1, 1985, the date HB 843 was to go into effect. 

In its findings, conclusions and order, the trial 

judge held that Art. XII, section 3(3) of the Montana 

Constitution establishes a fundamental right to welfare “for those who, by reason of age, infirmities, or 

misfortune may have need for the aid of society.” 

That section states: 

(3) The legislatures shall provide such economic assistance and social and rehabilitative services as may be necessary for those 

inhabitants who, by reasons of age, infirmities, or misfortune may have need for the aid 

of society. 

He further held that respondents (plaintiffs below) raised serious questions concerning whether HB 

843 establishes an impermissible, discriminatory constitutional classification, thus violating the respondents’ constitutional guarantee of equal protection. 

Finally, he held that a preliminary injunction should 

issue because respondents established a prima facie 

case that HB 843 is unconstitutional and because they 

showed that it is “doubtful whether or not they will 

suffer irreparable injury before their rights are fully 

litigated.” 

The preliminary injunction was issued and SRS 

appeals, raising the following general issue: 

Whether the defendant, Dave Lewis, as a public 

official, should be enjoined from implementing those 

provisions of HB 843 which restrict or deny general 

assistance benefits to able-bodied persons under the age 

of fifty who do not have minor dependent children? 

The following sub-issues are assigned for review: 

1. Whether the District Court used an incorrect 

standard for issuing the preliminary injunction? 

2. Whether HB 843 violates art. XII, section 3(3), 

of the Montana Constitution? 

3. Whether HB 843 violates equal protection or 

due process constitutional guarantees? 

4. Whether HB 843 violates the Montana Human 

Rights Act? 

We hold that Dave lewis, as a public official, 

should be permanently enjoined from implementing 

the pertinent provisions of HB 843. However, our 

reasons for this injunction differ markedly from those 

of the trial judge. We find that the Montana Constitution does not establish a fundamental right to welfare 

for the aged, infirm or misfortunate. However, because the constitutional convention delegates 

deemed welfare to be sufficiently important to warrant 

reference in the Constitution, we hold that a classifica- tion which abridges welfare benefits is subject to a 

heightened scrutiny under an equal protection analysis 

and that HB 843 must fall under such scrutiny. 

Respondent contends that the result of this legis- lation is forbidden by the Constitution. Respondent 

argues the Legislature must fund welfare for the misfortunate. However, because the legislation at issue 

today is discriminatory in nature, determining its con- stitutionality calls for equal protection analysis. It is 

not necessary that we address the broader question of 

whether there is a constitutional directive to the Legislature for the funding of welfare which can not be 

avoided under any set of circumstances. 

The fourteenth amendment to the Federal Constitution and article 11, section 4 of the Montana Constitution provide that “[nloperson shall be denied the 

equal protection of the laws.” The equal protection 

clause guarantees that similar individuals will be 

dealt with in a similar manner by the government. J. 

Nowak, R. Rotunda and J.N. Young, Consritutionaf 

Law, Chpt. 16, sec. 1 (2d ed. 1983). 

Equal protection analysis traditionally centers on 

a two-tier system of review. If a fundamental right is 

infringed or a suspect classification established, the 

government has to show a “compelling state interest” 

for its action. If the right is other than fundamental, 

or the classification not suspect, the government has 

only to show that the infringement or classification is 

rationally related to a governmental objective which 

is not prohibited by the Constitution. J. Nowak, supra. 

In the instant case, the trial judge held the right 

to welfare to be fundamental. We can not agree. In 

order tobe fundamental, a right must be found within 

Montana’s Declaration of Rights or be a tight “without which other constitutionally guaranteed rights 

would have little meaning.” In the Matter of C.H. 

(Mont.1984), 683 R2d 931,940,41 St.Rep. 997,1007. 

Welfare is neither. 

31 
Art. XI, sec. 3(3) of the 1972 Montana Constitu- tion, the section on which the trial judge relies, is not 

part of the Declaration of Rights. Art. 11, sec. 3 is the 

only section in the Declaration of Rights which argu- ably could create a right to welfare. It states: 

Inalienable rights. All persons are born 

free and have certain inalienable rights. 

They include the right. . . of pursuing life’s 

basic necessities. . . Mont. Const., art. 11, sec. 3 (1972). The official 

The intent of the committee on this 

point is not to create a substantive right for 

all for the necessities of life to be provided by 

the public treasury. 

There is no constitutional right to welfare within 

the Montana Constitution’s Declaration of Rights. 

Further, the right to welfare is not a right upon which 

constitutionally guaranteed rights depend. In fact, wel- fare is more properly characterized as a benefit. Since 

welfare is not a fundamental right, strict scrutiny does 

not apply and the State need show something less than 

a compelling state interest in order to limit that right. 

committee comment to that provision states: 

* 4 4 * 8 

We proceed to develop our own middle-tier test 

for determining whether HB 843 violates the Mon- tana Constitution. We do so because although a right 

to welfare is not contained in our Declaration of 

Rights, it is sufficiently important that art. XII, sec. 

3(3) directs the Legislature to provide necessary assis- tance to the misfortunate. A benefit lodged in our 

State Constitution is an interest whose abridgement 

requires something more than a rational relationship 

to a government objective. 

A need exists to develop a meaningful 

middle-tier analysis. Equal protection of law is an 

essential underpinning of this free society. The old 

rational basis test allows government to discriminate 

among classes of people for the most whimsical rea- sons. Welfare benefits grounded in the Constitution 

itself are deserving of great protection. 

* * * * * 

SHEEHY, Justice, specially concurring: 

In addition to my concurrence with the majority 

opinion, I wish to state some observations. 

For the purposes of this case, I am willing to 

concede that a fundamental right to welfare for the 

individuals affected does not exist. There is howevera 

constitutionally-mandated duty upon the legislature 

to provide economic assistance “as may be necessary” 

for the misfortunate who need the aid of society. Art. 

XI1 sec. 3(3). When that duty is shirked by the legisla- ture, upon whatever pretense, the class discriminated 

against hasat least a constitutional right for redress in 

the courts. I am unable to distinguish the fine line 

between “fundamental right” for the discriminated 

class and the constitutional right for redress. 

I do not wish to be bound by the statement in the 

majority opinion that fundamental rights under the 

Montana Constitution must be found within the Dec- laration of Rights, Art. 11. The Article holds itself 

open to unenumerated rights which may not be de- nied to the people. Art. 11, sec. 34. 

Page 168, Discussion Notes: 

Discussion Notes: 

3. See also Suzanna Sherry, “The Early Viiginia Tradition of Extra-Wual Interpretation,” 

Albany Lmu Review 53 (Winter, 1989): 297. 

Page 177, at end of page: 

4. Waiver of State Constitutional Rights 

Woodruff v. Bd. of Trustees 

of Cabell Huntington Hospital 

319 S.E.2d 372 (W.Va. 1984) 

* * 4 4 * 

Because the collective bargaining agreement in 

question contains a provision prohibiting picketing 

and patrolling by hospital union members. the issue 

of waiver of free speech rights is raised. First, waiver 

of free speech, assembly, association, and petition 

rights under the West Virginia Constitution will be 

addressed. Second, waiver of first amendment rights 

under the federal constitution will be examined. 

Article 111, sec. 1 of the West Virginia Constitu- tion provides that: 

All men are, by nature, equally free and 

independent, and have certain inherent 

rights, of which, when they enter into a state 

of society, they cannot, by any compact, de- prive or divest their posterity, namely: the 

enjoyment of life and liberty, with the means 

of acquiring and possessing property, and of 

pursuing and obtaining happiness and safety. 

These inherent rights, of which members of soci- ety may not by contract divest themselves, include the 

freedoms of speech and press under article 111, sec. 7 

of the West Virginia Constitution, and the rights to 

assemble, associate, and petition under article 111, 

sec. 16 of the West Virginia Constitution. No parallel 

provision to this section of our state constitution ap- pears in the Unitcd States Constitution. Therefore, 

with respect to the waiver of fundamental constitu- tional rights, our state constitution is more stringent 

in its limitation on waiver than is the federal constitu- tion. We therefore hold that, under article 111, secs. 1, 

32 
7, and 16 of the West Virginia Constitution, collective 

bargaining agreements in the public sector may not 

contain provisions abrogating employees’ fundamen- tal constitutional rights, including rights of expres- sion, assembly, association, and petition. The 

petitioner employees’ activities in the present case 

were unquestionably exercises of all four of these 

fundamental constitutional rights. We therefore conclude that the respondents’ termination of the peti- tioner employees violated their fundamental 

constitutional rights under article 111, secs. 1,7, and 16 

of the West Virginia Constitution. 

1. See also Choi v. State, 316 Md. 529,560 

A.2d 1108 (1989) (state constitutional standard 

for waiver of privilege against self-incrimination stronger than federal standard). 

Page 188, Discussion Notes: 

Discussion Notes: 

3. In 1986, Justice Thomas L. Hayes had 

the following to say about theJeweft opinion he 

authored: 

There was some discussion on the 

court about publishing a law review 

article advising lawyers to look to the 

state constitution, but I had the feeling that if we took that course the 

article would be read by nine students, nine law professors, and the 

janitor who was cleaning up at night at 

the law school. I believed an article 

would not get our message across. Ultimately the court agreed that if we 

were to tell our lawyers: “Look to 

your Vermont constitution and, when 

you do, brief it adequately,” we could 

do so only in a judicial opinion. 

Thomas L. Hayes, “Clio in the Courtroom,” Vemzont History 56 (Summer 1988): 149. 

4. For the views of Vermont’s Attorney 

General on the reemergence of state constitutional law, see Jeffrey Amestoy and Julie Brill, 

“State Constitutions from the Attorney General’s Perspective: An Institutional Schizophrenia,” Emerging Issues in Stare Constitutional Law 

l(1988): 229; Jeffrey Amestoy, “State Constitutional Uw An Attorney General’s Perspective,” Wrmont Law Review 13 (1988): 337. 

Page 200, Discussion Notes: 

Discussion Notes: 

3. In i%es v. State Board of Elections, 124 

Ill.2d 317, -, 529 N.E.2d 565, 568 (1988), the 

Illinois Supreme Court noted: ‘This case involves one of the rare instances where resorting 

to the debates of the convention reveals that the 

exact question presented for review in this court 

was asked and answered by the delegates to the 

convention.” 

Page 204, Discussion Notes: 

Discussion Notes: 

3. Constitutional history is valuable 

whether or not one subscribes to a jurisprudence of original intent. For those 

who do, history becomes controllingimportant because it does, or should, 

determine constitutional interpretation. For those who reject a jurisprudence of original intent, constitutional 

history nevertheless helps us to preserve the lessons embodied in the drafting of the provisions at issue and to explore the consequences of the language 

chosen. State constitutional history has 

become more important as the United 

States Supreme Court has become less 

protective of individual rights. 

Stephen E. Gottlieb, “Foreword: Symposium 

on State Constitutional History: In Search of a 

Usable Past,” Albany Law Review 53 (Winter 

1989): 258. See also, Pierre Schlag, “Framers 

Intent: The Illegitimate Uses of History,” Uni- versity of Puget Sound Law Review 8 (Winter 

1985): 283. 

4. We cannot assume, as a matter of apriori truth, that there is a unitary tradition 

of constitutional law across the several 

states or even within a single one. The existence of a meaningful tradition is an assertion to be proven rather than a premise to be assumed. This is a point of more 

than “mere” methodological significance. One of the most common sources 

of misunderstanding and anachronism in 

constitutional history stems from the desire to identdy a common set of ideas and 

arguments shared by groups labeled “the 

founders,” “framers,” “‘traditional’ 

33 
constitutional lawyers,” or similar appellations. This desire easily leads one 

to find more agreement and intelligibility in the past than was in fact there. We 

must take seriously the possibilities of 

radical disagreement among judges interpreting a state constitution as well as 

of internal contradictions within the 

thinking of particular individuals. 

H. Jefferson Powell, “The Uses of State Constitutional History: A Case Note,” Albany Law 

Review 53 (Winter, 1989): 283-84. 

Page 210, Discussion Notes: 

Discussion Notes: 

3. In connection with the question of whether a state constitutional provision is self-executing, reread Figueroa v. State, pp. 171-72. 

Robert F. Williams, “State Constitutional 

Limits on Legislative Procedure . . .” 

Page 217, Discussion Notes: 

Discussion Notes: 

4. See also Barbara Kritchevsky, “Justiciability in Tennessee, Part One: Principles and 

Limits,” Memphis State University Law Review 

15 (Fall 1984): 1; “Justiciability in Tennessee, 

Part Two: Standing,” Memphis State University 

Law Review 15 (Winter 1985): 179; “Justiciability in Rnnessee, Part Three: Timing,” Memphis State Universify Law Review 16 (Winter 

1986): 177. 

Ammerman v. Markham 

Page 234, Discussion Notes: 

Discussion Notes: 

4. In Junkins v. Branstad, 421 N.W.2d 130, 

135 (Iowa 1988) the Iowa Supreme Court dealt 

with a legislative attempt to define in a statute 

the term “appropriation bill” as it was used in 

the constitutional item veto provision. The 

court stated: 

Whatever purposes the legislative dcfmition of “appropriation bill” may serve, it 

does not settle the constitutional question. In this case, determination of the 

scope of the governor’s authority granted 

by Article 111, section 16, as amended, will 

require a decision whether the bill involved here was an “appropriation bill” as 

that term is used in our constitution. This 

determination, notwithstanding the legislative definition, is for the courts. 

Page 236, add the following paragraph: 

With respect to separation of powers issues under state constitutions, see John V. Orth, “‘Forever 

Separate and Distinct’: Separation of Powers in 

North Carolina,” North Carolina Law Review 62 (Oct. 

1983): 1; Comment, “Treatment of the Separation of 

Powers Doctrine in Kansas,” University of Kansas Law 

Review 29 (1981): 243. 

Page 265, at the end of the first full para- graph, right column: 

See also H. Jefferson Powell, “The Uses of State 

Constitutional History: A Case Note,” Albany Law 

Review 53 (Winter 1989): 283. 

Page 281, at end of Discussion Note 1: 

Discussion Notes: 

See also Jeffrey A. Parness and Bruce El- liott Keller, “Increased and Accessible Illinois 

Judicial Rulemaking,” Northern Illinois Univer- sity Law Review 8 (Summer 1988): 817. 

American Trial Lawyers Association v. 

New Jersey Supreme Court 

Page 284, Discussion Notes: 

Discussion Notes: 

Commonwealth v. 

Pennsylvania Labor Relations Board 

Page 289, Discussion Notes: 

Discussion Notes: 

3. For a view contrary to Pennsylvania’s, 

see Chief Administrative Justice v. Labor Relations Commission, 404 Mass. 53. 533 N.E.2d 

1313 (1989). 

34 
Page 292, following Discussion Notes: 

G. Certified Questions 

Certified questions, where federal courts ask 

state supreme courts to clam questions of state law, 

also involve the exercise of state judicial power. See 

Larry M. Roth, “Certified Questions from the Federal Courts: Review and Re-proposal,” University of Mi- ami Law Review 34 (Nov. 1979): 1. 

Lehman Brothers v. Schein 

416 U.S.386 (1974) 

Mister Justice Douglas delivered the opinion of 

the Court. 

* * * * * 

The Court of Appeals by a divided vote reversed 

the District Court. 478 E2d 817 (CA2 1973). While the 

Court of Appeals held that Florida law was controlling, 

it found none that was decisive. So it then turned to the 

law of other jurisdictions, particularly that of New York, 

to see if Florida “would probably” interpret Did to 

make it applicable here. 

* * * * * 

The dissenter on the Court of Appeals urged that 

that court certify the state-law question to the Florida 

Supreme Court as is provided in Fla. Stat. Ann. sec. 

25.031 and its Appellate Rule 4.61. 478 E2d. at 828. 

That path is open to this Court and to any court of 

appeals of the United States. We have, indeed, used it 

before as have courts of appeals. 

Moreover when state law does not make the certification procedure available,’ a federal court not 

infrequently will stay its hand, remitting the parties to 

the state court to resolve the controlling state law on 

which the federal rule may turn. Kaiser Steel Cup v. 

WS. Ranch Co., 391 U.S. 593 (1968). Numerousapplications of that practice are reviewed in Meredith v. 

Winter Haven, 320 U.S. 228 (1943), which teaches that 

the mere difficulty in ascertaining local law is no 

excuse for remitting the parties to a state tribunal for 

the start of another lawsuit. We do not suggest that 

where there is doubt as to local law and where the 

Certification procedures are available in several States, 

including Colorado, Colo. Appellate Rule 21.1 (1970); 

Hawaii, Haw. Rev. Stat. sec. 602 36 (1969); Louisiana, 

La. Rev. Stat. Ann. sec. 13:72.1 (Supp. 1973); Maine, 

Me. Rev. Stat. Ann., Tit. 4, sec. 57 (1964); Maryland, 

Md. Ann. Code, Art. 26, sec. 161 (Supp. 1973): Massa- chusetts, Mass. Sup. Jud. Ct. Rule3:21(1973); Montana, 

Mont. Sup. Ct. Rule 1 (1973); New Hampshire, N.H. 

Rev. Stat. Ann. sec. 490 App. R. 20 (Supp. 1973); and 

Washington, Wash. Rev. Code Ann. sea. 2.60.010 

2.60.030 (Supp. 1972). 

certification procedure is available, resort to it is 

obligatory. It does, of course, in the long run save 

time, energy, and resources and helps build a coop- erative judicial federalism.8 Its use in a given case 

rests in the sound discretion of the federal court. 

State, ex rel, Kleczka v. Conta 

Page 311, Discussion Notes: 

Discussion Notes: 

6. In 1988 the Wisconsin Supreme Court 

upheld the governor’s veto of phrases, digits, 

letters and word fragments so as to create new 

numbers, words and sentences in the general 

appropriation bill. State ex rel. Wisconsin Senate 

v. Thompson, 144 Wis.2d 429,424 N.W.2d 385 

(1988). In 1990 the people of Wisconsin 

adopted an amendment to the item vetoprovision, Article V, Section lO(1) (c): 

(c) In approving an appropriation 

bill in part, the governor may not 

create a new word by rejecting indi- vidual letters in the words of the enrolled bill. 

This is a very rare reduction in gubernatorial power by constitutional amendment. 

See generally Richard Briffault, “The 

Item Veto: A Problem in State Separation of 

Powers,” Emerging Issues in State Constitutional 

Law 2 (1989): 85. 

Florida Department 

of Natural Resources v. 

Florida Game and Fresh Water Fish 

Commission 

Page 314, Discussion Notes: 

Discussion Notes: 

6. For a discussion of Arizona’s constitu- tionally created Corporation Commission, see 

Comment, “The Corporation Commission: 

Preserving Its Independence,” Arizona State 

Lmv Joumul u) (Spring 1988): 241. 

*See Wright, The Federal Courts and the Nature and 

Quality of State Law, 13 Wayne L. Rev. 317 (1967); 

Kurland, Toward a Co-Operative Judicial Federalism: 

The Federal Court Abstention Doctrine, 24 F.R.D. 481 

(1960); Note, Inter Jurisdictional Certification: Beyond 

Abstention Toward Cooperative Judicial Federalism, 

111 U.Pa. L. Rev. 344 (1963): Note, Florida‘s Interjurisdictional Certification: A Reexamination to Promote 

Expanded National Use, 22 U.Fla.L. Rev. 21 (1969). 

35 
Page 328, after Discussion Notes: 

Benderson Development Co., Inc. v. 

Sciortino 

372 S.E.2d 751 (Va. 1988) 

Russell, Justice. 

This appeal challenges Virginia’s Sunday-closing 

laws. The challenge is based upon the prohibitions 

against “special laws” contained in the Constitution 

of Virginia. Eight corporations doing business in Virginia Beach (six retail merchants and two real estate 

development companies operating shopping centers) 

(the plaintiffs), filed a motion for declaratory judgment 

in the circuit court. They alleged that they are com- pelled to close their retail stores in the City of Vih 

Beach every Sunday due to the Sunday-closing laws, 

with which they comply. At the Same time, they say, a 

number of their competitors selling identical products 

are exempt from the operation of those laws and therefore do business in Vjgiiia Beach on Sundays, to the 

plaintiffs’ great competitive disadvantage. 

Although they raise additional federal constitutional questions, the plaintiffs’ primary contention is 

that the Sunday-closing laws, as applied to them, constitute special legislation violating Article N, sections 

14 and 15, of the Constitution of Virginia. 

* * * * * 

Virginia has had a Sunday observance law since at 

least 1610, Mandell v. Haddon, 202 Va. 979,988, 121 

S.E.2d 516,523 (1961), and during the Colonial period, probably was subject to English Sunday laws dating from the thirteenth century. Bonnie BeLo v. 

Commonwealth, 217 Va. 84, 85, 225 S.E.2d 395, 3% 

(1976). During the Colonial period, these laws had a 

religious purpose, requiring every man and woman to 

“repair in the morning to the divine service.” Mandell, 

202 Va. at 988, 121 S.E.2d at 523 (citation omitted). 

During the Revolutionary War, in 1779, a 

Sunday-closing law was substituted which had an entirely secular purpose. It simply prohibited all Sunday 

labor or business except for “work of necessity or 

charity.” 12Hen. Stat. 336,337 (1779). The purpose of 

the law was merely to provide a common day of rest 

“to prevent the physical and moral debasement which 

comes from uninterrupted labor.”Mandell, 202 Va. at 

988, 121 S.E.2d at 524 (citations omitted). 

The 1779 law survived with only minimal change 

until 1960. Code of 1950, sec. 18-329 (repealed, Acts 

1960, c. 358). While it was in force, the courts were 

confronted with numerous questions requiring interpretation of the phrase “works of necessity or charity.” 

In 1960, the General Assembly substantially revised the former law. The 1960 version continued a 

general prohibition against Sunday “work, labor, or 

business . . . except in household or other work of 

necessity or charity.” A list of some 30 items. the sale 

of which was expressly deemed not to be a work of 

necessity or charity, was appended, thus proscribing 

Sunday sales of those items. The statute also included 

specific exemptions for certain items expressly 

deemed tobe works of necessity, suchas the operation 

of furnaces and plants, the sale of newspapers and 

motor fuels, and the operation of recreational facilities. 

In Mandell v. Haddon, we upheld the 1960 law 

against constitutional challenges which invoked both 

the special legislation prohibition of the Virginia 

Constitution and the Equal Protection clause of the 

Fourteenth Amendment to the Federal Constitution. 

In Mandell, we reviewed the principles governing our 

review of a statute attacked as special legislation. We 

noted that the constitutional provisions against special legislation do not prohibit legislative classification, but do require that classifications be “natural 

and reasonable, and appropriate to the occasion.” 202 

Va. at 989, 121 S.E.2d at 524. When a statute is challenged under the special legislation prohibition, we 

must determine whether the act makes an “arbitrary 

separation,” and for this we must look to the purpose 

of the act, as well as the circumstances and conditions 

existing at the time of its passage. Id. There is a strong 

presumption in favor of the reasonableness of legislative classifications, and if any state of facts can be 

reasonably conceived which would support them, the 

existence of that state of facts at the time of passage 

must be assumed. Id. 

Reviewing the 1960 law under the foregoing principles, we upheld it because we found that its classifications bore a “reasonable and substantial 

relationship to the object sought to be accomplished 

by the legislation.” Specifically, we observed that the 

act “affects all persons similarly situated or engaged 

in the same business throughout the State without 

discrimination.” Id. at 991, 121 S.E.2d at 525. Al- though the act contained exceptions, we observed 

that the exceptions related to “works of necessity 

under the modern day conception of things.” Significantly, we noted that the prohibition on the sale of 

specified items was sufficiently comprehensive “to 

close a great majority of stores” throughout the Commonwealth. Id, at 990, 121 S.E.2d at 525. Thus, the 

statutory scheme was reasonably related to the attahment of the legdative goal: providing the people of 

Viginja a common day of rest. 

In 1974, the General Assembly completely rewrote the Sunday-closing law. The 1974 law, which 

has been frequently amended, forms the basis of present Code sec. 18.2-341. It contains a general prohibition against Sunday labor but grants blanket 

exemptions to all transactions conducted by over 60 

“industries or businesses” now grouped in 22 catego36 
ries of exemptions. In addition to exemptions of the 

basic industries of agriculture, mining, and manufacturing, exemptions also cover retail stores which may 

engage in the sale of every conceivable kind of merchandise. The General Assembly has, on numerous 

occasions, added additional, and frequently broader, 

exemptions to those contained in the original 1974 

enactment. One of these, covering “festival market 

places,” permits a local governing body to designate, 

on a case-by-case basis, any privately-owned shopping 

center as exempt from the Sunday-closing law if it is 

the site of a public “gathering” and more than 50% of 

its sales area “is used for otherwise exempt activities.” If 

the property is publicly-owned, even though leased for 

commercial use, the 50% requirement does not apply. 

In 1974, the legislature enacted Code sec. 

15.1-29.5, which permitted cities and counties, upon a 

favorable referendum vote, to remove themselves 

entirely from the operation of the Sunday-closing 

law. By employing this local option provision, the 

counties of Albemarle, Arlington, Buchanan, Chesterfield, Culpeper, Fairfax, Fauquier, Frederick, 

Gloucester, Grayson, Henrico, James City, King 

George, Loudoun, Mecklenburg, Orange, Page, 

Prince George, Prince William, Pulaski, Smyth, Spotsylvania, Stafford, Thewell, Warren, and York, as 

well as the cities of Alexandria, Bristol, Charlottesville, Falls Church, Fredericksburg, Hopewell, Petersburg, Radford, Richmond, Waynesboro, Williamsburg, 

and Winchester, have chosen to remove themselves 

from the operation of the Sunday-closing law. 

According to the undisputed facts, approximately 

50% of all employed persons in Virginia work in counties and cities in which the Sunday laws are not in 

force. Nearly 57% of all employed persons in Virginia 

work in statutorily exempt businesses and industries. 

The parties agree that approximately 80% of Virginia 

workers are exempt from the operation of the law for 

one reason or the other. 

Further, the General Assembly, as a part of the 

1974 revision of the Sunday laws, enacted Code Secs. 

40.1-28.1 through 40.1-28.5. These provisions require 

employers to allow each nonmanagerial employee at 

least 24 consecutive hours of rest in each week. Sec. 

40.1-28.1. Such employees may choose Sunday as a 

day of rest as a matter of right, Sec. 40.1-28.2, and 

sabbatarians may choose Saturday, Sec. 40.1-28.3. 

Code Sec. 40.1-28.5, however, provides that the 

foregoing laws “shall not apply to persons engaged in 

any of the industries or businesses enumerated in Sec. 

18.2-341(a)(l) through (19), except (15) [’sale of food, 

ice and beverages’].” Thus, employees in any of the 

other 60 or more businesses and industries exempted 

by the referenced subsections may be denied a day of 

rest by their employers. 

We were first called upon to construe the 1974 

statutory scheme in Bonnie BeLo v. Commonwealth, 

217 Va. 84,225 S.E.2d 395 (1976). There, the owners 

of two food stores were prosecuted for misdemeanors 

under the Sunday-closing laws because of the pur- chases, by law enforcement officers, of paper plates 

and cups from one store and a paperback novel from 

the other. The store owners challenged the constitutionality of the law on several grounds but, applying 

familiar principles, we did not reach the constitutional questions because of the construction we placed 

upon the statute. 

Noting that businesses engaged in the “sale of 

food” were exempt from the Sunday-closing law entirely, we held that a food store was permitted, incidental to the operation of its business on Sunday, “to 

sell such non-food items as are sold in the ordinary 

and normal course of [its] business.” Id. at 87, 225 

S.E.2d at 398. We noted that while the older Sunday 

laws had exempted specified commodities, the purpose of the 1974 law was to regulate “industries and 

businesses” rather than commodities. Thus, the food 

stores, being in an exempt category, might sell whatever merchandise constituted their normal stock in 

trade. Accordingly, they had not violated the 

Sunday-closing law. Id. 

The construction we gave to the Sunday law in 

BonnieBeLo was the natural and inevitable result of 

the manifest purpose and clear language of the 

statute. Nevertheless, the plaintiffs contend that 

the consequences have been far-reaching, and adverse to them. They point out that any retail store 

which can successfully contend that it fits into one 

of the exempt categories may sell on Sunday any 

merchandise it wishes, including the same items the 

plaintiffs are forbidden to sell on Sunday. Thus, 

they say, the present law, unlike its predecessors, 

draws distinctions between merchants based on the 

character of the seller, rather than the nature of the 

items sold. They argue that the present law permits 

virtually any commodity to be sold on Sunday, but 

designates those merchants who may sell them and 

those who may not. 

The plaintiffs further complain that the many 

exemptions contained in the law make it impossible to 

enforce fairly. The defendant commonwealth’s attorney admits in his pleadings that he enfoxes the 

Sundayclosing law only when called upon to do so by 

“private complaint.” Plaintiffs contend that this state of 

affain results in the law being used as a weapon by those 

who are privileged to do business on Sunday, to prevent 

would-be competitors from opening on Sunday. 

We upheld the 1974 Sunday-closing law against a 

constitutional challenge based upon the Equal Protection clause of the Fourteenth Amendment to the 

Federal constitution in Malibu Auto Purts v. Commonwealth, 218 Va. 467, 237 S.E.2d 782 (1977). There, 

citing similar holdings by the Supreme Court of the 

United States in McCowan v. Maryland, 366 U.S. 420, 

37 
81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (Maryland’s 

Sunday-closing law not violation of Equal Protection 

clause), and Gallagher v. Crown Kosher Market, 366 

U.S. 617,81 S.Ct. 1122,6 L.Ed.2d 536 (1961) (Massachusetts’ Sunday-closing law not violation of Equal 

Protection clause), we noted that the statute applies, 

within the areas subject to it, “to all who are similarly 

situated or engaged in the same kind of business.” 

Mafibu Auto Parts, 218 Va. at 471, 237 S.E.2d at 785 

(quoting Mandell, 202 Va. at 922, 121 S.E.2d at 526). 

With regard to the lack of uniformity of application or 

enforcement of the law in different jurisdictions, we 

relied on the holding in McGowun that “territorial 

uniformity is not a constitutional prerequisite.” Malibu Auto Parts, 218 Va. at 471,237 S.E.2d at 785 (quot- ing McGowan, 366 U.S. at 427). 

Although the plaintiffs here argue that the 

Sunday-closing law, as applied to them, denies them 

the “equal protection of the law,” we adhere to our 

decision in Malibu Auto Parts and hold that the statu- tory scheme successfully withstands scrutiny under 

equal-protection analysis. 

Amici curiae, on brief, argue that the foregoing 

holding should end our inquiry because this Court, in 

some of its earlier decisions, has sometimes analyzed 

statutes under both the special-laws prohibitions of 

the Virginia Constitution and the Equal Protection 

clause of the Federal Constitution as though the two 

were substantially the same. See, e.g., StandardDmgv. 

General Electric, 202 Va. 367, 117 S.E.2d 289 (1960); 

Public Finznce Corp. v. Londeree, 200 Va. 607, 106 

S.E.2d 760 (1959); Avery v. Beale, 195 Va. 690, 80 

S.E.2d 584 (1954). 

It is true that for a long period of our history, the 

Equal Protection clause was interpreted by both federal and state courts in language that bore marked 

similarities to the analysis we made of statutes under 

the special-laws prohibition contained in the Virginia 

Constitution. But the two are not the same. The 

Fourteenth Amendment to the Federal Constitution, 

of which the Equal Protection clause is a part, was 

declared ratified in 1868, during the period of Reconstruction. Its purpose was the prevention of racial 

discrimination by state legislatures. Although it was, 

in lateryears, extended to apply toother kinds of state 

legislation, the Supreme Court of the United States 

has, based upon considerations of federalism, been 

markedly deferential to state laws which make economic classifications, when those laws have been 

challenged on Equal Protection grounds. . . . McGowan v. Maryland, for instance, held that Maryland’s 

Sunday-closing law would offend the Equal Protection clause “only if the classification rests on grounds 

whoffy irrelevant to the achievement of the State’s 

objective.” 366 US. at 425,81 S.Ct. at 1105 (emphasis 

added). On the other hand, federal equal-protection 

analysis as applied to “suspect classifications,” has 

become far more stringent than analysis of economic 

legislation. See, e.g., Palmore v. Sidoti, 466 US. 429, 

104 S.Ct. 1879, 80 L.Ed. 421 (1984); Rogers v. Lodge, 

458 U.S. 613,102 S.Ct. 3272,73 L.Ed.2d 1012 (1982). 

By contrast, the special-laws prohibitions con- tained in the Virginia Constitution are aimed square- ly at economic favoritism, and have been so since 

their inception. Article N, Sec. 14, of the Virginia 

Constitution, provides, in pertinent part: 

“The General Assembly shall not enact any local, 

special, or private law in the following cases: ... 

(12) Regulating labor, trade, mining, or manufac- 

(18) Granting to any private corporation . . . any 

Article W, Sec. 15, Va. Const., provides, in pertiIn all cases enumerated in the preceding 

section, . . . the General Assembly shall en- act general laws. Any general law shall be 

subject to ‘amendment or repeal, but the 

amendment or partial repeal thereof shall 

not operate directly or indirectly to enact, 

and shall not have the effect of enactment of, 

a special, private, or local law. 

turing. . . . 

special . . . right, privilege or immunity.” 

nent part: 

.... No private corporation, association, or 

individual shall be specially exempted from 

the operation of any general law, nor shall a 

general law’s operation be suspended for the 

benefit of any private corporation, association, or individual. 

The foregoing provisions were first adopted as 

part of Secs. 63 and 64 of the Constitution of 1902. 

They were carried forward into the present Constitu- tion with no substantial change. Their purpose was to 

correct the perception that the General Assembly, in 

the nineteenth century, devoted an excessive amount 

of its time to the furtherance of private interests, see I 

A. Howard, Commentaries on the Constitution of 

Virginia, 536-37 (1974), and to counter the “sway that 

moneyed interests were seen to hold over state legislatures at the turn of the century.” Id. at 543 (relating 

specifically to Va. Const. art. IV, Sec. 14 (12), quoted 

above). “Bken together, the pervading philosophy of 

Article IV, sections 14 and 15 reflects an effort to 

avoid favoritism, discrimination, and inequalities in 

the application of the laws.” Id. at 549. See also Martin’s Ex’rs. v. Commonwealth, 126 Va. 603, 611-12, 102 

S.E. 77, 81 (1920); Winpee v. Riverside Cotton Mills. 

113 Va. 717,722.75 S.E. 309,311 (1912). 

As noted above, under the Equal Protection 

clause, both state and federal courts will uphold state 

laws which make economic classifications “unless’the 

38 
classification rest on grounds who/& irrelevant to the 

achievement of the State’s objective,’ ” McGowan, 

366 U.S. at 425,81 S.Ct. at 1105, or unless the law “is 

so unrelated to the achievement of a legitimate purpose that it appears irrational,” Ballard v. Commonwealth, 228 Va. 213, 217, 321 S.E.2d 284, 286 (1984), 

cert. denied, 470 U.S. 1085,105 S.Ct. 1848,85 L.Ed.2d 

146 (1985). On the other hand, the test for statutes 

challenged under the special-laws prohibitions in the 

Virginia Constitution is that they must bear “a reasonable and substantial relation to the object sought 

to be accomplished by the legislation.” Mandell, 202 

Va. at 991, 121 S.E.2d at 525. 

Although all legislative enactments are entitled 

to a presumption of constitutionality, we have not 

hesitated to invalidate laws found, upon careful consideration, to violate the prohibitions against special 

laws.. . . Accordingly, we do not think that the equal-protection analysis which we made of the Sunday-closing 

law in Malibu Auto Parts is dispositive of the present 

case. Because of the deference due to acts of the 

General Assembly, we do not seek out constitutional 

challenges to statutes and decide themsua sponre. See 

MacLellan v. Throckmorton, 235 Va. 341, 345, 367 

S.E.2d 720, 722 (1988). We will consider such chal- lenges only when they have been properly raised and 

preserved in the court below, appropriately assigned 

as error, and briefed and argued on appeal. Id. The 

present case requires us to analyze the Sunday- closing law, in light of the constitutional prohibitions 

against special laws, for the first time. 

In proceeding to a special-laws analysis of the 

Sunday-closing statutory scheme as it is now applied, 

we return to the tests by which we analyzed its statutory predecessor in Mandell v. Huddon. According the 

law the presumption of constitutionality to which it is 

entitled, we first inquire whether it “affects all per- sons similarly situated or engaged in the same business throughout the State without discrimination,” 

Mandell, 202Va. at 991,121 S.E.2d at 525. The answer 

is obviously no. The law affects only those businesses, 

in those localities which remain subject to it, which 

cannot fit themselves within some 60 exemptions. Do 

the exempt categories confine themselves to “works 

of necessity under the modern day conception of 

things”? Id. at 990,121 S.E.2d at 525. An inspection of 

the statutory exemptions makes plain that their aim was 

far broader. Is its scope sufficient to “close a great 

majority of stores” throughout the Commonwealth?Id. 

Its present scope is sufficient to close only a small minority of stores in Viiginia. Merchandise of every kind 

can be purchased in every county and City on Sunday. 

Finally and crucially, we must inquire: does the 

statutory scheme, as applied, bear “a reasonable and 

substantial relationship to the object sought to be 

accomplished by the legislation”? Id. at 991, 121 

S.E.2d at 525. That object is the same as the object of 

all Sunday-closing laws since 1779: to provide the 

people of Virginia a common day of rest “to prevent 

the physical and moral debasement which comes 

from uninterrupted labor.” Id. at 988, 121 S.E.2d at 

524. Plainly, the answer is no. The statute covers only 

about 20% of the employed persons in the Commonwealth. Further, in those jurisdictions currently covered by the law, employers engaged in the 

approximately 60 businesses or industries exempted 

by the act’s provisions may deny their employees a 

weekly day of rest. Most employees in jurisdictions 

subject to the Sunday-closing law are exposed to such 

a requirement, if their employers should see fit to 

impose it. Ironically, employees in jurisdictions nor 

subject to the Sunday-closing law may not be compelled to work on Sunday. We conclude that the pres- ent statutory scheme, as presently applied, fails to 

pass each of the tests we articulated in Mandell to 

distinguish general laws from special laws. 

The plaintiffs make no contention that the General Assembly, in enacting the present Sundayclosing laws in 1974, or in repeatedly amending them 

thereafter, had any intent to practice invidious discrimination against them, or against anyone. The laws 

appear facially to be reasonably related to the attain- ment of the legislative goal. Further, a set of facts can 

be conceived which would reasonably justify each of 

the exemptions appended to the statute. Indeed, we 

cannot say that the entire statutory scheme, or any of 

its component parts considered alone, creates a classification which rests who//y on grounds unrelated to 

the attainment of the legislative goal. This is the 

principal reason we upheld the law against an 

equal-protection challenge in Malibu Auto Parts, and 

now reaffirm that holding. 

But the plaintiffs do not make a facial attack on 

the Sunday-closing law. Rather, they argue that it is a 

special law CIS applied. They contend that a statutory 

scheme, which began its life as a general law, has 

become, by application, a special law by attrition: 

through subsequent piecemeal steps, each proper in 

itself, which reduced the ambit of the law to a very few 

businesses. Among these steps, they point to the lo- cal-option feature and the fact that over half of the 

population of the Commonwealth has utilized it to 

escape the law’s effects entirely; to the construction 

we necessarily gave the law in Bonnie BeLo; to the 

repeated acts of the General Assembly creating additional and broader exemptions culminating in an exemption for nearly any shopping center a local 

governing body might decide to favor; and finally, to 

the difficulty of enforcement resulting in prosecu- tions only on “private complaint.” We agree that none 

of these steps was in itself improper in any respect, 

but we further agree that their combined effects have 

reduced the application of a general law to the kind of 

39 
special legislation prohibited by Article Iv, sections 

14 and 15 of the Virginia Constitution. 

The framers of Section 64 of the Constitution of 

1902 (now art. IV, sec. 15, quoted above) were well 

aware of the danger that a general law might be converted into a special law by subsequent events, and to 

that end provided specific protections against such 

changes, whether accomplished by amendment, partial repeal, exemption, or suspension of a general law 

“for the benefit of any private corporation, association, or individual.” Id. In Martin’s ExY’s v. Commonwealth, 126 Va. at 612,102 S.E. at 80, we said: “Though 

an act be general in form, if it be special in purpose 

and effect, it violates the spirit of the constitutional 

prohibition.” (Emphasis added). We also observed: 

“an arbitrary separation of persons, places, or things 

of the same general class, so that some of them will and 

others of them will not be affected by the law, is of the 

essence of special legislation.” Id. at 610, 102 S.E. at 79. 

In earlier decisions, we have held unconstitutional laws which were general when first enacted, but 

were rendered special by subsequent amendment. 

County Bd. of Sup ‘rs v. Am. Trailer Co., 193 Va. 72,68 

S.E.2d 115 (1951); Quesinbeny v. Hull, 159 Va. 270,165 

S.E. 382 (1932). As demonstrated by the present case, 

general laws may be rendered special in their application by a combination of several factors, of which 

legislative amendment may be but one. Because the 

power of judicial review is the only protection which 

exists against legislation which has become unconstitutional as applied, our role is not limited to examining the effect of legislative amendments. When the 

application of a law is fairly challenged under the 

Constitution, it is our duty to examine its actual effect 

upon those subject to it, regardless of the origin of the 

factors which combine to produce that effect. Having 

thus examined the Sunday-closing laws as applied to the 

plaintiffs in this case, we conclude that they are special 

laws, and are therefore unconstitutional and void. 

State, ex rel. Barker v. Manchin 

Page 343, Discussion Notes: 

Discussion Notes: 

6. In 1984, the voters in Iowa added Article 

111, Sec. 40 to their constitution: 

The general assembly may nullify an 

adopted administrative rule of a state agency 

by the passage of a resolution by a majority of 

all of the members of each house of the general assembly. 

Could there be any state or federal constitutional challenge to such a provision? 

Following page 359: 

Richard Briffault, 

“Our Localism: Part IThe Structure of Local Government Law 

Columbia Law Review 

90 (January 1990): 1 

0 1990 Columbia Law Review. 

Reprinted by permission. 

INTRODUCTION 

Two themes dominate the jurisprudence of 

American local government law: the descriptive assertion that American localities lack power and the 

normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to 

the middle of the nineteenth century and continues 

to be affirmed by treatises and commentators as a 

central element of state-local relations. The argument for local self- determination has a comparably 

historic pedigree and broad contemporary support. 

The scholarly proponents of greater local powerwhat I will call “localism”-make their case in terms 

of economic efficiency, education for public life and 

popular political empowerment-a striking harmonization of the otherwise divergent values of the free 

market, civic republicanism and critical legal studies. 

The law of state-local relations, however, is more 

complex than the dominant account suggests. The 

insistence on local legal powerlessness reflects a lack 

of understanding of the scope of local legal authority. 

Most local governments in this country are far from 

legally powerless. Many enjoy considerable autonomy over matters of local concern. State legislatures, 

often criticized for excessive interference in local 

matters, have frequently conferred significant political, economic and regulatory authority on many localities. State courts, usually characterized as hostile to 

localities and condemned for failing to vindicate local 

rights against the states, have repeatedly embraced 

the concept of strong local government and have 

affirmed local regulatory power and local control of 

basic services. Localism as a value is deeply embedded in the American legal and political culture. 

Much as the extent of local legal power is usually 

understated, the virtues of enhancing local autonomy 

tend to be greatly exaggerated. Localism reflects territorial economic and social inequalities and reinforces them with political power. Its benefits accrue 

primarily to a minority of affluent localities, to the 

detriment of other communities and to the system of 

local government as a whole. Moreover, localism is 

primarily centered on the affirmation of private values. Localist ideology and local political action tend 

not tobuild up public life, but rather contribute to the 

40 
pervasive privatism that is the hallmark of contempo- rary American politics. Localism may be more of an 

obstacle to achieving social justice and the development 

of public life than a prescription for their attainment. 

The flaws in the dominant positive and normative 

critiques of American local government law are interconnected and proceed from a common methodolo- gy. Local governments and their powers are 

considered in relatively abstract, ideal terms. Legal 

analysis tends to focus on the formal legal category of 

local government. As a result, the enormous variety 

of local governments-their differences in sue, 

wealth and function; the degree to which economic 

considerations enable them to benefit fully from the 

legal powers they enjoy; the intense political and economic conflicts among them-is often missed. So, 

too, the issue of local power is usually conceived of as 

the abstract question of who wins-state or localityin a head-to-head conflict. Such an approach com- monly fails to consider how infrequently such 

conflicts actually occur, where the balance of power 

lies in the absence of conflict and the importance of 

interlocal, as distinguished from state-local, conflicts. 

The values of local autonomy are ascribed to a thinly 

descnied set of idealized local units, while the poli- cies and programs of actual local governments and 

the impacts localities have on each other are seldom 

examined. Localism in practice is significantly different from localism in theory. 

This Article presents a study of “Our Local- ism”’-of the legal powers of contemporary American local governments, the practical social and 

political ramifications of local legal power in a system 

characterized by wide divergences in local fiscal capabili-ties and needs and the ideological commitment to 

localism that sustains and legitimates local autonomy. 

* * * * 4 

Despite the standard contention that a crabbed 

judicial interpretation of the “municipal affairs” language in home rule provisions has limited local power 

to initiate measures, the most comprehensive study 

of the first decades of home rule found that the courts 

generally pemiitted “a fairly wide latitude of action 

on the part of the city in its so-called capacity as an 

organization for the satisfaction of local needs,” and 

that under home rule the courts “extended the con- cept of the city’s local capacity far beyond its limits” 

’ The reference to “Our Federalism” is intended. See, e.g., 

Yocnger v. Harris, 401 U.S. 37,44 (1971). Federalism and 

localism are both a part of the American constitutional 

order. “Our Localism,” like “Our Federalism,” empha- sizes that local autonomy is not simply a question of the 

structure of intergovernmental relations but also includes 

the ideology’ that structure has generated, an ideology 

which continues to provide support for the devolution of 

power to local governments. 

under Dillon’s Rule?’ A more recent analysis agrees, 

finding that “[j]udicially imposed limitations on the 

initiative power. . . in the absence of conflicting state 

legislation have been relatively infrequent and of mi- nor importance in undermining local auton~my.”~~ 

Indeed, the postwar era has witnessed a steady broadening of the discretionary authority of local govern- ment~.~~ Today, most home rule governments possess 

broad regulatory and spending powers. 

* 4 * * * 

Richard Briffault, 

“Our Localism: Part 11- 

Localism and Legal Theory’’ 

Columbia Law Review 

90 (1990): 346. 

* * * * 4 

“City” usually implies “big city” or “central city” 

or “inner city”-a large center of population and production, commerce, communications and culture, 

distinguished not simply from the “state” and the 

countryside, but also from small towns and suburbs. 

“City,” according to Bernard Frieden, “suggests bustling streets with a mixture of factories, offices, apartments and homes crowded together amidst heavy 

traffic, noise, dirt and excitement.”” Lewis Mumford 

defined the city “as a complex of inter-related and 

constantly interacting functions” that large size and 

density make possible.’2 For Jane Jacobs, similarly, 

the hallmark of “great American cities” is diversityof people, functions, land uses and activities.13 

~ 

47H. McBain, supra note 16, at 671; see H. McBain, supra 

note 46, at 30 123 (noting willingness of state courts to 

sustain municipal power to om and operate public utilities, 

and to sanction wide discretion to regulate height and bulk of 

buildings under police power before states authorized zon48Sandalow, The Limits of Municipal Power Under Home 

Rule: A Role for the Courts, 48 Minn. L Rev. 643, 652 

49 J.Zimmerman, State-Local Relations: A Partnership Ap- proach 160 (1983); see, e.g., State ex rel. Swart v. Molitor, 

621 p. 2d 1100,1102 (Mont. 1981) (Montana’s 1972constitution, by allowing localities to adopt self government 

charters, “opened to local governmental units new vistas 

of shared sovereignty with the state”). For an important 

case in a state whose constitution does not provide for 

home rule, see Inganamort v. Borough of Fort Lee, 62 N.J. 

521,53638,303A.M 298,306 07 (1973) (sustaining munici- pal rent control as matter of local power even though state 

had repealed statute authorizing municipal rent control). 

B. Frieden, Metropolitan America: Challenge to Federal- ism 17 (1966). ”L. Mumford, The City in History: Its Origins. Its Transfor- mations, and Its Prospects 85 (1961). 

13J.Jacobs, The Death and Life of Great American Cities 

141 51 (1961). 

ing) 

(1964). 

41 
As a social and a political concept, the city is a 

heterogeneous place, combining residence, work, 

recreation and cultural life, and mixing people of 

different racial and ethnic groups, socioeconomic 

classes and levels of educational and occupational 

attainment. “City,” in short, signifies a complex microcosm of the state or nation and a socially, economically and culturally dynamic part of the larger polity. 

Such a “city” seems a fitting place for legal and political autonomy, which is no doubt why many advocates 

of local autonomy make their case in terms of cities.l4 

But once the term “city” is used in the sense of 

municipal corporation, used, that is, “as a legal concept,” in Frug’s phrase-then many “cities” are neither large nor complex nor heterogeneous. Most 

cities are small. Half of all municipal corporations 

have populations of 1,000 or fewer, and three-quarters of all municipalities have 5,000 people or fewer. 

Nearly one half of urban Americans live in municipalities of fewer than 50,000 people. Many “cities” are 

primarily residential, composed of homes and politically responsive to homeowner interests; others are 

primarily industrial or commercial, functioning as 

centers of employment but with relatively few residents. Many municipal corporations are not demographic microcosms of the state but are instead 

composed predominantly of people of one race or 

class. 

Simply put, in most metropolitan areas many of 

the entities the law defines as cities are-in social 

science parlance and lay understanding-suburbs. 

More Americans reside in suburbs than in either central cities or rural areas, and sUay percent of the residents of metropolitan areas live in suburbs. In virtually 

every large metropolitan area, the suburbs outnumber 

the central city in both population and employment. 

The suburb, not the city, is the principal form of urban 

settlement in the United States today. 

Cities and suburbs differ from each other politi- cally, economically and socially. Notwithstanding 

these differences, local government law does not distinguish within the category of municipal corporation 

between city and suburb, and legal theory generally has 

not taken the differences between cities and suburbs 

into account. Law and legal theory both treat most 

suburbs as cities, and this critically affects any attempt to 

measure the scope of local power. 

Incorporated suburbs usually have the same legal 

status as central cities. Even those suburbs not accorded the full panoply of big city powers generally 

enjoy the fundamental elements of local autonomy: 

the authority to tax property, spend on local services 

14See, e.g., Frug, City as Legal Concept, supra note 6, at 

1119,1120 nn.267 70. Frug’s citations to Arthur Schlesing- er’s The Rise of the City 1878-1898 (1933) and the work of 

the Chicago School of urban sociology indicate his associ- ation of “city” with “big city.” 

and regulate land use, and the right to come into 

governmental existence and protect local autonomy 

from nonconsensual absorption into another locality. 

Indeed, local legal powers may be more adequately 

matched to local economic and social needs in the 

suburbs than in the cities. 

The logic of local legal autonomy assumes local 

solutions to local problems, with local programs 

funded by taxes on local property. Many big cities, 

however, have relatively large social welfare and infrastructure demands. Local political existence, zoning autonomy and taxable property provide neither 

the regulatory authority nor the revenues necessary 

to meet these problems. To cope successfully with 

local needs, these cities must look beyond the city 

limits to outside public and private actions: intergovernmental aid, additional revenue-raising authority 

from the state and private investment. 

Many big cities are heavily dependent on intergovernmental aid to balance their budgets, pay their 

employees and satisfy local demands for basic public 

services. In terms of local political independence, it is 

an open question whether big cities are better off with 

intergovernmental aid, which often comes with 

strings attached, or without it. But there should be no 

question that the fiscal dependency of many big cities 

means that local legal authority alone is not sufficient 

to create real local autonomy.29 

By contrast, for affluent or middle-class suburbs, 

local legal powers are more likely to be sufficient for the 

satisfaction of local wants. Less burdened by poverty, 

crime, congestion and physical deterioration than big 

cities, these localities tend to have lower per capita 

spending needs, while their tax bases are, per taxpayen, 

more substantial. In addition, local autonomy insulates 

suburban tax bases from the fiscal needs of city residents. To the extent that local resources are inadequate 

and further growth is required, suburbs find it easier 

than cities to compete for that growth. 

Moreover, for many suburbs, particularly the 

more affluent ones, the principal local regulatory 

goals often are controlling growth and preserving the 

status quo. Local legal autonomy significantly empowers them in this quest. These suburbs can retain 

local revenues and use them to maintain local 

schools, utilize their land-use authority to prevent 

unwanted local development and resist merger or 

absorption into poorer central cities or regional governments. As a rule, local legal powers will be more 

effective in attaining the suburban goals of limiting 

growth and preseming formal autonomy than in attaining the central cities’s goals of intergovernmental 

assistance and private investment. 

29Robert Dahl has observed, “the greatest inroads on the 

autonomy of the city result from its lack of financial re- sources.” R. Dahl, supra note 10, at 164. 

42 
* * * * * does not benefit all localities, but instead benefits those 

Cities, as just defined, tend to fare relatively 

poorly under this system, not because of a lackof legal 

autonomy, as the argument about city legal power- lessness suggests, but because the scarcity of local 

resources relative to local needs forces them to turn 

to external sources for financial support. More gener- ally, the localist values in the system militate against 

the interests of cities. Legal localism presumes local 

fiscal self-sufficiency; it provides neither a legal basis 

for compelling state responsibility to help satisfy local 

needs when local resources prove inadequate nor a 

political basis for persuading state legislatures to assume a greater degree of responsibility for local fiscal 

inadequacy. Furthermore, localism legitimates state 

inaction, making it more difficult for needy localities 

to obtain financial support from the state or from 

more prosperous localities. 

Suburbs, by contrast, often do better under this 

system. The core of local legal autonomy is defensive 

and preservative, enabling residents of more affluent 

localities to devote local taxable resources to local 

ends, exclude unwanted land uses and users and protect the autonomous local political structure that al- lows them to pursue local policies.48 These are 

precisely the goals of more affluent localities. Local 

autonomy enables these suburbs to protect their resources from the fiscal needs of nearby cities while 

securing their independence from involvement in the 

resolution of urban or metropolitan economic or so- cial problems. Suburbs benefit from the localist values of courts and legislatures that discourage 

modifications of this highly satisfactory status quo 

and protect them from outside interference. 

Moreover, although most discussions of local authority are limited to the legal relationship between 

states and local governments, this traditional focus on 

state-local bipolar conflict is too simplistica model for 

analyzing local government law. Local government 

law must deal not just with disputes between states 

and localities, but also with conflicts among localitie~.~9 Strengthening local autonomy from the states 

4sSwanstrom notes, 

Having a tax base more than ample to meet the 

service demands of a largely middle class population, 

many suburban governments practice the politics of exclu- sion, not the politics of growth. They are more concerned 

with excluding the poor and minorities, as well as dirty 

industry, than with attracting new investment and resi- dents. Ironically, it is precisely in those cities where growth 

is least possible that growth politics. . .has its most tena- cious hold. T. Swanstrom, supra note 32, at 26. 

“As Elazar points out, most smaller localities, “really do not 

develop a ‘city’ outlook in the political arena. As a rule, 

they align themselves with the so-called ‘rural’ areas (real- ly a misnomer in the demographicsense today) against the 

‘big city’ in urban rural conflict situations.” D. Elazar, 

supra note 20, at 152 53. 

with the greatest local resources or the fewest public 

seryice needs, to the detriment of poorer places. Local 

power thus can lead to city powerlessness. 

* * * * * 

Greater local autonomy would not substantially 

advance participation. There already is a great deal of 

local legal power, and the principal constraint on 

local power is often not legal but economic: the limits 

of local resources and the structure of interlocal com- petition. So, too, mobility and the spread of daily 

activities across a metropolitan area are far greater 

impediments to a revitalized sense of local communi- ty than any nominal limits on local legal power. As 

long as the social trends that have eroded the connec- tion between locality and community ties continue 

unabated, it is difficult to believe that augmenting 

local governments’ already substantial legal powers 

will have any significant effect on either the sense of 

community or the extent of political participation at 

the local level. At the same time, the cost of local 

legal autonomy, the burden it places on poorer locali- ties and the crippling effect it has on efforts to remedy 

local economic and social problems, are far greater 

than participationists acknowledge. 

Page 412, after Discussion Notes: 

Edgewood Independent School District v. 

Kirby 

777 S.W. 2d 391 (Tex. 1989) 

MAUZY, Justice. 

At issue is the constitutionality of the Texas system for financing the education of public school chil- dren. Edgewood Independent School District, 

sixty-seven other school districts, and numerous individual school children and parents filed suit seeking a 

declaration that the Texas school financing system vio- lates the Texas Constitution. The trial court rendered 

judgment to that effect and declared that the system 

violates the ’bas Constitution, article I, section 3, article I, section 19, and article W, section 1. By a 2-1 

vote, the court of appeals reversed that judgment and 

declared the system constitutional. 761 S.W.2d 859 

(1988). We reverse the judgment of the court of appeals 

and, with modification, affirm that of the trial court. 

The basic facts of this cause are not in dispute.’ 

The only question is whether those facts describe a 

public school financing system that meets the re- quirements of the constitution. As summarized and 

excerpted, the facts are as follows. 

By agreement of the parties, the 1985-86 school year was 

used as the test year for purposes of constitutional review. 

43 
There are approximately three million public 

school children in Texas. The legislature finances the 

education of these children through a combination of 

revenues supplied by the state itself and revenues 

supplied by local school districts which are govern- mental subdivisions of the state. Of total education 

costs, the state provides about forty-two percent, 

school districts provide about fity percent, and the 

remainder comes from various other sources including federal funds. School districts derive revenues 

from local ad valorem property taxes, and the state 

raises funds from a variety of sources including the 

sales tax and various severance and excise taxes. 

There are glaring disparities in the abilities of the 

various school districts to raise revenues from proper- ty taxes because taxable property wealth vanes great- ly from district to district. The wealthiest district has 

over $14,000,000 of property wealth per student, 

while the poorest has approximately $20,000; this disparity reflects a 700 to 1 ratio. The 300,000 studentsin 

the lowest-wealth schools have less than 3% of the 

state’s property wealth to support their education 

while the 300,000 students in the highest-wealth 

schools have over 25% of the state’s property wealth; 

thus the 300,000 students in the wealthiest districts 

have more than eight times the property value to 

support their education as the 300,ooO students in the 

poorest districts. The average property wealth in the 100 

wealthiest districts is more than twenty times greater 

than the average property wealth in the 100 poorest 

districts. Edgewood I.S.D. has $38,854 in property 

wealth per student; Alamo Heights I.S.D., in the same 

county, has $570,109 in property wealth per student. 

The state had tried for many years to lessen the 

disparities through various efforts to supplement the 

poorer districts. Through the Foundation School Program, the state currently attempts to ensure that each 

district has sufficient funds to provide its students 

with at least a basic education. See Tex.Educ.Code 

Sec. 16.002. Under this program, state aid is distrib- uted to the various districts according to a complex 

formula such that property-poor districts receive 

more state aid than do property-rich districts. However, the Foundation School Program does not cover 

even the cost of meeting the state-mandated mini- mum requirements. Most importantly, there are no 

Foundation School Program allotments for school 

facilities or for debt service. The basic allotment and 

the transportation allotment understate actual costs, 

and the career ladder salary supplement for teachers 

is underfunded. For these reasons and more, almost 

all school districts spend additional local funds. 

Low-wealth districts use a significantly greater proportion of their local funds to pay the debt service on 

construction bonds while high-wealth districts are 

able to use their funds to pay for a wide array of 

enrichment programs. 

Because of the disparities in district property 

wealth, spending per student varies widely, ranging 

from $2,112 to $19,333. Under the existing system, an 

average of $2,000 more per year is spent on each of 

the 150,OOO students in the wealthiest districts than is 

spent on the 150,OOO students in the poorest districts. 

The lower expenditures in the property-poor 

districts are not the result of lack of tax effort. Generally, the property-rich districts can tax low and spend 

high while the property-poor districts must tax high 

merely to spend low. In 1985-86, local tax rates ranged 

from $.W to $1.55 per $100valuation. The 100poorest 

districts had an average tax rate of 74.5 cents and 

spent an average of $2,978 per student. The 100 

wealthiest districts had an average tax rate of 47cents 

and spent an average of $7,233 per student. In Dallas 

County, Highland Park1.S.D. taxed at 35.16 cents and 

spent $4,836 per student while Wilmer-Hutchins 

I.S.D. taxed at $1.05 and spent $3,513 per student. In 

Harris County, Dee Park I.S.D. taxed at 64.37 cents 

and spent $4,846 per student while its neighbor North 

Forest I.S.D. taxed at $1.05 and yet spent only $3,182 

per student. A person owning an $80,000 home with 

no homestead exemption would pay $1,206 in taxes in 

the east Bxas low-wealth district of Leveretts Chapel, but would pay only $59 in the west Texas 

high-wealth district of Iraan-Sheffield. Many districts 

have become tax havens. The existing funding system 

permits “budget balanced districts” which, at minimal 

tax rates, can still spend above the statewide average; 

if forced to tax at just average tax rates, these districts 

would generate additional revenues of more than 

$200,000,000 annually for public education. 

Property-poor districts are trapped in a cycle of 

poverty from which there is no opportunity to free 

themselves. Because of their inadequate tax base, 

they must tax at significantly higher rates in order to 

meet minimum requirements for accreditation; yet 

their educational programs are typically inferior. The 

location of new industry and development is strongly 

influenced by tax rates and the quality of local 

schools. Thus, the property-poor districts with their 

high tax rates and inferior schools are unable to attract new industry or development and so have little 

opportunity to improve their tax base. 

The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student. High-wealth 

districts are able to provide for their students broader 

educational experiences including more extensive 

curricula, more up-to-date technological equipment, 

better libraries and library personnel, teacher aides, 

counseling services, lower student-teacher ratios, 

better facilities, parental involvement programs, and 

drop-out prevention programs. They are also better 

able to attract and retain experienced teachers and 

administrators. 

44 
The differences in the quality of educational programs offered are dramatic. For example, San Elizario I.S.D. offers no foreign language, no 

pre-kindergarten program, no chemistry, no physics, 

no calculus, and no college preparatory or honors 

program. It also offers virtually no extracurricular activities such as band, debate, or football. At the time of 

trial, one-third of Texas school districts did not even 

meet the state-mandated standards for maximum class 

size. The great majority of these are low-wealth districts. In many instances, wealthy and poor districts are 

found contiguous to one another within the same 

county. 

Based on these facts, the trial court concluded 

that the school financing system violates the Texas 

Constitution’s equal rights guarantee of article I, section 3, the due course of law guarantee of article I, 

section 19, and the “efficiency” mandate of article 

VII, section 1. The court of appeals reversed. We 

reverse the judgment of the court of appeals and, with 

modification, affirm the judgment of the trial court. 

Article VII, section 1 of the Texas Constitution 

provides: 

A general diffusion of knowledge being 

essential to the preservation of the liberties 

and rights of the people, it shall be the duty 

of the Legislature of the State to establish 

and make suitable provision for the support 

and maintenance of an efficient system of 

public free schools. 

The court of appeals declined to address peti- tioners’ challenge under this provision and concluded 

instead that its interpretation was a “political question.” Said the court: 

That provision does, of course, require 

that the school system be “efficient,” but the 

provision provides no guidance as to how this 

or any other court may amve at a determination of what is efficient or inefficient. Given 

the enormous complexity of a school system 

educating three million children, this Court 

concludes that which is, or is not, “efficient” 

is essentially a political question not suitable 

for judicial review. 

761. S.W.2d at 867. We disagree. This is not an 

area in which the Constitution vests exclusive discretion in the legislature; rather the language of article 

W, section 1 imposes on the legislature an affimtive 

duty to establish and provide for the public free schools. 

This duty is not committed unconditionally to the legislature’s discretion, but instead is accompanied by stan- dards. By express constitutional mandate, the 

legislature must make “suitable” provision for an “efficient” system for the “essential” purpose of a “general 

diffusion of knowledge.” While these are admittedly 

not precise terms, they do provide a standard by which 

this court must, when called upon to do so, measure the 

constitutionality of the legslatwe’s actions. See Wifliams v. Tqfor, 83 ’Rx. 667, 19 S.W. 156 (1892). We do 

not undertake this responsibility lightly and we begin 

with a presumption of constitutionality. See Tam Public 

Bldg Authority v. Mattm, 686 S.W.2d 924,927 @x. 1985). 

Nevertheless, what this court said in only its second 

term, when first summoned to strike down an act of the 

Republic of Rxas Congress, is still true: 

[W]e have not been unmindful of the 

magnitude of the principles involved, and 

the respect due to the popular branch of the 

government. . . . Fortunately, however, for 

the people, the function of the judiciary in 

deciding constitutional questions is not one 

which it is at liberty to decline. . . . [We] 

cannot, as the legislature may, avoid a measure because it approaches the confines of 

the constitution; [we] cannot pass it by because 

it is doubtful; with whatever doubt, with what- ever diffiities a case may be attended, [we] 

must decide it, when it arises in judgment. 

Morton v. Gordon, Dallam 396, 397-398 

(”k.1841). If the system is not “efficient” or not “suit- able,” the legislature has not discharged its constitutional duty and it is our duty to say so. 

The Texas Constitution derives its force from the 

people of 2ms. This is the fundamental law under 

which the people of this state have consented to be 

governed. In construing the language of article VII, 

section 1, we consider “the intent of the people who 

adopted it.”DirectorofDep’t OfAgriculture and Env’t v. 

Printing Indus. Ass’n, 600 S.W.2d 264, 267 oex.1980); 

see also Smissen v. State, 71 Tex. 222, 9 S.W. 112, 116 

(1888). In determining that intent, “the history of the 

times out of which it grew and to which it may be 

rationally supposed to have direct relationship, the 

evils intended to be remedied and the good to be 

accomplished, are proper subjects of inquiry.” Markowsky v. Newman, 134 Tex. 440,136 S.W.2d 808,813 

(1940). However, because of the difficulties inherent 

in determining the intent of voters over a century ago, 

we rely heavily on the literal text. We seek its meaning 

with the understanding that the Constitution was ratified to function as an organic document to govern 

society and institutions as they evolve through time. 

See generally Printing Indus., 600 S.W.2d at 268-269. 

The State argues that, as used in article VII, 

section 1, the word “efficient” was intended to suggest a simple and inexpensive system. Under the Re- construction Constitution of 1869, the people had 

been subjected to a militaristic school system with the 

state exercising absolute authority over the training 

of children. See Rx. Const. art. VII sec. 1, interp. com- mentary (Vernon 1955). Thus, the State contends that 

delegates to the 1875 Constitutional Convention delib45 
erately inserted into this provision the word “efficient” 

in order to prevent the establishment of another Reoonstruction-style, highly centralized school system. 

While there is some evidence that many delegates wanted an economical school system, there is 

no persuasive evidence that the delegates used the 

term “efficient” to achieve that end. See Journal of the 

Constitutional Convention of the State of Tam 136 

(Oct. 8,1875); S. McKay, Debates in the Texas Constitutional Convention of1875 107, 217,350-351 (1930). It 

must be recognized that the Constitution requires an 

“efficient,” not an “economical,” “inexpensive,” or 

“cheap” system. The language of the Constitution 

must be presumed to have been carefully selected. 

Leander Indep. School Dist. v. Cedar Park Water Supply 

Cop, 479 S.W.2d 908 (l-ex.1972); Cramer v. Sheppard, 

140 Tex. 271,167 S.W.2d 147 (Tex.1943). The framers 

used the term “economical” elsewhere2 and could 

have done so here had they so intended. 

There is no reason to think that “efficient” meant 

anything different in 1875 from what it now means. 

“Efficient” conveys the meaning of effective or productive of results and connotes the use of resources 

so as to produce resultswith little waste; this meaning 

does not appear to have changed over time.3 E.g., N 

Oxford English Dictionary 52 (1971); Webster’s Third 

New International Dictionary 725 (1976). One dictionary used by the framers defined efficient as follows: 

Causing effects; producing results; actively operative; not inactive, slack or incapable; characterized by energetic and useful 

activity. . . . 

N Webster, An American Dictionary of the English 

Language 430 (1864). In 1890, this court described 

“efficient” machinery as being “such as is capable of 

well producing the effect intended to be secured by 

the use of it for the purpose for which it was made.” 

Mmell v. Bastrop Mfg. Co., 77 Tex. 233,14 S.W. 35,36 

(1890). 

Considering “the general spirit of the times and 

the prevailing sentiments of the people,” it is apparent from the historical record that those who drafted 

and ratified article VII, section 1 never contemplated 

the possibility that such gross inequalities could exist 

‘“The legislature shall not have the right to levy taxes or 

impose burdens upon the people, except to raise revenue 

sufficient for the economical adminstration of the govemment. . . .” Tex. Const. art. 111, sec. 48 (1876, repealed 1969). 

This usage is seen in text as well. E.g., H. Fawcett, Manrral 

of Polifical Econoniics 193 (1863) (“That nothing more 

powerfully promotes the efficiency of labour than an 

abundance of fertile land.”); G.D. Argyll, 77ieReign ofLm 

321 (1871)(“This change in mind is the efficient cause of a 

whole cycle of other changes.”); H.B. Stowe, Uncle Toni’s 

Cabin 297 (1850) (“He was an expert and efficient work- man.”). 

within an “efficient” sy~tern.~ See Mumme v. Marrs, 

1u)Tex. 383,40 S.W.2.d 31,35 (1931). At the Constitutional Convention of 1875, delegates spoke at length 

on the importance of education for all the people of 

this state, rich and poor alike. The chair of the education committee, speaking on behalf of the majority of 

the committee, declared: 

[Education] must be classed among the 

abstract rights, based on apparent natural 

justice, which we individually concede to the 

State, for the general welfare, when we enter 

into a great compact as a commonwealth. I 

boldly assert that it is for the general welfare 

of all, rich and poor, male and female, that 

the means of a common school education 

should, if possible, be placed within the 

reach of every child in the State. 

S. McKay, Debates in the Teras Constitutional Convention of1875 198 (1930). Other delegates recognized 

the importance of a diffusion of knowledge among the 

masses not only for the preservation of democracy, but 

for the prevention of crime and for the growth of the 

economy. See, e.g., id. at 199-200, 216-217, 335. 

In addition to specific comments in the constitutional debates, the structure of school finance at the 

time indicates that such gross disparities were not 

contemplated. Apart from cities, there was nodistrict 

structure for schools nor any authority to tax locally 

for school purposes under the Constitution of 1876. 

B. Walker and W. Kirby, The Basics of Texas Public 

School Finance 5, 86 (1986). The 1876 Constitution 

provided a structure whereby the burdens of school 

taxation fell equally and uniformly5 across the state, 

and each student in the state was entitled to exact!y 

the same distribution of funds. See Tex. Const. art. 

VII, sec. 5 (1876). The state’s school fund was initially 

apportioned strictly on a per capita basis. B. Walker 

and W. Kirby at 21. Also, a poll tax of one dollar per 

voter was levied across the state for school purposes. 

Id. These per capita methods of taxation and of reve4Delegate Henry Cline, who first proposed the term “effi- cient,” urged the convention to ensure that sufficient 

funds would be provided to those districts most in need. S. 

McKay, Debates in the Constitictional Convention of 1875 

217 (1930). He noted that those with some wealth were 

already making extravagant provisions for the schooling of 

their own children and described a public school system in 

which those funds that had selfishly been used by the 

wealthy would be made available for the education of all 

the children of the state. I. at 217-18. 

5Article VIII, section l’s requirement of “equal and uniform” taxation was also the subject of niuch debate at the 

Constitutional Convention of 1875. There were clearly 

strong feelings against exemptions from taxation and spe- cial privileges. See generally 2 G. Braden, The Coristitrrtiori 

of the Stale of Teas: An Annotated and Cornparalive Analysis 564 565 (1977). The framers opposed any schemes that 

would allow any classes of people to avoid an equal burden 

of taxation. See S. McKay at 296, 303, 306. 

46 
nue distribution seem simplistic compared to today’s 

system; however they do indicate that the people 

were contemplating that the tax burden would be 

shared uniformly and that the state’s resources would 

be distributed on an even, equitable basis. 

If our state’s population had grown at the same 

rate in each district and if the taxable wealth in each 

district had also grown at the same rate, efficiency 

could probably .have been maintained within the 

structure of the present system. That did not happen. 

Wealth, in its many forms, has not appeared with 

geographic symmetry. The economic development of 

the state has not been uniform. Some cities have 

grown dramatically, while their sister communities 

have remained static or have shrunk. Formulas that 

once fit have been knocked askew. Although local 

conditions vary, the constitutionally imposed state 

responsibility for an efficient education system is the 

same for all citizens regardless of where they live. 

We conclude that, in mandating “efficiency,” the 

constitutional framers and ratifiers did not intend a 

system with such vast disparities as now exist. Instead, 

they stated clearly that the purpose of an efficient 

system was to provide for a “general diffusion of 

knowledge.” (Emphasis added.) The present system, 

by contrast, provides not for a diffusion that is general, but for one that is limited and unbalanced. The 

resultant inequalities are thus directly contrary to the 

constitutional vision of efficiency. 

The State argues that the 1883 constitutional 

amendment of article VII, section 3 expressly authorizes the present financing system. However, we conclude that this provision was intendcd not to preclude 

an efficient system but to serve as a vehicle for injecting more money into an efficient system. James E. 

Hill, a legislator and supporter of the 1883 amendment argued: 

If [article VII, section 11 means anything, and is to be enforced, then additional 

power must be granted to obtain the means “to 

support and maintain” an efficient system of 

public free schools. What is such a system, 

then? is the question. I have examined the laws 

of the older States of this Union, especially 

those noted for efficient free schools, and not 

one is supported alone by State aid, but that 

aid is supplemented always by local taxation. . . . When a man tells me he favors an 

efficient system of free schools, but is opposed 

to local taxation by districts or communities to 

supplement State aid, he shows that he ignores 

the successful systems of other States, or he is 

misleading in what he says. 

Galveston Daily News, August 10, 1883, at 3, col. 

9 (interview with Hon. James E. Hill). Governor 

O.M. Roberts also gave strong support to the 1883 

amendment. In his address to the 18th Legislature, 

Governor Roberts directed the legislature’s attention 

to the efficiency standard set by article VII, section 1 

and said: “The standard fixed in law is certainly high 

enough to enable the masses of people generally, who 

receive the benefit of it, to have that general diffusion 

of knowledge. . . .” Speech of Gov. O.M. Roberts, S.J. 

of Tex., 18th Leg., Reg. Sess. 15 (1883). He then explained the need for the amendment by stating that 

the practical remedy for the attainment of the objective of efficiency was the formation of school districts 

with the power of taxation. Thus, article VII, section 3 

was an effort to make schools more efficient and 

cannot be used as an excuse to avoid efficiency. See 

also 761 S.W.2d at 874 (further discussing the historical context of the amendment). 

In the context of article VII, section 1, the legislature has expressed its understanding of the term “efficient” for a long time even though it has never given 

the term full effect. Sixty years ago, the legislature 

enacted the Rural Aid Appropriations Act with the 

express purpose of “equalizing the educational opportunities afforded by the State. . . .” 1929 Tex. Gen. 

Laws, ch. 14 at 252 (3rd called session). Again, in 

creating the Gilmer-Aikin Committee to study school 

finance, the legislature indicated an awareness of this 

obligation when it spoke of “the foresight and evident 

intention of the founders of our State and the framers 

of our State Constitution to provide equal educational advantages for all.” Tex.H.Con.Res. 48, 50th Leg. 

(1948). Moreover, section 16.001 of the legislatively 

enacted Education Code expresses the state’s policy 

that “a thorough and efficient system be provided . . . so that each student. . . shall have access to programs 

and services. . . that are substantially equal to those 

available to any similar student, notwithstanding varying economic factors.’’ Not only the legislature, but 

also this court has previously recognized the implicit 

link that the Texas Constitution establishes between 

efficiency and equality. In Mumme v. Marrs, 40 S.W.2d 

at 37, we stated that rural aid appropriations “have a 

real relationship to the subject of equalizing educational opportunities in the state, and tend to make our 

system more efficient. . . .” 

By statutory directives, the legislature has attempted through the years to reduce disparities and 

improve the system. There have been good faith efforts on the part of many public officials, and some 

progress has been made. However, as the undisputed 

facts of this case make painfully clear, the reality is 

that the constitutional mandate has not been met. 

The legislature’s recent efforts have focused primarily on increasing the state’s contributions. More 

money allocated under the present system would reduce some of the existing disparities between districts 

but would at best only postpone the reform that is 

necessary to make the system efficient. A band-aid 

will not suffice; the system itself must be changed. 

47 
We hold that the state’s school financing system 

is neither financially efficient nor efficient in the 

sense of providing for a “general diffusion of knowledge” statewide, and therefore that it violates article 

VII, section 1 of the Texas Constitution. Efficiency 

does not require a per capita distribution, but it also 

does not allow concentrations of resources in property-rich school districts that are taxing low when property-poor districts that are taxing high cannot generate 

sufficient revenues to meet even minimum standards. 

There must be a direct and close correlation between a 

district’s tax effort and the educational resources avail- able to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar 

levels of tax effort. Children who live in poor districts 

and children who live in rich districts must be afforded a 

substantially equal opportunity to have access to educational funds. Certainly, this much is required if the state 

is to educate its populace efficiently and provide for a 

general diffusion of knowledge statewide. 

Under article VII, section 1, the obligation is the 

legislature’s to provide for an efficient system. In 

setting appropriations, the legislature must establish 

priorities according to constitutional mandate; equalizing educational opportunity cannot be relegated to 

an “if funds are left over” basis. We recognize that 

there are and always will be strong public interests 

competing for available state funds. However, the 

legislature’s responsibility to support public education is different because it is constitutionally imposed. 

Whether the legislature acts directly or enlists local 

government to help meet its obligation, the end product must still be what the constitution commandsi.e., an efficient system of public free schools 

throughout the state. See Leev. Leonard Xndep. School 

Dist., 24 S.W.2d 449, 450 (Tex.Civ.App-Texarkana 

1930, writ ref’d). This does not mean that the state 

may not recognize differences in area costs or in costs 

associated with providing an equalized educational 

opportunity to atypical students or disadvantaged students. Nor does it mean that local communitieswould 

be precluded from supplementing an efficient system 

established by the legislature; however any local enrichment must derive solely from local tax effort. 

Some have argued that reform in school finance 

will eliminate local control, but this argument has no 

merit. An efficient system does not preclude the ability of communities to exercise local control over the 

education of their children. It requires only that the 

funds available for education be distributed equitably 

and evenly. An efficient system will actually allow for 

more local control, not less. It will provide property-poor districts with economic alternatives that are 

not now available to them. Only if alternatives are 

indeed available can a community exercise the control of making choices. 

Our decision today is not without precedent. 

Courts in nine other states with similar school financing systems have ruled those systems to be unconstitutional for varying reasons. . . . Because we have decided that the school financing system violates the Txas Constitution’s “efficiency” provision, we need not consider petitioners’ other 

constitutional arguments. The Texas school financing 

system as set forth in the Texas Education Code, 

sections 16.001, et seq., and as implemented in conjunction with local school districts containing unequal 

taxable property wealth, is unconstitutional under 

article VII. section 1 of the Texas Constitution. 

* * * * * 

Although we have ruled the school financing sys- tem to be unconstitutional, we do not now instruct the 

legislature as to the specifics of the legislation it 

should enact; nor do we order it to raise taxes. The 

legislature has primary responsibility to decide how 

best to achieve an efficient system. We decide only 

the nature of the constitutional mandate and whether 

that mandate has been met. Because we hold that the 

mandate of efficiency has not been met, we reverse 

the judgment of the court of appeals. The legislature 

is duty-bound to provide for an efficient system of 

education, and only if the legislature fulfills that duty 

can we launch this great state into a strong economic 

future with educational opportunity for all. 

Because of the enormity of the task now facing 

the legislature and because we want to avoid any 

sudden disruption in the educational processes, we 

mod@ the trial court’s judgment so as to stay the 

effect of its injunction until May 1, 1990.6 However, 

let there be no misunderstanding. A remedy is long 

overdue. The legislature must take immediate action. 

We reverse the judgment of the court of appeals and 

affirm the trial court’s judgment as modified. 

Discussion Notes: 

1. For a thorough discussion of the school 

finance litigation, including the Texas case, see 

Note, ‘TO Render Them Safe: The Analysis of 

State Constitutional Provisions in School Finance Reform,” Virginia Law Review 75 (1989): 

1639. 

See Also William E. Tho, “The Third 

Wave: The Impact of the Montana, Kentucky, 

and Texas Decisions on Public School Finance 

Reform Litigation,”JournaZofLaw andEdmation 19 (Spring 1990): 219. 

2. Compare this opinion with the other 

school finance cases you have read. What are the 

differences and similarities. 

6We note that the Governor has already called a special 

session of the legislature to begin November 14, 1989; the 

school finance problem could be resolved in that session. 

48 
Page 415, Discussion Notes: 

Discussion Notes: 

8. On the general right to education under 

state constitutions, see Allen W. Hubsch, “Education and Self-Government: The Right to Edudon Under State Constitutional Law,” Journal 

of Law and Education 18 (Winter 1989): 93; Gershon M. Ratner, “A New Legal Duty for Urban 

Public Schools: Effective Education in Basic 

Skills,” Tm Law Review 63 (1985): 7’77. 

Following page 451: 

Grose v. Firestone 

422 So.2d 303 (Fla. 1982) 

ALDERMAN, Chief Justice. 

This cause has been certified to us by the District 

Court of Appeal, First District, pursuant to article V, 

section 3(b)(5), Florida Constitution. Since this is a 

matter of great public importance requiring immediate resolution, we accept jurisdiction to review the 

judgment of the circuit court which holds that there is 

no constitutional or statutory impairment which 

would warrant interference with the submission to 

the voters of Amendment 2 on the ballot of the November 2,1982, election. We agree with the trial court 

and affirm its judgment. 

Amendment 2 is a proposed amendment to article I, section 12, Florida Constitution, relating to the 

right to be free from unreasonable searches and seizures. On June 24, 1982, House Joint Resolution 

No.31-H was filed in the office of the Secretary of 

State. This Resolution provides: 

A joint resolution proposing an amend- ment to Section 12, Article I of the State Constitution, relating to searches and seizures, to 

provide a rule of construction and to limit the 

exclusion of evidence. 

Be It Resolved by the Legislature of the 

State of Florida: 

That the following amendment to Section 12 of Article I of the State Constitution 

is hereby agreed to and shall be submitted to 

the electors of this state for approval or rejection at the general election to be held in 

November 1982. 

ARTICLE I 

DECLARATION OF RIGHTS 

SECTION 12. Searches and seizures.-The right of the people to be secure 

in their persons, houses, papers and effects 

against unreasonable searches and seizures, 

and against the unreasonable interception of 

private communications by any means, shall 

not be violated. No warrant shall be issued 

except upon probable cause, supported by 

affidavit, particularly describing the place or 

places to be searched, the person or persons, 

thing or things to be seized, the communication to be intercepted, and the nature of 

evidence to be obtained. This right shall be 

construed in conformity with the 4th Arnendment to the United States Constitution, asinterpreted by the United States Supreme Court. 

Articles or information obtained in violation 

of this right shall not be admissible in evidence if such articles or information would be 

inadmissible under decisions of the United 

States Supreme Court construing the 4th 

Amendment to the United States Constitution. 

BE IT FUFITHER RESOLVED that the 

following statement be placed on the ballot: 

CONSTITUTIONAL AMENDMENT 

ARTICLE I, SECTION 12 

SEARCHES AND SEIZURES.-Proposing an amendment to the State Constitution to provide that the right to be free from 

unreasonable searches and seizures shall be 

construed in conformity with the 4th 

Amendment to the United States Constitution and to provide that illegally seized articles or information are inadmissible if 

decisions of the United States Supreme 

Court make such evidence inadmissible. 

Appellants initiated this challenge to Amendment 2 on October 22,1982, by the filing of a petition 

for injunctive relief seeking to enjoin George Firestone, as the Secretary of State, and Dorothy Glisson, 

as Deputy Secretary for Elections, from placing the 

proposed amendment on the November 2,1982, ballot. On October 26, 1982, an amended petition was 

filed requesting injunctive and declaratory relief. 

After hearing arguments for appellants and appellees and arguments of amicus curiae on behalf of 

the Florida Prosecuting Attorneys Association, the 

Florida Police Chiefs Association, the Fraternal Order of Police and Independent Minded People 

Against Crime Today, and the Florida Sheriffs Association, the trial court, in a succinct order, denied the 

petition for preliminary injunction and dismissed the 

amended petition with prejudice. 

Appellants appealed to the District Court of Appeal, First District, but requested that the district court 

certlfy the judgment to us for immediate resolution. 

Appellants initially contend that the trial court 

erred in not granting their request for preliminary 

injunction since the ballot summary of the proposed 

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amendment is misleading and does not fully advise 

the electors of the effect of the amendment. Appellants submit that although the chief purpose of the 

joint resolution proposing the amendment is to provide a rule of construction and to limit the exclusion of 

evidence in criminal cases, the ballot summary only 

discloses that the state constitution is to be amended to 

provide that article I, section 12, is to be construed in 

Conformity with the fourth amendment to the United 

States Constitution as interpreted by the Supreme 

Court of the United States. Appellants suggest that the 

ballot summary fails to disclose or put voters on notice 

of the total effect of this amendment. We disagree with 

appellants and hold that the ballot summary clearly and 

unambiguously gives voters notice of the effect of this 

amendment. 

Section 101.161, Florida Statutes (1981), which 

sets out the prerequisitesfor submission of aconstitutional amendment or other public measure to the 

vote of the people, states in pertinent part: 

Whenever a constitutional amendment 

or other public measure is submitted to the 

vote of the people, the substance of such 

amendment or other public measure shall be 

printed in clear and unambiguous language 

on the ballot. . . . The wording of the sub- stance of the amendment or other public 

measure and the ballot title to appear on the 

ballot shall be embodied in the joint resolution.. . . The substance of the amendment or 

other public measure shall be an explanatory 

statement, not exceeding 75 words in length, 

of the chief purpose of the measure. The 

ballot title shall consist of a caption, not ex- ceeding 15 words in length, by which the mea- sure is commonly referred to or spoken of. . . . Recently in Askew v. firestone, 421 So.2d 151 

(Fla.1982), we said that the purpose of section 101.161 

is to assure that the electorate is advised of the meaning and ramifications of the amendment. We said: 

The requirement for proposed constitutional amendment ballots is the same as for 

all ballots, i.e., 

that the votcr should not be 

misled and that he have an opportunity to know and be on notice as to 

the proposition on which he is to cast 

his vote. . . . All that the Constitution 

requires or that the law compels or 

ought to compel is that the voter have 

notice of that which he must decide. . , , What the law requires is that the 

ballot be fair and advise the voter m@- 

cientb to enable him intelligently to cast 

his ballot. 

Hill v. Milunder, 72 S0.2d 796,798 (Fla. 1954) 

(emphasis supplied). 

Simply put, the ballot must give the voter fair 

notice of the decision he must make. Miami Dolphins, 

Lrd. v. Merropoliran Dude County, 394 So.2d 981 (Fla. 

1981). . . . Id., at p. 155. 

The wording of the ballot summary of proposed 

Amendment 2 is unambiguous and clearly states the 

amendment’s chief purpose. The purpose of the 

amendment is to assure that article I, section 12 of the 

Florida Constitution, is read in conformity with the 

fourth amendment to the United States Constitution 

as interpreted by the Supreme Court of the United 

States and that any evidence found inadmissible by 

that Court would be inadmissible in this state. There 

are no hidden meanings and no deceptive phrases. 

The summary says just what the amendment purports 

to do. It gives the public fair notice of the meaning 

and effect of the proposed amendment. 

Appellants effectually seek an exhaustive explanation reflecting their interpretation of the amendment and its possible future effects. To satisfy their 

request would require a lengthy history and analysis 

of the law of search and seizure and the exclusionary 

rule. Inclusion of all possible effects, however, is not 

required in the ballot summary. Smathersv. Smith, 338 

So.2d 825 (Fla.1976). The ballot summary of Amendment 2 clearly states the chief purpose of this amendment and provides the electorate with fair notice of 

the intent of the amendment. This ballot summary 

complies with all the requirements of the law. 

On several occasions this Court has removed an 

amendment from the ballot because the measure was 

clearly and conclusively defective. Examples are 

Askewv. Firestone, ballot summary misleading: Adam 

v. Gunter, 238 So.2d 824 (Fla.1970), proposed amendment would improperly alter more than one section 

of the constitution; Rivera-Cruzv. Gray, 104 So.2d 501 

(Fla.1958), “daisy chain” method of amendment improper; Coral Gables v. Gray, 154 Fla. 881. 19 So.2d 

318 (1944), proposed amendment improperly related 

to more than one subject; Gray v. Moss, 115 Fla. 701, 

156 So. 262 (1934), proposed amendment not properly 

passed by both houses of the legislature; Crarrford v. 

GilchriSt, 64 Fla. 41,59 So. 963 (1912), amendment not 

proposed by the requisite vote of each house of the 

legislature. None of these factual situations exist in 

this case. 

1. Should the “enrolled bill rule” (see p. 

211-217) apply to legislatively proposed state 

constitutional amendments? SCC Roeschlein v. 

Thomas, 273 N.E.2d 554 (Ind. App. 1971). 

2. Would the enrolled bill rule apply to any 1 

of the cases listed at the end of the Florida 1 opinion? I 

1 

so 
James Willard Hurst, 

“The Growth of American Law” 

Page 425, Discussion Notes: 

Discussion Notes: 

3. Delaware is the only state that provides 

for legislative amendment to the state constitution without a vote of thepeople. See generally 

Opinion of the Justices, 264 k2d 342 (De1.1970). 

Meyer v. Grant 

Page 464, Discussion Notes: 

Discussion Notes: 

3. For a discussion of the US. Supreme 

Court’s decision in Mqyer v. Grant, see Daniel 

Hays Lowenstein and Robert M. Stern, ‘The 

First Amendment and paid Initiative Petition 

Circulators: A Dissenting View and a Proposal,” 

Hastings ConrtitUtional Law Quarter& 17 (Fall 

1989): 175. 

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