Monday, June 8, 2015

Ignorance of the Law--by the Police--IS an Excuse (Part 6: GUTHRIE's Implications)

The majority opinion in Guthrie is cause for concern about independent decisionmaking at New York's highest court--about the Court's tradition of protecting fundamental rights and liberties on the basis of adequate and independent state law.

Historically, the Court of Appeals has not tied itself to whatever minimum federal protections might be set by the Supreme Court.
It has understood its right and duty to exercise its own judgment, as the final arbiter of its own state law. (See e.g., the Court's decisions excerpted in part 5.)

No, the Court has not always been true to that tradition.
The Court has sometimes lost its footing.
It did so, for example, in the late 1980's and early 1990's.
Indeed, in heated, competing opinions during those years, the Court seemed to be struggling with the very notion of having either a right or duty to exercise its own independent judgment.

Now, in the majority opinion in Guthrie, there are implications that the Court might have lost its footing again.
Not because of the bottom-line ruling in the case. (See part 4.)
But because of the Court's over-reliance on the Supreme Court's Heien decision to reach a decision about state search and seizure law.
And, beyond that, because of the Court's resort to the overly-defensive statements about independent decisionmaking from opinions during that late 1980's to early 1990's period.

But before focusing on the Guthrie majority opinion itself, let's be clear about a few truisms about our federal system of government in the United States:
  • New York's Court of Appeals (like other state high courts) is NOT an intermediate court in the federal judiciary.
  • Rather, New York's Court of Appeals (like other state high courts) IS the highest court in deciding questions about its own state law.
  • New York's Court of Appeals (like other state high courts) is NOT bound by the U.S. Supreme Court's interpretations of federal law when the Court of Appeals (like other state courts) is deciding the meaning of its own state law.
  • In fact, when it comes to deciding the meaning of New York's (or any other state's) own law, the U.S. Supreme Court has NO authority.
  • Rather, New York's Court of Appeals (like other state high courts) has the INDEPENDENT and ULTIMATE authority to decide the meaning of its own state law, without any consideration of the U.S. Supreme Court's interpretation of corresponding federal law.
  • New York's Court of Appeals (like other state high courts) must apply the U.S. Supreme Court's interpretations of FEDERAL law--when deciding questions of FEDERAL law.
  • And New York's Court of Appeals (like other state high courts)--when deciding any case--may not actually VIOLATE federal law, such rendering a decision that actually VIOLATES someone's federal constitutional rights or liberties.
  • But, New York's Court of Appeals (like other state high courts) has every right and authority to render decisions under its own STATE law that are DIFFERENT than U.S Supreme Court decisions under federal law.
  • That includes the right and authority of New York's Court of Appeals (like other state high courts) to protect constitutional rights and liberties under its own state law DIFFERENTLY--such as MORE RIGOROUSLY--under its own state law.
  • Yes, New York's Court of Appeals (like other state high courts) is perfectly free to protect constitutional rights and liberties MORE under STATE law than the Supreme Court protects them under federal law.
  • All of the foregoing are ESSENTIAL attributes of our federal form of government under the U.S. Constitution--they are axiomatic, not matters of opinion.
Now what does any of that have to do with the New York court's decision in Guthrie?

Well, it has a great deal to do with it. Specifically, with the implications of the manner in which the Court decided Guthrie. Again, not the ultimate ruling in the case--i.e., that an automobile stop based on a police officer's mistake about the law, if reasonable, is still valid.
(In fact, I have little problem with such a ruling. I do question whether the mistake in Guthrie was one of law at all [see part 4], but the concern here is about something more consequential in the long run than any mischaracterization by the Court of its holding in a single case.]

What all of that does have to do with the Guthrie decision is the Court of Appeals' near-obeisance to the Supreme Court and its decision in Heien. (See part 2 and part 3 for discussions of Heien and its implications.)

Perhaps belaboring the point for emphasis: the Court of Appeals, New York's highest court (like other state high courts), is the highest court in the nation for deciding the meaning of its own state law. That, of course, includes the state's protection of constitutional rights--in Guthrie, search and seizure protections. And yet, the Court of Appeals in Guthrie relied so heavily on the U.S. Supreme Court's Heien decision. It was as though the Supreme Court's decision on federal search and seizure rights was somehow presumptively binding on the Court of Appeals in determining state law.

Let me put it another way. In Guthrie, New York's Court of Appeals, one of the nation's truly fine courts, decided a case about the state's own search and seizure protections largely by echoing whatever the U.S. Supreme Court, a quite mediocre court today, said about federal search and seizure law.

In short, the Court of Appeals majority in Guthrie behaved as if it were an intermediate tribunal in the federal judiciary.

This should be worrisome. Not only because today's Supreme Court is, to be kind, not particularly good; and that the Court of Appeals (like many other state high courts) is so much better. But also because federalism, "dual sovereignty"--the federal-state division of authority--is one of the essential safeguards of our American constitutional governance.

But the Court of Appeals majority in Guthrie seemed almost defensive about that dual sovereignty. About the right and authority (let alone duty) of exercising independent decisionmaking. About reaching a different decision, under state search and seizure protections, than the Supreme Court reached as a matter of federal law.

From its beginning, and certainly through the tenures of Chief Judges such as Benjamin Cardozo, Cuthbert Pound, Irving Lehman and, later, Stanley Fuld, Charles Breitel, and Lawrence Cooke, the Court of Appeals was a--if not the--national leader in recognizing and exercising independent state decisionmaking. More recently, Chief Judge Judith Kaye was in the forefront, both on and off the Court, of emphasizing (and, when necessary, explaining to some of her colleagues) the right and duty of the Court of Appeals, as well as of state high courts generally, of exercising independent judgment in protecting rights and liberties under state law. And with several landmarks under his brief tenure, the current Chief Judge, Jonathan Lippman, has left no doubt that he is part of the Court's storied tradition of independent leadership.

The classic statement of the Court of Appeals' tradition--and, more generally, of the role of state high courts in our federal system of government--was penned by Chief Judge Lehman. In the landmark religious liberty decision in People v. Barber (1943), Lehman, speaking for his unanimous Court, could not have been more clear:
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Italics added.]
Twenty years later, then-Judge Fuld--whose state law decisions predated and often influenced Supreme Court rulings--was perhaps even more pointed. In People v. Donovan (1963), protecting self-incrimination and counsel rights as a matter of state constitutional law, he noted:
[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would regard its [the defendant's confession] use a violation of the defendant's rights under the Federal Constitution.
Indeed, Court of Appeals case law throughout the years is teeming with such pronouncements of independent decisionmaking.

Now contrast these, and the tradition they reflect of exercising the right and duty of independent decisionmaking, with the majority opinion in Guthrie. The Court's seeming reluctance in that case to exercise its own judgment about its own state law; its treatment of independent decisionmaking as somehow the exception and of simply adopting the Supreme Court's judgments as the rule; and the underlying misconstruing of the relationship between state and federal law and between the role of the Court of Appeals (and by extension, that of state high courts generally) and that of the Supreme Court--that is what makes the majority opinion in Guthrie so troublesome.

With that in mind, as well as the expressions by Lehman and Fuld of the Court of Appeals' tradition and proper role in our federal system of government, consider what the majority in Gutherie said. Consider how it spoke about the Court's exercise of independent judgment under its own state law, and about the possibility of reaching a different decision than the Supreme Court did under federal law:
[It] would constitute a departure from Heien...We have [] deviated, based on our state constitutional standards, from Supreme Court decisions that undermine our ability to "provide and maintain 'bright line' rules...". More fundamentally, while we have declined to adopt an "ironclad [methodology] to be rigidly applied" in determining whether separate standards are warranted, we have recognized "that we act [] properly in discharging our responsibility to support the State Constitution when we examine whether we should follow . . . as a matter of State law" any recent decision of the Supreme Court that marks a "change[ in] course..."
In Heien, the Supreme Court did not change course.
An independent decision under state law is not a "departure" from federal law. They are two separate bodies of law.
Nor is an independent decision under state law a "deviat[ion]" from a Supreme Court decision. It's a decision interpreting and applying a different body of law.
Nor is it a question about "whether separate standards are warranted." It's about the appropriate standards of protection under the state's own law--whether those standards end up being the same or different than the standards the Supreme Court sets under federal law.
And most certainly, the exercise of independent decisionmaking about one's own state law cannot depend on whether "the Supreme Court [did or] did not change course" in deciding federal law.

The majority's characterization in Guthrie of its decisionmaking about state law--i.e., what protections of constitutional rights and liberties are appropriate under state law, not federal--is a far cry from the historic expressions of the Court of Appeals' tradition and understanding of its proper role.
It is a far cry from: "in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment."
And it is a far cry from: "we find it unnecessary to consider whether or not the Supreme Court of the United States would" protect constitutional rights the same way.

The Guthrie majority's characterization, instead, is a reprise of those overly-defensive justifications for independent decisionmaking employed during that period, the late 1980's and early 1990's--years when the Court was suddenly struggling with some basic concepts of dual sovereignty in our federal system.

The sole dissent in Guthrie by Judge Jenny Rivera criticized the majority for its refusal to adopt an independent standard under state law. A standard separate from the federal one set by the Supreme Court in Heien.

One may or may not agree with Judge Rivera about the ultimate ruling in Guthrie to excuse a police officer's reasonable mistake.
[I have made clear that I agree with the majority on that.]

But it is hard to disagree with Judge Rivera that the majority, in deciding a search and seizure issue under state law in Guthrie, was far too reliant on what the Supreme Court decided about federal law in Heien. That the majority seemed far too tied to the Supreme Court's federal decision. That the majority mischaracterized state constitutional law at the Court of Appeals as requiring some special excuse to "depart" or "deviate" from Supreme Court federal rulings--as opposed to exercising the right and duty to render a judgment that is truly independent under state law.

Let's hope that the Court of Appeals majority in Guthrie didn't actually intend what it certainly seemed to say.
Let's hope that the Court of Appeals majority didn't actually intend to replace the Court's longstanding tradition of truly independent decisionmaking with the overly-defensive justifications employed during a few brief years when the Court seemed to be losing its way.

The New York Court of Appeals is a far better, wiser, more reliable court than the current Supreme Court. Independent decisionmaking under state law is a right and duty that is especially needed today.