Saldana v. State

GOLDEN, Justice,

concurring.

I concur in the majority opinion ably written by Justice Thomas. I write separately to recite my observations about independent state constitutional analysis, since that topic appears as the centerpiece of the dissenting opinion.

Appellant promised in his appellate brief to show that his telephone records and the derivative evidence were seized in violation of Wyo. Const, art. 1, § 4. 1 He described this seized evidence as being the “linchpin of the state’s case” against him. Unfortunately, his brief and argument did not fulfill the promise. He cited King v. State, 780 P.2d 943, 959 (Wyo.1989), for the proposition that Wyo. Const, art. 1, § 4 affords protection of persons from unreasonable governmental intrusion into legitimate privacy expectations. He also cited Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (Harlan, J. concurring), a Fourth Amendment case, for the same proposition. King was also a Fourth Amendment decision, not a decision based on Wyo. Const, art. 1, § 4. King, 780 P.2d at 959-61 . The state constitutional law argument goes downhill from there; to be accurate, there is no discernible state constitutional law argument in appellant’s brief.

Appellant urges us to adopt the reasoning in State v. Gunwall, 106 Wash.2d 54 , 720 P.2d 808 (1986), a leading case holding that the Washington Constitution’s analogue to the Federal Constitution’s Fourth Amendment provides greater protection than the Fourth Amendment for the privacy of telephone records. He asks us, therefore, to hold that the Wyoming Constitution provides greater protection than the Federal Constitution for his privacy interests. The problem is that appellant must do much more than ask; he must show.

*622 That also is the problem of the dissenting opinion. In its zealous rush to take the majority to task for following federal law on the search and seizure issue, it has overlooked cardinal principles of appellate judicial process and state constitutional law.

In countless decisions this court has warned litigants “[i]n the presentation of an appeal to our court, it is inadequate simply to allude to an issue or identify only a potential issue.” Kipp v. Brown, 750 P.2d 1338, 1341 (Wyo.1988). Further, we have reminded litigants:

[I]t is not the function of this court to frame appellant's argument or draw his issues for him.

This court consistently has refused to consider positions which are not supported by cogent argument or pertinent authority. We are not required to consider on appeal grounds which were neither presented to * * * nor passed upon [by the trial court].

Hance v. Straatsma, 721 P.2d 575, 577-78 (Wyo.1986) (citations omitted).

Appellant identifies the potential state constitutional issue but fails to support his claim by cogent argument or pertinent authority. This court may not frame and make his argument for him. Having found Gunwall , appellant' needed to recognize that the Washington Supreme Court analyzed the issue on state constitutional law grounds only because appellant had squarely raised, briefed, and argued the issue on those grounds. The court set out a list of useful “non-exclusive neutral criteria” which

are relevant in determining whether, in a given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution: (1) the textual language; (2) the differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.

Gunwall, 720 P.2d at 811 . I recommend this analytical technique to our practicing bar. 2

In the case at hand, appellant used neither the Gunwall analytical technique nor any other analytical technique appropriate to brief and present a state constitutional law argument. The Washington Supreme Court handles such failures swiftly and surely, as we should also. In refusing to consider the issue, that court colorfully expressed its position when it said:

As expressed by the Eighth Circuit, “Naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.” United States v. Phillips, 433 F.2d 1364,1366 (8th Cir.1970).

In re Request of Rosier, 105 Wash.2d 606 , 717 P.2d 1353, 1359 (1986).

Litigants would do well to remember: Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.

Gunwall, 720 P.2d at 813 .

Justice Robert F. Utter of the Washington Supreme Court is one of the leaders in the effort to foster and promote the development of state constitutional law. 3 Speaking for his court in a case in which the appellant had perfunctorily raised but not briefed the issue whether the self-incrimination provision of the Washington *623 Constitution conferred a right to Miranda-like warnings, Justice Utter said:

By failing to discuss at a minimum the six criteria mentioned in Gunwall , he requests us to develop without benefit of argument or citation of authority the “adequate and independent state grounds” to support his assertions. See Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983). We decline to do so consistent with our policy not to consider matters neither timely nor sufficiently argued by the parties. In re Rosier, 105 Wash.2d 606, 616 , 717 P.2d 1353 (1986).

State v. Wethered, 110 Wash.2d 466 , 755 P.2d 797, 800-01 (1988).

Most state appellate courts exercise similar judicial restraint in this important area. Justice Utter observes that “[ajlmost 80% of the state supreme court justices responding to a recent survey indicated that their court would decline to hear a state constitutional claim if the litigant failed to raise the claim below.” 4 Illustrative of this restraint are decisions from Vermont, Wisconsin, and Utah. In Vermont the court refused to consider an illegal stop and arrest claim under the Vermont Constitution, stating:

.The state constitutional issue has been squarely raised, but neither party has presented any substantive analysis or argument on this issue. This constitutes inadequate briefing, and we decline to address the state constitutional question on the basis of the record now before this court.

State v. Jewett, 146 Vt. 221 , 500 A.2d 233, 234 (1985) (citation omitted).

Justice Judith S. Kaye of the New York Court of Appeals, also a leader in this movement, agrees with that said in Jewett :

A grudging parallel citation to a state constitution, or an argument that the state particularly values the rights of its citizens, in a brief devoted to federal law does nothing to aid in the development of state jurisprudence, so that everyone can know from reading a particular state court’s decisions what factors would impel that court to decide one way or the other. Only by the customary process of research and reasoning can there be principled development of a body of state constitutional law that does not seek merely to sidestep review by the United states Supreme Court in isolated cases but one that truly supports the state constitution, as state court judges and lawyers are charged to do.

Judith S. Kaye, A Mid-Point Perspective on Directions in State Constitutional Law, 1 Emerging Issues in State Constitutional Law, 17, 24 (1988).

In Wisconsin, Justice Shirley Abraham-son, also a well-recognized leader in state constitutional law issues, 5 wrote for the court in State v. Pitsch, 124 Wis.2d 628 , 369 N.W.2d 711, 721 (1985), in deciding an issue of claimed ineffective assistance of trial counsel. She correctly observed that when the litigants present and argue a claim only under the Federal Constitution, the court must apply federal law in analyzing the claim. Pitsch, 369 N.W.2d at 718 . Because the litigants failed to develop the claim under the Wisconsin Constitution, the court properly declined to consider it on state constitutional grounds. Pitsch, 369 N.W.2d at 721 .

In Utah, another leader in this area, Justice Christine Durham, wrote for the court on a search and seizure question. 6 As had Justice Abrahamson in Pitsch , Justice Durham correctly noted that since the litigants had argued the claim on only Fourth Amendment grounds, not relying on the Utah Constitution’s analogue, the court had no choice but to consider the claim only under federal law. State v. Earl, 716 P.2d 803, 805 (Utah 1986). She pointedly wrote:

We have not considered separate state constitutional standards, even though we are aware that other states are relying *624 with increasing frequency on an analysis of the provisions of their own constitutions to expand constitutional protection beyond that mandated by the United States Supreme Court. * * * Since it was not raised here, we do not treat that question. We note, however, that despite our willingness to independently interpret Utah’s Constitution in other areas of the law, the analysis of state constitutional issues in criminal appeals continues to be ignored. It is imperative that Utah lawyers brief this court on relevant state constitutional questions. See State v. Hygh, Utah, 711 P.2d 264 (1986) (Zimmerman, J., concurring). We cite with approval the summary of scholarly commentary and analytical technique set forth by the Supreme Court of Vermont in State v. Jewett, Vt. [ 146 Vt. 221 ], 600 A.2d 233 (1985).

Earl, 716 P.2d at 805-06 (citations omitted). Accord, State v. Lafferty, 749 P.2d 1239 , 1247 n. 5 and accompanying text (Utah 1988).

The Wyoming Supreme Court continues to be willing to independently interpret the provisions of the Wyoming Constitution. But it is imperative that Wyoming lawyers properly brief this court on relevant state constitutional questions. See, e.g., Dworkin v. LFP. Inc., 839 P.2d 903, 909 (Wyo.1992), in which we (1) provided the practicing bar with a comprehensive bibliography on the subject of interpretation of state constitutions, and (2) informed the Bar that it must use a precise and analytically sound approach and provide us with the proper arguments and briefs to ensure the future growth of this important area of the law. That was not done here; therefore, the majority quite properly exercised restraint, as counseled by Justices Abrahamson, Durham, Kaye, and Utter, and declined to consider the claim on state constitutional grounds. Recourse to the Wyoming Constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring from a process that is articulable, reasonable, and reasoned. Gunwall, 720 P.2d at 813 . We look forward to developing and applying such a process.

. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by an affidavit, particularly describing the place to be searched or the person or thing to be seized.

Wyo. Const, art. 1, § 4.

. Other analytical techniques exist. See, e.g., Wallace Carson, Last Things Last: A Methodological Approach to Legal Argument in State Courts, 19 Williamette L.Rev. 641 (1983); Robert F. Utter and Sanford E. Pitler, Presenting a State Constitutional Argument, 20 Ind.L.Rev. 635 (1987).

. See, e.g., Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 157 (1984); Robert F. Utter and Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind.L.Rev. 635 (1987); Robert F. Utter, Survey of Washington Search and Seizure Law, 9 U. Puget Sound L.Rev. 1 (1985); Robert F. Utter, The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgement, 8 U. Puget Sound L.Rev. 157 (1985).

. Utter and Pitler, supra note 2, p. 639 n. 31.

. Linda Matarese, Other Voices: The Role of Justices Durham; Kaye and Abrahamson in Shaping the Methodology of the "New Judicial Federalism," 2 Emerging Issues in State Constitutional Law 239 (1989).

.Id.