State v. Hunt

PASHMAN, J.,

concurring.

I concur in all respects with the result reached by the Court in this case. I write for two specific reasons. First, I wish to underscore the importance of the privacy interests implicated here by pointing out the significant dangers to civil liberties that would be posed by unrestrained police access to personal telephone billing records. Second, and at least as important, I feel impelled to address the discussion in both the majority opinion and Justice Handler’s concurrence concerning the extent to which this Court should construe the New Jersey Constitution to offer greater protection of the fundamental rights and liberties of New Jersey citizens than that offered under the federal constitution as interpreted by the United States Supreme Court. Because I believe that both opinions define too narrowly the circumstances under which New Jersey courts should independently construe the New Jersey Constitution, I offer my own analysis of the theoretical bases of state constitutional interpretation and its limitations.

*351 I

The majority aptly describes the privacy interests of New Jersey citizens in the phone numbers they dial. The majority also persuasively refutes the reasoning offered by the United States Supreme Court for denying the privacy interests in that information. See Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979). What is missing from the majority opinion is a full appreciation of the danger of political abuse posed by unlimited police access to knowledge of whom private citizens are calling and therefore of the importance of the warrant requirement as a check on this potential for abuse. I do not mean to imply that New Jersey police have used or would use such information for other than legitimate law enforcement purposes. But the genius of our Bill of Rights is that our liberties are safeguarded not by governmental self-restraint, but by constitutional guarantee.

The case of Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Co., 593 F.2d 1030 (D.C.Cir.1978), is particularly instructive. See Discussion of Reporters Committee, ante at 347. The majority there reached a result contrary to ours and, in response, Judge Skelly Wright filed a telling dissent detailing actual abuses of toll billing records by the federal government. For example, in 1971, FBI agents involved in the Daniel Ellsburg-Pentagon Papers case were given the billing records of Richard Dudman and Knight Newspapers, affiliates of which had published portions of the Pentagon Papers. Reporters Committee, 593 F.2d at 1080 . That same summer, in an attempt to learn the source of an embarrassing article by Jack Anderson about Spiro Agnew, the FBI, at the behest of the White House, obtained the billing records of Anderson and three of his employees. Id. In one instance, a Jack Anderson source lost his job as a city attorney when his phone number appeared on Anderson’s billing records. Id. at 1090-91, n.27 . Finally, upon learning that David Rosenbaum of The New York Times had information about the suppression of an IRS investigation for political reasons, the IRS *352 sought billing records “not only for Mr. Rosenbaum’s telephone, but for all the telephones of the entire staff of the Washington Bureau of The New York Times for a six-month period.” Id. at 1080-81 .

Judge Wright focused on the dangers that unrestrained government access to billing records can pose for freedom of the press. Such access can penalize sources for stories that embarrass or criticize government officials and deter other sources from coming forward. Reporters Committee, 593 F.2d at 1090-91 . Our holding in this case thus adds an important bulwark to New Jersey’s strong protection of the confidentiality of press sources. See Maressa v. New Jersey Monthly, 89 N.J. 176 (1982).

Other improper political uses of billing records are certainly imaginable. In NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958), the Supreme Court held that the State of Alabama could not require the NAACP to turn over its membership lists because the publication of that list could subject the members to harassment, in effect penalizing them for a protected political association. Government access to the billing records of such protected political organizations would allow government to accomplish indirectly what the First Amendment prohibited it from doing directly.

Even aside from these potential political abuses, the names of whom one calls are, as Justice Schreiber points out, an extremely private matter that no citizen should be required to disclose without probable cause that a crime was or will be committed.

The requirement that police obtain a warrant before seizing toll billing records is at most a minimal burden that in no way intrudes upon legitimate police activity. There is no danger that billing records will be destroyed or secreted during the time needed to get a warrant. Yet this simple requirement can go a long way towards preventing abuses of the type detailed by Judge Wright in Reporters Committee.

*353 II

For quite a few years, this Court, and other state courts across the country, have been construing state constitutions to extend a greater measure of protection for fundamental constitutional rights than the United States Constitution has been construed to afford. See the cases collected in Justice Handler’s concurrence, ante at 340-342. We have done so on the basis of provisions in our constitution not found in the federal constitution, see, e.g., Robinson v. Cahill, 62 N.J. 473 (1973), cert. den. sub nom. Dickey v. Robinson, 414 U.S. 976 , 94 S.Ct. 292 , 38 L.Ed.2d 219 (1973) (“thorough and efficient” education clause), or on the basis of provisions virtually identical to federal provisions, see, e.g., State v. Johnson, 68 N.J. 349 (1975) (freedom from “unreasonable searches and seizures”). We have not hesitated to do this in the face of directly contrary United States Supreme Court decisions. In Robinson v. Cahill , we rejected the holding in San Antonio School District v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973), and here we essentially reject Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979).

That this Court has the power to construe the New Jersey Constitution to reach results contrary to United States Supreme Court decisions construing the federal constitution is not controverted. Each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 , 100 S.Ct. 2035, 2040 , 64 L.Ed. 2d 741 (1980). See Oregon v. Hass, 420 U.S. 714, 718 , 95 S.Ct. 1215, 1218 , 43 L.Ed.2d 570 (1975); State v. Alston, 88 N.J. 211 (1981); Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv.L.Rev. 489 (1977) (“State Constitutions”). Of course, the State constitution cannot contravene a federally guaranteed constitutional right any more than a state statute can. Thus, the United States Constitution as construed by the United States Supreme Court establishes the minimum degree of protection a state must give to constitutional rights. At the same time, state constitutions may provide further *354 protection for individual liberties by limiting state powers to a greater degree than they are limited by the federal constitution. In deciding the appropriate extent of this protection, this Court is the final arbiter of the meaning of the New Jersey Constitution.

This Court has not to date set forth any rules, principles or theories explaining when it will go beyond the federal courts in protecting constitutional rights and liberties. Our cases have merely stated our undoubted power to construe the New Jersey Constitution in accord with our own analysis of the particular right at issue. See, e.g., State v. Alston, 88 N.J. at 226 (standing to assert Fourth Amendment rights); State v. Schmid, 84 N.J. 535, 558-60 (1980) (First Amendment rights on a private university campus); State v. Saunders, 75 N.J. 200, 216-17 (1977); State v. Johnson, 68 N.J. at 353 .

Consequently, I applaud Justice Handler’s thoughtful effort to rationalize our cases in this area and to analyze when divergent state and federal constitutional interpretations are appropriate. However, I disagree with his analysis. In his view, this Court should adhere to the federal constitutional interpretation unless one of several factors is present showing that a different interpretation is of special concern to New Jersey. The factors listed include differences in the texts of the two constitutions, pre-existing state law and distinctive state traditions and public attitudes. Although the factors listed are potentially broad, they impose clear limits. At bottom, Justice Handler’s approach effectively entails a presumption against divergent interpretations of our constitution unless special reasons are shown for New Jersey to take a path different from that chosen at the federal level. 1 Similarly, the majority here suggests that “[d]i *355 vergent interpretations are unsatisfactory,” ante at 345, absent “[s]ound policy reasons.” Ante at 345.

I would reverse the presumption. As a general rule, this Court should construe the New Jersey Constitution as it considers appropriate, taking into account the various factors that constitute sound constitutional analysis. United States Supreme Court opinions, both majority and dissenting opinions, can be valuable sources of wisdom for us. But this Court should not uncritically adopt federal constitutional interpretations for the New Jersey Constitution merely for the sake of consistency. Of course, there are certain situations and contexts that, for policy reasons, call for uniform national rules. In those circumstances, the need for uniformity should be weighed into the balance, with the possible result that we will conform to the federal rule when we would not otherwise have done so.

Stated succinctly, Justice Handler urges that we follow federal constitutional interpretation unless there are particular reasons to diverge from it. I believe there are several strong reasons why this Court should perform an independent constitutional analysis unless there are particular reasons to conform.

The simplest but perhaps most compelling reason for extending state constitutional rights beyond their federal counterparts is that it strengthens the constitutional safeguards of fundamental liberties. “[0]ne of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens.” Brennan, “State Constitutions,” 90 Harv.L.Rev. at 503. When this Court considers that important constitutional rights are inadequately protected by the federal constitution, we have an obligation under the State Constitution to supply that protection. The virtue of independent sources of constitutional protection is that, as Justice Brennan stated, quoting James *356 Madison, “independent tribunals of justice ‘will be naturally led to resist every encroachment upon rights....”’ 90 Harv.L.Rev. at 504. The New Jersey Constitution is a separate fount of liberty, and we must enforce it. 2

A second reason for extending state constitutional interpretation beyond the limits imposed at the federal level derives from the resultant diversity of constitutional analysis. The majority and Justice Handler assume without explanation that uniformity in constitutional law is an unqualified advantage. However, as one commentator has stated, “Rather than threaten the federal system, such a process [of state constitutional law] is more likely to create a healthy debate over the interpretation of federal law.” “Developments in the Law — The Interpretation of State Constitutional Rights,” 95 Harv.L.Rev. 1324, 1396. Similar constitutional concepts can be developed in a variety of ways. The path chosen by the United States Supreme Court is not necessarily the best, the most protective of our constitutional rights, or the most reflective of the intent of the Framers. See Levenson, “ ‘The Constitution’ in American Civil Religion,” 1979 The Supreme Court Review 123, 140-41. 3 State supreme courts, if not discouraged from independent constitutional analysis, can serve, in Justice Brandéis’ words, “as a laboratory” testing competing interpretations of constitutional concepts that may better serve the people of those states. See New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11 , 52 S.Ct. 371 , 386, 76 L.Ed. *357 747 (1931) (Brandéis, J., dissenting)'. In our federal system, there is strength in diversity and competition of ideas. 4

A third important reason for extending our interpretation of constitutional rights beyond that offered by the United States Supreme Court is that we do not share the strong limitations perceived by that Court in its ability to enforce constitutional protections aggressively. Those limitations arise from the structure of our federal system, the Court’s role as final arbiter of at least the minimum scope of constitutional rights for a vastly diverse nation, and the Court’s lack of familiarity with local conditions. These difficulties do not similarly limit state courts.

In our federal system, many important governmental roles and decisions are reserved for the states. It is believed therefore that unduly “activist” enforcement of constitutional rights by the federal courts impinges on important state prerogatives. Justice Brennan, in his now famous article, explains that the Supreme Court has repeatedly allowed concerns of federalism to “limit the protective role of the federal judiciary.” 90 Harv.L. Rev. at 503.

Yet, the very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. [Brennan, 90 Harv.L.Rev. at 503]

This Court has repeatedly recognized the significance of these federalism concerns and of the fact that they do not similarly limit this Court. Chief Justice Weintraub noted this in analyzing the state equal protection claim in Robinson v. Cahill .

The question whether the equal protection demand of our State Constitution is offended remains for us to decide. Conceivably a State Constitution could be more demanding. For one thing, there is absent the principle of federalism which cautions against too expansive a view of a federal constitutional limitation upon the power and opportunity of the several States to cope with their own problems in the light of their own circumstances. The majority in Rodriguez expressly noted that “every claim arising under the Equal Protection Clause has *358 implications for the relationship between national and state power under our federal system,” adding that “it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State” ( 93 S.Ct. at 1302 ) [ 62 N.J. 490 -91]

See also State v. Schmid, 84 N.J. at 559 , 423 A.2d 615 ; State v. Saunders, 75 N.J. at 217 . The presumption against state constitutional interpretation offered by my colleagues fails to recognize this important consideration.

The United States Supreme Court has also been hesitant to impose on a national level far-reaching constitutional rules binding on each and every state. This reluctance derives, first, from the nationwide jurisdiction of the Court. Once it settles a rule, experimentation with different approaches is precluded. See San Antonio School District v. Rodriguez, 411 U.S. at 43 , 93 S.Ct. at 1302 ; 95 Harv.L.Rev. at 1348-51. Further, the Supreme Court has adverted to its lack of familiarity with local problems and conditions as a reason for hesitance. San Antonio School District v. Rodriguez, 411 U.S. at 41 , 93 S.Ct. at 1301 . Again, this applies with far less force at the state level.

For these various reasons, we should not be reluctant to engage in independent state constitutional analysis. None of our prior cases in this area has suggested hesitance, and there is no reason for it. Where this Court perceives that the federal constitution has been construed to protect the fundamental rights and liberties of our citizens inadequately, it cannot shrink from its duty to act. The New Jersey Constitution provides the citizens of this state with a fully independent source of protection of fundamental rights and liberties. It is our role alone to say what those rights are, and it is our solemn obligation to enforce them.

I recognize that Justice Handler does not believe that the effect of his analysis would be to create a presumption against independent state constitutional analysis, ante at 349, but his opinion can be read to provide precisely that. It appears that he would find divergence from the federal constitution improper unless one of the standards he sets forth is met. To the extent this *355 is true, he is creating a presumption that can only be overcome by fitting the case within one of those standards.

We recognized this in State v. Alston, 88 N.J. at 226 , in a forthright opinion by Justice Clifford:

Because we find that these recent decisions of the Supreme Court provide persons with inadequate protection against unreasonable searches and seizures, we respectfully part company with the Supreme Court’s view of standing and construe Article I, paragraph 7 of our State Constitution to afford greater protection.

As discussed below, the United States Supreme Court clearly perceives reasons for conservatism in enforcement of constitutional rights that do not apply to state courts.

As noted above, there are realms of constitutional law in which uniformity is an important interest and therefore must be considered. Absent such circumstances, however, we should not pursue uniformity for its own sake.