Amicus Curiae Brief — Ohio v. Robinette

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Supreme Court, us. |

- FILED

No. 95-891 WM 6 1996

In The

Supreme Court of the United States

October Term, 1995

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STATE OF OHIO,

Petitioner,

ROBERT D. ROBINETTE,

Respondent.

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On Writ Of Certiorari

To The Ohio Supreme Court

¢

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF RESPONDENT,

SUGGESTING DISMISSAL OF WRIT

AS IMPROVIDENTLY GRANTED

o

SHERYL GorDON McC.Loup

Law Orrices or SHERYL GORDON

McC.Loup

1111 Third Avenue, Suite 1060

Seattle, WA 98101

(206) 224-8777

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers

QUESTION PRESENTED

In Michigan v. Long, 463 U.S. 1032 (1983), the Court

held that when a state court cites both state and federal

grounds for its decision, this Court would presume the

state grounds are not “adequate and independent”

enough to preclude review unless the state case contained

a “plain statement” that the federal cases “do not them-

selves compel the result.” In Coleman v. Thompson, 501

U.S. 722 (1991), the Court declined to apply such a con-

clusive presumption in favor of review to habeas corpus

cases. Instead, the Court relaxed the presumption of

reviewability to respect the pre-eminent role of state

courts in correcting their own errors, to reflect more

accurately the state court’s intent, to avoid unnecessary

costs of review, and to maintain symmetry between this

Court’s 28 U.S.C. § 1257 jurisdiction and the lower courts’

28 U.S.C. § 2254 jurisdiction.

Should the presumption of reviewability by this

Court of direct appeal cases also be relaxed, to further

achieve the values animating Coleman v. Thompson, and

does that warrant dismissal of the writ in this case?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..........-.--+eeeeeeeees iv

INTEREST OF THE AMICUS ...........000eeeeeees 1

SUMMARY OF ARGUMENT...........---+000e0ees 2

ARGUMENT .....ccccccccccccccccssccsscssseseeeee 5

I.

II.

THE DEVELOPMENT OF THE ADEQUATE

AND INDEPENDENT STATE GROUND DOC-

TRINE DEMONSTRATES THAT THE PRE-

SUMPTION OF REVIEWABILITY IN HABEAS

CORPUS CASES IS NEITHER IRREBUTTABLE

NOR UNIVERSALLY APPLICABLE..........

THE VALUES ANIMATING THE MICHIGAN

V. LONG PRESUMPTION OF REVIEWABILITY

ON DIRECT APPEAL ARE ILL-SERVED IN

MANY CASES BY A CONCLUSIVE PRE-

SUMPTION .....-ccccsccccccscssssssuseneene

A. The Goals of the Presumption of Reviewability

B. The Goal of Accurately Reflecting the State

Court's Intent is Ill-Served by a Conclusive

Presumption of Reviewability Where a State

Rule of Interpretation Shows that the State

Court Meant to Base its Decision on State

C. The Goal of Saving the Costs of Unnecessary

Review is Ill-Served by a Conclusive Pre-

sumption of Reviewability Where a State Rule

of Interpretation Shows that the State Court

Meant to Base its Decision on State Law...

12

IV.

TABLE OF CONTENTS - Continued

Page

D. The Goal of Symmetry Between this Court's

§ 1257 Jurisdiction and the Lower Courts’

§ 2254 Jurisdiction is Ill-Served by a Conclusive

Presumption of Reviewability Where Habeas

Review of the Issue is Unavailable...........

A CONCLUSIVE PRESUMPTION OF

REVIEWABILITY IS LEAST JUSTIFIED WHERE,

AS HERE, REVIEW IMPROPERLY GRANTED

PRESENTS A JURISDICTIONAL DEFECT, NOT

JUST A PRUDENTIAL ISSUE................

THE PRESUMPTIONS AGAINST FEDERAL

COURT AND SUPREME COURT JURISDIC-

TION, OF CONSTITUTIONAL AVOIDANCE,

AND THE GOAL OF COMITY ALSO COUN-

SEL AGAINST A CONCLUSIVE PRESUMP-

TION OF REVIEWABILITY HERE ...........

THIS COURT SHOULD HOLD THAT MICHI-

GAN V. LONG'S PRESUMPTION OF

REVIEWABILITY OF DIRECT APPEAL

CASES, LIKE COLEMAN V. THOMPSON'S

PRUSUMPTION OF REVIEWABILITY ON

HABEAS, IS NEITHER IRREBUTTABLE NOR

UNIVERSALLY APPLICABLE - IT IS REBUT-

TED OR INAPPLICABLE WHERE, AS HERE,

A WELL-ESTABLISHED STATE RULE OF

INTERPRETATION SHOWS THAT THE STATE

GROUND OF DECISION IS ADEQUATE AND

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ren ic cess eeeeesscccccccece:

16

17

20

iv

TABLE OF AUTHORITIES

Page

Cases

Arizona v. Evans, 514 U.S. __, 115 S.Ct. 1185 (1995)

ococébudeesontsdsndesesesccuckensensenaa 7, 13, 25

SPE occcccccoccecccccecccscensseséuqseneasencese 12

Berman v. United States, 378 U.S. 530 (1964) ......... 20

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .... 21

Capital Cities Media, Inc. v. Toole, 466 U.S. 378

SEED n6 cccdccencouensscesesveskéueisossbencesebe< 25

Carlisle v. United States, _. U.S. __, 1996 WL

Se CAMB FD, BOGE ccc cccccccccesesescccesscses 20

Coleman v. Thompson, 501 U.S. 722 (1991)........ passim

Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S.

BD Ges edccuncancdccuessbaccssbouasssasebeces 8, 19

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ......... 20

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ......... 5

Harris v. Reed, 489 U.S. 255 (1989).................. 6, 8

Herb v. Pitcairn, 324 U.S. 117 (1945) ................. 18

Jean v. Nelson, 472 U.S. 846 (1985). ...............5.. 22

King Iron Bridge & Mfg. Co. v. County of Otoe, 120

See SP GD ccceccncepshccciscencensnakenseenes< 20

wt re Indian Cemetery Protective Ass‘n,

es Gr Cs nck cncdanecbdnedcts coonscecess 21

Mapp v. Ohio, 367 U.S. 643 (1961) ................... 17

Michigan v. Long, 463 U.S. 1032 (1983)........... passim

Vv

TABLE OF AUTHORITIES - Continued

Page

Michigan v. Sitz, 496 U.S. 444 (1990)................. 13

Minnesota v. Nat'l Tea Co., 309 U.S. 551 (1940)..... 5, 23

Ohio v. Gallagher, 425 U.S. 257 (1976).............04.. 4

People v. Pettingill, 145 Cal. Kptr. 861, 21 Cal.3d

ly SUP SUE GP GUE ccccccesecnecccccceccscess 11

Peretz v. United States, 501 U.S. 923 (1991)........... 21

Seminole Tribe of Florida v. Florida, ___ U.S. ___, 116

DE Bee GPE wave tcckecdeccscccccececcse 2, 15, 24

Sitz v. Dept. of State Police, 193 Mich. APP. 690, 485

N.W.2d 135 (1992), aff'd, 443 Mich. 744, 506

SRD GE GUNUEe o Voces sucecccueccewcoscssescces 13

Sitz v. Dept. of State Police, 170 Mich. App. 433, 429

FETED BP Gc occ cccvecccuccccessecccsscccees 13

Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972) .... 22

South Dakota v. Neville, 459 U.S. 553 (1983).......... 14

State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983)...... 11

State v. Claxton, __ P.2d ___, 1996 WL 185759 (Or.

App. Age. 17, 19D) ....ccccccccccccccvccsessceess 10

State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d

SD GE Fe cc cccccecvcevcccevcosesessesesesees 10

State v. Johnson, 128 Wash.2d 431, 909 P.2d 293

BEE viv cvevcitccccecesoscccceccecccncceoces ves »- £8

State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) .... 11

State v. Neville, 312 N.W.2d 723 (1981).............-. 14

State v. Neville, 346 N.W.2d 425 (1984).............-- 14

State v. Opperman, 247 N.W.2d 673 (1976)......... 11, 14

vi

TABLE OF AUTHORITIES - Continued

Page

Stone v. Powell, 428 U.S. 465 (1976).................. 17

State v. Robinette, 73 Ohio St.3d 650, 653 N.E.2d

PEP En cdnodsncddsnctcsnccssbencvendaussesevees 9

United States v. Lopez, __ U.S. ___, 115 S.Ct. 1624

SP Such cescecetcccndcheckvonewondonpeebeeceseéss 2

West v. Atkins, 487 U.S. 42 (1988) ................... 22

Williamson Heater Co. v. Radich, 128 Ohio St. 124,

ee Sees GP CE cc venccucsenecasedenesecsdcccécs 9

Ylst v. Nunnemaker, 501 U.S. 797 (1991)............ 7, 24

STATUTES

SP ge OF MP bb dcctccccscesetcsennsocceseens passim

Se Se OP SEED onde ccnndesecasceanucensadssoned 2

Bee Ges SRD cncéedsenccénnsedssuenadscdboosss ® 3

BaP Wee Oh Moen sceesccbecuctcsens 1, 3, 8, 16, 17, 19

ES GE SOdkckhoctcuddsdeneusdaleenccndunsans 14

CONSTITUTIONAL PROVISIONS

eh GED adncadéncuechaduesenseéddbaeessenes 11

sans don dedeanennnsedesuacesénus 16

en dciccéccdeséucenhesvensesess 11

South Dakota Constitution ................ccceeeees- 11

ey SD occ tcbiennddhodeducscuducéecs 13

INTEREST OF THE AMICUS!

The National Association of Criminal Defense Law-

yers (“NACDL”) is a District of Columbia non-profit

corporation with a membership of more than 9000 attor-

neys and 30,000 affiliate members, including representa-

tives from every state of the Union. The American Bar

Association awards NACDL full representation in its

House of Delegates.

NACDL was founded over thirty-five years ago to

ensure justice and due process for persons accused of

crime; to foster the integrity, independence and expertise

of the criminal defense profession; and to promote the

proper and fair administration of criminal justice. As part

of its mission, NACDL strives to defend individual rights

and liberties, whether they are guaranteed by the United

States or by one of the fifty states.

This case raises the question whether this Court

should adhere to a conclusive presumption of

reviewability of certain state court decisions in criminal

cases on direct appeal, when that presumption may con-

flict with the language and context of the state court

opinion, may impose substantial costs of additional

review on the states, and is unnecessary to further the

goal of symmetry between this Court’s 28 U.S.C. § 1257

jurisdiction and the federal courts’ 28 U.S.C. § 2254 juris-

diction. This is an issue that can - as in this case - have

substantial impact upon the state courts’ protection of

1 The parties have consented to the filing of this brief

pursuant to Rule 37.3 of the Rules of this Court. A copy of their

letters giving written consent are being filed with the Court.

individual rights and liberties against government inter-

ference and, hence, it is an issue that falls within

NACDL’s core concerns.

SUMMARY OF ARGUMENT

This year, the Court has once again recognized the

right of the states to be free from federal Congressional

intrusion, absent a clear Constitutional mandate justify-

ing the federal action. Seminole Tribe of Florida v. Florida,

___ US. __, 116 S.Ct. 1114 (1996) (overruling holding of

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), that

Congress has power under Interstate Commerce Clause

to abrogate states’ Eleventh Amendment immunity and

subject states to federal court jurisdiction). Accord United

States v. Lopez, __ U.S. __, 115 S.Ct. 1624 (1995) (Con-

gress exceeded its authority under the Commerce Clause

when it enacted the Gun-Free School Zones Act, because

gun possession in or near schools is unrelated to com-

merce or commercial activity).

This year, Congress acknowledged the pre-eminent

role of the state courts in adjudicating constitutional

issues in state criminal cases, by passing habeas corpus

legislation limiting the jurisdiction of the lower federal

courts to review such decisions. E.g., 28 U.S.C. § 2254(b)

(codifying exhaustion requirements); 28 U.S.C. § 2254(d)

(requiring deference to state court adjudication of federal

constitutional issues); 28 U.S.C. § 2254(e) (requiring def-

erence to state court adjudication of factual issues); 28

U.S.C § 2244(d)(1) (new statute of limitations); 28 U.S.C.

§ 2253(c) (limiting appellate review absent certificate of

appealability issued by circuit judge).

This Court in Coleman v. Thompson, 501 U.S. 722

(1991), similarly acknowledged the critical role of the

state courts in correcting their own errors, including con-

stitutional errors, in state criminal cases. Coleman accom-

plished this by rejecting an absolute presumption of

federal reviewability on habeas corpus in cases where

federal grounds are discussed in a state court decision. Id.

at 735-36.

NACDL respectfully suggests that Michigan v. Long,

463 U.S. 1032 (1983), with its conclusive presumption of

reviewability on direct review of certain state court deci-

sions, is now out of step. A conclusive presumption of

reviewability fails to respect the state court’s intent where

the state court’s language and a well-established state

rule of interpretation (here, Ohio’s “syllabus rule”) show

that the state court meant to base its decision on state

grounds (even without a “plain statement” in the words

prescribed by Michigan v. Long). A conclusive presump-

tion of reviewability also fails to achieve the goal of

saving unnecessary costs of review in this context: it can

trigger further state review under state law. Further, a

conclusive presumption fails to achieve the goal of sym-

metry between this Court’s 28 U.S.C. § 1257 jurisdiction

and the federal courts’ 28 U.S.C. § 2254 jurisdiction -

granting parties no greater access to federal review via

§ 2254 than § 1257 - where no federal review at all is

available under § 2254. That is precisely the case here, as

we explain below.

Making Michigan v. Long’s presumption of review-

ability a rebuttable one would enable this Court to weigh

a factor, such as a state rule of interpretation which

suggests the state court’s decision was based on indepen-

dent state grounds, in a particular case. This is especially

important under 28 U.S.C. § 1257, where the adequate

and independent state ground rule precluding review of

a state high court decision is jurisdictional, and an erro-

neous grant of jurisdiction would implicate this Court’s

power to act. The fact that the ordinary presumption of

this Court is against jurisdiction, that the general rule is

one of constitutional avoidance, and that the presumption

of reviewability is supposed to accord deference to state

court determinations (not state prosecutorial determina-

tions), also support a relaxation of the presumption of

reviewability here.

Amicus therefore respectfully suggests that the pre-

sumption of reviewability should be rebuttable where, as

here, this Court considers reviewing a state court deci-

sion that cites state and federal law, but lacks a Michigan

v. Long “plain statement” that the state law holding is

adequate and independent of federal law. The presump-

tion is rebutted in this case because the state court's

language, when construed in light of a clear and well-

established state court rule of interpretation, Ohio’s “syl-

labus” rule, shows that the Ohio Supreme Court intended

to base its decision on independent state grounds. The

writ should therefore be dismissed. Alternatively, given

the points we raise, amicus suggests vacating the state

court’s judgment and remanding for clarification.

me @

ARGUMENT

I. THE DEVELOPMENT OF THE ADEQUATE AND

INDEPENDENT STATE GROUND DOCTRINE

DEMONSTRATES THAT THE PRESUMPTION OF

REVIEWABILITY IN HABEAS CORPUS CASES IS

NEITHER IRREBUTTABLE NOR UNIVERSALLY

APPLICABLE

A state court judgment based on independent and

adequate state grounds is insulated from federal review.

Minnesota v. Nat'l Tea Co., 309 U.S. 551 (1940); Fox Film

Corp. v. Muller, 296 U.S. 207, 210 (1935).

In Michigan v. Long, 463 U.S. 1032, however, this

Court created a presumption in favor of Supreme Court

review following direct appeal when a state court cites

both federal and state law in support of its holding. The

state court must take the affirmative step of stating that it

has cited federal decisions only for “the purpose of guid-

ance” on state law to avoid this presumption:

[W]hen, as in this case a state court decision

fairly appears to rest primarily on federal law,

or to be interwoven with federal law, and when

the adequacy and independence of any possible

state law ground is not clear from the face of the

opinion, we will accept as the most reasonable

explanation that the state court decided the case the

way it did because it believed that federal law

required it to do so. If a state court chooses merely

to rely on federal precedents as it would on the

precedents of all other jurisdictions, then it need

only make clear by a plain statement in its judg-

ment or opinion that the federal cases are being

used only for the purpose of guidance, and do not

themselves compel the result that the court has

reached.

Id. at 1041 (emphasis added). This presumption assumes

that there are no inderp -ndent and adequate state grounds

when the state court does not clarify that its state holding

is independent of the cited federal cases. Id. at 1042.

Notably, however, this Court in Michigan v. Long, 463

U.S. 1032, also recognized that there may be times when

such a conclusive presumption is unwarranted: “There

may be certain circumstances in which clarification is

necessary or desirable, and we will not be foreclosed

from taking the appropriate action.” Id. at 1041, n.6

(emphasis added).

Thereafter, in Harris v. Reed, 489 U.S. 255 (1989), this

Court applied Michigan v. Long’s “plain statement” rule to

cases pending on federal habeas corpus review. In Cole-

man v. Thompson, 501 U.S. 722, 734-35, this Court reiter-

ated the presumption’s applicability to the question of

independent and adequate state grounds for procedural

default on habeas corpus review: “In habeas, if the deci-

sion of the last state court to which the petitioner pre-

sented his federal claims fairly appeared to rest primarily

on resolution of those claims, or to be interwoven with

those claims and did not clearly and expressly rely on an

independent and adequate state ground, a federal court

may address the petition.” Id.

Coleman v. Thompson, however, also made clear that a

conclusive presumption of federal court reviewability is

not always applicable in habeas cases. As this Court

explained in Coleman: “(W]e will not impose on state

courts the responsibility for using particular language in

every case in which a state prisoner presents a federal

claim — every state appeal, every denial of state collateral

review — in order that federal courts might not be both-

ered with reviewing state law and the record in the case.”

Id. at 739 (emphasis added). The presumption of

reviewability did not apply in Coleman, notwithstanding

the absence of a “plain statement” in the state court's

opinion that its state law holding was independent and

adequate, since the Virginia Supreme Court's dismissal of

review “fairly appear[ed]” to rest primarily on state law.

Coleman, 501 U.S. at 740-41.

Similarly, this Court has held that a conclusive pre-

sumption of reviewability does not apply to unexplained

summary dispositions by state courts in habeas corpus

cases. Yist v. Nunnemaker, 501 U.S. 797, 804-05 (1991)

(adopting rebuttable, “look-through” presumption for

determining whether independent and adequate state

grounds barred federal habeas review where final state

court’s order is unexplained).

Thus, while this Court has retained Michigan v. Long’s

presumption in favor of this Court’s jurisdiction over

dissent, see, e.g., Arizona v. Evans, 514 U.S. __, 115 S.Ct.

1185, 1197 (1995) (Ginsburg, J., with whom Stevens, J.,

joins, dissenting), this Court has also made clear that in

habeas corpus cases, the presumption is neither univer-

sally applicable nor conclusively irrebuttable. This case

presents the question whether the presumption of

reviewability ought to have equivalent exceptions in

direct appeal cases.

Il. THE VALUES ANIMATING THE MICHIGAN V.

LONG PRESUMPTION OF REVIEWABILITY ON

DIRECT APPEAL ARE ILL-SERVED IN MANY

CASES BY A CONCLUSIVE PRESUMPTION

A. The Goals of the Presumption of Reviewability

The Michigan v. Long presumption seeks to achieve

several goals. It aims to reflect accurately the state court's

intent in most cases. Coleman v. Thompson, 501 U.S. 722,

737; Michigan v. Long, 463 U.S. 1032, 1041 (“when the

adequacy and independence of any possible state law

ground is not clear from the face of the opinion, we will

accept as the most reasonable explanation that the state

court decided the case the way it did because it believed

that federal law required it to do so”). See Harris v. Reed,

489 U.S. 255, 276 (Kennedy, J., dissenting) (citing Michigan

v. Long and questioning whether the “most reasonable

explanation” for a state court’s decision to cite a pro-

cedural bar is really that the court intended to ignore the

bar).

The presumption is supposed to avoid unnecessary

costs of review. Coleman v. Thompson, 501 U.S. 722, 737 (a

conclusive presumption, like that of Michigan v. Long, 463

U.S. 1032, should avoid the costs of excessive inquiry

where a per se rule will achieve correct results in almost

all cases). Accord Continental T.V., Inc. v. GTE Sylvania,

Inc., 433 U.S. 36, 50 n.16 (1977).

The presumption is also supposed to preserve sym-

metry between the scope of this Court’s § 1257 review

and the scope of the federal courts’ § 2254 review. Cole-

man v. Thompson, 501 U.S. 722, 730-31.

B. The Goal of Accurately Reflecting the State

Court's Intent is Ill-Served by a Conclusive Pre-

sumption of Reviewability Where a State Rule

of Interpretation Shows that the State Court

Meant to Base its Decision on State Law

The goal of accurately reflecting the state court's

intent is ill-served by a conclusive presumption of

reviewability where a state rule of interpretation shows

that the state court intended to rely on state law (even

absent a Michigan v. Long “plain statement” to that effect).

That is precisely the case here. Ohio’s clear and long-

standing “syllabus rule” provides that the holding lodged

in the syllabus of the Ohio Supreme Court’s decision

constitutes the holding of the case — and the only holding

of the case. Williamson Heater Co. v. Radich, 128 Ohio St.

124, 126, 190 N.E. 403, 404 (1934). See Ohio v. Gallagher,

425 U.S. 257, 259 (1976) (“We also note that, except for per

curiam opinions, it is the settled rule in Ohio that its

Supreme Court speaks as a court only through the syllabi

of its cases.”) (citations omitted). In State v. Robinette,

syllabus number 2 states, in full:

The right, guaranteed by the federal and Ohio

Constitutions, to be secure in one’s person and

property requires that citizens stopped for traf-

fic offenses be clearly informed by the detaining

officer when they are free to go after a valid

detention, before an officer attempts to engage

in a consensual interrogation. Any attempt at

consensual interrogation must be preceded by

the phrase “At this time you legally are free to

go” or by words of similar import.

Id., 73 Ohio St.3d 650, 650-51, 653 N.E.2d 695, 696 (1995)

(emphasis supplied). Since the syllabus states that the

10

court rests its decision on the Ohio Constitution as well

as the U.S. Constitution, and since the Ohio syllabus rule

provides that the syllabus contains the holding of the

case, the conclusion is inescapable that the Ohio Supreme

Court meant to hold that it relied in equal measure on its

own constitution and the U.S. Constitution for its hold-

ing.?

Ohio is not unique in having a state rule of inter-

pretation explaining how to determine the content of the

state court’s holding. Other states also have rules of

interpretation designed to clarify the holdings of their

decisions. Some are a clear response to the Michigan v.

Long “plain statement” rule. The New Hampshire

Supreme Court, for example, has stated: “We hereby

make clear that when this court cites federal or other

State court opinions in construing provisions of the New

Hampshire Constitution or statutes, we rely on those

precedents merely for guidance and do not consider our

2 The fact that the state court based its decision concerning

the scope and duration of a traffic stop on state law is

unexceptional. Other state courts have based similar

conclusions on state law. See, e.g., State v. Claxton, ___ P.2d __,

1996 WL 185759 (Or. App. Apr. 17, 1996) at *2 (state law

allowing police to “investigate and verify” identity of person

who fails to produce license may provide independent basis for

seeking consent to search, which is normally precluded in a

routine traffic stop that is limited in scope and duration to the

traffic problem that caused the stop, if officer was subjectively

motivated by purpose of determining identity); State vo.

Dominguez-Martinez, 321 Or. 206, 212, 895 P.2d 306, 309 (Or.

1995) (when police stop a vehicle for a traffic violation, they

may investigate only that violation unless some independent

basis for broadening the scope of the stop is shown; based on

state statute).

11

results bound by those decisions.” State v. Ball, 124 N.H.

226, 233, 471 A.2d 347, 352 (1983). Similarly, the Oregon

Supreme Court has said: “Lest there be any doubt about

it, when this court cites federal opinions in interpreting a

provision of Oregon law, it does so because it finds the

views there expressed persuasive, not because it con-

siders itself bound to do so by its understanding of

federal doctrines.” State v. Kennedy, 295 Or. 260, 267, 666

P.2d 1316, 1321 (1983). And the Washington Supreme

Court has explained that when it interprets a state consti-

tutional provision first, prior to addressing an analogous

federal claim, it does so “to develop a body of independent

jurisprudence because considering the United States Con-

stitution first would be premature.” State v. Johnson, 128

Wash.2d 431, 909 P.2d 293, 301 (1996) (emphasis added)

(citation omitted).*

The goal of accurately reflecting the state court's

intent is not furthered by a conclusive presumption of

3 See also People v. Pettingill, 145 Cal. Rptr. 861, 21 Cal.3d

231, 578 P.2d 108, 118 (1976) (“The construction of a provision of

the California Constitution remains a matter of California law

regardless of the narrower manner in which decisions of the

United States Supreme Court may interpret provisions of the

federal constitution. . . . Indeed our Constitution expressly

declares that ‘rights guaranteed by the Constitution are not

dependent on those guaranteed by the United States

Constitution.’ ”) (citing Cal. Const. art. 1, § 24) (emphasis

added); State v. Opperman, 247 N.W.2d 673, 674 (1976) (“This

court is the final authority on interpretation and enforcement of

the South Dakota Constitution. We have always assumed the

independent nature of our state constitution regardless of any

similarity between the language of that document and the

federal constitution.”) (emphasis added).

12

reviewability where, as here, a state rule of interpretation

shows that the state court meant to base its decision on

adequate and independent state grounds, even absent a

Michigan v. Long “plain statement” in each case to that

effect. A rebuttable presumption, which would allow this

Court to consider a state rule of interpretation such as Ohio's

syllabus rule, promises more reliable results when deciding

the nature of the state court’s holding. Giving consideration

to such a state court rule of interpretation also comports with

the notion that the context in which language is used is

critical to determining the language’s meaning. See Bailey v.

United States, __ U.S. ___, 116 S.Ct. 501, 506 (1995) (“the

meaning of statutory language, plain or not, depends on

context”) (citations omitted).

Cc. The Goal of Saving the Costs of Unnecessary

Review is Ill-Served by a Conclusive Presump-

tion of Reviewability Where a State Rule of

Interpretation Shows that the State Court

Meant to Base its Decision on State Law

This Court has made clear that the Michigan v. Long

presumption, like any presumption, is designed to

4 Even the brief amicus curiae file by Americans for

Effective Law Enforcement Inc., candidly acknowledges that the

state court’s language certainly makes it sound like it was

basing its decision on state law. Brief Amicus Curiae of Americans

for Effective Law Enforcement Inc., p. 4 (“The court below. .. .

ruled that the right guaranteed by the federal and state (Ohio)

constitutions, to be secure in one’s person and property,

requires that citizens stopped for traffic offenses be clearly

informed by the detaining officer as to when they are free to go

after a valid detention . . . ”); id. pp. 7-8 (the Ohio Supreme Court

“has elevated a police practice to the position of a federal and

state constitutional right”) (emphasis added).

13

minimize the costs of unnecessary, individualized review.

Coleman v. Thompson, 501 U.S. 722, 737. While any per se

rule concerning whether to accept review will reduce the

costs to this Court of determining reviewability, a conclu-

sive presumption in favor of reviewability promises to

raise costs to the states, where a state court meant to base

its decision on state law.

Michigan v. Sitz, 496 U.S. 444 (1990), provides an

example of this problem. In Sitz, this Court held that an

initial stop of a motorist at a roadside sobriety checkpoint

by Michigan police did not violate the Fourth Amend-

ment. This Court reversed a lower Michigan appellate

court decision, 170 Mich. App. 433, 429 N.W.2d 180

(1988), which had affirmed the Wayne County Circuit

Court’s order permanently enjoining the checkpoint pro-

gram on the grounds that it violated the Fourth Amend-

ment and the Michigan Constitution. On remand from

Michigan v. Sitz, 496 U.S. 444, which reversed the state

court’s decision on federal grounds, the Michigan Court

of Appeals reached the same conclusion that it had

reached before: sobriety checkpoints violate the state con-

stitution. Sitz v. Dept. of State Police, 193 Mich. App. 690,

485 N.W.2d 135 (1992), aff'd, 443 Mich. 744, 506 N.W.2d

209 (1993). See generally Arizona v. Evans, 514 U.S. ___ 115

S.Ct. 1185, 1197 (Ginsburg, J., dissenting, with whom

Stevens, J., joins) (comparing 14.3% rate of reinstatement

of decisions on state grounds by state courts on remand

from this Court pre-Long, with 26.7% rate of reinstate-

ment post-Long) (citation omitted). This shows that the

Long presumption may reduce the costs of determining

reviewability by this Court, but does so by increasing the

costs of judicial inquiry by the state courts.

14

Similarly, in South Dakota v. Neville, 459 U.S. 553

(1983), a pre-Long decision, this Court held that admis-

sion into evidence of a driver’s refusal to take a blood-

alcohol content test did not violate the Fifth Amendment

right against self-incrimination. This Court accepted

review despite the fact that the state court below had

framed the question as “whether SDCL 32-23-10.1 is a

violation of Neville’s federal and state constitutional

privilege against self incrimination,” and had held “that

evidence of the accused’s refusal to take a blood test

violates the federal and state privilege against self-

incrimination ...” State v. Neville, 312 N.W.2d 723, 725-26

(1981) (citing U.S. Const. amend. V and S.D. Const. art.

VIL, § 9). This Court had also accepted review despite a

clear and well-established state rule of interpretation that

South Dakota “assume[s] the independent nature of our

state constitution regardless of any similarity between the

language of that document and the federal constitution.”

State v. Opperman, 247 N.W.2d 673, 674. On remand, the

South Dakota Supreme Court held - solely on state

grounds — that admission of the defendant's refusal to

submit to a blood-alcohol content test was inadmissible.

State v. Neville, 346 N.W.2d 425 (1984) (“Since Neville was

not fully informed of this consequence [that his refusal to

submit to the test would be admissible], he did not volun-

tarily, knowingly and intelligently waive his constitu-

tional protection of due process and prohibition against

self-incrimination.”). This shows that this Court's failure

to consider clear, well-established state rules of inter-

pretation when deciding whether a state decision is based

on independent grounds can also increase the costs of

judicial inquiry by the states.

15

A conclusive presumption of reviewability where the

state court has indicated that its decision was based on

state law — albeit not in Michigan v. Long’s prescribed

words — therefore fails to avoid the costs of excessive

inquiry. See Coleman v. Thompson, 501 U.S. 722, 737. Both

the Long presumption and the failure to consider state

rules of interpretation have increased such successive

inquiry, and the cost falls on the state courts.

This may simply be the cost of the problem that state

courts misunderstand the “plain statement” rule, leaving

the basis of their decisions unclear to this Court. The

confusion in the state courts, however, should not be

ignored. That problem actually militates in favor of

revisiting the Michigan v. Long rule. See Seminole Tribe of

Florida v. Florida, __ U.S. __, 116 S.Ct. 1114 (reversing

prior 11th Amendment precedent: “Since it was issued,

[Pennsylvania v.] Union Gas [Co., 491 U.S. 11 (1989)] has

created confusion among the lower courts that have

sought to understand and apply the deeply fractured

decision.”).

Amicus suggests that tempering the Michigan v. Long

presumption of reviewability with Coleman v. Thompson's

recognition that the presumption is neither universally

applicable nor necessarily conclusive could go a long way

to easing the costs placed on state courts by the current

strict presumption of reviewability on direct appeal. Cf.

Coleman v. Thompson, 501 U.S. 722, 739 (“A broad pre-

sumption would also put too great a burden on the state

courts.”).

16

D. The Goal of Symmetry Between this Court's

§ 1257 Jurisdiction and the Lower Courts’

§ 2254 Jurisdiction is Ill-Served by a Conclu-

sive Presumption of Reviewability Where

Habeas Review of the Issue is Unavailable

Michigan v. Long’s presumption of reviewability is

also supposed to provide symmetry between this Court's

28 U.S.C. § 1257 jurisdiction and the federal courts’ 28

U.S.C. § 2254 jurisdiction - granting parties no greater

access to federal review via one route, particularly § 2254,

than the other. As this Court explained in Coleman v.

Thompson, 501 U.S. 722, 730-31, “Without the [adequate

and independent ground] rule [in habeas], a federal dis-

trict court would be able to do in habeas what this Court

could not do on direct review; habeas would offer state

prisoners whose custody was supported by independent

and adequate state grounds an end run around the limits

of this court’s jurisdiction and a means to undermine the

state’s interest in enforcing its laws.”5 A presumption in

favor of jurisdiction under § 1257 undermines this goal

where federal habeas review of the issue is completely

unavailable.

That is precisely the case here. The issue on which

review was granted arises under the Ohio Constitution's

search and seizure provision and the Fourth Amendment,

5 See also id. at 732 (“In the absence of the independent and

adequate state ground doctrine in federal habeas, habeas

petitioners would be able to avoid the exhaustion requirement

by defaulting their federal claims in state court. The

independent and adequate state ground doctrine ensures that

the States’ interest in correcting their own mistakes is respected

in all federal habeas cases.”).

17

and is of practical importance to the criminal case only

because of the exclusionary rule remedy. In Stone v. Pow-

ell, 428 U.S. 465, 482, 484 (1976), however, this Court held

that the Mapp v. Ohio, 367 U.S. 643 (1961), exclusionary

rule remedy is generally unenforceable on habeas

corpus.® Since the exclusionary rule remedy is generally

unenforceable under 28 U.S.C. § 2254, the goal of symme-

try is undermined - not served - by a conclusive pre-

sumption of reviewability of exclusionary rule claims on

direct review under § 1257.

Ill. A CONCLUSIVE PRESUMPTION OF

REVIEWABILITY IS LEAST JUSTIFIED WHERE,

AS HERE, REVIEW IMPROPERLY GRANTED

PRESENTS A JURISDICTIONAL DEFECT, NOT

JUST A PRUDENTIAL ISSUE

The bar on this Court’s review of a state high court's

decision on direct appeal, where that decision rests on

adequate and independent state grounds, is jurisdic-

tional. As this Court has explained: “In the context of

direct review of a state court judgment, the independent

and adequate state ground doctrine is jurisdictional.

Because this Court has no power to review a state law

determination that is sufficient to support the judgment,

resolution of any independent federal ground for deci-

sion could not affect the judgment and would therefore

be advisory.” Coleman v. Thompson, 501 U.S. 722, 729. See

also id. at 730 (“When this Court reviews a state court

: The exception, of course, is where “the State has [not]

provided an opportunity for full and fair litigation” of that

claim. Stone v. Powell, 428 U.S. 465, 494-95.

18

decision on direct review pursuant to 28 U.S.C. § 1257, it

is reviewing the judgment; if resolution of a federal ques-

tion cannot affect the judgment, there is nothing for the

Court to do.”); Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945)

(“We are not permitted to render an advisory opinion,

and if the same judgment would be rendered by the state

court after we corrected its views of federal laws, our

review could amount to nothing more than an advisory

opinion.”).

Application of the adequate and independent ground

doctrine to bar review of a state court decision on habeas

corpus, however, is not a jurisdictional matter. It is a

prudential limit designed to foster comity and federalism.

Coleman v. Thompson, 501 U.S. 722, 730 (distinguishing

basis for adequate and independent state ground rule on

federal court’s habeas review from basis for the rule on

this Court’s § 1257 review on direct appeal: “In the

habeas context, the application of the independent and

adequate state ground doctrine is grounded in concerns

of comity and federalism”); id. at 731-32 (“A habeas peti-

tioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion; there are

no state remedies any longer ‘available’ to him. . . . In the

absence of the independent and adequate state ground

doctrine in federal habeas, habeas petitioners would be

able to avoid the exhaustion requirement by defaulting

their federal claims in state court. The independent and

adequate state ground doctrine ensures that the States’

interest in correcting their own mistakes is respected in

all federal habeas cases.”); id. at 765 (Blackmun, J., dis-

senting, joined by Marshall, J., and Stevens, J.) (“It is well

settled that the existence of a state procedural default

19

does not divest a federal court of jurisdiction on collateral

review. . . . Rather, the important office of the federal

courts in vindicating federal right gives way to the States’

enforcement of their procedural rules to protect the

States’ interest in being an equal partner in safeguarding

federal rights.”) (citation omitted).”

A presumption necessarily entails some measure of

error. Coleman v. Thompson, 501 U.S. 722, 737 (“The pre-

sumption [of Michigan v. Long], like all conclusive pre-

sumptions, is designed to avoid the costs of excessive

inquiry where a per se rule will achieve the correct result

in almost all cases”) (quoting Continental T.V., Inc. v. GTE

Sylvania Inc., 433 U.S. 36, 50 n.16, for rule: “Per se

rules . . . require the Court to make broad generaliza-

tions . . . Cases that do not fit the generalization may

arise, but a per se rule reflects the judgment that such

cases are not sufficiently common or important to justify

the time and expense necessary to identify them.”). See

also Coleman v. Thompson, 501 U.S. 722, 737 (“We accept

errors in those small number of cases where there was

nonetheless an independent and adequate state ground in

exchange for a significant reduction in the costs of

inquiry.”).

? The non-jurisdictional nature of the independent and

adequate state procedural default rule in habeas cases is

bolstered by recent amendments to 28 U.S.C. § 2254 bearing on

the related procedural issue of exhaustion. Subsection (b)(2)

now expressly states: “An applicant for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.” (Emphasis added).

20

Jurisdiction implicates the very power of this Court

to act. Carlisle v. United States, _._ U.S. __, 1996 WL

202555 (Apr. 29, 1996) (Ginsburg, J., concurring, with

whom Souter, J., and Breyer, J., join) (defining subject

matter jurisdiction as power of court to act). Comity and

federalism concerns do not.

A conclusive presumption that errs in favor of

reviewability is therefore especially unwarranted where,

as here, jurisdiction arises under § 1257, because it could

unduly expand this Court's jurisdiction, i.e., the power of

this Court to act. Carlisle v. United States, __ U.S. ___L

1996 WL 202555, * 5 (district court lacks power to act on

motion for judgment of acquittal filed one day outside

time limits: “Assuming arguendo that these contentions

[predicting numerous needless appeals of habeas pro-

ceedings as a result of decision] are accurate we cannot

permit them to alter our analysis, for we are not at liberty

to ignore the mandate of Rule 29 in order to obtain

‘optimal’ policy results.”). See Berman v. United States, 378

U.S. 530 (1964) (summary affirmance of dismissal of

appeal filed one day late).

IV. THE PRESUMPTIONS AGAINST FEDERAL

COURT AND SUPREME COURT JURISDICTION,

OF CONSTITUTIONAL AVOIDANCE, AND THE

GOAL OF COMITY ALSO COUNSEL AGAINST

A CONCLUSIVE PRESUMPTION OF

REVIEWABILITY HERE

The ordinary presumption in federal court is against

jurisdiction. See Delaware v. Van Arsdall, 475 U.S. 673, 692

(1986) (Stevens, J. dissenting); King Iron Bridge & Mfg. Co.

v. County of Otoe, 120 U.S. 225, 226 (1887). This obviously

21

counsels against a conclusive presumption of

reviewability by this Court.

In addition, the petitioner has the burden of showing

that this Court can, and should, exercise jurisdiction. Sup.

Ct. R. 10. Cf. Michigan v. Long, 463 U.S. 1032, 1054 (Black-

mun, J., concurring) (noting “increased danger of advi-

sory opinions in the Court’s new approach”). This also

counsels against a conclusive presumption cf

reviewability by this Court.

Further, the general rule in this Court is one of con-

stitutional avoidance. Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 501 (1985). See generally Peretz v. United States,

501 U.S. 923, 929-30 (1991) (“[t]he principle of constitu-

tional avoidance led us to demand clear evidence that

Congress actually intended to permit magistrates to take

on a role that raised a substantial constitutional question.”)

(emphasis added) (citation omitted)’; Lyng Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46

® In fact, this Court in Peretz v. United States, 501 U.S. 923,

made clear that where, as here, the government seeks to deprive

an individual of an important privilege or right, the principle of

constitutional avoidance is especially appropriate: “The

requirement that Congress express its intent clearly was also

appropriate because the Government was asking us in Gomez to

construe a general grant of authority to authorize a procedure

that deprived an individual of an important privilege, if not a

right.” Peretz, 501 U.S. 923, 930. This is perhaps the converse of

Justice Stevens’ suggestion to construe broadly this Court's

jurisdiction when a constitutional right is implicated. Cf.

Michigan v. Long, 463 U.S. 1032, 1068 (Stevens, J., dissenting) (“I

believe that in reviewing the decisions of state courts, the

primary role of this court is to make sure that persons who seek

to vindicate federal rights have been fairly heard.”).

22

(1988); West v. Aikins, 487 U.S. 42, 49 n.8 (1988); Jean v.

Nelson, 472 U.S. 846 (1985); Socialist Labor Party v. Gilligan,

406 U.S. 583, 588 (1972) (“[t]his Court has recognized in

the past that even when jurisdiction exists it should not

be exercised unless the case ‘tenders the underlying con-

stitutional issues in clean-cut and concrete form’ ”). This

principle militates against a conclusive presumption of

reviewability in cases like this, where a federal constitu-

tional question is presented and might unnecessarily be

decided.

Federalism is the core concern underlying the ade-

quate and independent state ground line of decisions.

Coleman v. Thompson, 501 U.S. 722, 725 (“This is a case

about federalism.”). But which way does federalism cut?

This Court has generally described the value of federal-

ism in the adequate and independent state ground con-

text as respect for state courts —- not deference to state

prosecutors. Michigan v. Long, 463 U.S. 1032, 1040

(“Respect for the independence of state courts, as well as

avoidance of rendering advisory opinions, have been the

cornerstones of this Court’s refusal to decide cases where

there is an adequate and independent state ground. It is

precisely because of this respect for state courts, and this

desire to avoid advisory opinions, that we do not wish to

continue to decide issues of state law that go beyond the

opinion that we review . . . ”) (emphasis added); id., 463

U.S. 1032, 1041 (“This approach obviates in most

instances the need to examine state law in order to decide

the nature of the state court decision. . . . We believe that

such an approach will provide state judges with a clearer

opportunity to develop state jurisprudence unimpeded

23

by federal interference. ... ”); id. at 1041 (“ ‘It is funda-

mental that state courts be left free and unfettered by us

in interpreting their state constitutions.’ ”) (quoting Min-

nesota v. Nat'l Tea Co., 309 U.S. 551, 557 (1940)).

A conclusive presumption of reviewability in this

case — in the face of the Ohio Supreme Court’s statement

in the syllabus of its decision which comprises its holding

that it was relying on both the state and U.S. Constitu-

tions —- may grant deference to the Montgomery County,

Ohio, Prosecuting Attorney. But it undermines deference

to the Ohio Supreme Court. The presumption of

reviewability should not stand as a conclusive wedge

between the state’s highest court, which stated in its

holding that it was relying upon state law, and a county

prosecutor who lost in state court. Federalism, thus, also

counsels against a conclusive presumption of

reviewability.

V. THIS COURT SHOULD HOLD THAT MICHIGAN

V. LONG’S PRESUMPTION OF REVIEWABILITY

OF DIRECT APPEAL CASES, LIKE COLEMAN V.

THOMPSON’S PRESUMPTION OF

REVIEWABILITY ON HABEAS, IS NEITHER IRRE-

BUTTABLE NOR UNIVERSALLY APPLICABLE -

IT IS REBUTTED OR INAPPLICABLE WHERE, AS

HERE, A WELL-ESTABLISHED STATE RULE OF

INTERPRETATION SHOWS THAT THE STATE

GROUND OF DECISION IS ADEQUATE AND

INDEPENDENT

This Court has stated, “Our willingness to reconsider

our earlier decisions has been ‘particularly true in consti-

tutional cases, because in such cases “correction through

24

legislative action is practically impossible.” ’” Seminole

Tribe of Florida v. Florida, __ U.S. __, 116 S.Ct. 1114, 1127

(numerous citations omitted). Amicus respectfully urges

this Court to reconsider Michigan v. Long’s presumption

of reviewability of federal constitutional claims arising on

direct review in state cases, given the presumption’s fail-

ure to achieve its stated goals, and to decide whether

other, “appropriate action,” in the words of Michigan v.

Long, 463 U.S. at 1041, n.6, is needed. Amicus respectfully

suggests that this Court should then hold that, following

Coleman v. Thompson and Ylst v. Nunnemaker, the pre-

sumption of reviewability has exceptions, and is subject

to rebuttal, on review of state court decisions on direct

appeal - just as the presumption has exceptions and is

subject to rebuttal on habeas review. Amicus also sug-

gests that this Court should conclude that the presump-

tion is rebutted where, as here, a clear and well-settled

state rule of interpretation shows that the state court

meant to base its holding on independent state law. For

the reasons explained above, amicus also respectfully

suggests that this Court abandon the presumption of

reviewability completely where Stone v. Powell bars

review of the exclusionary rule issue on habeas.

VI. CONCLUSION

This Court should dismiss the writ as improvidently

granted on the ground that the Ohio Supreme Court's

decision, lodged in its syllabus and based on the Ohio

Constitution, when interpreted in light of Ohio’s syllabus

rule, provides an adequate and independent state ground

of decision. Alternatively, given the points we raise,

amicus suggests vacating the state court’s judgment and

25

remanding for clarification of its decision. Arizona v.

Evans, 514 U.S. __, 115 S.Ct. 1185, 1190 n.3; Capital Cities

Media, Inc. v. Toole, 466 U.S. 378 (1984) (vacating state

court judgment and remanding for further proceedings as

state court might deem appropriate to clarify ground of

its decision).

Respectfully submitted,

SHERYL GorpDoN McC.ioup

Law Orrices or SHERYL GorDON

McC.Loup

1111 Third Avenue, Suite 1060

Seattle, WA 98101

(206) 224-8777

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers