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Wisconsin Constitution – “New Federalism,” Generally

In a series of recent cases, the supreme court has joined what it terms “the ‘new federalism’ movement,” State v. Knapp (II), 2005 WI 127, ¶84 and id., n. 20 (Crooks, J., conc. w/ majority support of 4 votes), which refers to a tendency to look first to the state constitution and assign greater rights than the Supreme Court to parallel provisions in the federal constitution. Those cases are listed here:

  • State v. Knapp (II), 2005 WI 127 (differential self-incrimination clause construction: physical evidence derived from intentional Miranda violation subject to suppression rule)
  • State v. Tyrone L. Dubose, 2005 WI 126 (differential due process clause construction: show-up IDs)
  • compare, State v. Jerrell C.J., 2005 WI 105 (superintending power invoked re: custodial juvenile confessions).

What of fourth amendment suppression issues, something not explicitly at issue in this initial flurry of cases? Over the years, the Wisconsin supreme court has consistently rejected assigning greater protection to Wis. Const. Article I, Section 11 than the USSC assigns the 4th amendment. And yet, Knapp II takes pains to stress a little-recognized feature of State v. Eason, 2001 WI 98, 47, 245 Wis. 2d 206, 629 N.W.2d 625, namely that “this court departed from the Supreme Court’s holding in United States v. Leon, 468 U.S. 897, 919-20 (1984),” by holding “‘that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment.’ Id.” ¶73 n. 14. That would be enough to place Art. I, § 11 in the “New Federalism” sights. But there is certainly more to it than that. Knapp II undertakes an historical review of the suppression rule in Wisconsin, noting its origin with Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). ¶¶64, et seq. Although that discussion relates largely to self-incrimination, stressing that Hoyer is no longer viable to the extent that it embedded self-incrimination principles in the search-and-seizure clause, the court nonetheless issues what can only be seen as a ringing endorsement of the larger principle, Hoyer‘s commitment to enforcement of the exclusionary rule. It is wise to keep in mind that the exclusionary rule has two distinct rationales: deterrence of governmental misconduct and, separately, judicial integrity. The Supreme Court over the years has essentially limited the rule to the deterrence function, whose ruthless application has led to the rule’s slow erosion. But “New Federalism” in general and Hoyer in particular put judicial integrity back into the suppression calculus. Some of this is inferential. Thus, Eason points out (¶41), “Hoyer relied solely upon federal law. See 180 Wis.2d at 412-18. Hoyer relied upon Amos, 255 U.S. at 316, and Gouled, 255 U.S. at 303, which, in turn, relied upon Weeks v. United States, 232 U.S. 383 (1914), the Supreme Court’s seminal formulation of the exclusionary rule[.]” This exclusive reliance was subsequently invoked to hitch Wisconsin Constitution construction to the Supreme Court star. But New Federalism offers the opportunity to consider the actual rationale originally at play, judicial integrity. And with that in mind, here is the crucial passage in the seminal case, Weeks, 232 U.S. at 391-92:

The effect of the 4th Amendment is to put the courts [232 U.S. 383, 392] of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

(See also Robert Bloom, “Judicial Integrity: A Call for its Re-Eemergence in the Adjudication of Criminal Cases” (“The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.”).) That encomium to judicial integrity was echoed in Hoyer‘s invocation, 180 Wis. at 417, of the Wisconsin Constitution’s “pledge of the faith of the state government” that citizens will be free from unreasonable searches and seizures.

Of course, New Federalism also makes other state’s approaches relevant, now that construction of the state constitution has been decoupled from the federal constitution. The Oregon supreme court, for example,

explicitly has rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale. Davis, 295 Or at 233-37. Instead, this court has held that the Oregon exclusionary rule is a constitutionally mandated rule that serves to vindicate a defendant’s personal rights. In other words, the right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision. (14) See State v. Davis, 313 Or 246, 249, 834 P2d 1008 (1992) (so stating). In that vein, this court has explained that the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if “the government’s officers had stayed within the law.” Davis, 295 Or at 234. Thus, in deciding the applicability of the Oregon exclusionary rule, the critical inquiry is whether the state obtained the evidence sought to be suppressed as a result of a violation of the defendant’s rights under Article I, section 9. See, e.g., State v. Smith, 327 Or 366, 379-80, 963 P2d 642 (1998) (holding evidence obtained following unlawful police conduct nevertheless admissible, because evidence not obtained by virtue of that unlawful conduct).


14. Before the Supreme Court held in Mapp, 367 US 643, that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 US 383, 34 S Ct 341, 59 L Ed 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures. See State v. Laundy, 103 Or 443, 494, 204 P 958, 206 P 290 (1922) (stating that Oregon state courts should apply exclusionary rule for same reasons that Supreme Court articulated in Weeks); see also Davis, 295 Or at 233-34 (noting same history of Oregon exclusionary rule). Although cases subsequent to Laundy sometimes suggested that the Oregon exclusionary rule might apply to deter future constitutional violations, in a sequence of cases beginning with Davis, 295 Or 227, this court reaffirmed its view that, although deterrence may be a benefit of the Oregon exclusionary rule, the constitutional basis for that rule is to vindicate the defendant’s personal rights. See, e.g., State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (personal rights); State v. Tanner, 304 Or 312, 315, 745 P2d 757 (1987) (same); compare with State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (stating exclusionary rule under Article I, section 9, should be applied only as broadly as necessary to accomplish its “prophylactic” purposes).

State v. Hall, 339 Or 7, 115 P3d 908 (2005). (Hall followed, State v. Thompkin, OR SCt No. S51405, 9/14/06.)

For tripartite categorization of state-constitution analysis, see People v. Caballes, IL SCt No. 91547, 5/18/06: “lockstep” (mechanically follow US SCt rulings); “interstitial” (federal decisions are starting point, but state result may diverge, if sufficient reason); “primacy” (independent state constitutional analysis, federal decisions used only for guidance).

With explicit recognition of the New Federalism movement, then, Wisconsin litigation of 4th amendment suppression issues should no longer be limited to the deterrence function, and caselaw such as Oregon’s may be marshaled in support of argument that might otherwise have been overlooked even by the diligent practitioner. If you plan to raise a state constitutional argument, it would be wise to do more than evince disagreement with the federal approach. See, e.g., State v. Kottman, 2005 SD 116, ¶13 (waiver of state constitutional argument: “Counsel advocating a separate constitutional interpretation “must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision.” … No such analysis was presented here.”).

Interesting critique of this initial spate of New Federalism cases by 7th Circuit Judge (and former Wis. Supreme Court Justice) Sykes, here. Though her critique is largely philosophical, and thus of little immediate practical use to the practitioner her larger point — that these opinions are grounded more in recent social science studies than historical research — ought to be absorbed. If these cases do represent a trend, then the court is indeed sensitive to such input, and the practitioner will have to stay current with relevant studies. On the other hand, it wouldn’t hurt to attain familiarity with the drafting history of our state constitutional provisions.

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