Preservation, Primacy, and Process: A More Consistent Approach to State Constitutional Interpretation in Iowa

Preservation, Primacy, and Process: A More Consistent Approach to State Constitutional Interpretation in Iowa Eric M. Hartmann * ABSTRACT: Between 2010–2015, the Iowa Supreme Court decided multiple cases under article 1, section 8 of the Iowa Constitution. However, the court’s reasons for deciding issues under the Iowa Constitution were less than principled. The Iowa Supreme Court’s current practice of spontaneously interpreting the Iowa Constitution raises significant jurisprudential problems: it does not necessarily require lawyers to adequately argue, brief, and preserve state constitutional issues for appeal, it does not prioritize federal or state constitutional claims in any order, and the approach seems arbitrary on its face. A more principled approach to state constitutional interpretation could remedy these issues. The primacy approach is an approach to state constitutional interpretation under which state supreme courts decide issues under the state constitution when the parties adequately argue and brief the state constitutional issue. This Note argues that the Iowa Supreme Court should adopt the primacy approach to state constitutional interpretation to continue the Court’s role as an important part of the United States’ federalist system and an imperative protector of Iowans’ individual rights, to improve the efficiency of state constitutional interpretation, and to improve the process by which the Iowa Supreme Court reaches issues under the Iowa Constitution. I. INTRODUCTION ........................................................................... 2266 II. DEVELOPMENT AND METHODS OF STATE CONSTITUTIONAL INTERPRETATION ........................................................................ 2268 A. A S TATE C OURT ’ S R OLE IN S TATE C ONSTITUTIONAL I NTERPRETATION .................................................................. 2270 B. A PPROACHES TO S TATE C ONSTITUTIONAL I NTERPRETATION ............................................................. 2272 * J.D., University of Iowa College of Law, 2017; B.A., Drake University, 2014. Thank you to Peter Chalik, Elizabeth Heffernan, and Michael Kaufmann for their helpful advice and suggestions throughout the publication process. 2266 IOWA LAW REVIEW [Vol. 102:2265 III. IOWA’S INDEPENDENT APPROACH ............................................... 2274 A. STATE V. OCHOA ................................................................. 2274 B. STATE V. PALS ...................................................................... 2276 C. STATE V. BALDON ................................................................ 2277 D. STATE V. SHORT .................................................................. 2279 E. STATE V. GASKINS ................................................................ 2279 IV. A PRIME SOLUTION ..................................................................... 2282 A. A RGUMENTS FOR THE P RIMACY A PPROACH ............................ 2282 B. A RGUMENTS A GAINST THE P RIMACY A PPROACH A RE U NPERSUASIVE ...................................................................... 2284 C. T HE S UPPLEMENTAL AND L OCKSTEP A PPROACHES A RE U NPERSUASIVE ...................................................................... 2285 1. The Cons of the Lockstep Approach Are Too High ............................................................................. 2285 2. The Supplemental Approach is Also Unpersuasive ............................................................... 2287 D. I MPLEMENTING THE P RIMACY A PPROACH .............................. 2288 V. CONCLUSION .............................................................................. 2290 I. INTRODUCTION In a 1977 Harvard Law Review article, Justice Brennan argued that state courts 1 should independently interpret their state constitutions to maximize individual liberty. 2 Motivated by federalism, Justice Brennan feared the Supreme Court’s approach to constitutional interpretation would inadequately protect individual rights. 3 Justice Brennan urged state courts to independently interpret their state constitutions, and not to simply mirror federal precedent defining the Bill of Rights. 4 Other scholars and courts have echoed Justice Brennan’s rationales for independent state constitutional interpretation. Generally, scholars advocate for independent interpretation of state constitutions based on principles of federalism. 5 Additionally, they note that state courts have a different role than the Supreme Court due to their local concerns, and should be mindful of their role as imperative protectors of individual rights. 6 There are three 1. This Note uses the phrase “state courts” to refer to the courts of last resort in each state that have the power to definitively interpret their state’s constitution. 2 . See generally William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights , 90 HARV. L. REV. 489 (1977). 3 . Id. at 495. 4 . Id. at 501. 5 . See infra Part II. 6 . See infra Part II.B. 2017] PRESERVATION, PRIMACY, AND PROCESS 2267 popular approaches to state constitutional interpretation: the primacy approach, the supplemental approach, and the lockstep approach. 7 Under the primacy approach, a state court will always attempt to resolve disputes under the state constitution first when the parties adequately brief and argue the state constitutional issue. 8 Under the supplemental approach, state courts only look to the state constitution if the Federal Constitution does not protect the right at issue. 9 Finally, under the lockstep approach, state courts will only interpret the state constitution if the text of the state constitution is substantially different from its counterpart provision in the Federal Constitution. 10 Some state courts, like the Iowa Supreme Court, do not apply a method of interpretation but an ad-hoc approach to interpretation, which is not ideal. 11 The Iowa Supreme Court’s approach to state constitutional interpretation is neither consistent nor predictable. 12 The Iowa Supreme Court applies an “independent” approach when interpreting Iowa Constitution. 13 This approach has troubled justices on the court because of its “result-oriented” appearance. 14 Moreover, under this “independent” 7 . See infra Part II.A. 8 . See infra Part II.B. If the state constitution does not provide the requested relief, the court will then analyze the Federal Constitution. See infra Part II.B. 9 . See infra Part II.B. The Iowa Supreme Court’s approach is probably closest to a supplemental approach. See infra Part III.E. 10 . See infra Part II.B. There are two variations of the lockstep approach. Under a more extreme lockstep approach, state courts apply the same meaning to state and federal constitutional provisions even where their text is substantially different. See infra Part II.B . In a limited lockstep regime, state courts presume that federal interpretations of federal constitutional provisions are presumptively correct, and only depart from those interpretations when they are persuaded to do so. See infra Part II.B. 11 . See infra Part III. 12 . See, e.g. , State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015) (applying Iowa’s approach to state constitutional interpretation, in which the court “reserve[s] the right to apply [state and federal] principles differently” even though the parties did not argue for a different constitutional principle under the Iowa Constitution (quoting King v. State, 797 N.W.2d 565, 571 (Iowa 2011))); State v. Young, 863 N.W.2d 249, 276–77 (Iowa 2015) (noting “federal precedent has a bearing on our interpretation of state law only to the extent its reasoning persuades us”); State v. Short, 851 N.W.2d 474, 491 (Iowa 2014) (noting that the court utilizes the constitutional standards argued by the parties, but “reserve[s] the right” to apply a different standard under the Iowa Constitution even when the parties do not argue for it); State v. Baldon, 829 N.W.2d 785, 790 (Iowa 2013) (deciding a consent-to-search issue under the Iowa Constitution because the Supreme Court had not yet “weighed in” on the issue under the Fourth Amendment); State v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011) (noting that the court “will engage” in independent analysis of the Iowa Constitution, and will follow federal precedent “solely upon its ability to persuade us with the reasoning of the decision” (quoting State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010))); Ochoa , 792 N.W.2d at 266–67 (rejecting “a lockstep or lockstep-lite approach” and adopting an “independent” approach to state constitutional interpretation). 13 . See infra Part III. 14 . See Gaskins , 866 N.W.2d at 42 (Waterman, J., dissenting) (“The majority repeats a result-oriented approach of playing ‘gotcha’ with the State to avoid alternative grounds to uphold a 2268 IOWA LAW REVIEW [Vol. 102:2265 approach, the court has recently decided issues under the Iowa Constitution that parties did not argue in district court, and did not discuss on appeal. 15 This is problematic because it deprives the court of the benefit of the adversarial system: a record developed in trial court anticipating a state constitutional argument on appeal, as well as creative argument and briefing to guide the court’s resolution of potential state constitutional issues. It also runs counter to the idea that a court decides cases and controversies presented to it for resolution, which is common to our judicial system. To resolve these issues, the Iowa Supreme Court should adopt the primacy approach. Under the primacy approach, state courts decide issues under the state constitution before they reach any issues under the Federal Constitution. 16 To ensure judicial restraint, state courts that employ the primacy approach will only reach state constitutional issues when the parties preserve error, and adequately argue and brief the state issues on appeal. 17 This Note argues that the Iowa Supreme Court should adopt the...