Supreme Court of Kentucky Dual Sovereignty Approach to State Constitutional Law

By Michelle K. Piasecki Albany Law School, Class of 2013 State Constitutional Adjudication Seminar, Spring 2013 Prof. Bonventre

Several decades ago, Supreme Court Justice William Brennan, Jr. applauded the resurgence of state constitutional interpretation by state high courts. According to Brennan, the “rediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions . . . is probably the most important development in constitutional jurisprudence in our time.”1 Around the same time, Chief Justice William Rehnquist commented that the role of the Federal Court was not to serve as the supreme guardian of civil rights and liberties. 2 Rather, Rehnquist opined that it was the responsibility of state courts to provide the greatest protection to their citizens under state law.3 The methods for ensuring protection of one’s civil rights and liberties, however, vary considerably. The most common methods are the primacy, interstitial, and dual sovereignty approaches.4 1

Robert F. Williams, In the Glare of the Supreme Court: Continuing Methodology and Legitimacy Problems in Independent State Constitutional Rights Adjudication, 72 NOTRE DAME L. REV. 1015, 1064 (1997). 2 Vincent M. Bonventre, Changing Roles: The Supreme Court and the State High Courts in Safeguarding Rights, 70 ALB. L. REV. 841, 843 (2007). 3 Id. 4 Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 TEX. L. REV. 1025, 1027 (1985).

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The primacy approach focuses almost exclusively on state law. States that adopt this approach look to the state constitution as the main source of authority, while also taking into consideration “state history, doctrine, and structure.”5 Federal law is considered merely persuasive; it is no more authoritative than a decision by a different state court. 6 The only time a state court using the primacy approach will decide a case based on federal law is when a state law violates a federal decision. 7 Courts applying the interstitial method presume that federal law is correct. 8 If the case can be decided by applying federal law, then the state court will follow the Supreme Court’s ruling. 9 If not, the state may expand on the federal law by supplementing state law to fill in the gaps.10 The dual sovereignty method permits state courts to look at both federal and state law when making decisions. 11 Even when the decision rests firmly within the confines of state law, courts applying a dual sovereignty approach will still evaluate federal law. 12 According to Utter, “[t]his type of analysis reflects the policies underlying our federal system by making available the maximum protections both levels of government offer to citizens.”13 The Supreme Court of Kentucky applies the dual sovereignty method. For example, in Riley v. Gibson, a Jefferson Circuit Court Judge held a closed hearing to determine if a member of the jury was in contempt of court for disobeying the judge’s order to “avoid publicity about the case.”14 In issuing its decision, the Supreme Court of Kentucky analyzed both federal and state law without specifically relying on one or the other.15 Several other recent decisions by the Kentucky Supreme Court produced similar results.16 Likewise, in Hill v. Petrotech Resources Corp., the Kentucky Supreme Court was asked to decide whether a court could restrain an individual’s expression before determining whether

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Id. at 1028. Id. 7 Id. 8 Id. at 1029. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Riley v. Gibson, 338 S.W.3d 230, 232 (Ky. 2011). 15 See generally id. 16 Porter v. Commonwealth, 394 S.W.3d 382 (Ky. 2011); Stanton v. Commonwealth, 349 S.W.3d 914 (Ky. 2011); Bowling v. Commonwealth, 357 S.W.3d 462 (Ky. 2010). 6

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that expression was protected speech.17 In Justice Venters’ opinion, the Supreme Court of Kentucky applied both federal and state law. 18 Ultimately the court concluded that the circuit court’s grant of an injunction constituted “an improper prior restraint on speech” that violated both the First Amendment and Section Eight of the Kentucky Constitution. 19 Interestingly the Court’s approach seemed to change slightly in this case because the issue was one of first impression. In the other four decisions, the court never made clear whether it was relying on federal or state law, often intermingling the two—part of the reason decisions by the Kentucky Supreme Court are frequently reviewed by the Supreme Court. However, in this case, the court clearly distinguished its federal analysis from the state law analysis. 20 Incessant review by the Supreme Court is just one of the reasons the dual sovereignty model is often criticized; another is for generating “advisory” opinions. 21 Since the Supreme Court has ultimate authority to decide federal law, state law cases analyzing federal law aren’t binding. But courts that apply the dual sovereignty approach have an expansive body of case law to rely on in future cases. Maybe that is why the Kentucky Supreme Court does not believe it necessary to delineate exclusively what law they are relying on.

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Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 303 (Ky. 2010). Id. 19 Id. 20 See generally id. 21 Utter, supra note 4, at 1029. 18

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