A Champion of State Constitutions

Article excerpt

It is a distinct honor for me to be able to contribute to the dedication of this issue of the Albany Law Review to Chief Justice Christine Durham, just as it was my great privilege to have served as her law clerk twenty years ago. While I want to focus my remarks on one of her many contributions to American law--namely, her impact on state constitutional law--I hope to be forgiven for a brief personal indulgence first. My year working with her at the Utah Supreme Court remains a career highlight. As all who know her can attest, she was then--and remains now--a thoughtful and humane jurist, who thereby helped to make real for a new law school graduate the way that law both shapes and is shaped by society and social problems. But more than that, she was an energetic, friendly, good-humored, and caring mentor. The office was always an inviting place to be, and her chambers also frequently drew clerks from other chambers for conversation and advice. I have been fortunate to be able to keep in touch with her, and to continue to benefit from her mentorship and example in the intervening years, even though I did not remain in Utah.

Of course, that enduring and expanding influence, writ large, is the point of this dedication, for Chief Justice Durham's impact has extended far beyond her state in many respects. In particular, during her three decades on the bench she has been a central figure in state constitutionalism and a leading voice for the idea of state primacy in interpreting state constitutions. And while state constitutional law today remains an underdeveloped field of study, Chief Justice Durham is an important part of the story of the gratifying increase in interest in state constitutions.

As the reach of the Bill of Rights grew during the Warren Court era, state constitutions were generally seen as fundamentally "subordinate" to the U.S. Constitution, despite the fact that provisions of state constitutions might be construed as more protective of individual liberties than their federal counterpart, as well as the fact that a number of state constitutions predate the adoption of the U.S. Constitution. (1) But during the Burger and early Rehnquist eras, a movement developed--heralded prominently by Justice Brennan's 1977 law review article (2)--advocating that states look at their own constitutions independently (and in some cases exclusively) of the U.S. Constitution. (3) By the early 1980s, Justice Durham was thoughtfully taking up Justice Brennan's invitation from her position on the Utah court.

Shortly after her arrival on the bench, the Utah court had held unanimously that although the "uniform operation" clause of the Utah Constitution "incorporated the same general fundamental principles as are incorporated in the Equal Protection Clause," the Utah court's construction of the clause was not controlled by federal Equal Protection Clause jurisprudence. (4) But actual departures from federal jurisprudence were not common, especially with respect to identical or similar textual provisions. (5) Indeed, in 1987 when the Utah Supreme Court followed federal Fifth Amendment jurisprudence to decide whether refusal to take a breathalyzer test violated the state constitution, (6) Justice Durham dissented from the court's reasoning, advocating for an independent analysis of Utah's constitution. (7) In 1988, Justice Durham once again was in dissent, joining a colleague who wrote:

   I certainly do not agree with the categorical assertions in the
   majority opinion that this Court has "never drawn any
   distinctions" between article I, section 14 [of the Utah
   Constitution] and the federal fourth amendment and has
   "always considered the protections afforded to be one and the
   same," or the majority opinion's intimation that there is no
   substantive distinction between the state and federal
   provisions. (8)

The next year, Justice Durham penned an article in the Utah Bar Journal encouraging counsel to raise independent arguments based on provisions of the state constitution. …