The Primacy Doctrine and Appellate Advocacy

As readers of this blog know, state constitutional interpretation has been a matter of discussion here and at the Maine Law Court over the last few years.  Maine jurisprudence has seen a revival of the primacy doctrine, which directs state courts to resolve state constitutional issues prior to and independently of any federal constitutional issues.  This revival has, in turn, highlighted the need for lawyers to engage in the advocacy necessary to enable the Law Court to engage in meaningful state constitutional analysis.

This is the issue that the Law Court took up in its most recent pronouncement on the primacy doctrine.  In State v. Norris, the Law Court was compelled to find that a criminal defendant had waived an independent claim under the Maine Constitution’s search and seizure provision.  But Justice Connors, writing for the Court, did not stop there.  Instead, the Court carefully explained what is required to preserve a state constitutional claim.

As the Court observed, a party advancing a state constitutional claim “cannot merely allude to or cite the Maine Constitution but must develop his argument.”  This requirement serves an important purpose, because state constitutional law necessarily develops in the shadow of federal constitutional jurisprudence.  Quoting an opinion by Justice Souter, the Court noted the need for developed argumentation on state constitutional issues if it is to navigate between the Scylla and Charybdis of over- or under-reliance on federal precedent:

If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent.  If we are going to steer between these extremes, we will have to insist on developed advocacy from those who bring the cases before us.

The Court went on to observe that what is required for preservation depends on context.

    • For state constitutional claims that have already been developed under Maine law, it is only necessary to cite the Court’s independent analysis of the Maine Constitution and explain how it applies to the case at bar.
    • For state constitutional claims that have not yet seen substantial development, however, more is required; the party must “explicate the applicable provision” before explaining how it applies. This may require an examination of text, legislative history, historical context, relevant statutory and common law, and persuasive precedent.

Norris drives home an important point:  substantial analysis is necessary if the Court’s primacy doctrine is to have real meaning.  The primacy approach requires more than a choice by the Law Court regarding whether it agrees with or disagrees with federal case law; instead, it requires analysis of what a provision in an independent source of law (the Maine Constitution) means and how it must be applied.  The bad news is that, all too often, attorneys fail to do this work and instead waive independent state constitutional arguments. The good news is that this is very interesting, fruitful ground for careful, thorough lawyering.  It is up to the Maine appellate bar to do the work the Court is urging.