dissenting.
I disagree with the majority opinion’s conclusion that Davis has “failed to properly raise his claim under the Utah Constitution” and that he “has not adequately set forth any separate legal analysis ... [or] otherwise suggested a reason that warrants a distinct analytical treatment under the Utah Constitution.” I therefore dissent from its decision not to undertake a state analysis.
The procedural history of this case reflects the following course of events. The State filed a criminal information against Davis on April 12, 1994. On May 11, 1994, a trial court ordered his vehicle forfeited. Davis did not appeal the forfeiture. On August 9, 1994, Davis filed a motion to dismiss the criminal charges against him on the ground that, given the forfeiture, a subsequent criminal proceeding would violate the double jeopardy clauses of both the federal and state constitutions, in view of the completed forfeiture of. his vehicle. The district court denied the motion. On interlocutory appeal, a divided court of appeals reversed. State v. Davis, 903 P.2d 940 (Utah Ct.App.1995), cert, granted, 916 P.2d 909 (Utah 1996). Construing the federal Constitution, the court adopted the Eighth Amendment definition of punishment for double jeopardy purposes and dismissed the criminal charges. Id. at 946. The court refused to treat Davis’s state constitutional argument because he ■ advanced the “same theory” for analysis under both the U.S. and Utah Constitutions. Id. at 942 n. 5.
On January 2, 1996, the State petitioned for certiorari on the following question:
For purposes of determining whether a civil forfeiture' constitutes “punishment” under the Double Jeopardy Clause of the Fifth Amendment, should Utah adopt the Eighth Amendment Excessive Fines analysis of Austin v. United States, [509] U.S. [602], 113 S.Ct. 2801 [125 L.Ed.2d 488] (1993), or the Fifth Amendment Double Jeopardy analysis of United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892 [104 L.Ed.2d 487] (1989), and Department of Revenue v. Kurth Ranch, [511] U.S. [767], 114 S.Ct. 1937 [128 L.Ed.2d 767] (1994)?
Davis’s opposition brief, on the other hand, stated the question for review this way: “Did the court of appeals employ the correct definition for ‘punishment’ in determining if a state or federal Constitutional protection has been violated?” (Emphasis added.) We granted certiorari -without specifying the question for review.
On June 24, 1996, the U.S. Supreme Court declined to. adopt the Eighth Amendment definition of punishment and declared that in rem forfeiture, if civil in nature and application, does not constitute punishment for purposes of the federal Double Jeopardy Clause. See United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). We heard oral arguments on this case on February 10, 1997. Both parties adjusted their arguments to account for the federal decision. Davis briefed and argued the state constitutional issue; the State did not, arguing that the issue was “not fairly included” in the question on which we granted certiorari.
I believe this court should take this opportunity to correct the court of, appeals’ reading of State v. Lajferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988). Where a party raises and briefs an argument based on state constitutional law, and that theory, if adopted, could provide a separate and independent ground for decision, the: court should address the state constitutional argument. In Lajferty we stated “we will not engage in state constitutional analysis unless an argument for different analyses under the state and federal constitutions is briefed.” Id. The appellate court read this language to mean that because Davis argued for similar analytic approaches under both the Utah and U.S. Constitutions it need only decide the federal issue. See Davis, 903 P.2d at 942 n. 5. The Lajferty reference to “different analyses” is indeed ambiguous enough to give rise to this interpretation. However, we intended in Lajferty to refer to independent free-standing analysis, not to theoretically identical analysis. An illustration of this principle can be found in our opinion in American Fork City v. Crosgrove, 701 P.2d 1069 (Utah 1985). There, interpreting article 1 section 12 of the Utah Constitution, we ultimately adopted a theory of the nature of the privilege against self-incrimination identical to that used by *394the federal authorities construing the Fifth Amendment. Id. at 1074. However, we did so as a matter of independent, separate state constitutional analysis. See id. That is what we meant by a “different” analysis in Lajferty; it need not lead to a different result.. Where a party has properly raised and separately briefed its reasoning for interpreting the state constitution in a certain manner, the court hearing the case should decide the issue, whether or not the same result is urged under the federal provisions.
This court’s language in Lafferty was intended to discourage the practice by some litigants of making federal constitutional arguments and then mentioning, as an afterthought, that the act in' question “also” violates state constitutional law, without further explanation. Where a party makes a separate and independent argument under state constitutional law, the court should decide the issue, even if the argument is similar to that advanced under federal law. The policy prohibiting deciding questions on constitutional grounds when they could be decided on non-constitutional ones also favors deciding state constitutional questions before federal. See West v. Thomson Newspapers, 872 P.2d 999, 1005-1007 (Utah 1994); see also, Hans A. Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga. L.Rev. 165, 178 & n. 36 (1984). The theoretical basis for decision under the Utah Constitution and U.S. Constitution may in some instances be similar, see Barry Latzer, Four Half-Truths about State Constitutional Law, 65 Temp. L.Rev. 1123, 1133-35 (1992); see, e.g., Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971) (citing U.S. Supreme Court cases to support finding that educational financing system violates California’s Equal Protection Clause), but if a party properly asks Utah courts to answer a question of Utah law, they must do so. Even where some or much of the authority relied on for the state analysis is from federal sources, the court must decide the state constitutional issue if it is fairly presented as an independent question. Although the reasoning adopted may reflect or rely on federal authority, the state result may differ from the federal. See Latzer, at 1135 (citing different outcomes on “legitimate expectations of privacy”). If the result under state law does not resolve the federal question, the court must of course proceed to the federal analysis.
As we have observed previously, a failure to address state constitutional questions at the appellate level can cause significant obstacles and delays to the proper adjudication of constitutional issues. West v. Thomson Newspapers, 872 P.2d 999, 1005 n. 6 (Utah 1994) (relating history of a New York ease wherein the state court decided an issue under federal constitutional law, was reversed by the U.S. Supreme Court for so doing, and on remand invoked the New York Constitution first deciding the issue in a way substantially similar to its analysis under the federal Constitution). The failure to follow this path has created similar problems in this case. At the appellate level, Davis’s theory was that “punishment” had the same import under federal and state constitutional law. However, he did specifically argue that the Utah Constitution independently recognized forfeiture as punishment and thus the prosecution here violated his state constitutional right against double jeopardy as well as his federal right. Either theory, if successful, would prohibit prosecution. Thus the argument under the state provision was separate and independent, warranting decision.
Because the appellate court failed to decide the state constitutional issue and rested its entire decision on federal constitutional law, the U.S. Supreme Court’s decision in Ursery negated its definition of punishment, leaving the ease to be reconsidered in light of the change, and the state constitutional question still open. Because of this failure to consider the state constitutional issue, which was properly raised and briefed, the state double jeopardy doctrine question remains unaddressed.
Furthermore, the appellate court’s failure to treat the state constitutional issue caused confusion regarding the petition and grant of certiorari: the State did not think the Utah Constitution was at issue, but Davis did. We have therefore been asked to review a potentially dispositive question which has not yet been treated by the court of appeals. I *395believe we should remand to the court of appeals for treatment of the state constitutional question. As we have held in other cases, where the court of appeals fails to consider an argument properly before it, we will remand the case for consideration. See, e.g., State v. South, 924 P.2d 354, 357 (Utah 1996) (remanding case for consideration of alternate ground for affirmance where court had mistakenly refused to consider ground). Because Davis properly raised the state constitutional issue on appeal, and the court of appeals should have considered it, we should remand.
In a recent opinion, State v. Jackson, 937 P.2d 545 (Utah Ct.App.1997), the court of appeals refused to consider a state constitutional rule which would differ from the federal rule because “[s]uch a task lies more appropriately with the Utah Supreme Court.” Id. at 550. Although we have the final say on such issues, there are numerous benefits that come from consideration and treatment of unconstitutional issues by the appellate court in the first instance.
In conclusion, I would ask the court of appeals to decide the state constitutional question originally askéd of it in this case. If the answer to the state question had turned out to be dispositive in the first place, this case might have had a shorter history.1
ZIMMERMAN, J., concurs in Justice DURHAM’S dissenting opinion.. This point is consistent with what Justice Hans Linde has called “the original logic of federalism." If the state constitution prohibits a prosecution in violation of its double jeopardy clause, there are no grounds for arguing that state law violates the federal Constitution. Just as we routinely rely on statutory or common law principles before turning to constitutional ones to determine rights, we should clarify what state law permits before we consider claimed federal constitutional violations. See Sterling v. Cupp, 290 Or. 611, 625 P.2d 123, 126 (1981); Hans A. Linde, Without "Due Process", Unconstitutional Law in Oregon, 49 Or. L.Rev. 125, 133-35 (1970).