(specially concurring).
Justice McClintock objects to this court deciding a constitutional question not raised by the appellant and observes that the result of so deciding the appeal may be to jeopardize the defendant’s United States Supreme Court rights of appeal. I concur —but I would add this:
The precise concept with which I find myself in disagreement is raised by the following from the majority’s opinion:
“After examination of the record, we have great difficulty understanding the defendant’s position that it was not established by the State during the trial that a tape-recorded confession and a transcript of the recording, signed by the defendant, were knowingly and voluntarily given under the Fifth Amendment to the Constitution of the United States. Any holding we make in this regard will be made under a like provision of the ConstiUition of the State of Wyoming. Section 11, Article I, Wyoming Constitution, provides that: ‘No person shall be compelled to testify against himself in any criminal case, * * *.’7” [Emphasis supplied]
“7. Amendment V to the United States Constitution provides, ‘ * * ⅜ nor shall he [No person] be compelled in any criminal case to be a witness against himself. ⅜ * * » a
I would and do concur in a result which says that neither the defendant’s federal nor state constitutional rights were in fact violated. However, the query raised by the court’s refusal to consider the federal constitutional issue relied on by the appellant and in our basing the decision in this appeal on a corollary state constitutional question not raised by the defendant is this:
Does the court’s disposing of the appellant’s federal constitutional claim under a corollary state constitutional provision have the effect of denying or jeopardizing his right of appeal to the United States Supreme Court?
Appellant urges that it was not established by the State during the trial that a tape-recorded confession and a transcript of the recording, signed by him, were knowingly and voluntarily given under the Fifth Amendment of the United States Constitution. I am in agreement with the majority opinion as it disposes of this claim by holding that appellant’s confession was knowingly and voluntarily given in conformity with constitutional standards. However, while appellant charges a violation of his Federal Fifth Amendment right, the majority opinion, while relying in large part on an analysis of federal case authority, nevertheless, bases its decision solely upon the question of whether the defendant’s rights under Section 11, Article I, of the Wyoming Constitution have been violated.
I have, in the past, expressed rather vociferous concern with our inclination, in certain instances, to decide appeals on issues not raised by the parties. Simpson v. Petroleum, Inc., Wyo., 548 P.2d 1; and Allen v. Allen, Wyo., 550 P.2d 1137.
In Simpson, where the majority decided that the defendants’ fair-trial guarantee had been abused by inadequate notice of hearing, I dissented — not because I do not seek to jealously guard the right to fair trial but because that issue was not raised in the appellate process — at least I did not think it was.
In Allen, supra, the majority decided the appeal, in part at least, on the doctrine of judicial estoppel when that affirmative defense had never been asserted, relied upon *1236or argued. This language from the majority in Allen frightened me then and frightens me now:
“We are not a bit concerned that the matter of judicial estoppel was not raised in the lower court or argued by either of the parties. This court has general superintending control over all the courts of the state [citing, by footnote 4, Section 2, Article V, Wyoming Constitution] and the Wyoming judicial system in general. It is our duty to protect its integrity and prohibit dealing lightly with its proceedings. We are at liberty to decide a case upon any point which in our opinion the ends of justice, require, particularly on a point so fundamental that we must take cognisance of it.’’ [Emphasis and parenthetical matter supplied]
I understand this to say that this court will first decide what the ends of justice are and then tailor its decisions to fit them— no matter whether the parties raise such issues as we later decide are compatible with what we envision “the ends of justice” to be or not. This theory of appellate review and decision-making conceives of excessive and unauthorized power in this court, which I reject.
Where does this unbridled power lead us? It leads inevitably to the never-never land in which we have arrived in the instant matter. For me, the majority opinion in the case at hand stands for this proposition:
Even though the defendant has urged as an appellate issue a violation of his federal constitutional rights, we — out of hand — refuse to even consider that and, instead, substitute an issue not raised by the appellant but chosen by us, namely, a corollary state constitutional question.
I know of no philosophy of the law, absent plain error or a jurisdictional defect, which I can embrace that authorizes an appellate court to do this — especially where the effect is to place in jeopardy rights which the appellant has sought to protect in the appellate process. There are no case or encyclopedia citations furnished by the majority which support its decision to discard the theory of appellant’s appeal and to substitute a theory of this court’s choosing.
Besides being questionable appellate practice, the result here — in my judgment —places in real and practical jeopardy the appellant’s right of appeal to the United States Supreme Court.
Review by the United States Supreme Court
The jurisdiction of the United States Supreme Court to review the final judgment of the highest court of a state in which a decision could be had is defined in 28 U.S.C.A., § 1257(3). Under this section review is possible by writ of certiorari where any title, right, privilege or immunity is specially set up or claimed under the Constitution of the United States. There is no requirement that the state court shall have decided the federal question in a particular way. R. Robertson and F. Kirk-ham, Jurisdiction of the Supreme Court of the United States, § 15 (R. Wolfson & P. Kurland ed. 1951).
Standards governing the exercise of the Supreme Court’s discretionary power of review upon writ of certiorari are set forth in U.S.Sup.Ct. Rule 19, 28 U.S.C.A. It provides in pertinent part:
“1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered :
“(a) Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.” [Emphasis supplied]
*1237As the foregoing rule indicates, the petitioner is obliged to show that a substantial federal question exists. Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74, 75 S.Ct. 614, 616, 99 L.Ed. 897 (1955). Further, in illustrating the character of reasons which may be deemed “special and important,” the rule refers to cases involving a federal question which either is of first impression or has been erroneously decided in the state court.1 It then becomes clear that if this court had actually decided the federal question raised by appellant’s claim, it could have been reviewed on a writ of certiorari in the United States Supreme Court, provided that this case would there be considered as one in which there are special and important reasons for granting the' writ.2 Since this court did not decide the federal question, the jurisdiction of the United States Supreme Court to review this case on a writ of cer-tiorari is automatically foreclosed.
It may, therefore, be concluded that the majority’s decision to disregard the federal constitutional grounds raised by the appeal and to adopt a state constitutional question not raised is to foreclose to the appellant one avenue of the appellate process absolutely — namely, the writ of certiorari. This is so because the posture of this opinion now is that there has been no state supreme court decision upon a title, right, privilege or interest claimed under the Constitution of the United States.
It is conceded that a right of review can be predicated on the failure of the highest state court to pass on a federal question provided the question was properly presented in the state courts. Street v. New York, 394 U.S. 576, 583, 89 S.Ct. 1354, 1361, 22 L.Ed.2d 572 (1969); Bailey v. Anderson, 326 U.S. 203, 207, 66 S.Ct. 66, 68, 90 L.Ed. 3d (1945); 36 C.J.S. Federal Courts § 274(2) and cases cited therein. Whether a federal question was sufficiently and adequately raised in the state court is itself ultimately a federal question, and the Supreme Court is not bound by the decision of the state court.3 Street v. New York, supra, 394 U.S. at 583, 89 S.Ct. 1354.
In the case at bar, since appellant raised an objection at trial over the admissibility of the tape-recorded confession and signed statement, and then later raised the related constitutional question as an issue on appeal, there is no doubt that the federal question was properly presented as a matter of state procedure. Appellant, therefore, could predicate review on the failure of this court to pass on his federal constitutional claim. However, this shades into the inquiry of whether or not the majority decision rested upon an adequate state ground.
It is a well-established principle that the United States Supreme Court will decline to review judgments of state courts which rest on adequate and independent state grounds even where these judgments also decide federal questions. Murdock v. City of Memphis, 87 U.S. 590, 20 Wall 590, 636, 22 L.Ed. 429 (1875); Henry v. State of Mississippi, supra note 3, 379 U.S. at 446, 85 S.Ct. 564; and Herb v. Pitcairn, 324 U.S. 117, 125, 65 S.Ct. 459, 463, 89 L. *1238Ed. 789 (1945). The state ground must not be without any fair or substantial support. Ward v. Board of County Corners, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920). Where the decision of the state court rests on substantive grounds,
“ . . . the determination of the federal question cannot affect the disposition if the state court decision on the state law question is allowed to stand. Under the view taken in Murdock of the statutes conferring appellate jurisdiction on this Court [United States Supreme Court], we have no power to revise judgments on questions of state law. Thus, the adequate nonfederal ground doctrine is necessary to avoid advisory opinions.”4 Henry v. State of Mississippi, supra note 3, 379 U.S. at 446-447, 85 S.Ct. at 567. [Bracketed matter supplied]
Therefore, the review by the United States Supreme Court on the merits can be precluded if the state court decides the case exclusively on some ground of state law and never reaches a federal question present in the case.5
In determining the adequacy of state grounds for decision, the United States Supreme Court applies its own criteria and determines the inquiry for itself. In Abie State Bank v. Weaver, 282 U.S. 765, 773, 51 S.Ct. 252, 255, 75 L.Ed. 690 (1931), the Supreme Court stated:
“. . . [T]he federal ground being present, it is incumbent upon this court, when it is urged that the decision of the state court rests upon a nonfederal ground, to ascertain for itself, in order that constitutional guarantees may appropriately be enforced, whether the asserted nonfederal ground independetly and adequately supports the judgment. . ."
Since the majority decides the issue raised by appellant’s claim on state constitutional grounds, application of the adequate state ground doctrine could result in the denial of the United States Supreme Court’s jurisdiction to review appellant’s claim as a matter of federal constitutional law.
The overriding principle disposing of the issue discussed above is the adequate state ground doctrine. It is, in my opinion, very probable that the Supreme Court would apply the doctrine in this case to deny appellant review of his federal claim. The recent trend of that Court has been to remove many of their cases out of the federal jurisdiction.
If there is even a possibility that the effect of what we have done in ignoring the federal ground of appeal and adopting the state constitutional ground is to deny and hinder the defendant’s access to the United States Supreme Court, I would conclude that our action in this appeal is arbitrary and without authority.
Not only do I voice objection to decision-making upon grounds not urged by the appellant as a matter of appellate principle, but in this appeal I find the path of appeal to the United States Supreme Court to be truly inhibited by our employment of this practice, and, therefore, I cannot agree with the majority decision.
*1239I concur in the result reached by the majority, concur in the concurring opinion of McCLINTOCK, J., but reject the method by which the majority comes to its conclusions for all the reasons stated above.
. The considerations listed in Rule 19 are illustrative but not exhaustive of the factors which preclude adjudication on the merits of cases which may have the appearance of public importance. Rice v. Sioux City Memorial Park Cemetery, supra.
. I grant it to be conceivable that appellant’s petition for a writ of certiorari might be denied. In light of the recent decisions of the Supreme Court limiting the application of Miranda standards, this case might be regarded as not presenting a substantial federal question of special importance. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 324, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting) ; and Baxter v. Palmigiano, - U.S. -, 96 S.Ct. 1551, 1568, 47 L.Ed.2d 810 (1976) (Brennan, J„ dissenting).
.In such cases, however, the determination is whether the state court has bypassed the federal right under forms of state procedure. See, e. g., Street v. New York, supra 394 U.S. at 583, 89 S.Ct. 1354; Douglas v. State of Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934 (1965); Henry v. State of Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965).
. See also Herb v. Pitcairn, supra, 324 U.S. at 125-126, 65 S.Ct. 459, and the reasons for adequate state ground rule stated therein.
. These cases are usually those in which the state court has held that the state constitution lias been violated and thus does not consider it necessary to discuss the federal question. See, e. g., So. Burlington Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151, 336 A.2d 713, cert. den. 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975). Some state courts in recent years have imposed higher standards under their state constitutions than is required by the federal constitution. See cases cited in the dissenting opinions of Justice Brennan in Michigan v. Mosley, supra note 2 at 334, and in Boxter v. Palmigiana, supra note 3, 96 S.Ct. at 1568. However, research does not produce any reported decisions whereby the Supreme Court declined review where the state court held its state constitution was not violated without discussing the federal constitutional provision asserted.