No. 80-405
I i J TEE SUPREME COURT O TI-IE STATE O MOT.JTANA
F F
1983
THE STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
ROBERT CHARLES JACKSON ,
D e f e n d a n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f G a l l a t i n ,
The H o n o r a b l e J o s e p h B . Gary, J u d g e p r e s i d i n g .
ON R M N F O
E A D R M U N I T E D STATES SUPREME COURT
For Appellant:
Hon. Mike G r e e l y a r g u e d , A t t o r n e y G e n e r a l , X e l e n a ,
Montana
S a r a h Power a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
A . I ~ l i c h a e lS a l v a g n i , County A t t o r n e y , Bozeman, Montana
For Respondent:
Goetz & Madden; Zames Goetz a r g u e d , Rozeman, Pqontana
F o r Amicus C u r i a e :
Mark C o n n e l l ; B a l d a s s i n , C o n n e l l & Beers, M i s s o u l a ,
Montana (American C i v i l L i b e r t i e s Union)
-- -- - - . - -- --
.
Submitted: May 3 1 , 1 9 8 3
Decided : October 21, 1983
Filed: OCT 2 i 1983
- -
. . - -
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This case comes to us for the second time following
remand by the United States Supreme Court.
This case began when defendant, Robert Charles Jackson,
was cha.rged with driving a motor vehicle while under the
influence of alcohol, fourth offense, a misdemeanor, in the
District Court of Gallatin County. During the course of
prosecution, the District Court entered an order suppressing
all evidence of Jackson's refusal to submit to a breathalyzer
sobriety test. On appeal, this Court affirmed the District
Court in a 4-3 decision.
On application by the State, the United States Supreme
Court granted certiorari, reviewed our decision, and entered
the following order which we quote in pertinent part:
"The petition for writ of certiorari is
granted. The judgment is vacated and the
case is remanded to the Supreme Court of
Montana to consider whether its judgment
is based upon federal or state
constitutional grounds, or both, and, if
its judgment is not based upon state
constitutional grounds, for further
consideration in light of South Dakota v.
Neville, 459 U.S. , (1983) ."
The factual background of this case commenced on June
6, 1980, when Jackson was arrested by Bozeman police for
driving under the influence of alcohol. At the police
station, he was asked to submit to a breathalyzer test. He
refused. This was recorded on videotape together with his
performance of certain coordination tests.
Jackson was charged with driving a motor vehicle under
the influence of alcohol, fourth offense, in violation of
section 61-8-401, MCA. He filed a motion in limine seeking
suppression of all evidence of any license suspension
resulting from tha.t refusal. The District Court granted
suppression, apparently holding that part of Montana's
implied consent statute permitting the admission of such
evidence unconstitutional.
On appeal, this Court in a split decision affirmed the
District Court on the basis that such refusal was testimonial
in nature and coerced; hence, admission of such evidence
would violate Jackson's right against self-incrimination
guaranteed by the Fifth Amendment to the United States
Constitution and Article 11, Section 25, of the Montana
Constitution. State v. Jackson (1981), 195 Mont. 185, 637
P.2d 1.
The Montana Attornev General filed a petition for writ
of certiorari seeking a review of our decision by the United
States Supreme Court. Thereafter, the United States Supreme
Court issued an opinion in a South Dakota case holding that
the Fifth Amendment protection against self-incrimination did
not prohibit admission in evidence of a person's refusal to
take a blood-alcohol sobriety test in a DUI prosecution under
South Dakota's implied consent statute. South Dakota v,
Neville (1983), 459 U.S. , 103 S.Ct. 916, 74 L.Ed.2d 748.
Finally, the United States Supreme Court vacated our judgment
in the instant case and remanded it to us for further
consideration as heretofore set forth.
On remand, we ordered supplemental briefing and heard
oral argument on May 31, 1983.
Two issues are presented for our consideration:
1. Was our Jackson decision based on federal or state
constitutional grounds, or both?
2. If our Jackson decision was not based on state
constitutional grounds, was it overruled by South Dakota v.
Neville? '
The State contends that there are no a.dequate and
independent state constitutional grounds supporting this
decision.
Court's ~ackson/ The State argues that our Jackson opinion
rests on an an.alysis of federal cases construing the Fifth
Amendment protection against self-incrimination and no
reasons are given in the Jackson opinion for construing
Montana ' s constitutional prohibitions against
self-incrimination any differently. The State points to
prior decisions of this Court holding that Montana's
constitutional provision against self-incrimination affords
no broader protection to the accused than does the Fifth
Amendment in the United States Const.itution.
Jackson contends that this Court in Jackson expressly
held that its decision was based on state constitutional
grounds as well as federal constitutional grounds. He a.rgues
that this Court in Jackson gave reasons for according greater
breadth to Montana's constitutional prohibition against
self-incrimination than that in the federal constitution by
its ana.lysis of cases from other states. Jackson buttresses
his argument by pointing out references in Jackson to state
constitutional considerations.
The United States Supreme Court has addressed this
question on numerous prior occasions to determine its
authority to review a state court decision. It is well
settled that the United States Supreme Court is the ultimate
authority in interpreting provisions of the United States
Constitution just as the state supreme court is the ultima-te
authority in interpreting the provisions of its state
constitution. A problem arises when it is unclear whether a.
state decision is ba.sed on the United States Constitution or
the state constitution, or both. Essentially, the United
States Supreme Court has ruled that unless the state court
opinion is based on adequate and independent state grounds,
the United States Supreme Court has jurisdiction to review
it. Michigan v. Long (1983), - U.S. , 103 S.Ct. 3469,
77 L.Ed.2d 1201; South Dakota v. Neville, supra; Delaware v.
Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660;
Zacchini v. Scripps-Howard Broadcasting Co. (1977), 433 U.S.
Within this basic framework, the United States Supreme
Court has developed more specific guidelines. Where the
state supreme court "held as it did because it felt under
compulsion of federal law as enunciated by this Court so to
hold, it should be relieved of tha.t compulsion. It shou1.d be
free to decide ... these suits according to its own local
law." Missouri ex rel. Southern R. Co. v. ~ayfield (1950),
340 U.S. 1, 5, 71 S.Ct. 1, 95 L.Ed. 3, cited with approval. in
Zacchini v. Scripps-Howard Broadcasting Co., supra. If the
state court "felt compelled by what it understood to be
federal constitutional considerations to construe ... its
own 1a.w in the manner it did," then the United States Supreme
Court will not treat a normally a-dequate state ground as
independent and its jurisdiction is clear. Delaware v.
Prouse, 440 U.S. at 653. The essence of the principle
applicable to resolution of the issue has recently (July 6,
1983) been summarized in this manner:
". .
. Accordingly, when, as in this
case, a state court decision fairly
appears to rest primarily on federal law,
or to be interwoven with the federal law,
and when the adequacy and independence of
any possible state law ground is not
clear from the face of the opinion, we
will accept as the most reasonable
explanation that the state court decided
the case the way it did because it
believed that federal Law required it to
do so. If a, state court chooses merely
to rely on federal precedents as it would
on the precedents of all other
jurisdictions, then it need only make
clear by a plain statement in its
judgment or opinion that the federal
cases are being used only for the purpose
of guidance, and do not themselves compel
the result that the court has
reached. . ." Michigan v. Long, 103
S.Ct. at 3476, 77 L.Ed.2d at 1214.
Our original Jackson decision contained statements that
to admit evidence of refusal to submit to a breatha-lyzer
sobriety test would violate the Fifth Amendment privilege
against self-incrimination and Montana's privilege against
self-incrimination guaranteed by Article 11, Section 25 of
the Montana Constitution. The opinion indicates that the
basis of that ruling was that such refusal is testimonial in
nature and coerced, thus falling within the ambit of
protection against self-incrimination.
As we read the Jackson opinion, tha.t conclusion is
reached primarily by an analysis of federal cases
interpreting the Fifth Amendment protection against
self-incrimination. Schmerber v. California (1966), 384 U.S.
757, 86 S.Ct. 1826, 16 L.Ed.2d 908, is distinguished on the
basis that a blood sample is real, physical evidence of a
nontestimonial nature beyond Fifth Amendment protection.
Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 ~ . ~ d . 2 d
91, was cited for the proposition that a person's refusal to
take a sobriety test is an overt communication of that
person's thoughts, compelled by the police, from which it was
reasoned that it was protected against self-incrimination by
the Fifth Amendment; a statement follows that under our
constitution, the privilege against self-incrimination of an
accused person's thoughts, whether by acts or words spoken,
and the fact it does not extend its protection to forbid the
compulsory exhibition of physical characteristics does not
nullify the protection it does provide; Hoffman v. United
States (1951), 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, and
Murphy v. Waterfront Comm'n (1964), 378 U.S. 52, 84 S.Ct.
1594, 12 L.Ed.2d 678, were cited as support for a liberal
construction of the Fifth Amendment in favor of the accused
followed by a statement that we must also liberally construe
Article 11, Section 25, of the Montana Constitution.
A number of state decisions are cited as examples of
state rulings that the admission of evidence of a refusal to
take a sobriety test violates the privilege against
self-incrimination. Of the state cases cited, four are based
on interpretation of the Fifth Amendment to the United States
Constitution, one is based on both federal and state
constitutions, and two are based exclusively on their own
state constitutions (State v. Andrews (Minn. 1973), 212
N.W.2d 863, and Application of Baggett (Okla. 1974), 531 P.2d
1011). No reasons are given in Jackson why we should
interpret our own constitution the same as Minnesota and
Oklahoma interpreted theirs, nor does the opinion contain any
analysis or reason for extending the scope of Montana's
constitutional protection against self-incrimination beyond
that afforded by its Fifth Amendment counterpart in the
federal constitution. The Jackson opinion ignores prior
rulings by this Court that the Montana constitutional
guarantee of the privilege against self-incrimination affords
no broader protection to an accused than does the Fifth
Amendment (State v. Armstrong (1976), 170 Mont. 256, 552 P.2d
616) and that the opinion of the United States Supreme Court
delineates the maximum breadth of the privilege against
self-incrimination in Monta.na (State v. in ley (19771, 173
Mont. 162, 566 P.2d 1119).
In sum, we read the Jackson opinion as based primarily
on United States Supreme Court decisions interpreting the
Fifth Amendment to the United States Constitution. Any
reference to the state constitution is not independent of the
federal constitutional decisions interpreting the Fifth
Amendment. No reasons are given nor an analysis made for
extending our state constitutional protections against
self-incrimination beyond that afforded by its federal
counterpart. The following language of the United States
Supreme Court in a Michigan case is equally applicable to our
Jackson opinion:
". . . The references to the state
constitution in no way indicate that the
decision below rested on grounds in any
way independent from the state court ' s
interpretation of federal law. Even if
we accept tha.t the Michigan constitution
has been interpreted to provide
independent protection for certain rights
also secured under the Fourth Amendment,
it fa.irly appears in this case that the
Michigan Supreme Court rested its
decision primarily on federal law."
Michigan v. Long, 103 S.Ct. at 3477, 77
L.Ed.2d at 1216.
We now reconsider our Jackson decision in the light of
South Dakota v. Neville, supra. In that case ~evillewas
stopped by two Madison, South Dakota, police officers after
they saw him fail to stop at a stop sign. The officers asked
him for his driver's license and asked him to get out of the
car. As Neville left the car, he staggered and fell against
the car to support himself. The officers smelled alcohol on
his breath. Neville did not have a driver's license and
informed the officers that it was revoked after a previous
driving-while-intoxicated conviction. The officers asked him
to touch his finger to his nose and to walk a straight line.
When Neville failed these field sobriety tests, he was placed
under arrest and read his Miranda rights. He a.cknowledged
that he understood these rights and agreed to talk without a
lawyer present. Reading from a printed card, the officers
then asked Neville to submit to a blood-alcohol test and
warned him that he could 1-ose his license if he refused.
Neville refused to take the test stating, "I'm too drunk, I
won't pass the test." The officers again read the request to
submit to a test and then took Neville to the police station,
where they read the request to submit a third time. Neville
continued to refuse to take the test, again saying he was too
drunk to pass it.
South Dakota law provides that refusal to submit to a
blood-alcohol test "may be admissible into evidence at the
trial." Another South Dakota statute specifically provides
that evidence of refusal to submit to a chemical analysis of
blood, urine, breath or other bodily substance "is admissible
into evidence" at a trial for driving under the influence of
alcohol and tha.t a person "may not claim privilege against
self-incrimination with regard to admission of refusal to
submit to chemical analysis."
The trial court granted suppression for three reasons:
(1) the South Dakota statute allowing evidence of refusal
violated Neville's federal constitutional rights; (2) the
officers failed to advise Neville that the refusal could be
used against him at the trial; and, (3) the refusal was
irrelevant to the issue at the trial. The South Dakota
Supreme Court affirmed the suppression on the ground that the
statute allowing introduction in evidence of the refusal
violated the federal and state privilege against
self-incrimination. The South Dakota Supreme Court reasoned
that the refusal was a communicative act involving Neville's
testimonial capacities and that the state compelled this
communication by forcing Neville "to choose between
submitting to a perhaps unpleasant examination and producing
testimonial evidence against himself." State v. Neville
(S.D. 1981), 312 N.W.2d 723, 726.
The United States Supreme Court granted certiorari and
upon review reversed the judgment of the South Dakota Supreme
Court. The United States Supreme Court held that the
admission in evidence of a defendant's refusal to submit to a
blood-alcohol test did not offend his Fifth Amendment right
against self-incrimination. The Court reasoned that a
refusal to take such a test after a police officer has
lawfully requested it is not an act coerced by the officer
and thus is not protected by the privilege against
self-incrimination. The Court reasoned that the offer of
taking the test is clearly legitimate and becomes no less
legitimate when the state offers a second option of refusing
the test with the attendant penalties for making that choice.
The United States Supreme Court went on to hold that it
was not fundamentally unfair or in violation of due process
to use Nevil-letsrefusal to take the blood-alcohol test as
evidence of guilt, even though the police failed to warn him
that the refusal could be used against him at the trial. The
court held that such failure to warn was not the sort of
implicit promise to forego use of evidence that would
unfairly "trick" Neville if the evidence were later offered
against him at the trial.
Montana's implied consent law provides in pertinent
part that any person who operates a motor vehicle on the
public highways shall be deemed to have given his consent to
a chemical test of his blood, breath or urine if arrested by
an officer for driving a motor vehicle while under the
influence of intoxicating liquor. Section 61-8-402(1), MCA.
The statute further provides that if he refuses, no test
shall be given but that his driver's license shall be
suspended for sixty days under certain circumstances.
Section 61-8-402 ( 3 ) , MCA. The implied consent law also
provides that proof of refusal to submit to the test is
admissible in evidence upon his tria.1 for DUI. Section
61-8-404, MCA.
In the instant case, Jackson is alleged to have refused
to submit to a breathalyzer sobriety test. The United States
Supreme Court has clearly held that the admission in evidence
of a defendant's refusal to submit to a blood-alcohol test in
a DUI prosecution does not violate the defendant's Fifth
Amendment right against self-incrimination. Since Montana's
implied consent law covers a breath test as well as a
blood-alcohol test, as does South Dakota's, the Neville case
is squarely applicable to Jackson and compels reversal of the
District Court's suppression of evidence of refusal on Fifth
Amendment grounds.
The Neville decision likewise forecloses defendant's
claim that the Montana statute offends Jackson's right
against self-incrimination under Montana's Constitution,
Article 11, Section 25. The Fifth Amendment to the United
States Constitution provides, " [nlo person ... shall be
compelled in any criminal case to be a witness against
himself . . ." while its counterpart in the Montana
Constitution provides, "[nlo person shall be compelled to
testify against himself in any criminal proceeding." The
language used in the two constitutions is substantially
identical and affords no basis for interpreting Montana's
prohibition against self-incrimination more broadly than its
federal counterpart. Nor do we find any indication in the
proceedings of Montana's Constitutional Convention that would
indicate that the framers intended to grant any broader
protection thereunder than that contained in the Fifth
Amendment to the United States Constitution.
Moreover, this Court has expressly held to the
contrary. "The Montana constitutional guaranty affords no
greater protection than that of the Federal constitution."
State v. Armstrong, supra, 552 P.2d at 619. A year later we
relied on this statement in Armstronq and further held,
"[tlhe opinions of the United States Supreme Court,
therefore, delineate the maximum breadth of the privilege
against self-incrimination in Montana." State v. Finley,
supra, 566 P.2d at 1121.
Accordingly, we hold that the Montana constitutional
prohibition against self-incrimination is not offended by the
admission in evidence of defendant's refusal to submit to a
breathalyzer sobriety test pursuant to section 61-8-404, MCA.
wedo notreach the question of whether evidence of
defendant's license suspension is admissible. Although that
issue was included in defendant's motion in limine, it was
neither briefed nor argued in the District Court nor in this
Court on appeal.
The order of the District Court suppressing evidence of
Jackson's refusal to submit to a breathalyzer sobriety test
is reversed. This cause is remanded to the District Court of
Gallatin County for further proceedings.
We concur:
Justices
Mr. Justice Frank B. Morrison, Jr. specially concurring.
I concur in the result. Originally my vote was to find
the subject statute unconstitutional as a violation of
Jackson's right against self-incrimination. At that time my
vote was not based upon independent State grounds but rather
upon my own interpretation of the Fifth Amendment to the
United States Constitution and Article 11, Section 25 of the
Montana Constitution. Furthermore, I tried to determine what
the United States Supreme Court would do when confronted with
the question.
My feeling is that where language in the Montana State
Constitution is identical to language in the United States
Constitution, we should feel bound by determinations made by
the United States Supreme Court in interpreting that
Language. Therefore, though I disagree with the decision of
the United States Supreme Court, my vote is to follow their
interpretation.
Mr. Justice John C. Sheehy, dissenting:
I dissent.
In our original opinion in this case, we had examined
the rights guaranteed our citizens under state constitutional
principles, in the light of federal constitutional decisions.
Now the United States Supreme Court has interjected itself,
commanding us in effect to withdraw the constitutional rights
which we felt we should extend to our state citizens back to
the limits proscribed by the federal decisions. Effectively,
the United States Supreme Court has intruded upon the rights
of the judiciary of this sovereign state.
Instead of knuckling under to this unjustified expansion
of federal judicial power into the perimeters of our state
power, we should show our judicial displeasure by insisting
that in Montana, this sovereign state can interpret its
constitution to guarantee rights to its citizens greater than
those guaranteed by the federal constitution.
I agree with Justice Stevens, who dissented in Michigan
v. Long (Decid.ed July 6, 1983) No. 82-256, U.S.
We can pa.ra.phrasewhat his majority has done to Montana by
quoting from his dissent:
"In this case the State of [Montana] has arrested
one of its citizens and the [Montana] Supreme Court
has decided to turn him loose. The respondent is a
United States citizen as well as a [Manta-na]
citizen, but since there is no claim that he has
been mistreated by the State of [Montana], the
final outcome of the state processes offended no
federal interest whatever. [Montana] simply
provided greater protection to one of its citizens
than some other State might provide or, indeed,
than this Court might require throughout the
country." Slip opinion at 4.
What Justice Stevens is saying, and I am glad to echo,
is that the United States Supreme Court has no business
contravening the final decisions of a state judiciary where
no federal right guaranteed to all citizens has heen
offended. Constitutional rights are guaranteed to persons,
not states. Here the State has complained to the United
States Supreme Court because its own state judiciary has
protected the constitutional rights of one of its citizens,
and extended those rights beyond what the State perceives as
the federal limits. It has always been the rule that the
states could extend federal constitutional rights past the
boundaries of the federal limitations as defined by the
federal judiciary, but could not delimit such constitutional
rights to a lesser degree than would be permitted under
federal rules. In other words, the United States Supreme
Court historically has intervened to make sure that persons
who seek to vindicate federal rights have been fairly heard.
Historically, as Justice Stevens pointed out, the United
States Supreme Court reviewed the findings of fact of a state
court, only "where a federal right has been denied." Slip
opinion at 5.
No federal rights of a citizen were denied in our
original opinion in this case.
The general public may have a perception that courts
operate in a degree of permanency, interpreting constitutions
and laws unchangingly. That perception is most misleading.
The shades of opinion and the quality of a court's
interpretations are transient, depending in large measure
upon the changing personnel making up the court, and the
ability of its members to withstand the tides of public
opinion. The most illustrative example of this transiency is
the United States Supreme Court itself. Its vagaries of
opinions in the fields of civil rights, human rights,
education, and the rights of states in the past 20 years must
be astounding to anv student of judicial history. The result
of the decision in Michigan v. Long will be, as Justice
Stevens said, a swelling increase in the number of cases the
United States Supreme Court will be called on to interpret,
where states complain that their own judiciaries have granted
greater rights than the federal decisions have allowed. The
great likelihood is that the United States Supreme Court must
in the future reverse its position and adopt a stance that
adequate state grounds for its decision are independent of
federal grounds unless it clearly appears from the state's
opinion otherwise. We should at least attempt to force the
United States Supreme Court to come to that proper stance.
If a majority of this Court had the will to press the
issue, we cou1.d put the question to the United States Supreme
Court four-square, that this State judiciary has the right to
interpret its constitution in the light of federal decisions,
and to go beyond the federal decisions in granting and
preserving rights to its citizens under its state
constitution. That is the route I would take in this case.
Justice
Mr. Justice Daniel J. Shea, dissenting:
I join in Justice Sheehy's dissent and add my own
dissent to the decision of the majority to undo what we
declared the law to be in State v. Jackson (1981), 195 Mont.
(In this dissent, I refer to our 1981
Jackson decision as Jackson - and to the present decision a s
I .
Jackson -
11.) I dissent not because I believe opinions I have
authored are cast in granite, but because the majority here
has ignored the full import of our decision in Jackson - the
I,
import of which they fully recognized in their dissent. We
held that not only were the defendant's constitutional rights
violated under the Fifth Amendment to the United States
Constitution, but also and as an independent ground, [that
defendant's rights were violated under the self-incrimination
of Art. 11, § 25 of our own state constitution.] In the
guise of compliance with the mandate of the United States
Supreme Court's order of remand vacating our judgment, the
majority has simply rewritten Jackson to comport with its own
views as to interpreting our state constitution. In doing
so, the majority has delegated to the United States Supreme
Court our duty to interpret our constitution. This
constitutes an abdication of our duty to interpret our own
constitution.
Before launching into the body of my dissent, I detour
here to comment on the current trends to crack down on drunk
driving. Those trends are laudable and every effort to do so
is a step in the right direction--provided that no
constitutional rights are violated in the process. In South
Dakota v. Neville (1983), - U.S. , 103 S.Ct. 916, 74
L.Ed.2d 748, the United States Supreme Court referred. to the
carnage of our highways as a result of drunk driving. No one
can deny the tragic statistics relating to drinking and
driving. However, the criminal law does not have to be
enforced in such a manner as to ca.use a. head-on confrontation
with either the Fifth Amendment or Art. 11, 5 25 of our own
constitution. Driving is a privilege, and tha.t privilege can
be revoked. I see nothing unconstitutional in a law
providing that if a driver (on reasonable probable cause) is
asked by a law officer to give a blood alcohol sample or a
breath sample and refuses to do so, his license can be
suspended. The refusal can be the triggering event for
suspension. However, if the State chose, it could still
proceed against the defendant on a charge of driving while
intoxicated. In the criminal proceeding, however, the State
should not be able to use the defend.ant1srefusal against him
as a tacit admission that his refusal was based on his belief
that he could not pass the test. That, in my judgment,
violates at least Art. 11, 5 25 of our own constitution, and.
that is what I thought we held in Jackson -
I.
As the author of Jackson - I clearly made a mistake,
I,
for I did not recognize the extent to which the United States
Supreme Court stood ready to intrude on the judicial affairs
of this state in interpreting our own constitution. However,
the remand order failed to analyze our decision, for to have
done so would have been to recognize that we did indeed rely
on Art. 11, 5 25, as an independent ground of decision.
Instead, the Supreme Court remanded the case to this Court to
determine whether our decision "was based upon federal or
state constitutional grounds, or both,. . ." (Emphasis
added. ) A reading of our decision should have told an
objective United States Supreme Court that our decision was
based - - and
on both tha.t a decision based on our own
constitution was sufficient for that Court to deny
certiorari.
In his dissent from the majority's remand order,
however, Justice Stevens did take the time to analyze this
Court's decision in Jackson - and he was eminently satisfied
I,
that we clearly based our decision on an independent state
ground by relying on Art. 11, S 25 of our own constituti-on.
I quote Justice Steven's dissent in full so that the reader
can make his or her own determination of whether this Court
reached its decision on an independent sta.te ground.
"Justice Stevens, dissenting.
"In its opinion explaining its holding that the
defendant's refusal to submit to a breathalizer
sobriety test is inadmissible, the majority of the
Supreme Court of Montana stated, in part:
"'We hold that such refusal is testimonial in
nature and that to admit evidence of the fact of
refusal would violate the defendant's Fifth
Amendment privilege as guaranteed by the United
States Constitution, and would further violate
defendant's privilege as guaranteed by Art. 11, S
25 of the Montana Constitution. ' App. to Pet. for
Cert. A-2.
"After analyzing the federal constitutional
question in the light of this Court's opinion in
Schmerber - Californ-ia, 384 U.S. 757, the court
v.
continued:
"'The issue is also controlled by Art. 11, S 25 of
our own constitution, which provides that "no
person shall be compelled to testify against
himself in a criminal proceeding." The issue
involves a communication that is testimonial in
nature, and we must resolve the issue by applying
Art. 11, S 25. Clearly, to permit evidence of
defendantt refusal to take the breathalyzer test
s
would violate not only the United States
Constitution, but also our own constitution.'
" 'In State v. Finley (1977), 173 Mont. 162, 566
P.2d 1119, we held that a defendant's privilege
against self-incrimination was not violated by
admitting into evidence a videotape recording of
his post-arrest words and actions. We decided that
the tape had not been introduced for the
incriminating content of the words uttered by the
defendant, but rather for the purpose of aiding the
jury in understanding the testimony of the
witnesses who had observed the defendant's unsteady
walk and his slurred speech after his arrest. We
specifically noted that the videotape did not
contain incriminating responses to interrogation by
the police. But the same situation does not exist
here. It is obvious that defendant's refusal is
inherently self-incriminating because it carries a
strong inference of guilt--the prosecutor would
surely argue that defendant's refusal to take the
test was prompted only by his knowledge that the
test results would reveal his intoxication, and
therefore incriminate him.'
"'We hold under our own constitution, that if a
communication of refusal, whether written, verbal,
or otherwise, involves the defendant's
consciousness of the facts and the operation of his
mind in expressing it, the communication is
testimonial in nature. A defendant's silence or
negative reply to an officer's request which calls
for an immediate reply is clearly an overt
communication of the defendant's thoughts in
response to the request. Doyle v. Ohio (1976), 426
U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. It is the
act of refusal that is pertinent and suggestive of
guilt, rather than the way in which it is
communicated. Under our constitution, the
privilege against self-incrimination forbids any
compulsory communica.tion of an accused person ' s
thoughts, whether by acts or words spoken, and the
fact that it does not extend its protection to
forbid the compulsory exhibition of physical
characteristics does not nullify the protection it
does provide.' App. to Pet. for Cert. A-8-A-LO.
"Consistent with the views I expressed in dissent
+
in South Dakota v. Neville, U.S. -1 -
(1983), I believe t h e s t a t e m e n t r ~have quoted are
sufficient to demonstrate that the judgment of the
Montana Supreme Court rests on an adequate and
independent state ground and that this Court is
therefore without jurisdiction to vacate its
judgment. I therefore respectfully dissent."
In unfortunate statements in two previous cases this
Court declared that the Montana constitutional provision
against self-incrimination would march lock-step with
interpretation given to the Fifth Amendment clause of the
United States Constitution. State v. Finley (1977), 173
Mont. 162, 566 P.2d 1119; State v. Armstrong (1976), 170
Mont. 256, 552 P.2d 616. Although the ma.jority in Jackson -
I1
now again rely on these sta.tements, they recognized full well
in dissenting to Jackson - that the intent of the majority
I
was to give greater protection in Montana than what the
federal constitution provided. The dissent states in part:
". . . It [the majority holding] extends the
breadth of Montana's constitutional provision
beyond that afforded by the United States
Constitution and overrules sub silento this Court's
own interpretation of Montana's own interpretation
of ~ontana' privilege against self-incrimination
s
[obviously referring to the statements in Armstronq
and Finley that Montana's constitutional provision
against self-incrimination had only the meaning
that the United States Supreme Court chose to give
to it.]" 195 Mont. at 196, 637 P.2d at 7.
There, the dissenters recognized tha.t Armstrong and
Finley had been overruled to the extent that we would let the
United States Supreme Court interpret Art. 11, S 25 of our
own constitution for us. But the present majority in Jackson
11, now sings a different tune. They conclude, without
alluding to their own admissions in Jackson -
I, our
constitutional provision against self-incrimination must
derive its sole meaning from decisions of the United States
Supreme Court interpreting the Fifth Amendment.
Before I became a member of this Court and since I have
been a member of this Court, I have been constantly bothered
by the inconsistency of this Court in its decisions, but
particularly so in the administration of the criminal law
where even more consistency is required because of the
underlying life and liberty considerations involved with each
case. The majority opinion here demonstrates once again this
inconsistency and our unstated policy to treat each criminal
appeal on an ad hoc basis. This unstated policy undermines
the integrity of the appellate process and as a matter of
judicial policy is just plain dangerous.
This result could not have been reached--in this
case--if the United States Supreme Court had not arrogated to
itself the powers that should, in our federal system, belong
only to the states. I once again state that I agree with the
concerns of Justice Sheehy in his dissent, for his concerns
are real.
The danger of this intrusionary policy is fully
exemplified by the arrogance of a concurring opinion in
Florida v. Casal (Fla.S.Ct., June 17, 1983), No. 81-2318,
slip op. There the United States Supreme Court let stand a
decision of the Florida Supreme Court that appeared to have
relied on a sta.te constitutional provision and state statute
in reaching its decision. But the Chief Justice of the
United States Supreme Court did not agree with the decision
of the Florida. Supreme Court and suggested that the United
States Supreme Court was the sole repository of judicial
wisdom and rationality.
In the final paragraph of this con.curring opinion, the
Chief Justice expressed an attitude that fully reflects the
judicial power that he would arrogate for the United States
Supreme Court:
"With our dual system of state and federal laws,
administered by parallel state and federal courts,
different standards may arise in different areas.
But when state courts interpret state law to
require more than the Federal Constitution
requires, the citizens of the state must be aware
that they have the power to amend state law to
ensure rational law enforcement. The people of
Florida have now done so with respect to Art. 1, 5
12 of the State Constitution; they have it within
their power to do so with respect to Florida
Statute 5 327.56 [the statute involved that was
interpreted by the Florida Supreme Court contrary
to what the Chief Justice believed its
interpretation should be. I " .
Florida v. casal?
supra, at 3 (Burger, J., concurring) (Emphasis
added. )
This philosophy appears to have permeated a majority of
the members of that Court and I suggest that this philosophy
is what led to the remand in this case. The Chief Justice
would have state governments amend state constitutions and
statutes to march lock-step with the judicial pronouncements
of the United States Supreme Court. It appears that this
philosophy is contagious. The majority here has declared
that Art. 11, S 25, of our own constitution has only the
meaning that the United States Supreme Court chooses to give
it.
I suggest that the provisions of our own constitution do
have meaning independent of the interpretations given to the
United States Constitution, and that so long as we do not
deny rights guara.nteed by the United States Constitution, we
can and should, where the situation arises, interpret our own
constitution to give more rights than those granted by the
United States Constitution. But the majority has abdicated
that responsibility by holding that provisions of our
constitution "substantially identical" (whatever that means)
with provisions of the United States Constitution can get
their meaning only from the United States Supreme Court. It
seems the majority has adopted the philosophy suggested by
Chief Justice Burger in Florida v. ~asal? and would permit
the United States Supreme Court to tell us what our state
constitution means.
Based on these considerations, I would reaffirm our
opinion in Jackson - an opinion that not only attempted to
I,
interpret the United States Constitution, but also relied on
a state ground in affirming the trial court's order.
A