October 15, 2019
By Timothy Sandefur
State constitutions are
the neglected tools of American law. As federal judge Jeffrey Sutton put
it just last month, there are “51 constitutions in this country,” with
state constitutions protecting our freedoms much more than the federal
Constitution does. Yet thanks to our excessive focus on the goings on in
Washington, D.C., “few Americans, not even most lawyers, appreciate this
liberty-friendly feature of American federalism.” We at the Goldwater Institute
are working to change that—and today, we’re releasing a new policy report about
one of the most important—and often ignored—provisions of the Arizona State
Constitution, known as the “Private Affairs Clause.”
The Private Affairs Clause
was first written for the Washington Constitution of 1889 and was copied verbatim
by the delegates to the Arizona Constitutional Convention in 1910. It says “No
person shall be disturbed in his private affairs, or his home invaded, without
authority of law.” Note how different that is from the Fourth
Amendment to the U.S. Constitution, written in 1789: The state version
doesn’t use any of the words that appear in the federal Constitution,
such as “unreasonable,” “searches,” or even “warrants.”
Given these differences
in language, Washington state courts have interpreted their Private Affairs
Clause to provide some of the strongest protections against unjustified
searches in the nation. While federal courts are concerned with whether a
search is “reasonable,” Washington courts have said that reasonableness isn’t
the question under the state Constitution—what’s important is whether or not a
search is “without authority of law.” That difference is significant because
federal courts often allow warrantless searches if they’re “reasonable”—whereas
Washington courts say that a search that’s “without authority of law” isn’t
allowed, no matter how reasonable.
What’s bizarre is that
although Arizona’s Clause was copied from Washington’s, and although it
contains none of the language found in the federal Constitution, and although
Washington courts have interpreted their Clause quite well, Arizona courts have
interpreted the Clause by copying federal legal theories (such as the
“third party” or the “good faith reliance” doctrines)—theories that federal
courts created while interpreting this “reasonableness” concept—when, again,
“reasonableness” just isn’t a consideration under the language of the Arizona
Constitution.
Arizona courts have
also largely ignored the precedent from Washington courts that actually
do interpret the language of the Private Affairs Clause. They do this even
though they already consult Washington precedent when interpreting other
provisions of the Arizona Constitution that were borrowed from Washington’s
Constitution, such as the free speech and eminent domain provisions. In those
cases, Arizona courts take the commonsense position that if the language of the
two constitutions is the same, the legal interpretations should probably be the
same. But when it comes to Private Affairs, the Grand Canyon State’s courts
have largely copied-and-pasted federal law instead.
In our new policy
report, The Arizona “Private
Affairs” Clause: Time for a Second Look, I examine how Arizona courts
have gone wrong in interpreting this provision. For one thing, history reveals
that the Clause was written in light of then-recent U.S. Supreme Court cases
that applied the search warrant requirement to government demands for business
records. Economic transactions—anything a person bought or sold or donated
money to—were considered “private affairs” at the time, and the Clause was
written to prevent the government from either controlling those decisions or
from demanding that people turn over their receipts, checkbooks, and so forth.
Although the Clause also applies to what we today normally think of as
“searches,” it’s actually far broader than that.
In the 1980s, Arizona
courts said that the Clause protects a person’s right to refuse medical
treatment if so desired. That was a good first step, but since then, courts
have never explored what else the Clause might apply to. But as I explain, the
Clause should also forbid the government from (for example) demanding the
disclosure of a person’s private information when that person donates to a
nonprofit group or to a political campaign.
The Clause also applies
to the normal criminal law searches we’re familiar with, of course, and in
recent weeks, we’ve filed two amicus briefs in important pending Arizona
lawsuits involving the Private Affairs Clause:
- In State v. McNeill, police officers impounded a car whose driver was driving
illegally, and then searched it. They opened the trunk, and inside, found a
backpack, which they also opened, finding a notebook, which they also opened,
and read—finding incriminating business records. A trial judge found the search
unconstitutional because under federal law, officers aren’t allowed to
use an “inventory search” like this for investigative purposes. That’s true,
but as we
argued in our brief, the court should also have held that it violates the Arizona
Constitution. Washington state courts interpreting their Private Affairs Clause
have prohibited searches like these, and since Arizona’s Clause is identical,
the courts should follow Washington precedents. (Unfortunately, the Arizona
Court of Appeals decided
the case two weeks ago without discussing the Arizona Constitution at all.)
- In Mixton
v. State of Arizona, we’ve urged
the Arizona Supreme Court to consider a case in which officers got
information about a person’s computer terminal location without a warrant.
There, too, a state court said officers acted unconstitutionally—but held that
that made no difference, because officers thought what they were doing was
lawful. We argue in our brief that this “good faith” exception is drawn from federal
law, and Arizona courts should not be following federal precedents
that simply have nothing to do with the actual language of the Private Affairs
Clause.
It’s long past time for Arizona courts to enforce the actual wording of the Private Affairs Clause. It’s bizarre that they ignore its actual words and follow federal legal doctrines that are based on the federal Constitution, which uses entirely different words. Arizona courts already consult Washington precedent when interpreting other provisions of the Arizona Constitution that were borrowed from Washington, because doing so does justice to the actual language that the state Constitution’s framers used. Refusing to treat the Private Affairs Clause with the same respect is arbitrary and irrational. It’s time for Arizona courts to enforce the Arizona Constitution.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute and
the author of the new paper The Arizona “Private
Affairs” Clause: Time for a Second Look.
