A Decision Tree Takes Root in the Land of 10,000 Lakes: Minnesota's Approach to Protecting Individual Rights under Both the United States and Minnesota Constitutions

Elmer and Ethel are a retired farm couple living in west central Minnesota. They have recently turned the operation of their farm over to their children. It is Saturday afternoon, they are driving their pickup into town where they will get some groceries and perhaps stop at the local cafe for coffee and dessert. Elmer is behind the steering wheel; Ethel is seated next to the passenger door. They see a red convertible with the top down coming from the other direction. The man and the woman in the car are seated so close to one another that you could not fit a blade of straw between them. Ethel looks at the young couple and with a nostalgic tone she says, "You know Elmer, we used to sit like that." Elmer responds, "Well, Ethel, I haven't moved, I'm still sitting where I used to sit." ********** This is a story Minnesota Supreme Court Justice Paul H. Anderson will sometimes tell to illustrate when the Minnesota Supreme Court may be willing to look to the Minnesota Constitution when responding to the court's duty to protect the individual rights of Minnesota citizens. In essence, if the United States Supreme Court changes position and moves too close to the passenger door, the Minnesota court is willing to look to its state constitution to ascertain if there is a way to stay where the Minnesota court has been sitting comfortably for some time. Perhaps a more apt metaphor might be that the United States Supreme Court is driving, but the Minnesota court is sitting in the passenger seat in a car equipped with a side brake. At most times while the Supreme Court is driving, the Minnesota court will be comfortable with the ride. But if the Supreme Court makes a sharp or radical departure from the well-traveled road, i.e., federal precedent, the Minnesota court will utilize the brake. Under these circumstances, the Minnesota Supreme Court will fulfill its "duty" and "solemn obligation" by following a state constitutional route that provides greater protection for its citizens' individual rights. (1) I. INTRODUCTION In a 2005 voting rights case, Kahn v. Griffin, (2) the Minnesota Supreme Court in essence developed a decision-tree (3) approach to decide issues of individual rights. This Article will examine Minnesota's approach to individual rights when those rights are protected under both the federal and state constitutions. It is timely that we examine this approach in 2007, the sesquicentennial of the adoption of the Minnesota Constitution. Minnesotans have traditionally prided themselves on being progressive, but practical and predictable. (4) Minnesota's decision-tree approach directs litigants to ask several questions, and follow the path dictated by the answers. More particularly, Minnesota's approach requires litigants and the court to ask a number of questions, each of which leads to a particular path dictated by either a "yes" or "no" answer. The path taken will determine if the Minnesota Supreme Court will (1) interpret its state constitution to be in conformity with the Federal Constitution and federal precedent; or (2) interpret its state constitution in a manner independent of federal precedent. The diagram below illustrates Minnesota's approach: [ILLUSTRATION OMITTED] In essence, the Minnesota Supreme Court will independently interpret and apply the state constitution if either: (1) the state constitution protects a right that does not have an identical or substantially similar federal counterpart; or (2) there is an identical or substantially similar federal counterpart, but either the United States Supreme Court has made a sharp and radical departure from its precedent or federal precedent provides insufficient protection for Minnesota citizens' basic rights and liberties and the Minnesota court does not find a persuasive reason to follow that federal precedent. (5) Part II of this Article provides a historical overview of judicial federalism, describes the four approaches states have traditionally taken to federal/state constitutional interpretation--lockstep, interstitial, dual sovereignty, and primacy--and reviews the critiques of these four approaches. …