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What does Mole mean?

So it's Friday, and I finally got around to writing what I promised to do for Tuesday:  an analysis of why you need to pay attention to the Supreme Court's decision last week in State v. Mole.  Not, not the part about why there's no rational basis for criminalizing consensual sex between a police officer and a minor where the minor isn't even aware that the guy is a police officer; that determination garnered the support of only three justices.  I'm talking about the court basing the decision on the Ohio Constitution, instead of its Federal counterpart.  Justice Lanzinger, who concurred only in judgment, did sign off on that, which makes it a majority decision.

Here's why that's significant.

The "new federalism" -- the argument that state constitutions, rather than the Federal one, should be utilized -- dates back to a 1977 law review article by Justice William Brennan.  Chief Justice O'Connor's opinion in Mole painstakingly recreates the history of the Ohio Supreme Court's decisions regarding that doctrine, beginning with the court's 1993 ruling in Arnold v. Cleveland, which upheld the right of the City of Cleveland to ban "assault weapons," analyzing the issue in terms of both constitutions. 

As O'Connor concedes, though, the course of court's true love with the state document has not been smooth.  O'Connor acknowledges that she herself dissented from the "new federalism" in several instances. 

But that was then, this is now.  Here's the money quote:

We embrace the notion that we may, and should, consider Ohio's conditions and traditions in interpreting our own state's constitutional guarantees. In doing so, we are cognizant that the individual-rights guarantees of the Bill of Rights were based on pre-existing state constitutional guarantees, not the other way around.  State constitutions were the original sources of written constitutional rights and the founders first looked to the states for the preservation of those rights. This is particularly important to remember whenever the United States Supreme Court's decisions dilute or underenforce important individual rights and protections.

How long "now" is going to last is another matter.  Two of the justices who signed off on the "new federalism," Lanzinger and Pfeifer, are aged out and won't be on the bench after December. 

A couple things here, though.  First, there's the stare decisis thing:  overturning a decision, with an opinion written by the Chief Justice no less, is not a small matter.  What's more, at worst Mole rejects the proposition that the Ohio Constitution's protections are always merely co-extensive with those provided by the Federal constitution.  Even an ad hoc "new federalism" approach is better than simply falling in line behind every pronouncement of SCOTUS.

That's especially critical in 4th Amendment cases, and here it's important to remember that Justice O'Donnell, one of the dissenters in Mole, wrote the opinion last year in State v. Brown, (discussed here), which specifically held that the stop in that case -- by a township officer of a car outside his jurisdiction -- violated Ohio constitution, even if it would have been allowed under the 4th Amendment.

That provides some fertile ground, especially given the language in Mole that an analysis of the Ohio Constitution "is particularly important to remember whenever the United States Supreme Court's decisions dilute or underenforce important individual rights and protections.  You could make a pretty good argument that a number of recent Supreme Court decisions in search and seizure law over the past few years have "diluted or underenforced" 4th Amendment rights, beginning with the Court's abominable decision a few months ago in Utah v. Strieff (discussed here), in which the Court held that evidence found as a result of an illegal stop could be admitted at trial so long as the defendant had an arrest warrant out for him, even if the officer didn't know of the warrant, and even if it was for a minor traffic offense.

Several things to remember here.  First, you're not going to get to the Ohio Constitution if you don't raise it in the trial court.  Kudos to Mole's lawyers for doing exactly that.  And if you've got form motions to suppress that mention only the Fourth or Fifth Amendment, revise them to include their Ohio constitutional counterparts. 

And don't be afraid to limit yourself to just search and seizure and self-incrimination.  For example, Ohio has a confrontation clause, too.  Remember State v. Clark?  That was the Ohio Supreme Court decision in 2014 which held that because teachers were required to report instances of child abuse, statements made to them were "testimonial" under Crawford's interpretation of the Sixth Amendment's Confrontation Clause.  That went to the U.S. Supreme Court, which reversed it in a 9-0 decision.  As the dissenters pointed out in Mole, using the Ohio constitution's equal protection clause immunized the decision from review by SCOTUS.  Had the Clark court based its ruling on Ohio's Confrontation Clause, they wouldn't have gotten smacked down by the Supremes.

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