Long, Virginia A.

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Justice Alan B. Handler: A Man of ReasonThe Hon. Virginia A. LongFor all the world, on September 8, 1999, when I assumed JusticeHandler's seat on the NewJersey Supreme Court, an irrevocable linkwas forged between us. Closer scrutiny of that link reveals apentimento: an underlying bond, longer and deeper than mereaccession would ordinarily dictate.We met on a perfect spring day in 1965. He was the FirstAssistant Attorney General, and I was a second-year law studentinterviewing for a summer clerkship in the Division of Law. At ourmeeting, which included, among other things, the subjects of moviesand sports (I did the movies; he did the sports), he was, as he is today,glitteringly intellectual, wry, witty, self-effacing, and plainly lit fromwithin. After the meeting, the job that had previously seemed merelya good idea to me became an object of intense desire. Luckily, hehired me and later invited me back and swore me into my firstposition as a lawyer.In those days, there were no Assistant Attorneys General, noDeputy Assistants, and no Section Chiefs. Alan Handler chose thedeputies and oversaw us. His oversight included personal review ofall legal documents issuing from the office, particularly appellatebriefs, which he addressed with unusual vigor and the eye of a greateditor. He could expose the limitations of any argument on sightand mentally restructure a brief without ever lifting a pencil. Hecould make remarkable improvements by merely eliding a word hereor adding one there.In the process, he was entirely encouraging and kind. No younglawyer ever left his office crushed or defeated, even if a rewrite was inorder. A student of human nature once observed that it is wise tokeep away from people who belittle your ambitions and cleave tothose great souls who make you believe you can be great. You neverhad to keep away from Alan Handler, who fostered and supportedthe talents and aspirations of a generation of lawyers by giving us notonly professional experience, but a sense of our own worth andAssociate Justice, NewJersey Supreme Court.709SETON HALL LAW REVIEWpotential.He was also a great teacher. He taught us that decent andhonorable behavior is always in style; that theory and practice are twoessential sides of the same coin; that neither scholarship norintuition, standing alone, is adequate; and that a lawyer should speakand write in his or her own voice because only that voice is powerfuland genuine enough to persuade. Above all, by his example, hetaught us to be kind. Those lessons, which he lives by, have stood mein good stead during my thirty-four years as a member of the bar.Thus it is with affection, enthusiasm, and a long history that I haveundertaken to participate in this festschrift.That said, it is nevertheless a difficult task to summarize ajudicial career such as Justice Handler's, not only because of itslength, but also because of its breadth. Citing any single casenecessarily says too little. For this tribute, however, Justice Handlerwas asked to pare down the universe of potential subjects and toidentify particular cases revelatory of his jurisprudential principles.Among his choices was State v. Hunt,' and I take my cue from him. Inthe next few pages, I will try to set forth what it is about the Huntopinion that I see as emblematic ofJustice Handler's career.In 1977, Justice Brennan stressed the importance of stateconstitutional law as an independent source of individual freedomswithout which "the full realization of our liberties cannot beguaranteed." Hunt exemplifies the invocation of the stateconstitution as a "font of individual liberties."0 The case arosebecause the police, without a warrant, seized Merrell Hunt's tollbilling records from New Jersey Bell Telephone Company. Huntargued that the evidence eventually discovered in his toll billingrecords should be excluded.The majority held that, under the NewJersey Constitution, Hunthad a protectable privacy interest in toll billing records possessed bythe telephone company. In so doing, the Court rejected thereasoning of the United States Supreme Court in Smith v. Maryland,5which had declared that under the Fourth Amendment there is noreasonable personal or societal expectation of privacy in dialed91 N.J. 338, 450 A.2d 952 (1982).William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights,90 HARv. L REv. 489, 491 (1977).s Id.4 See Hunt, 91 N.J. at 347, 450 A.2d at 956.5 442 U.S. 735 (1979).[Vol. 30:709710A TRIBUTE TO JUSTICE HAMDLERtelephone numbers.6 While recognizing the propriety of parallelinterpretations of federal and state constitutional provisions withsimilar historical roots and purposes, the Hunt majority based itsdivergent interpretation upon the "equities" favoring a New Jerseycitizen's privacy interest, particularly the State's policy of legislativeprotection of telephonic communications predating New Jersey'sConstitution of 1947.7Justice Handler's famous concurrence in Hunt approved of thedecision of the majority to afford Hunt greater protection under theNew Jersey Constitution than was available under the United StatesConstitution.8 Reiterating the principle delineated in PruneYardShopping Center v. Robini' that each state has a "'sovereign right toadopt in its own Constitution individual liberties more expansive thanthose conferred by the Federal Constitution[,]" ' 0 Justice Handlercited his majority opinion in State v. Schmid' for the proposition that"'state constitutions exist as a cognate source of individual freedomsand that state constitutional guarantees of these rights may indeedsurpass the guarantees of the federal [C]onstitution.''MJustice Handler felt constrained, however, to point out thedanger of unprincipled action and condemned "state courts turninguncritically to their state constitutions for convenient solutions toproblems not readily or obviously found elsewhere." 3 He decried the"erosion or dilution of constitutional doctrine. 1 4 Justice Handlercautioned the Court to be mindful of the traditional closeness offederal and state constitutional theory and of the principle that, whilefederal precedents are not controlling, they are neverthelessimportant guides on the subjects that they squarely address.' 5To accommodate these sometimes competing values and toreduce the randomness of the process, Justice Handler painstakinglydeveloped a seven-point divergence methodology to identify andexplain the standards for determining when to invoke our state6 See id. at 742.7 See Hunt, 91 N.J. at 345, 450 A.2d at 955.8 See id. at 358, 450 A.2d at 962 (Handler, J., concurring).9 447 U.S. 74 (1980).10 Hunt, 91 N.J. at 359, 450 A.2d at 962 (Handler, J., concurring) (quotingPruneYard, 447 U.S. at 81).84 N.J. 535, 423 A.2d 615 (1980).I Hunt, 91 N.J. at 360, 450 A.2d at 963 (Handler, J., concurring) (quotingSchmid, 84 N.J. at 553, 423 A.2d at 624).Is Id. at 361, 450 A.2d at 963 (HandlerJ, concurring).14 Id.15 See id. at 363, 450 A.2d at 964 (Handler,J., concurring).20001SETON HALL LAWREVIEWconstitution as an independent source for protecting individualrights. 6  Those criteria include, but are not limited to, textuallanguage, legislative history, preexisting state law, structuraldifferences, matters of particular state interest or local concern, statetradition and history, and public attitudes." Significantly, JusticeHandler declared the rationale for the test he developed: "thediscovery of unique individual rights in a state constitution does notspring from pure intuition but, rather, from a process that isreasonable and reasoned." 8The reverberations from Hunt have been great. In this state, forexample, the Supreme Court has invoked the Hunt divergencecriteria to recognize a "due process right to an entrapment defenseunder principles of state constitutional doctrine[;]"' 9 to invalidate theuse of defendant's uncounseled post-indictment statements; 2 toreject the so-called "good faith" exception to the exclusionary rule onthe basis of the privacy interests of our citizens;2' and to find that thepublic and the press have a protectable state constitutional interest inaccess to all pre-trial proceedings in criminal prosecutions. Courtsin numerous other jurisdictions have also cited Justice Handler'sopinion in Hunt as a basis for formulating their own divergencecriteria.2While Justice Handler was not the first New Jersey jurist todeclare that our citizens may be entitled to greater stateconstitutional protections than those afforded under the UnitedStates Constitution,24  he was the first to introduce criteria16 See id. at 364-68, 450 A.2d 965-67 (Handler,J., concurring).17 See id.is Hunt, 91 N.J. at 367, 450 A.2d at 967 (Handler,J. concurring).19 State v.Johnson, 127 N.J. 458, 474, 606 A.2d 315, 323 (1992).21 See State v. Sanchez, 129 N.J. 261, 274, 609 A.2d 400, 407 (1992).21 SeeState v. Novembrino, 105 N.J. 95, 146, 519 A.2d 820, 850 (1987).See State v. Williams, 93 N.J. 39, 57-58, 459 A.2d 641,650 (1983).See, e.g., Gannon v. State, 704 A.2d 272, 276 & n.4 (Del. 1998) (citing severalHunt factors in discussion of "expansion beyond federally guaranteed individualliberties by a state constitution"); State v. Bobo, 803 P.2d 1268, 1273 n.5 (Utah CLApp. 1990) (referring attorneys to Justice Handler's Hunt factors for instruction onwhich points should be developed and analyzed in arguing for innovativeinterpretations of a state constitution); State v. Gunwall, 720 P.2d 808, 812-13 (Wash.1986) (relying on several ofJustice Handler's Hunt criteria to develop Washington'sown nonexclusive criteria relevant to determining whether, in a given situation, thestate constitution "should be considered as extending broader rights to its citizensthan does the United States Constitution").24 See State v. Johnson 68 N.J. 349, 353-54, 346 A.2d 66, 68 (1975) (rejecting theUnited States Supreme Court's conclusion in Schneckoth v. Bustamonte, 412 U.S. 218(1973), that a consent to search is valid even though defendant did not know he had712 [Vol. 30:709A TRIBUTE TO JUSTICE HANDLERjustification that provides a measure of precision, consistency,uniformity, and, ultimately, predictability in the difficult and oftenirksome task of deciding when to invoke state constitutionalguarantees. Hunt was thus a watershed in the development of stateconstitutional doctrine.2Hunt is also notable because of what the decision says aboutJustice Handler: that he has a deep appreciation of the genius of theNew Jersey Constitution, the fragile boundaries of which (in hiswords) "demarcate an implied ethic of public discourse within whichideologies and interests, through warring, war intelligently andconstructively";" a wholesome respect for individual rights; a devotionto principle even at the expense of outcome; a wholly generous spirit;mental and moral clarity; a full comprehension of complexconstitutional theory; and a fundamental recognition of the need torender theory corporeal or risk relegating it to inaccessibility. Theseven-point methodology of Hunt is a simple and straightforwardvehicle, allowing ordinary mortals the opportunity to apply difficultprinciples of constitutional interpretation for the purpose ofprotecting the rights of our fellow citizens.Stylistically, Justice Handler's concurrence in Hunt also speaksvolumes. It is easy reading, made up of apparently effortless, gracefulprose, meticulous and sonorous articulation, and elegant phrasing. Itis evidence that Justice Handler is not only an extraordinary thinker,but also an unparalleled writer; that he is never reduced to adoptingthe formulations of others; and that he speaks in his own voice, notdoomed to a life of tepid half-expression, but, to paraphraseEmerson, always "insistent on himself, presenting every argumentwith the cumulative force of a whole life's cultivation.""8  Theconcurrence reveals a man to whom the joy of rational thinking isa right to withhold consent).See Leigh A. Morrissey, State Courts Reject Leon on State Constitutional Grounds: ADefense of Reactive Rulings, 47 VAND L. REV. 917, 933 n. 113 (1994).See, e.g., Rachel A. Van Cleave, State Constitutional Interpretation and Methodology,28 N.M. L. REV. 199, 209 (1998); Robert F. Williams, In the Glare of the Supreme Court:Continuing Methodology and Legitimacy Problems in Independent State Constitutional RightsAdjudication, 72 NOTRE DAME L. REv. 1015, 1019 (1997); Jennifer Cutcliffe Juste,Note, Constitutional Law--The Effect of State Constitutional Interpretation on New Mexico'sCivil and Criminal Procedure-State v. Gomez, 28 N.M. L. REv. 355, 364 (1998).In Memoriam Honorable RichardJ. Hughes, 136 N.J. XXXI, XLIII (1993)." In his Essay on Self-Reliance, Ralph Waldo Emerson states: "Insist on yourself;never imitate. Your own gift you can present every moment with the cumulativeforce of a whole life's cultivation; but of the adopted talent of another you have onlyan extemporaneous half possession." RALPH WALDO EMERSON, Essay on Self-Reliance,in THE PORTABLE EMERSON 160 (Carl Bode & Malcolm Cowley eds., Viking Penguin1981) (1840).20001 713SETON HALL LA WREVIEWpreeminent. Hunt, like all ofJustice Handler's opinions, is a treasure.His body of work stands as a monument to reason, which is as muchin his blood and bones as it is in his writings. Oliver Wendell Holmesmay well have been describingJustice Handler when he said:[Such a person] knows that, a hundred years after he is dead andforgotten, men who have never heard of him will be moving tothe measure of his thought-the subtle rapture of postponedpower, which the world knows not because it has no externaltrappings, but which to his2prophetic vision is more real than thatwhich commands an army.With his retirement from the Court, Justice Handler has recentlycrossed a threshold into a new life. With his thinking and writing andhis heart, he long ago passed over the lintel into greatness.29 OLIVER WENDELL HoLMES, JR., The Profession of the Law, in THE COLLECTEDWORKS OFJUSTIcE HoLMES 473 (Sheldon M. Novick ed., vol. 3, Univ. of Chicago Press1995) (1886).714

Justice Alan B. Handler: A Man of Reason

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Justice Alan B. Handler: A Man of Reason

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