End Notes
1 Ariz. Const. art. II § 8.
2 State v. Hernandez, 417 P.3d 207, 212 (Ariz. 2018).
3 See, e.g., Bailey v. Myers, 206 Ariz. 224, 229–30 (Ct. App. 2003) (eminent domain); Clouse ex rel. Clouse v. State, 199 Ariz. 196, 200 n.9 (2001) (state immunity); Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm’n, 160 Ariz. 350, 355 (1989) (free speech).
4 Arizona’s borrowing from the Washington Constitution has long been remarked upon. See, e.g., John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 82 (1988).
5 See generally Charles W. Johnson & Scott P. Beetham, The Origin of Article I, Section 7 of the Washington State Constitution, 31 Seattle U. L. Rev. 431, 434-36, 508 (2008); John S. Goff, ed., The Records of the Arizona Constitutional Convention of 1910 at 1293 (1991).
6 103 U.S. 168, 190 (1881).
7 116 U.S. 616, 630 (1886).
8 Johnson & Beetham, supra note 5 at 442.
9 In 1911, the influential judge Thomas Cooley used the phrase “private affairs” to describe religious liberty. Thomas Cooley, foreword, American State Papers Bearing on Sunday Legislation 21 (1911) (emphasis added).
10 In re. Pac. Ry. Comm’n, 32 F. 241, 250 (C.C.N.D. Cal. 1887). See also In re Attorney Gen., 47 N.Y.S. 883, 887 (App. Div. 1897) (involving Attorney General’s investigation into alleged monopoly activities; “it is objected that this is an inquisition into the private affairs of private citizens.”); Pynchon v. Day, 18 Ill. App. 147, 149-50 (Ill. App. Ct.), aff’d, 118 Ill. 9 (1886) (discovery process “should never be exercised so as needlessly to expose the private affairs of those in whose custody the books or writings may be…. It is a very proper exercise of discretion…to refuse an inspection of those parts of the writings which…will tend unnecessarily to expose business or other private affairs with which the party seeking to make the inspection has no concern.”).
11 Interstate Commerce Comm’n v. Brimson, 154 U.S. 447, 478 (1894).
12 Legislative Competition for Corporate Capital, 7 Am. Law. 136, 140 (1899).
13 No Privacy Tolerated, Arizona Republican, July 2, 1912 at 7.
14 The Banking Inquisition, Arizona Republican, May 13, 1912 at 4.
15 Henry Clews, Weekly Financial Review, Arizona Republican, Mar. 17, 1912 at 2.
16 Davis Rich Dewey, The American Nation: A History—National Problems 1885-1897 at 196 (1907); see also Charles A. Beard, Contemporary American History 1877-1913 at 134 (1921).
17 Albert J. Beveridge, The Issue, The Saturday Evening Post, June 27, 1908 at 1-2.
18 Address at Denver, Colorado, Sept. 21, 1909, in 1 Presidential Addresses and State Papers of William Howard Taft 251 (1910). See also Elihu Root, Address at Saratoga Springs, Aug. 18, 1914, in Robert Bacon & James Brown Scott, eds., The United States and the War: Political Addresses 313 (1918) (“The Trade Commission is to command the disclosure of all the private affairs of all industry, with the tremendous power of black mail, destruction of credit, and ruin, which that involves. The Internal Revenue bureau may carry inquisitorial proceedings into the private affairs of every individual.”).
19 See, e.g., Borah’s Bill Draws Senate Opposition, Arizona Republican, Jan. 31, 1912 at 2 (noting concerns that a federal bill “to investigate and report on all matters affecting the welfare of children” represented “an unwarranted intrusion upon private affairs”); Which Should Win?, Arizona Republican, Oct. 27, 1911 at 2 (“the democratic party of Arizona would make government the trustees of the people’s private affairs. Its creed is the creed of paternalism. It believes everything and everybody should be regulated by law.”).
20 See John D. Leshy, The Arizona Constitution 7-20 (2013).
21 Thus, for example, when the proposal to forbid alien labor was debated, one delegate objected on the ground that “the only ground on which this could be sustained is the police power of the state, which allows laws relating to public health, public safety, or public morals. The legislature cannot under the guise of the police power arbitrarily invade the rights of the people.” Goff, supra note 5 at 552. See further Paul Avelar & Keith Diggs, Economic Liberty and the Arizona Constitution: A Survey of Forgotten History, 49 Ariz. St. L.J. 355, 388-95 (2017) (explaining that Arizona’s framers, as “Western Progressives” sought to limit “rent-seeking” and protect individual economic liberty); David N. Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right (2011) (detailing protections for economic liberty in the 1910-1912 period).
22 Ariz. Const. art. XIV, XV.
23 Ariz. Const. art. XVIII. Some of these provisions proved highly controversial at the 1910 convention, particularly the prohibition on child labor, which critics feared would deprive people who lacked any other means of the opportunity for employment. The child labor provision passed only narrowly. Goff, supra note 5 at 440-48.
24 Id.
25 Substitute Proposition 113 in Goff, supra note 5 at 1276.
26 Goff, supra note 5 at 613-15.
27 Ariz. Const. art XV § 3.
28 Ariz. Const. art XIV § 16 (emphasis added).
29 See Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America 1870-1910 at 90-92, 267-74 (2003). Even debates over these more intimate dimensions of privacy tended to involve economic affairs; the popularity of liquor, wrote one muckraking reporter, was due to “commercial forces” that were “fighting to saturate the populations of cities” with alcohol. Richard Hofstadter, The Age of Reform 291 (1955) (quoting George Kibbe Turner, an investigative reporter for McClure’s magazine).
30 See Mayer, supra note 21 at 89-91.
31 See generally John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America ch. 10 (3d ed. 2010). Arizona had an anti-miscegenation law from territorial days, which was repealed in 1959. See Roger D. Hardaway, Unlawful Love: A History of Arizona’s Miscegenation Law, 27 J. Arizona Hist. 377 (1986); Paul Rees, A Civil Rights Victory, Pre-Loving, Ariz. Att’y, July/August 2017, at 84. There is no record of it being disputed on Private Affairs Clause grounds. Nor was polygamy discussed at the Convention or afterwards; Congress had declared in its enabling act that the Arizona Constitution must forbid polygamy, and that requirement was complied with without discussion. See Leshy, supra note 20 at 408.
32 See, e.g., Wattersons Lamentation Proclamation, Arizona Daily Star, June 27, 1908 (“Prohibition is the very essence of puritanism…. It is laid in the belief that the government may regulate the personal life and private affairs of the citizens.”); Which Western States Will Go Dry?, Sunset, Nov. 1914 at 860 (“Opponents of prohibition…consciously or unconsciously resent[] state interference in what [they] consider [their] private affairs.”). See also Prohibition’s New Recruit, Literary Digest, Dec. 1909 at 1051 (quoting Indianapolis newspaper editorial saying that opponents of Prohibition believed “there were limits beyond which the State should not be allowed to go in its effort to control personal habits and the management of domestic and personal affairs.”).
33 Ex parte Ah Lit, 26 F. 512, 515 (D. Or. 1886).
34 President Taft had recently given a speech strongly advising the Arizona framers not to include in the constitution ordinary matters better suited to legislation. Leshy, supra note 20 at 9; L.J. Abbott, The “Zoological Garden of Cranks,” 69 The Independent 870 (1910).
35 See, e.g., Goff, supra note 5 at 411-17.
36 Harry David Ware, Alcohol, Temperance and Prohibition in Arizona 238 (Dec. 1995) (unpublished Ph.D. dissertation, Arizona State University) (on file with author). See also id. at 278 (advocates of prohibition claimed that “any individual should be able to bring in any quantity [of alcohol] for personal use”).
37 Sturgeon v. State, 17 Ariz. 513, 521 (1916). A year later, however, the Washington Supreme Court declared that that state’s prohibition law did, indeed, make it a crime to make wine on one’s own property for personal consumption. State v. Fabbri, 98 Wash. 207 (1917). The Yale Law Journal viewed this as “the first [case] actually holding it constitutional to forbid the manufacture of liquor for personal use.” Constitutional Law-Due Process-Prohibition of Manufacture of Intoxicating Liquors, 27 Yale L.J. 286 (1917).
38 Little Arizona Items, Casa Grande Dispatch, Mar. 5, 1915 at 2; 99 Bills Introduced in Legislature, Arizona Daily Star, Feb. 1, 1915 at 2.
39 Ware, supra note 36 at 280. See also More Drastic Dry Legislation Than Ever Is Proposed, Bisbee Daily Review, Jan. 14, 1915 at 4 (“probably the most drastic feature of the law is the one that makes it a crime to keep liquor in a private home for the personal use of the owner…and also empowers officers to break into a house in search of such evidence without a search warrant”); Drachman Bill is Unpopular in City, Bisbee Daily Review, Jan. 21, 1915 at 3 (warrantless search provisions would be unconstitutional).
40 Wesley M. Oliver, Prohibition’s Anachronistic Exclusionary Rule, 67 DePaul L. Rev. 473, 502 (2018).
41 Gore v. State, 218 P. 545, 549-50 (Okl. Crim. Ct. App. 1923).
42 State v. Gibbons, 118 Wash. 171 (1922). See Sanford E. Pitler, The Origin and Development of Washington’s Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459, 473 (1986).
43 State v. Pina, 94 Ariz. 243, 245 (1963).
44 142 Ariz. 260, 269 (1984).
45 As a 1902 law review article put it, “it is quite impossible to define with anything like precision what the right of privacy is or what its limitations are, if any.” Dennis O’Brien, The Right of Privacy, 2 Colum. L. Rev. 437, 445 (1902). The Supreme Court of Missouri referred to privacy in 1880 as covering “matters which it deeply concerned the parties to keep secret from the world, and of no importance or value as evidence,” which the public “had no right to obtain,” and disclosure of which would lead to “the annoyance and shame of the only persons interested.” Ex parte Brown, 72 Mo. 83, 94-95 (1880). Two years later, the Massachusetts federal district court drew the line between public and private in a defamation case by pointing to the question of whether the parties involved could, in principle, be ascertained: the question the safety of a railroad bridge was a public question because “the public…is a number of persons who are or will be interested, and yet who are at present unascertainable. All the future passengers…are the public, in respect to the safety of the bridge, and as they cannot be pointed out, you may discuss the construction of the bridge in public, though you thereby [utter statements that might otherwise slander]…the builder.” Crane v. Waters, 10 F. 619, 621 (C.C.D. Mass. 1882) (emphasis added). But where the persons whose interests were involved “are easily ascertained,” the matter becomes private. Lowell analogized the question to “the right of legislative interference,” because “the legislature cannot interfere in the purely private affairs of a company, but it may control such of them as affect the public,” because “the public, consisting of the unascertained persons who will be asked to take shares in it, and those through whose land it will pass or whose business will be helped or hindered by it,” was affected. Id.
46 See, e.g., 3 F. Stroud, The Judicial Dictionary 1557 (2d ed. 1903) (defining “private purpose” as “[see] public purpose”).
47 See, e.g., Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523 (1967); Abel v. United States, 362 U.S. 217 (1960).
48 See Timothy Sandefur, The Conscience of the Constitution 71-121 (2014).
49 Johnson & Beetham, supra note 5 at 448, 451-52. The authors of the Clause may also have had in mind the unlawful or quasi-legal acts of vigilante groups, which were often a problem in early Washington State and Arizona.
50 See, e.g., Hurtado v. California, 110 U.S. 516 (1884).
51 Johnson & Beetham, supra note 5 at 466.
52 106 Wash.2d 54 (1986).
53 The Federalist No. 45 at 313 (J. Cooke, ed., 1961) (James Madison).
54 State v. Gibbons, 118 Wash. 171, 184 (1922).
55 See generally Sanford E. Pitler, The Origin and Development of Washington’s Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459 (1986). It is possible that one reason Washington courts did not establish an independent state jurisprudence is because litigants failed to raise the argument during this era. It is impossible now to determine one way or the other, but given that incorporation of criminal procedure rights through the Fourteenth Amendment was only in its beginning stages during this period, it seems unlikely that litigants failed to raise state-law arguments.
56 See George R. Nock, Seizing Opportunity, Searching for Theory: Article I Section 7, 8 U. Puget Sound L. Rev. 331, 333 (1985); Johnson & Beetham, supra note 5 at 431.
57 95 Wash. 2d 170, 177 (1980).
58 Id. at 178.
59 102 Wash. 2d 506, 510-11 (1984) (citations omitted). One notable advantage to the Myrick approach is that the federal “expectation of privacy” analysis is subject to change with time, whereas the Myrick test considers not the subjective and shifting expectations citizens might have, but the strength of the justifications advanced for protecting privacy. In Has Technology Killed the Fourth Amendment? 2011-2012 Cato Sup. Ct. Rev. 15, Judge Kozinski warned that this creates a downward spiral of “reasonableness,” at least as far as courts are concerned: over time, a lower expectation of privacy in one area makes it unreasonable to expect privacy in another, which risks destroying all privacy expectations. The Washington State approach, by contrast, emphasizes principles, and is therefore more stable and less prone to fluctuation. This is an example of how, robust state enforcement of different constitutional language can lead to a less “activist,” less fluctuating jurisprudence.
60 466 U.S. 170 (1984).
61 Myrick, 102 Wash. 2d at 513.
62 See, e.g., State v. Young, 123 Wash. 2d 173, 181–82 (1994).
63 State v. Hinton, 179 Wash. 2d 862, 869–70 (2014).
64 State v. Miles, 160 Wash. 2d 236, 243-48 (2007).
65 State v. Boland, 115 Wash. 2d 571, 576-79 (1990).
66 Gunwall, 106 Wash. 2d at 64-70.
67 Miles, 160 Wash. 2d at 244-45 (citing Gunwall and State v. Boland, 115 Wash.2d 571 (1990)).
68 State v. Afana, 169 Wash. 2d 169, 182 (2010); State v. Betancourth, 190 Wash. 2d 357, 367 (2018) (punctuation altered).
69 Seattle v. Mesiani, 110 Wash.2d 454, 458 (1988).
70 State v. Stroud, 106 Wash.2d 144, 153 (1986).
71 Miles, 160 Wash. 2d at 247-52.
72 30 Ariz. 258 (1926).
73 Id. at 261.
74 267 U.S. 132 (1925).
75 The Model T was first produced in 1908. While cars were available before then, they became widespread only in the first decade of the twentieth century.
76 Prior to Carroll, some state courts, including Washington’s, had held that warrants were required to search cars. See, e.g., Hoyer v. State, 193 N.W. 89, 90 (Wis. 1923); Butler v. State, 93 So. 3, 3 (Miss. 1922); State v. Gibbons, 118 Wash. 171, 180-81 (1922).
77 Carroll, 267 U.S. at 149 (emphasis added).
78 Id. at 150-51.
79 Id. at 153.
80 142 Ariz. 260 (1984).
81 Id. at 263.
82 Id. at 264-65 (citations omitted). The Bolt court did not reject any Fourth Amendment precedent, but simply found that there was no governing Fourth Amendment precedent on the question. See id. at 264.
83 Id. at 265. As an example of “other necessity,” the court cited State v. Fisher, 141 Ariz. 227 (1984), which involved the emergency aid exception.
84 150 Ariz. 459 (1986).
85 Id. at 462.
86 Id. at 463.
87 Id. at 466. As in Bolt, the Ault court did not expressly reject any federal Fourth Amendment precedent. Although “the dissent cites a number of [federal] cases which it believes hold that direct evidence is admissible under the inevitable discovery doctrine,” the majority said, “we disagree with their interpretation of those cases and…believe that the [U.S.] Supreme Court would require suppression of this evidence under the fourth amendment.” Id. Thus neither Bolt nor Ault actually reached a conclusion at variance with what was understood to be federal Fourth Amendment doctrine.
88 154 Ariz. 207 (1987).
89 In Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 278-79 (1990), and Washington v. Glucksberg, 521 U.S. 702, 743-44 (1997), the U.S. Supreme Court held that the same right was protected by the Fourteenth Amendment’s Due Process Clause.
90 Rasmussen, 154 Ariz. at 215.
91 See, e.g., Standhardt v. Superior Court ex rel. Cty. of Maricopa, 206 Ariz. 276, 285 (Ct. App. 2003) (rejecting claim of same-sex marriage rights); Washburn v. Pima Cty., 206 Ariz. 571, 579 (Ct. App. 2003) (rejecting right to be free from aesthetic architecture regulations).
92 State v. Johnson, 220 Ariz. 551, 557 (Ct. App. 2009).
93 240 Ariz. 244 (2016).
94 Riley v. California, 134 S.Ct. 2473 (2014).
95 See also State v. Wilson, 237 Ariz. 296, 301 (2015).
96 State v. Meza-Contreras, No. 1 CA-CR 15-0458, 2016 WL 3021977, at *2 (Ariz. Ct. App. May 24, 2016).
97 60 Wash.2d 236 (2007).
98 199 Ariz. 303 (Ct. App. 2000).
99 Id.
100 Miles, 60 Wash.2d at 241-51.
101 Carrington, 199 Ariz. at 304-05 (quoting Polaris Int’l Metals Corp. v. Arizona Corp. Comm’n, 133 Ariz. 500, 506 (1982)).
102 See also Kadima Ventures v. Arizona Corporation Commission, LC2018-000163-001 DT (filed Apr. 17, 2018) (on file with author) (challenging Commission subpoena).
103 See, e.g., Americans for Prosperity Found. v. Becerra, 903 F.3d 1000 (9th Cir. 2018); Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1317 (9th Cir. 2015); Rio Grande Foundation v. City of Santa Fe (D. N.M. No. 1:17-cv-00768-JCH-CG, filed June 11, 2018); CUT v. Denver (Denver Cnty. Dist. Ct. 2d Dist. No. 2017CV34617, filed Aug. 24, 2018).
104 Sampson v. Buescher, 625 F.3d 1247, 1261 (10th Cir. 2010).
105 Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm’n, 160 Ariz. 350, 356 (1989)(emphasis added).
106 Arizona courts have recognized that there are situations in which the words of the Arizona Constitution are similar to that of another state’s constitution, but were not meant to be interpreted the same way—and where consulting other states’ precedent is improper. Desert Waters, Inc. v. Superior Court In & For Pima Cty., 91 Ariz. 163, 168–69 (1962). But there is no evidence to suggest that conclusion with regard to the Private Affairs Clause. Nor has any Arizona court ever addressed that question. In State v. Mixton, No. 2 CA-CR 2017-0217, 2019 WL 3406661, at *5 n.5 (Ariz. Ct. App. July 29, 2019), the Court of Appeals observed that Arizona courts “have not adopted Washington’s interpretations” of the Private Affairs Clause, but did not explain why. It cited State v. Juarez, 203 Ariz. 441, 447 (Ct. App. 2002), which, again, stated that Arizona courts have not followed Washington’s—but, again, failed to provide any reason why.