Similarly, in Floridians Against Casino Takeover v. Let's Help, 363 So.2d 337, 341-42 (Fla. 1978), the Supreme Court of Florida stated: "[C]onflict" with existing articles or sections of the Constitution can afford no logical basis for invalidating an initiative proposal. Such an assertion ignores established patterns of constitutional construction. When a newly adopted amendment does conflict with preexisting constitutional provisions, the new amendment necessarily supersedes the previous provisions. Otherwise, an amendment could no longer alter existing constitutional provisions and the amendment process might, in every case, be frustrated by the judicial determination that a given proposal conflicts with other provisions. It would completely subvert our role as one of the three branches of government established by the people in the Constitution to expand our jurisdiction to tell the voters of this state that although the Constitution states that the people have reserved the power to amend that Constitution, they many only amend it in ways that we determine are fundamental or have something to do with our "organic" law. Omaha National's first assignment is without merit. We affirm the holding of the trial court that Initiative 300 is an amendment of the Constitution of Nebraska. Pacific States Telephone and Telegraph Company v. Oregon Page 41, Discussion Notes Discussion Notes 4. What if the initiative provisions had been in the Oregon constitution at the time it applied for admission to the Union? 5. See State v. Wagner, 752 P. 2d 1136, 1197 n. 8 (Or. 1988) (Linde, J., dissenting): 8. Another question that has not been briefed is whether a plebiscite that bypasses the legislature and the governor in order to repeal parts of the Bill of Rights and to impose a penal regime which is morally repugnant to a substantial minority of citizens remains compatible with the state's obligation to maintain a republican form of government, U.S. Const. Art. IV, para. 4, as well as with the original purposes of amended Or. Const. Art. IV, para. 1. An initiative measure not only short-circuits the hearings, study, debate, and adjustments made in the normal legislative process, see OEA v. Phillips, 302 Or. 87, 106-07,727 P. 2d 602 (1986) (Linde, J., concurring), it replaces a representative body's resistance to overriding intensely felt minority concerns with a purely majoritarian plebiscite. The question whether republicanism limits this process dropped from sight for lack of judicial opinions after the United States Supreme Court held it beyond the reach of the federal courts in its more generalized form, i.e., whether the existence of a nonrepublican feature would make the entire state government illegitimate, Pacific Telephone Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (challenge to a license tax enacted by an initiative measure). This did not relieve state courts of responsibility under their state constitutions and the Supremacy Clause, U.S. Const., Art. VI, to determine whether their governments had acted by institutions or processes that remained "republican" within the meaning of the Guarantee Clause, as this court did in Kiernan v. Portland, 57 Or. 454, 111 P. 379, reh. den., 57 Or. 454, 112 P. 402 (1910) and Kadderly v. Portland, 44 Or. 118, 74 P. 710, reh. den., 44 Or. 118, 75 P. 222 (1903). See also Van Sickle v. Shanahan, 212 Kan. 426, 511 P. 2d 223 (1973); Kohler v. Tugwell, 292 F.Supp. 978, 985 (ED La 1968) (Wisdom, J., concurring); see generally, Tribe, American Constitutional Law 98-100 (2d ed. 1987); Heaton, The Guarantee Clause: A Role for the Courts, 16 Cumb.L.Rev. 477 (1985-8); Bonfield, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn.L.Rev. 513 (1962); Wiecek, The Guarantee Clause of the U.S. Constitution (1972). The case of Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973), referred to by Justice Linde, held that a guarantee clause claim was justiciable in state court. For further elaboration of this theme by Justice Linde, see Hans A. Linde, "When is Initiative Lawmaking Not 'Republican Government"?" Hastings Constitutional Law Quarterly 17 (Fall 1989): 159. Trombetta v. State of Florida Page 49, Discussion Notes: Discussion Notes 3. In Herron v. Southern Pacific Co., 283 U.S. 91 (1931), the United States Supreme Court held that a federal Court sitting in Arizona could direct a verdict for the defendant on the grounds of contributory negligence or assumption of the risk, despite the following Arizona constitutional provision: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." 4. For cases on the Federal Age Discrimination Act and its effect on state constitutional mandatory retirement provisions for judges, see EEOC v. Massachusetts, 858 F.2d 52 (1st. Cir. 1988); "Developments in State Constitutional Law: 1988," Rutgers Law Journal 20 (Summer 1989): 1034-35. 5. In McDaniel v. Paty, 435 U.S. 618 (1978) the United States Supreme Court struck down, on federal constitutional grounds, a Tennessee statute which, based on a state constitutional prohibition on clergy serving in the legislature, barred clergy from serving in a state constitutional convention. Note on Garcia v. San Antonio Metropolitan Transit Authority Page 54, top Discussion Notes: Discussion Notes 3. Could there be any other limit on Congress' power to legislate with respect to matters of importance to the states? How about to override state constitutional rights? See Calvin R. Massey, "Antifederalism and the Ninth Amendment," Chicago-Kent Law Review 64 (1989): 987; "Federalism and Fundamental Rights: The Ninth Amendment," Hastings Law Journal 38 (1987): 305. Wheeler v. Barrera Discussion Notes 4. In Aguilar v. Felton, 473 U.S. 402 (1985), the U.S. Supreme Court held that providing Title I educational services in parochial schools violated the First Amendment's Establishment Clause. McInnis v. Cooper Communities, Inc. 3. Conflict with Federal Regulations Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to pre-empt state law, the court's inquiry is similarly limited: If [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned. Fidelity Federal Savings and Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153-54 (1982) [quoting United States v. Shimer, 367 U.S. 374, 383 (1961)]. State Constitutional Protections beyond Compare the following statement to Monrad Paulsen's 1951 quote on page 68: Yet, with an increased awareness on the part of the Iowa bar and bench of the potential presented by reliance on the Iowa Constitution as an independent source of power and protection, the predictions of Justice Brennan and others may come true. The state of Iowa for one can make sure its reopened laboratory is active and productive. For if our liberties are not protected in Washington, the only hope is in Des Moines. Michael A. Giudicessi, “Independent State Grounds for Freedom of Speech and of the Press: Article I, Section 7 of the Iowa Constitution," Drake Law Review 38 (1988-89): 29. Michigan v. Mosley Discussion Notes 4. See Robert F. Williams, "In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result," South Carolina Law Review 35 (Spring 1984): 375-76: It is now becoming clear that Supreme Court dissenting opinions may influence the legislative branch or state courts as well as current or future Court majorities. That is, Supreme Court dissents can and do have a significant impact upon state courts confronting the same constitutional problem the dissenter believes the Court decided incorrectly. In this sense, state courts have become a new audience for Supreme Court dissents on federal constitutional questions that may also arise under state constitutions. Thus, dissenters may be vindicated more quickly, but only on a state-by-state basis. One might ask, then, whether Justice Brennan's and Marshall's dissents, among others, have not enjoyed a much higher vindication rate in state cases than Holmes ever achieved in later Supreme Court decisions. 5. For an argument that Justice Brennan's approach does not serve the interests of federalism, see Earl M. Maltz, "False Prophet-Justice Brennan and the Theory of State Constitutional Law," Hastings Constitutional Law Quarterly 15 (Spring 1988): 429. Cooper v. Morin Page 87, Discussion Notes: Discussion Notes 8. Mass. General Laws c. 276, sec. 1 (1986 ed.) provides: A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings. This statute provides more protection, statutorily, than United States v. Robinson, 414 U.S. 218 (1973). See discussion in Commonwealth v. Madera, 402 Mass. 156, 521 N.E. 2d 738, 740 (1988). See also John C. Cooper, "Beyond the Federal Constitution: The Status of State Constitutional Law in Florida," Stetson Law Review 18 (Spring 1989): 268-72. People v. Class Page 110, end of bottom Discussion Note 1: See also Brown v. State, 657 S.W. 2d 797 (Tex. Crim. App. 1983). Robert F. Williams, "In the Supreme Court's Shadow. . ." Following page 117: Justice Robert Utter made the following comments in Sofie v. Fibreboard Corp., 771 P. 2d 711, 725 (Wash. 1989): The dissenters make much out of their citation to Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed. 2d 365 (1987). As we state above, the conclusion in Tull has no bearing on this court because we base our decision on adequate and independent state grounds. Since 1889, Washington's jurisprudence on the right to a jury in civil trials has always been based on the state constitution. Tull and Dimick v. Schiedt, supra, may provide material for our analysis, but they do not direct us. Chief Justice Callow's advocation of Tull conceptually distorts the rule we developed in State v. Gunwall, 106 Wash. 2d 54, 720 P. 2d 808 (1986), which in turn relied on the concurring opinion of Justice Handler in the New Jersey decision of State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). Chief Justice Callow relies on Gunwall and Hunt to support his implication that this court should defer to Supreme Court interpretation of a comparable federal provision unless an analysis of the six Gunwall criteria indicate that we should take an independent course. Callow, C.J., dissenting, at 730. This implication is contrary to the reasoning of Justice Handler and was specifically rejected by him in Hunt. In footnote 3 of his opinion, he stated, "To the extent that Justice Pashman suggests in his concurring opinion that this approach establishes a presumption in favor of federal constitutional interpretations, supra at 355, 450 A.2d 952, no decision of this Court has recognized such a presumption, and nothing in this opinion or in the majority After criticism that the Gunwall criteria Following page 124: State v. Mollica 114 N.J. 329, 554 A.2d 1315 (1989) HANDLER, J. In this case federal law-enforcement officers It therefore follows ineluctably that the official 8 See Note, Federalism, Uniformity, and the State Constitu- rize their seizure. Hence, the seizure of these tele- IV. With regard to law-enforcement activities, a state The problem of evidence acquired and used re- For many years, federal standards for lawful amendment and its remedial exclusionary rule, it was recognized that any evidence that was independently obtained by state officials could be "turned over to the federal authorities on a silver platter." Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); see Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927). Such evidence could then be used by the federal agents provided they had not violated federal-constitutional standards by participating in the initial seizure. The essential principle underlying the development of this "silver platter" doctrine is that protections afforded by the constitution of a sovereign entity control the actions only of the agents of that sovereign entity. As the Supreme Court stated in Burdeau v. McDowell: "[the] origin and history [of the fourth amendment] clearly show that it was intended as a restraint upon the activities of a sovereign authority, and was not intended to be a limitation upon other than governmental agencies..." 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921). This principle explains why the conduct of ordinary citizens acting only in their capacity as private individuals will not trigger the constitutional protections that would otherwise apply if the identical acts were undertaken by government agents exercising governmental authority. . . . By parallel reasoning, a state's constitution that will not be invoked to control the conduct of its private citizens will not be applied to control the conduct of the officers of a foreign jurisdiction. See Commonwealth v. Wallace, 356 Mass. 92, 95, 248 N.E.2d 246, 248 (1969) (statements obtained by Canadian police treated just like statements related by private citizens in United States); State v. Olsen, 212 Or. 191, 317 P.2d 938 (1957) (search in Washington by Washington police, independent of Oregon agents, is analogous to search by private individuals); Kaufman v. State, 189 Tenn. 315, 320, 225 S.W.2d 75, 77 (1949) (officers of other state jurisdictions treated as being "in the same plight... as private citizens..."). The law-enforcement officers of another state jurisdiction have been analogized to the private citizens of the forum jurisdiction in terms of the applicability of the latter's constitutional restrictions. See, e.g., Pooley v. State, 705 P.2d 1293, 1301 (Alaska App. 1985) (Alaska court allows admission of evidence obtained in Alaska through actions of California official in California airport that might have violated Alaska state constitution); People v. Phillips, 41 Cal.3d 29, 79-80, 711 P.2d 423, 455-57, 222 Cal.Rptr. 127, 160 (1985) (California court allows admission of evidence obtained through Utah officials' inspection of inmate's mail in Utah jail, although such inspection illegal under California law); McClellan v. State, 359 So.2d 869, 873 (Fla.App. 1978) (evidence seized in Alabama pursuant to valid Alabama search warrant held admissible in Florida trial despite invalidity of warrant under Florida standards), cert. den., 364 So.2d 892 (1978). This treatment of officers of another jurisdiction with respect to the admissibility of evidence seized by such officers is analogous to the treatment accorded the officers of a foreign country, who, in the exercise of their own government's authority, are not subject to the federal constitution. . . . The critical element in these lines of cases is the agency vel non between the officers of the forum state who seek to use the evidence and the officers of the state who obtained the evidence. It is this elementthe presence or absence of agency between the officers of the two sovereigns-that determines the applicability of the constitutional standards of the forum jurisdiction. This is illustrated by early cases in which the courts of a state chose to dismiss or not address contentions of illegality of the seizure under its constitutional standards because its own officers were not involved in the seizure. . . . The essential dynamic of the silver platter doctrine remains pertinent in the context of the parallel jurisdiction that is exercised by federal and state officers within the territorial boundaries in each of the several states. However, as a result of Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), which held that fourth amendment searchand-seizure standards were applicable to the states through the fourteenth amendment, the application of the doctrine changed from its pristine form, exemplified by Byars and Lustig. In light of Wolf, the Supreme Court, in Elkins v. United States, 364 U.S. 206, 212, 213, 80 S.Ct. 1437, 1442, 4 L.Ed.2d 1669, 1675 (1960), observed that "[t]he foundation upon which the admissibility of state-seized evidence in a federal trial originally rested-that unreasonable state searches did not violate the Federal Constitutionthus disappeared in 1949." With the uniform extension of the exclusionary rule to evidence offered in all of the state courts, traditional silver platter applications and considerations of intergovernmental agency were no longer necessary to sterilize evidence gathered in violation of fourth amendment standards. See Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. This era of constitutional homogeneity faded, however, when various states began to establish search-and-seizure standards more protective than the minimum standards derived from the fourth amendment. See, e.g., State v. Johnson, 68 N.J. 349 (1975). With this development of differing standards, the silver platter doctrine surfaced in situations implicating the parallel jurisdiction of federal and state officers. It again became necessary as a condition for use in a state court to sanitize evidence that may have been obtained under less protective federal-constitu |