Chapter 8: State Courts and Constitutions

Chapter 8: State Courts and Constitutions

Tasks: Mapping, Historical Trends, Univariate, Cross-tabulation

Data Files: STATES, USTREND, GSS, NES

State Courts

The basic function of state courts is to interpret and apply the law to resolve conflicts. The law includes regulations contained in state constitutions, legislative enactments, administrative rules and previous “judge-made” laws. The conflicts may be over major questions of public policy, the rights of citizens or over questions of guilt or innocence.

States and federal courts play key roles in resolving these conflicts within American society. They are often deeply involved in politics because many of their decisions determine who get what, where and how. For example, through the years the Supreme Court has often stirred up controversy by making decisions many feel usurped the powers of state and local governments. One such decision involved school prayer.

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Data File: / GSS
Task: / Univariate
Primary Variable: / 41) SCH.PRAY.1
View: / Pie

Although it has been more than 40 years since the Supreme Court prohibited prayer in the public schools (1962), most Americans do not believe the decision wascorrect. A significant majority (60.3%) favor prayer in public schools. This is true even though the wording of the question is written in a way that supports the Court’s position since it does not ask about simply allowing prayer or Bible reading but rather with laws requiring prayer or Bible reading.

Although many of the controversial court rulings we hear most about come from the U.S. Supreme Court, there are many legal issues at the state and local level that concern Americans as well. One of these involves the rights of criminals.

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Data File: / GSS
Task: / Univariate
Primary Variable: / 17) COURTS?
View: / Pie

As you can see, an overwhelming number of Americans accuse the courts of not being sufficiently harsh in their treatment of criminals.

For many interest groups the access to state courts is more important than access to legislators or bureaucrats. One contentious issue in which this is true is abortion.

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Data File: / GSS
Task: / Univariate
Primary Variable: / 42) ABORT ANY
View: / Pie

Although abortions have been legal in the United States since Roe v. Wade in 1973, this landmark decision still has not gained general public acceptance. Here you see that a large majority of (58.4) do not favor allowing women legal abortions for any reason. Thus, for Pro-Choice interest groups, the courts which have upheld Roe v. Wade for these many years are the key political arena for maintaining their point of view in the face of opposition from the public.

When you think about it, it’s not too difficult to see that state courts deal with many issues that most directly affect our everyday lives.For example, most criminal court cases are decided in state courts because most crimes are violations of state laws.In addition, virtually all cases dealing with domestic relations (divorce, adoption, and child custody) are heard by state courts.Questions of property ownership (contracts, zoning, wills and estates, and automobile accidents) all originate in the state courts.

State Courts: Jurisdiction and Organization

All states have trial courts that initially hear cases and appeals courts that may review the decisions of the lower courts. State courts hear and decide the bulk of civil and criminal cases in the U.S. The courts and cases are usually governed by state laws. Federal courts normally abstain in cases where both the state and federal law are involved.

The cases heard in state courts falls into two general areas of law – criminal and civil. In criminal cases the state is involved in an action against a citizen for a felony or misdemeanor. Criminal cases begin with an arrest and proceed through the stages of preliminary hearings, the setting of bail, indictment, arraignment, trial and sentencing.

In a civil case the court acts as a forum for settling disputes between two or more private parties. However, in some cases, the government may be the plaintiff or defendant. Typical civil suits usually involve such matters as violations of contracts, divorces and automobile accidents.

In terms of organization, state courts are commonly organized in a hierarchal pattern.

Figure 8.1: State Court Organization

Court of Last Resort
Appellate (Intermediate ) Court
Trial Courts of Original Jurisdiction
Courts of Limited Jurisdiction

At the top of this structure is a court of last resort. All states have a court of last resort. This court is usually known in the state as the Supreme Court but it does have other names in some of the states.

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Data File: / STATES
Task: / Mapping
Variable 1: / 144) COURT NAME
View: / Map
>Display: / Legend

As you can see, 45 states call their court of last resort a “Supreme Court.” But in New York and Maryland it is known as the “Court of Appeals.” Massachusetts and Maine call their highest court the “Supreme Judicial Court” and West Virginia’s is called “Supreme Court of Appeals.”

The U.S. Supreme Court consists of nine justices but most states have not followed this lead.

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Data File: / STATES
Task: / Mapping
Variable 1: / 146) #JUDGES
View: / Map
Display / Legend

As you can see from this map, state supreme courts have five to nine judges sitting on them. More than half the states (43) have either five or seven justices. Six states do have nine justices; only one of the states has eight justices. By looking at the map, do you remember how to find the state with eight “supreme court” justices?

The major workload of the highest state court involves hearing appeals from the lower state courts (known as appellate jurisdiction), although some state supreme courts have original jurisdiction to hear certain matters such as cases in which the state is a party or disputes between counties within a state.

Appellate courts have been established in about half of the states in order to reduce the case loads of the highest state courts. These courts may have original jurisdiction in some cases but their main function is to review the decisions of the trial courts to determine if the law has been correctly applied in the case. Generally, the appellate courts do not review questions of fact or hold a new trial.

Trial courts (called district, circuit or superior courts) have original jurisdiction in most cases involving state law. These are the “courts of record.” That is, they keep a full transcript of their proceedings. The trial courts handle the civil and criminal matters. Most litigation is terminated at this level although appeal to the appellate court and directly to the state’s highest court is possible.

At the bottom of the state court system are a number of minor courts or courts with limited jurisdiction. There is a great deal of variation in the specific minor courts and in the responsibilities given to them. Large cities may have municipal, magistrate, police, traffic, city, family, or small claims courts. These courts principally hear cases involving traffic violations, small claims, divorces, child custody, juvenile offenses and misdemeanors. It is at this level that most citizens have their first and often their only encounter with the state court system.

Selection of Judges

The judges, who make these decisions across the states, are generally elected to their offices. Others are selected by the governor, the legislature or by a system combining appointment and election commonly referred to as the “Missouri Plan.”

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Data File: / STATES
Task: / Mapping
Variable 1: / 145) SELECTION
View: / Map
Display / Legend

State judicial elections areeither held on partisan or non-partisan ballots. In a partisan election, the candidate runs in his or her party’s primary and the party nominees face each other in a general election. As you can see, 10 states hold partisan judicial elections. These states are mostly located in the southeast region of the country.

In a nonpartisan election, the candidates are placed on the ballot with no reference to party though they may have been nominated in a party primary. Here you see that 13 states hold nonpartisan judicial elections. These states are primarily located in the northwest and upper Midwest.

Partisan elections usually bring out a better voter turnout. It may be that party labels help voters to distinguish the “good” judges from the “bad” judges. At the same time, partisan elections are also criticized on the ground that a judge should be free of political connections in order to make unbiased decisions. Overall, voters have not demonstrated a great deal of interest in judicial elections. Voters are seldom aware of issues, qualifications or even the identity of those seeking a judicial office.

It is commonly assumed that appointment is the best method for selecting qualified state judges. It is considered better than having judicial elections (especially partisan elections) because appointment rests on the values of objectivity, expertise and isolation from electoral influences.

In four states, judges are appointed by the legislature. In seven states, they are appointed by the governor. Unfortunately there is no evidence to suggest that appointed judges are more qualified in terms of legal training than elected judges or more responsive to community values.

In an effort to secure responsive, qualified and expert judges, several states have combined the appointive and elective methods. This system is often referred to as the “Missouri Plan.” As you will note from the map, 16 states use this type of appointment/retention election alternative.

Under the Missouri Plan, a nonpartisan commission is set up in the state to recommend candidates for judicial office. The commission is often made up of judges, attorneys and laypeople appointed by the governor. The commission usually submits three names to the governor. The governor appoints one of the commission’s recommended candidates to office. The appointed judge serves a probationary period of at least one year and runs on their record at the next election. The voters are faced with the task of deciding whether or not the judge should be retained – they do not choose among candidates. They simply vote “yes” or “no” for retention. If the voters vote “yes,” then the judge is retained for another full term. If the vote is “no,” then the governor must appoint another candidate from the list of names submitted by the nominating commission.

In practice, voters rarely vote “no” in a retention election. It is difficult, as they say, to “beat someone with no one.”

State Constitutions

State constitutions are the fundamental law of the states. They are superior to ordinary state legislative acts and local laws but are subordinate to the U.S. Constitution.

State constitutions also set forth the structure and organization of state governments. These state constitutions serve as the foundation of state law, in addition to providing the framework for overall government operations. Just as the U.S. Constitution can be said to "regulate" the federal government, state constitutions regulate state governments.

State constitutions, like other facets of state politics and policy, are more different than alike. That is, there is great variation as to content, age, amendments etc. among state constitutions.

Let’s first talk about some general information regarding state constitutions. As we know, the United States has had only one constitution. This is true for many of the states.

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Data File: / STATES
Task: / Univariate
Primary Variable: / 154) CONST#
View: / Bar Freq

To see the frequency and percent for each bar on this graph, simply use your mouse and click on the bar you want to see. When you click on the first bar, you will see that 19 states have had only one constitution. This means more than a third of the states (38%) fall in this category. But as you look at this bar chart, you find that many of the states have had several constitutions over their history. In fact, one state has had 11 constitutions.

Let’s now take a look at the individual states.

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Data File: / STATES
Task: / Mapping
Primary Variable: / 154) CONST#
View: / List: Rank

Now we see the state of Louisiana has had 11 constitutions, followed by Georgia with 10 and South Carolina with 7. One might believe the oldest states would have more constitutions because they have had more time and opportunities to adopt them. This is certainly true for Georgia, South Carolina and Virginia (6) which are some of our oldest states. But as you scroll through this list, the states from the South appear to have had many more constitutions than the other regions. In fact, when it comes to the number of constitutions, 8 of the top 9 states are southern states.

State constitutions also tend to be very long, very wordy and very detailed documents.

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Data File: / STATES
Task: / Mapping
Variable 1: / 156) WORDS
View: / Map
Display / Legend

This map shows the estimated length of state constitutions. The variable is the number of words in each constitution. As this map shows, constitutions run from 8,000 to more than 300,000 words. Just from this map, you can see that Sunbelt states have some of the wordiest state constitutions. Let’s examine the state rankings.

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Data File: / STATES
Task: / Mapping
Variable 1: / 156) WORDS
View: / List: Rank

When you look at the individual state rankings, you see the Alabama constitution contains approximately 310,296 words! The next wordiest constitution is found in Texas but its 93,000 words don’t seem very long when compared to Alabama. Oklahoma’s constitution has 79,133 words. When you look at the Top 10 longest constitutions, you see that all of them are more than 50,000 words. At the other extreme, only two states have constitutions with less than 10,000 words. They are New Hampshire (9,200 words) and Vermont (8,295 words).

Over time, elected officials and interest groups have filled state constitutions with seemingly non-constitutional-type amendments. For example, the constitution of Louisiana was amended to declare Huey Long’s birthday a legal holiday. A Florida environmental group got a constitutional amendment adopted by the voters which details the exact size and type of net which can be used to fish off the Florida coasts. In Alabama, the nation’s longest constitution, the constitution requires the legislature to "pass such penal laws as it may deem expedient to suppress the evil practice of dueling."

Several factors account for the length and detail of state constitutions. One key factor was the loss of citizen confidence in state legislatures and governors after the Civil War.

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Data File: / STATES
Task: / Mapping
Variable 1: / 155) CON_ADPT
View: / Map
Display / Legend

This map shows the date of adoption of a state’s last constitution. From 1857 to 1894, 21 states adopted new constitutions. State constitutions adopted during this time period placed many restrictions on the powers and procedures of state legislatures and governors. During the 20th Century, executive branch reorganization, which led to clearer lines of authority and more professional legislatures, led to another round of state constitutional revisions. From 1895 to 1956, 11 states adopted new constitutions and another 10 states adopted newly revised constitutions from 1963 to 1982.

The goal of these most recent efforts has been to update and streamline state constitutions. Chief among the goals of these new state constitutions was to remove some of the limitations on the legislature, strengthen the administrative powers of governors and eliminate barriers to the modernization of local governments. Overall, states have tried to make their new constitutions brief, flexible, easily read by citizens and confined to the fundamentals of governing.

Another factor contributing to the length and detail of state constitutions comes from the fact that they are political documents. As such, they reflect the desires and wishes of individuals and organized interest groups. Several state constitutions contain methods for direct democracy. Direct democracy provides the opportunity for citizens to determine state and local issues on the basis of voting for or against specific measures. Two of the most popular direct democracy methods are initiatives and referenda.

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Data File: / STATES
Task: / Mapping
Variable 1: / 164) DIRECT_DEM
View: / Map
Display / Legend

As you can see from this map, 10 states have initiative and referendum processes. Three states have only the initiative process. On this map the 19 states with no data (“missing”) have no direct democracy techniques.