The Judicial System in the States

1. The Judicial System in the States Conflict between “independence” and “accountability”

2. Courts are in the middle of some of the most difficult issues of our time • Concerns about “activist” judges … What is an “activist” judge? Maybe a judge you don’t like? • How to maintain the “independence”of the judiciary … so the courts will render fair and impartial decisions based on law and • How to ensure that judges are held accountable for their actions … so the judges fairly reflect the attitudes and concerns of the state’s population • This is a pretty serious dilemma … the courts often find themselves in the middle of the most controversial issues …

3. Look at “Gay Marriage” • This is a socially polarizing issue • Massachusetts Supreme Court decided that the state constitution required gay marriages be recognized • That has happened in other states as well … but courts in other states rejected gay marriages (including California, New York, and Washington) • Initiative and Referendum changed several state constitutions to specifically ban gay marriages … like Arkansas’s definition of marriage amendment • Courts increasingly find themselves in the middle of some of the nation’s most controversial issues

4. Our Judicial System is Complicated • Of course it reflects our federal system of government … • So there is a complex array of federal courts … • As well as 52 separate state-level judicial systems (including D.C. and Puerto Rico) • The structure of these state-level courts differ considerably … even the names are different • There are general jurisdiction trial courts and • There are limited, special jurisdiction trial courts • There are intermediate appeals courts • Every state has a court of final appeals (supreme court) • Even the way judges are selected differs considerably among the states

5. Role and Structure of State Courts • About 100 million cases are filed in state courts every year … • Those cases are either civil or criminal … • Civil cases involve disputes between two private parties … what are some examples? • Criminal cases involve violations of the law … with government prosecution, jail time, etc. • All of these cases begin in a trial court … in Arkansas this is the circuit court. It is called other things in other states. The limited jurisdiction trial courts are generally called District Courts in Arkansas … that is where you would go for a DWI, for instance • The trial court in New York is the Superior Court … as you would have noted in Law & Order episodes • Cases go to trial unless there is a settlement or a plea bargain … as is normally the case … The overwhelming majority of cases are settled out of court.

6. Appeals • Those unhappy with the outcome of a trial court may sometimes file an appeal • Most states have two levels of appeals courts: • An intermediate appellate court, like the Arkansas Court of Appeals and • A State Supreme Court … though it is called something else in some states • Usually the Supreme Court does not have to take an appeal • When it does it is usually bound by precedent • The State Supreme Court has the ultimate power to interpret the state constitution … but in cases of interpreting the federal constitution, the US Supreme Court is preeminent • See the organization of Arkansas courts: • http://courts.state.ar.us/

7. Trial Courts • Of the 100 million cases filed each year, over half involved traffic offenses • There are approximately 17 million civil cases each year and • Approximately 21 million criminal cases • About 8 million domestic and juvenile cases • Most of these cases are resolved by settlements or plea bargains … only a few actually go to trial

8. Trial Courts are the “Courts of First Instance” • The judge presides … rules on evidence, rules on objections, rules on admissibility, and instructs the jury • The jury decides on facts • “Mistakes” may provide the basis of an appeal • But the “mistakes” that the appeal is based on must be shown to have affected the outcome • There are General Jurisdiction Trial Courts, like the Circuit Court in Arkansas … and Limited or Special Jurisdiction Trial Courts, like the District Courts in Arkansas

9. Appeals Courts • Appellate Courts do not decided issues of guilt or innocence … they look at legal errors • The errors must be prejudicial • Most states have intermediate appeals courts • All states have a “Supreme Court” or some such title … like “Court of Appeals” in NY • Appeals courts may have discretionary or mandatory jurisdiction … it varies among the states • Appeals courts may hear cases en banc or through smaller panels of 3 or more judges • Sometimes an appellant is guaranteed review by at least one level of appeals court … it varies a lot among the states

10. Judicial Selection • There are competing values of independence and accountability … we want our judges to render decisions independent of politics or wealth, but we want to hold them accountable too. It is hard to do both. • So, the selection of judges ranges from appointment by the Governor, essentially for life or long terms to regular partisan elections by the electorate where the judge has to raise campaign funds, advertise, and campaign for office • There are a lot of variations in between

11. Selecting Judges • Popular Election • Elections allow greater popular control and public accountability • Some are partisan (8 states, including Texas), some nonpartisan (13 states, including Arkansas) • Introduces politics to judicial process • May cause some qualified candidates to drop out • Does this affect “judicial neutrality?” • Does it affect the decisions that judges make? (like capital punishment?) • Does it tie judges to their campaign contributors? • This is a difficult area of public policy … • Appointment • Some systems are pure appointive systems (4 states, including California) • Some systems try to incorporate “merit” in the appointment, using a nominating commission • Terms of Office • Judicial Compensation

12. More on judicial selection • So, Popular Elections … elections allow for greater popular control over the judiciary and more public accountability for judges • See Map on page 339 … • Elections may be partisan or nonpartisan … Arkansas has used nonpartisan elections since 2001 … after Amendment 80 was adopted in 2000 • Texas judges are elected on partisan ballots … meaning nomination in primaries • The supporters judges get in the election process is related to the decisions they render … • There often is a direct correlation between campaign contributions and voting … Democrats opposed arbitration and Republicans supported it

13. Appointment of Judges • Pure Appointive Systems … like the federal system of selecting judges • Merit Systems that rely on a nominating committee … like the Missouri Plan • How does the Missouri Plan work? • Confirmation by an alternate body, such as the State Senate or a state council (New Hampshire) • Retention Elections are conducted in states that use the Missouri Plan • “Merit” systems depend on commissions made up of lawyers, citizens, etc. • Judicial terms of office vary across the board … but generally are longer than other elected officials

14. Judicial Terms/Compensation • Term of office • Only in Rhode Island is appointment for life tenure • Judges in Massachusetts and New Hampshire can serve until they turn 70 • Usually, state court judges serve fixed terms of office & must seek reappointment or reelection • See Tables 9-1 – 9-3(pp. 347-354) for specific terms … Supreme Court justices in Arkansas serve 8 year terms, for instance • Compensation • While judicial salaries look pretty good, they pale in comparison with what a successful law practice can produce • Trial judges earn from $100K -$180K nationwide … • Supreme Court judges earn from $106K - $220K nationwide, dependent on the state