2The legal system is more than just courts! Let’s not forget the lawmakers: Legislatures, Executives, Administrative Agencies (The Bureaucracy)The assigned book (by Carp, Stidham & Manning) is fairly typical of books on this topic. It focuses on courts to the exclusion of all the other important players.
3Classic Legal Theory Courts have no power to make laws Courts can only “find” law, or at best apply old law to new situations.So let’s start with the institutions that do have the right to make laws: Legislatures job is to “pass” laws.Question: What establishes the power of legislatures to make laws? CONSTITUTIONSWhat part of the US Constitution creates Congress? ARTICLE I
5Lawmaking Bodies1 United States Congress 50 State Legislatures
6MN CANB COBut there are more than just State and federal legislatures…
7Lawmaking Bodies 1 United States Congress 50 State Legislatures 3000+ County Boards18,000+ City CouncilsSchool DistrictsSpecial DistrictsLegislatures are not hierarchical.
8Different type of lawmaking Legislatures and Courts sometimes appear to be rivals but really aren’t. They make decisions in didfferent ways.Legislatures can did things courts can’t (or do only poorly)Impose taxesSpend MoneyLegislatures set general rules.Courts respond to specific cases. (Dictum covers any comments that go beyond a case decision.)
9Lawmaking IOnly a member of the House or Senate may introduce a bill …but anyone can write a bill (e.g., Presidential staff, groups/lobbyists)Bills are numbered consecutively within each chamber. HB1 ≠ SB110,000+ bills are proposed and fewer than 5 to 10% are enacted.Many bills are originally written by the executive branch or by interest groups/lobbyists.With the exception of tax bills which according to the Constitution must be introduced in the House, bills may be introduced in either chamber.House – place the bill into the “hopper” where it will be collected by the Clerk and passed in to appropriate committee with the Speaker’s blessing.Senate – a member, after being recognized by the presiding officer, must announce the new bill to the Chamber. It will then be passed on to the appropriate committee.Bills are numbered consecutively within each chamber (HB1/SB1) Sometimes the same bill is introduced in each chamber at the same time. It still does not get the same number.
10Lawmaking II A bill must survive three stages to become a law: committees (and their subcommittees),the floor, andthe conference committeeA bill can die at any stage.
12Start in the House – Part 1 Introduce the BillSend it to the Relevant CommitteeAssign it to the Relevant SubcommitteeHold hearings & “Markup” BillApprove a Subcommittee VersionApprove a Committee VersionSend it to the Rules Committee
13Start in the House – Part 2 Construct a “Rule” and Send the Bill to the FloorConsider Amendments (if allowed by “rule”)Vote on Final passage of the (Amended) BillSend the Approved Bill to the SenateWait for Senate Approval
14Return Trip and Further Consideration The Senate Considers the Bill (Committee and Subcommittee Hearings and Votes, & Final Passage of the BillResolution of Conflict – The Conference CommitteeFinal Passage of an Identical Bill in Both Houses
15How a Bill Becomes a Law: The Long Version (Part 1)
16How a Bill Becomes a Law: The Long Version (Part 2)
17A Bill Becomes LawIf The President signs a Bill that has passed by both the House and the Senate.If the President Vetoes the Bill, the House and Senate can re-pass the Bill each by a 2/3’s vote. Is they do so, the Bill becomes law without the President’s signature.****** A few twists.The President may refuse to sign a bill but it still becomes law if he doesn’t actively veto it – so long as the Congress remains in session. But it is possible for the President to “pocket veto” a bill during a Congressional recess such that Congress has no chance to override the veto. See the diagram for others.But this is the dominant processOther complications: Presidential Signing Statements (Clinton, Bush, Obama?)
18Establishing a Dept. of Homeland Security Original Proposal (Joe Lieberman, D-RI), October 2001Presidential Endorsement, June 8, 2002House (HR5005)Select Committee on Homeland SecurityPassage ( )SenateGovernment Affairs CommitteePassage, (90-9)Reconciliation in Conference409 Amendments proposed during floor debates. (Mostly in the Senate.)
19Bills come in all shapes and sizes One Extreme: The Sherman Anti-Trust Act (handout)The Other ExtremeAny Tax BillThe BudgetMost contemporary legislation*Some bills are long and ponderous laying out great detail. Others are very short and make minor changes. Yet length does not define importance (Sherman).Why are some bills long and others short? Why are they passed and passed in their final form? Because they are being pushed by political forces. By, in part, the legal culture.* The problem with “earmarks”
20StatutesStatutes (Legislative bills signed into law by Executives) are general directives, unlike court decisions that apply to specific cases.A statute for example, defines a crime and sets a penalty. But a Court determines if John Doe or Jane Smith is guilty of that crime.Exception: “Private Bills”. Once common , now much less so. Subject to accusations of graft and corruption. They also seemed to waste scarce legislative time. Many states outlawed the practice after the Civil War.
22DelegationCongress does not have the time to handle every detail. It defers to agencies who develop expertise to accompany the mandate they are given.Delegation is also a form of delay. It involves a way of dodging or compromising a difficult political issue.
23Building a Court System The Constitutional Convention (1787)Two principal plans were offered:“The Virginia Plan”A Supreme Court and lower federal courts“The New Jersey Plan”A Supreme Court and existing state courtsWhat was the compromise? It’s laid out in the Constitution. Article III.
24Building a Court System The US Constitution -- Article III“The judicial power …shall be vested in one Supreme Court …
25Building a Court System The US Constitution -- Article III“The judicial power …shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.”Congress has a role in the court system. It can create courts and it can eliminate them (all of them except the US Supreme Court which is created by the Constitution).
26Article IIISection 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
27Article IIISection 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state; --between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.Section 2 lays out the Court’s “jurisdiction”.“in law and equity”?“to cases”, “to controversies”?
28Article IIIIn all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.In Paragraph 2, a key distinction is made – between original and appellate jurisdictionWe also learn that CONGRESS can modify/adjust the Supreme Court’s jurisdiction, i.e., alter the types of cases it can decide. This can be a significant check if used.
29The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.Article III has one more section that defines the crime of Treason. Interesting but less relevant.
30The Constitution and the National Judiciary Article III of the Constitution establishes:a Supreme Court in which the judicial power of the United States is vestedthe original jurisdiction of the Supreme Courtlife tenure for judgesjudges receive compensation that cannot be diminished during their serviceOriginal Jurisdiction – a list of cases that the Supreme Court can hear without any consideration by the lower courts. This is very limited and only a couple of such cases are decided each year. Basically these are lawsuits involving ambassadors of other nations and lawsuits between states. All other cases come to the court via its “Appellate” Jurisdiction which can be modified by Congress. Appellate means there has to be a lower court decide the case first and then that decision is appealedRemember the original battle to define the US Government . The original federal court system had no lower courts. It was left to be a future decision.Tenure for 'good behavior‘. It is possible to impeach and try judges as we impeach and try presidents. Vulnerable judges get the hint and usually resign.Compensation. Congress can’t threaten judges!
31Building a Court System The Judiciary Act of 1789The Supreme Court shall have a Chief Justice and 5 Associate Justices.There will be 3 (regional) Circuit Courts (staffed by 2 Supreme Court Justices and 1 District Court Judge)There will be 13 district courts (1 per state) and each staffed by a federal District Court Judge.
32The Original Colonies/States Two Justices went north, two traveled among the middle states, and 2 went south to hold appeals
33Building a Court System Evarts Act of 1891Established the US Courts of Appeals while abolishing the Circuit Courts (which existed as a dual appeals system until 1911).Designed to eliminate “circuit riding” by Supreme Court justices.9 regions
34Building a Court System Judiciary Act of 1925Gave the US Supreme Court what it wanted most: control over its caseload.
35The “Least Dangerous Branch” In Federalist # 78, Alexander Hamilton argued that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.”WHAT THIS MEANS:The courtcan not fund programs or their implementation and itcan not force compliance with its rulings.
36The “Least Dangerous Branch” Today the federal courts are more powerful than Hamilton anticipated. Nevertheless, the courts still suffer the two basic limitations that Hamilton identified.WHAT THIS MEANS:The courtcan not fund programs or their implementation and itcan not force compliance with its rulings.
40Here’s what Warren Burger had to get involved as Chief Justice in the Administration of the court system.
41The American Legal System The American legal system is a dual system:State courtsFederal courtsBoth systems (usually) have three tiers:Trial courtsIntermediate appellate courtsHigh or supreme courtsFEDERAL CASES (According to Art. III): Federal laws, Admiralty/Maritime Laws, Treaties, Controversies in which the US government is a party, Disputes between states, Disputes between citizens of a state and another state or foreign nation. (“DIVERSITY”)State courts--actually 50 different ‘systems’ (and 52 State Supreme Courts!)States courts process most (almost 99%) civil and criminal disputes.Trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction)Appellate courts--decide questions of law, not fact (appellate jurisdiction)High or supreme courts (TX and OK have 2)
42State Court Questions How many states have their own court system? All of them!How many state supreme courts exist?Hint: 50 would seem a good guess.How about 52?
43State Court Questions II How many states have intermediate level courts of appeals?Hint - Not all of themCSM: 40How many cases do state trial courts handle each year?Hint: In relative termsMany more than the federal trial courts do.
48History of the Colorado Courts When Colorado became an official territory, a newSupreme Court was established. Its first threejustices were appointed by President AbrahamLincoln. This court held its initial session in Denveron July 10, 1861.Colorado was admitted to the union as a state on Aug. 1, 1876.The state’s original constitution provided for a Supreme Court with a bench of three justices, as well as four judicial districts, with one judge serving each
49History of the Colorado Courts 1876 – 4 judicial districts; 1 judge in each1881 – 7 judicial districts; 1 judge in each1887 – 9 judicial districts; 1 judge each, except Arapahoe County (incl. Denver) with 21891 – 13 judicial districts; first Court of Appeals1893 – 2nd judge given to Pueblo area1895 – 2nd judge given to Colorado Springs area1905 – Supreme Court given 7 justices; first Court of Appeals abolished1913 – second Court of Appeals established for a four-year life1917 – second Court of Appeals abolished1921 – 14 judicial districts1945 – 15 judicial districts1953 – 16 judicial districts1958 – 18 judicial districts1963 – 22 judicial districts, the present number1970 – third and current Court of Appeals was established1977 – Supreme Court and Court of Appeals moved into current building
50Colorado Courts TodayThere are 22 Judicial Districts within the State of Colorado as established by the State Legislature in The last major revision was November 2001 with the consolidation of Broomfield in the 17th Judicial District. Changes in district boundaries require a two-thirds vote of each house of the legislature.As of July 1, 2006, the Colorado Judicial Branch has a total of 275 Judges and Justices: 7 Supreme Court Justices, 19 Court of Appeals Judges, 144 District Court Judges, and 105 County Court Judges. This excludes Denver County Court Judges (17), who are appointed by the Mayor of Denver.There are seven water courts, one in each of the major river basins (South Platte, Arkansas, Rio Grande, Gunnison, Colorado, White, and San Juan rivers). They are divisions of the district court in that basin.
53Administrative Agencies The Government “Residual” (that which remains after we eliminate the courts, legislatures and chief executives)They are the alphabet soup of government
54NATIONALSTATELOCALICCLicensing BoardsZoning BoardsFDAWater CommissionsPark CommissionsSECMotor Vehicle BureausPort AuthoritiesFTCTourismTax AssessorsIRSCommerceMosquito Control
55Administrative Agencies Mixture of dependence and independenceCreature of the legislature in most instancesDiverse Powers:Legislative (Make up rules and regulations)Executive (staff/Inspectors to enforce rules)Judicial (administrative hearings)
56A Cancerous Growth or Fulfillment of Social Needs The rest of government has a short attention span:Legislatures move from crisis to crisisCourts from case to caseAgencies work day & night (“Who you gonna call?”)
57Controlling Administrative Behavior Fear of delegated authorityAgencies make laws based on delegated authority. How are we protected from the abuse of power?
59Administrative Procedures Act of 1946 Publish descriptions of central and field administrationMake procedural rules publicInform public of where they can get necessary formsMake rules and regulations publiGive notice of changes to existing rules and regulationsAllow public objection in hearings or in written form
64Judicial Review of Administrative Agencies Our system of Checks and Balances involves form that just the 3 branches of the national government.A disgruntled individual may take an Agency to court only under certain circumstances:The individual has exhausted all administrative proceduresThe individual must show standing (a financial stake)Even then Congress has explicitly precluded some lawsuits. The VA is un-sueable in most instances.
65Judicial Review of Administrative Agencies Judicial review is “Narrow”;Did the agency follow APA standards?Did the agency follow its enabling legislation?If “YES” to both, courts will usually not overrule but will defer to agency “expertise”. The degree of deferral fluctuates over time and may be a function of the contemporary legal culture.Are agencies valued or perceived as the 1984 image of Big Brother. Are we made as hell and not going to take it any more?