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State & Local Government Judicial Politics in the States.

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1 State & Local Government Judicial Politics in the States

2 The Judicial Branch Courts are important in U.S. due to two factors: A. higher law notion of constitutionality A. higher law notion of constitutionality Constitution = societal contract Constitution = societal contract some institution must interpret that contract some institution must interpret that contract courts have assumed that role, because they are seen as less political courts have assumed that role, because they are seen as less political B. separation of powers B. separation of powers courts are largely independent of the other branches courts are largely independent of the other branches because, they are capable of protecting themselves because, they are capable of protecting themselves in short, courts are political actors in short, courts are political actors

3 The Creation and Organization of the Federal Judiciary Article III – The United States Supreme Court Article III – The United States Supreme Court Article I – Congress has the Power to Establish Lower Federal Courts Article I – Congress has the Power to Establish Lower Federal Courts Federal District Court (94) Federal District Court (94) The Federal Courts of Appeals (12+1) The Federal Courts of Appeals (12+1)

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5 Federal Court Organization (simplified) The federal courts are organized in to three tiers - like a pyramid. The federal courts are organized in to three tiers - like a pyramid. Base: Federal District Courts Base: Federal District Courts Each state has at least one district court and no district encompass more than one state. Each state has at least one district court and no district encompass more than one state. There are 94 total district courts and about 665 judges. There are 94 total district courts and about 665 judges. These courts are presided over by federal judges who are appointed by the president, confirmed by the senate and hold office for life. These courts are presided over by federal judges who are appointed by the president, confirmed by the senate and hold office for life. Each court has a minimum of two judges and a maximum of about 27. Each court has a minimum of two judges and a maximum of about 27. These courts hear about 280,000 criminal and civil cases per year. These courts hear about 280,000 criminal and civil cases per year.

6 Federal District Court Federal district courts have original jurisdiction in most, but not all, federal cases. Some of these are criminal, but many if not most cases are civil. Federal district courts have original jurisdiction in most, but not all, federal cases. Some of these are criminal, but many if not most cases are civil. Federal district courts use both grand and petite juries and cases are argued by United States Attorneys, who are appointed by the president via senatorial courtesy. Federal district courts use both grand and petite juries and cases are argued by United States Attorneys, who are appointed by the president via senatorial courtesy. Arkansas has two federal districts: Western & Eastern. Arkansas has two federal districts: Western & Eastern.

7 Arkansas Federal Districts

8 Eastern District

9 Federal Courts of Appeals 11 geographic circuits, DC 12 th, 13 th Court of Appeals for Federal Circuit. 11 geographic circuits, DC 12 th, 13 th Court of Appeals for Federal Circuit. Court of Appellate Jurisdiction Court of Appellate Jurisdiction Hear about 40K per year Hear about 40K per year No Juries / Three Judge Panels No Juries / Three Judge Panels Written Briefs Written Briefs

10 Middle Tier: The US Court of Appeals Cases that are adjudicated by the federal district courts may be appealed to one of 13 U.S. Courts of Appeals. Cases that are adjudicated by the federal district courts may be appealed to one of 13 U.S. Courts of Appeals. Twelve of these courts are regional circuit courts - that is, they hear cases from larger geographic areas known as circuits. Twelve of these courts are regional circuit courts - that is, they hear cases from larger geographic areas known as circuits. The Thirteenth court is in Washington D.C. and concentrates on appeals related to civil suits against the US government. These courts hear about 36,000 cases per year. The Thirteenth court is in Washington D.C. and concentrates on appeals related to civil suits against the US government. These courts hear about 36,000 cases per year. Cases are heard by three judges who largely work off of written arguments known as briefs with limited oral arguments on the part of attorneys. There are no juries, witnesses or cross examinations. Cases are heard by three judges who largely work off of written arguments known as briefs with limited oral arguments on the part of attorneys. There are no juries, witnesses or cross examinations. Arkansas is located in the 8 th Circuit which sits in St. Louis, MO. The 8 th Circuit hears cases for the following states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; North Dakota; South Dakota. Arkansas is located in the 8 th Circuit which sits in St. Louis, MO. The 8 th Circuit hears cases for the following states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; North Dakota; South Dakota.

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12 Top Tier: The United States Supreme Court The Supreme Court is both a court of original and appellate jurisdiction. The Supreme Court is both a court of original and appellate jurisdiction. Article III (section 2) outlines the original jurisdiction of the court. Most important is the supreme court's role as the first and only arbitrator of legal disputes between the states. Article III (section 2) outlines the original jurisdiction of the court. Most important is the supreme court's role as the first and only arbitrator of legal disputes between the states. Article I grants Congress the power to establish appellate jurisdiction for federal courts. Article I grants Congress the power to establish appellate jurisdiction for federal courts. Most cases heard by the court are on appeal from the US courts of appeals and state courts of last resort (the highest of the state courts)- although in extraordinary circumstances the court will hear a case directly after resolution in district court Most cases heard by the court are on appeal from the US courts of appeals and state courts of last resort (the highest of the state courts)- although in extraordinary circumstances the court will hear a case directly after resolution in district court E.g. United States vs. Nixon (1974) E.g. United States vs. Nixon (1974) The Supreme Court hears relatively few cases - approximately 150 – 200 per year out of requests for review. 97% of requests for review are rejected on average. The Supreme Court hears relatively few cases - approximately 150 – 200 per year out of requests for review. 97% of requests for review are rejected on average.

13 Article III, Section II: Supreme Court Jurisdiction 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. 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. In 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 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.

14 Federal Court Jurisdiction Federal Question jurisdiction Federal Question jurisdiction A case must present a question arising under the U.S. Constitution, a federal statute, regulation, executive order, or treaty. A case must present a question arising under the U.S. Constitution, a federal statute, regulation, executive order, or treaty. Diversity of Citizenship jurisdiction Diversity of Citizenship jurisdiction Applies only to civil suits Applies only to civil suits Case must involve parties from different states and an amount in controversy that exceeds $75,000 Case must involve parties from different states and an amount in controversy that exceeds $75,000

15 The United States Supreme Court How the US SC Hears Cases How the US SC Hears Cases Writ of Certiorari Writ of Certiorari Petition for Court to Hear the Case Petition for Court to Hear the Case Literal meaning (request for lower court records) Literal meaning (request for lower court records) Rule of Four Rule of Four Exhaust the State Judiciary Exhaust the State Judiciary Exhaust (almost always) the federal judiciary Exhaust (almost always) the federal judiciary

16 Supreme Court: Basic Procedures Cases appealed from the states must meet two conditions. First, they must have exhausted the state system. Second, they must raise federal questions - issues of constitutional principles, federal law, etc. Cases appealed from the states must meet two conditions. First, they must have exhausted the state system. Second, they must raise federal questions - issues of constitutional principles, federal law, etc. The court exercises total control over its docket and decides what cases to hear by the rule of four The court exercises total control over its docket and decides what cases to hear by the rule of four The procedures of the supreme court look much like those in appellate courts. The nine justices hear oral arguments and read briefs including amicus curiae briefs. The procedures of the supreme court look much like those in appellate courts. The nine justices hear oral arguments and read briefs including amicus curiae briefs. The federal government, a usual litigant in before the court, is represented by the United States Solicitor General (Paul D. Clement) The federal government, a usual litigant in before the court, is represented by the United States Solicitor General (Paul D. Clement)

17 Basic Procedures (cont) Court hears oral arguments and then meets in private meeting to vote on case. Court hears oral arguments and then meets in private meeting to vote on case. Senority Senority Agenda setting Agenda setting After the court decides a case by majority vote, a majority (typically the chief justice if in the majority or the most senior justice in the majority) and minority opinion is written. After the court decides a case by majority vote, a majority (typically the chief justice if in the majority or the most senior justice in the majority) and minority opinion is written. These serve as the guide for lower courts to handle similar cases. Because of the principle of Stare Decisis the majority opinion explains the basis for subsequent rulings. These serve as the guide for lower courts to handle similar cases. Because of the principle of Stare Decisis the majority opinion explains the basis for subsequent rulings.

18 The United States Supreme Court How the US SC Hears Cases Continued How the US SC Hears Cases Continued There are several types of opinions issued by the Courts: There are several types of opinions issued by the Courts: per curiam - decision delivered via an opinion issued in the name of the Court rather than specific justices. Tend to be short and on non-controversial issues. per curiam - decision delivered via an opinion issued in the name of the Court rather than specific justices. Tend to be short and on non-controversial issues. Majority opinion - opinion of the court Majority opinion - opinion of the court Concurring opinion - written by justice who agrees with the majority's conclusion, but not its reasoning Concurring opinion - written by justice who agrees with the majority's conclusion, but not its reasoning Dissenting opinion - written by justice who disagrees with the majority's conclusion Dissenting opinion - written by justice who disagrees with the majority's conclusion The Court generally decides cases from the bottom-up. The Court generally decides cases from the bottom-up. Amicus Curiae & likelihood of review Amicus Curiae & likelihood of review

19 Courts in Perspective How Powerful are the US Federal Courts? How Powerful are the US Federal Courts? The strongest courts in the world The strongest courts in the world The weakest branch of government The weakest branch of government

20 Tools of the Court Judicial Review Judicial Review Marbury v. Madison (1803) Marbury v. Madison (1803) Exercise of JR Exercise of JR Approximately 160 Federal Statutes Approximately 160 Federal Statutes Approximately 1400 State/Local Statutes (2/3 of which date to the incorporation era) Approximately 1400 State/Local Statutes (2/3 of which date to the incorporation era)

21 The Federal Courts Article III establishes the Supreme Court. One of the major justifications for the court is the Supremacy Clause which establishes the preeminence of national over state law. Article III establishes the Supreme Court. One of the major justifications for the court is the Supremacy Clause which establishes the preeminence of national over state law. Congress also has the power to establish lower federal courts, and during the first congress the United States was divided in to judicial districts for the establishment of federal district court (there are 94 district courts in the United States). Congress also has the power to establish lower federal courts, and during the first congress the United States was divided in to judicial districts for the establishment of federal district court (there are 94 district courts in the United States). Basic point: the United States has the strongest court in the world. Basic point: the United States has the strongest court in the world.

22 Strongest Courts Courts are powerful for several reasons A. Ability to act as a regulator A. Ability to act as a regulator regularly rule on the validity of federal regulations regularly rule on the validity of federal regulations many regulations currently not seen as valid until upheld by the courts many regulations currently not seen as valid until upheld by the courts B. Ability to invoke judicial review B. Ability to invoke judicial review declare acts of Congress or the president to be impermissible under the Constitution declare acts of Congress or the president to be impermissible under the Constitution have done so about 160 times since 1803 have done so about 160 times since 1803 have ruled state laws unconstitutional about 1,000 times have ruled state laws unconstitutional about 1,000 times C. One of the most trusted institutions in government C. One of the most trusted institutions in government public trust is high public trust is high even given intrepretivist vs. activist debate even given intrepretivist vs. activist debate

23 Courts are Limited stare decisis stare decisis lawyers love precedent lawyers love precedent prefer stability offered by prior cases -- less disruption to society and to reputation of the Court prefer stability offered by prior cases -- less disruption to society and to reputation of the Court writing in 1992 case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, Justice David Souter noted, in upholding Roe: writing in 1992 case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, Justice David Souter noted, in upholding Roe: "For two decades of economic and social development, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.... [Whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."

24 Limits: Justiciability must wait for cases to come to them - reactive, not proactive must wait for cases to come to them - reactive, not proactive The case must be justiciable: The case must be justiciable: 1. there must be a real controversy - no friendly suits, no advisory opinions (unlike many state supreme courts) 2. case must be ripe and not moot - other avenues (state courts, etc.) must be exhausted, injuries real – not hypothetical, etc. 3. parties must have standing - they must be the ones at risk, government must waive sovereign immunity, etc. 4. Case must not present a political question - court must see the matter as one that can be solved by judges; often eliminates political matters on which the Court has no special expertise (e.g. conundrum of War Powers Act; Bush v. Gore)

25 Powers of the Court The supreme court has the power of Judicial Review. That is, to declare laws passed by congress an the states unconstitutional and therefore null and void. This is what makes the courts so powerful. The supreme court has the power of Judicial Review. That is, to declare laws passed by congress an the states unconstitutional and therefore null and void. This is what makes the courts so powerful. Marbury v. Madison Marbury v. Madison The election of 1800 witnessed the defeat of the federalists and the election of democratic president Thomas Jefferson. Before leaving office Federalist president John Adams, w/ the help of the federalist dominated legislature, packed the judiciary with loads of federalist judges. Jefferson was furious, and when he realized that several of the appointments had not been delivered he order they be cancelled. One of the appointees, Wm. Marbury, asked the court to order that the appointments be made. The election of 1800 witnessed the defeat of the federalists and the election of democratic president Thomas Jefferson. Before leaving office Federalist president John Adams, w/ the help of the federalist dominated legislature, packed the judiciary with loads of federalist judges. Jefferson was furious, and when he realized that several of the appointments had not been delivered he order they be cancelled. One of the appointees, Wm. Marbury, asked the court to order that the appointments be made.

26 Interpreting the Constitution Built-in Flexibility? Built-in Flexibility? Elastic clause Elastic clause Reserve clause Reserve clause Judicial Interpretation of the Constitution Judicial Interpretation of the Constitution It is, emphatically, the province and duty of the judicial department to say what the law is. – Marhsall It is, emphatically, the province and duty of the judicial department to say what the law is. – Marhsall Doctrine of Original Intent (Meaning): judges should attempt to determine what the Framers intended the provision to mean. Doctrine of Original Intent (Meaning): judges should attempt to determine what the Framers intended the provision to mean. Living Constitution: Meaning of constitution must evolve to fit the spirit of the age Living Constitution: Meaning of constitution must evolve to fit the spirit of the age

27 Textualism Interpretivism (textualism): the proper judicial function ins interpretation as opposed to law-making. Interpretivism (textualism): the proper judicial function ins interpretation as opposed to law-making. Judges are guided by the plain meaning of the constitutional text when it is clear. Judges are guided by the plain meaning of the constitutional text when it is clear. "[W]hen judges test their individual notions of 'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges. – Justice Antonin Scalia "[W]hen judges test their individual notions of 'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges. – Justice Antonin Scalia See A Matter of Interpretation for an essay on textualism by Scalia. See A Matter of Interpretation for an essay on textualism by Scalia.

28 Originalism Originalism: Judges should attempt to determine the original meaning or intent of the Founders (or Framers). Originalism: Judges should attempt to determine the original meaning or intent of the Founders (or Framers). Important distinction Important distinction One theory, original intent, is the view that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. One theory, original intent, is the view that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. Strict Constructionism: strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained Strict Constructionism: strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained As Scalia has said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably"; As Scalia has said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably";

29 The Living Constitution LC: a theory of constitutional interpretation which premises that the Constitution is, to some degree, dynamic. LC: a theory of constitutional interpretation which premises that the Constitution is, to some degree, dynamic. As the direct counter to originalism, which centers on meaning at the time of ratification, the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society. As the direct counter to originalism, which centers on meaning at the time of ratification, the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society. Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases. Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases. Pragmatism: the belief that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter. Pragmatism: the belief that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter. Intent: the argument that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Intent: the argument that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Al Gore: I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people. Al Gore: I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

30 Activism vs. Restraint Activism v. Restraint: opposing philosophies of judicial power Activism v. Restraint: opposing philosophies of judicial power Judicial Restraint: theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicial Restraint: theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Issues of standing, mootness, ripeness, political questions, etc. have to do with judicial restraint. Issues of standing, mootness, ripeness, political questions, etc. have to do with judicial restraint. Judicial Activism: Courts are coequal participants in the policy-making process. Judicial Activism: Courts are coequal participants in the policy-making process. it is far more important to be respectful to the Constitution than to a coordinate branch of government William O. Douglas it is far more important to be respectful to the Constitution than to a coordinate branch of government William O. Douglas

31 The Ashwander Rules Judicial Restraint counsels judges to avoid broad or dramatic constitutional pronouncements. Judicial Restraint counsels judges to avoid broad or dramatic constitutional pronouncements. Some of these rules can be found in Brandeiss concurring opinion in Ashwander v. Tennessee Valley Authority (1936). Some of these rules can be found in Brandeiss concurring opinion in Ashwander v. Tennessee Valley Authority (1936). 1. The Court will not anticipate the constitutionality in a friendly, non-adversarial proceeding. (Cases and Controversies) 1. The Court will not anticipate the constitutionality in a friendly, non-adversarial proceeding. (Cases and Controversies) 2. The Court does not anticipate in advance (i.e. without the necessity for hearing) the constitutionality of a question of Constitutional Law/interpretation. (Cases and Controversies, no advisory opinions) 2. The Court does not anticipate in advance (i.e. without the necessity for hearing) the constitutionality of a question of Constitutional Law/interpretation. (Cases and Controversies, no advisory opinions) 3. The court will not formulate a rule of law broader than the case which is before it. (Obiter Dicta going beyond the case issues is generally frowned upon but done all of the time) 3. The court will not formulate a rule of law broader than the case which is before it. (Obiter Dicta going beyond the case issues is generally frowned upon but done all of the time)

32 The Ashwander Rules 4. If possible the Court will dispose of a case on non- constitutional grounds (statutory interpretation is preferred over Constitutional interpretation) 4. If possible the Court will dispose of a case on non- constitutional grounds (statutory interpretation is preferred over Constitutional interpretation) 5. The Court will not pass on the validity of a statute on complaint of one who fails to show injury to person or property. (This is an issue of Standing) 5. The Court will not pass on the validity of a statute on complaint of one who fails to show injury to person or property. (This is an issue of Standing) 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has accepted its benefits. There is little need after all, for the winner to challenge the Constitutionality of the law which aids them. (Cases and Controversies) 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has accepted its benefits. There is little need after all, for the winner to challenge the Constitutionality of the law which aids them. (Cases and Controversies) Whenever possible, statutes will be construed so as to avoid a constitutional issue (Statutory interpretation) Whenever possible, statutes will be construed so as to avoid a constitutional issue (Statutory interpretation)

33 State Courts The vast majority of non-criminal cases in the United States are handled in state courts, rather than federal courts. The vast majority of non-criminal cases in the United States are handled in state courts, rather than federal courts. For example, in Colorado, in 2002, which is typical, roughly 97% of all civil cases were filed in state courts and 89% of the cases filed in federal court were bankruptcies. For example, in Colorado, in 2002, which is typical, roughly 97% of all civil cases were filed in state courts and 89% of the cases filed in federal court were bankruptcies. Essentially all probate and divorce cases are also brought in state court, even if the parties involved live in different states. Essentially all probate and divorce cases are also brought in state court, even if the parties involved live in different states.

34 Forum Shopping Often, a plaintiff can bring a matter either to state court or federal court, because it arises under federal law, or involves a substantial monetary dispute (in excess of $75,000 as of October 26, 2007) arising under state law between parties that do not reside in the same state. Often, a plaintiff can bring a matter either to state court or federal court, because it arises under federal law, or involves a substantial monetary dispute (in excess of $75,000 as of October 26, 2007) arising under state law between parties that do not reside in the same state. If a plaintiff files suit in state court in such a case, the defendant can "remove" the case to federal court if a timely request is made to do so. If a plaintiff files suit in state court in such a case, the defendant can "remove" the case to federal court if a timely request is made to do so. Deciding on the jurisdiction is part of litigation strategy for both plaintiff and defendant, in which the make up of the likely juries in each court, and the differences between federal and state court procedures figure highly. A mere federal law defense to a claim arising under state law, however, is generally not a basis for removing a case to federal court from state court. Deciding on the jurisdiction is part of litigation strategy for both plaintiff and defendant, in which the make up of the likely juries in each court, and the differences between federal and state court procedures figure highly. A mere federal law defense to a claim arising under state law, however, is generally not a basis for removing a case to federal court from state court.

35 Selective Incorporation as originally written, Bill of Rights applied only to the national government as originally written, Bill of Rights applied only to the national government 1st Amendment: Congress shall make no law…. 1st Amendment: Congress shall make no law…. Madison proposed language to include states Madison proposed language to include states no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases but never adopted but never adopted Barron v Baltimore (1833) – Court is explicit Barron v Baltimore (1833) – Court is explicit

36 Selective Incorporation Cases cruel/unusual punishment (Robinson v CA, 1962) cruel/unusual punishment (Robinson v CA, 1962) right to counsel (Gideon v Wainwright, 1963) right to counsel (Gideon v Wainwright, 1963) self-incrimination (Malloy v Hogan, 1964) self-incrimination (Malloy v Hogan, 1964) confront witnesses (Pointer v TX, 1965) confront witnesses (Pointer v TX, 1965) impartial trial (Parker v Gladden, 1966) impartial trial (Parker v Gladden, 1966) speedy trial (Klopfer v NC, 1967) speedy trial (Klopfer v NC, 1967) compel witnesses (Washington v TX, 1967) compel witnesses (Washington v TX, 1967) jury trial (Duncan v LA, 1968) jury trial (Duncan v LA, 1968) double jeopardy (Benton v MD, 1969) double jeopardy (Benton v MD, 1969)

37 More on Selective Incorporation 14 th Amendment (1868) 14 th Amendment (1868) no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law did this mean Bill of Rights applies to states? did this mean Bill of Rights applies to states? Supreme Court originally said it did not Supreme Court originally said it did not e.g., Twining v New Jersey (1908) e.g., Twining v New Jersey (1908)

38 Selective Incorporation (cont) Supreme Court begins to change in 1920s Supreme Court begins to change in 1920s Gitlow v NY (1925) … socialist manifesto Gitlow v NY (1925) … socialist manifesto Supreme Court upholds conviction (dangerous tendency test) … but holds that 14 th amendment extends 1 st amendment to states Supreme Court upholds conviction (dangerous tendency test) … but holds that 14 th amendment extends 1 st amendment to states Near v MN (1931) … overturns prior restraint of Saturday Press to publish malicious, scandalous, and defamatory statements Near v MN (1931) … overturns prior restraint of Saturday Press to publish malicious, scandalous, and defamatory statements

39 Selective Incorporation Cases since Gitlow and Near, Supreme Court has selectively incorporated most elements of Bill of Rights since Gitlow and Near, Supreme Court has selectively incorporated most elements of Bill of Rights assembly (DeJonge v OR, 1937) assembly (DeJonge v OR, 1937) religion (Cantwell v CT, 1940) religion (Cantwell v CT, 1940) public trial (In re Oliver, 1948) public trial (In re Oliver, 1948) search and seizure (Wolf v CO, 1949) search and seizure (Wolf v CO, 1949) exclusionary rule (Mapp v OH, 1961) exclusionary rule (Mapp v OH, 1961) involved girlfriend of Don King involved girlfriend of Don King

40 Highlight: 4 th Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

41 Fourth Amendment Privacy – protection against unreasonable searches & seizures through warrant requirement Privacy – protection against unreasonable searches & seizures through warrant requirement Punishment – Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial. Punishment – Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial. Caveat – applies only to government; it does not guarantee the right to be free from unreasonable searches and seizures conducted by private citizens or organizations (i.e. Cheaters). Caveat – applies only to government; it does not guarantee the right to be free from unreasonable searches and seizures conducted by private citizens or organizations (i.e. Cheaters).

42 Fourth Amendment & Privacy The 4 th Amendment requires the government to obtain a valid warrant in order to conduct a search or a seizure. The 4 th Amendment requires the government to obtain a valid warrant in order to conduct a search or a seizure. Valid warrants must establish probable cause – reasonable belief that a search or seizure would produce contraband or reveal a criminal activity Valid warrants must establish probable cause – reasonable belief that a search or seizure would produce contraband or reveal a criminal activity Exceptions Exceptions Plain View Plain View Search incident to arrest Search incident to arrest

43 Fourth Amendment & Punishment Exclusionary Rule (Weeks v. United States) – evidence obtained through an illegal search is fruit of the poisoned tree and thus cannot be used at trial. Exclusionary Rule (Weeks v. United States) – evidence obtained through an illegal search is fruit of the poisoned tree and thus cannot be used at trial. Exceptions: Exceptions: Good Faith – evidence collected through a defective warrants could be used where police reasonably believed it to be a good warrant (United States v. Leon)Good Faith – evidence collected through a defective warrants could be used where police reasonably believed it to be a good warrant (United States v. Leon) Inevitable Discovery – evidence collected illegally may be admitted at court if it can be reasonably argued the evidence would have been obtained legally Inevitable Discovery – evidence collected illegally may be admitted at court if it can be reasonably argued the evidence would have been obtained legally

44 Highlight: Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

45 Fifth Amendment Jurisprudence Double Jeopardy – individuals may be tried only once for a particular offense Double Jeopardy – individuals may be tried only once for a particular offense Self-Incrimination – protects witnesses from being forced to incriminate themselves. Self-Incrimination – protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence Due Process – the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property Due Process – the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property Due process embraces fundamental fairness & those fundamental rights that are "implicit in ordered liberty. Due process embraces fundamental fairness & those fundamental rights that are "implicit in ordered liberty. Notification of charges against you, right to be heard, etc. Notification of charges against you, right to be heard, etc.

46 Fifth Amendment & Punishment Fifth Amendment Fifth Amendment No self-incrimination No self-incrimination Miranda v. Arizona (1966) Miranda v. Arizona (1966) Voluntary Confessions: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." Voluntary Confessions: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." Miranda Rights Miranda Rights

47 Fifth Amendment & Privacy The Fifth Amendment limits the power of eminent domain (the power of the government to take private property for public use) by requiring that "just compensation" be paid if private property is taken for public use. The Fifth Amendment limits the power of eminent domain (the power of the government to take private property for public use) by requiring that "just compensation" be paid if private property is taken for public use. What is public use? What is public use? Kelo v. City of New London – private property seized for commercial use did not violate the Fifth Amendment. Kelo v. City of New London – private property seized for commercial use did not violate the Fifth Amendment.

48 Eigth Amendment: Punishment Eighth amendment: Cruel & Unusual Punishment Eighth amendment: Cruel & Unusual Punishment Furman v. Georgia Furman v. Georgia The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. However, it left the door open for states to put in place procedural safeguards that could permit the death penalty to pass constitutional muster. However, it left the door open for states to put in place procedural safeguards that could permit the death penalty to pass constitutional muster. Gregg v. Georgia Gregg v. Georgia In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed.

49 Emanating Penumbras & Privacy Is there a right to Privacy? Griswold v. Connecticut (1965) Griswold v. Connecticut (1965) a right to privacy older then the Bill of Rights a right to privacy older then the Bill of Rights Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. Roe v. Wade (1973) Roe v. Wade (1973) a womans right to privacy was so fundamental it could be infringed only when the state interest in doing so was compelling a womans right to privacy was so fundamental it could be infringed only when the state interest in doing so was compelling The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. As a result, the laws of 46 states were affected by the Court's ruling.

50 State Courts & Criminal Cases About 91% of people in prison at any given time in the United States were convicted in state court, rather than federal court, including 99% of defendants sentenced to death. About 91% of people in prison at any given time in the United States were convicted in state court, rather than federal court, including 99% of defendants sentenced to death. Federal courts disproportionately handle white collar crimes, immigration related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). Federal courts disproportionately handle white collar crimes, immigration related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). A large share of the violent crimes that are prosecuted in federal court arise on Indian Reservations or federal property, where state courts lack jurisdiction and tribal court jurisdiction is usually limited to less serious offenses. A large share of the violent crimes that are prosecuted in federal court arise on Indian Reservations or federal property, where state courts lack jurisdiction and tribal court jurisdiction is usually limited to less serious offenses.

51 Cases in the States Expanded Liability Expanded Liability Contingency Fees Contingency Fees Third-Party Suits Third-Party Suits Pain and Suffering & Punitive Awards Pain and Suffering & Punitive Awards Joint and Several Liability Joint and Several Liability Tort Reform Tort Reform Alternative Dispute Resolution (mediation) Alternative Dispute Resolution (mediation)

52 Arkansas Courts

53 Arkansas Courts & the Constitution The Supreme Court Arkansas became the 25th state of the United States in Under the state's first constitution, the Arkansas Supreme Court was composed of three judges including one Chief Justice. Arkansas became the 25th state of the United States in Under the state's first constitution, the Arkansas Supreme Court was composed of three judges including one Chief Justice. The Arkansas General Assembly elected the judges. Daniel Ringo, Townsend Dickinson, and Thomas J. Lacy were selected to serve as the first Arkansas Supreme Court judges. Mr. Ringo became the first Chief Justice. The Arkansas General Assembly elected the judges. Daniel Ringo, Townsend Dickinson, and Thomas J. Lacy were selected to serve as the first Arkansas Supreme Court judges. Mr. Ringo became the first Chief Justice. The state's current constitution, ratified in 1874, provided for three Arkansas Supreme Court judges. The Arkansas Constitution of 1874 was amended in 1924 to provide for five Arkansas Supreme Court judges. Amendment 9 also allowed the Arkansas General Assembly to increase the number to seven judges, which it did by Act 205 of The state's current constitution, ratified in 1874, provided for three Arkansas Supreme Court judges. The Arkansas Constitution of 1874 was amended in 1924 to provide for five Arkansas Supreme Court judges. Amendment 9 also allowed the Arkansas General Assembly to increase the number to seven judges, which it did by Act 205 of 1925.

54 Arkansas S.C. Jurisdiction The jurisdiction and power of the Arkansas Supreme Court is controlled by Article 7, § 4 of the Arkansas Constitution. The jurisdiction and power of the Arkansas Supreme Court is controlled by Article 7, § 4 of the Arkansas Constitution. Under this section, the Arkansas Supreme Court generally has only appellate jurisdiction, meaning it typically hears cases that are appealed from trial courts. Under this section, the Arkansas Supreme Court generally has only appellate jurisdiction, meaning it typically hears cases that are appealed from trial courts. The Arkansas Supreme Court also has general superintending control over all inferior courts of law and equity. Until 2000, Arkansas remained one of the few states with separate courts for law (circuit court) and for equity (chancery court). The Arkansas Supreme Court also has general superintending control over all inferior courts of law and equity. Until 2000, Arkansas remained one of the few states with separate courts for law (circuit court) and for equity (chancery court). In November, 2000, the 80th amendment to the Arkansas Constitution was approved by the voters of Arkansas. The Circuit and Chancery Courts have merged into Circuit Courts, and Municipal Courts have county-wide jurisdiction and were renamed District Courts. In November, 2000, the 80th amendment to the Arkansas Constitution was approved by the voters of Arkansas. The Circuit and Chancery Courts have merged into Circuit Courts, and Municipal Courts have county-wide jurisdiction and were renamed District Courts.

55 Arkansas Court Elections The seven Arkansas Supreme Court judges are elected in state-wide non-partisan races, and serve staggered terms, such that it is unlikely all members of the court would be replaced in one election. The seven Arkansas Supreme Court judges are elected in state-wide non-partisan races, and serve staggered terms, such that it is unlikely all members of the court would be replaced in one election. In the event a member of the court fails to serve his entire term of office, the vacancy shall be filled by appointment by the Governor of Arkansas. Ark. Const., amend. 29, §1. In the event a member of the court fails to serve his entire term of office, the vacancy shall be filled by appointment by the Governor of Arkansas. Ark. Const., amend. 29, §1.

56 Arkansas Courts of Appeals The Arkansas Court of Appeals was created in 1978 by Amendment 58 to the Arkansas Constitution. The Arkansas Court of Appeals was created in 1978 by Amendment 58 to the Arkansas Constitution. In 1979, the Arkansas General Assembly passed Act 208 to establish the Arkansas Court of Appeals as authorized by the amendment and and to provide for the selection of the first judges. In 1979, the Arkansas General Assembly passed Act 208 to establish the Arkansas Court of Appeals as authorized by the amendment and and to provide for the selection of the first judges. The court handed down its first opinions for publication on August 8, Although the creation of the Arkansas Court of Appeals provided relief for the Arkansas Supreme Court's growing docket, continued growth required an increase in the size of the Arkansas Court of Appeals. The court handed down its first opinions for publication on August 8, Although the creation of the Arkansas Court of Appeals provided relief for the Arkansas Supreme Court's growing docket, continued growth required an increase in the size of the Arkansas Court of Appeals. Legislation was adopted during the 1993 legislative session to increase the Arkansas Court of Appeals from six to twelve members. In 1995, the Arkansas General Assembly amended the law. Legislation was adopted during the 1993 legislative session to increase the Arkansas Court of Appeals from six to twelve members. In 1995, the Arkansas General Assembly amended the law.

57 ACA Pursuant to Act 1812 of 2003, the State of Arkansas is divided into seven (7) districts for the election of judges to the Arkansas Court of Appeals, and the dates of electing the judges within each of these districts is established. Pursuant to Act 1812 of 2003, the State of Arkansas is divided into seven (7) districts for the election of judges to the Arkansas Court of Appeals, and the dates of electing the judges within each of these districts is established. Pursuant to Amendment 58, qualifications for sitting on the Arkansas Court of Appeals are the same as those for sitting on the Arkansas Supreme Court. Pursuant to Amendment 58, qualifications for sitting on the Arkansas Court of Appeals are the same as those for sitting on the Arkansas Supreme Court. The jurisdiction of the Arkansas Court of Appeals is determined by the Arkansas Supreme Court. See Ark. Sup. Ct. R. 1-2 ("Appellate jurisdiction of the Supreme Court and Court of Appeals"). The jurisdiction of the Arkansas Court of Appeals is determined by the Arkansas Supreme Court. See Ark. Sup. Ct. R. 1-2 ("Appellate jurisdiction of the Supreme Court and Court of Appeals"). There is no right of appeal from the Arkansas Court of Appeals to the Arkansas Supreme Court. Id. at 1-2(e). However, opinions decided by the Arkansas Court of Appeals may be reviewed by the Arkansas Supreme Court on application by a party to the appeal, upon certification of the Arkansas Court of Appeals, or if the Arkansas Supreme Court decides the case is one that should have originally been assigned to it. Id. There is no right of appeal from the Arkansas Court of Appeals to the Arkansas Supreme Court. Id. at 1-2(e). However, opinions decided by the Arkansas Court of Appeals may be reviewed by the Arkansas Supreme Court on application by a party to the appeal, upon certification of the Arkansas Court of Appeals, or if the Arkansas Supreme Court decides the case is one that should have originally been assigned to it. Id.

58 Circuit Courts Arkansas Constitutional Amendment 80, having taken effect on July 1, 2001, eliminated separate courts of law and courts of equity in Arkansas. Arkansas Constitutional Amendment 80, having taken effect on July 1, 2001, eliminated separate courts of law and courts of equity in Arkansas. Circuit courts are general jurisdiction trial courts. As of January 1, 2002, circuit courts consist of five subject matter divisions: Circuit courts are general jurisdiction trial courts. As of January 1, 2002, circuit courts consist of five subject matter divisions: Criminal Criminal Civil Civil Probate Probate Domestic relations Domestic relations Juvenile Juvenile Judicial candidates for circuit judge will now run in nonpartisan elections and are required to have been licensed attorneys in the state for six years preceding the date of assuming office. Circuit judges serve a six-year term. Judicial candidates for circuit judge will now run in nonpartisan elections and are required to have been licensed attorneys in the state for six years preceding the date of assuming office. Circuit judges serve a six-year term.

59 District Courts & City Courts District courts, formerly known as municipal courts before passage of Amendment 80 to the Arkansas Constitution, exercise county-wide jurisdiction over misdemeanor cases, preliminary felony cases, and civil cases in matters of less than $5,000. District courts, formerly known as municipal courts before passage of Amendment 80 to the Arkansas Constitution, exercise county-wide jurisdiction over misdemeanor cases, preliminary felony cases, and civil cases in matters of less than $5,000. A small claims division of district court provides a forum in which citizens represent themselves to resolve minor civil matters. A small claims division of district court provides a forum in which citizens represent themselves to resolve minor civil matters. The city courts operate in smaller communities where district courts do not exist and exercise city-wide jurisdiction. The city courts operate in smaller communities where district courts do not exist and exercise city-wide jurisdiction.

60 Crime & Punishment in the States State Rankings State Rankings Arkansas Crime Stats Arkansas Crime Stats h/Crime/State/statebystaterun.cfm?stateid=4 h/Crime/State/statebystaterun.cfm?stateid=4 h/Crime/State/statebystaterun.cfm?stateid=4 h/Crime/State/statebystaterun.cfm?stateid=4

61 Crime in the States Discussion: Broken Windows Policy Discussion: Broken Windows Policy Discussion: 85% Solution & Prisons Discussion: 85% Solution & Prisons


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