State supreme courts, state constitutions and civil litigation.

• Author: Brace, Paul

1. INTRODUCTION

   State constitutions have been the motive force in American political and economic development. This is not to dismiss the role played by the national Constitution, but that document has undergone very few changes in our history while changes in state constitutions have precipitated economic and political change. These changes in turn produced notable revisions in state constitutions, which contributed to subsequent transformations of American political and economic interests. (1) In the nineteenth century, when the wheel of politics turned, many constitutions had to go, to be replaced by instruments embodying the aims and policies of the victors. (2) It was state constitutions that gave form to corporate organization and governance. These documents imposed hard budget constraints limiting state governments and expanding the foundations for private economic endeavor. The twentieth century witnessed not only minor technocratic adjustments but also "bloated, conflated" constitutions resulting from democratic pressures in some states. (3) Overall, state constitutions have given rise to economic and political interests, and they have been revised in response to new pressures generated by these interests. (4) Notably, change and content in state constitutions reflects the power of interest groups seeking special protections or conservative mistrust with concentrated government power, (5) with long constitutions protecting the status quo and inhibiting reform through state government intervention. (6)

   Throughout these changes one enduring feature of state constitutions has been the separation of powers, including the power of judicial review: "[T]o talk about state constitutions means to talk about state high courts and the way they use, interpret, or manipulate the state constitutions." (7) State supreme courts are the final arbiters of state constitutions, but state constitutions "are different" with some juxtaposing "broad statements of principle with subjects as mundane as ski trails and highway routes, public highways and motor vehicle revenues". (8) Some contain particularistic policy content and are replete with "superlegislation" that in length and detail are indistinguishable from statutes. (9) Other constitutions are focused more narrowly on "framework" questions that detail fundamental law. (10) State constitutions vary widely in their social and economic provisions. These provisions: (1) shift the inertial bias associated with the federal government (if negative rights under the federal Constitution restrain government action, positive rights under state constitutions mandate such action), (11) and (2) afford state courts opportunities to reshape government structures in light of evolving needs. (12) For participants in the judicial process--judges, lawyers and litigants---constitutional breadth can affect the constitutional discourse that promotes or inhibits litigation. This discourse is largely framed by constitutional language and the set of conventions that allow a participant in the legal system to make an intelligible claim about the meaning of the constitution. (13) State constitutions thus serve as foundations for state supreme court action and litigant strategies. It is the premise of this study that state constitutional content--the basic rules of the game--influences the business of state supreme courts when it comes to civil appeals.

2. A LOOK AT STATE CONSTITUTIONS

   How might state constitutions influence state court dockets? James Madison reasoned that constitutions should be short and institutionally oriented rather than excessively devoted to law which could promote instability and inflexibility. (14) In the American states, constitutions vary from shorter framework-oriented to longer policy-oriented constitutions. (15) Because many states were inclined to amend their constitution, this produced comparatively long documents resulting in significant diversity among state constitutions. (16) Some states maintain framework-oriented constitutions while others use constitutions as an extension of ordinary politics, making mundane policies semi-permanent through constitutional amendment. No state constitution exemplifies this approach better than that of Alabama. As the lengthiest state constitution, it has been amended on 799 occasions. (17) Other state constitutions like those in Texas, Missouri, and California are also lengthy and have been amended frequently.

   Not every state constitution is so particularistic and long, however. While the shortest state constitution (Vermont) is three times the length of the federal constitution, states sometimes prefer framework-oriented constitutions that spell out merely the operations of state government, (18) Constitutional variation, therefore, reflects unique state differences with state constitutions explicating the rights of individuals in some states and the width of ski trails (Colorado), (19) indemnification of peanut farmers (Alabama), (20) or guidelines for dealing with estates of people who commit suicide in others (e.g., Vermont). (21) Collectively, the states devote an average of forty percent of their constitutions to policy type issues, compared to six percent of the federal Constitution. (22)

   A long tradition has mapped the business of state supreme courts, mapping general patterns in appeals across the states over extended periods. (23) Our interest in this inquiry is to extend our understanding of the comparative business of state supreme courts by examining how state constitutions shape their business in civil appeals.

3. EXPLAINING CIVIL LITIGATION IN STATE SUPREME COURTS

   Our primary hypothesis concerns the effects of state constitutional particularism on the amount of docket space devoted to civil appeals in state supreme courts. To effectively test this hypothesis, we must also consider alternative influences on state supreme court attention. As control variables, we hypothesize the following factors should encourage greater attention (or agenda space) to civil cases among state supreme courts: (1) state court systems without intermediate appellate courts; (2) competitive partisan and nonpartisan judicial election systems; (3) divided criminal and civil dockets in state supreme courts; (4) conservative state governments; (5) no prior state executions; (6) greater quantities of state lawyers; and (7) smaller less-diverse state populations. State supreme courts should devote less agenda space to civil cases where state constitutions are more framework-oriented, state court systems have intermediate appellate courts, states select judges by appointment or merit selection, state high courts are unified, state governments promote liberal policies, state executions are performed, fewer attorneys are practicing, and states have larger more diverse populations. Collectively, the impact of these several hypothesized factors places decisions to hear civil disputes in an environment where institutions, politics, and society each exercise an influence. Each of these is elaborated below.

   1. Policy-Oriented State Constitutions

      The literature on state constitutions illustrates that state constitutions serve not only as sources for provisions on government structure, but also for public policies and rights and liberties of state residents. (24) When there is more constitutionally enshrined public policy, there are more grounds for civil litigation and civil appeals, and an expectation for judicial redress of conflicts. When constitutions are more framework-oriented, there are fewer grounds for judicial appeal and less opportunity for "judicializing" private disputes.

      To test this hypothesis we employ the painstaking work of Hammons who read and classified all state constitutions according to their framework and policy provisions ("particularistic content"). (25) He coded particularistic provisions as those "that deal with statute law or public policy issues, do not relate to the establishment of the government, are rather specific, typically do not apply to all citizens, and often provide differential benefits." (26) His analysis reveals striking differences among the states. At the high extreme are Alabama (seventy-three percent) and Louisiana (sixty-nine percent). At the low extreme are New Hampshire and Vermont with four percent each. (27)

   2. Intermediate Appellate Courts

      Recent research has shown that state court systems with intermediate appellate courts...