The state and the federal courts in governance: vive la difference!(Dual Enforcement of Constitutional Norms)

• Jurisdiction: United States
• Author: Linde, Hans A.
• Date: 01 February 2005

1. ARE STATE COURTS MINOR FORMS OF UNITED STATES COURTS?

   What is common to state and federal courts is easy to see--so easy that many lawyers, judges, and academics assume that federal formulas for review of official actions equally apply to state law. (1) The point of federalism, however, lies in the scope it leaves for differences. Our common commitment is to the rule of law, not to one common rule of law. The states' civil, criminal, and public laws diverge even though officials and citizens affirm common values like "freedom," "equality," "fairness," and "democracy." (2)

   The commonalities are important, but so are the differences, which are more interesting. We should not assume one common analysis in the face of legal differences that are truly constitutional--that is to say, "constitutive" of government--and for which state courts take on responsibilities that federal courts decline. State courts also copy terms like "standing," "ripeness," and "justiciability" that are used in federal courts and taught in law schools, though they are not the words of statutes or constitutions. Here, however, the practice in the state and the federal courts is even less identical.

   Consider only a few recent examples. The Nevada Supreme Court ordered the Nevada legislature to fund constitutionally mandated schools, without the required two-thirds majority vote for new taxes, if necessary. (3) In Massachusetts, the Supreme Judicial Court required the state legislature to choose either to appropriate election campaign funds required by law or to repeal the law. (4) The Illinois Supreme Court reportedly ordered the state comptroller general to resume paying judges cost-of-living increases without awaiting actual litigation. (5) The Oregon Supreme Court has "assumed" that it may, by writ of mandamus, order the legislature to fund the courts--the required adequate level presumably to be set by the court. (6) It is hard to think of a federal court issuing similar orders to Congress or its members.

   About a dozen states--by constitution or statute--authorize governors or legislators to obtain advisory opinions of state court justices. (7) The Indiana Supreme Court is assigned a role in reviewing whether the governor has suffered an inability to discharge official duties. (8) More often, state courts entertain and decide disputes between state or local officials when federal courts would dismiss comparable cases for lack of "standing" or "ripeness" or some other shibboleth. Although the Supreme Court rejects taxpayer standing, state courts routinely allow individual taxpayers to challenge official acts with trivial fiscal impacts. (9) A claim that state officials spend unappropriated funds or do not publish proper accounts may find a way into a state, but not a federal, court. (10) Also, many state cases decide disputes between governors and legislators directly, often involving their respective powers, without needing a discharged official like Federal Trade Commissioner Humphrey to sue for his salary, (11) or an immigrant like Chadha to resist deportation. (12) The legality of executive vetoes is often litigated between legislators and governors, (13) as is delegation to agencies that includes legislators. (14)

   Let me briefly examine three questions. What explains why state and local officials often seek court decisions on issues of governance against which federal case law has erected many doctrinal hurdles? Do the same doctrines also apply to the position of state courts? And is a difference between state and federal views of litigable issues likely to cause conflicts?

2. DISTINCTIVE ROLES OF STATE COURTS

   The simplest reason why state courts are often called upon to resolve conflicts among public officials is that no one else has final authority to do it. Can we imagine a lawsuit by a president against an attorney general, like Governor Kirk Fordice's petition to the Mississippi Supreme Court to order the state's attorney general, Mike Moore, not to litigate certain claims involving Medicaid funds? (15) Of course we cannot; presidents can simply replace the attorney general or other officials, although at some political cost, as President Nixon learned. Disagreements within the unified executive branch are resolved hierarchically within a department, or by largely unknown assistants in the Executive Office acting for the president. Few governors have similar executive power.

   1. Settling the Law in Decentralized Governments

      Although, after 1789, all states purported to follow the federal model of separating the branches of government, most, in fact, have splintered the executive branch among several independently elected officials, often with constitutionally assigned duties, and often from opposing political parties. (16) Most state prosecutors are locally elected, notwithstanding the governors' stated obligations to see that the laws are faithfully executed. Moreover, many state programs are conducted by elected officials of cities, counties, and districts, who may get conflicting legal advice from their own or from differing sources. (17) These officials sometimes litigate the disputed issue among themselves. In short, how judges approach intra-governmental disputes in the unitary national executive cannot be lifted intact to the states. (18)

      State legislatures lack the well-developed capacity of Congress to conduct their own investigations by means of committees with investigatory staffs and subpoena power. If a state legislature assigns these powers to a specialized investigative officer with authority to seek judicial enforcement, few state courts would dismiss such a suit for lack of personal standing, as the federal district court did in the comptroller general's suit to obtain information from Vice President Cheney. (19) In the setting of state government, doubts whether a chief executive, simply by virtue of that office, is immune from suit or subpoena seem anomalous.

      Another difference demands easier access to judicial review in state courts. States and their subdivisions cannot function unless they are assured of the money to pay their debts. Tax measures may be vulnerable to public elections, contests, and lawsuits. For example, San Francisco sued its own controller, (20) and ten local assessors in Washington sued the state comptroller to secure a judicial decision. (21) Sometimes legislatures will add special provisions for an expedited adjudication in the state's highest court. (22) If the Nevada legislature had relied only on the advice of legislative counsel or the attorney general to raise school taxes by a majority instead of a two-thirds vote, neither teachers nor outside suppliers would have placed much faith in that action. (23) Nor might some industries that states want to attract with large but constitutionally questionable subsidies. (24) The authority of state and local officials to incur debts is hedged in by many statutory and constitutional constraints. Banks and bond houses are unlikely to lend money if there is any doubt whether these constraints have been observed. Declarations by the state's attorney general or local counsel on behalf of the borrower may not suffice. Some statutes allow local entities to pursue the needed adjudication by suing essentially all eligible objectors at large, without having to find a friendly taxpayer to bring such a suit. (25)

   2. Historic Tasks of State Judges

      Much of this litigation contradicts the dogma that judges should keep out of disputes about governance until a party asserts an injury to its own interest. Are these divergences by state courts and legislators at worst unwise, or do they contradict basic principles about judicial power that are common to the state and federal constitutions? Recent studies by Professor Helen Hershkoff and others contradict the assumption that state courts are cut on the same pattern as the courts authorized by Article III of the United States Constitution. (26) Historically, of course, state courts existed before 1789, although the original states later adopted new constitutions. Early state, not federal, judiciaries in turn served as models for later states.

      Institutionally, the position of state judges and legislators contrasts with those of their federal counterparts. Early judges often were the only full-time state officials besides the governor and a few other elected officials, and the only professionals; part-time legislators assembled only for relatively short sessions. The states did not need statutes for most law or judicial remedies; with exceptions such as inheritance and, after independence, criminal laws, legislatures could rely on judges to apply common law or equity to resolve most disputes and could concentrate on addressing particular economic needs of their various communities. Unlike federal judges, state courts long have administered estates outside any adversary litigation. They make rules of conduct for lawyers (including disposition of their trust accounts), for other judges, and for candidates who aspire to become judges. Sometimes, at the request of the bar, they claim a monopoly against legislators over making rules for lawyers and even for non-lawyers. (27) County judges combine judicial functions with...