Module 7 (Chapter 9)
Chapter 9: The Judiciary
This chapter covers the following:
The Structure of State Court Systems
How Judges Are Selected
New Judicial Federalism
Administrative and Organizational Improvements
Crime and Criminal Justice
After reading this chapter, students should be able to understand:
1. How the state court systems are divided into three areas⎯civil, criminal, and administrative.
2. The structure of state court systems.
3. The nature of the structural reform of state courts in the 1960s and 1970s that led to unified court systems in many states.
4. The methods by which judges are selected and the means for their removal.
5. The nature of judicial decisionmaking and how civil and criminal cases are decided outside the
6. The new wave of judicial activism within the state courts.
7. The new directions and trends in state court reform.
8. The linkage between the judicial branch and criminal justice.
The work of state court systems involves three areas: civil, criminal, and administrative. As the court system developed it added new structures to existing ones, and the results were complex and confusing. The court reform movement of the 1960s and 1970s sought to reorganize state courts into more rational, efficient, and simplified structures. The reform effort has resulted in a unified court system that frees judges of many administrative duties that had traditionally burdened them and has done away with overlapping jurisdictions.
Today, limited jurisdiction courts, trial courts, and appellate courts make up the two levels of most state court systems. Courts in the lowest tier have original jurisdiction over specialized cases, such as juveniles, traffic, and small claims. Small claims courts are increasingly popular as a simple and inexpensive way of solving minor civil disputes. Major trial courts exercise general authority over civil and criminal cases, serve as an appeals court for cases from the lowest tier courts, and often are organized along county or district lines. Appellate courts review cases on appeal from the trial courts.
The state supreme court, or court of last resort, in all states and intermediate appellate courts in most states provide for decisions via a panel of judges. Selection of judges, a matter subject to great controversy, is carried out through five different selection systems in the states: legislative election, partisan popular election, nonpartisan popular election, merit plan selection, and gubernatorial appointment.
Dissatisfaction with the other methods and endorsement by the American Bar Association have popularized merit plan selection, particularly in the form of the Missouri Plan. But debate continues over which system is best. Ultimately all selection systems depend on politics; and some states have turned to public financing of judicial elections, where used, in an
effort to reduce their political nature.
The processes of impeachment, legislative address, or popular recall can be used to remove judges. But all three of these traditional methods are slow, cumbersome, and uncertain. More practical means have been adopted in recent years, such as mandatory retirement at a given age and the creation of courts of the judiciary and judicial discipline and removal commissions to deal with judicial behavioral problems. Hearings may result in warnings, recommendation of early retirement, or dismissal.
Misconduct among state court judges is uncommon but occurs in all states at one time or another, and judicial ethics often appear to be lacking. The legal formalities of the courtroom mask the fact that judicial decisions are often discretionary and subjective. Most civil and criminal cases (about 90 percent) are resolved outside the courtroom in civil suit pretrial conferences and in criminal-case plea-bargaining.
Cases that go to a trial court may be conducted in a trial by jury or by a bench trial where a single judge decides the outcome. In some states a defendant has a choice; in others, state legal procedures prescribe the trial format. For murder cases a jury is always mandatory. In the appellate courts no plaintiffs, defendants, or witnesses are present. The appeal consists of a review of court records and arguments directed by the attorneys. A panel of at least three judges makes these decisions.
Judicial decision making in the various courts of the state is influenced by factors associated with the state’s legal system—institutional arrangement or court organization, locally acceptable legal precedent and procedure, caseload pressures, and the ease with which interested parties gain access to the legal process.
But judges do not think and act alike. The judge’s individuality influences decisions in the
courtroom, and studies of state court justices have found decisions are related to party identification, political ideology, prior careers, religion, ethnicity, age, and sex.
Judicial activism is an imprecise term that has been associated with both liberal and conservative judges whose decisions have generated changes in public policy. State courts have become more activist by expanding into new policy areas, often based on U.S. Supreme Court rulings and the states’ own constitutions rather than on the U.S. Constitution.
The state supreme courts, in this era of “new judicial federalism,” have issued hundreds of opinions since the 1970s that have taken minimum standards established by the U.S. Supreme Court and expanded them within their states. But not all states’ courts are inclined to play such an active role, and many remain caught in the doldrums. Moreover, there is danger that the new wave of court activism will carry the courts too far in policymaking.
The latest round of modernization of court systems has involved centralized court budgeting and managing court caseloads. About half of the states have assumed financial responsibility for operation of state and local courts. Such reform enhances financial management, helps maintain independence from the executive and legislative branches, and eliminates disparities between judicial districts. In dealing with heavy caseloads that exceed 100 million cases per year, creation of new courts or adding new judges only compounds the problem.
Promising new approaches include creation of alternatives to formal litigation, new court rules against violating standards that require cases be heard within a specified time, and application of new technology to improve the quality and quantity of court operations. Greater efforts are being made to attract honest and productive judges by ensuring that they are adequately compensated, since historically their salaries have lagged well behind the amount earned by successful lawyers in private practice.
The judiciary is the critical institutional link to the policy of crime in the states. States have made many policy innovations to deal with crime and criminal justice, but much controversy remains over what to do with convicted criminals. The United States imprisons a higher proportion of its people than any nation except Russia and prison overcrowding is a policy dilemma faced by many states. At the beginning of 2004, 6.9 million people were on probation, in jail or prison, or on parole—more than 3 percent of all U.S. adult residents or 1 in every 32 adults. More than 2 million prisoners were held in federal, state, and local prisons in the United States.
State and federal prison authorities had under their jurisdiction nearly 1.5 million inmates in 2004—more than 1.4 million under state or local jurisdiction, and more than 173,000 under federal jurisdiction. The states have developed a variety of strategies to deal with crime, such as front-door strategies like alternative sentencing, and back-door strategies such as early release systems and electronic house detention. Some innovations have been less effective than anticipated. Private prisons, for example, appear to provide only a small savings (about 5 percent) over government owned prisons. Crime remains a significant issue despite the fact that crime rates have been falling for a number of years (the trend began during the 1990s). In fact, in 2003 crime rates had dropped to their lowest rate since 1966. Despite declining crime rates, the judiciaries of most states remain overburdened with caseloads.
As a result of the modernization efforts, courts are now more independent from political pressures and favoritism and more accountable for their actions, but increased state judicial activism also has accompanied modernization. Innovations in the courts and the criminal justice system continue to occur in the states.
Module 8 ( Chapter 10 and 11)
Chapter 10: State-Local Relations
This chapter covers the following:
The Distribution of Authority
Metropolitics: A New Challenge for State Government
States and Their Rural Communities
The Interaction of States and Localities
After reading this chapter, students should be able to understand:
1. The nature of authority and differing degrees to which it is granted to local governments by state governments.
2. The purposes of state mandates, the complaints made about them by local governments, and the increasing adoption by some states of mandate-reimbursement requirements.
3. The organizations created by state governments to expand state understanding of the needs of
4. The side effects of urbanization on local governments and what they and state government are
doing while this is occurring.
5. The alternative forms of specialized minigovernments and regional governments or coordinating bodies that have been created to deal with sprawl associated with growing metropolitan areas.
6. The variety of growth patterns in rural areas and the role that states might play in helping those
with declining growth patterns.
7. The current trend in rethinking state-local government relations as states recognize that their own resurgence depends on strong local governments.
State legislatures are the trustees of the basic rules of local governance in America. The constitutions and laws of the states are the legal instruments of local governance. States have recently begun to treat local governments as partners, though the effort is by no means a well-coordinated one. General purpose governments typically have wider latitude than special-purpose governments. The more recent a state’s constitution, the more likely it is to empower local government; but only about one-half extend truly proprietary policymaking power to their cities, and even fewer accord counties similar powers.
The real distribution of authority can be seen in an important function like highway planning, where state and local officials do consult. A nationwide survey shows general satisfaction with this arrangement, but the state has the last word and in some functions, like growth management, the consultations generate considerably more friction.
State governments find their dealings with local governments confounded by the side effects of urbanization. Several waves of suburbanization have affected the urban area: the 1920s move to the suburbs facilitated by the automobile; a resurgence in the 1950s that saw retail stores follow the population exodus; and, most recently, the development of office space beyond the central city. Indeed, central cities in the 1980s were fundamentally altered as the urban landscapes have come to be composed of relatively self-contained and self-sufficient decentralized regional units.
These new “boom towns” have outpaced the central cities and are considered to be the “new frontier” of urbanized America. This has created a need for changes to outdated state policy toward metropolitan jurisdictions.
Rapid unplanned growth is producing sprawl and “shadow governments.” State governments appear to be doing more than they used to about the problems created by unplanned growth. New developments on the outer reaches of the central city are called “edge cities.” Their existence around Phoenix, Honolulu, and Seattle and state responses in each case are illustrations of state involvement with the problem.
A new form of local government, called “shadow governments,” emerged from edge cities found outside of large cities like Phoenix, Arizona. They may be private enterprise shadow governments, such as homeowner associations; public-private partnerships, such as development corporations; or subsidiaries of conventional governments with unusual powers, such as areawide planning commissions. More than 150,000 such arrangements exist. Although they generally operate within the confines of state law, the states have displayed a curious hands-off posture.
This is surprising, inasmuch as the shadow governments raise serious questions of power and equity. Their vaunted efficiency, however, makes them a power to be reckoned with and their number is increasing, not decreasing.
Continued urban expansion and shadow governments make up extended webs of independent jurisdictions. State governments seem not to have much idea about how these places would best be governed.
Regional government is one alternative to these specialized mini-governments. And closely related to regional government is the city-county consolidation currently found in thirty-three consolidated governments. These governments are seen as a way to address stubborn areawide problems and produce economies of scale in service delivery. Criticisms of these arrangements include their inaccessibility and the destruction of hard-won political gains of minorities.
Regardless of the reasons, the voting public has stubbornly resisted them, and state legislatures have been reluctant to follow the nineteenth century lead of unilaterally creating them.
Strong local governments make for resurgent state governments. Local governments benefit from positive relations with the states. Nonetheless the two levels frequently clash, with dire consequences.
State-local relations are always in flux, and the trend over the past three decades has been toward increased state assistance and empowerment of local governments.
Chapter 11: Local Government: Structure and Leadership
This chapter covers the following:
Five Types of Local Governments
Leadership in Local Government
Communities and Governance
After reading this chapter, students should be able to understand:
1. The nature of local governments and how they developed.
2. The difference between general-purpose and special-purpose governments.
3. The general role of counties, the possible variations based on their urban/rural nature, and the
different organizational structures of that level of government.
4. How municipalities or cities are created and alternative structural types of city governments.
5. The role of special-purpose districts, their advantages, and the basis for uneasiness about their
6. The nature of the school district as a special type of single-purpose local government, its
governance, and the concerns over unequal distributions of financial resources.
7. The difference between strong and weak mayors and the requisites for success irrespective of
formal power, and the mayoral types that occupy office.
8. The success of women and minorities winning elections for the mayor's office.
9. The changing nature of city councils and the increasing racial, ethnic, and gender diversity of
those legislative bodies.
10. Suggestions about judging how well communities are governed.
American local governments sprouted in response to a combination of citizen demand, interest group
pressure, and state government acquiescence. As a consequence, no scientific system of local
government exists. General-purpose local governments perform a wide variety of governmental
functions, and counties, municipalities, and towns and townships all fall into this category. Specialpurpose
local governments generally focus on a specific purpose and one function. Best known of these
are the school districts. Regardless of name, it is state government that gives local governments of all
types their legal life.
Counties were created to function as appendages of the state, but modernization and population growth
have put pressures on counties to expand their service offerings beyond property tax assessment and
collection, law enforcement, elections, recordkeeping, and road maintenance. Increasingly they have
become independent policymaking units of local government, and many handle health care, pollution
control, mass transit, industrial development, social services, and consumer protection. Home rule
provisions in at least thirty-seven states award the county with greater decisionmaking authority and
flexibility. There are 3,043 counties in the United States. Two states, Connecticut and Rhode Island,
have no functional county governments. Counties are called parishes in Louisiana and boroughs in Alaska.
The typical county government has a board of commissioners or supervisors and a number of other
elected officials forming a plural executive structure. Criticisms of this form of government have led to
two alternatives—the county council-elected executive and the council-administrator forms. Threequarters
of all counties are organized in the plural executive format, but the two alternatives are widely
used and experimentation continues. Meanwhile, county-state relations are strained as state-imposed
mandates for new programs send county government costs spiraling.
Like counties, cities are general-purpose governments, but their origins and the role they have played
differ. They begin as concentrations of people within a county who petition the state for a charter of
incorporation. When incorporation is successful, citizens vote on name and form of government.
Typically cities have greater authority and discretion than counties, and they offer a wider variety of
services. City or municipal governments operate with one of three structures: a mayor-council form, a
city commission form, or a council-manager form. Experts disagree over which is best but generally
find those forms without a strong executive officer less preferable than others. Experimentation
continues as voters consider and often make changes in the basic structure of city government even as
they face pressing problems related to planning and land use, annexation, finances, and determining
how to provide fair representation.
Towns, or townships, are also general-purpose units of government but are generally smaller than cities
and counties. They are often rural in nature and their services are limited, but where they are located
near populous areas they generally offer an expanded set of services. Many observers feel that
townships have a dim future and that without federal general revenue sharing they will soon cease to
exist, but townships have been remarkably resilient.
The fourth type of local government—the single-purpose or special district—is supposed to do what
local governments cannot or will not do. There are some 33,000 special districts around the country,
and their number is growing. They overlay existing general-purpose governments and differ in their
organization—they are minuscule to mammoth. They continue to exist because of technical and
practical limits on the general-purpose local government, the special debt and tax advantages under
which the special district operates, and the political power that they accrue. They accrue political power
because of restrictive annexation laws faced by cities and the limits on county government authority.
Once created, the special-district interests fight encroachment by general-purpose governments.
Supporters argue they are efficient in providing a service and are responsive to constituents whose
needs were not met by general-purpose government. However, many scholars look at them with a
jaundiced eye, because they feel that they operate without enough political accountability and that wellplaced
groups are their special beneficiaries. Some states are taking action to give general-purpose local
governments more input into the creation of new special districts.
School districts are a unique breed of single-purpose district. Prior to World War II there were 100,000
school districts that were often rural and expensive to maintain. Despite local pride in these institutions,
they have been consolidated. By 2002 the number of school districts had dropped below 14,000.
Who runs local governments? When this question arises proponents of elite theory and pluralist theory
provide different answers. Elite theory holds that a small group of parochial economic insiders
dominate the community to enhance their business and professional interests. Conversely, pluralist
theory views the community decisionmaking process as one of bargaining, accommodation, and
compromise among multiple groups with decisions made by fragmented authority, but the legitimacy of
this process hinges on the ability of the larger community to revoke the right of such limited groups to
make decisions. The latter theory is a more hopeful interpretation of community power.
To understand the dynamics of power in a community one must look to the regime—the informal
arrangements that surround and complement the formal workings of government authority. Concepts
like “systemic power” and “strategic advantage” may explain why upper strata interests so often win
the day, but electoral accountability may sway elected officials to decide against these narrow interests.
Chapter 11: Local Government: Structure and Leadership 51
Copyright © Houghton Mifflin Company. All rights reserved.
In other instances, hyperpluralism—a situation in which competing groups are unable to form
coalitions—allows public policy to become incoherent and increasingly ineffective. The question of
who is in charge has no clear answer.
Mayors occupy the center of attention in city government. Occasionally city council members with
aspirations to the mayor’s job try to fill that role. “Strong” mayors enjoy structural arrangements of the
office that afford greater formal powers. Those without this leadership-inducing structure are referred to
as “weak” mayors. In the weak-mayor structure, the mayor shares much of his power with the council.
Most American cities display a preference for weak mayors, but reformers believe complex problems
are best resolved by a structure with a strong mayor. Opponents fear such individuals will build a
political machine based on an exchange of benefits. But structure simply creates opportunities for
leadership, and true leaders are those who can transform a structurally weak position into a strong one
by dint of strong leadership. The reform movement elevated city managers to a prominent leadership
position in many cities. Originally, administration and politics were considered independent of each
other, but such separation has proven impossible—particularly for city managers, who are involved in
the initiation and formulation of policy. As with mayors, four types of city managers exist: community
leader, chief executive, innovator, and caretaker. When a particular managerial type is matched with the
appropriate community style, there is an excellent likelihood that local government will function
Local legislative bodies are much changed from the days when they were exclusive clubs. Then council
members considered themselves volunteers. Today city councils are less white, less male, and less
passive. They are less likely to have been elected at large. Racial and ethnic minorities are making
inroads in elected city and county offices across the country, but the percentages remain relatively low.
The possibility exists that with more groups seeking representation minority groups will build
coalitions. That appears not to be the case. Inter-minority group competition is on the rise. For example,
recent data shows that an increase in Hispanic population had a negative effect on black representation
on city councils. Without a shared political philosophy and selection from the same socioeconomic
stratum, much more conflict is associated with council decisionmaking. Council members elected by
district report more factionalism and less unanimity than counterparts elected at large. Council member
conflict appears to be on the rise nationwide. Local governments seek the right mix of politics and
professionalism as the players change, issues shift, structures adjust, and communities endure.
Central cities, suburban town governments, and urban counties are increasingly joining efforts to forge
areawide solutions to contemporary problems. The movement is modest but growing in recognizing the
costs of providing duplicate services and the realization that interjurisdictional cooperative approaches
may be more effective than individual ones. These “intercommunity partnerships” involve local
governments and area businesses, civic organizations, the academic community, and citizen leagues.
How do we know when a community is well governed? Although there are no universally accepted
criteria by which to assess the quality of governance, the National Municipal League bestows its “All-
American City” designation on cities displaying civic energy. Other attempts to provide criteria by
which to judge communities have included such measures as tranquility among officials, continuity in
office, use of analytical budgeting and planning, participative management, innovativeness, publicprivate
partnerships, and citizen input. Researchers from the Government Performance Project elected
thirty-five cities and conducted an extensive analysis on their management practices and performance.
Of these cities only Phoenix, Arizona, received a grade of “A.” Such measures, however imperfect,
offer at least some guidance for continued thinking about community governance as general-purpose
and single-purpose governments tinker with their structure and experiment with new jurisdictional
partnerships in an effort to find a balance between efficiency and responsiveness.
Chapter 12: Tax and Spending
This chapter covers the following:
The Principles of Finance
The Political Economy of Taxation
Borrowing and Debt
Where All the Money Goes: State and Local Spending
State and Local Finance in the 2000s