Problems in American Democracy

by Thames Williamson

610. SPECIAL COURTS.—In addition to the regular state courts there are sometimes special tribunals for special purposes. Examples of such courts are the probate or surrogates' courts for the settlement of the estates of deceased persons; children's courts for the treatment of cases involving children; courts of domestic relations; and courts of claims for hearing claims against the state.

611. STATE JUDGES.—In almost all of the states judges are chosen by popular vote, though in half a dozen states the choice of these officials still lies with the legislature or with the Governor, or with both acting jointly. Judges of the higher state courts are generally chosen for a long period of time, even for life, while the judges of the lower courts are chosen for relatively short periods. Salaries vary from practically nothing but fee money for some justices of the peace to an average of $7000 a year for justices of the supreme court. The qualifications imposed upon judges include a minimum age of 25 to 35 years, and citizenship for a varying period of years. Another common requirement is residence within the state, or even residence within the judicial district. For judges of the higher courts it is the custom to demand membership in the legal profession. Judges may be removed by impeachment, and, in a few states, by use of the Recall.

612. OTHER COURT OFFICIALS.—The district or prosecuting attorney is an important official. Generally he is chosen by the voters of the county, though in some instances he is elected from larger areas. The district attorney represents the state in all criminal cases, and conducts the prosecution. This officer conducts a preliminary investigation into crimes and determines whether or not a prosecution should be instituted. If the decision is in the affirmative, he presents the case to the grand jury. If the grand jury returns an indictment, that is, if it demands that the accused be held for trial, the prosecuting attorney conducts the prosecution at the ensuing trial.

The clerk, or recording officer, is generally appointed by the court, though he may be elected by popular vote. The constable or sheriff is elected by popular vote. The clerk and the constable are charged with the execution of all orders, judgments, and decrees of the court.

C. POWERS AND PROCEDURE

613. RELATION OF STATE TO FEDERAL COURTS.—The framework of American government includes a dual system of courts, the Federal courts and the state courts. The jurisdiction of the Federal courts is specifically defined by the Federal Constitution, while the state courts have a jurisdiction which is limited only by the prohibitions of the state and Federal Constitutions. The two systems of courts are independent in the exercise of their respective powers, and have separate jurisdictions. In some cases, however, the state courts have a concurrent jurisdiction with the Federal courts, and a litigant has a choice of tribunals before which to bring suit. In most suits the decision of the state supreme court is final, but cases involving Federal law may be appealed for final decision to the Supreme Court of the United States.

614. POWER TO DECLARE STATE STATUTES UNCONSTITUTIONAL.—Just as the Federal courts are the final interpreters of all domestic law, so the state courts have the power to pass upon the constitutionality of statutes enacted either by the state legislature or by local law- making bodies. The state constitution is the fundamental law of the state, and it is the duty of the state courts to see that all state and local legislative acts conform to this fundamental law.

615. POWER OVER EXECUTIVE OFFICIALS.—Through their power to pass upon the legality of executive acts, the state courts exercise some degree of control over executive officials. If a state governor were illegally to remove an official from office, for example, the courts could reinstate the latter.

The state courts also have the power to issue writs of mandamus and injunction. The former may be used, under certain circumstances, to compel an executive officer to perform his duty; the latter writ may be used to prevent either state officials or private individuals from committing illegal acts.

616. CIVIL JURISDICTION.—The jurisdiction of the state courts is either civil or criminal.