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The chapter begins with a discussion of the role federalism plays in our judicial system and how it affects court organization. The chapter proceeds to discuss the two types of federal courts—constitutional and legislative—and the differences between the two. Jurisdiction of federal courts in general is also discussed. The chapter next discusses a typical state court system. Because each state court system is unique, it is only possible to describe state courts in very general terms. The distinction between courts of limited jurisdiction and general jurisdiction is explained. The second major theme of the chapter is judicial selection. The process of selecting federal judges— both at the lower and Supreme Court levels—is discussed. The process is shown to be primarily a political process with the emphasis on how politics affects judicial nominations especially at the Supreme Court level. The discussion then turns to the selection of judges at the state level, emphasizing the three major methods of judicial selection at the state level: election, appointment, and merit selection. The chapter concludes with a discussion of judicial removal. Removal at the federal level is by impeachment only, and there is a discussion of historical and recent removals of federal judges. The section on removal of state judges discusses methods such as legislative address and recall of judges. The chapter concludes with a case study of Republican Party of Minnesota v. White, a case which involves the propriety of judges engaging in campaigning for election on issues that may come before them in their judicial capacities. ARTICLE III of the U.S. Constitution governs the main federal court system SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. 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 Ambas- sadors, other public Ministers and Consuls; to all Cases of admiralty and mar- itime 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 ap- pellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been com- mitted; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witness- es to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Federal and State Court Systems Attributed to both the concepts of a tripartite system and federalism, the American judicial branch has two separate and distinct court systems: 1) the federal system and 2) the fifty individual state systems. This bifurcated judicial system divides jurisdiction (meaning authority to consider and rule on legal issues) between federal and state courts. The traditional "Article III federal court system" is composed of 94 federal trial courts, usually just called federal district courts, and eleven appellate courts, usually called federal district courts of appeal. At the top of the federal court system is the United States Supreme Court. When reviewing this page, please do not overlook my 17 minute long PowerPoint presentation below or my video lecture on the federal court system (also 17 minutes). These appear after the below maps. This is a map of the federal circuit courts of appeal (as you'll see, Florida is located within the 11th Circuit Court of Appeals): This is a map of the federal district courts in Florida (as you'll see, UCF is located within the Middle District Court of Florida): Federal courts have jurisdiction over matters arising from federal law. This includes many topics, including others: bankruptcy, immigration, admiralty, and international law. As discussed in my lecture below, some of these specialty federal courts can be either Article I courts or Article II courts. There are also limited situations in which a federal court may have jurisdiction over a state issue. For some basic differences between the federal and state court systems, please watch and review the short PowerPoint presentation found directly below. Please note that some of the material on the second half of this PowerPoint presentation will be covered in much more detail in my video lecture below. That is, and as I explain in the PowerPoint presentation, my audio lecture in the PowerPoint ends

in these slides after the discussion of the State Court System. This is because the Federal Court System is addressed in my video lecture contained farther down below on this page. POWERPOINT: The content of the course material will become much more complex, much more mysterious, much more difficult to understand. Edmund Burke once commented, "It is hard to say whether the doctors of law or divinity have made greater advances in the lucrative business of mystery." When we deal with the operation of the court system and the organization of the court system, the reason why there's so much mystery and so much complexity and so much confusion relates to the concept of federalism. You'll recall that we discussed federalism at the very onset of this course in module one, week one. I provided a PowerPoint presentation for you and specifically discussed federalism in that presentation, slide six. Well, the result of federalism is not only that we have 50 different independent states, each with their own lawmaking authority, and also the federal government with its own limited lawmaking authority, but we also have a dual court system as well. And so as the book points out, instead of having a single unified court system such as exists in Great Britain or France, the US has 51 different court systems. We have a federal court system and then we have a court system for each of the 50 states. And this is-- the complexity is further compounded by the fact that within each of the 50 states, each state organizes their court system in a slightly different fashion. And so the result is not only differences between a federal court system and a state court system, but also a whole bevy of differences between one state compared to another state in terms of the organization of their court system. We spend a lot of time in this class, in the book, and in society generally talking about the federal government and the federal courts. But you should know that when we talk about state courts versus federal courts, by far most legal actions occur on the state court level. And state courts are therefore, I would argue, more important because that's where the greatest volume occurs in terms of litigation, in terms of cases. When we talk about the federal courts, there's really only a fraction of the total number of cases that we have in the US that occur in the federal court system in any given year. Now, those cases often garner a lot of attention because they deal with national issues of great import. But if you look-- and I've got data from 2009 to illustrate this, if you look at the number of filings on the state level versus the federal level you can see that litigation and cases in the federal court system is the smallest sliver of cases compared to at the state level. In 2009, there were a little over 300,000 cases at the federal level compared with almost 88 million cases on the state level. And that should illustrate to you the importance of state courts. We often, again, focus on federal courts because those cases deal with major issues often involving national imports. But we should not overlook the fact that most cases that you would study, most cases that you would look at, most litigation that you might be involved with as a lawyer occurs on the state level. Now, when we talk about the dual court system, you also see the relative size-- the disproportionate size of the state court system versus the federal court system when you look at the composition. So if we're looking at Article III courts, and on a subsequent page of this module, I have a video lecture for you on the federal court system talking about Article I courts and Article III courts and the difference. But right now, if we're talking about just Article III courts, that would be the US district courts, the Court of Appeals, and then the Supreme Court. We have approximately 108 federal courts. Now, you can contrast that with the state court system. If you look at all 50 of the various states in terms of the organization of their court system and you look at just their general court system, which would be analogous to the Article III federal court system, all those courts across 50 states is approximately 16,000 courts, 15,500 of the last time I looked. So you're dealing with 108 courts federally versus 16,000 courts on the state level.

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And the same is true of judges. If you just look at Article III judges federally, we have about 685 district court judges around the United States that sit on US district courts around the United States. We have 179 judges that sit on federal courts of Appeals, the appellate court level in the federal court system. And then, of course, we have nine Supreme Court justices, which gives you roughly 873 Article III federal judges. Again, you can contrast that with the number of judges on the state level, almost 30,000. So 873 versus 30,000. So one court is it more important than the other, state courts versus the federal court, but I do want you to come away from this material recognizing that most of our courts are state courts, most of our judges are state court judges, most of our litigation in cases happen at the state level, not at the federal level. As the textbook points out and I mentioned a moment ago in terms of the concept of federalism, because we have so many different courts, 51, and each state does it differently, there is no typical state court system, no typical state court structure that each state adopts. Consequently, the most that we can do is describe state courts in general, in terms of how they're generally constructed. And so you see on this slide, both for the federal government and the state governments, if you think about the organization of the court system I think it's helpful to think of it in terms of a triangle. At the very top of the court system, both at the federal and state level, you have a Supreme Court. There are two states that actually have two state Supreme courts, one for civil cases the one for criminal cases, which I suppose illustrates, again, the concept that each of these states are different and unique. But again, talking more generally, if you think about the organization of the federal court system or a state court system, you're going to find one Supreme Court, one court at the apex of the court hierarchy. Below that level, you'll find an appellate court system. And for both the federal government and state governments, litigants usually have the right of appeal once in a case, meaning you have a general right of appeal one time to the appellate court level. There is not an automatic right of appeal to a Supreme Court, either federally or in the state-- on the state level. And then at the bottom of the triangle, you have trial courts. Trial courts are where cases are filed, where prosecutions occur, and we can subdivide trial courts into courts of limited jurisdiction and your general trial courts. Now, courts of limited jurisdiction, as the textbook points out and as the term suggests, are courts that deal with cases that are limited in some fashion. So for example, traffic courts. They hear cases limited to misdemeanor traffic offenses. Small claims courts is another example of a court of limited jurisdiction at the bottom of the organization of a typical state's court hierarchy. There are justices of peace courts, as the textbook points out on page 55, that exist in many states. So you have these courts of limited jurisdiction and then you have your general trial court at the lowest level. So if we're looking at Article III courts, and on a subsequent page of this module, I have a video lecture for you on the federal court system talking about Article I courts and Article III courts and the difference. But right now, if we're talking about just Article III courts, that would be the US district courts, the Court of Appeals, and then the Supreme Court. We have approximately 108 federal courts. Now, you can contrast that with the state court system. If you look at all 50 of the various states in terms of the organization of their court system and you look at just their general court system, which would be analogous to the Article III federal court system, all those courts across 50 states is approximately 16,000 courts, 15,500 of the last time I looked. So you're dealing with 108 courts federally versus 16,000 courts on the state level. And the same is true of judges. If you just look at Article III judges federally, we have about 685 district court judges around the United States that sit on US district courts around the United States. We have 179 judges that sit on federal courts of Appeals, the appellate court level in the federal court system. And then, of course, we have nine Supreme Court justices, which gives you roughly 873 Article III federal judges. Again, you can contrast that with the number of judges on the state level, almost 30,000. So 873 versus 30,000. So one court is it

more important than the other, state courts versus the federal court, but I do want you to come away from this material recognizing that most of our courts are state courts, most of our judges are state court judges, most of our litigation in cases happen at the state level, not at the federal level. As the textbook points out and I mentioned a moment ago in terms of the concept of federalism, because we have so many different courts, 51, and each state does it differently, there is no typical state court system, no typical state court structure that each state adopts. Consequently, the most that we can do is describe state courts in general, in terms of how they're generally constructed. And so you see on this slide, both for the federal government and the state governments, if you think about the organization of the court system I think it's helpful to think of it in terms of a triangle. At the very top of the court system, both at the federal and state level, you have a Supreme Court. There are two states that actually have two state Supreme courts, one for civil cases the one for criminal cases, which I suppose illustrates, again, the concept that each of these states are different and unique. But again, talking more generally, if you think about the organization of the federal court system or a state court system, you're going to find one Supreme Court, one court at the apex of the court hierarchy. Below that level, you'll find an appellate court system. And for both the federal government and state governments, litigants usually have the right of appeal once in a case, meaning you have a general right of appeal one time to the appellate court level. There is not an automatic right of appeal to a Supreme Court, either federally or in the state-- on the state level. And then at the bottom of the triangle, you have trial courts. Trial courts are where cases are filed, where prosecutions occur, and we can subdivide trial courts into courts of limited jurisdiction and your general trial courts. Now, courts of limited jurisdiction, as the textbook points out and as the term suggests, are courts that deal with cases that are limited in some fashion. So for example, traffic courts. They hear cases limited to misdemeanor traffic offenses. Small claims courts is another example of a court of limited jurisdiction at the bottom of the organization of a typical state's court hierarchy. There are justices of peace courts, as the textbook points out on page 55, that exist in many states. So you have these courts of limited jurisdiction and then you have your general trial court at the lowest level. Now, federally, you'll see in a, subsequent page of this module and then also in a lecture I provide, the general trial court in the federal court system is US district court. But you can see on the left of the slide that when we talk about general courts, and we talk about them across all 50 different court systems, we have a variety of different terms. Some states will refer to the general court at the bottom of the court structure as a trial court. Some states refer to their court of general jurisdiction as a circuit court, a superior court. And I mentioned, federally, we refer to them as district courts. In Florida, we refer to County courts, Orange County, Seminole County courts. And so we can subdivide cases at the lowest level between cases of general jurisdiction versus cases of limited jurisdiction. The last time you saw me describe for you a typical state court structure in terms of a triangle. Here is another way that you can view it, again, similar to a triangle, but you see the state court of last resort at the top of the apex. And again, every state has a court of last resort. And as I mentioned on the last slide, in fact, two states, Oklahoma and Texas, have two courts of last resort. Now, they're typically called the state Supreme Court. But even that is not consistent across all 50 states. So for example, the New York Supreme Court is actually New York's trial court. And so most case, most states do call their court of last resort a Supreme Court. You should note that even that is not uniform across all 51 court systems. Again, New York, their Supreme Court is their trial court. And then below the state court of last resort you have an intermediate court of appeals. That's where you go with your routine appeal. And again, there's-- litigants have a right to at least one appeal, but there's no guarantee and no right to appeal beyond the intermediate courts of appeal. So that intermediate court of appeal level is

where most appellate cases occur. And when a case comes up on appeal to this intermediate Court of Appeal level, either in the state court system or federally, it's not a trial anew. It is not a trial de Novo, which means a fresh, anew. The court doesn't call witnesses and take new evidence. Courts are limited to mistakes and issues of law when we discuss the appeal of a case. And then at the bottom of a typical state court structure, you'll have your general trial courts, which you see on the left of the slide. And then courts have limited jurisdiction, which you see delineated for you on the bottom right of this slide. So this is an example of a generic, typical state court structure. Now, let's just pick one of the 50 states to see how that looks in practice. The state of Ohio, you can see, has the court of what? The final court of last resort, the Ohio Supreme Court at the top of the triangle, at the top of the court hierarchy. And below that, they have district courts of appeal throughout the state of Ohio. And then below that, you can see that they divide their trial courts by County. And so you have Stark County court of Common Pleas, which is subdivided further into probate issues, family law issues, and then their general County court dealing with other civil cases and then also criminal cases. So that's a specific example that illustrates that generic triangle structure that I referenced previously. Turning to the federal court system, the federal court structure. This slide and the subsequent slides in this PowerPoint presentation will have no further audio commentary. So, as a continuation of our discussion of an overview of the state and federal court system, and in addition to completing your readings from Chapter Three on the federal and state court system, please watch this short video lecture overview on the organization of the federal court system in the United States. In our last class, we began an overview of The Federal and State Court System in the United States. Specifically we discussed the concept of federalism. And that we are all governed by two sovereigns. By two separate court systems on the federal and state levels. Additionally we discussed the general layout of a typical State Court System or model. At the end of our last lecture, we had turned our attention to the Federal Court System. And it is to this topic that I would now like to return for a few minutes today. Remember federal courts and federal lawsuits are largely a statistical anomaly compared to state courts and state court lawsuits. For example in 1996, there were approximately 87.5 million cases filed in the state courts. During that exact same period there were only 310,154 cases criminal and civil filed in the federal court system. No I'm not mathematically inclined, but I believe less than 1%, of 1%, of all cases that are in the federal court system as opposed to the state court system. Additionally among all federal courts, and that includes Article I and Article II courts, which we will talk about in a moment. As well as the main body of judges coming from Article III courts. We only have 1700 federal judges in the United States today. Compared with 30,000 judges on the state level. Now, if we just compare Article III judges, those judges on the US District Court level, US Court of Appeals, and our Supreme Court, there's just only 900 federal judges. Again, compared with 30,000 on the state court level. Further again if we're talking about just Article III courts, the main type of federal courts in our system. There are a total of just under 125 courts, compared with 15,500 courts on the state court level. Let's add a little more substance to our conversation now. You could divide our federal court system into two general types of courts. Constitutional Courts, our main and largest type of courts. We often call those Article III courts. We call them Article III courts because these courts are "ordained and established" by Article III of the Constitution. Article III says, there shall be one Supreme Court and such inferior courts as Congress may ordain and establish. Article III courts have judges who serve for life. And there are in essence three ways in which you could find yourself potentially in an

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Article III court. Which I'll describe briefly for you in a few moments. The second general type of federal courts are referred to as legislative courts, or Article I courts. And then sometimes military courts under Article II. Article I courts are created by Congress to adjudicate issues that are delegated to Congress in Article I of the Constitution. Cases like tax courts, US bankruptcy courts, US Patent courts. Now the judges on these courts do not serve for life either, usually just for a fixed period. Article II courts are courts set up pursuant to the president's powers. Just like article I for the Congress, Article II for the president. So for example, the president is Commander in Chief under Article II. And so military tribunals would be an example of an Article II court. But unless you're dealing with a case involving one of these special issues of bankruptcy, hence a hearing or trial in front of an Article I court, or a military court martial and so a hearing in front of an Article II court, most federal cases are heard by what we call Article III courts. Now when we talk about the lowest level of federal courts, Article III federal courts, US district courts, there's about just under 100 US district courts throughout the United States. Above that, we have 13 federal Courts of Appeals, which are the intermediate appellate courts. And each of the 13 cover several different states. And so in my uploaded PowerPoint slides, you'll find a map of the United States showing all 13 Federal Circuit Courts. And you can see which states are within which circuit. The 11th Circuit for example, covers all federal cases, appealed from District Courts located in Florida, Georgia, and Alabama. Lastly we have the Supreme Court, which we'll cover in greater detail in our course module later in the semester on constitutional law. So in the federal system, lawsuits ordinarily begin in US District Court. In 1789, when Article III specified that there should be one Supreme Court and such inferior courts as Congress would ordain and establish, Congress indeed created 13 new district courts. One for each of the new states. Since then however, the population has exploded, and the country has expanded, and Congress has increased the number of federal district courts in each state. Based upon population explosion, and caseload, and everything else. Some states like Nevada, South Dakota, Maryland, still have just one district court. The district court of Rhode Island for example. Other states like Texas, Florida, and New York, will have as many as four federal district courts in the state. So for Florida you would have US District Court, for the Southern District of Florida, US District Court, for the Middle District of Florida, et cetera. Further note that one district court is not equal to another district court in terms of the number of judges. So when we look at the US district court for the Southern District of New York, the last time I checked, they had 28 district court judges on that court. The last time I looked at the US district court for the Eastern District of Oklahoma, it was two judges. So let's talk about how you get into the federal court system as a matter of original jurisdiction. If you read Article III of the Constitution, which I've uploaded for you within the online materials. The Supreme Court almost always operates as an appellate jurisdiction of last resort. But there are instances where the Supreme Court rarely has original jurisdiction. So when you read Article III of the Constitution, please note that the Supreme Court has original jurisdiction involving cases involving ambassadors and diplomats for example. Or disputes between states, like the case we previously discussed between New York and New Jersey. When both states had sued each other over which had the right to the water in the waterways surrounding Ellis Island and the Statue of Liberty. But almost always the Supreme Court serves as a discretionary appellate court of last resort. And very few cases make it to the Supreme Court. Now the jurisdiction of US district court, the lowest level. You can satisfy that, and get into that court, in one of three ways. The first is if there's a federal party. So if you sue the federal government, or a federal agent, that case will get moved to federal court. In the materials that I uploaded within the PowerPoint slides, I provided some slides on a case I handled involving an ATF agent who was sued. And because it was an ATF agent that case was automatically removed to US

district court because he was a federal party. The idea was and is, federal courts would potentially be more fair than a state court in handling a federal employee or a federal agency. The second way to get into US district court other than a federal party being involved, is if your case involves a federal question, or a federal statute, and that's what gives the court jurisdiction. Article III of the Constitution says that, "the judicial power shall extend in cases in law and equity under this Constitution, the laws of the United States, and treaties made or shall be made, under their authority." So for example, Congress passed the statute in 1946, called the Federal Tort Claims Act, or the FTCA. I used to work on FTCA cases when I was a federal attorney. In the Federal Tort Claims Act, Congress has waived sovereignty, and allows individuals to sue the government for personal injury claims, when the government or a government actor commits a wrong. Injures you in some way. However as a term of the statute, Congress has specified that the FTCA must be brought in US district court. In those cases against the federal government must be heard in federal court. And then the final of the three ways through which, you can get into federal court is something called diversity of citizenship. Where a citizen from one state, may sue a citizen from another state if the amount of the claim exceeds $75,000. The $75,000 amount is set by Congress, and it's an amount used to keep the federal court docket manageable. Historically, Congress had set the amount at lower levels at one point it was $10,000. And then 50,000, and today it's $75,000. Has been so for the last several decades. Diversity of citizenship is a similar rationale as to what I previously mentioned with federal agents, that allowing citizens from two different states, to go to the federal court system allows for an equal playing field. The idea is, it wouldn't be fair if one party could sue in his or her home state, and an out-of-state citizen would have to defend him or herself in another state. If you're curious to the breakdown, federal questions amounted to roughly 44% of the cases, federal party was about 34% of the cases, and federal question about 21% of the cases. After the district court level you would appeal your case up to the Federal Circuit Court of Appeals. And that would be in most cases, your last stop. Less than 1% of cases are subsequently reviewed by the Supreme Court, which today largely has only discretionary review. And might hear 100 cases of the 8 to 10,000 requests for review each year. And we'll talk about the Supreme Court's operation in upcoming class again on US constitutional law. Now several things to note about how the US Court of Appeals operates. On an appeal your case will be heard by a panel of three judges. If you lose this decision, and want to appeal you must request a " review on banc ," French for full bench. This means that the entire circuit will hear your case, instead of three judges. If you lose this decision, you can petition to the Supreme Court for a writ of certiorari , to review your case. Which I just mentioned is exceedingly rare. Finally, each Federal Circuit has its own reputation. So the 11th Circuit is noted for its expertise in immigration matters. Makes sense because the 11th Circuit it reviews a lot of cases from Southern Florida, which is an immigration entry point. Same is true of the Fifth Circuit. Which encompasses Texas, Louisiana, and Mississippi. Cases from Texas often involved in immigration as well. So the Fifth Circuit has an immigration expertise. The Fourth Circuit, which covers Virginia, Maryland, West Virginia, North Carolina, South Carolina, is known as the rocket docket. Because it handles criminal cases very quickly and expeditiously. And often in a manner favorable to the federal government. So in the federal government has a choice as to where to initially bring suit, oftentimes the preference is for the federal government to bring the suit within the Fourth Circuit at one of the district courts within the Fourth Circuit. Because of the possibility of a quick disposition of the criminal case. The Ninth Circuit which involves California and eight other states, is known as a very liberally oriented Federal Circuit. And we know that the Ninth Circuit, its decisions are overturned and reversed more frequently than any of the other federal circuits. Which is a dubious honor, I would think. The final note

in regards to cases on appeal, either at the state level or federal leave from US District Court to the Federal Courts of Appeal is that, you do not have a trial de novo. The term de novo is Latin for anew, or a review of fresh. Your cases on appeal, either on the state court level or the federal court level, involve issues of legal error. And so if you're successful on raising an issue of legal error, and the appellate court agrees with you. The appellate court will reverse the lower court proceeding, and remand the case back down to the lower court for reconsideration. So you don't just immediately win your case in most circumstances. And then furthermore, it's not a trial de novo on appeal. Meaning it's not a trial anew. It's not a fresh trial. On the appellate level, you do not have the option of calling witnesses, and making opening and closing statements, it's simply to review a legal error. And if you're successful the case is reversed and remanded back down to the lower court for hopefully a proper disposition of your case. Now in our next lecture, we'll turn to the selection and retention of judges on the federal and state court levels. And potentially the removal of those judges if there's some sort of misconduct. ***** Every one of the fifty states also has a state court system which has jurisdiction over most state issues. The setup of the state courts systems is not uniform. Typically, the establishment of a state's court system is found in that state's constitution and further implemented through that state's legislative statutes and court rules. In Florida, the establishment and jurisdiction of our state court system is found in Article V of the Florida Constitution. It sets forth a system which has: 1) County Courts in every one of Florida's 67 counties which serve as trial courts over minor criminal matters and small civil cases, and 2) Twenty (20) Circuit Courts which may include one or more counties and serve as trial courts over higher level criminal and civil cases, as well as serving in an appellate capacity in limited instances, and 3) Until 2022, Five District Courts of Appeal which serve as appellate courts for their respective Circuit Courts; and 4) The Florida Supreme Court which is the highest appellate court in the State and is also vested with final regulatory authority over lawyers and judges. In addition to these true courts, the Florida Constitution also allows for government "agencies" which can serve in quasi-legislative, quasi-executive, and quasi-judicial capacities. That is why you may hear of other types of "judges" such as a "workers compensation judge" - these are more akin to a quasi-judicial officer than a judge. Florida judges obtain their roles though both the election or the appointment process. Judicial elections are by a vote of the citizens within a subject county for a county judge seat or within the subject circuit for a circuit judge seat. Judicial appointments are made by the Governor for the judge's first term but appointed judges are also subject to the election process in subsequent terms (although at the appellate level, this election is not against an opponent but simple for affirmation by the voters that the appellate judge should remain in office.) Here are maps of: 1) Florida's County Cour ts, 2) Florida's Circuit Courts , and 3) District Courts of Appeal. You'll see that UCF is located within the jurisdiction of the Orange County Court, the Ninth Circuit Court, and the old Fifth District Court of Appeals (now, Florida's new 6th District).

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There is limited interplay between the federal courts and state courts - they maintain separate courthouses, separate judges, and most attorneys choose to primarily practice in one or the other systems. Typically, the only commonality between the two systems is at the level of the United States Supreme Court - which can hear appeals from both federal and state courts. Occasionally, federal courts will also have jurisdiction over a state law matter - but that is an unusual situation. Selection of Judges Last lecture, we covered an overview of the federal and state court systems in the United States. Today, we turn our attention to the selection, retention, and removal if necessary of judges on either the state or federal levels. Obviously, judges are at the heart of the judicial process. Perhaps, one of the more important actors in the judicial process. Not only because they decide cases and preside over court proceedings, but also because their decisions directly influence the outcome of disputes and even situations that never get to court. Because of the concept of precedent and stare decisis that we've discussed previously, let the decision stand, which affords to previously decided cases, the ruling in present cases. At the outset you should recognize that most Democratic nations, have adopted selection systems that emphasize legal competence and independence from popular control. In fact, throughout continental Europe, there exists a professional core of judges. Judges that are educated and trained to be a judge from as early as when the judges in college, and as early as when they're a University student. These individuals are identified and selected at an early age, based upon merit and qualifications to be judges, and not by political means. By contrast, the United States, generally stands for the emphasis on political accountability in the selection process. And for its relatively limited emphasis on legal competence. In the United States at both the federal and state levels, elected officials play a large role in placing judges on the bench. Determining for the most part if they stay there as well, at least for state level judges. Also US judges received no specialized training before ascending to the bench, and no judicial experience is required or mandated. As I've indicated, this can be contrasted with many other Democratic nations of the world. However, before I discussed the various models for selection of judicial actors, please understand that there's much variation between state and the federal government. And even between states, when it comes to the amount of judicial competency and what factors are considered and by whom, when selecting an individual to serve as judge. As you read about the selection of judges in the Calvi and Coleman text, and as you listen to my brief comments now on

this topic, I would ask that you keep in mind three issues, and ask yourself these three questions when considering the efficacy and the soundness of the various modes of selecting judges. Again either on the state or the federal level. First, ask yourself which approach, which model gives priority to the highest degree of political independence of the judge, and maximizes his or her freedom and autonomy in ruling the way they can proper, and free from political pressure. Second, ask yourself which selection approach creates the highest level of political accountability of the judge to the people. That is, assuming you think political accountability of judges is a good thing. Which model of selection that we'll discuss makes judges most accountable to policymakers and to the electorate. And third, which model that we will discuss, obtains the most qualified and competent judges in your opinion. So let's first cover the selection of federal judges, and then turn our attention to state court judges. Just by numbers alone, being appointed as a federal judge is a very selective and difficult process, and it is indeed a distinct honor if you're selected to be a federal judge. Today of all federal courts combined throughout the country, there are approximately 1700s federal judges, which you can compare with 30,000 judges at the state court level. As the book points out, the selection of these federal judges is a deceptively simple process. Article II of the Constitution specifies that the President of the United States has the right to appoint Supreme Court justice with the "advice and consent" of the Senate. And Congress has extended this practice by statute to other federal judges on the lower courts. Now under the Constitution, there are no constitutional or legal qualifications for a presidential appointment. So theoretically, the president could even put non-lawyers on the bench. Although as the book points, out in practice the competence and quality and experience of those picked for the federal branch has for the most part been very high. I would ask you to please pay particular attention to the Calvi and Coleman text when it describes the process, and specifically the role of senators and the concept of senatorial courtesy, which we won't cover here. As you can see from the text, the advice and consent approval of the Senate is not meaningless. With just the Supreme Court alone, since 1789, for example, we've had 113 Supreme Court justices. 28 individuals have been appointed by the president to be on the Supreme Court, but rejected by the Senate, roughly one and five or 20%. In recent years, the closest vote of a person who made it onto the court, was Clarence Thomas, who narrowly survived a Senate vote by the narrow margin of 52 to 48. You should note also that federal judges are appointed for life, and they leave the bench only when they resign, die, or are impeached. And there has never been a Supreme Court justice removed by the impeachment process. However, in US history, there have been 15 impeachment proceedings against federal judges. Four were acquitted by the Senate, seven were convicted, and three resigned before a Senate vote. So let's turn to the state selection process now. On the state level, the mode of selecting judges differs from state to state. The choice of system is determined by the state's constitutional provisions, which are usually created and altered by legislative action and popular vote. However, even among states which adopt a certain model of selecting judges, there are still differences raised another way. Many states actually involve a hybrid or combination of different models for selecting judges. And it'll depend on which level of judges or which court you're dealing within that particular state. So there are five main ways in which state level judges are selected. Again, depending on the state. Number one, gubernatorial appointments. Number two, legislative elections. Number three, partisan elections. Number four, nonpartisan elections. Number five, something called the Missouri plan. Now there are pros and cons to each of these selection models that are delineated for you in the Calvi and Coleman text, and I would ask you to pay attention to those positive and negatives of each approach. Well, gubernatorial appointments are as they sound. The governor appoints a judge, and then that person is confirmed by a state legislative body, usually, the state Senate. This is the state law version

of how federal judges are selected under Article two of the US Constitution. And approximately 15% of state level judges are selected by this method, the gubernatorial appointment method. The second of the five models in selecting state judges, is through something called legislative elections . This is also as it sounds, we're in a state legislature, identifies and elects individuals to serve as judges. This is a pretty rare model. And personally, in research, I've only located three states, Rhode Island, South Carolina, and Virginia, where some of the judges at some levels were selected by this method. The third and fourth ways to select judges are through a public election , either a partisan election or a nonpartisan election. A partisan election simply means that a judge is selected through a general election, wherein the judges are listed with a party affiliation on the ballot next to their name. Conversely, a non- partisan election is a general election wherein the judges are not listed with party labels on the ballot. Approximately, 50% of the states, select judges through direct election, either partisan or nonpartisan. The last model of selecting judges is a merger of these various models, and was meant to number one increase the level of competency of the selected judges, while also minimizing number two the role of partisan considerations in the selection. This last mode of selection is called the Missouri plan , put forth first in Missouri as you might imagine by name, but it's now been adopted in approximately 25% of the states. Under the Missouri plan, a commission or committee of experts produce a list of names of viable judicial candidates to ensure quality, and then the governor appoints from the list. Governors restricted to names on that list. And after the judge has served for a short period of time, usually a year or so, voters then by election, decide whether or not to retain the judge on the bench. Now in the next lecture, I will critique the model of selecting judges by election on the state level, which again, covers about 50% of the states in how they select judges. And also in the next lecture, I will discuss removal options for judges, either on the federal or state levels. Who Said Being a Judge was Easy? When I was a young active duty Army lawyer and prosecutor stationed up at West Point, New York, in 1994, the below case happened just about 30 miles down the road. I'm glad I wasn't the prosecutor or judge in that case! I guess it is a good illustration of what constitutes "tangible evidence" as opposed to "demonstrative evidence": Warwick police Officer Edward Mullins thought he had heard all the excuses. Steve Kaloz, 53, of Campbell Hall, stood before Justice Daniel Coleman and said he was speeding through War- wick because he needed to get to a bathroom. Fast. And he brought his soiled underpants into the courtroom to prove just how big a rush he was in on the morning of July 8, when Mullins stopped him on state Route 17A for doing 68 mph in a 55 mph zone. Kaloz told Justice Daniel Coleman he was "racing to the toilet." He offered the judge an envelope. Inside, Kaloz said, was proof the situation was dire. Coleman did not wish to view the evidence. Mullins said there was no way to prove the drawers were soiled on the day Kaloz was ticketed. But, to avoid a trial, he agreed to reduce the charges. Mullins, however, refused to discuss the plea bargain, fearful that others would copycat Kaloz's defense. "I don't want to disclose. Every judge in the county will hate me because everybody will start walking into court with (soiled) drawers," Mullins said. Appeals After the trial, whether civil or criminal (which we will discuss in the upcoming two modules, respectively), comes the appeal. In most jurisdictions, every litigant has the right to at least one appeal to a mid-level appellate court. In certain criminal cases, particularly convictions resulting in the death

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penalty, the convicted has the right to numerous appeals including, often, appeal to the highest appellate court of that jurisdiction. An appeal is not another trial however. In fact, no additional evidence of any kind can be presented during the appeal. This means that cases on appeal DO NOT receive what's called a trial " de novo "--or commonly translated as a "trial anew." The only evidence which will be considered by the appellate court is the evidence already included in the trial court "Record." This record should include everything which transpired during the litigation leading up to the appeal. This includes all court pleadings, from the initial complaint in a civil case or initial arrest report in the criminal case, all the way to the final judgment. All evidence which was submitted at trial, such as videos, photos, material items, receipts, emails, and the transcript of all verbal utterances during the trial, will all be in the Record. Any objections which were raised at trial will be recorded in the Record. Since the majority of objections must be raised at trial to be "preserved on appeal" making sure the objection is voiced during trial is very important. So a lot is included in the Record - often several volumes or even boxes are needed to hold the Record. But remember, it's also the only evidence the appellate parties are allowed to use. So "building a record" during the trial is very important for parties who may want to appeal the judgment. Another difference between the trial and the appeal is the nature of the legal presentations. The great majority of appeals are based solely on written documents without any actual appearance or argument to the court. The documents upon which the appellate court will base its decision usually include: 1) the "Initial Brief" filed by the Appellant, 2) the "Response Brief" filed by the Appellee (the party responding to the appeal), and 3) the "Reply Brief" filed by the Appellant. In the rare occurrence that an appellate court grants "oral argument" to the parties, this privilege only means that attorneys for the respective parties may make a brief speech (usually 10-15 minutes) to the justices which can be interrupted by the justices as they ask questions of the attorney. No witnesses, no dramatics, no new evidence. An yes, that's "judges" not judge. Most appeals are heard by a "panel of judges" - typically between 3 and 9 judges - depending on the jurisdiction, court (e.g., Court of Appeal verses Supreme Court) and the nature of the case (panel hearing verses a hearing en banc ). And actually, the title at the appellate level is "Justice" rather than "Judge." The majority of these justices must reach agreement to decide the winner in an appeal. Whichever justices have the majority vote get to the write and issue the "Majority Opinion" (commonly known as just the "Opinion") in which the court explains the outcome of the case. This Majority Opinion establishes the "precedent" of the case, meaning the law which must be followed by the lower courts within that appellate Justices on the panel who agree with the majority's final determination but not with the majority's reasoning, or feel that some important legal precedent was omitted from the Majority Opinion, can write a "Concurring Opinion." A Concurring Opinion does not create any precedent. An finally, the justices on the panel who disagree entirely with the majority can write a "Dissenting Opinion" explaining all of the aspects of the decision with which they disagree. This opinion does not have any precedent. But Dissenting Opinions, especially in hotly contested cases, can be a fascinating

read as the dissenting justices try to politely (or not so politely in some cases) tell the majority justices why they are utterly incorrect! Also, one final note, appeals are governed by their own set of rules, known as Rules of Appellate Procedure. Within these rules are usually subsets of rules specific to appeals of civil cases and appeals of criminal cases. Critique of Judicial Elections and Removal of Judges Last lecture I discussed the various modes of selecting judges, in both the state and federal levels. In this lecture I want to first highlight some observations about those states, the roughly 50% of the country, 50% of the states, wherein judges are selected by popular election, either partisan election or nonpartisan elections. Second, I would like to make some general observations that apply to the selection of state court judges generally. And third and finally, I would like to briefly address the issue of removing judges from the bench. For those states that select judges for the bench by popular election and by a vote of the electorate, we know several things. As a general matter, as great as elections might sound for selecting judges, as democratic as this might sound, we know in fact that voters know very little about judicial candidates, and have very little information when they vote. This is the case for three different reasons. First, ethical rules, canons of judicial ethics, limit discussion of certain legal issues during the campaign. So even if there are campaign ads, and the candidate can afford those ads, these ads often focus on bland matters such as family life, previous employment experience, and maybe perhaps a slogan like, tough on crime. The Dayton Journal Herald in Ohio in October 1980 ran an ad for someone running for a judicial position. The ad, in large part, was simply a picture of the candidate with his three-year-old son. And the caption read, vote for my daddy. And then the ad went on to say that quote, "My daddy will be a really good judge." And it then went on to include the fact that quote, "My daddy takes really good care of me, my little baby sister, Laura, and my mommy." Now how useful is this ad as to whether or not the person would make a good trial court judge? Second, the lack of voter information of candidates is compounded by the fact that judicial candidates spend very little money campaigning, and are for the most part very small scale operations compared to the traditional political candidate. One study from California in 1982 revealed that judicial candidates for office spent $0.11 per vote versus $2.00 per vote spent by the average legislative candidate that very same year. Third, because of the general lack of information, individual voters must make a concerted effort to educate themselves on persons running for judicial office for the bench. And for judges, that would logically include researching the types of cases they have handled, if it's an incumbent, and how those individuals ruled on the cases. Well how many voters do you think do this type of legal research and practice? So in elections it often comes down to a familiar face or a name. And if the state selects judges via the partisan election model, people often will just vote for a person based solely on the party affiliation. Party affiliation, when permitted on the ballot, then plays a huge role in the selection process. Given the dearth of any other available information to the voters, people simply will vote the ticket straight down, based upon the party they identify with. Thus it's not surprising that one study found in partisan states, judicial candidates do the best in those counties wherein their party does the best in the gubernatorial race. This reminds me of a famous old quotation from a state judge about why he initially won election to become a state judge, and then lost his seat four years later when he came up for re-election. This judge, a Democrat, said quote, "I was elected in 1916 because Woodrow Wilson kept us out of war. I was defeated in 1920 because Woodrow Wilson hadn't kept us out of war." A third characteristic of election states wherein the voters choose judges by ballot is that there is a huge clear

advantage to the incumbents. Despite the quote from that Democratic judge, who lost his re-election attempt in 1920 that I just indicated, most of the time incumbents are re-elected without very much effort. Almost once a judge, always a judge. Why? Well again, given the lack of voter information that we've discussed, party recognition and partisan elections plays a large part, and a large role in the process. And it's hard for someone to overcome that barrier. And people assume if you are a judge, you should remain a judge. One study found that incumbents in Ohio and Michigan over a two decade time period were reelected 80% of the time. A fourth characteristic we see at play in election states is that the governor still looms very large over the process, which not necessarily makes sense. Why would a governor loom very large over an election process? Well it makes sense if you consider this fact, in election states, if a vacancy occurs in between elections, it's typically filled by the governor. In fact, in one study over a two decade time period looked at judges in Ohio, and 40% of the judges then sitting as trial court judges had originally made their way to the bench by gubernatorial appointment, as opposed to election. And then because of the lack of voter information, and because of the advantage to incumbents that we just discussed, these governor appointed judges will then win their re-elections and simply remain on the bench indefinitely, unless removed based upon one of the removal options we'll discuss in a moment. So simply put, job security for sitting judges is high. On the federal level, judicial positions are for life, and judges only leave the bench when they retire, die, or are impeached. As with the impeachment for other officials under the US Constitution, the House of Representatives must bring articles of impeachment, after which the person is tried by the Senate, and can only be convicted by a 2/3 vote of the Senate. Impeachment charges may be brought for quote, "treason, bribery, or other high crimes and misdemeanors" unquote. Well we've never had a Supreme Court Justice removed by the impeachment process. However in US history, there have been 15 impeachment proceedings against federal judges. Four were acquitted in the Senate, seven were convicted by the Senate, and three resigned before a Senate vote. On the state level, 45 of the 50 states also allow for the removal of judges by a state impeachment process, which largely mirrors the federal process. Another method of removal on the state level is called legislative address. Legislative address, unlike impeachment, is not limited or reserved for high crimes and misdemeanors, and may be used in cases like incompetency, senility, or partiality. State level judges may also be removed by recall. A recall begins when voters get the requisite number of signatures on a ballot. If a valid number of signatures are collected, for example 5% of the registered voters, the judge in question must then face a retention election, where voters are asked whether or not this judge should remain on the bench. Finally, there's an additional device utilized in some states to remove state level judges through specially empowered judicial conduct boards. These are boards that are created to look at potential misconduct and issues of incompetence involving all the judges within that particular state, and are vested with the power to impose disciplinary action, up to and including removal from the bench, depending on the severity of the conduct of the judge. Of course, you also have to consider in state courts where judges are elected and do not serve for life, judges could be removed through re-election and not winning the re-election. Although we know, again, from studies that incumbents tend to win their re-elections over 80% of the time when they run for re- election. So it's very hard to remove judges once on the bench. Federally, does not occur unless, again, there's a death, resignation, or impeachment. And then on the state level, we've just discussed the various ways in which judges may be removed from the bench. Although overall this is rare, and job security is incredibly high therefore, for judicial actors, both on the state and federal level.

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