Courts and Fact and Courts of Law

The first issue to understand when talking about state courts is the difference between “courts of original jurisdiction” and “courts of appellate jurisdiction.”  Only the first type of court can issue “findings of fact”; the second type of court is limited to “findings of law.”

If you’ve had any first-hand dealings with courts, it was probably in a court of “original jurisdiction”; in other words, a trial court.  In this part of the country, general trial courts are usually called “district court” or “county court”.  So, if you sue somebody, are sued, or are charged with a state crime (and most crimes are state crimes; federal crimes might be wire fraud, mail fraud, drug smuggling, kidnapping across state lines, etc.), then you would likely go to court in the local county courthouse, with a trial court judge who only handles cases in a limited geographic area.  In states with County Courts, the judges rarely travel outside their home county; in states with District Courts [like North Dakota], the judges might travel within a 5-8 county area, but usually not much larger than that).  Minnesota is divided into 10 District Court regions, but each judge usually hears cases only in his/her home county, or, in the case of a particularly heavy docket (caseload), maybe the neighboring county. 

The job of the trial court is to issue a “finding of fact”; in other words, to decide what happened (does the evidence show that the accused indeed robbed the liquor store, or that the defendant [in a civil case] was negligent in not shoveling his sidewalk, thus causing someone to slip and fall?).  In most criminal cases, the standard for finding someone guilty is “beyond a reasonable doubt”; in other words, the prosecution (representing the state government) must prove “beyond a reasonable doubt” that the accused did in fact commit the crime.  In most civil cases (lawsuits), the standard is quite a bit lower: it’s “a preponderance of the evidence”.  In other words, the plaintiff (accuser) must show that a majority of the evidence indicates that the defendant (the person being sued) did something that was negligent, or slanderous, or libelous, or is in some other way liable for an injury or loss suffered by the plaintiff.  This is why O.J. Simpson was found “not guilty” of murder of criminal murder in 1995, but was found “negligent” for wrongful death just a few months later in the civil case: the standard of proof in the criminal case was a lot higher, and therefore a lot tougher to prove.

After the trial court has issued its finding (commonly called a “verdict”), the losing party may decide to try and “appeal” the ruling.  This is where courts of “appellate jurisdiction” come in: these are the intermediate-level appellate courts (usually called “Courts of Appeals”, “Circuit Courts” [be careful here: some states call their trial-level courts the Circuit Courts], “Appellate Division Courts”, etc.).  Most states have these (although a few rural states have so few appeals that they’ve found it unnecessary to have the intermediate-level appellate court).  One of the outside resources (Ballotpedia) lists the states that don't have appellate level courts: North Dakota should actually be on that list as well.  There is, in state, the possibility of a "State Appellate Court", but it's only been used a handful of times in history: almost all appeals in North Dakota go directly to the State Supreme Court.  A few states actually have two Appellate Courts; one for civil cases, and one for criminal cases [this is further confused by the fact that in Texas and Oklahoma, the Court of Criminal Appeals is the court of last resort for criminal cases, but decisions of the Court of Civil Appeals can be reviewed by the State Supreme Court]).  The purpose of appellate-level courts is to make sure that the trial courts follow the law.  This is an important distinction: only the trial court can issue a finding that a person is actually guilty or innocent (in a criminal case) or liable or not liable (in a civil case).  All an appellate court can do is make sure that the trial court applied the law correctly.  For example, let’s say that a criminal defendant is convicted based in part of evidence seized by the police from his car.  The appellate court can look at the circumstances surrounding that search and seizure and make sure that the defendant’s Fourth Amendment rights weren’t violated.  If the appellate court finds that the search was illegal, it can overturn the defendant’s conviction, and then order a new trial.   This DOES NOT mean that the defendant is found innocent (or even “not guilty”): all it means is that the trial court judge made a mistake by allowing that evidence to be admitted.  What appellate courts do is make sure that the trial courts are applying the law properly and as equally as possible in all cases: the appellate courts CANNOT just overturn the findings of fact made by a trial court. 

In all states, there is a court of last resort called (usually) the State Supreme Court.  As mentioned above, a few states only have trial courts and a Supreme Court (no intermediate level appellate court), and a few others have a Supreme Court which can only hear appeals of civil courts.  The purpose of Supreme Courts is to generally listen to appeals of the appellate courts (in other words, a second appeal, just to make sure that the other two courts got it right).  The big difference between intermediate appellate and Supreme Courts is that in most states, the intermediate appellate courts HAVE TO listen to all appeals arising out of decisions of the trial courts; whereas the Supreme Courts in most states have the right to refuse to hold a hearing on appeals.  If you appeal the decision of a trial court, the intermediate Appeals Court has to give you a hearing, and generally has to issue a decision (they can issue a summary judgment, which is a fancy way of saying that you have no case whatsoever, and that therefore the court isn’t going to give you the benefit of a full hearing or waste any more time on your appeal).  If you want to appeal the decision of the intermediate Appeals Court to the State Supreme Court, first you have to file a “petition of certiorari” (petition for certification).  The Supreme Court can decide that your case is unique enough, or important enough, to hold a hearing.  If so, they issue a “writ of certiorari” (writ of certification), and then give you a hearing date.  If not, then the final decision of the intermediate Appeals Court stands, and your case is over.

Courts with Dual Roles

If you’ve read the textbook, and now these notes, you might have about learned how in some states, trial courts might play BOTH roles.  In states with large numbers of municipal or limited jurisdiction courts (which are discussed below), then it possible that a County or District Court might serve in the role of appellate court when determining the validity of that lower court’s rulings.  This is complicated by the fact that in some southern states, there exist BOTH County courts and some sort of trial-level State Courts (District, or sometimes “Circuit” courts, which is what Alabama calls these): in those situations, the County Courts usually only have limited jurisdiction over lower-level felonies (maybe only misdemeanors) and civil suits involving smaller amounts of money (not necessarily “small-claims”, which are described in the next set of notes, but civil suits for a couple of hundred thousand dollars, as opposed to the million dollar plus cases that we see portrayed on TV).  In some of these situations, there are just two separate “original jurisdiction” systems, each dealing with different kinds of cases; in others, the State Court actually might have some limited appellate jurisdiction over the decisions of the County or local court.

Even here in our area, a defendant in Fargo Municipal Court, for example, has the right to appeal his/her conviction to the Southeast District Court (the state general trial court that includes Cass County), and then the District Court judge will re-hear the case.  In some states, the District Court is merely re-trying the case (at the request of the losing party), so the District Court is really, in that situation, merely serving as a second trial court.  In other states, the District/County Court actually serves as an extra appellate court, with limited jurisdiction over only questions of law.  In either instance, this is something of an exception, not the rule.  In the vast majority of situations, the County/District Court is serving as the court of original jurisdiction, or the “court of fact”, only.

You will also notice, in some of the outside readings, that sometimes the Appellate and Supreme Courts play "dual roles".  The book mentions that the US Constitution gave the Supreme Court some specific "original jurisdiction" authority over a few issues (cases involving foreign ambassadors and cases between two states, for example).  What that means is that in those particular cases, the Supreme Court is serving AS the trial court (and there are no appeals).  Something similar can happen in the states.  For example, the North Dakota Supreme Court has original jurisdiction in all cases involving elections, or disputes between the legislative and executive branches.  Just in 2020 alone, the Court heard four cases on those issues (two involving qualifications of candidates for office, one involving the wording of a initiated Constitutional amendment on the ballot, and one involving the Governor's claim that he could appoint a legislator to a vacant seat).  So, in those instances, there's no "trial" in the District or County courts; the dispute goes straight to an Appellate Court.  But those are somewhat rare and unusual.

Limited (Special) Jurisdiction Courts

As indicated above, MOST civil and criminal cases start off in the general trial courts.  However, most states have specialized courts which deal with very limited types of cases.  For example, if you’re going to sue somebody over a bounced check for $100 for a used couch, you’re not going to hire a $150-an-hour lawyer to sue in District Court; instead, you might pay a $10 filing fee in Small Claims Court, and then represent yourself.  Another good example is speeding and parking tickets: in rural areas of Minnesota or North Dakota, you’ll probably have to go to a regular District or County Court to contest a speeding ticket (just because there is no other local court to handle this); however, if you get a speeding or parking ticket in Fargo, the court of jurisdiction is Municipal Court, which deals with very limited types of offenses against local ordinances (things like loud parties, loose dogs, speeding with fines under a certain dollar amount, and parking).  Several of the outside resources, and the book, talk about "limited jurisdiction", "special jurisdiction", "local courts", and "problem-solving courts", such as probate, family law, small claims, juvenile justice, municipal, and drug courts.

Methods of Judicial Selection

Essentially, there are three commonly-used methods of selecting judges at the state level.  One method, used in a few states, is for the Governor to “appoint” the judges.  Some states might require the State Senate (or the entire State Legislature) to approve those appointments (just like the procedure used for Federal Judges, where the President nominates, and then the Senate confirms).  A handle of states take the appointment out of the hands of the Governor completely, and gives it to the Legislature (Virginia does this for all state judges; South Carolina and Rhode Island use this method for Supreme Court Justices).

Another common method, used in North Dakota and Minnesota (as well as a lot of other states), is for the judges to be elected by the people in competitive elections (at least, that’s the theory; in reality, many of these elections feature an incumbent, with no one running against him or her).  Most Western states which elect judges do so on a non-partisan basis (in other words, the candidates aren’t identified as Republicans or Democrats), although several of the Southern and Eastern states still conduct judicial elections with partisan (party) identifications on the ballot.

 A fairly new method (started in the 1940s, but which became popular nationally in the 1960’s) is the so-called “Missouri Plan” or “Missouri System” (because Missouri was the first to use it), sometimes also called “Merit Selection”.  Here, some sort of Judicial Nominating Commission is appointed (these are usually set up in such a way that no one official dominates who sits on the Commission: it’s common to allow the Speaker of House, the President Pro Tem of the Senate, the Governor, the Attorney General, the State Bar Association, and/or the Chief Justice of the Supreme Court to appoint a member or two each, thus spreading out the responsibility for selecting the members).  The job of the Commission is to serve as a sort of Search Committee for new judges when an opening occurs.  The Commission will look at resumes, references, and maybe even conduct interviews, and then come up with a list of finalists (usually three, but some states use a different number) for the Governor to consider.  The purpose of this system is to take the politics out of the appointment process (at least somewhat, since it’s not all that uncommon for the Commission, if the majority of members are affiliated with the Governor’s party, to give him at least one finalist that they know he would be comfortable with politically).  These sorts of Nominating Commissions do exist in states that use the election method as well (for example, both Minnesota and North Dakota have these, and they are used quite often when a judge retires or resigns before his/her term is up for re-election).  The difference is that in the actual “Missouri system”, once that judge has served for a couple of years (maybe as few as two, maybe as many as four or five), there will be a retention election for that seat.  What this means is that on the next ballot, the voters of that state (if it’s a Supreme or statewide Appellate Court seat) or district or county (if it’s a trial judge or regional Appellate Court seat) will be asked a question: “Shall Bill Smith be retained as Judge of the 13th District Court for the next six years?” (or eight years, or four, or ten, or whatever the term length is for that seat).  If a majority of the voters say “yes”, then that judge stays put.  If a majority of the voters say “no”, then there’s an opening, and the Judicial Nominating Commission starts the process all over again.  The reality is that in about 99%+ of these retention elections, the “yes” vote prevails by a huge margin; in fact, over the last 30 years or so, less than a dozen judges nationwide have lost their retention elections.  A prominent case in the late 1980s involved a pair of California State Supreme Court Justices who ruled that the death penalty was unconstitutional – a victims’ rights group targeted them for defeat at the next election, and both lost.  A more recent example occurred in 2010 when three Supreme Court Justices in Iowa were not retained (in the wake of that Court’s ruling the previous year that Iowans had a constitutional right to same-sex marriage).

As mentioned above, some states use Judicial Nominating Commissions to fill vacancies, but then there's no retention election (it's not a straight "Yes" or "No" vote, with only the incumbent's name on the ballot).  In both North Dakota and Minnesota, these are used when a judge decides to retire before his/her term is up.  The Governor gets to make an appointment, but then, when the term does expire, the new judge has to run for re-election, and it's possible that an opponent may file to run against them.  This happened in our area twice in 2018.  Judge Lucinda Jesson, who had been nominated by Minnesota's Commission on Judicial Selection, and appointed by Governor Dayton to the State Court of Appeals in 2016, had to run for re-election in 2018, and had an opponent file against her.  Supreme Court Justice Lisa Fair McEvers had gone through a similar process in 2014 (North Dakota's Judicial Nomination Committee had sent her name to Governor Dalrymple, who appointed her).  In 2018, when her term was up, she also drew an opponent.  Both incumbents, in both states, won easily.  By contrast, in 2016, when North Dakota Supreme Court Justice Dale Sandstrom retired, he did so right at the end of his 10-year term, so the Judicial Nomination Committee didn't have to do anything.  Two attorneys (one a sitting District Court judge, the other a private-practice lawyer) both filed for the seat, and faced off in the 2016 general election.  The District Court judge (now Justice Jerod Tufte) won.  So, there are instances where states are using combinations of regular elections, but using these Nominating Committees/Selection Commissions to fill seats temporarily.  That's NOT the same thing as the pure "Missouri System".