I. ARE STATE COURTS MINOR FORMS OF UNITED STATES COURTS?
What is common to state and federal courts is easy to see--so easy that many lawyers, judges, and academics assume that federal formulas for review of official actions equally apply to state law. (1) The point of federalism, however, lies in the scope it leaves for differences. Our common commitment is to the rule of law, not to one common rule of law. The states' civil, criminal, and public laws diverge even though officials and citizens affirm common values like "freedom," "equality," "fairness," and "democracy." (2)
The commonalities are important, but so are the differences, which are more interesting. We should not assume one common analysis in the face of legal differences that are truly constitutional--that is to say, "constitutive" of government--and for which state courts take on responsibilities that federal courts decline. State courts also copy terms like "standing," "ripeness," and "justiciability" that are used in federal courts and taught in law schools, though they are not the words of statutes or constitutions. Here, however, the practice in the state and the federal courts is even less identical.
Consider only a few recent examples. The Nevada Supreme Court ordered the Nevada legislature to fund constitutionally mandated schools, without the required two-thirds majority vote for new taxes, if necessary. (3) In Massachusetts, the Supreme Judicial Court required the state legislature to choose either to appropriate election campaign funds required by law or to repeal the law. (4) The Illinois Supreme Court reportedly ordered the state comptroller general to resume paying judges cost-of-living increases without awaiting actual litigation. (5) The Oregon Supreme Court has "assumed" that it may, by writ of mandamus, order the legislature to fund the courts--the required adequate level presumably to be set by the court. (6) It is hard to think of a federal court issuing similar orders to Congress or its members.
About a dozen states--by constitution or statute--authorize governors or legislators to obtain advisory opinions of state court justices. (7) The Indiana Supreme Court is assigned a role in reviewing whether the governor has suffered an inability to discharge official duties. (8) More often, state courts entertain and decide disputes between state or local officials when federal courts would dismiss comparable cases for lack of "standing" or "ripeness" or some other shibboleth. Although the Supreme Court rejects taxpayer standing, state courts routinely allow individual taxpayers to challenge official acts with trivial fiscal impacts. (9) A claim that state officials spend unappropriated funds or do not publish proper accounts may find a way into a state, but not a federal, court. (10) Also, many state cases decide disputes between governors and legislators directly, often involving their respective powers, without needing a discharged official like Federal Trade Commissioner Humphrey to sue for his salary, (11) or an immigrant like Chadha to resist deportation. (12) The legality of executive vetoes is often litigated between legislators and governors, (13) as is delegation to agencies that includes legislators. (14)
Let me briefly examine three questions. What explains why state and local officials often seek court decisions on issues of governance against which federal case law has erected many doctrinal hurdles? Do the same doctrines also apply to the position of state courts? And is a difference between state and federal views of litigable issues likely to cause conflicts?
II. DISTINCTIVE ROLES OF STATE COURTS
The simplest reason why state courts are often called upon to resolve conflicts among public officials is that no one else has final authority to do it. Can we imagine a lawsuit by a president against an attorney general, like Governor Kirk Fordice's petition to the Mississippi Supreme Court to order the state's attorney general, Mike Moore, not to litigate certain claims involving Medicaid funds? …