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INFORMATION to USERS This Manuscript Has Been Reproduced from the Microfilm Master. UMI Films the Text Directly from the Origina INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UMI a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g., maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand comer and continuing from left to right in equal sections with small overlaps. Each original is also photographed in one exposure and is included in reduced form at the back of the book. Photographs included in the original manuscript have been reproduced xerographically in this copy. Higher quality 6" x 9" black and white photographic prints are available for any photographs or illustrations appearing in this copy for an additional charge. Contact UMI directly to order. A Bell & Howell Information Company 300North Zeeb Road. Ann Arbor.Ml 48106-1346 USA 313/761-4700 800/521-0600 THE JUDICIARY AND THE DUAL EXECUTIVE IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By James Brent, B.A., M.A. ***** The Ohio State University 1995 Dissertation Committee: Approved by L . Baum G. Caldeira Adviser E. Slotnick Department of Political Science UMI Number: 9525998 UMI Microform 9525998 Copyright 1995, by UMI Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. UMI 300 North Zeeb Road Ann Arbor, MI 48103 VITA May 21, 1966 Born - Lynwood, California 1988 B.A.,B.F.A., Southern Methodist University, Dallas, Texas 1992 ........................ M.A., Ohio State University, Columbus, Ohio FIELDS OF STUDY Major Field: Political Science Studies in: Judicial Politics (Laurence Baum) Legislative Politics (Samuel Patterson) Presidential Politics (John Kessel) State and Local Politics (Laurence Baum) Comparative Politics (Goldie Shabad) ii TABLE OF CONTENTS VITA .................................................. ii LIST OF TABLES ........................................ iv CHAPTER PAGE I Judicial Relations with the Executive Branch .................................... 1 II The State Attorney General as Independent Political Actor ........................... 34 III The Research Design and S e t t i n g ............... 66 IV Attorney General Agendas and Success Before Courts Collectively ...................... 105 V Contours of Support Among Individual J u s t i c e s ................................. 137 VI The Governor and Attorney General as Litigants................................. 174 VII Conclusion .................................. 202 APPENDICES A. Letter and Questionnaire Sent to State AG's Offices .............................. 214 B. Coding Rules ................................ 220 BIBLIOGRAPHY ......................................... 226 iii LIST OF TABLES TABLE PAGE 1 Dissent Rates on State Supreme Courts .... 67 2 Selection Systems and AG Power in 12 States . .71 3 Number of Amicus Briefs Filed by State AGs . .73 4 Selected Features of State Supreme Courts . 97 5 Political Control of Three State Institutions . 98 6 Statistics Describing AG Workloads ........... 99 7 Percentage of Cases in Which AG Took A Conservative Position .................... 108 8 Supreme Court Support for the Attorney G e n e r a l .................................... 115 9 AG Win Rates, Criminal vs. Non-Criminal . 116 10 AG Advantage Over Other Litigants............. 119 11 AG Win Rates, Petitioner vs. Respondent . 123 12 Parameter Estimates for Model of Individual Support for A G .............................. 125 13 Parameter Estimates for Model of Indivdual Support for AG (Including California Dummy) 131 14 Parameter Estimates for Model of Individual Support for AG (Including GOVADVAN variable).................................. 132 15 Dissent Rate on State Courts of Last Resort . 139 16 Support for the AG, Democrats vs. Republicans................................ 143 17 Support for the AG, Democrats vs. Republicans (Criminal and Non-Criminal Cases) ........ 146 iv 18 Support for the AG, Members of AG's (Governor's) Party vs. other justices ...................149 19 Support for the AG, Appointed vs. Elected J u s t i c e s .................................. 152 20 Support for the AG, Appointed Justices minus Other Justices ............................ 155 21 Parameter Estimates for Individual Model of Overall AG Success .........................158 22 Parameter Estimates for Individual Model of Overall AG Success (Includes SAMEGOV v a r i a b l e ...................................162 23 Comparison of Parameter Estimates of Two M o d e l s .....................................163 24 Parameter Estimates for Model of AG Success (Criminal and Non-criminal Cases) ........ 165 25 Correlations Between Ideological Variables . 167 26 Parameter Estimates for Models of AG Success, Controlling on Ideology .................. 168 27 Probit Estimation of Model Explaining AG Success.....................................189 28 Probit Estimation of Model Explaining Gubernatorial Success .................... 197 v CHAPTER I JUDICIAL RELATIONS WITH THE EXECUTIVE BRANCH In a system of separation of powers such as that which exists in the United States, power is distributed in order to ensure that no one governmental institution is able to dominate the others.1 While this arrangement offers the substantial benefit of helping to prevent tyranny, it can also lead to negative consequences for effective government: stagnation, inefficiency, and gridlock. Although these terms are usually mentioned in reference to executive - legislative relations, the judicial branch of government also plays an important role in the implementation of public policy. The U.S. Supreme Court may thwart the will of the executive or the legislature through its use of constitutional and statutory interpretation. A great normative debate continues to rage about the proper role of the judiciary in a democratic system of government.2 But the fact remains that courts have the power to void legislative and executive actions if they chose to wield it (see Leshy 1988). Naturally, courts do not always — nor perhaps even customarily3 — exercise this power, but the fact that they possess it means that other governmental actors 1 must take the judiciary into account. Various means must be employed to help ensure that the courts will respond positively rather than negatively. These methods may be employed before the adjudicative process — i.e. drafting of legislation or administrative rules in such a form as to pass constitutional muster, selecting judges who have the "correct" ideological or jurisprudential philosophies, etc. They may also be employed during the adjudicative process itself — i.e., through the careful screening of cases and the presentation of compelling legal arguments. They may also be employed after adjudication is complete4 — i.e. through attempts to remove judges, to restrict the jurisdiction of courts, or to redraft legislation or propose constitutional amendments to reverse "incorrect" judicial decisions. Each of these forms of executive - judicial interaction would be suitable for empirical analysis. However, as all research must, this dissertation focuses more narrowly upon one particular form of interaction between the two branches — the success of the executive branch and two of its most significant agents, the governor and state attorney general, in actual cases decided on the merits by state courts of last resort. The decision to focus on litigation was dictated partially by practical concerns: cases decided on the merits are discrete events which are reliably recorded, easily ob­ tainable, and fairly easy to quantify. But apart from this, collectively these cases are intrinsically important. A few examples, taken from the more than 8,000 cases coded for this dissertation, may serve to demonstrate the stakes involved when the executive branch appears before a state's highest tribunal. Fiscal Consequences — Appendix A reveals that among the most common types of cases involving the executive branch resolved by SSCs on the merits are cases involving tax, zoning, and workers compensation regulations and statutes. Eminent domain cases are also quite prevalent. While many of these cases involve private individuals and small businesses, often they involve major corporations and millions of dollars. Collectively, billions of dollars in governmental revenue are at stake. Other, less routine decisions can also have substantial fiscal consequences. School financing is a perennial source of contention.6 SSCs are regularly called upon to decide questions involving regulation of business (including environmental policy), labor relations, unemployment compensation, welfare, state pensions, and a host of other issues and entitlement programs which can affect a state's coffers to a substantial degree. Social
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