By Paula Holmes-Greeley, Muskegon Chronicle

Published Friday, July 8, 2011

New jury rules recently approved by the Michigan Supreme Court have the potential to help those serving on juries become better informed about the cases they are hearing and more active participants in the trial — and that should lead to better informed jury decisions.

Court officials say the changes should be especially helpful during lengthy trials, when jurors may find it hard to keep track of evidence and their attention may begin to wander.

The new rules could even improve citizen response to what often is a dreaded jury duty notice.

Frustration with the jury system is long-standing. Everyone wants their day in court, but very few are happy about having to help someone else get his or hers. When people feel like they are an important part of the process, they’re more likely to want to participate. Michigan jury reforms have the potential to create that kind of courtroom atmosphere.

And that’s all good. With the current debate over the decision in the Florida murder trial of Casey Anthony, it’s important that courts work to create confidence in our jury system by giving jurors the tools to make sound decisions and not handcuffing them with archaic procedures.

Michigan is a late arrival to the jury reform process. More than 30 states were discussing changes before Michigan began looking at proposals.

When announcing the reforms June 29, Michigan Supreme Court Chief Justice Robert Young Jr. described the changes as “designed to reflect how adults learn and make decisions.”

Jurors will now be encouraged to take notes and to ask questions of the witnesses through written requests reviewed by the judge and attorneys. Jurors also will be given reference books containing witness lists, key exhibits, explanations of the law and preliminary jury instructions.

In civil trials only, jurors will be allowed to discuss evidence and testimony during breaks while the information is fresh in their minds, something that is still forbidden in criminal trials. In those trials, jurors will not be able begin deliberations until the traditional time — at the end of the trial.

It’s important to note the jury reforms were tested in Muskegon County and 11 other counties during a two-year pilot project beginning in 2008. Many area citizens participated in trials using the reforms and found them to be effective, according to Muskegon County Circuit Judge Timothy Hicks. Hicks told The Chronicle that he’s pleased that some of the new procedures he tested are being adopted.

Hicks also wrote an article, “The Jury Reform Pilot Project — The Envelope, Please,” for the June issue of the Michigan Bar Journal. The report is based on written surveys that jurors and attorneys filled out after each trial in each of the 12 courts during the two-year trial period and on Hicks’ own courtroom experience.

His verdict: Jurors liked the reforms; trial lawyers didn’t. Hicks urged support for the changes, which will take effect in September, and The Chronicle Editorial Board joins him.

The court system and the opportunity to have your case decided by a jury of your peers is one of the most revered rights of this nation. Based on the number and popularity of court related TV shows — both fictional and reality — it’s clear there’s plenty of interest in the judicial system. The problem with TV is it’s all over in 30 minutes and viewers receive plenty of background that jurors aren’t getting.

Being a juror is a very demanding job. Making it easier for jurors to understand procedure and to participate in the process can only improve the system. Allowing jurors to use the tools and approach they would employ in a normal decision-making process can only improve the outcome.

June 16, 2011

By Dan Pero

While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.”  It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:

• All Judicial Selection Methods are Political:  “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.”
• Today’s Judges Are Just Impartial Arbiters of the Law:  “In the last 40 years or so state appellate judges increasingly have made policy, not just by modifying the common law as they traditionally have, but also by, for the first time, deciding disputed moral values questions such as same sex marriage and precluding, on little more basis than they think they are wrong-headed, certain economic regulations such as tort reform, product liability reform and medical malpractice reforms of various sorts.”
• “Merit” Selection Isn’t About Merit:  “Merit selection advocates claim that it will get politics out and focus only on the applicant’s credentials….The problem however is that looking at these things alone won’t get you anywhere because almost invariably all the applicants will have good credentials … even if diligent efforts are made to use just these merit templates, it quickly becomes clear that it is reckless to say that because one applicant, many years ago, had a 3.5 GPA and another a 3.6 GPA in different law schools or that, later in life, one was a Boy Scout leader and the other a Food Bank volunteer one is “merit qualified” and the other isn’t.
• “Merit” Commissions Inevitably Focus on Politics/Ideology:  “In practice what is to be expected is that the merit selection panel, having found no actionable differences in credentials, will be focused on where the applicant is on controversial questions like tort reform, medical malpractice liability reform, sexual liberty issues, religious expression in the public square, pornography, and that perennial favorite that has dominated judicial selection matters across the country since 1973, abortion, as well as many other similarly edgy traditionally political issues that are increasingly coming before our courts.”
• The Evidence is Clear:  “… when we look at how merit selection has worked in Missouri and Tennessee it is hard to deny that they have been doing politics not merit. [Vanderbilt Law] Professor [Brian] Fitzpatrick found that judges picked by the so-called non-partisan selection commissions overwhelmingly leaned Democrat. His findings, as summarized by the Wall Street Journal on April 18th, 2009, were that ‘Since 1995 in Tennessee, 67% of appellate nominees more often voted in Democratic primaries, compared to 33% who voted more often in Republican primaries. As to Missouri, “of the roughly half of the appellate nominees who made campaign contributions some 88% donated to Democrats while only 12% went to Republicans.’ And if this data isn’t convincing that the Missouri picks were really based on politics and not merit, then how can you explain the fact that three recent Chief Justices had extremely political backgrounds. Ronnie White was a high profile legislator, Michael Wolff was a former Chief Counsel to a Governor as was Edward Robinson. These don’t sound like platonic guardians of the law to me.”
• Judicial Selection is Political Because There is a Divide over the Role of Judges:  “… what any evaluator of any selection system has to come to grips with, I believe, is the inescapable reality that there is a great divide in this country on how powerful judges should be in the making of public policy. This almost invariably will color any decision on the selection of judges including those made by merit selection committees….It is this split that explains the titanic battles of the last 25 years played out in the U.S. Senate over the confirmation of federal judges, and the fractious state supreme court justice campaigns of recent years across the nation. Clearly, these are not fights over credentials. They are fights over the direction of public policy and who will make it….To claim to somehow convert this fundamental split over the proper judicial role in a representative democracy into a polite, almost scientific, inquiry as to whether the candidate got an A or B in Contracts or volunteered enough at the United Way is an undertaking both foolish and hopeless.”
• “Merit” Selection Advocates Want to Push Courts in Their Ideological Direction:  “I believe the sophisticated folks who argue for merit selection really know that merit is just an attractive ruse and what is really going on is merit selection gives them the best chance to get judges on the bench who share their political and policy views.”
• Elections are Open, Transparent:  “… as there will be this kind of politics involved in the selection decision, however made, the only question is do we want it to occur openly and robustly in the public square with all the people deciding which candidate has merit, broadly defined to include these essentially political matters, or behind closed doors with clearly bogus proclamations that the ‘merit process is just looking for the best person using impartial measures.’”
• Election are a Safeguard Against Imperial Courts:  “Public elections, allowing all voters to decide who should be the state’s appellate judges, while not flawless, are, I believe, the best of the alternatives. Voters can decide if the candidates are too close to their backers and who has merit. Whatever else may be said in evaluating these systems, the final measure should be that elections have the virtue, to a greater degree than any other system, and surely more than merit selection does, of allowing the people to rise up and change their courts if they wish to. Such power for our citizens is entirely consistent with this nation’s approach to governance and should not be abandoned precipitously for an alternative system that casually deals them out.”
• “Merit” Selection is Under Fire:  “There are serious efforts to abolish the merit selection systems in Missouri, Kansas, Tennessee, Florida and Oklahoma and in Iowa to a lesser extent. In Arizona, the legislature just put a ballot measure on the 2012 ballot that will reduce the bar’s influence. Moreover, last year in Nevada, with Justice O’Connor’s active involvement to assist in its passage, Question 1, to replace the state’s elections system with merit selection, was overwhelmingly defeated.”

Carrie Severino over at Bench Memos does an excellent job summing up and critiquing O’Connor’s remarks here.

By Frank Beckmann

Originally published in The Detroit News, June 17, 2011

We’ve witnessed a breathtaking power grab by the Obama administration and its allies, ranging from health care, to student loans, to environmental rules, to banking regulations, among others.

Now these same proponents are taking their crusade to the state level and Michigan is their latest battlefront.

The issue is the election of state Supreme Court judges, a responsibility left to the decision of voters in 35 states including our own.

Fifteen other states use a so-called merit system for choosing judges, a process begun in Missouri in 1906 and currently under review by eight of the states, which have some misgivings about their earlier decisions to follow the lead of the “Show Me State.”

But even while some states consider fully entrusting their voters to again choose judges, Democrat party supporter George Soros — no fan of America as we know it — has launched a $45 million effort through his Open Society Institute to convince states to take away voter choice in favor of the system that allows lawyers to choose which judges are best for the electorate.

In Michigan, the campaign began late last year with the formation of a 24-member Judicial Selection Task Force, headed up by Michigan Supreme Court Justice Marilyn Kelly.

The group organized a forum at Wayne State University this week and brought in keynote speaker Sandra Day O’Connor, the former U.S. Supreme Court Justice who has become the national megaphone for the Soros effort.

Her address echoed the sentiment of a majority of the stacked list of participants who want to convince Michigan voters that the elite legal community is far more capable than average citizens of selecting judges to our highest court.

Missouri and other states that do not allow voters to choose judges to their highest court employ a basic form of selection where a group of lawyers recommends a handful of candidates for gubernatorial appointment and voters periodically are allowed to determine if those incumbents should remain on the bench during retention elections.

Three Iowa justices were voted out last year, but that’s a rarity, according to opponents of the method.

If a governor doesn’t like any of the choices, the responsibility for selection reverts to the unelected panel, with its own special interests, that made the recommendations.

O’Connor, like other supporters of the inappropriately named merit system — more appropriately called a crony system — claims that courts can only remain fair “as long as we keep political influences and cash out of the courtroom.”

Soros spokesman Bert Brandenburg has bemoaned the influence of campaign contributions in judicial races, claiming, “Much of this money is from lawyers and interested groups who appear before these candidates in court.”

But the merit system allows lawyers — who would “appear before these candidates” — to have a direct influence on the selection of the judges.

There is no way to keep politics out of judicial selection — especially if an elected governor is making the choice — under any system, none of which is perfect.

But the Michigan method of using a popular vote to choose justices is far preferable and much more transparent than a private selection process.

Nationally, the president has the responsibility of naming U.S. Supreme Court justices but his choices are thoroughly vetted by the Senate, whose members are elected by the people.

The Soros/O’Connor/Kelly plan to strip Michigan citizens of their franchise offers no such safeguard.

Rather than removing politics from the system, it simply cloaks the politics in secrecy and empowers a select few to limit the field of candidates for the most important court in the state.

Michigan voters should be prepared to witness an accelerated campaign by Soros and his surrogates to change state law and bring their unmeritorious scheme to our state.

This is a campaign that will not be easily defeated.

Proponents of removing voter choice were defeated in Nevada in November.

It was their third effort to change that state’s laws.

One hopes Michigan voters will make the same decision when they’re eventually asked to do the same.

Frank Beckmann is host of “The Frank Beckmann Show” on WJR-AM (760) from 9 a.m.-noon Monday-Friday. Email comments to letters@detnews.com.

By The Grand Rapids Press Editorial Board
June 9, 2011

That mantra in Michigan right now — reinvention — should include the court system. A good blueprint for change can be found in a report released this spring by the State Bar of Michigan’s Judicial Crossroads Task Force.

The report offers some recommendations on how to restructure an antiquated justice system to meet needs. Those recommendations include a reduction and redistribution of judges, a statewide technology system, a consolidation of court functions and a revamping of the broken method of defending the poor.

The aim is to save money — something judges and lawyers understand has to be done — better serve the public and provide for the needs of a shifting and aging population. The goals mesh with those of Michigan Supreme Court Chief Justice Robert Young, who has advocated shrinking the number of judges. That point, in particular, should be heeded by the Legislature, which in the past has been reticent to recommend judicial downsizing.

Each judge costs the state about $175,000 a year. Local taxpayers pay about $300,000 on top of that. Recommendations due in August from the State Court Administrative Office — an arm of the Supreme Court — will likely confirm that some parts of the state have too many judges. Past reports from the office have said as much, though changes have not been made because lawmakers typically protect courts in their own districts.

Over the next five to seven years, about 50 percent of the state’s judiciary will retire. That will provide an opportunity to assess and decrease the number of judges through attrition. The last Court Administrative Office report, issued in 2009, recommend Michigan shed 14 of its nearly 600 trial court judges and reduce by four the 28 Appeals Court judgeships.

The next report may recommend even deeper cuts. Michigan lost population over the past decade. Considerable population shifting has occurred within the state. Some areas don’t need the judges they have, based on caseload and the number of people being served.

Technology in the courts is outdated and uncoordinated. Lawyers and citizens travel to and from buildings to file papers and read hard-copy files that should be accessible remotely via secure computers. Defendants are dragged to and from court in police cars when some of their proceedings could be conducted via video conferencing. Translation for a growing number of non-English speaking defendants could be handled with greater efficiency and uniformity through videoconferencing, too. Changing these antiquated technologies would require investment. But it would be a good investment over time because of increased convenience and reduced burdens for court employees.

The report points out the duplication in the current court system and the opportunities to consolidate functions. Barry County consolidated court functions and was able to save up to 15 percent on costs.

One key recommendation that should not be overlooked by lawmakers is the need to fundamentally change the system for defending poor people. The U.S. Constitution grants indigent defendants the right to representation. However, a county-by-county system in the state leaves the quality of that representation far too dependent on local whims. That costs taxpayers money through increased appeals and proceedings, and is far more costly to wrongly convicted defendants. The report recommends statewide standards for indigent public defense. The Legislature should enact such a system.

Gov. Rick Snyder and lawmakers have undertaken reforms in education, local government and other spheres. This report makes a compelling case for bringing the same judgment to bear on Michigan’s courts.

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