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Technology in the courts is outdated and uncoordinated.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.

E-mail a letter to the editor for publication in print: pulse@grpress.com Please keep letters to less than 200 words and include your full name, home address and phone number.

By Jeffrey Hadden

Next week, the great and the good will convene at Wayne State’s Law School for a second symposium on how judges and justices should be chosen in Michigan.

Former Michigan Supreme Court Chief Justice Cliff Taylor, who favors electing appellate judges, will be one of the speakers. Retired U.S. Supreme Court Justice Sandra Day O’Connor, who favors the appointment of judges, will be another. This convocation of the great and the good will be the second such event at the law school. An earlier sessions was held in February.

While the intentions of many at the symposium will be good – for others, not so much.

For the last couple of decades, the history of the Democratic Party in this state, its elected officials and interest groups- most particularly trial lawyers- has been one of a ceaseless focus on regaining control of the Michigan court system by any means necessary. If its members aren’t careful, this symposium and the committee that sponsors it could be turned into a part of that process.

Matthew Schneider, chief of staff and general counsel of the Michigan Supreme Court, notes in the current Wayne State Law Review that while February’s symposium was ostensibly inclusive and balanced, the organizers convened a “private, VIP dinner on the evening of the symposium that was primarily limited to a select group of individuals with a similar political background.”

That background was organized labor and the Democratic Party.

A special task force on judicial selection was formed late last year by Democratic Justice Marilyn Kelly of the Michigan Supreme Court and Republican U.S. Court of Appeals Judge James Ryan. Currently, Michigan has a hybrid system in which governors have a free hand to appoint judges or justices to fill vacancies. When judicual seats are up at regular intervals, candidates run for office, just like candidates for governor or state senator.

As a result, roughly half the judges arrive on the bench by judicial appointment; the rest win election , either by circulating nominating petitions for the appellate court or being nominated at political party conventions for the Supreme Court. The partisan nominees then run on the non-partisan ballot.

Governors can set up any kind of informal processes they want to select judges for appointment; there is no formal involvement by the lawyers trade association, the State Bar of Michigan.

The ostensible cause of the formation of the task force, according to a statement by Kelly in a press release, was “the record spending and vitriolic advertising we saw in the 2010 Michigan judicial elections, especially the Supreme Court races.”

Of course, for real vitriol, it’s hard to beat the 2008 Supreme Court race, in which Taylor, nominated by the Republicans, was accused (falsely) of being “the sleeping judge.” He was defeated, probably as the result of that ad and the fact that a number of robo-calls were made in Wayne County identifying his opponent, Wayne Circuit Judge Diane Hathaway, as a Democrat during a year in which there was a pro-Democrat wave election that swept President Barack Obama into office. The Democrats gained operational control of the court in that election, and full control when Gov. Jennifer Granholm named a Democrat in the summer of 2010. But the Republicans regained control that November, with a campaign that stressed, among other things, GOP nominee Mary Beth Kelly’s Irish last name.

With all due respect to the great and the good members of the Judicial Selection Task Force, I don’t recall hearing so much about how terrible our system of electing judges when the Supreme Court was dominated by Democrats (and I have been at The Detroit News for 40 years.) It was only in the 1990s, when John Engler began placing a number of conservatives on the Court of Appeals and Supreme Court, that the judicial selection process has become such a big issue.

In 2008, Michigan Democratic Party dumped more than $1 million into a stealth campaign for a constitutional amendment, the so-called Reform Michigan Government Now proposal, that would have knocked a number of incumbent Republicans off the bench and made it easier for the Democrats to grab control of the courts. The party’s chairman, Mark Brewer, also spent most of that year lying about the party’s role in the failed power grab. (It was ruled off the fall ballot for violating the one-purpose rule for constitutional amendments.) He will be one of the speakers at next Tuesday’s conclave, which will mostly feature people who want to move to a merit selection system.

In most of the so-called merit system plans in the various states, the nominating committee is primarily made up of members of that state’s bar association. In other words, lawyers pick the judges before whom they will practice, with no interference from regular people. Who is providing the funds for Michigan’s Judicial Selection Task Force – at least for phase 1? The State Bar of Michigan Foundation!

Michigan voters ought to be very wary of a system that takes away their right to choose judges — or directly elect those who do.

Yes, elections are messy. And yes, contributions to candidates can create a conflict-of-interest problem. But so can the in-bred favor-trading and organizational politics involved in gaining the support of a state-bar-dominated so-called “merit” system. And at least elections are held in the open, where the politics, raw as they may be, can be seen and understood by citizens.

William F. Buckley famously observed that he would rather be governed by the first 100 names in the Boston phone book than the faculty of Harvard College. The same is true for judicial elections. Michigan voters can sometimes be absent-minded in their approach to choosing judges – but I suspect they would rather make that decision for themselves than turn it over to a committee of lawyers.

Particularly since, as conservative wag once noted, every organization that does not constantly strive to stay right-wing every day will become left-wing. Ultimately, a judicial selection panel will become dominated by left-wingers and trial lawyers.

Jeffrey Hadden is deputy editorial page editor of The Detroit News and a columnist for the View.

Originally published in the Detroit News, June 7, 2011:

http://www.detnews.com/article/20110607/MIVIEW/106070384/1467/miview01/Beware-judicial-reformers

Although the results of the April 5^th Wisconsin Supreme Court election have still not been certified, the situation in Wisconsin provides many cautionary lessons for those who seek to reform Michigan’s system of judicial elections.

Many reform groups—including former Michigan Supreme Court Justice Betty Weaver—seek to impose public financing of judicial elections in Michigan.  Their theory is that publicly funded elections “take politics” out of judicial elections.  Those who wish to know whether that particular reform works need only look to Wisconsin to determine how naïve is the notion that restricting campaign financing of candidates removes the “politics” from judicial elections.  

In Wisconsin, there has been a titanic struggle over the Governor’s effort to rein in the cost of government.  His policy reforms were passed by the legislature.  Those who opposed these policies went immediately to challenge them in the courts.  The opponents also saw their chance completely to nullify those policies by seizing control of the Wisconsin Supreme Court by defeating conservative Justice Prosser.  His defeat and replacement by his challenger would have shifted the court’s majority from conservative to liberal.  Those opposing the Governor’s policy agenda dumped millions of dollars into the Wisconsin Supreme Court race in the waning weeks of the campaign to defeat Prosser.

While the “reform” regulations in Wisconsin severely limited the amount of money individual candidates like Prosser could spend on their own behalf, the independent third party groups were free to spent millions of dollars in trying to influence the election.  Thus, all the so-called Wisconsin “finance reforms” ended up achieving was making individual candidates powerless to respond to attacks by third party groups.

Here’s the reason why such all such reforms are silly:  The judiciary has seized control in America and has become a robust policy-making engine.  Picking who wears a black robe really matters. 

In such an environment, judicial selection is less about a lawyer’s credentials than deciding whether, as a judge, he will follow the rule law or not.  Ever since judges began misusing their institutional power to control the nation’s policy agenda, judicial selection has become an important question and political tool.  Thus, no “reform” is going to eliminate that political question or the incentive of political entities to try to affect judicial selection—however judicial selections are made.  

Especially now that the Michigan Supreme Court has returned to a majority of justices who follow the rule of law instead of their own personal policy preferences, discussions about “judicial reform” are going to become more robust in the coming months.  

As groups and individuals push their so-called reform agendas, Michigan citizens must ask themselves whether reformers are really seeking to stack the courts with judges who favor their own political agendas, rather than judges who will follow the rule of law.  Wisconsin’s recent Supreme Court campaign may provide some answers.

Maintaining the right to elect your judges is the only means to rein in those who have the power to deform your constitution and society.