LEAGUE OF WOMEN VOTERS OF MICHIGAN STUDY COMPLETED: 2002 AN OVERVIEW OF MICHIGAN COURTS

LEAGUE OF WOMEN VOTERS OF MICHIGAN STUDY COMPLETED: 2002 AN OVERVIEW OF MICHIGAN COURTS There are two judicial systems that affect Michigan citizens. The first is the federal system, which includes federal district courts, bankruptcy courts, circuit courts of appeal and the U.S. Supreme Court. Federal judges are appointed by the President with the advice and consent of the U.S. Senate, for a life term. Some specialized federal judges are appointed by the President for a term of 14 years and the appointments are renewable. No federal judges are elected. The jurisdiction of the federal courts is provided in the U.S. Constitution. The other judicial system is the state courts. The various levels of the courts are set out in Article VI of the Michigan Constitution of 1963. Organization of Michigan Courts The highest level of court in Michigan is the Supreme Court. There are seven justices, (1) who serve eight-year terms on a staggered basis. The justices select the Chief Justice among themselves.(2) The Supreme Court hears cases appealed to it from other state courts, primarily the Court of Appeals. The Supreme Court agrees to hear only a small number of cases every year from the thousands that apply to be heard. In 2000, the Court heard just 71 cases,(3) percent of those that had applied to be heard.3 The decision of the lower court stands if the Supreme Court refuses to hear an appeal. Cases are usually heard in Lansing. The Court also supervises the lower courts and establishes rules for practice and procedure in all courts. The Court of Appeals (COA) was not established until the 1963 Constitution. The COA judges are elected from districts and serve six-year terms. Currently there are four districts and twenty-eight judges.(4) The number of COA districts, counties included in each and number of judges in each is left to the legislature to determine. The COA hears appeals in both civil and criminal cases. Because the Supreme Court hears so few decisions on appeal, the COA is the last court of resort for the vast majority of cases and this makes it quite important. There were 7,460 cases filed with the COA in 2000.(5) Cases are heard by a panel of three judges, chosen at random from the twenty-eight. Even though judges are elected by district, they can and do serve on a panel in any of the districts. Cases are heard in Detroit, Grand Rapids, Lansing, and Marquette. Circuit courts are the primary trial courts in Michigan. Each circuit covers at least one county. Currently there are fifty-seven circuits (Michigan has eighty-three counties) and 210 judges, who serve six-year terms.(6) Circuit courts have existed in some form since Michigan was a territory. Currently, they have jurisdiction over all civil cases involving more than $25,000 and over criminal cases involving felonies and serious 1

misdemeanors. The new family division (created in 1998) hears divorce cases and related matters, juvenile offenses, abuse and neglect cases, adoptions, etc. Many of these matters were previously heard in probate court. Probate courts also were created in territorial times. Almost every county has its own probate court except for a few areas in central Michigan and northern Michigan. There are seventy-eight probate courts and 106 judges, who serve six-year terms.(7) After the creation of the family division in circuit court in 1998, probate court lost jurisdiction over juvenile offenders and dependents. Today they retain jurisdiction over estates, trusts, guardianships, and involuntary commitment of the mentally ill. In some counties, probate court judges serve in the family division where it is structured as a joint division between circuit and probate court. The 1998 legislation left the organization of the family division up to each circuit to decide for itself. District courts were created by the legislature in 1968, following the mandate in the 1963 Constitution that justices of the peace be eliminated within five years after adoption of the constitution and replaced with something else.(8)8 They have exclusive jurisdiction over civil litigation up to $25,000 and all misdemeanors where the maximum penalty is less than one year in jail. They also handle arraignments, setting of bail and preliminary examinations in felony cases. In addition, they handle minor matters such as tenant//landlord disputes and traffic violations. Currently there are 104 district courts in the state, with 259 judges in all. (9) There are two judicial systems that affect Michigan citizens. The first is the federal system, which includes federal district courts, bankruptcy courts, circuit courts of appeal and the U.S. Supreme Court. Federal judges are appointed by the President with the advice and consent of the U.S. Senate, for a life term. Some specialized federal judges are appointed by the President for a term of 14 years and the appointments are renewable. No federal judges are elected. The jurisdiction of the federal courts is provided in the U.S. Constitution. The other judicial system is the state courts. The various levels of the courts are set out in Article VI of the Michigan Constitution of 1963. Current Judicial Selection in Michigan Candidates for judicial office must be registered to vote in Michigan, admitted to the practice of law for at least five years, and under seventy years of age.(10) Judicial elections are held in the even-numbered years when the state elections are held. An incumbent Supreme Court justice may file an affidavit of candidacy, asking to be placed on the ballot. Candidates for an open seat or who want to run against an incumbent on the Supreme Court are nominated at party conventions in the summer of the even-numbered years. Incumbents may follow this procedure, as well, if they desire. Alternatively, a candidate for the Supreme Court may circulate petitions and collect at least 30,000 signatures to get their name on the ballot.(11) However candidates get to the ballot, they then run on the nonpartisan ballot in the November general election. 2

Elections for all other levels of court are entirely nonpartisan. Candidates must submit nominating petitions with sufficient signatures to get on the ballot, unless they are the incumbents. In the latter case, they may file an affidavit of candidacy as mentioned above. If there is more than twice the number of candidates as there are openings on a particular court, a primary is held in August. The top two candidates for each seat move on to the November general election. In addition to easy ballot access, incumbent justices and judges enjoy another major advantage over their challengers. The word "INCUMBENT" is placed next to their name on the ballot. This designation is permitted only for judicial offices. Vacancies may occur on the bench through death, resignation or removal from office. Judges may be removed "for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice."(12) The Judicial Tenure Commission was created by a 1968 amendment to the Constitution. It is responsible for investigating complaints of alleged incapacity and alleged violations of the Code of Judicial Conduct or the Rules of Personal Responsibility. The Commission recommends appropriate disciplinary action (be it censure, suspension with or without pay, retirement or removal), if any, to the state Supreme Court, which makes the final decision. The Court is not obliged to follow the Commission's recommendation and may impose a greater or lesser penalty. Although there is some concern about the judicial system disciplining its own members, this system does assure judicial independence from the other two branches of government. If a vacancy should occur between elections, the governor appoints a successor who serves until January 1 following the next general election. At that election a successor is elected to the remainder of the term. In 1994, 45 percent of the sitting judges at all levels were originally appointed by the governor.(13) This is the most recent data available. There is no procedure mandated by law for how the governor might choose an appointee. The governor is not obligated to consult with any person or organization and is not required to obtain the advice and consent of the Senate. By tradition, governors have often consulted the Judicial Qualifications Committee of the State Bar of Michigan. This committee reviews the qualifications of each applicant for a judicial vacancy, interviews them and interviews others who have worked with them. The committee then rates the applicants as exceptionally well qualified, well qualified, qualified, not qualified, or not qualified because of lack of experience. History of Judicial Selection in Michigan Judges and justices have been chosen by election for a long time in Michigan--since the 1850 Constitution was adopted. Prior to that, the state's original constitution called for gubernatorial appointment. For ninety years, judges and justices were elected on a partisan basis. In the 1930s there was growing interest in trying to take the politics out of judicial elections. The first attempt to amend the 1908 Constitution to provide for nonpartisan judicial elections occurred in 1934, but was rejected by the voters. Four years later, another proposed amendment called for the nonpartisan nomination and 3

appointment of Supreme Court justices. This was defeated by an even larger margin. Finally, in March 1939 the voters approved an amendment calling again for nonpartisan judicial elections. This was reaffirmed in the 1963 Constitution. Since 1908, state law has allowed the political parties to nominate candidates for the Supreme Court at their conventions. Michigan is the only state where Supreme Court candidates are nominated by the parties, but then run on the nonpartisan ballot. The incumbent designation on the ballot also originated in the 1939 amendment to the 1908 Constitution, as another way to take politics out of judicial elections. The rationale was that this would provide stability in the judiciary because the voters would prefer the incumbent. The 1963 Constitution, however, provided that only judicial officials who had been elected could have that designation. In other words, appointed judges and justices would not have the coveted designation. This was consistent with the Convention doing away with gubernatorial appointment for vacancies (see below). The voters reversed this change in 1968 so that once again all incumbent judicial officials have that designation on the ballot. Vacancies have not always been filled by gubernatorial appointment. That method was used until the 1963 Constitution mandated they be filled by special elections. The Constitutional Convention felt strongly that this change was necessary to maintain consistency that the state should have an elected judiciary. Here are some comments from the Convention: The present system of appointment by the governor to fill vacancies, bestowing on the appointee the incumbency designation, has had an overwhelming tendency to insure the election of the appointee. This has created in effect an appointive judiciary. However, voters also reversed this change in the 1968 amendments to the constitution and restored gubernatorial appointment for vacancies. Other reforms that did find their way into the 1963 Constitution, and which remain there today, included * Allowing incumbent Supreme Court justices to bypass party nomination, if they so desire, by filing an affidavit of incumbency (it was hoped this would lessen the partisan nature of the "nonpartisan" Supreme Court elections) * Setting a maximum age (70) for judicial candidates * Moving judicial elections from the spring to the fall general election * Extending the privilege of the affidavit of candidacy to judges at all levels. It is fairly common in Michigan that candidates for elective positions are interviewed, questioned and invited to various forums and panels (many organized by local units of the League of Women Voters) in an effort to provide information to voters. State judicial canons have long prohibited judicial candidates from discussing their views on issues, because they might subsequently have to rule upon a case that involved similar issues. However, in June 2002, the U.S. Supreme Court in deciding the case of Republican Party of Minnesota v. White, held that a rule which prohibited judicial candidates from discussing issues violated the First Amendment of the U.S. Constitution. The Court made it clear that candidates for judicial appointments (in states which do not elect some or all judges) were not subject to this ruling and thus could be prohibited from issue discussions. The 2002 election will be the first to witness what effect this ruling has on the conduct of judicial candidates. 4

Fundraising by Judicial Candidates In addition to following all the rules for fundraising set out in the Michigan Campaign Finance Act,(14) judicial candidates are also expected to follow Canon 7 of the Michigan Code of Judicial Conduct, adopted by the Michigan Supreme Court. If candidates do not, they are subject to judicial discipline. In brief, Canon 7 says that a judicial candidate may not personally solicit or accept campaign contributions, but may establish a committee to solicit and manage campaign funds. This committee may not start soliciting funds until February 15 of election year and cannot solicit after the general election. After the election, any excess funds must be returned to contributors or given to the client security fund of the State Bar of Michigan by January 1 following the election. In summary, unlike other candidates, a judicial candidate has only a ninemonth window in which to raise money before the November election and may not carry over any remaining funds. Although there are no special restrictions on who may contribute to judicial candidates in state law, the Michigan Code of Judicial Conduct has long prohibited judicial campaign committees from soliciting more than $100 from lawyers. Thus, it is quite common for lawyers to make just a $100 contribution to a judicial candidate. Since state law does not require disclosure of occupation/employer for contributions of that size, it is difficult to identify all the contributors who are lawyers, however. Of course, many lawyers voluntarily give much more than that, up to the maximum of $3,400 allowed by state law for appellate court candidates and circuit and probate judicial candidates in the seven largest counties (Genesee, Ingham, Kent, Macomb, Oakland, Washtenaw and Wayne). (1) There were eight justices from the early 1900s until the Constitution of 1963 was adopted. (2) Prior to the 1963 Constitution, the Chief Justice was elected as such by the people. (3) Michigan Manual, 2001-2002. MI Legislative Service Bureau. p. 574. (Available online at http://michiganlegislature.org/mileg.asp?page=mm2001-2002) (4) Ibid. p. 589. (5) Ibid. p. 585. (6) Ibid. p. 609. (7) Ibid. p. 613. (8) The Constitutional Convention itself could not decide what the new courts should look like. (9) Michigan Manual, 2001-2002. p. 616. (10) A justice who turns 70 during his or her term is allowed to finish out that term, but may not then run for reelection. (11) Bureau of Elections website: http://www.michigan.gov/sos/0,1607,7-127- 1633_8716---,00.html (12) Michigan Constitution of 1963, Art. VI, Sec. 30. (13) Interim Report of the Standing Committee on Judicial Selection of the State Bar of Michigan, September 1996. (14) The MCFA can be found at: http://www.michiganlegislature.org/law/ 5

METHODS OF JUDICIAL SELECTION "No one can reasonably dispute the importance of an independent and qualified judiciary to insure fairness in our justice system and to protect the constitutional rights and liberties of all Americans." (1) Jerome J. Shestack, President American Bar Association (1997-1998) Current Methods (2) "Methods of selection of state court judges vary widely among the states, but fall generally into five broad categories. Some states use different methods to select judges at different court levels. None of these methods has only one form--each state has its own unique variations. Legislative Appointment: Only one state (Virginia) retains this method of judicial selection, in which the legislature has sole appointment power for trial and appellate court judges, with no input from a nominating commission. Once more widely relied upon, the role of state legislatures in most jurisdictions is now either nonexistent, or limited to confirmation of nominees chosen in another manner. Executive Appointment: There are currently a small number of states (3) in which the Governor has virtually unfettered judicial appointment power. In those states, the initial selection is made with no formal input from any source. In most instances, nominees must be confirmed by the legislature or some other body.in many more states, Governors are empowered to fill vacancies on the bench. These are appointments only for unexpired terms. Such appointments, although outside the regular selection process, provide opportunity for control by the executive, as appointees attain the advantages of incumbency as described in greater detail below. Nonpartisan Election: The names of judicial candidates running under a nonpartisan system appear on the ballot without party labels. There may be a primary election, followed by a general election, but in no instance is an individual directly identified with a political party. Partisan Election: In a partisan election, judicial candidates usually run initially in a party primary to gain nomination. Subsequently, voters participate in a general election, in which a candidate's party affiliation is indicated on the ballot. [Note: Michigan is unique is having truly nonpartisan elections for the lower courts and a combination for the Supreme Court. Party conventions nominate candidates for the Supreme Court and they then run on the nonpartisan ballot.] Merit Selection: This method is sometimes referred to as the "Missouri Plan," or the "Modified Missouri Plan." Although there are as many variations as states which employ this general means of selection, certain characteristics are fairly standard. A nominating commission selects several candidates to fill a judicial vacancy, and an elected official (usually the governor) appoints one of the names from that list. There is significant variation regarding the size and composition of nominating commissions. Most include lawyers selected by their peers, and non-lawyers selected by the governor. Judges are part of this body in some instances. In certain states, a specified number of representatives of each political party must be included. Nominating commissions vary 6

in size, and the length and limit of commissioners' terms also differ from state to state. Some states have separate commissions for different courts or levels of court. Legislative confirmation of gubernatorial appointees is required in some, but not all, merit selection states. The manner in which nominating commissions receive the names of potential candidates, the time within which they are required to make their selections, and the number of names transmitted to the appointing entity are also details which are not universal. Most merit selection plans include the use of a retention election. After the selected judge has served for a specified period, such an election is held. The incumbent's name is placed on the ballot, and voters are asked to decide whether that judge should remain on the bench--generally through a simple "yes" or "no" vote. There is no opponent--no other name on the ballot. If voters choose not to retain a particular individual, that seat is declared vacant and is usually filled by the same merit selection process as was originally used in that jurisdiction." Advantages and Disadvantages of Each Method (4) Legislative Appointment: One advantage of this method is that it overcomes the problem of voter apathy and provides for indirect accountability: if voters do not approve of the performance of the appointees, they can vote their legislators out of office. On the other hand, it is questionable whether legislators are any better than the electorate at selecting the best judges. Also, former legislators may have the "inside track" when a vacancy occurs. Executive Appointment: (without some kind of nominating commission). This system removes potential judges from the pitfalls of a political campaign. The governor is in a better position to assess potential judges because he/she has access to many sources of information and can make a reasoned decision. On the other hand, the governor may appoint anyone he/she wants, whether or not they are truly qualified. There is a high potential for political cronyism because there are no checks and balances. States that use this system seem to have the highest number of judges being selected from already active politicians. These judges tend to be reappointed, leading essentially to lifetime tenures, with no accountability to the public for the quality of their work. Election: The chief advantage of selecting judges by election is that they are accountable to the people. There are many disadvantages, however. Voters usually have scant information with which to make a reasoned decision as to which candidate is the best. Candidates may win solely because of a familiar-sounding name. In Michigan, candidates with Irish surnames have had great success in judicial elections. In partisan elections, voters know which party the candidate belongs to and may make inferences from that association. However, such elections could then be decided on national issues or candidates that have no bearing on the judicial election itself. In nonpartisan elections, parties may be involved behind the scenes without knowledge of the average voter. In either case, judicial elections usually have a lower turnout than other races on the ballot. Another disadvantage is the time and expense involved for the candidates. Ethical dilemmas arise when lawyers, who may appear before a successful judicial candidate in court, are also large contributors. Finally, incumbent judges have a tremendous advantage in subsequent elections, especially in states such as Michigan 7

where they are so designated on the ballot. However, some see the latter as an advantage because it provides more stability in the judiciary and more judicial independence. Merit Selection: This system's major advantage is the greater chance of quality assurance than with the other methods. The nominating commission has the opportunity to learn a lot about the candidates, will probably interview them, and subjects each to a thorough review. Accountability is available through a retention election, although such elections are not usually as expensive or time-consuming as other judicial elections. Overall, there is far less likelihood of political influence in the process. The disadvantages include removing the electorate from the selection process. Voter turnout in retention elections is usually even lower than in other types of judicial elections. Some opponents to the system say there is still too much opportunity for politics to intervene--perhaps not in the selection but in the Governor's appointments to the nominating commission. There is concern by minorities and women that merit selection may result in a less diverse judiciary than with elections, although the research on this is mixed. Finally, retention elections recently have taken on some of the worst characteristics of other judicial elections: the incumbent may have to raise large sums of money, possibly from future litigants and/or their lawyers, and special interest groups may mount nasty, but effective, campaigns to oust an incumbent who has made decisions unfavorable to their interests. Footnotes: (1) Judicial Selection: The Process of Choosing Judges, American Bar Association, 1999. p.6. (2) Ibid. pp. 7-11 (verbatim). (3) California, Maine, New Hampshire, New Jersey (4) Judicial Selection: The Process of Choosing Judges, pp. 12-15. Also, Interim Report of the Standing Committee on Judicial Selection of the State Bar of Michigan, September 1996.METHODS OF JUDICIAL SELECTION 8