Lansing district judge sends heavyweights to fight AG’s ouster attempt

Over the weekend, The Lansing State Journal reported that former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan are going up against Michigan Attorney General Bill Schuette, who is seeking to oust Lansing District Court Judge Hugh Clarke Jr.

Schuette, you’ll recall, says Clarke is illegally occupying his judicial office: “Schuette seeks to unseat Lansing district judge.”

Former Gov. Jennifer Granholm appointed Clarke in December to fill a vacancy created by Lansing District Court Judge Amy Krause’s appointment to the Michigan Court of Appeals.

According to Schuette, Clarke’s appointment could only last until the end of Krause’s term of office, which ended at noon, Jan. 1.

Krause had been re-elected to the district court in November. Schuette’s position is that Clarke can’t serve the term to which Krause had been re-elected but had not begun serving when she was appointed to the COA.

Brennan and Nolan want the Michigan Supreme Court to bypass the COA, which has original jurisdiction of Schuette’s quo warranto motion to unseat Clarke.

From The LSJ:

Schuette, a Republican who took office Jan. 1, says Clarke’s appointment should have ended on Jan. 1. He further argues that Gov. Rick Snyder has the legal authority to fill the seat once held by Krause.

In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”

Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.

“We stand by our position. It’s a matter of principle and precedent based on a previous case involving a Supreme Court justice,” said John Sellek, a spokesman for Schuette. Sellek added that due to the lateness of the filings Friday, the Attorney General’s Office had not had a chance to look them over.

In the meantime, Clarke continues to preside over his court.

“I have a parking place. I’m going to work every day, working for the people of Michigan,” Clarke told The LSJ.

Ingham Circuit Judge Giddings reflects on retirement

Judge James Giddings, of the Ingham County Circuit Court, is retiring because he’s bumping against the state constitutional age-70 roadblock.

He says it might be time to rethink the age limit for holding judicial office.

In a conversation with Kyle Melinn of the Lansing-based CityPulse, Giddings said he’s been on the bench almost 40 years.

Giddings said he still has enough in him to keep going but isn’t sure he would have taken another ride on the electoral rollercoaster even without the constitutional barrier.

Realistically, being 70 years old today isn’t like being 70 years old back in the 1960s, when the latest draft of the Constitution was written, Giddings noted. People are living longer, more healthy lives. At age 70, Giddings said he could continue doing the job. Maybe at age 75, things would be different, he said. He’ll never know.

But if voters this November vote “yes” on Proposal 1 and call for a new constitutional convention to re-write Michigan’s guiding document, Giddings would suggest that delegates lift the current cap to more accurately reflect the changing times, be it 75 or 80.

Giddings, who frequently clashed with former governor John Engler, addressed Engler’s frequent claims that Giddings was a judicial activist.

“If anyone examined the rulings, they’d know I followed the law,” Giddings said. “Give him credit, John Engler was effective. But he used things I ruled on to give him stature with some constituencies.”

Engler claimed at the time that Giddings was a “judicial activist.” Now, Giddings accurately pointed out, Engler’s own judicial appointees, especially at the Supreme Court level, are being painted with the same brush.

MSC’s Taylor target of new Democratic TV ad

Michigan Democratic Party Chair Mark Brewer, unfazed by his party’s lack of a declared Michigan Supreme Court candidate for the November election, has rolled out a television ad aimed at achieving one of his stated goals for this election cycle: defeating Chief Justice Clifford Taylor.

The 30-second spot, “What Will Cliff Taylor Do?“, urges Taylor not to block a ballot proposal that, among other things, cuts salaries, limits retirement benefits and requires financial disclosures for elected officials of all three branches of government, including the presumably self-interested chief justice.

“Special interests are willing to go all the way to the Michigan Supreme Court to block your right to vote for change,” warns the ad’s voice-over announcer.

“Justice Taylor should let the voters decide,” she concludes.

Brewer is correctly anticipating legal challenges to the proposal, which amends the state constitution in dozens of ways and is being pushed by Reform Michigan Government Now! He’s hoping to hit a public relations home run every time a judge rules against letting the proposal on the ballot.

He’s touting the notion that there’s an ethics problem for any judge who tries to block the proposal, which, it’s been widely reported, Brewer has had a heavy hand in crafting.

But Brewer has a lot more on his mind than the situational ethics of those who might pass judgment on a plan that would let voters cut their pay.

The proposal contains the means for Brewer to accomplish his not-so-hidden agenda of shifting the high court’s balance of power. As Detroit Free Press Deputy Editorial Page Editor Stephen Henderson astutely observed in last Sunday’s editions, the proposal has “a kind of court-packing by reduction” feature.

If passed, the supreme court’s bench would shrink from seven justices to five. The court’s two most junior justices, Republican appointees Robert P. Young and Stephen J. Markman, would have to step down. That would leave the court with Taylor and Justice Maura Corrigan, who usually champion the Republican viewpoint. Justice Elizabeth A. Weaver has been in the Republicans’ corner in the past. But, to their great annoyance, she has been a vocal maverick ever since the other court Republicans refused to back her for a second two-year term as chief justice. The Democrats would have two justices they can usually count on, Michael F. Cavanagh and Marilyn Kelly.

If the proposal reaches the high court, if Taylor votes with a majority to keep the proposal off the ballot, and if Brewer successfully pins the blame on Taylor (the television ad lays the groundwork for that), then, the thinking goes, the Democrats can cast Taylor as the villain and capture his seat on the court in November. This would leave Weaver as a swing vote to be wooed by both sides of a seven-justice court. It wouldn’t be exactly the situation Brewer was looking for, but he’d be able to live with it.

And if the court unanimously rules against the proposal? This is not a good result for Brewer. Any criticism of Taylor can be applied with equal force to everyone on the court. But in similar situations in the past, Brewer has plowed right ahead. See, Case selection is important: Democratic Party chair slams chief justice for decisions joined by Dems, detractor”, Michigan Lawyers Weekly, June 16, 2008.

If Taylor votes with a minority to keep the proposal off the ballot, Brewer gets a chance at a five-justice court and a solid three-Democrat majority. If the voters approve the proposal and reject Taylor in favor of a yet-to-be-named Democratic player, then Brewer will accomplish something he and his team have been dreaming about for years – a major philosophical change in the high court’s makeup.

And he’ll have done it by convincing voters to downsize the court with a designer amendment to the Michigan Constitution.

Despite what the ad might lead voters to believe, this is about a lot more than just pay cuts.

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons’ proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

“In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office,” says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, “Democratic Renewal – A Call to Action from America’s Heartland”. The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book’s Michigan section. Among Johnson’s proposals:

  • Ethics law should be extended to cover the legislative and judicial branches of government.

  • Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  • The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver’s reform plan, which she floated on her private web site over the year-end holidays. Weaver’s proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

Weaver proposes reform for selection, election of MSC justices

With little fanfare, Michigan Supreme Court Justice Elizabeth Weaver last week floated a proposal on her privately funded website that calls for sweeping changes in the way MSC justices are selected and elected.

Weaver proposes a constitutional amendment that would limit appointments or elections to the high court to one eight-year term.

In addition, Weaver would end the practice of having political parties nominate candidates for a supposedly nonpartisan judicial ballot. Supreme Court candidates would have to scrounge for signatures to get on the ballot, just as all other judicial candidates must do. Weaver would take soft money out of play by requiring publicly funded campaigns.

Another of Weaver’s proposed constitutional amendments would require the Governor to act with Michigan Senate’s advice and consent when filling vacancies. The Governor would also be required to consider non-binding recommendations from a judicial qualifications committee.

Weaver, as evidenced by the introductory comments to her proposals, is frustrated with the way the “gang of four,” her derisive label for Chief Justice Clifford Taylor and Justices Maura Corrigan, Robert Young and Stephen Markman, made it to the state’s top court:

The problem with the Governor’s unchecked appointment power to create power blocs on the Supreme Court cannot be overemphasized. Three of the seven justices now on the Michigan Supreme Court were appointed to fill vacancies on the Court by then-Governor Engler: Chief Justice Taylor, Justice Young, and Justice Markman. Those three Justices, plus Justice Corrigan, were first appointed to the Court of Appeals by then-Governor Engler to fill vacancies on that court. Justice Corrigan was openly and substantially supported by Governor Engler when she campaigned for a seat on the Supreme Court. It is significant, and troubling, that when Governor Engler appointed these 4 justices, not one of them had any prior trial judge experience.

Voter photo ID law gets first test next Tuesday

Michigan’s not-so-new law requiring voters to show photo identification gets its first test this Tuesday, Nov. 6, in local elections around the state.

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The long, conflicting road to a photo ID law

The law was one of several 1996 amendments to the Michigan Election Law. Before the law took effect, then-Attorney General Frank Kelly issued an opinion, in which he said the photo ID requirement violated the Equal Protection Clause.

The law lay dormant for eight years. In 2005, it was revived, unchanged, by other election law amendments, effective Jan. 1, 2007.

With Frank Kelly’s opinion lurking in the background, the House asked the Michigan Supreme Court to answer this question in an advisory opinion: “Do the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution?”

In an order issued in April 2006, on a 5-2 vote, the question the court chose to answer was, “Do the photo identification requirements of Section 523 of 2005 PA 71, MCL 168.523, on their face, violate either the Michigan Constitution or the United States Constitution?”

Justice Marilyn Kelly dissented for two reasons. First, the House framed the question too broadly. Second, the question the majority agreed to answer was not the question asked. Justice Michael Cavanagh also dissented.

The court issued a 5-2 opinion, which held “that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v Takushi.”

Information from “Michigan’s Photo ID Requirement for Voters”

If you don’t have such ID, or you do and you left it at home, you can still get a ballot but you must sign an affidavit to that effect.

There’s a stiff penalty for lying about the status of your ID, or the lack of one: you could be convicted of perjury, pay a fine of up to $1,000 or spend up to five years in prison, or both.

They’re not fooling around.

What’s acceptable photo ID? The Secretary of State’s office has provided a helpful list.

There’s been much speculation about what effect the law will have on voter participation and whether it prevent the evil it was designed to cure – election fraud.

Here’s the take of Suzanne Lowe, Michigan Senate Bill Analysis Coordinator, in her article, “Michigan’s Photo ID Requirement for Voters.” It’s in the latest issue of “State Notes: Topics of Legislative Interest.”

According to the Secretary of State’s office, approximately 370,000 registered voters in Michigan (or about 5.0 percent of all registered voters in the State) do not have either a driver license or an official State identification card. There are no data on the number of voters who also do not have any of the other types of photo ID that the Secretary of State considers acceptable. Of the voters who do have photo ID, there is no way of knowing how many will not bring it to the polls because they forget to or do not know about the law’s requirement. It also is not possible to predict how many voters who do not have photo ID, or have it but do not bring it to the polls, will be unable to sign an affidavit because they cannot read or understand the document, or will be unwilling to sign one because they feel intimidated or embarrassed or simply do not want to take the time.

Whether the photo ID requirement actually represents a “barrier to the ballot box,” as critics contend, may be known only after the requirement is implemented, and perhaps only after it is enforced during the November 2008 general election. Whether the requirement serves to prevent voter fraud may never be know. Although there have been convictions in Michigan for illegal activity during voter registration drives, there does not appear to be any evidence of the type of in-person polling place voter impersonation that the photo ID requirement might deter. As some contend, this may be because of the difficulty of detecting such activity and catching the offenders. On the other hand, to the extent that such fraud does occur, it is questionable whether the penalty for signing a false affidavit will deter someone who is willing to commit a felony by voting under a false name or impersonating another elector.

MSC recusal standards: constitutional amendment being drafted

A state constitutional amendment that would require Michigan Supreme Court justices to recuse themselves “in any proceeding in which the judge’s impartiality might reasonably be questioned” is in the works at the request of Rep. Mark Meadows, (D-East Lansing).

This would include situations where campaign contributions to a justice from a party’s lawyer or the lawyer’s law firm exceed a specified amount over a given time period.

The amendment is being patterned after Rule 2.11(A)(4) of the American Bar Association’s (ABA) Model Code of Judicial Conduct, according to a spokesperson from Meadows’ office.

Meadows, a member of the House Judiciary Committee, asked the Legislative Service Bureau to prepare the amendment earlier this month, after the committee took testimony from Rich Robinson of the Michigan Campaign Finance Network (MCFN).

The MCFN has been making its case for the MSC to develop recusal standards when justices, litigants and money are intertwined. This is a suggestion the court is not likely to act on any time soon. See, Michigan Lawyer: Campaign cash and recusal: a lost cause in the MSC?

Public financing of MSC election campaigns has also been a long-standing priority for the MCFN. See, Michigan Lawyer: Justices, money, elections and recusal In his testimony, Robinson told the committee that public financing of MSC election campaigns would eliminate “much of the cause for concern about recusal.”