COA reduction: Why not sooner?

Two days ago, we posted news of the Court of Appeals reduction from 28 judges to 24. In the post, I was critical of the timetable, of which there really isn’t one. The four judges who will be removed will essentially get to choose who they are and when they leave, beholden only to the 70-year-old limitation.

So if the goal of this reduction is to lower the budget for the Court of Appeals by four judgeships and staff, it’s not happening in any defined future.

This morning, SBM Blog, the State Bar’s blog, asked the question “Why not pull the plug right away?” and offered three reasons:

  1. Downsizing judgeships without degrading services requires thoughtful planning, good management — and time. The phased-in eliminations allow for an orderly, workable transition.
  2. The judges in courts identified as having excess judgeships will not be idle. The workload analysis identified 45 excess judgeships, but also found that there was a need for 35 new judgeships in other jurisdictions.  At the recommendation of the Supreme Court, the Legislature has enacted legislation phasing out the excess judgeship, but has not created any new judgeships. Michigan’s constitution wisely provides for “one court of justice” administered by the Supreme Court, which means that the excess capacity available through the phased-in eliminations can be used to address the need for judicial services in the “under-judged” jurisdictions.
  3. To ensure balance of powers, the Michigan Constitution protects the seats of judges for the duration of their terms.

The post refers, I think, to all judicial reductions. While I find it strange that some of the local courts are being consolidated immediately but others three years from now,1 at least those are defined times for the courts to be consolidated. The Court of Appeals has no timeline for its reduction. And that’s where I respectfully disagree.

1  Some of these changes happened after the original plan was made, protecting some cities’ judgeships from the chopping block.

Only one of these bullets answers the post’s question, and only partially at that. First, it’s not really a phased-in reduction.  A phased-in reduction would be one in which each judgeship and staff reduction takes place at staggered times, but by a timetable. Under this bill, that doesn’t necessarily happen. If four judges (one from each district) decide not to run at the same time or choose to retire at the end of the year, the reduction will happen at the same time. What are the chances of four judges stepping down at the same time? Probably slim, but it’s possible.

Also, as I wrote on Wednesday, all judges can continue to seek re-election until they turn 70. So if judges run and lose, the judgeship isn’t eliminated until the successor quits/retires. And if he loses an election … it could take more than 10 years for the full plan to run its course.

Second, while the “extra” judges certainly are going to be hearing cases, the reason the reduction was needed wasn’t simply because of budgetary reasons. It was because the Judicial Crossroads Task Force showed that filings dropped from 10,951 in 1989 to 6,177 in 2010. Part of that decrease may be attributable to a change in how files were counted (see the footnote on page 67), but it’s still a significant decrease. In fact, from filings dropped almost 25 percent from 2006 to 2010. In other words, the number of filings doesn’t justify the number of Court of Appeals judgeships.

Finally, as to the constitutional argument, that certainly provides a reason to allow four judges to finish their terms, but this reduction plan goes beyond that. It doesn’t end the judgeships of the next judge in each district whose term ends. It allows each judge to serve until they choose not to or the term that ends after they are 70.

3 thoughts on “COA reduction: Why not sooner?

  1. You are overlooking the fact that there are already two vacancies in two separate districts as a result of Judges Zahra and Bandstra leaving the COA (for the Michigan Supreme Court and the AG’s office, respectively) and Snyder not filling those vacancies with appointments. Those are savings that will be realized this year.

    More to your point, though, how would one determine which one judge of the 7 in each of the two remaining districts that don’t have vacancies should be pushed out? The attrition model may have the downside of keeping more judges than needed on the bench for now, but the virtue of the current plan is that it doesn’t force anyone out of office or allow politics to enter the equation. And lets not overlook that a reduction of this magnitude in the judiciary (even if phased in over time) is unprecedented not only in Michigan, but nationally.

  2. Phil,

    Thanks for reading our blog.

    You’re right that I forgot about the open seats of Justice Zahra and former Judge Bandstra. So at least there are two down and two to go. My point was more about the open ended nature of the affair. I’m not sure that there’s a specific alternative that wouldn’t cause one party or another to be upset for political or other reasons. And really, this shouldn’t be read to say that I oppose the reduction. I just think they should have set a timeline, reduce the seats from the next election (thus no constitutional problem) or come up with another defined kicker. Giving the individual judge the option of choosing if and when he/she is downsized seems to defeat the point.

  3. Pingback: BREAKING: Snyder appointing two COA judges before reduction takes place | The Michigan Lawyer

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