Kelly task force calls for campaign finance, judge election reforms

A non-partisan task force assembled nearly a year and a half ago by Michigan Supreme Court Justice Marilyn Kelly has come up with a list of recommendations to make the judicial selection process less expensive and more transparent.

The task force’s recommendations were released yesterday.

Among the reforms on the list of recommendations is a constitutional amendment to require gubernatorial appointment of state Supreme Court justices using either the federal executive appointment model, or Arizona’s selection commission model.

Kelly said that was one of the stickier issues, and one that did not garner consensus of the entire task force.

“The majority of the task force did support it,” she said. “But the majority and the minority felt it was important to not make it one of the consensus recommendations.”

So what does that mean? It means there are other issues the task force would like to focus on.

Also on the list of recommendations (which did have consensus agreement) :

  • Public disclosure of all judicial campaign spending
  • The implementation of an open primary system, rather than a partisan nomination system
  • Requiring the Secretary of State to produce a voter education guide with information about judicial candidates
  • A Supreme Court campaign oversight committee, which would check the factual claims in political advertisements and denounce those that are false and misleading.
  • The implementation of a screening commission to help the governor fill judicial vacancies.
  • The elimination of the age-70 ceiling on judicial candidates

A minority of task force members also felt that public financing of judicial races should be recommended, but in the end, that idea failed to get support.

The reason, ironically, is that since Citizens United, there has been so much money from third parties flowing into political advertising. Candidate committees already only spend a small fraction of the total amount spent on political advertising.

Kelly said that many on the task force felt that the committees need to be able to at least try to get candidate-approved (and hopefully truthful and respectable) advertisements out to the public to combat all the secret third-party, mostly negative and often untrue, messages.

Some of the items on the list of recommendations could be implemented quickly and easily, without a constitutional amendment or even legislative action.

The Secretary of State voter education guides is one of those.

“I feel strongly about the need to get the public informed,” Kelly said. “A full third of voters skip the judges altogether. We can’t presume they don’t care. If they don’t know the candidates, can you blame them for not voting for them? …

“The public is entitled to know things like if a judge is on the bench on time, or if he or she is harsh on the people in their courtrooms.”

Another recommendation that would be easily implemented is the commission to screen candidates for appointment to fill vacant supreme court vacancies.

“That would protect the governor from pressure from cronies,” she said. “And it would be possible for the public to know what’s going on.

As to whether or not any of the recommendations will get any traction, Kelly said, “We’re not Pollyannas here. If the system was going to correct itself it would have.”

But she’s hopeful because the one thing that the task force agreed on unanimously is that the judicial selection system is flawed.

“We may have disagreed on what those flaws are, but we all agreed the system has its flaws,” Kelly said


Weaver proposes fix for MSC partisanship

Responding to a recent Lansing State Journal editorial, see MSC: ‘throroughly politicized’, former MSC Justice Elizabeth Weaver took to the LSJ’s editorial page this morning, touting a six-point plan concerning MSC elections and appointments:

1. No political party nominations. Supreme Court candidates would earn a spot on the ballot by petition – the same as other Michigan judges.

2. Election (not appointments) by district. The state should be divided into seven Supreme Court election districts, one justice coming from each, to allow the geographic diversity now clearly absent.

3. Public funding. Using tax check-off money designated for gubernatorial campaigns for Supreme Court campaigns.

4. Transparency and accountability in campaign finance reporting requirements. No secret or unnamed contributors and 48-hour reporting.

5. Term limits to achieve rotation. Only one term of a maximum of 14 years, and a justice never would be eligible for reelection or appointment.

6. For appointments, establish a Qualifications Commission composed of all stakeholders in the justice system.

Weaver’s opinion piece then fleshes out some of the details.

Weaver also says more sun needs to shine on the high court:

[W]e could enact all the reforms I’ve suggested but they will have little effect unless and until we can open our Supreme Court inner workings to public scrutiny.

Unnecessary secrecy, another issue for another day.

MSC: ‘thoroughly politicized’

Strong editorial words from The Lansing State Journal this morning about our Supreme Court:

The past decade has seen an embarrassment of acrimony on the court. Some of the key players in that unpleasantness are gone and citizens must hope they packed the venom and took it when they left.

That said, the problems on the high court go deeper than personal conflicts.

From the outside looking in, the Michigan Supreme Court has built a record that looks blatantly partisan and, frankly, up for sale to the special interests that can muster the most money to purchase election advertising. Citizens should be asking themselves how the people elected to these supposedly “nonpartisan” positions can appear to be so thoroughly politicized. …

Michigan could sorely use a change to eliminate partisan involvement in nominating justice candidates. It also needs campaign finance reforms that take special interest money out of judicial races.

These are not easy problems, but until they are fixed, justice in Michigan only pretends to be blind.

The LSJ editorial also wonders whether the game of judicial ping-pong — precedent being reversed when the political majority shifts on the Court — will continue now that the Republicans are back in the driver’s seat.

The LSJ‘s editorial board is doing some plain talking about something that’s plainly a problem.

Study planned of how Mich. appellate judges picked

DETROIT (AP) — A task force will propose revisions to Michigan’s system for selecting state Supreme Court and Court of Appeals judges in the wake of an election season that included the heavy use of negative ads.

The 24-member Judicial Selection Task Force announced Tuesday is co-chaired by state Supreme Court Chief Justice Marilyn Kelly and 6th Circuit Judge James L. Ryan. Retired U.S. Supreme Court Justice Sandra Day O’Connor is an honorary co-chair.

Starting in January, the task force will look at how Michigan’s appellate judges are picked and examine recent campaign spending for Michigan Supreme Court races. Kelly says in a statement that the 2010 judicial elections in Michigan saw “vitriolic advertising.”

The task force plans to release its recommendations in 2011.

The wisdom of crowds

If anything was made clear by a report on how voters feel about the Michigan Supreme Court and its role, it was that jurisprudence is a little like art. Even if you can’t define it, you know what you like.

the polling company inc., on behalf of The Federalist Society, polled 500 likely voters in Michigan during the first week of October. Pollsters asked respondents about their knowledge of the Michigan Supreme Court, its rulings and different forms of jurisprudence, said the polling company CEO Kellyanne Conway in an Oct. 20 conference call.

Astonishingly, participants were comfortable with admitting they don’t know much about the Court — 36 percent said they were just a little bit familiar with the Court and 20 percent admitted to being “not at all” familiar. Five percent said they were very familiar and 38 percent said they were somewhat so.

But they know they don’t like the Court. Just 1 percent of participants said the Court’s performance is excellent, and 22 percent said performance was “good.” Forty-seven percent said the Court’s performance is “fair” and 8 percent said poor. Those who were familiar with the court were even more critical, with 32 percent of them calling the justices’ performance excellent or good, and 63 percent judging them as fair and poor.

“This is a real indictment of the judiciary,” Conway said. “To know about the Court was to be not necessarily pleased with the Court.”

The voters might have forgotten that they have indeed chosen those justices that they’re not too happy with, and they want to keep on selecting them.

According to the survey results, 72 percent of respondents said that Michigan voters should continue to have the greatest input on who is selected to serve as a Justice on the Court. Nine percent said that power should rest with the legislature, 7 percent said the Governor should appoint justices and 6 percent said lawyers should select them.

And once the justices get to the Hall of Justice, they should leave their personal viewpoints at the courtroom door, responded 74 percent of the likely voters.

The respondents indicated that they don’t necessarily believe that our justices have exercised judicial restraint (though most of them admitted they didn’t know what that meant – 67 percent said that they didn’t know what judicial activism is, and 63 percent said the concept of judicial restraint was new to them).

But when it came to voter opinions about Court opinions since 2008, when the majority of court shifted away from the conservative leanings of former Chief Justice Clifford Taylor, voters tended to think the Court has made some poor decisions in overturning precedent.

Pollsters described the McCormick v. Carrier case this way:

When the Michigan State Legislature passed a no-fault automobile insurance law, they agreed that the only people who could sue for non-economic, “pain and suffering” damages were people who sustained serious impediments of a bodily function. The Michigan Supreme Court upheld this in 2004. However, this summer, after a new judge was elected and the ideological composition of the court changed, the Michigan Supreme Court reversed the Court’s six-year-old decision and ruled that people who have only sustained temporary impairments are able to sue in order to receive pain-and-suffering damages.

Fifty-five percent of the participants said that the decision was a bad one, and 35 percent deemed it a good decision.

Pollsters asked about the impact of the Court’s recent plaintiff-friendly opinions, and two in three respondents said that they are harmful to the state economy, and have created an environment in which it’s easy for lawyers to make money by filing lawsuits on behalf of their clients.