Judicial candidates lose incumbency designation challenge

Just how important is the constitutionally and statutorily required incumbency designation on Michigan judicial ballots?

Consider this: Bill Ballenger, Lansing political pundit extraordinaire, and editor and publisher of Inside Michigan Politics, has told me on several occasions that in Michigan, 95 percent of all incumbent judges in the last 20 years have been re-elected.

That gives incumbent judges almost a virtual lock in terms of job security (notable exception: former Michigan Supreme Court Chief Justice Clifford Taylor’s loss to Diane Hathaway in the 2008 election).

Mark Janer and Steven J. Jacobs, two candidates for the 74th District Court, know the incumbency designation is a powerful election tool. That’s why they went to court recently to argue that 74th District Court Judge Jennifer Cass Barnes, a very recent (June 1) Granholm appointee, shouldn’t be listed as such on the August primary ballot.

Former 74th District Court Judge Scott Newcombe decided to resign earlier this year, effective May 31. Janer, Jacobs and Barnes all filed timely petitions in April to be electoral candidates for the open seat, which was designated as a non-incumbent position.

On April 23, Governor Jennifer Granholm appointed Barnes to fill the remainder of Newcombe’s term – which expired at the end of the year. Barnes took office June 1.

Janer and Barnes sued to prevent Barnes from receiving the incumbency designation. The argument presented to Bay County Circuit Court Judge Frederick L. Borchard, as recounted by the Michigan Court of Appeals in Janer, et al. v. Barnes, et al.:

[B]ecause Barnes filed nominating petitions to access the ballot as a non-incumbent, and because her appointment occurred after the deadline for incumbent judges to access the ballot, she is not entitled to the incumbent designation on the ballot.

Borchard dismissed the complaint, which sought a declaratory judgment, mandamus, and injunctive relief.

They fared no better in the COA. A per curiam panel consisting of judges Peter D. O’Connell, Donald S. Owens and Stephen L. Borrello ruled that

Const 1963, art 6, § 24 and MCL 168.467c(2) are unqualified mandates. They do not impose a time period in which an incumbent candidate must act in order to qualify for the incumbent designation.

Because the language is clear and unambiguous, judicial interpretation is not permitted, and the provisions must be enforced as written. …

The only requirement for the incumbency designation on the ballot is the incumbent status of the judge, which it is undisputed that Barnes now has attained. Accordingly, she is entitled to the incumbency designation.

And an almost certain win in August.

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6th Circuit: Fieger’s MSC recusal suit moot

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

Fieger still has some big cases swirling around on appeal. See, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question.”

Campaign season is just around the corner.

The next move, if anybody makes one, should be interesting.

Sleeping judge, the sequel

The “Sleeping Judge” ad campaign that targeted former Michigan Supreme Court Justice Clifford Taylor was criticized, even by Democrats who wanted to see him unseated, as being possibly less than honest, and at the very least a cheap shot which had an enormous impact on the election.

Well, a similar campaign is resurrected, but this time takes aim at Justice Robert P. Young, who is up for reelection this year.

The Michigan Democratic Party’s Web site has posted a contest, inviting participants to guess “How many times has Bob Young fallen asleep on the bench?” and the winner will get a Bob “Sleepy” Young t-shirt.

The site hauls out the statistic: “An insurance industry lawyer, Young has ruled with insurance companies and corporations 80 % of the time,” which would be fair game if it’s true.

But another round of “sleeping judge” ads? Is this how we want to appeal to voters to select a Justice for our state’s highest court?

There is much discussion among members of our legal community about how campaigning and money can influence our judges. And it’s probably fair to say that it’s time to change the way we select our appellate court judges. But it seems somewhat unfair to talk up  (and let’s be honest – it’s generally Democrats who would most like to see the judicial selection process changed)  the unsavory process of judicial elections, while at the same time appealing to the lowest common denominator of the electorate.

What will that money buy?

That’s what James J. Sample, associate professor of law, is asking in light of the recent US Supreme Court desision in Citizens United v. FEC.

Sample is one of the speakers at the American Board of Trial Advocates symposium at Wayne State Law School, Options for an Independent Judiciary.

“What will that money buy?” he asked, now that corporate and union campaign contribution restrictions have been lifted.

Well, he showed us. He showed us about a dozen of the more famous television ads for, and against, judicial candidates around the country, including the now-famous “sleeping judge” ads which blasted Michigan Supreme Court’s former chief justice Clifford Taylor, and which some say played no small part in his defeat when he ran for re-election in 2008.

Clifford Taylor to join Miller Canfield

As we reported in our February 8 issue, former Michigan Supreme Court chief justice Clifford W. Taylor will join Miller Canfield Paddock & Stone on February 15.

As of counsel to the firm, Taylor will work in the Lansing office as part of the litigation department specializing in appeals.

Taylor was appointed to the Michigan Court of Appeals by then Governor John Engler in 1992. He was appointed to the Supreme Court in 1997 to replace the retiring Dorothy Comstock Riley.

He was voted chief justice in 2005 and held the position until he left the court in 2009.

New disqualification rule will make justices more accountable

The Detroit Free Press editorial stance on justice disqualificaiton:

For 175 years, it has been up to each justice on the Michigan Supreme Court to decide when he or she should be disqualified from hearing a case. Now the majority that took control of the state’s highest court last year has adopted a new rule that authorizes the full court to second-guess its individual members’ judgment on the critical question of impartiality.
Depending on which faction of that bitterly divided body one asks, Michigan is either entering a new era of judicial transparency or poised at the precipice of a constitutional crisis. …

Our own, somewhat less melodramatic view is that making each justice accountable to his or her peers is an improvement over the status quo, in which a litigant has no practical recourse against a judge who refuses to step aside no matter how compelling the evidence that the judge is biased.

GOP weather report: A bit chilly for MSC’s Weaver

The weather was a mixed bag over the weekend on Mackinac Island, according to Misty, an employee at the Mackinaw City dock of Shepler’s Ferry, which did a swinging business shuttling politicos to and from the Michigan Republican Party’s leadership conference on the upscale state park.

Cool and windy on Friday, a pleasant Saturday and a Sunday that started off nice but deteriorated into clouds and rain, Misty helpfully reported when I called her this morning.

But for Michigan Supreme Court Justice Elizabeth Weaver, there was a distinct chill in the air that had little to do with autumn blowing in on the straits as she tried to drum up some party support for her re-election bid in 2010.

Weaver, who has enjoyed GOP backing in the past, has famously squabbled with former Republican Chief Justice Clifford Taylor — who lost his re-election bid last year — and current GOP Justices Maura Corrigan, Robert Young and Stephen Markman.

It was not too long ago that Taylor, Corrigan, Young and Markman were a majority voting bloc on the Court — a bloc engineered by former Michigan Governor John Engler during his terms of office.

According to yesterday’s Capitol Capsule from the Michigan Information and Research Service, former Republican Speaker of the House Craig DeRoche “rebuffed Weaver’s personal request to support her re-nomination in 2010[.]”

Then, says the MIRS report

Engler poked some fun at Weaver at her expense.

In telling attendees of his Saturday evening dinner speech about his history with past Mackinac Island events, Engler quipped, “I go back to when Betty Weaver was actually a conservative judge.”

Later in his talk, Engler talked about the need to “find some help for (Justice) Bob Young on the Supreme Court. …

“We need Bob Young back on the Supreme Court. We can’t let the courts go back to being a have [sic – haven?] for trial attorneys,” Engler said.

Young, along with Weaver, faces re-election in 2010.