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.

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.

Recuse me?

As the Michigan Supreme Court prepares to take up the thorny issue of recusal standards at its March 5 public administrative hearing, the U.S. Supreme Court will hear oral arguments March 3 in a case that brings the issue into painfully sharp focus.

And two current and one former Michigan Supreme Court justices have weighed in on the matter.

In the U.S. Supreme Court case, Caperton v. Massey, Massey, a coal company, was hit with a $50 million judgment. A jury accepted the claims of Caperton, the president of another coal company, that Massey fraudulently wrecked his business. The verdict was overturned on appeal.

The question presented to the U.S. Supreme Court, as Caperton formulated it in the petitioners’ brief, is this:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court – more than 60% of the total amount spent to support Justice Benjamin’s campaign – while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.

In the respondents’ brief, Massey framed things this way:

Petitioners sought the recusal of Justice Brent Benjamin of the West Virginia Supreme Court of Appeals on the ground that Don Blankenship, an officer of respondent A.T. Massey Coal Company and its parent (Massey Energy Company), had made large independent expenditures in an effort to defeat Justice Benjamin’s opponent in an election several years before this case was decided. Apart from a $1,000 contribution by A.T. Massey’s Political Action Committee, neither respondents nor Massey Energy made any expenditures in support of Justice Benjamin’s election or in opposition to his opponent; Blankenship’s only direct contribution to Justice Benjamin’s campaign totaled $1,000; and Justice Benjamin has voted against Massey affiliates in at least five other cases, including one in which the judgment against Massey was almost five times that
here.

The question presented is whether the Due Process Clause of the Fourteenth Amendment required Justice Benjamin’s disqualification on the theory that he must have felt a “debt of gratitude” to Blankenship that created a “probability of bias” in favor of respondents.

To be clear, Massey is not disputing Caperton’s claim that Blankenship spent $3 million on the election. Massey admits to that figure early on in its brief.

The case has drawn intense amici interest. The Brennan Center for Justice at the New York University School of Law has cataloged the briefs here.

There’s a definite pro-petitioner bias: links to the amici briefs supporting petitioner Caperton are accompanied by excerpts; the links to amici briefs supporting the respondents are unadorned. No matter. You can get to the briefs and judge for yourself who’s making the better arguments.

Michigan Supreme Court Justices Maura Corrigan and Robert Young, and former justice Clifford Taylor, along with seven other current and former state supreme court justices, have signed on as amici curiae in support of the respondents.

Here’s an excerpt from the brief’s “Summary Of The Argument”:

Petitioners contend that a due process violation exists here because the expenditures made in a judicial election would create a debt of gratitude in a judge towards the individual that made those expenditures. Accordingly, they claim, public confidence in judicial integrity would be hurt if the judge failed to recuse in a case involving a party that employs the individual who made the expenditure.

The logic of such a debt-of-gratitude rule could not be limited in a principled way to the instant case; therefore, the entire process of judicial elections would be imperiled. Indeed, the logic of such a rule would apply when the judge is aware of the individual’s preferred position even if neither that individual nor any related entity or person were a party. The logic would also apply to nonmonetary political support like editorial page endorsements or in-kind contributions such as get-out-the-vote efforts.

Were this Court to adopt a multi-factored amorphous due process rule, there are a number of likely consequences that would lead to decreased public confidence in the judiciary. Such a holding would endanger collegiality by creating the opportunity for political gamesmanship between different ideological factions on a court. “Weaponizing” the judicial disqualification process by importing a multi-factored due process notion would create a tool for litigants to use to undermine the people’s democratically expressed preference for a certain type of judicial philosophy. It could wreak havoc with stare decisis as “special” litigants would be able to create different compositions of a court by selectively targeting for disqualification judges whose judicial philosophy they deemed insufficiently congenial to the litigant’s cause. By using disqualification as a weapon, litigants would be able to create a jurisprudence that would diverge from that which would have otherwise emerged from the court’s duly elected judges.

MSC appointment flap: Weaver says Taylor’s conduct ‘unprofessional, improper, unfair’

Michigan Supreme Court Justice Elizabeth Weaver has accused Chief Justice Clifford Taylor of mishandling the court’s recent appointment of Judge John Chmura as chief judge of the 37th District Court.

Weaver, the lone dissenter to the order appointing Chmura, says Taylor “effectively interfered with the chief judge appointment process.”

Both Chmura and Judge Jennifer Faunce, the 37th District Court’s chief judge pro tem, sought the chief judge appointment. Here’s what happened next, according to Weaver:

“On October 7, 2008, State Court Administrator Carl Gromek sent a copy of Judge Faunce’s fax, dated October 7, withdrawing her name from consideration for the chief judge position. Based on this information, I telephoned Judge Faunce’s office on October 7 in the late afternoon to inquire about her withdrawal. She was not available at that time, so I left a message for her to call me if she would like to discuss the matter.

“The following morning, October 8, at approximately 9:15 a.m., Judge Faunce returned my call. When I inquired as to why she withdrew, she told me that she was informed that she did not have the votes to be appointed. Therefore, she withdrew her name from consideration. I expressed to her that I had planned to vote for her and would continue to do so at the administrative conference. …

“At the October 8, 2008 administrative conference at approximately 10:20 a.m., Chief Justice Taylor announced that there was only one candidate remaining for the Chief Judge position. At that point, Justice Kelly asked if anyone knew why Judge Faunce had withdrawn. Chief Justice Taylor explained that he was of the view that there were four (4) votes for Judge Chmura, and that he had decided to call Judge Faunce to inform her that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, but that he did not want her to be embarrassed because there were four votes for Judge Chmura and she would lose. Chief Justice Taylor related that Judge Faunce told him that she would withdraw her name and she did so.”

Weaver didn’t mince any words when explaining her view of the chief’s explanation:

“Chief Justice Taylor’s action of telling Judge Faunce that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, before the justices had ever met to discuss and vote on the chief judge appointment, is another example of his unprofessional, improper, and unfair conduct as chief justice. [footnote omitted]

“Chief Justice Taylor’s actions effectively interfered with the chief judge appointment process because what he told Judge Faunce during his telephone call caused her to withdraw her name before the justices of this Court had even met to discuss the appointment.”

Taylor has a tendency to play things close to the vest, and that is not good, according to Weaver:

“Harmful to the proper functioning of the justice system is Chief Justice Taylor’s inclination to act secretly, not openly and transparently with respect to the administrative business of this Court. Administrative appointments of chief judges – judges who are elected public officials – constitute public administrative business, not personnel matters. Judges are not employees of the Michigan Supreme Court. They are elected officials of their counties or jurisdictions and are effectively only employees of the people of their counties or jurisdictions within the state of Michigan. This inclination toward secrecy also deprives the people of the information they need to properly make judgments on the justices’ performance of their duties. The Supreme Court should not be a secret club run for the benefit of justices and judges.”

Weaver’s solution is to publish administrative conference agendas at least three days before each conference and to prepare “draft proposed minutes” no more than three days after each conference.

These items would be available on the court’s website if Weaver had her way.

And as for the actual conferences? Those would be televised live unless personnel matters were involved.

Who do they like? Dailies weigh in with MSC endorsements

With two weeks to go before the election, editorial boards at some of the state’s daily newspapers are weighing in on the Michigan Supreme Court race.

As one might expect, the Detroit News is solidly in Chief Justice Clifford Taylor’s corner:

“Taylor should be retained on the court.

“Taylor will relinquish the chief justiceship next year, as is the court’s custom, but he has been careful with the public’s money as chief justice and sought reasonable ways to contain costs. He led the justices and appellate judges in relinquishing their cars. In a time of tight economic resources, he asked the State Court Administrative Office, which through the Supreme Court has oversight responsibilities for all state courts, to examine whether the number and jurisdictions of some lower court judges should be reallocated or reconsidered. It was the right kind of question for the court to be asking.

“The chief justice is one of a group of jurists who have in recent years changed the direction of the court – mostly for the better. Individual rulings can always be questioned, but the overall movement of the court has been to return to the concept that liability must have a relationship to fault.”

Less expected was the Detroit Free Press‘ decidedly lukewarm endorsement of the chief justice.

The Free Press noted Taylor’s aversion to courts making public policy from the bench and his view “that courts have narrow but important roles. What a statute says is what it says. What the Constitution says is what it says.”

Here’s the Free Press’ editorial rejoinder:

“That mission may sound good to those who agree with Taylor that courts in Michigan had gone too far for too long. But it’s an agenda nonetheless. It’s judging cases through the prism of a specific, long-term policy goal.

“Even worse, Taylor — the only justice up for election this year — and his conservative colleagues have taken their philosophy far beyond mere textual readings of the law or the Constitution to a point where they are, in fact, making policy as much as any of the former justices they’ve criticized.”

“Taylor is enough of a problem on the high court to warrant endorsing nearly anyone as an alternative.”

But there’s an issue, according to the Freep:

“Unfortunately, state Democrats have chosen Wayne County Circuit Judge Diane Hathaway as their candidate. Despite a solid record on the Circuit Court, Hathaway, 54, demonstrates no better grasp of the role of high court justice than Taylor, and can’t even articulate a judicial philosophy that she’d bring to the court. …

“What Hathaway says about how she would simply ‘follow the law’ is not unlike what Taylor says about his philosophy. But in an interview with the Free Press editorial board, Hathaway could not say why she would arrive at different decisions from Taylor, only that she would. She would likely be out of her depth on the high court, and not much more than a reliable, but unexplained, vote that’s the opposite of Taylor’s. That’s not reason enough to put her there.”

The Detroit Free Press concluded by scolding Hathaway’s backers:

“It’s one thing for Democrats, liberals and trial lawyers to complain about the state Supreme Court. It was quite another, apparently, for them to find a credible candidate to challenge its chief justice this year.

“Justice CLIFFORD TAYLOR should be retained Nov. 4 on the Michigan Supreme Court, but voters really deserved a better choice.”

The Bay City Times views the high court election as a choice between two extremes:

“On the conservative end, we have Chief Justice Clifford Taylor. On the liberal side, we have Diane Hathaway, Wayne County Circuit Court judge for 16 years.
Both are seasoned jurists, yet each would bring a very different philosophy to Michigan’s highest court. …

“Do you throw out one extreme for the other? Perhaps. But Hathaway hasn’t made a compelling case for such drastic action in this campaign.”

The Oakland Press opined that:

“It is certainly true that Michigan’s court has a reputation as conservative, but whether such terms as liberal or conservative are helpful in discussing a judicial contest is highly debatable. It seems that impartiality would be a better standard. Why is the plain and simple wording of the law subject to such philosophical interpretations?”

The Oakland Press’ editorial board said that once one puts the philosophical debate aside, what’s left is court administration:

“On this score, [Taylor’s] record is impressive.

“Taylor says that for the last 10 years, the state’s Supreme Court has delivered certainty, clarity and stability in the law. He says this has resulted in a dramatic drop in the filing of frivolous lawsuits throughout the Michigan state court system. In fact, he says the caseload has dropped so much that appellate judicial vacancies should not be filled in areas where court filings are down.

“He also asked all judges receiving a state car as a result of their compensation package to return it to the state for auction, resulting in a savings of more than $420,000.

“He has supported jury reform, backing proposals aimed at giving jurors more information and helping them render fair, impartial verdicts. He also would allow jurors to take notes and to ask proper questions of witnesses. …

“Hathaway is a well-qualified candidate, but on an objective basis, there is no compelling reason for voters to make a change.”

But the Lansing State Journal had no problem urging a change of personnel:

“The most important vote a Michigan resident can cast this fall is to oust Chief Justice Clifford Taylor from the Michigan Supreme Court.

“The direct beneficiary of this decision will be Diane Hathaway, the Democratic nominee. The LSJ endorses Hathaway’s candidacy as a way to protect the rights of Michigan residents against the assaults of the Taylor-led court.

“John Engler put Taylor on the Supreme Court. And huge amounts of money from business interests with business before the high court have kept him there.

“While there, Taylor and his political allies on the court have again and again put the people’s interests last.”