Election 2012: Supreme Court Justices

Foreword

With election season upon us, and November 6th right around the corner, many people have made up their minds with respect to the major candidates like president and vice president, the U.S. Senators and Representatives, and even candidates at the state level. Little do people consider the third co-extensive branch of government—the state judiciary.

By number of elected officials, the judiciary is by far the largest branch of government in Michigan. There are 7 Justices of the Michigan Supreme Court, 28 Judges of the Michigan Court of Appeals, and at the trial court level, there are 241 courts in Michigan, consisting of: 57 Circuit Courts, 100 District Courts, 79 probate courts, and 5 municipal courts. Trial court judges are elected for six-year terms. Review the Michigan bench HERE. Yet, it is the branch about which citizens know the least. This is, at least in part, due to the idea that it is the branch of government that does not legislate or engage in political activity, especially when deciding cases or making decisions. However, by and large people understand that judges are not completely removed from their political roots because they are either appointed by a partisan governor or they are elected with the support of politically aligned donors, fundraisers, and interest groups. The political leanings of judges are often seen in their rulings and opinions and the sources of their campaign funding.

What seems most perplexing to people, understanding the positions of the candidates for the Michigan Supreme Court, and how those positions affect the shape of laws in our state. To that end, we have been approached by friends and family asking what we think about the candidates for those three (or really two-and-a-half) seats. We make these comments with the caveat that while we may disagree with the opinions and actions of the candidates, each of the major candidates is qualified and as a member of the bar, must be shown his or her due respect. Additionally, we have omitted comments on several of the minor candidates for obvious reasons.

It is important to put into context the current election: first, there are really two separate elections. There are two full-term seats up for grab and seven candidates running. There is one partial term up for grab, with three candidates. Second, it is important to understand the role of our Supreme Court. The Court does not, as many television and radio ads claim, sentence rapists to long prison terms, crack down on child molesters or even protect families from violent crime. Its job is to review cases from the lower court for legal error and it must be able to do so without political pressure to be effective. To that end, our highest Court has been a failure in the past where the justices have clearly been affiliated, if not officially, as a practical matter, to one party or the other. What we encourage voters to do in this election, is to determine who, based on their backgrounds and track records, will be able to uphold Michigan’s constitution and laws most effectively without succumbing to party pressures. For more information voters would benefit on the accurate description of the last decade of our Supreme Court published by the Detroit Free Press and found HERE.

Full Term

Doug Dern: Minor candidate.

Connie Kelley: Judge Kelley was elected to the Third Circuit Court for Wayne County in 2008. Before that she had been a private practice attorney since her graduation from the Wayne State University Law School in 1981. She was assigned to the family bench where she deals with divorce and custody, adoptions, and abuse and neglect cases. She has the judicial experience necessary but has not demonstrated a propensity to side with one party or the other.

Stephen Markman: Justice Markman, the incumbent candidate for one of two full-term positions, was appointed by Governor Engler in 1999. While he did not participate in the school-yard antics for which our court has become notorious of late, he has regularly joined in reversing existing law when it suited the GOP, both allowing questionable legislation to go forward when passed by his party, or by gutting existing law, often in existence for decades, if it benefited the environment, individuals injured in accidents or as a result of malpractice, or collective bargaining. Justice Markman’s allegiance to his party makes him unable to be the neutral arbiter the title of Supreme Court Justice requires.

Additionally, the largest contributors to Justice Markman’s campaign include a healthcare association, a banking association, and multiple auto insurance associations and companies. Justice Markman is widely considered among practitioners to be opinionated and the most partisan member of the Court other than Chief Justice Robert Young.

Bridget McCormack: Prof. McCormack’s drawback is her complete lack of judicial experience. Having never served on the bench, the voter might wonder if she has what it takes. This lack of judicial experience may be looked at as a positive as well, especially in light of her academic qualifications. As a professor and assistant dean at the University of Michigan Law School, she has established clinics allowing students to get real-world experience and has founded the Michigan Innocence Clinic which has achieved the exoneration of five people wrongly convicted of felonies (these are not the “get off on a technicality” type exonerations, but were the result of the system just getting it wrong and convicting an innocent person). She has expressed her reluctance to overturn even those previous court decisions with which she disagrees and would contribute to a stable system of jurisprudence.

Kerry Morgan: Minor Candidate.

Colleen O’Brien: Judge O’Brien is another Governor Engler appointee. She was appointed to the Sixth Circuit for Oakland County in 1998 and has served there since. As an Engler appointee, the largest concern with Judge O’Brien is that she, like Justice Markman, would be unable to separate herself from her party and the pattern of judicial activism that the current justices similarly appointed have established.

Bob Roddis: Minor Candidate.

Partial Term

Mindy Barry: Minor Candidate.

Shelia Johnson: Judge Johnson has served on the 46th District Court in Southfield since 2001. The biggest concern regarding Judge Johnson is that as a district court judge she has not had the opportunity to develop the legal analysis necessary to handle the complicated issues a Supreme Court justice is confronted with. Nor does Judge Johnson have an established record when it comes to written opinions, given that the day-to-day work of a district judge is trying and sentencing misdemeanors, holding preliminary examinations in felony cases, and trying civil claims with a damages value less than $25,000.00. Though written opinions of Judge Johnson are lacking, the general consensus among practitioners is that Judge Johnson is a fair woman, who is willing to consider multiple positions and make what she thinks will be a balanced ruling. She is considered moderate in her approach.

Brian Zahra: Justice Zahra has all of the judicial experience many of the other candidates lack. A former partner at a major firm, Justice Zahra was appointed to the Wayne County Circuit Court, the Michigan Court of Appeals, and finally, in 2011, to the Supreme Court. While he is closely associated with the GOP, he has demonstrated his willingness to defy his party when the law requires in civil cases. Justice Zahra does have a distinct predilection, however, toward the State in criminal matters and is often regarded as a “prosecutor’s judge.” Justice Zahra is considered to be opinionated, and frequently authors opinions.

Recommended:

Non-partisan full term: Bridget Mary McCormack

Non-partisan full term: Connie Kelley

Non-partisan partial term: Shelia Johnson (Clinton Hubbell)

Non-partisan partial term: Brian Zahra (Dylan DuVall)

Not Recommended:

Non-partisan full term: Stephen Markman

Non-partisan full term: Colleen O’Brien