Conflict at the Court

The Honorable Elizabeth A. Weaver, Justice, Michigan Supreme Court

This is the film that played a small role in unelecting sitting Chief Justice Cliff Taylor in the fall of 2008.  Never before in the state’s history had a sitting Chief Justice gone down to defeat.  Part of the reason was a really bad ad, what’s come to be known at the sleeping justice ad (with which we had nothing to do).  But the rest came from the realization by Michigan’s citizens that something was really wrong at the court.

The Michigan Supreme Court has been an exposition ground for bad behavior based on political ideolgy and contention.  The details are related in this film by one of the seven high-court justices.  Justice Elizabeth A. Weaver talks with delayedjustice.com producer David B. Schock,Ph.D., in an early 2007 interview about the background concerning issues that affect every Michigan citizen.  Of particular interest is the High Court’s incidence of announcing votes BEFORE oral arguments are heard.  (And, yes, we have copies of the paperwork that chronicles it.)

The bad behavior, says Justice Weaver, is pretty much predicable whenever the court locks up along party lines…as it inevitably has to given the current method of nominating judges (with party backing).  This time it happened to be a block of four Republicans–all appointees (to various court positions) by former Governor John Engler.  Justice Weaver, herself nominally Republican, is out of the power block for several reasons, not least of which is her independence.  Her motto: Do right and fear not.

One thing seems evident: we need to change the way we elect and appoint our Justices.  Insofar as possible, we need to take party politics out of the selection and determination process.

Justice Betty Weaver has been working at coming up with a better plan and she’s unveiled it. And it follows:

Justice Elizabeth A. Weaver March 5, 2009

Reforming Michigan’s Dual System of Election and Appointment of Supreme Court Justices

Michigan must reform its dual system of selecting Supreme Court Justices—reform both how its Governor with unchecked power appoints Supreme Court Justices to fill vacancies on the Court and how its citizens elect their Supreme Court Justices by political nominations and millions of special interest dollars spent.

Here for your review and action, are proposals for reform that will:

• begin to eliminate secrecy and provide checks and balances in Michigan’s dual system of selecting Justices, where the Governor has unchecked power to appoint Justices to fill vacancies on the Court and the political parties nominate the candidates for election to the Court;

• begin to eliminate the formation of power blocs on the Michigan Supreme Court—power blocs which through the exercise of judicial activism—conservative or liberal— promote special interest agendas, personal agendas, and agendas of prejudice and bias;

• reduce the shocking amounts of special interest money spent in campaigns for election to the Michigan Supreme Court. In the 2000 election, over $15 million was spent for three Justice positions; in the 2008 election, over $7 million was spent for one Justice position;

• provide for rotation in office and establish checks and balances for the Supreme Court, which are necessary to prevent misuse and abuse of the Supreme Court’s great power and to preserve our government “of, by, and for the people;” and

• open the way for the creation of a Michigan Supreme Court composed of Justices who possess the traits that every judge should have: Independence, Self-Restraint, Discipline, and Common Sense and are Just, Fair, Orderly and Professional—Justices thus deserving of the public’s trust and confidence.

Proposal to Reform Michigan’s Dual System of Election and Appointment of Supreme Court Justices

In Michigan’s dual system, Michigan Supreme Court Justices are either elected by the citizens to a full 8-year term or appointed by the Governor to fill a vacant term to the next general election; then run for election with an incumbency designation on the ballot for the remainder of the term.

I. Reform of Election of Justices

A. No political party nomination — Get on ballot by petition like all other judges.

B. Election by district — 7 districts — 1 Justice per district.

C. Public Funding — Use tax check-off money designated for Governor campaigns for Justice campaigns.

D. One (1) term of eight (8) years; Justice never eligible for reelection or appointment.

II. Reform of Appointment of Justices to Fill Vacancies on Supreme Court

A. Qualifications Commission Will Publicly Provide In Writing To The Governor Two (2) Nonbinding Recommendations

• Qualifications Commission will publicly provide in writing to the Governor within sixty (60) days of a vacancy two (2) non-binding recommendations together with written reasons why the two (2) candidates are best qualified for the Supreme Court vacancy.

• Qualifications Commission composed of all stakeholders in justice system. For example: labor, business, police, doctors, lawyers, prosecutors, environmental groups, corrections, education, insurance, local government, etc. Each organization chooses its own representative. The Commission is composed of approximately 30 to 40 members.

• Sixty (60) Day Period to Act: Qualifications Commission must submit its recommended candidates to the Governor within 60 days from the date of the vacancy or lose its right to do so.

B. Governor’s Appointment

• The Governor can choose one (1) of two (2) Qualifications Commission’s recommended candidates, or choose someone not recommended by the Qualifications Commission.

• If the Governor chooses someone not recommended by the Qualifications Commission, the Governor must give public, written reasons why that appointee is the best choice on or before submitting appointee’s name to the Senate.

• Governor must submit appointee’s name to the Senate within sixty (60) days of receipt of names from Qualifications Commission or lose right to make appointment. In such case, Senate must appoint one (1) of the Qualifications Commission’s recommended candidates.

C. State Senate

• The State Senate must hold at least one (1) public hearing on the Governor’s appointee within sixty (60) days of the Governor’s appointment. Senate has the right to confirm or reject the appointment by majority vote.

• If Senate does not vote to confirm or reject the appointee within sixty (60) days of Governor’s submission of appointee, the Governor’s appointment takes effect.

• If the Senate rejects the appointee by majority vote, the Senate must publish promptly its reasons in writing whereupon the Qualifications Commission will have thirty (30) days to reconvene and start the process over. If the Qualifications Commission fails to timely reconvene, the vacancy shall be filled at the next general election for the remainder of the term.

D. General Election

• If both the Qualifications Commission and the Governor fail to timely and properly perform, the vacancy shall be filled at the next general election for the remainder of the term.

E. Term

• The appointed or elected Justice only serves for the remainder of the vacant term and shall not serve an additional term or partial term.

Sounds like a plan worth discussing.

Mike Butler agrees and you can read his commentary.

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