Grand Rapids lawyers go to bat for embattled district judge

The Grand Rapids Press and WOOD-TV reported over the weekend that some of the legal elite in the Grand Rapids area have asked the Attorney Grievance Commission to open an investigation against Judicial Tenure Commission Director Paul Fischer, accusing him of trying to extort the resignation of Rockford District Court Judge Steven Servaas.

A dozen former presidents of the Grand Rapids Bar Association, according to WOOD, and "prominent local attorneys," according to the Grand Rapids Press, signed a 26-page letter sent to the Attorney Grievance Commission, in which they claim that Fischer insisted that Servaas resign immediately or face criminal charges.

They point to a secret recording made in the judge's chambers that features Fischer explaining to Servaas how the JTC intended to proceed in the matter. The recording can be accessed by following the Grand Rapids Press link in the first paragraph of this post.

Servaas' supporters ask that Fischer be disbarred and that he shoulder the judge's estimated $200,000 in legal fees that have been racked up in the JTC proceedings against him.

According to the Grand Rapids Press:

"The latest salvo continues a dispute between Fischer and Servaas, who allegedly lived outside his judicial district, drew two sexually suggestive doodles and made a lewd comment to a co-worker at a retirement party."

Servaas' JTC hearing is scheduled for July 14.

An interesting wrinkle is that Servaas is running unopposed for re-election in November. If a misconduct finding against Servaas is made, Fischer wants the Michigan Supreme Court to remove him from the ballot, or to wait to remove him from office until his new term begins next year. See The Michigan Lawyer: Trial court elections: Whole lotta shakin' goin' on.

COA denies Wayne prosecutor's bid to disqualify 36th District Court bench

The Michigan Court of Appeals has turned down Wayne County Prosecutor Kym Worthy's application to disqualify the entire 36th District Court bench from conducting the preliminary examination of Detroit Mayor Kwame Kilpatrick.

Kilpatrick is accused of perjury, obstruction of justice and other charges.

The three-page order notes that in two prior cases where an entire judicial bench was disqualified, there was no analysis of the facts or any articulated analysis and, therefore, were of no help in this case.

Analyzing this case under MCR 2.003(B), the COA observed that even if some of the judges may be called as witnesses during the preliminary exam, "MCR 2.003(b)(6) requires the recusal of a judge only when 'the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person ... is to the judge's knowledge likely to be a material witness in the proceeding.' None of the judges who are proposed witnesses fall within this rule."

Click here for the full text of the order.

Trial court elections: Whole lotta shakin' goin' on

Ann Arbor attorney Doug Shapiro is all dressed up for the November circuit court election in Washtenaw County but says he doesn't want to go anywhere, at least not to the bench.

Earlier this year, it looked to be a no-challenger contest for incumbent judges David S. Swartz and Donald E. Shelton. Then, word got out that Shelton was on the short list of candidates for the vacant presidency of Eastern Michigan University. At the time, Shapiro said, according to an Ann Arbor News report, that "he would not enter the race until and unless Shelton got the EMU job."

But shortly thereafter, he filed candidacy petitions with almost double the signatures needed to get on the ballot. Time went by, along with the May 2 deadline for withdrawing from the race. Several days later, EMU chose Susan Martin as its new president.

So, now it's a three-way race for two seats on the Washtenaw circuit bench. But Shapiro hasn't raised any cash for his campaign. He says he's not asking people to vote for him because there's no opening "and we have two good judges."

Despite that statement, the Ann Arbor News says Shapiro is interested "in appearing in voters' guides and making himself available for other pre-election news-gathering efforts."

Shapiro says it's all a dress rehearsal for when there is an opening on the bench.

Over in Ingham County, there's a decidedly different situation in November. Voters will choose among six contenders to fill three seats on the circuit bench: incumbent judges William Edward Collette and Janelle A. Lawless; Rosemarie Elizabeth Aquilina, who's looking to step up from her job as chief judge of the 55th District Court; Hugh B. Clarke, Jr.; Frank Harrison Reynolds and Beverley Nettles-Nickerson.

Nettles-Nickerson would have been running as an incumbent judge but the Michigan Supreme Court removed her from office last month for several instances of misconduct. At the time, Nettles-Nickerson, who remains on the ballot, said that the voters would have the final word on the matter.

The Judicial Tenure Commission, acutely aware of that possibility, asked that she be removed from office and conditionally suspended without pay for six years in the event that she is re-elected in November. The supreme court removed her from office and made it clear that she was not an "incumbent" in the November election, but declined to impose the conditional suspension.

In Kent County, the Grand Rapids Press is reporting that the JTC is taking a similar stance in the case of Rockford District Court Judge Steven Servaas, who is running unopposed for re-election in November. The JTC has charged Servaas with living outside of his district, drawing two sexually related doodles and making a comment to a court worker that she said was sexual harassment. The JTC wants the Michigan Supreme Court to strike Servaas from the ballot. If that's not possible, the JTC wants Servaas removed from office at the beginning of his new term, Jan. 1, 2009.

A JTC hearing on the charges against Servaas is scheduled for July 14.

Meanwhile, over in the 23rd Circuit Court, which covers Arenac, Iosco, Alcona and Oscoda counties, incumbent judges Ronald Bergeron and William Myles are in a heated court battle with Tawas attorney Christopher Martin to again get him removed from the judicial ballot.

The Bay City Times reports that the Secretary of State removed Martin after reviewing Bergeron's and Myles' claims that Martin filed too few signatures to appear on the ballot. An Ingham County Circuit Court judge overruled the SOS and put Martin back on. The incumbents have filled a 200-page brief with the Michigan Court of Appeals, seeking to once again bounce him from the ballot.

No word on when the COA might issue a ruling.

How to get censured by the Michigan Supreme Court

"[W]e order that the Honorable Norene S. Redmond be publicly censured. This order stands as our public censure."
In re: The Honorable Norene S. Redmond Judge, 38th District Court Eastpointe, Michigan. SC: 134481 (Michigan Supreme Court Order).

Nobody likes to be called an "asshole."

Especially a judge.

Especially if she finds out about it.

And especially when it's coming from the mouth of a 16-year-old whose mother is waiting in a jail cell for someone to throw her $500 bail that the judge just ordered on the mother's misdemeanor domestic violence and felony resisting and obstructing charges.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't reconvene the bond hearing on the record without the mother present.

Especially when she's not represented by counsel.

Especially when you state for the record that her kid has called you a bad name.

And especially when the when next thing you do is up the ante on the mother's bail from a $5,000/10 percent bond to $25,000 cash or surety.

And even more especially when the kid comes before you a few minutes later, accepts responsibility, asks that he be punished instead of his mother, and you don't back down.

* * *

Nobody likes guys who are accused of stealing from the elderly.

Especially a judge who is arraigning two of them in a courtroom under the watchful eyes of television cameras.

Especially when the police say they went inside a 90-year-old woman's house, swiped $800 and overcharged her for a painting job.

Especially when the police suggest the guys are flight risks.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't respond to a defense attorney's argument for a low bond because his client's record is clean, he lives in the state and would likely get probation if convicted, by using words to the effect that it would be a shame if that's the way things turned out.

Especially when the next thing you do is set the guy's bond at $750,000 and, for good measure, tell the other guy, who does have a rap sheet, that his bond is a cool $1 million.

And even more especially, when doing all of this might give folks the idea that the whopping big bails were intended to punish these guys before they even went to trial instead of just making sure that they show up for it.

***

Nobody trying to get a decent night's sleep likes a noisy party that lasts until almost dawn.

Especially when this happens more than once.

Especially when one of the partygoers is on the hostess's front porch at 4 a.m., talking loudly on a cell phone.

Everybody likes it very much when the cops come and write the hostess a noise ticket that requires her to appear in court.

Especially when they'll have the opportunity to go to court as well and tell the judge just what they think about what's been going on in the neighborhood.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't read a petition from the complaining neighbors without disclosing that you know some of them.

Especially when you let the neighbors repeatedly interrupt the hostess, who had no attorney, during the course of the proceedings.

Especially when you repeat some of the comments and complaints, even though they have nothing to do with the matter at hand.

And especially when doing all of this could make people think that the sentence you handed down for a noise ticket -- fines and costs, two years reporting probation with the first 30 days served in jail, daily preliminary breath tests, home visits, 100 hours of community service, no parties unless approved by the neighbors who signed the petition, and no one to spend the night except the folks who live there -- just might have been motivated by personal anger and an approving crowd.

***

Judges don't like to be censured by the Michigan Supreme Court.

Especially when they think they are right.

What's a judge to do about a situation like this?

Judge Redmond issued a statement. As reported in the Detroit Free Press:

"I have always done what I believe is right for the community and I will continue to do so[.] ... I know that I can put my head on my pillow tonight and be at peace with the decisions that I made."

Related reading:

Judge Redmond's Judicial Tenure Commission Settlement Agreement

Macomb Daily: Supreme Court scolds judge

Detroit News: Court censures Redmond

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons' proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

"In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office," says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, "Democratic Renewal - A Call to Action from America's Heartland". The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book's Michigan section. Among Johnson's proposals:

• Ethics law should be extended to cover the legislative and judicial branches of government.
  
  
• Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  
  
• The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.
  

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver's reform plan, which she floated on her private web site over the year-end holidays. Weaver's proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

COA's Bandstra announces re-election bid

Michigan Court of Appeals Judge Richard A. Bandstra says he'll be seeking re-election to another six-year term on the court in November.

Bandstra made his announcement a few minutes ago via a press release e-mailed from his g-mail account.

Bandstra was elected to the COA bench in 1994 and served as chief judge from 1998-2001. He's a former state representative with a law degree from the University of Chicago.

What's on Bandstra's mind heading into the election season? Money and productivity:

[O]ur Court faces large challenges in the years ahead as we have to maintain our productivity and the quality of our work in the face of budget cutbacks. As a former Chief Judge, I hope that I will be able to assist recently appointed Chief Judge Henry Saad in coming up with creative ways to meet those challenges.

Bandstra will be seeking re-election in the COA's Third District, which includes the following counties: Allegan, Barry, Berrien, Branch, Cass, Eaton, Ionia, Jackson, Kalamazoo, Kent, Muskegon, Newaygo, Ottawa, St.Joseph, Van Buren and Washtenaw.

MSC: Justice Kelly fires cannon at majority's disapproval of canon

The continuing underlying tension among justices of the Michigan Supreme Court concerning how to best interpret statutes bubbled to the surface again late last week.

All seven justices agreed that the Court of Appeals reached the right result in reinstating a whistleblower case involving Katherine M. Ernsting, who worked as the special assistant to the president of Ave Maria College in Ann Arbor. But four justices felt that the COA took an unnecessary detour.

Ernsting began talking to the U.S. Department of Education, which was investigating the school's administration of federal student financial aid programs. To reward her cooperation with the DOE, the school fired her, according to her whistleblower complaint.

Washtenaw County Circuit Court Judge Timothy P. Connors tossed the suit. He ruled that under MCL 15.361(d)(v), the DOE was not a "law enforcement agency" and therefore could not be a "public body."

The Court of Appeals reversed in a 2-1 decision. Writing for the majority, Judge Kurtis T. Wilder, joined by Judge Alton Davis, parsed the statute to first provide that a federal agency, as opposed to a state or local agency, is a public body under the statute. Judge Wilder then determined that because the DOE is vested with investigatory power, it qualifies as a law enforcement agency for whistleblower purposes.

Judge Brian Zahra disagreed with this last point. Judge Wilder replied:

We respectfully disagree with the dissent's view that the term "law enforcement agency" as more narrowly construed by this Court in In re Faketty, 121 Mich App 266, 271; 328 NW2d 551 (1982), is applicable here. ...
Whereas there was a narrow context in which this Court in Faketty considered whether the Department of Corrections was a law enforcement agency under JCR 1969, 13, here, because remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006), we conclude that the DOE, with its power to conduct civil and criminal investigations in order to enforce the laws under its purview, constitutes a law enforcement agency within the meaning of the WPA.

Up in the Michigan Supreme Court, none of the justices quibbled with the outcome, but Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman added an asterisk to the court's denial of leave to appeal.

We take this opportunity to note that, although we generally agree with the approach in the Court of Appeals majority opinion, it was unnecessary for that opinion to state, 274 Mich App 506, 518 (2007), that "remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006)." Rather, as this Court later stated in its own opinion in Brown, 478 Mich 589, 593-594, when addressing the same statutory provision that is at issue in this case, MCL 15.361(d), "[t]he statutory language in this case is unambiguous," and "[i]f the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute and judicial construction is not permissible."

Both Justices Michael Cavanagh and Elizabeth Weaver, in separate statements, indicated that they would deny leave and leave it at that.

But the majority's statement caused Justice Marilyn Kelly to take a "canon shot" at the majority:

I dissent from that part of the order admonishing the Court of Appeals majority for utilizing the canon of construction that calls for remedial statutes to be construed liberally. I disagree with including that statement for two reasons. First, because it is completely unnecessary to the resolution of the case, it has no force and, therefore, adds nothing to the order. Second, the canon that remedial statutes must be liberally construed is one of the oldest and most respected tools of construction in all the law. ...
Given this canon's long history and wide acceptance, and because the Whistleblowers' Protection Act is remedial in nature, it was entirely appropriate for the Court of Appeals majority to apply the canon in this case. And although the members of the majority can reject the tool for themselves, they should not scold other judges for choosing not to do the same.

The full text of the order is here.

Ohio Supreme Court pans Fieger client's $30M verdict

It was the Ohio Supreme Court's turn last week to do what Michigan appellate courts have done several times over the past few years - wipe out a multi-million dollar verdict for one of Geoffrey Fieger's clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger's "theatrics" in the courtroom.

Now, the trial judge wasn't exactly blame-free either. As recounted by the OSC, the trial judge let Fieger's expert testify, over defense counsel's objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge's in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge's on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge's acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger's client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.

Some Michigan judges have seen it, said it before Michigan's appellate courts, on occasion, have been extremely critical of Geoffrey Fieger's trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts' opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge's observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses' mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff's team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge's extracurricular handling of the newspaper article. The majority said Fieger hadn't objected and defense counsel apparently had a private chat with the trial judge about the article. They weren't about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger's performance as zealous representation. "While we agree that plaintiff's attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial." In contrast, the dissenting judge spent 27 pages detailing what she called Fieger's "manipulative trial technique" and "the extent of his outrageous melodrama" in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury's liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, "the trial court is in the best position to determine whether a damages award is excessive."

The OSC said the appeals court was looking at the wrong thing. It's not about whether there was sufficient evidence to support the jury's verdict. It's all about the trial court being in the best position to determine whether the jury's verdict "was excessive and given under the influence of passion or prejudice" and whether counsel's misconduct "tainted the verdict." The OSC ruled that if there's competent, credible evidence to answer "yes" to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision "should remain undisturbed."

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors - such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That's a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.

Bill to keep cars from judiciary motors along

Compensation for Michigan Supreme Court justices and Court of Appeals judges would not include the use of state-owned or state-leased vehicles under legislation that has cleared the Michigan House General Government Committee.

The committee has reported out (see pages 8 and 9 in the linked document) a pair of bills, HB 5005 (amends the Revised Judicature Act) and HB 5006 (same thing but amends the Management and Budget Act), that address the matter.

The legislation has a bit of the "Department of Redundancy Department" feel to it because, if enacted, it will accomplish by law what has already been put into practice by the MSC justices and COA judges themselves. The bills also include all the state's trial-court judges, who never had state-owned vehicles to begin with.

Responding to media reports last April about the costs associated with issuing judicial branch employees state cars, all of the justices and COA judges turned theirs in, amid some grousing and speculation that using their private vehicles for court business may be a false economy once they're reimbursed for mileage.

MSC recusal standards: constitutional amendment being drafted

A state constitutional amendment that would require Michigan Supreme Court justices to recuse themselves "in any proceeding in which the judge's impartiality might reasonably be questioned" is in the works at the request of Rep. Mark Meadows, (D-East Lansing).

This would include situations where campaign contributions to a justice from a party's lawyer or the lawyer's law firm exceed a specified amount over a given time period.

The amendment is being patterned after Rule 2.11(A)(4) of the American Bar Association's (ABA) Model Code of Judicial Conduct, according to a spokesperson from Meadows' office.

Meadows, a member of the House Judiciary Committee, asked the Legislative Service Bureau to prepare the amendment earlier this month, after the committee took testimony from Rich Robinson of the Michigan Campaign Finance Network (MCFN).

The MCFN has been making its case for the MSC to develop recusal standards when justices, litigants and money are intertwined. This is a suggestion the court is not likely to act on any time soon. See, Michigan Lawyer: Campaign cash and recusal: a lost cause in the MSC?

Public financing of MSC election campaigns has also been a long-standing priority for the MCFN. See, Michigan Lawyer: Justices, money, elections and recusal In his testimony, Robinson told the committee that public financing of MSC election campaigns would eliminate "much of the cause for concern about recusal."

Justices, money, elections and recusal

A pair of recent reports from the Michigan Campaign Finance Network touch on the touchy subjects of how election campaigns for the Michigan Supreme Court are financed, and standards for recusal when litigants and justices have "substantial financial ties," whether personal or political.

In "A Case for Political Reform in Michigan," the MCFN argues that the state "should provide voluntary full public funding for Michigan Supreme Court campaigns so voters have the opportunity to support candidates who demonstrably have no financial connection to interest groups that subsequently become litigants before the Court."

The MCFN's 2006 Citizen's Guide to Michigan Campaign Finance (caution: this is a big file; if you have a wimpy computer and/or internet connection, you'll need to be patient) details MSC candidate campaign spending in the last election. Check out Appendix M, which names, to borrow Justice Robert Young's phrase, some of "the usual suspects" who contributed to Justices Maura Corrigan and Michael Cavanagh's 2006 campaigns.

The Guide also bemoans Michigan's "weak campaign finance law," which allows special interest groups to run so-called "issue ads."

Issue advertising advocates particular positions or recommends courses of action that stop short of actually telling viewers to vote for or against a particular candidate. Such advertising does not fall within campaign expense reporting requirements.

We're not talking about trivial sums. From 2000, the first year for which the Guide provides issue advertising figures, through 2006, total spending on all MSC races was almost $23.2 million. Of that figure, issue advertising accounted for $10.5 million.

The problem with issue advertising, according to the MCFN's "Case for Political Reform," is that "with more than one-third of the spending coming from anonymous sources, there is no way to evaluate the nature or the scale of the financial connection between the justices and the judged."

The MCFN recommends that all "issue advertising" that mentions a candidate by name within 60 days of an election should be considered campaign expenditures subject to reporting requirements.

And, this report continues, "[a]s long as huge sums of private interests' money are involved in the judicial selection process, the Court should be attentive to the fact that political money compromises the appearance, if not the reality, of its judicial impartiality."

The MCFN urges the MSC to "develop standards for recusal for cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices."

Easier said than done.

We'll have more about this in a future post.

Judges: Is there a better way to pick them?

The November 2008 election for the Michigan Supreme Court, pitting the presumed Republican candidate, incumbent Chief Justice Clifford Taylor, against a yet-to-be-named Democrat, is shaping up to be a spendfest that may rival the 2000 contest, in which three seats were open on the high court.

A couple of weeks ago, Michigan Supreme Court Justice Robert Young told the Republican faithful at a Mackinac Island conference that it might take $20 million to keep the chief in office. In response, Democratic State Party Chair Mark Brewer promised that his party will do whatever it takes to make sure that doesn't happen. See, Michigan Lawyer: The public should care

Whether the 2008 campaign ads will be just as silly and mind-numbing as in years past - "soft on crime," "anti-family," "lacks experience," "Markman and Taylor and Young, oh my!" (chanted to a Wizard-of-Oz cadence by dancing, animated trees) - remains to be seen.

Reform advocates say the way to end all of this nonsense, and to obtain a judiciary less beholden to special interests, is to switch to an appointment process. At the heart of all such plans is the idea that those seeking a seat on the bench would go through a vetting and winnowing process. Survivors then get the appointments.

This is not a new thought. After the 2000 election, then-Chief Justice Elizabeth Weaver championed an appointment plan featuring non-renewable 14-year terms. See, "CJ Weaver Calls For New Method To Pick Justices" Former State Sen. Ken Sikkema floated the Missouri Plan: appointments followed by retention elections. See, "Wanted: Judicial Selection Changes"

As far back as 1994, responding to news stories of judicial smear campaigns, the late Justice James H. Brickley called for adoption of the Missouri Plan. See, "Appointing judges: A solution to 'low road' campaign tactics"

Now comes a recent study from the University of Chicago Law School that tests the notion that appointed judges are "better" than elected judges and concludes that either way may not make much of a difference.

In "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary," by Stephen J. Choi, G. Mitu Gulati and Eric A. Posner, the authors measured judicial independence, productivity and "opinion-quality" to determine whether elected or appointed judges are "better."

The authors say that underlying all the clamor for doing away with judicial elections is "the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions .... The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office."

But the authors note that when "judges use campaign contributions to finance simple-minded television commercials, conflict of interest is layered on public confusion."

Yet, "[i]n a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common."

The paper's abstract concludes that the "empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals)."

Going broke? Join the crowd

One of the few places in Michigan where business is booming these days is the United States Bankruptcy Court for the Eastern District of Michigan.

The court led the nation in filings for six consecutive quarters since the beginning of 2006 through the end of June this year, Chief Judge Steven Rhodes reported in his "State of the Court" address yesterday.

In a 12-month period ending in June, the court had 31,744 filings.

And the court's judges are working harder than most. Rhodes said his court's judges have a weighted caseload of 3,169 each, compared with a national average of 946.

"Stated another way, in order for us to have the average judge's case load, we would need 16.4 bankruptcy judges in our district!" exclaimed Rhodes.

Help is on the way. Rhodes said he doesn't want to be greedy, so he's asked for three more judges. The Judicial Conference of the United States has signed off on the request, congressional support looks good, and federal administrators have told Rhodes to start looking for a place to put the new judges.

On a dour note, Rhodes said Chapter 7 debtors need to be more forthcoming about disclosing administered assets. Thirty-seven percent are not "fessing up" to all that they have.

Rhodes said proposed amendments to the court's local rules, if adopted, will give trustees and the U.S. Attorney's Office more muscle power to enforce asset disclosure rules.

"[O]ne of our new proposed local rules would require the trustee to file a report whenever the trustee discovers an undisclosed asset after the debtor testifies at the meeting of creditors that the schedules are accurate. Another ... would require the debtor to provide additional documents at the meeting of creditors," Rhodes explained.

Who will replace Whitbeck as COA chief?

True to his word, Michigan Court of Appeals (COA) Judge William C. Whitbeck is stepping down from his post as the court's chief judge at the end of the year, according to a Michigan Information & Research Service (MIRS) report.

Judge Whitbeck is on the last leg of a third, two-year term, and, MIRS reports, he announced a while back that he wasn't going to seek a fourth term as the COA's top administrator.

Last April, Michigan Supreme Court Chief Justice Clifford Taylor asserted that the COA had four too many judges. When the State Court Administrative Office (SCAO) released recommendations in August that backed Taylor's position, Whitbeck debunked the report in a sharply worded memo addressed to the rest of the COA judges.

The Michigan Supreme Court appoints chief judges for all of the lower courts, including the COA. Given Whitbeck's outspoken opposition to reducing the number of COA judges, even if he wanted a fourth term, Taylor, if he were of a mind to do it, could probably find three other votes on the high court to give the job to someone else.

MIRS says four COA judges have asked to be considered for the chief judge position. They are Pat M. Donofrio, Donald S. Owens, Henry William Saad and Michael J. Talbot.

Those of you interested in handicapping this horse race might consider this: when the COA released an initial position paper that urged the MSC to reject the SCAO's recommendation to cut four judges, Donofrio is the only one of the four chief judge candidates who signed a dissenting statement, which counseled that the COA should neither support nor oppose the SCAO recommendation.

Black-robe blues: less green next payday

As the politicians bicker, posture and finally begin to wheel-and-deal in the 11th hour to solve Michigan's lack-of-budget problem, the state's 621 judges can look forward to lighter paychecks next week.

It works like this: without a budget in place by Monday, Oct. 1, the state legally can't spend any money. Payroll deadline was Wednesday, Sept. 26. The judges' checks are for two weeks of work and include pay for work done through the end of payday. The next time the eagle flies for the judges is Thursday, Oct. 4.

In a decision that any reviewing jurist would undoubtedly find legally impeccable but perhaps personally distasteful, the state determined that the only way to stay within payroll policy and the law was to not pay the judges for work done Oct. 1 through the end of the current pay period.

Their checks will be about $2,000 short, on average, according to a report in the Grand Rapids Press.

There will be a make-good after a new budget is in place.

The public should care

Oakland County Probate Judge Eugene Arthur Moore took to the pages of the Saginaw News a couple of weeks ago with a guest column entitled, "Change rules to raise confidence in court."

He wrote about the need to ensure the public's faith in the legal system. Two reforms, according to Judge Moore, will help accomplish this.

First, the Michigan Supreme Court needs to formally adopt rules "that give litigants and their attorneys a clear basis for knowing when a Supreme Court justice should be disqualified from hearing a case."

Second, "the Supreme Court must adopt a rule that does not restrict what justices may write in their opinions."

We've previously written about both issues. See, "If it ain't broke ... MSC declares procedures for handling recusal motions don't need fixing,"
and, "Supreme Court confidential ... MSC's codification of unwritten 'deliberative privilege' draws on historical practices, raises enforcement questions."

These are important issues, to be sure. But frankly, it was Judge Moore's opening observation that drew my attention.

"[W]e need to make sure we have fair and impartial judges. The public doesn't care if we were appointed by a Republican or Democratic governor, whether we are members of the Federalist Society or The American Constitution Society, whether we are a 'liberal' or 'conservative.'"

Yet, in the high-stakes game of selecting justices for the Michigan Supreme Court, either by gubernatorial appointment or election, it is precisely these considerations that come into play.

It's hard to ignore them, given that MSC candidates are nominated by political parties but later presented to the public on a nonpartisan ballot.

Some folks need to have the public to care very much, otherwise millions of campaign dollars are being ill-spent to influence choices.

Consider a recent report from our good friends at the Michigan Information & Research Service (MIRS).

"Keeping in place 'the nation's most conservative Supreme Court' after 2008 will be an expensive affair and it can be made easier if those attending the Mackinac Republican Leadership Conference open up their wallets and Lincoln Day dinners for incumbent Chief Justice Clifford TAYLOR, said Justice Robert YOUNG on Saturday morning [September 22]," according to the MIRS report.

"The Supreme Court is holding a 'razor-thin' 4-3 conservative majority on the state's high bench," Young said, conveniently roping in fellow Republican-nominated and independent-minded Elizabeth WEAVER with the rest of the 'liberal, law-writing judges.'

"Like the six prior Supreme Court elections before it, Taylor's 2008 re-election to the court 'Ronald REAGAN always wanted' will be hotly contested by 'the usual suspects' in an estimated $20 million campaign," MIRS reported.

Now consider Michigan Democratic Party Chair Mark Brewer's response to Young's remarks.

"Taylor will lose a $20 million race because we will do whatever it takes to beat him," Brewer said. "From abusing perks to controversial decisions to Supreme Court infighting, Cliff Taylor's term as Chief Justice has made the people of Michigan hold their heads in shame. Even $20 million won't dig him out of the hole he is in."

The Democrats are currently hunkered down, feverishly calculating who to spend their $20 million on in an effort to unseat Justice Taylor.

Both political parties are paying an awful lot of attention to something that, if Judge Moore is correct, the public doesn't care about.

What does the public really want?

"What they want," according to Judge Moore, "is for us, as judges, to listen to the facts and decide the case based on the law. Our bias, prejudice, judicial philosophy or political beliefs should be left at home."

But all of that is baggage that you're expected to pack and take with you on your way to the bench, especially when someone else has bought you a first-class ticket for the trip.

Maybe Judge Moore is right. Maybe the public doesn't care.

But if the public doesn't care, there are at least 20 million reasons why they should.

We've got it on video

In Wayne County Circuit Judge Leonard Townsend's courtroom, defense counsel was having a tough time at his client's bench trial.

He was cross-examining the complaining witness, a market clerk who claimed defendant stood at his side and lifted his shirt to reveal part of a gun while another guy pulled a gun, put it at his stomach and demanded cash.

The lack of an interpreter was apparently bogging things down. Defense counsel said the clerk was having difficulty answering his questions. Counsel wanted to know if the gun was held to the clerk's side, stomach or back but the clerk could not tell him. Judge Townsend acknowledged counsel's difficulty but said that where the gun was held "doesn't matter."

Counsel plowed on with his cross-examination. The clerk wasn't responding to questioning, said he was scared and suggested that everyone view the surveillance video, which presumably would clarify things.

Great idea.

Big problem: the defense hadn't seen the video yet. It apparently was in a format that needed a specialized gizmo or software to view it. The police gave counsel the tape but did not supply a way to view it.

A police officer who responded to the clerk's call for help after the incident testified that he was able to view portions of the video then and recognized defendant.

The proceedings continued the next day. Judge Townsend announced that a deputy had told him defendant wished to plead guilty. The judge accused defense counsel of not conveying the plea offer to his client. But when the judge spoke to defendant directly, he denied saying anything to the deputy.

Things starting going downhill from there.

Defense counsel moved to have Judge Townsend, who, you'll recall, was conducting a bench trial, recuse himself.

On the record, counsel noted that Judge Townsend denied an adjournment before trial even though counsel was unable to view the surveillance video. Counsel's effort to get the chief judge to review the matter had gone nowhere.

Still on the record, counsel said the judge's ex parte chat with the deputy was another ground for recusal, particularly so because counsel had been accused of not telling his client about a plea offer. Counsel demanded a mistrial. Judge Townsend was having none of it and denied the motion.

Counsel said he was going to the chief judge.

Judge Townsend told him he wasn't going anywhere.

"I am going to file a grievance against - no, no, no. You can't leave. You sit down. You're going to finish the trial. Sit down."

Counsel then said his client was "totally frightened. He wants to take the cop [sic]. He's going to take the offer."

Judge Townsend said he wouldn't accept the plea. Counsel said he couldn't finish the trial under the circumstances.

"[Y]ou're going to sit down and shut up. That's all you're going to do. Now put it [the video] on, and let me see it," Judge Townsend ordered.

The video screen warmed up and came to life.

Lo and behold.

Defendant and the other guy weren't standing close to the clerk. There was nothing that looked like defendant had lifted his shirt to show the clerk anything. What was being seen didn't match the clerk's testimony.

Defense counsel wanted to recall the clerk for more cross-examination.

The judge said the clerk had been excused. Defense counsel replied this was not so. The prosecutor agreed he could be recalled. Judge Townsend relented but the clerk was gone. Judge Townsend wouldn't delay the proceedings to get the clerk back on the witness stand.

Judge Townsend ultimately found defendant guilty of assault with intent to commit armed robbery, felony firearm and felon in possession of a firearm.

Wow.

The Court of Appeals was presented with a long list of things to review but only one of them mattered.

Defendant's due process rights had been pushed from a cliff.

Because the surveillance video wasn't available in a decipherable manner before trial, defense counsel was at a loss to advise his client about the feasibility of a plea, and was unable to challenge the clerk's version of the events, the appeals court said.

Judge Townsend should have granted an adjournment before trial so the defense could see the video. And, when the video was revealed at trial, the clerk should have been recalled and subjected to further cross-examination, the Court of Appeals ruled.

And so, the Court of Appeals said, defendant gets a new trial and the parties should think about getting the clerk an interpreter.

And, on remand, there will be someone else on the bench. Judge Leonard Townsend retired in 2005.

The case is People v. David. (Michigan Court of Appeals) (unpublished per curiam).

What would Judge Andrews do? Here's what . . .

"If that had been my wife, I'd have beaten the hell out of you."

That's what Oakland County Circuit Court Judge Steven N. Andrews said a few days ago while sentencing a man who crashed a wedding reception and groped a female partygoer's breasts, according to a report in the Oakland Press.

It was quite a scene at the reception. Someone called the cops to break up the resulting fight. The guy's pants went down three times in front of a police dashboard camera's unblinking eye.

The tape, with a strategically placed blur, probably would be great stuff for one of those voyeuristic TV police-video shows.

The prosecutor said the man was "mumbling" and "extremely intoxicated." Defense counsel blamed the dropped trousers on a broken waistband button. He said his client doesn't remember any of it.

The man pleaded no contest to indecent exposure, aggravated assault and disorderly conduct. Judge Andrews ordered a two-month work-release jail term, 18 months of probation, no drinking, and $1,100 in costs and fines.

Perpetrator caught. Plea taken. Sentence imposed. A few chuckles, perhaps, for those who saw the tape. So far, so good.

But what about Judge Andrews' statement about how he would have reacted if his wife were the assault victim?

It's one thing when you're sitting around the dinner table with friends and family and say, "I'll tell you what, sweetheart of mine, if that guy would have touched you, I would've knocked him into next Tuesday."

But there is a big problem when judges say such things in open court.

There's a standard of conduct that's expected in Canon 3(A)(3) of the Michigan Code of Judicial Conduct.

The way I read that standard, it comes down to this: when you're wearing the robe, you should keep your cool on the outside and your anger to yourself.