Traverse City Record-Eagle

April 29, 2012

Jack Lessenberry: Supreme Court reform


---- — If there is any institution that should automatically command public respect, it is the courts. Especially a state supreme court, any state's highest legal authority outside the federal system.

Sadly, that hasn't been true here for years. Michigan Supreme Court justices have often acted more like vengeful political partisans than judicious stewards of the state constitution.

In recent years, when one party has gained control of the court, their justices have set about almost gleefully reversing decisions made by the earlier majority. Nor has the show stopped there. Until she retired from the court two years ago, maverick Republican Justice Elizabeth Weaver waged a war of public name-calling with her fellow Republican justices that included comments about her appearance.

Supreme Court elections have degenerated into highly expensive affairs that have included the spending of millions of anonymous donations on often misleading nasty television ads.

Four years ago, the University of Chicago law school rated all 50 state supreme courts — and in terms of quality, Michigan's was rated dead last. The courts were ranked according to criteria including judicial independence from political and other outside influences, and how often their rulings were cited by other courts.

All this has deeply pained Marilyn Kelly, a dignified justice who this year is finishing her 16th and last year on the court.

Two years ago, then-Chief Justice Kelly decided her legacy would involve trying to do something about this. She recruited James Ryan, a federal appeals judge, to serve with her as co-chairs of a Michigan Judicial Selection Task Force.

Sandra Day O'Connor, the first woman ever to sit on the U.S. Supreme Court, agreed to be the panel's mostly honorary chair.

They then convened a panel that included some of the state's most distinguished citizens, including some non-lawyers, and a range of views from conservative to liberal.

The task force released their findings after a year of deliberations. Their recommendations were startling.

The panel, which Kelly told me had worked hard to achieve consensus, unanimously called for a series of sweeping reforms, especially in the way justices are selected.

"Michigan's process for choosing supreme court justices has recently attracted national attention for its excessive cost, its lack of transparency, and its damaging negativity," the report begins.

After studying how other states do things, and many hours of vigorous debate, the task force developed a series of "common-sense, practical solutions that can rapidly make judicial selection in this state more democratic and effective."

Not surprisingly, the task force condemned the present system, in which supreme court nominees are traditionally selected at highly partisan state political conventions. Instead, they called for a switch to "open, non-partisan primaries," to select supreme court judges, just as other Michigan judges are selected.

The task force noted candidly that "the current system leaves the nomination process in the control of party insiders "¦ an open primary system could reduce the influence of partisan politics on the selection of supreme court candidates." In fact, many of the members would prefer to amend the Michigan Constitution to allow governors to appoint Supreme Court justices.

Actually, almost half of all Supreme Court justices have historically been appointed to the bench by governors, after previous incumbents die or resign.

However, the top reform priority of the task force wasn't judicial selection, but money. Thanks largely to Michigan's inadequate disclosure laws, most of the money spent on recent state supreme court races has been spent by shadowy groups not subject to campaign finance reform requirements.

"The 2010 campaign season for the Michigan Supreme Court was the most expensive and most secretive in the nation," the task force notes. "Over the last decade, more than half of all spending on supreme court cases in Michigan went unreported, and therefore the sources went undisclosed."

Don't think this is a problem? The task force discovered that 86 percent of cases before Michigan's highest court involved contributors to the campaigns of at least some of the justices. The task force urged action, legislative or otherwise, to fix this.

Besides these sweeping recommendations, the panel advocated a number of other steps, including a requirement that the Secretary of State create a voter education guide, and that the current age limits on justices be dropped. Currently, no Michigan judge at any level can run for re-election after they turn 70.

Interviewed about the panel's findings, Justice Kelly said she knew very well that a lot of similar, earnest good-government reports have been produced — and then vanish onto library shelves.

She intends to do her best to see that doesn't happen. Kelly may have some time to crusade for reform; she is 74, and legally has to leave the court when her term expires in January.

"Restoring faith in our highest court is critically important," she told me. "Michigan deserves better." Few legal scholars dispute that.

The challenge will be getting the public to pay attention — and getting the governor on board and the state Legislature, many of whom are themselves heavily dependent on special interests, to act.

Jack Lessenberry, who teaches journalism at Wayne State University, is Michigan Radio's senior political analyst, ombudsman and writing coach for the Toledo Blade and former foreign correspondent for and executive national editor of The Detroit News. He was named Journalist of the Year in 2002 by the Metropolitan Detroit Chapter of the Society of Professional Journalists.