In the world of filling judicial vacancies, the top play in Michigan has been a four-fer: a Court of Appeals judge appointed to fill a Supreme Court vacancy; a circuit or probate judge appointed to fill that newly-created Court of Appeals vacancy; a district court judge appointed to fill the circuit or probate vacancy; and a brand new judge minted to fill the district court vacancy. Former Gov. John Engler was known for his mastery of this form of dominoes. (Example of a notable three-fer: appointment of Stephen Markman to fill the seat of retiring Justice Jim Brickley; appointment of Donald Owens to fill the Court of Appeals seat thus vacated by Markman; appointment of Richard Garcia to the Ingham Probate Court seat vacated by Owens. Hat tip to the first reader who correctly identifies the appointees of a Michigan four-fer.)
But this MiLW Blog post suggests that the days of high-rolling appointment dominoes may be over. Public Act 40 of 2012 (MCL 600. 303a) reduced the number of Court of Appeals seats from 28 to 24, with the reductions to be triggered by attrition:
(b) If there are more than 6 court of appeals judgeships in a district on the effective date of the amendatory act that added this section and 1 of those judgeships is vacant, that judgeship is eliminated. If more than 1 of the judgeships in that district is vacant, only the vacant judgeship with the shortest remaining term is eliminated. If the elimination of a judgeship results in 6 incumbent court of appeals judges in that district, the number of judgeships in that district shall remain at 6.
(c) Except as otherwise provided in this subdivision, if there are more than 6 court of appeals judgeships in a district on the effective date of the amendatory act that added this section [March 25, 2012] and there are no judgeships to be eliminated under subdivision (b), 1 judgeship shall be eliminated from the district at the end of the term for which an incumbent judge of the court of appeals does not seek election or reelection to that office until there are 6 incumbent judges in that district. Thereafter, the number of judgeships in the district shall remain at 6. However, a judgeship held by an incumbent judge who is serving by appointment of the governor shall not be eliminated under this subdivision unless the judge does not seek election at the first general election held after the vacancy to which he or she was appointed occurred, as provided in section 23 of article VI of the state constitution of 1963, or does not seek reelection at the end of a subsequent term.
In fact, there were more than 6 judgeships in each Court of Appeals districts on March 25 of last year because the Governor filled the two vacancies just prior to that date. One reading of the act is that an appointment of a Court of Appeals judge creates a vacancy that results in the elimination of the judgeship. If that is the case and the Governor appoints a Court of Appeals judge to the Supreme Court to fill the vacancy created by Justice Hathaway’s resignation the resulting vacancy would trigger the elimination of the vacated seat and, presumably, tilt the balance on the Court of Appeals away from judges whose philosophy he favors. This result would appear to sour the chances for appointment of any of the Court of Appeals judges whose names are prominent in the Lansing rumor mill -- Judges Boonstra, Kelly, Markey, Murray, and Wilder, to name just the five judges mentioned in the MiLW post.
But the MiLW post suggests, albeit with some skepticism, that there’s another reading of the act that depends “on whether the phrase ‘on the effective date’ only applies to whether there were any openings on the date the law went into effect or if any vacancies were created on a later date. Otherwise, the next subsection, MCL 600.303a(c), would apply. That subsection only eliminates a judgeship in the event that an incumbent or appointed judge doesn’t run for reelection.”
Huh? Even if (b) is a moot provision, can’t (c) be read to mean that if an incumbent judge is appointed to another seat, the appointed judge won’t be seeking election or reelection to the Court of Appeals judgeship, thus establishing the elimination of the seat at the end of that judgeship's term? Or, does the last sentence of (c) allow the Governor to appoint someone to the vacancy he just created and negate the elimination? While we’re at it, why does (b) say “is vacant” and not “is or becomes vacant”? And why does (c) say “are more” and “are no” instead of “were more” and “were no”?
So many questions to pass the time as we all wait for the Governor’s choice. Readers are invited to draw their own conclusions.