SBM Blog

State Bar Representative Assembly Endorses End To Age Discrimination In Judicial Selection, Skittish On Attorney Inventory Rule

After spirited debate, the Representative Assembly approved a resolution calling for an end to the constitutional prohibition on appointment or election of lawyers over the age of 70 to judicial office in Michigan. After similarly spirited debate, a proposal for a rule requiring Michigan attorneys who represent clients other than in-house clients to identify the name of an active member to serve as an inventory attorney in the event of the attorney's death, disability or disappearance did not receive the Assembly's approval.

The judicial age limit proposal was among the issues presented to the Assembly by former Chief Justice Marilyn Kelly on behalf of the Judicial Selection Task Force that she co-chaired with former Michigan Supreme Court Justice James L. Ryan.  A key element of the Task Force's report, urging the amendment of the Michigan Campaign Finance Act to require disclosure of expenditures for electioneering in judicial campaigns, was adopted by the Representative Assembly in 2010.

Making Michigan Courts Better: On "Good Measurement And A Commitment To Follow The Data"

The Governor, Chief Justice, and the State Court Administrator are advancing easily accessible and understandable performance measures as a means to improve the delivery of services to the public. The efforts underway in the judicial branch, I'm happy to say, are in line with the recommendations of the State Bar's Judicial Crossroads Task Force, which, among other reforms, called for greater accountability through better data and transparency.  Obviously, like all reforms, it's possible to do this well or ill, and getting it right will take a lot of attention, including good faith participation and intelligent critique of members of the bar. On Friday I attended a meeting of the State Court Administrative Office's Trial Court Performance Measures Committee, chaired by Kent County circuit judge Paul Sullivan, and can attest that the efforts to get it right are serious, open-minded, and vigorous. Right after the meeting, I ran across a Wall Street Journal op-ed by Bill Gates that captures why good measurement and a commitment to follow the data is important and holds promise for making progress on problems that have resisted our best efforts for, well, centuries.  From his piece:

You can achieve incredible progress if you set a clear goal and find a measure that will drive progress toward that goal.

This may seem basic, but it is amazing how often it is not done and how hard it is to get right.

One of the greatest successes in terms of using measurement to drive global change has been an agreement signed in 2000 by the United Nations. The Millennium Development Goals, supported by 189 nations, set 2015 as a deadline for making specific percentage improvements across a set of crucial areas—such as health, education and basic income. Many people assumed the pact would be filed away and forgotten like so many U.N. and government pronouncements. The decades before had brought many well-meaning declarations to combat problems from nutrition to human rights, but most lacked a road map for measuring progress. However, the Millennium goals were backed by a broad consensus, were clear and concrete, and brought focus to the highest priorities.

This seems like basic good sense, but cynicism, inertia, fear, and self-interest often undermine efforts to gather data and act upon what the data reveal.  It's right to be concerned and careful about data and measurement. It's also right to be hopeful. Pay attention; be heard. The State Bar will help you do both. 

Zombie Invades Body of Judicial Selection Task Force Report

That is the best explanation I can come up with for the weird phenomenon of some editorial writers and op-ed commentators insisting that the report of Michigan's Judicial Selection Task Force recommends scrapping Michigan's system of voters electing judges. Apparently something supernatural is going on that causes the actual text of the "suite of reforms for the electoral process" recommended by the Task Force to vanish from the eyes of some readers and its real recommendations to be turned on their heads. The actual recommendations are grounded on the continuation of the electoral system. They are:

• full, open disclosure of campaign spending
• open, nonpartisan primaries
• a citizens' campaign oversight committee
• voter education guides
• a gubernatorial screening process for filling vacancies that is more transparent and includes nonlawyers, introducing greater accountability into the current system
• eliminating the constitutional age limit on serving as a judge

The Report acknowledges that many members of the Task Force favored a non-elective system of selecting judges, but that viewpoint did not prevail as a recommendation of the whole Task Force. Except for the zombie factor, I guess.

Full disclosure: I served as a member of the Task Force. I saw nothing supernatural occurring during the process of deliberations, just a broad spectrum of members searching for good, practical solutions to some serious problems. The State Bar of Michigan has a long history of advocacy on judicial selection issues, most recently as a proponent of fuller campaign finance disclosure, but has not yet addressed the substance of the Task Force's recommendations. So the point of this post is not to promote the Task Force's recommendations, but instead to point out that we can't have a productive debate about the flaws of the present system and whether and how to improve it until we exorcise this mischievous ghost that's playing havoc with the facts.

Add This to Your Working Vocabulary: Justice Index

Whether or not you agree with the measure proposed by the discussion in this archive of comment on Monday's U.S. Supreme Court decision, Turner v. Rogers, the idea of a "justice index" is compelling.  (Remember that Michiganders are now living in a metrics-driven policy land in which "dashboards" are supposed to be popping up all over the place.)  David Udell at Concurring Opinions reminds us:

Among the facts brightly if indirectly illuminated in Turner v. Rogers by the Supreme Court’s analysis of the relationship between the “right to counsel” and “alternative safeguards,” is that so little is known about the status of unrepresented persons in our state courts and about the assistance available to help them.  So little is known about what is necessary to assure “fundamental fairness” in our justice system.

The conclusion that we need better data if we are to improve our justice system is a fundamental underlying theme of the Judicial Crossroads Task Force report.  Here's what Udell says we need to know:

–the number of people unrepresented in civil proceedings, and the number unrepresented when the other side is represented or when the other side is an entity of government.
–the nature and scope of services available to people who are unrepresented and whether those services are effective.
–the number of people receiving criminal convictions (pleading “time served”) without having received the right to counsel due under Gideon.
–the numbers that would tell us other important things (such as whether people are receiving needed waivers of court fees or needed interpreters).

The whole Concurring Opinion "symposium" on Rogers v. Turner is worth paying attention to.

Changing Courts: Thinking Out of the Crate

The Judicial Crossroads Task Force Report on changes that will transform Michigan's courts points to the need for spreading new problem-solving techniques throughout the state, for better outcomes and savings.  Here's a new one, as described in a Free Press story: "Court Dog Offers Hope, Help to Veterans Facing Legal Trouble."

The Importance of Measurement; The Tyranny of Measurement

The public policy mantra of the moment is metrics -- measuring how we're doing in order to do better.  The State Bar of Michigan is on board (read our ringing endorsement of the need for more and better data and analysis to improve Michigan's court system in the Judicial Crossroads Task Force report). But we need to keep reminding ourselves to be very, very careful that what we're measuring is what really matters.  Jonah Lehrer in his Frontal Cortex blog makes the point, as usual, through an entertaining and thought-provoking illustration.  Read "Measurements That Mislead."

Governor Will Not Fill COA Vacancies, Will Support Bill to Reduce Judgeships

Governor Snyder's press secretary has confirmed that the Governor will not fill the two current vacancies in the Court of Appeals, and will support legislation to eliminate the seats.  "This decision to not fill these two posts reflects the governor's desire to match and align the number of judgeships with a significantly reduced caseload at the court." she said. The Governor's decision is consistent with the position of the Chief Justice, who has also called for judgeship reductions, based on attrition.  The State Court Administrative Office will be issuing its report on judicial needs in August.  According to a story in the Detroit News, the chief of staff and general counsel for the Supreme Court, Matthew Schneider, praised the Governor for taking a courageous and unprecedented step.  "Governor Snyder has taken a bold step to do what is good public policy," he said.

Spotlight on Ottawa County Legal Self-Help Center, and Beyond

Last year Ottawa County joined Kent, Washtenaw, and Berrien counties in offering a legal self-help center.  A year later, the center has served over 3,000 court users.  As in the other counties, Ottawa has found that the center benefits the functioning of the court as a whole and thus benefits all litigants.  Ottawa County Circuit Court Administrator Kevin Bowling told the Grand Haven Tribune that the center has cut down on hearings.  "The need to frequently reschedule cases due to missing paperwork and incomplete preparation has a significant impact on time and expense required to resolve a case," Bowling said.

The value of well-conceived and appropriate services for the self-represented was a key finding in the recommendations of both the Judicial Crossroads Task Force and the Solutions on the Self-Represented (SOS) Task Force.  The option for limited representation is also receiving increased attention.  A somewhat surprising but reassuring finding from the experience of a mature initiative on limited self-representation in Massachusetts is that the limited representation option can increase business for lawyers as it opens out legal services to a wider population.

ABA Calls For Updated Federal Filing System. Can Michigan Get the Used One?

The American Bar Association's House of Delegates unanimously adopted a resolution today calling for the updating of the federal Case Management/Electronic Case Filing (CM/ECF) system.  Meanwhile, Michigan's state courts, like most state courts, are struggling to enter the e-filing era.  The State Bar's Judicial Crossroads Task Force has called for an e-filing system modeled after the federal system's.  How about they just give us their used system?

Here are some of the improvements the ABA Journal says users have called for in the federal system:

• Better integration with other systems.
• Custom notifications, reports and views.
• Automated data exchanges.
• Improved speed and user interface.
• Expanded search capabilities.
• Single sign-on for multiple districts.
• Clearer, more organized dockets.

Judicial Crossroads Task Force: Where Michigan's Court System Should Be Headed

The Judicial Crossroads Task Force Report was made public yesterday, and it points toward a Michigan court system that looks much different than what lawyers and the public are used to.  Here are the bones of the recommendations by the task force, which consisted of equal numbers of judges and lawyers:

Streamline Our Trial Courts and Foster Cost-Saving Collaboration

• Change the way in which courts deliver services from the ground up
• Create a Statewide Council of trial court leaders to steer the course for change
• Use a Justice Advisory Board to create constructive links to all key stakeholders inside and outside the justice system and to plan, coordinate and evaluate justice initiatives throughout the state
• Reorganize structure on a court-to-court basis, using proven strategies for savings
• Base the number of judges in each trial court on accepted and reliable data for achieving savings from potential reductions in judgeships
• Take advantage of both the experience and the impending retirements of “baby boomer” judges to make the transition to the streamlined trial court system successful
• Remove politics from the determination of judicial compensation
• Use the successful techniques of “problem-solving courts” to provide better service and save taxpayer dollars
• Test and implement methods of improving the resolution of business disputes
• Improve public access to fair resolution of tax disputes

Harness Technology to Meet Urgent and Emerging Needs More Cost-Effectively

• Upgrade technology throughout the court system to create a functionally unified information system and consistent data for better planning, efficiency and future savings, and for greater accountability, public trust and convenience
• Mandate and implement uniform technology standards statewide in coordination with state executive branch technology initiatives
• Use technology as a key resource in addressing court services for the blind, hearing impaired, and court users who are not proficient in English, and to improve child welfare outcomes

Fix Fundamental Problems Before They Grow Worse

• Use problem-solving court techniques to achieve better court outcomes
• Coordinate and mobilize resources for to assist those who cannot afford legal services
• Create and enforce statewide standards and state responsibility for the delivery of legal services to indigent criminal defendants to reduce errors and costs
• Create a reliable central website of user-friendly, up-to-date resources combined with local self-help centers for people seeking self-guided information on how to resolve or prevent legal problems
• Create and enforce statewide standards for the imposition of reasonable fees, fines and costs, based on reliable statewide data
• Increase and improve training in child welfare issues
• Develop and enforce policies and practices that create a justice system culture that embraces diversity and inclusion, and train judges and lawyers to serve an increasingly culturally diverse population more effectively and fairly