SBM Blog

Breaking: SOCC Recommends 3% Judicial Pay Increase, No Other Changes

Gongwer News is reporting that the State Officers Compensation Commission (SOCC) this morning voted unanimously to recommend a 3% increase in the compensation of Michigan Supreme Court justices. Current law ties the salaries of all state judges to Supreme Court salaries, so the recommendation is in effect a recommendation for a judicial branch increase.  The recommendation does not take effect without approval of both houses of the Michigan legislature. Judicial salaries in Michigan have been frozen since 2002.

Campaign Finance Disclosure, Corruption, State Capitols, And Geography

In a forum tonight at Cooley Law School a panel consisting of former Senate Majority Leader Ken Sikkema, Michigan Campaign Finance Network Executive Director Rich Robinson, and interim Wayne State Dean Jocelyn Benson addressed the topic of "Money in Politics."  Benson made a passionate plea for a state constitutional amendment to require immediate and full disclosure of the source of all campaign electioneering expenditures. Robinson described the outsized role that "dark money" has come to play in Michigan races, with special emphasis on judicial campaign funding. (Note: The State Bar of Michigan supports full disclosure of electioneering expenditures in judicial campaigns.) Ken Sikkema offered the practical and skeptical perspective of a veteran politician, especially lamenting the way in which third-party expenditures have weakened the role of candidate committees.

What all the panelists agreed upon was the need for full campaign finance disclosure.

There was no consensus about the extent to which money in Michigan politics has been corrupting. Ken Sikkema in particular defended Michigan legislative politics as relatively scandal-free, especially as compared with, say, New York. Coincidentally, today's Washington Post Wonkblog says that studies show a correlation between a state's corruption and how remote its state capitol is, specifically “isolated capital cities are robustly associated with greater levels of corruption.”

Photograph: Dave Parker (2006), interior of Michigan Capitol Building

U.S. Supreme Court Sides With Michigan Supreme Court in Another Habeas Case

The issue in Metrish v. Lancaster was whether a diminished capacity defense ever existed in Michigan, and if so why and for how long; an underlying issue was who makes criminal law.  Lancaster had pled diminished capacity in his 1993 murder trial, but was convicted. That conviction was overturned for jury selection errors. The Michigan Supreme Court in 2001 said that the legislature had effectively abolished the diminished capacity defense if it ever even existed in Michigan, and denied the use of the defense to Lancaster in his 2005 retrial, and the federal district court agreed. The 6th Circuit, however, held that Lancaster was entitled to use the defense in his retrial. Today, the U.S. Supreme Court in a 9-0 decision by Justice Ruth Bader Ginsburg released just 27 days after oral argument, agreed with the Michigan Supreme Court. Lyle Deniston at SCOTUSBlog says "generously" interpreted the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, but did not appear to make much new law on retroactivity doctrine.

Interdisciplinary Nerds On How Supreme Court Justices Decide Cases

There's been much attention paid lately to how appellate judges make decisions, what the influences are, and the perils of predicting Supreme Court decisions -- whether, for example, the left-leaning liberal legal academy blew the predictions about how the Court would treat Obamacare because, well, it is comprised of left-leaning liberals. The question of how judges decide cases takes on greater seriousness as the debate about the implications of "dark money" in judicial campaigns intensifies. In Michigan, a soon-to-be-published tome by former Michigan Supreme Court justice Elizabeth Weaver appears poised to add fuel to the flames.

If you're up for a whole book on the subject of judicial appellate decisionmaking (albeit of non-elected judges), you can read The Behavior of Federal Judges, A Theoretical and Empirical Study of Rational Choice by Lee Epstein (political scientist), William Landes (economist), and Richard Posner (federal judge), just published by Harvard University Press. Or, read Cass Sunstein's piece about the book, "Moneyball for Judges," in The New Republic. Among other things, the new book addresses the importance of ideology on the decision-making of a Supreme Court justice, explaining that advancing ideology "enhances the internal satisfactions of the judgeship” and also likely helps justices to “reap prestige, exert power and influence, and achieve celebrity, from attempting to align the law with [their] ideological commitments.”

If you're looking for another thought-provoking analysis of appellate decision-making, it's time to dust off an old (2004) instant classic, the Supreme Court Forecasting Project, by another interdisciplinary team -- Theodore W. Ruger (law), Pauline T. Kim (law), Andrew D. Martin (political science), and Kevin M. Quinn, (political science). You'll find their essay, The Supreme Court Forecasting Project: Legal And Political Science Approaches To Predicting Supreme Court Decisionmaking, in Columbia Law Journal, Vol. 104, No. 4, May, 2004. The study compared the results of experts' opinions to the results of a statistical model that used only six variables: (1) circuit of origin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.); (4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court ruling; and (6) whether the petitioner argued that a law or practice is unconstitutional. Looking at the cases argued in the U.S. Supreme Court term, the model they constructed predicted 75% of the Court’s affirm/reverse results correctly.  Collectively, legal experts had only a 59.1% success rate.

The study acknowledges the model's limitations:

There will always be some cases that depart from the general pattern, and the skillful advocate will be able to exploit distinctive facts, or make novel connections between legal principles in ways that reinforce or counteract these general trends, to the client’s advantage. Moreover, a statistical model such as this one, which assumes that past behavior best predicts future behavior, is a necessarily limited way of modeling the judgments of real human beings who are capable of evolving over time. What the model can do is to assess systematically what good lawyers know already in a rough sense: that some cases are better shots than others, and relatedly, that on particular cases some Justices’ votes will be easier to get than others.

The study also acknowledges an important truth -- that the reasoning of a decision is just as important, if not more important, than the outcome because the ways in which a court addresses disputes through its rationales, its analytical framework, and its language, "both gives voice to certain values and influences public understanding of these issues."

Michigan Supreme Court Order On Right To Work Advisory Opinion Hints At Split Over Fundamental Question

The nature of the questions asked and the dissents to the Michigan Supreme Court order released Saturday inviting the solicitor general to "express the views of the state of Michigan" as to whether the Court should grant the governor’s request for an advisory opinion about the new Right to Work legislation hint at an interesting difference of opinion about the advisory opinions. The order asked the solicitor general to address:

1. Why prompt resolution of the constitutional question regarding application to the Civil Service Commission is necessary to guide the state employer in its fall contract negotiations with civil service employees.
2. Why the matter warrants the Court’s present intervention when § 14(4) of 2012 PA 348 and § 10(6) of 2012 PA 349 explicitly grant “exclusive original jurisdiction over any action challenging the validity of [the pertinent subsections]” in the Court of Appeals, which “shall hear the action in an expedited manner.”
3. How the Court’s intervention in the absence of an actual case and controversy would necessarily aid in resolution of the issues presented rather than produce confusion and delay, given that there are adversarial proceedings already pending in several courts, and in light of the non-precedential nature of an advisory opinion, see Anway v Grand Rapids R Co, 211 Mich 592, 603 (1920); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 460 n 1 (1973), .
4. The value of an advisory opinion from this Court addressing federal equal protection issues since federal courts are not bound by state court determinations on federal constitutional issues, see Woods v Holy Cross Hosp, 591 F2d 1164, 1171-1172 (CA 5, 1979).

Justice Cavanagh, in dissent, said that he does not agree with soliciting the solicitor general's contribution while the governor's request remains pending and does not believe that the majority’s order should in any way affect pending adversarial proceedings. Justice Markman, in apparent agreement that the solicitor general's views are not needed, would grant the governor's request without further delay:

If there is an obvious purpose behind the advisory opinion clause of the Constitution, it is to facilitate the resolution of legal disputes of precisely the sort raised by this case.

"The Party's Over" For Michigan Supreme Court?

For Michigan Supreme Court watchers, yesterday's prevailing theme turned out to be the role of partisan politics on the Court. The whole Court, a number of former justices, and scores of supporters of the Michigan Supreme Court Historical Society turned out to celebrate the 25th anniversary of the Society at a luncheon at which they heard former justice Thomas Brennan and Cooley Law School founder deliver remarks entitled "The Party's Over."  He told the Society leaders that he kept the title and the contents of his remarks under wraps, sharing them only with his wife Polly. The message, in a nutshell, turned out to be "dump the partisan nomination of Supreme Court justices," a view in line with recommendation of the Judicial Selection Task Force, a nonpartisan group headed by former chief justice Marilyn Kelly and former justice and 6th circuit federal judge James Ryan, who were both in attendance.

Coincidentally, the Court yesterday issued two high-profile decisions on issues with strong partisan overtones.  In both cases the decisions were unanimous.  In Attorney General v. Civil Service (SC Docket No. 146616), the Court declined to hear the Attorney General's challenge to health care benefits for unrelated adults living with state workers covered by civil service. In Hammel v Speaker (SC docket No. 145916), the Court rejected the former House Democratic leader's challenge to the way in which the House majority decided immediate effect votes in the House.

MSC Aims To Eliminate Confusion With Amendments to Code of Judicial Conduct

In a recent order, the Michigan Supreme Court has clarified which activities are allowed or prohibited under the Code of Judicial Conduct. The order zeroes in specifically on fund raising, strengthening the language prohibiting a judge from individually soliciting funds (noting that the prohibition applies equally to law-related and nonlaw-related activities), but making clear that a judge may engage in certain activities, such as allowing the use of the judge's name in support of an event. The prohibition against a judge accepting a testimonial has also been removed.

The most significant changes are to the language of Canons 4 and 5, which are now combined into one canon. Canon 4D, entitled "Fundraising Activities" indicates that a judge may not individually solicit funds for any organization, including organizations "devoted to the improvement of the law, the legal system, or the administration of justice... ." However, it adds that a judge may "allow his or her name or title to be used in advertising the judge's involvement in an event so long as the judge does not individually solicit funds."

As the staff comment indicates, nearly all of the language in the canons was retained, and the new language was designed to more clearly describe the types of activities that are allowed or prohibited  "which until now had been undefined and therefore the source of confusion."

The amendments take effect on Sept. 1, 2013.

 

Michigan Supreme Court Seeks a New General Counsel

The Michigan Supreme Court is seeking qualified applicants for the position of Supreme Court general counsel. The person in this position provides legal counsel to the chief justice, the justices, the state court administrator, and the staffs of the Michigan Supreme Court and the State Court Administrative Office, and oversees issues involving interaction between the executive and legislative branches of federal and state government.

A qualified applicant will have a juris doctor from an accredited law school, more than seven years of legal experience, and active membership in the State Bar of Michigan. The candidate will also possess strong legal research, writing, and oral presentation skills. Knowledge and background in the legislative process and government administration are preferred.

To apply send your cover letter and resume in Microsoft Word format or as PDFs to jobapps@courts.mi.gov. View the complete job posting.

The new Supreme Court counsel will succeed Matthew Schneider, who has accepted a position as chief legal counsel to Michigan Attorney General Bill Schuette. In March, Schneider was recognized as a “Leader in the Law” by Michigan Lawyers Weekly for, among other achievements, his contributions to court and judicial reform. Before joining the Supreme Court in 2011, her served as an assistant U.S. attorney in Detroit in the Public Corruption Unit, which investigates and prosecutes corrupt public officials, organized crime, drug traffickers, and others. From 2002-2003, Schneider served as senior advisor and assistant general counsel in the White House Budget Office, where he provided legal and policy advice to cabinet members and senior presidential staff. From 2000-2002, he was an associate in the Washington, D.C. law firm of Wiley, Rein & Fielding L.L.P., where he advised clients on business and trade issues. A 2000 graduate of the University of Michigan Law School, Schneider is an adjunct professor at the Michigan State University College of Law, where he teaches advanced criminal procedure.

Miranda Alert: Michigan Supreme Court To Reconsider Bender

On Wednesday, the Supreme Court granted an appeal in Michigan v. Tanner, and instructed the parties to address whether the 1996 decision, People v. Bender, should be overruled. Bender announced a "Michigan Rule," holding that police failure to inform a defendant that counsel has been retained and was attempting contact violated the state constitution and required suppression of statements made by the defendant after the point of the failure. Bender's lead author was Michael Cavanagh -- the only member still on the Court -- joined by Charles Levin, with separate concurrences by Conrad Mallett and James Brickley.  The dissent was authored by Patricia Boyle, joined by Dorothy Comstock Riley and Elizabeth Weaver. Here's the explanation of the Michigan Rule from the lead opinion (footnotes and citations removed):

Prof. Marilyn Kelly Returns To The Classroom

After a prolonged absence from the classroom pursuing other interests (practicing law, serving on the Michigan Board of Education, Court of Appeals, and Supreme Court, and the occasional operatic appearance) Marilyn J. Kelly is returning to teaching as Wayne State Law School's first “distinguished jurist in residence.”  Her prior professorial experience?  As a French professor at Albion College and Eastern Michigan. Félicitations, professeur!