Friday, September 23, 2011

Electing Judges

Most people will only appear before a Judge one or two times in their life. A traffic ticket, minor issue with the landlord. Unsurprisingly, absent those few instances, the judges within the judicial system are completely unknown to the public.

How many times have you entered the voting booth and not have a clue about any person running for judicial office? Of course…why would you? It will never make a difference to you whether “Smith” or “Jones” becomes the local magistrate…until you are in front of them…

You will then discover Judges have a broad power termed “discretion.” It means, within certain parameters, they can do what they want and there isn’t a damn thing you can do about it. For example, in Michigan we have sentencing guidelines to standardize punishment. Theoretically, one should receive the same sentence whether the crime was committed in Wayne County, Kent County or Ontonagon County. The probation department prepares a report, assigning values depending on actions within the crime (how many victims, was a weapon involved, etc.) and the defendant’s past criminal history.

Once that number is determined, it is plugged into a “grid,” providing the minimum sentence the defendant will serve. The number could be “0 – 12” for example, meaning the minimum sentence imposed by the court will be 0 months to 12 months. (The maximum sentence is always determined by the crime. E.g. “Mayhem” will always result in a maximum sentence of 10 years. MCL 750.397.)

It is possible to have a minimum range as broad as “0 – 36”—meaning the judge has the full discretion to allow the defendant to walk out the courtroom OR put them in prison for 3 years. And no appellate court will set aside either sentence. How would you like one person to have that much control over what you will be doing for the next 3 years?

Or take a monetary case. Even a simple case involving $10,000, the judge can decide to award $0; $5,000; or $10,000 dollars. Think the Plaintiff was probably a little in the wrong? Shave the amount down to $7,500. Think the Defendant should pay something, even if the Plaintiff has no case? Give ‘em $1,000.

Time and again, we walk out of courthouses, and client says, “Where did the Judge come up with THAT number?” I shrug—it is within Judge’s discretion. They wanted a particular result and managed to mangle a way to it.

Now think about a small business in a community. Hospitals getting sued for malpractice and suing to collect bills. A Management company taking numerous tenants to court. These are businesses appearing before the courts dozens, even thousands of times. Not just once.

When the judge is running for re-election, it behooves the business to provide monetary and political support, knowing how many times they will be appearing in the Judge’s court over the next six years.

More important than the business, we lawyers understand how many times we will be appearing in that courtroom. And it is to our benefit to provide monetary and political support to the winning judge. Will we get a murderer off because we put the Judge’s banner in our yard and contributed to her campaign? No. Will we get an extra adjournment if we want it? Very likely.

Needless to say, Judgeships become political creatures. They prevail on three factors: 1) gender (females have a slightly better chance), 2) Name recognition and 3) Advertisement. To get one’s name out (for the recognition) costs money. Often the judge voted in is the one who spends the most. Plain and simple.

What if you felt wronged by a local business and take them to court, only to face a business (who contributed to the judge’s campaign), represented by a lawyer (who contributed to the judge’s campaign)? Would you be concerned? Understand, most judges do not like being reversed on appeal, so they will not deviate too far from the law…but within their discretion, they have a wide variety of options. What are the chances that discretion will bend in your favor?

One can start to see the concern in electing judges. First, we are back to high school; voting the most popular to become Class President, not necessarily the most qualified. Second, the mechanics of election (and re-election) invite political favoritism. Whether we admit it or not.

All this was going through my mind as I read this article on the Iowa Justices who ruled gay marriage was constitutionally protected in Iowa. See, in Iowa, they apparently attempted to reduce the political impact by interviewing and appointing Supreme Court Justices on merit, rather than popularity. To get input from the State Bar as to who was qualified, and question them before even allowing them on the ballot. (In Michigan, any lawyer who as been licensed for 5 years could potentially run and sit on the Michigan Supreme Court. They wouldn’t have to ever be a judge—indeed they wouldn’t have to practice law a single day! Just be licensed.)

Alas, after ruling in favor of gay marriage, the Tea Party targeted these three judges (labeling them….can you guess? Starts with “act” and ends with “ivist.”) and for the first time in their career, they had to respond in a political campaign to defend their positions. Of course, they bungled it, and lost.

The Tea Party declared it a victory—“We showed ‘em!” I see it as a loss to the judicial system. Iowa—you are better served by having qualified persons interviewed and recommended than having John Q. Public picking “Francis O’Brien” because they saw his sign more than his competitors.

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