MICHIGAN DEMOCRATS AIM FOR CONTROL OF STATE COURT OF APPEALS

HOW MUCH MORE ‘HARD BALL’ DO DEMOCRATS WANT TO PLAY?

Bear with us on this one — we’re really going into the weeds. If you stick it out, you’ll be rewarded with greater knowledge on a critically important political development that’s been almost completely ignored by the “legacy” or MSM (MainStream Media).

As reported in an earlier column of TBR, the Michigan Supreme Court experienced a judicial coup d’etat in 2018 when then-Chief Justice Stephen Markman was overthrown, in all but his title, with the defection of two Republican appointed justices, Beth Clement and David Viviano, who joined two Democratic Party convention-nominated justices Bridget McCormack and Richard Bernstein to achieve a 4-3 majority in a lawsuit on how Congressional and state legislative redistricting will be done.

One of the consequences of that Court decision was that control of the state legislature flipped following the 2022 elections, giving Democrats a two-seat majority in both the state House and state Senate.

That this new Democratic legislative majority proceeded on party line votes to rewrite Michigan election and labor laws was no surprise. However, the introduction of a bill entitled HB 5131 with little fanfare was unexpected. 

The bill’s sponsor, Phil Skaggs (D-HD 80), is in his first term. He resides in East Grand Rapids, the city Gerald Ford called home before his presidency. Skaggs was a history professor at Aquinas College before leaving academia in 2010. He then worked for the League of Conservation Voters, managed many political and ballot campaigns, and later served as legislative director to State Representatives Brandon Dillon and later Dave LaGrand. Skaggs’s experience as a local government official began on the East Grand Rapids city commission and later on the Kent County Board of Commissioners before his election to the state House in 2022.  In Lansing, Rep. Skaggs serves on the House Appropriations Committee.

HB 5131 can be viewed as an effort to stack the makeup of the Michigan Court of Appeals now that Democratic Party-nominated justices and their allies have achieved a solid majority on the Michigan Supreme Court.  

Before voters voted to ratify Michigan’s 1963 Constitution, there was no intermediate appellate court in Michigan. All appeals from circuit courts and recorders court had to go through the Michigan Supreme Court. The Supreme Court denied most motions for leave to appeal, granting motions for leave to appeal to just a tiny fraction of cases requesting leave. An intermediate appellate court would allow most cases to have an appeal as of right — just as, at the federal level, most cases end at the U.S. Court of Appeals. 

At the 1961-62 Michigan Constitutional Convention, the Committee on the Judiciary was chaired by Delegate Bob Danhof, a former U.S. Attorney for the Western District of Michigan. That committee revised Article VI to reduce the Supreme Court from eight to seven justices and eliminated justices of the peace across the state, replacing them with district courts with judges who had been admitted to the practice of law.

The Committee on the Judiciary also included in its proposal to the full convention an intermediate Court of Appeals. It called for the nomination and election of judges on the appellate panel to be by non-partisan election. Instead of electing Court of Appeals judges statewide, they would be elected from districts of roughly equal population using whole counties to draw the district boundaries. The number of judges on the Court of Appeals and boundary lines of those districts was given to the Legislature to determine “in manner provided by law.”  

The Court of Appeals (COA) originally consisted of nine judges, three of which were elected in each of three districts. In 1964. Wayne County alone was one COA district, electing three judges.The second COA district contained 16 counties, and the remaining 66 counties made up District 3. .

Over the years, the number of COA judges grew as well as the number of districts they were elected from to accommodate the COA case load. From 9 to 12 judges in 1969, from 12 to 18 in 1974, from 18 to 24 in 1988, and from 24 to 28 in 1993. As time went on, circuit court judges from across the state were assigned by the State Court Administrator Office (SCAO) to serve on COA panels with two other COA judges. Over the years the number of districts grew from three to four. 

The SCAO periodically does workload studies and makes recommendations.  For example, some circuit courts need additional judges and other circuits should have the number of judges in that circuit reduced.  That reduction occurs by attrition.  When a judge reaches the age of 70 and is constitutionally ineligible to seek re-election that judgeship is eliminated. The legislature may or may not act on those recommendations. 

Back when Robert “Bob” Young was Chief Justice, he supported the SCAO recommendation that COA workload no longer justified 28 judges, finding that 24 COA judges would be sufficient.  

In 2011 Governor Snyder appointed Justice Maura Corrigan to be his Director of the Department of Human Services. To fill her vacancy on the Supreme Court, Governor Snyder elevated COA judge Brian Zahra to the Supreme Court, creating a vacancy on the COA.  Attorney General Bill Schuette in 2011 asked COA judge Rick Bandstra to become his Chief Legal Counsel.  Bandstra resigned his judgeship to accept his AG appointment thereby creating a second COA vacancy. 

Governor Snyder chose not to fill those vacancies and let the seats be phased out by attrition toward that 24 COA judge level. 

Republican legislators called Snyder’s position not to fill those COA vacancies “gubernatorial malpractice.” Legislators dug in their heels, reminding the Governor that when they redistricted the COA before the 2012 election, seats to fill those COA vacancies would be on the ballot. They warned the Governor by saying those two open seats would allow a candidate with ties to Democrats not to have to face a newly appointed incumbent with a ballot designation under his or her name reading Court of Appeals Judge. In the history of the COA, no incumbent judge has ever been defeated for re-election — every judge knows it’s the best job security in the judiciary. Highly qualified candidates for the Supreme Court have turned down appointments because they thought there was a better chance to be re-elected to the COA than to the Supreme Court.

Negotiations continued into 2012, when a compromise was struck. Governor Snyder would fill the Zahra and Bandstra vacancies. The COA redistricting bill would be amended to say if a COA judge resigned before the end of his or her term of office, the governor could fill the vacancy. If the judge did not resign and was constitutionally ineligible to seek re-election that judgeship would be eliminated. Under that scenario, attrition leaves 25 judges currently serving on the COA. 

Voters Not Politicians (VNP), when drafting their constitutional amendment that was adopted in 2018, did not give the Independent Citizens Redistricting Commission authority to redistrict Court of Appeals districts.  That power is retained by the Legislature. The 2021-22 Legislature did not redistrict the COA, claiming population changes reflected in the 2020 census did not require changing the existing four district boundaries. 

HB 5131 in some ways is audacious. It creates five districts instead of four. It expands the number of judgeships on the COA from the current 25 to 30. Each district will have six COA judges. 

Most of the current four districts will be substantially reconfigured.  

District 2 loses Macomb County, but it adds Saginaw and Lapeer while retaining Shiawassee, Genesee and Oakland Counties.

District 3 will contain the entirety of the Upper Peninsula PLUS almost all of Northern Michigan stretching all the way south to Muskegon and Kent Counties. This district will elect a new sixth judge in 2024.

District 4 would contain 13 counties beginning in Macomb, north through the Thumb, over to Bay, up to Iosco, then down to Midland, Gratiot, Clinton, Ingham, and Livingston Counties. This district will also elect a new sixth judge in 2024.

So, two of the five districts, Districts 3 and 4, will elect a new sixth judge in 2024.

District 5 would be the newly-created district and would embrace “state line’ counties stretching east from Berrien over to Hillsdale, up to the next tier of counties beginning with Washtenaw and going west including Jackson, Calhoun, Kalamazoo, and Van Buren counties, then up to the next tier of counties by adding Allegan, Ottawa, Barry, Ionia, and Eaton counties. This district will elect four new COA judges in 2024.

District 1 will shrink to just Wayne, Monroe, and Lenawee counties. It has six judges. One of its current judgeships will be eliminated due to attrition because an incumbent’s term expires in 2024 and the judge is constitutionally ineligible to seek re-election.  

Will HB 5131 be fast tracked? When the bill was introduced, Speaker Joe Tate (D-Detroit) assigned the measure, not to the Judiciary Committee, but to Government Operations. That Committee is generally where bills go to die. However, it can also be a committee where a controversial bill can have a pro forma hearing and be reported out quickly on a party line 3-2 vote for floor action.

For example, in 2013 legislation was introduced which took the Michigan Court of Claims out of Ingham County Circuit Court, where lawsuits against state officers were routinely filed and litigated and placing the Court of Claims with the Michigan Court of Appeals where four COA judges would be assigned by the Supreme Court to serve as judges on the Court of Claims.

This controversial Senate bill, when it was sent over to the House, was referred to the Government Operations Committee, but it didn’t die there. It was reported out by majority Republicans, passed by the full House, and signed into law by Snyder.

Is that what will happen with a bill that still may be introduced to return the Court of Claims to the Ingham Co. Circuit Court, where Democrats have enjoyed a big historical advantage? If such a bill is introduced, almost certainly. The only chance to stop such a move would be for the Supreme Court, also dominated by Democrats, to signal that that isn’t it a good idea and the justices would prefer things remain the way they are. In fact, they might do that now with House Dems’ court-packing scheme.

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