How Partisan Politics Has Shaped Michigan’s Judiciary

(Posted June 9) It was a case of “Be careful what you vote for, you may get it.”

The heavily Republican 1961-62 state Constitutional Convention knew what it wanted — to stop Democratic governors from packing the state’s judiciary with left-leaning judges and justices. And the majority GOP delegates were successful in putting such language in the new Michigan Constitution.

But, of course, those words also stopped Republican governors from appointing conservatives to fill judicial vacancies. After five years, with unfilled judicial vacancies sprouting like mushrooms, the state’s political establishment realized that what Con-Con had done was a horrible mistake, and voters were asked to amend the state’s brand-new document to fix the problem, which they did.

And that prompts a question: which Levin helped other family members the most at the ballot box — Charlie, Sandy, or Carl? More about that later.

Let’s look at the issue another way: in 2016, incumbent Supreme Court Justice Joan Larsen, who has never run for office before, will have her name on the Nov. 8 general election ballot to fill out the two-year portion of the unexpired term of her predecessor, Mary Beth Kelly, who resigned last year to return to private practice. Beneath Larsen’s name on the ballot will read: “Justice of the Supreme Court,” which is worth its weight in electoral gold and gives her a strong advantage over any opponent.

If Michigan’s current constitution had not been amended in the 1968 primary election by statewide voter approval of Proposition 3, Larsen wouldn’t be so lucky. Larsen and perhaps four other Michigan justices might not be the same people who serve on the court today. That’s because, without the 1968 amendment, the Constitution did not allow Michigan governors to fill Supreme Court or any other judicial vacancies. Vacancies could be filled only in a special election or in the next general election, and there would be no incumbency ballot designation.

Today, only justices Bridget McCormack and Richard Bernstein — both Democratic nominees — initially joined the court by election. The five Republican justices all got to their current posts by virtue of appointment. Former Gov. John Engler appointed Stephen Markman and current Chief Justice Bob Young; Gov. Rick Snyder has appointed Brian Zahra, David Viviano and Larsen.

Back in 1948, when Democrat G. Mennen (Soapy) Williams ousted one-term incumbent Republican Gov. Kim Sigler, few realized Williams would go on to be re-elected to five more two-year terms for a then-record 12 years in the executive office. He then was succeeded by his Lieutenant Governor, John Swainson, for the two years during which time Con-Con was in session. That meant 14 years of uninterrupted Democratic governors, which left a legacy. Williams and Swainson could fill any judicial vacancy that occurred via death or resignation during their tenures without worrying, as a U.S. President might (and is now), about “advise and consent” by the state Senate, which was controlled by Republicans all 14 years Williams and Swainson were in office. The 1908 Michigan constitution then in effect permitted governors to fill all judicial vacancies unimpeded, so Williams/Swainson named hundreds of judges to courts of record across Michigan — recorder’s court, circuit court, probate court and the Supreme Court. A huge percentage came to the bench by way of gubernatorial appointment, not by a vote of the people. In the first election after their appointment, when the appointee’s name was on the ballot seeking to fill out either the unexpired vacancy (like Larsen this year) or seek a full term, underneath the appointee’s name would be the title of the judicial office sought (in other words, the incumbent received an incumbency designation even if s/he had never been elected to the post). Later, during the convention, Supreme Court Justice George Edwards (who had been appointed by Williams) testified before Con-Con’s Committee on the Judicial Branch that the incumbency label that was given to an appointee gave that appointee a 25% advantage toward winning election.

On April 4, 1961, Michigan voters approved a call to convene a Constitutional Convention. Later that year, 144 delegates were elected (one delegate from each of the existing 110 state House districts, and one delegate from each of the then-existing 34 Senate districts). This unicameral Convention was elected in special primary and general elections. When Con-Con was seated on Oct. 3, 1961, in Prudden Hall of the Lansing Civic Center, 99 of the delegates had been elected by Republicans and 45 by Democrats. This GOP dominance would shape the drafting of many sections of a new constitution.

Republican delegates had no idea in 1961-62 that over the next 15 gubernatorial elections in Michigan, 11 of them would elect Republican governors. Like army generals who prepare to fight only the last war, GOP delegates were bent on removing gubernatorial appointment as a means to fill judicial vacancies.

Con-Con’s Committee on the Judicial Branch, chaired by delegate Robert Danhof,  submitted a report to the full convention that required all judicial vacancies to be filled at either a general or special election. The report also said an incumbency designation would apply only to a judge who had previously been ELECTED, not one who had been appointed without being subsequently elected. Danhof was a delegate from the senate district comprising Muskegon and Ottawa Counties. Interestingly, later in his career Danhof was appointed (in 1969) by Governor William G. Milliken to the Michigan Court of Appeals, where he would serve as chief judge from 1976-92.

These two recommendations of Danhof’s committee were sold as an attempt by the Convention to make a judiciary a truly “elected” judiciary, not some hybrid “appointed” judiciary. Of course, eliminating judicial appointments to fill vacancies meant finding retired judges to handle mounting unaddressed caseloads while scheduling special elections or waiting for a general election to occur.

Not surprisingly, Democrats strongly opposed these changes, mainly because they realized their governor, John Swainson, was about to lose an important appointment power but perhaps because they were more prescient than the GOP about troubles that might ensue. Delegate William Ford of Taylor, who would later serve 30 years in Congress (1965-1995) led the debate against the committee’s proposal, but he and his fellow Dems lost. The Danhof-sanctioned changes became part of Article VI, Sections 23 and 24. The voters of Michigan on April; 2, 1963, narrowly approved the new Constitution, including the fatal section, by about a 7,500 vote margin. A statewide recount did not change the results.

One of the first beneficiaries of this constitutional change was attorney Charles Levin, a cousin to two then-obscure brothers named Sander and Carl Levin. In 1966, Charles Levin was practicing law in Detroit (his cousin Sander was a freshman state senator). On June 1 of that year, one of the nine original judges elected  in 1964 to the state’s new Court of Appeals, John Watts, died while on the bench. Charlie Levin ran in the special election that was called to fill the vacancy in a populous appellate district in covering all of Wayne County. Without the 1963 constitutional change, REPUBLICAN Gov. George Romney could have appointed some deserving Republican to fill the seat and in the next general election that Romney appointee could have carried the incumbency designation on the ballot (by the way, no incumbent Appeals Court judge, in half a century, has EVER lost an election). Instead, Charles Levin, running in an open race with no incumbent, beat Jim Brickley (a future lieutenant governor and supreme court justice) in the 1966 special election.

Six years later, in 1972, Chuck Levin, realizing he was unlikely to be nominated by either major party for the state Supreme Court, formed his own political party by hiring “Kelly Girls” normally associated with doing temporary clerical work to collect petition signatures to place his new “Independent Party” on the statewide ballot. Once qualified, this party dutifully nominated Levin for the Supreme Court. With his name on the non-partisan November ballot, Levin finished first to secure an eight-year term (he even ran ahead of Republican-nominated Mary Coleman of Battle Creek, although both were elected).

In 1980 and 1988, Levin didn’t have to work quite as hard. Declining any major party nominations, he took advantage of another constitutional proviso available only to supremes — he simply filed an affadavit to have his name placed the ballot. Of course, that allowed him to also utilize the vaunted incumbency designation.  He won easily both times. In 1996, he had passed age 70 and was ineligible to run again, but it’s appropriate that his seat was won by someone named Kelly — Marilyn Jean Kelly, who later became the high panel’s chief justice.

Meanwhile, Sandy Levin ran twice for governor, losing narrowly in 1970 and again in 1974 but later winning election to the U.S. House of Representatives (in 1982), in which he still serves. Carl, of course, was elected president of the Detroit city council in 1977 and, in 1978, to the U.S. Senate, where he served a Michigan-record six terms.

By 1968, it was obvious Michigan’s new Constitution needed some fine-tuning. The Legislature, narrowly controlled by Republicans, passed three joint resolutions to amend the state Constitution, acquiring a lot of Democratic votes to gain the necessary 2/3 majority vote in each chamber (no governor”s signature was needed) to place those questions on the Aug. 6, 1968, statewide primary election ballot. Two of the three proposals related to the judiciary: Proposal 1 established a judicial tenure commission; and Proposal 3 authorized the governor to fill judicial vacancies by appointment and allow that appointee to carry an incumbency designation (before 1964, such a designation had been in force only by statute).

Proposition 3, which had been House Joint Resolution “F,” received the following vote: Yes, 494,512 votes; No, 266,561 votes.

Neither Proposition 1 or 3 has ever been controversial. They worked. But what about Proposition 2? That was the question of whether to establish a “state officers compensation commission” to determine salaries for legislators and other top state officials. That, too, was approved by voters in 1968, but it’s been far more troublesome in the decades since and has had to be amended by a subsequent vote of the people.

Meanwhile, the judges — and governors’ power to appoint them — have been home free.

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