Should Michigan Supreme Court justices be elected by district?

April 5, 2015

The Mitten Memo. A blog by Nick Krieger. 

One hundred years ago today, April 5, 1915, Aaron V. McAlvay of Manistee was elected to his final term as a justice of the Michigan Supreme Court.  Under the Michigan Constitution of 1908, Justices of the Supreme Court were chosen at the state’s regular spring elections, held on the first Monday of April in odd-numbered years.  Although Justice McAlvay passed away shortly after being reelected, voters selected many other justices from across Michigan over the next several years.

Indeed, throughout the 20th century, Michiganians elected justices from Grand Rapids, Holland, Traverse City, Saginaw, Manistee, Glen Arbor, Adrian, Charlotte, Carson City, Lapeer, Bad Axe, and West Branch just to name a few.  During this same period, several justices were elected from the Upper Peninsula, including famed trout fisherman and author Justice John D. Voelker.

Justice Elizabeth Weaver of Glen Arbor retired in 2010, and was replaced by Justice Alton “Tom” Davis of Grayling.  But Justice Davis’s tenure on the court was brief; he was defeated in November 2010 by Mary Beth Kelly of Wayne County.  This trend has continued.  At the end of 2014, Justice Michael Cavanagh of East Lansing was forced to retire due to age.  Michigan voters selected Richard Bernstein of Oakland County as his replacement.

Today, six of the seven Michigan Supreme Court Justices live within the Detroit-Ann Arbor Combined Statistical Area.  In fact, three of the seven justices live in Wayne County.  Only Justice Stephen Markman of Mason lives outside Southeast Michigan.  There are currently no Supreme Court justices from west Michigan, northern lower Michigan, or the Upper Peninsula.

While it might not be self-evident, the actions of the Michigan Supreme Court affect our daily lives in many ways.  Michigan is a common-law jurisdiction.  This means that a great deal of our law is made by the Supreme Court justices rather than by the Legislature.  Don’t be fooled when you hear that judges don’t make the law but merely “apply it as written.”  In many cases, this simply isn’t true.  Contract law, tort law, and property law are all fundamentally based on judicial decisions rather than acts of the Legislature.  Therefore, the justices of the Michigan Supreme Court have the final say in these areas.  For example, there is no state statute defining the elements of a contract.  It is the Supreme Court justices who ultimately decide what a contract is, when it has been breached, and whether the injured party may sue for damages.

In short, the justices of the Michigan Supreme Court have extraordinary power but are virtually unknown to the majority of Michigan residents.  Most of the Justices live in the Detroit area.  Their names mean little, if anything, to the average voter in places like Ludington, Scottville, Bear Lake and Hart.

But what if Michigan’s seven justices were elected from individual districts rather than on a statewide basis?  Here’s how it would work:  The state would be divided into seven districts of equal population, and each district would send one justice to Lansing to serve on the Michigan Supreme Court.  Instead of electing seven unknown judges (most likely from southeast Michigan) on an at-large basis, Michigan voters would choose one justice from their own geographic area.  This would not only ensure that a majority of the justices could no longer be from the same county or region, it would also increase the likelihood of voters’ familiarity with the candidates and their backgrounds.

The justices of the Michigan Supreme Court should be representative of Michigan’s population as a whole.  Once they were.  But we no longer elect justices from places like Manistee, Newberry, or Ishpeming; it just doesn’t happen.  As Supreme Court campaigns become more costly and complex—increasingly relying on big-dollar contributors and expensive television advertising—candidates must spend time raising money in Michigan’s wealthiest and most-populous areas.  It necessarily follows that most candidates hail from Wayne, Washtenaw, Oakland, or Macomb counties.  Few attorneys in northern Michigan have the money or connections necessary to compete with these individuals.

With districts, however, candidates would only compete against individuals from their own area.  No longer would Justice Davis of Grayling be forced to run against Justice Kelly of Wayne County.  Instead, Justice Davis would run against candidates from his region in one district.  And Justice Kelly would run against candidates from her region in a different district.  The system would result in a more geographically diverse Supreme Court, consisting of seven different voices from all across Michigan.  There is no way that the court’s decision-making process would not benefit from such statewide representation.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates, Mason County Press, Manistee County Press, Oceana County Press.  Contact Nick via e-mail at [email protected] or follow him on Twitter at @nckrieger.

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