Guy Gordon (00:00.893)
Hello and welcome to the Facts Matter Podcast. I’m Guy Gordon with Eric Loufer, president of the Citizens Research Council, very firmly believing that facts should drive policy, not politics. Eric, chapter six of the Con Con Conversation.

Eric Lupher (00:17.538)
We’re working our way through it. A few more to go.

Guy Gordon (00:19.527)
That’s right. And for those of you that aren’t sure what we’re talking about, if this is your first stop by Michigan voters, we’ll be asked in November whether or not this is a c question that comes up every dozen years. Is that correct? Every sixteen years, Michigan voters are asked whether or not they want to have a constitutional convention to basically reopen Michigan’s Constitution, which has been around since nineteen sixty-three. and we have looked at every article of the Constitution one through five. This is number six, and today we’re looking at the

Eric Lupher (00:31.64)
Sixteen years. Yep. Every sixteen.

Guy Gordon (00:49.573)
judiciary. Not one of those areas where there has been a lot of successful attempts at amending the Constitution area.

Eric Lupher (00:58.316)
No, it this was one article of the Constitution that you would argue that the sixty three convention got right in many ways. there’s some issues we’ll talk about as things have evolved. It’s been affected by other provisions in the Constitution and sort of the devils and the details we’ve learned over time. But

On the whole, you would give the sixty three constitutional framers high marks for what they did with the judicial branch.

Guy Gordon (01:31.869)
And they made a significant change during their conversations in nineteen sixty one leading up to the sixty three Constitution, basically saying that Michigan will have one court of justice and that it all trickles down from there.

Eric Lupher (01:47.33)
Yes, that was a very significant change and a change for the better, we can see over time. Prior to the sixty three Constitution and the the laws that implemented it, we had a Supreme Court, we had appeals courts, we had different levels of courts, but the the sort of hierarchy was missing and the idea of if you were dissatisfied with a ruling in one court, what was your next step in the

Process. That was missing from everything. And and so the biggest thing and the the best contribution that they made was creating one court of justice and sort of a hierarchy going from the district courts, the circuit courts and probate courts, the court of appeals, and ultimately the state supreme court at the top, and giving those Supreme Court justices some administrative, some

Guy Gordon (02:45.33)
Mm-hmm.

Eric Lupher (02:46.027)
ethical standing some teeth to enforce rules, set court rules, do things that affect the lower courts. And much as you would have in an executive branch or or other places, the things flow from the top down now and it makes a lot of sense when you get in and start looking at all that stuff.

Guy Gordon (03:13.735)
Well, and an interesting gee historical wrinkle was that we didn’t have a Court of Appeals until the sixty three Constitution that if you wanted to appeal something it went right to the Supremes, now at least there’s an intermediate step which clears a lot of dockets and and and helps to streamline.

Eric Lupher (03:29.653)
Right, and and it’s not a fact finding court, although it’s been cast that’s a whole different issue we don’t need to get into. but it is sort of way let’s test what happened at the lower courts and make some light of that so the Supreme Court then, as you say, has a lighter docket and can really assess things at a more global level. It’s not caught up in the minutiae and

working through things. I say that and then in my mind think about cases that have stretched on for decades. So Supreme Court cases that have stretched on for decades. So a lot of things you know work in different ways, but yeah, creating that hierarchy really helped in a lot of ways.

Guy Gordon (04:22.365)
So as we look at this, as you say the framers did a pretty good job in terms of court organization, but y are is that an area where there might be opportunities for streamlining and and greater efficiencies? Were we to have a constitutional convention, were it to be approved by voters?

Eric Lupher (04:38.754)
I think this is something that certainly the delegates will look at. Could this be fine tuned? I don’t think in any way they’ll be interested in blowing it up and doing it differently, but can it be fine tuned? And what has happened, I think the law currently is broad enough that the courts have been able to tinker on the edges to deal with family law, to deal with drug courts, to

create specialty courts, there’s enough room within the law as it currently stands. It’s not so restrictive or not so prescriptive that there’s the inability to deal with things is gets in the way. but certainly the delegates, if there is a convention, will want to look at that and say, should they dictate change in some way and how do you do that while still being

Guy Gordon (05:10.503)
Right.

Eric Lupher (05:37.022)
still still leaving enough room to make further changes if needed going that forward.

Guy Gordon (05:43.495)
Is there s room for maybe some streamlining in in terms of the relationships between district courts and circuit courts? I I was always struck by what what looks like an apparent redundancy in the system that if a criminal case starts out first in the district court, then there is some some processes there, and then you get bound over to the circuit court where the person is arraigned again and the defendant kind of goes through the same system.

It seems a bit redundant in that there could be some unification there or or maybe a greater division of responsibility.

Eric Lupher (06:19.158)
Right. the sort of the details there, right? The things that you don’t read about in the papers all the time and you hear about somebody being f bound over f and th th the sort of detail gets lost in all that. But certainly there’s room for improvement and things like that. as we’ll talk about some of the the funding issues of the different courts and that plays into that as well, right? Who’s responsible? Who like

How do you manage the dockets of the different courts? so having a clear lines of responsibility, separating the district courts from the circuit courts and probate courts will all be helpful. Could be done, I think, with some administrative rule changes now and some fixes. we have a state court administrator’s office that’s pretty good at looking at those types of things and

Guy Gordon (06:51.377)
Mm-hmm.

Eric Lupher (07:18.804)
advocating for change when change is appropriate. So yeah. Do do we need a convention for that? That’s sort of an eye of the holder type of thing.

Guy Gordon (07:30.031)
Well we have seen with the other five articles that we reviewed, there are opportunities for basically constitutional cleanup where a lot of things have been undertaken statutorily that maybe should be long in the constitution. We also see that that’s a two-way street as well. but are there some opportunities for a constitutional cleanup in our Article 6 where the process should be amended?

Eric Lupher (07:57.475)
Right. This is where you get into

I for instance, selection of justices and and selection of judges. R right now we elect the judges at the a local level, district judges are

Guy Gordon (08:07.91)
Right.

Eric Lupher (08:17.528)
the the probate and circuit courts and then appeals and we’re not unusual in doing that among the states, but but it’s not a common practice and a lot of other states will have a process to identify best candidates and then there’s some appointment process from there or or the gubernatorial appointment. so you know that’s a sort of cleanup thing I think to

look at how are we doing it. That’s not to change the structure of the court, but who ultimately makes its way to the courts.

Separate from all this, we’ve been thinking about the way that we choose our attorney general and secretary of state and how we choose our our boards of the the Michigan, Michigan State and Wayne State. Here’s another topic that falls into that same category that the justices, Supreme Court justices are nominated by party committees, party caucuses, and then they run on a nonpartisan

Guy Gordon (09:07.025)
Right.

Guy Gordon (09:27.261)
Well exactly.

Eric Lupher (09:29.762)
ballot, which doesn’t make sense. It is on its face and everybody sees right through it that those are candidates supported by one party or the other and the idea that they’re nonpartisan at the time of election. I don’t want to take anything away from justices that make it there and do their best to be nonpartisan and everything. But at the time of election, that party nomination

Guy Gordon (09:32.175)
It’s hypocritical on its face.

Guy Gordon (09:53.383)
Right.

Eric Lupher (09:59.725)
carries a lot of sway in how people are voted.

Guy Gordon (10:02.867)
There there’s also this looming question about who is really in charge. The section fourteen designates the county clerk as clerk of the courts, but is the clerk of the courts really in charge of the courts if the state is ultimately in charge?

Eric Lupher (10:19.638)
Yeah, that that’s a you know, so the court the clerks, whether the county clerks or municipal clerks in the case of our city district courts, they have sort of two masters that they work for the city and maintaining all of the running elections and doing all the fun stuff that goes with that, but they’re also the administrative arm of the courts, circuit courts, probate courts, district courts and

that has a lot of responsibility. Ultimately it’s the judges setting the dockets and everything, but to have that shared responsibility, we could make the case that perhaps the courts should have the authority, the funding to hire their own administrative staff, the stenographers, the everything that happens behind

the wall that we don’t see when we’re sitting in a courtroom. and and that would free up the clerks, the municipal clerks and county clerks to focus on local government issues, not the judicial side of the of the triangle.

Guy Gordon (11:34.045)
So all items that we could be talking about in a constitutional convention, as we look at Article Six, one of the things that can get a little thorny and and a little awkward, and we have seen this with the politicization of so many things, and that is when it comes to a a judicial appointment by the governor, we have seen not unlike the Supreme Court of the United States, where if there’s going to be a changeover in party, there’s there’s kind of this push to maybe force out a an older justice that

is getting close to retirement so that the governor can fill that vacancy and create an incumbency opportunity for somebody. is that something that i it’s it’s just one of those niggling things that is kind of frustrating with the process. Is it right for a constitutional fix?

Eric Lupher (12:23.55)
Yeah, I think that gets back to the whole way that we select justices. I think always there’ll be an opportunity for governors to fill vacancies and you know the saying that politicians will politic will certainly play into that. But is there a way to safeguard the process in some way? As I said, some states will have a judicial selection committee that goes through and vets the

Guy Gordon (12:52.465)
Right.

Eric Lupher (12:53.492)
and say, you know, here’s three very capable candidates. They’ve all passed musters and and there’s some bipartisanship to that or nonpartisanship to that. And then it’s about the the qualifications of the candidates and and maybe h who fits within the political purview of the governor. what

maybe take away some of the game playing with all that and and it becomes less of a process to hand pick that person coming in. It slows the process down for sure, so that things cannot happen within the the eleventh hour of the of the term as we approach an election. so there’s a lot of room for improvement on that and we’re we’re never gonna take the politics out of politicians, but

Guy Gordon (13:41.875)
Yeah.

Eric Lupher (13:49.09)
How do we safeguard it for the people a little bit more?

Guy Gordon (13:52.261)
Are age limits something that may be a a focus of debate?

Eric Lupher (13:57.401)
For sure. age seventy, right. And you know, we think a little bit about the pay of the justices and that gets caught up with the legislative compensation commission that we talked about in the earlier podcast. So w what we see in the legislature because of the pay issue is that we get young people and and older people.

Guy Gordon (13:58.811)
Right it’s age seventy, right? For

Eric Lupher (14:26.988)
And I think for justices and judges at the same time, having the pay being an issue that maybe they can make more in the private sector but in their in their final hours or you know, I don’t

age discrimination, things like that. but as I get on in life maybe they’re less interested in doing the hard work of lawyering and can sit and benefit from their years of being a lawyer to to adjudic provide justices. So having seventy years as a upper limit might work against us in some ways. at the same time, you know, we know age comes with some downside and

and cognizance and things like that. So it’ll it’s something we should look at. People are living a little bit longer now than they were in the sixties and seventy isn’t such a barrier, I say, as I quickly approach that threshold.

Guy Gordon (15:24.637)
Yeah.

Yeah. As as you and I keep reminding ourselves that age is just a number that our perspective on this changes. Yeah, who is that guy in the mirror? as as we look at well, you you brought up the state officers compensation commission, that could be something that could get a lot of attention because I mean w we are seeing in in some counties, we’ve got Supreme Court justices in this state.

Eric Lupher (15:32.95)
Adjust a number.

remind myself every day when I wake up.

Guy Gordon (15:56.647)
They’re earning less than what some circuit judges are making.

Eric Lupher (16:02.328)
Yeah, that that gets to a couple of different issues. The the big one, which is not related to the judicial branch, but the judicial branch is affected by it, is what how that s state officer compensation commission works and who’s affected by it. as we discussed in the earlier podcast, there’s been a lot of game playing with that and and sort of how politicians wanna be on

Guy Gordon (16:20.594)
Mm-hmm.

Eric Lupher (16:32.46)
the line for giving themselves pay raises or are are they sh should they be okaying it or rejecting it, that type of stuff. And I think the judges, because they’re tied into that, have been collateral damage on that. They acted to affect the pay of judges in some ways, but it doesn’t hasn’t helped in the big picture. But to your question

Part of the problem is we have a system where the state provides some funding and the local governments provide the balance of the funding. And so as we know, there’s wealthy parts of the state and less wealthy parts of the state. And so

Guy Gordon (17:17.403)
Right. And and and that compensation should also be determined by what the relative cost of living is in the area in which the judge is practicing, right? You could make that argument and then the other side is shouldn’t you have some something that’s equitable throughout the state so that you have a floor?

Eric Lupher (17:26.262)
Okay.

Eric Lupher (17:33.615)
And you don’t want to penalize a judge that may have a heavier docket because of the place that they live, but there’s not the wherewithal to pay them on a scale needed to to you know come on par with their peers in other counties or other communities. So how we’re paying the judges is gonna be an issue, but it needs to be, I would hope, for those delegates like

laying out the framework and not being heavy in details. This is balance of how much is constitutional issue and how much should be left to the legislature to implement.

Guy Gordon (18:12.861)
All right, so taking that the next step, how we pay judges, there’s also and you point out in your paper, which for our listeners and viewers, you can check that out at CRCMish dot org. and that is that the the whole idea of about how we fund the courts. Again, there is the one state court, but there is language here over trial court funding that could be perhaps the most contentious part of the debate, should Article six be open for discussion.

Eric Lupher (18:41.292)
Right. Again, if we think back to before the sixty three constitution, we have municipal courts and and county courts, and there wasn’t really that hierarchy that existed before, and so each one was responsible for the the court funding. As we created the one court of justice, the state stepped in in some way to provide funding for the courts to provide some share of the

funding of the judges, but it has never, even though it is stated on multiple occasions, the state has stated, a bit of redundancy there, the intention for the state to be the source of funding that the cost of that burden has always been too high and the state has never lived up to that.

Guy Gordon (19:34.791)
Right. It’s two or three three or four percent now of total court funding comes from the state.

Eric Lupher (19:39.991)
a a a relatively small share for sure. And and so as we think about, you know, how much of the how well this Article six has worked, you would give it good grades, but if you looked at court cases that have been related to Article six, you would think there was real issues and most of it is tied to this question of court funding.

Guy Gordon (19:42.525)
Yeah.

Eric Lupher (20:08.078)
For when a district court or a circuit court, probate court judge says we need to update the courthouse, we need to fix up the chambers, we need to fix things and we need more staff to do this and that, that butts up against the cost of running a county or a city who are under their own restraints and and their ability to push back to say, This is the budget we have to live in.

so how we’re funding the courts, how we’re funding the judges needs to get fixed. It could be done legislatively if the state were to step up and and take more of that responsibility that it has stated many times is its intention. perhaps a a

Guy Gordon (20:54.717)
Yeah.

Eric Lupher (21:02.744)
provision in the constitution saying it is the state’s responsibility to fund one court of justice would be the kick in the pants needed to get it done. I don’t know that it’s gonna happen until then.

Guy Gordon (21:11.304)
Yeah.

Because as you point out in your paper, and I thought this was interesting, you’ve got the situation then where there’s an a lot of pressure on either clerks or judges that are operating the the local systems to institute fees or assessments to come up with some kind of revenue generating vehicle to make up for those shortfalls, which may not be in the best interests of of justice and could actually provide a financial barrier for some.

Eric Lupher (21:39.776)
Yeah, w w we see as you say the the fee structure and the courts have said that that’s unconstitutional and they’ve charged the the court funding trial court funding commission to come up with a better structure and has offered ideas. We also see communities where you post the the sheriff or the local police out on the road to you know

corn of Barty Fife hiding behind the billboard waiting for speeders and this is a way of bringing in the revenues to for the court to pay for itself.

Guy Gordon (22:17.651)
That’s why I thought I was funding the library, Eric. I that’s

Eric Lupher (22:20.234)
I well, you would think so, but if you cop to the cop to the charge, it doesn’t all flow to the library. that’s a section that’s an arg conversation for a different article of the constitution. So y yeah, the the effect that we’ve left this to the local governments and not all local governments are equally endowed with the ability to pay for the courts, and they all have budgetary

Guy Gordon (22:26.552)
I suppose.

Guy Gordon (22:36.701)
Yeah.

Eric Lupher (22:51.278)
processes they have to go through balancing the needs of the courts against the police and public works and every other service that they f provide has created a lot of friction and clearly something that will need to be addressed if there is a constitutional convention.

Guy Gordon (22:53.031)
Mm-hmm.

Guy Gordon (23:12.813)
And again, as we’ve said, that question will be determined come this November. that’s six in the books, Eric. We’ll tackle a couple more before we’re done here, but I know it’s been getting a lot of attention online and and also on on Spotify and YouTube where you can find these podcasts from people that are interested in just kind of understanding what a constitutional convention would look like. Anything else before we put a bow on Article Six?

Eric Lupher (23:36.598)
No, we’re just happy to have people listening to this and remind them that we can do this only with their support. So the ability to come to our website and look at what we’re providing the information so people understand what their governments are doing and the government understands the issues before them. we’re a five one C three not for profit organization. So your corporate and individual support is very important to keeping this going.

Guy Gordon (24:04.357)
Or whoever came up with the phrase a fact tank can’t run on fumes, my my hat off to them. and and that is that’s a good message to send. Until next time, Eric, thanks very much. And remind your friends you can find the hashtag FactsMatter Podcast, Spotify, YouTube, anywhere where you might find your favorite podcast. Recommend it if they, like so many people, are looking for nonpartisan analysis of the policies that affect them today. Until next time, I’m Guy Gordon. Take care.

Eric Lupher (24:16.834)
Thank you.