You'll recall that on Tuesday, Chief Justice Clifford Taylor sent the Governor a letter with essentially the same request, asking her to hold off on appointing trial court judges in communities -- Flint, Kalamazoo, Pontiac, Clinton/Gratiot counties, and Midland County -- that have been found to be "overjudged," and to also delay filling two upcoming vacancies on the Michigan Court of Appeals.

Here's the Freep's story, "State chief judge wants Granholm to delay judicial appointments": http://www.freep.com/apps/pbcs.dll/article?AID=/20070605/NEWS06/70605026

This is the second such request by the Chief Justice. His first request, made in an April 26 letter, concerned the judicial vacancies in Flint, Kalamazoo, and Pontiac. The 2005 Judicial Resources Report found that those communities were overjudged. SCAO's 2007 analysis to this point suggests that nothing has changed, the Chief Justice said, asking the Governor to hold off until the report is out and to join him then in calling for the elimination of unnecessary judgeships.

Bear in mind that, in both letters, he's asking her just to wait until the study is complete. If it turns out these judgeships are needed, then there's no issue. And he's not asking her to delay her appointments to other trial courts.

Well, through spokesperson Liz Boyd, the Governor essentially told the Chief Justice to take a flying leap, both back in April and last Tuesday. The Governor, through Boyd, made the rather surprising claim that it would be "judicial activism" for the Governor to NOT fill those seats, and that she was duty-bound to make those appointments, needed or not, by the state Constitution.

Let's look at her constitutional argument, and then take in a little Michigan judicial appointment history.

The Governor's spokesperson took the position that the Governor is required by the state constitution to fill vacancies and that it would be "judicial activism" for her to not make appointments. This is a misreading of Article VI, Sec. 23, which states that "... such [judicial] vacancy shall be filled by appointment by the governor." This provision only prescribes the manner of filling vacancies; it doesn't obligate the governor to fill them. Before this amendment to the state constitution, a judicial vacancy could be filled only by election. This proved to be unworkable; an incumbent judge could leave office two years before the next general election, with the result that that community was short a judge during that time. So the constitution was amended to allow the vacancy to be filled by the Governor's appointment. When the governor does not fill a judicial vacancy, it remains open until the next general election. And there are various scenarios where it makes good sense for the Governor to not make the appointment. Let's say an incumbent judge decides not to run for reelection. Candidates run in the primary, and a week later, the incumbent dies. It's just a short time to the general election. In that situation, it makes good sense for the Governor to wait and let the people make the choice.

So, can a Governor decline to fill a judicial vacancy? Sure; John Engler did so when he was Governor. In fact, he refused to fill vacancies in three courts -- Jackson County Probate, Hamtramck district court, and Lansing district court -- because he believed those judgeships were unnecessary.

John Engler also didn't believe in adding judgeships without eliminating some. He'd veto bills that created new judgeships if there weren't reductions to go with them. But during Gov. Granholm's tenure, we've seen the opposite approach: judgeships are added without any subtraction. The one time she vetoed a bill that created new judgeships, her spokesperson said she did so because it did not provide for adequate "judicial resources" in other areas. At the time, that statement was read as meaning that the Governor vetoed the bill because it didn't create additional judgeships for Wayne County courts. Not that the Legislature is blameless; it too bears responsibility for adding without subtracting.

What's the result? Well, on the state level, it means that you, I, and all the remaining state taxpayers are footing the bill -- about $157,000 per trial court judge per year -- for a number of trial court judgeships that we just don't need. Never mind what the local community pays for the judge's benefits, staff salary and benefits, utilities, etc.

It gets better. As the Chief Justice points out in Tuesday's letter, there's also a pending study of the Michigan Court of Appeals, to determine whether that court still needs 28 judges. The Court of Appeals' filings are down substantially from the 90's, when annual filings were in the 12,000 range. For the last five years, they've been in the 7,000's, so it makes sense, the Chief Justice suggests, to at least study whether the COA can do with fewer judges. Now, each COA judge accounts for about $400,000 to $500,000 per year in the state budget. That amount includes the judge's salary and benefits, as well as salary and benefits for staff.

With the state's economy circling the drain, with businesses fleeing the state and with layoffs in the public and private sector alike, don't you think the Governor would be willing and even eager to consider these opportunities to cut state spending? Would she not agree to just wait until both studies are complete before moving ahead with her judicial appointments? Wouldn't that be the responsible thing to do, rather than saddling the taxpayers with unnecessary expenses? And recall that judgeships can only be eliminated by attrition, under the state constitution. If she appoints a 50-year-old to an open seat, it could be 20 years and longer before that seat could be eliminated, even if the Legislature passes a bill to that effect. Twenty times $157,000 per year ... that's real money.

But no! The Governor's spokesperson is insisting that she is by-God obligated to fill those empty judicial seats.

It will be interesting to see what happens, to say the least. Despite her very public rebuff to the Chief Justice, the Governor actually hasn't yet filled the three vacancies he listed in his April letter. But her response last Tuesday was not encouraging, to say the least. Liz Boyd's snarky comment was that the Chief Justice ought to consider downsizing the Michigan Supreme Court, because, she said, the Justices are the most expensive members of the state judiciary. As Boyd should know, changing the number of Justices requires an amendment to the state Constitution, whereas eliminating judgeships is merely a matter of passing legislation. It's a lot easier to reduce the size of the state trial bench, and the Court of Appeals, than to change the number of Supreme Court Justices.

On the other hand, if the Governor is serious about wanting to downsize the Supreme Court, then here is a modest proposal: Let her start advocating for the constitutional amendment now, and in the meantime she can refuse to fill any vacant seats that come up on the Court.

Just a thought.

By way of contrast, see this article in Tuesday's Lansing State Journal, "Layoffs unlikely for most workers with budget deal":
http://www.lsj.com/apps/pbcs.dll/article?AID=/20070605/NEWS01/706050324/1001/news

From the article: "The State Court Administrator's Office said it won't need to resort to mandatory unpaid days off. That came after 75 workers agreed to take off voluntarily a total of 534 days without pay by Sept. 30."

The workers who are sacrificing run the gamut from parents with young families to single people with no dependents. They're giving up income to reduce the impact on co-workers who cannot afford to do so, and to minimize the need for further layoffs. Pretty impressive.

On another front: See this story in The Detroit News: "Cox slams Granholm over trooper restrictions":
http://www.detnews.com/apps/pbcs.dll/article?AID=/20070605/UPDATE/706050429/1003
From the article:
"As reported exclusively in today's Detroit News, the travel restrictions, which troopers said cap mileage as low as 40 miles per eight-hour shift in some parts of the state, keeps patrol vehicles from catching as many drunk drivers, armed robbers and other law-breakers....
"Liz Boyd, the governor's spokesperson, said the governor has championed public safety throughout her career.
'Gov. Granholm if a former federal prosecutor, a former attorney general and holds public safety as a top priority,' she said. 'But public safety doesn't have to be sacrificed by living within your means.'"

Let me get this straight: the MSP has to reduce mileage to cut costs and "live within its means," but the Governor's office insists she must fill judicial vacancies regardless of whether they're needed. So it's not okay to spend money on law enforcement ... but it IS okay to spend money on unnecessary judgeships?