A state commission of judges, attorneys and representatives of local government issued a report last month recommending sweeping changes in the funding of courts in Michigan.
The 14-member Trial Court Funding Commission said there can be a perception of conflict of interest between a judge’s impartiality and the use of courts to generate revenue.
State Court Administrator Milton L. Mack Jr. was on the Wayne County Probate bench for 25 years, 18 as chief judge.
He spoke recently with Steve Thorpe of the Legal News.
Thorpe: You’ve been quoted as saying that the first sentence of the report — “Michigan residents going to court should not face a judge who needs money from a defendant to satisfy demands for court operating expenses.” — Pretty much sums it up. How did we get to this state of affairs?
Mack: There is a long history of the justice system being used to raise revenue. Justice Ruth Bader Ginsburg recently discussed this history in the context of a civil asset forfeiture case (Timbs v. Indiana, February 20, 2019).
In Michigan, the district courts were created in large part in response to concerns about profit motivation within the justice of the peace system.
More recently, local government has been squeezed by the legislature cutting revenue sharing, the recession combined with Proposal A sharply reducing property tax revenue and other tax cuts to local revenue by the legislature. Local government is scrambling to find other sources of revenue to maintain essential services.
Even the state, through the now abandoned Driver Responsibility Fee assessments, has used the courts to support the general fund.
Thorpe: How might courts be funded under the commission’s recommendations?
Mack: Currently, the state covers less than 3% of the expense to operate local courts. The Commission recommends a balanced state and local partnership that would assure that all of Michigan’s residents have equal access to justice.
Thorpe: Local government may exert financial pressure on some courts. How does that play out?
Mack: Local government will inform the trial court that its budget will be cut if revenue is not maintained. I have seen the written communications from local government officials informing the court that its budget would be cut due to the declining revenue of the court.
Thorpe: One of the report’s recommendations involved salary and benefits. What are they suggesting?
Mack: Beginning with judges, groups of court employees should be transitioned to become state employees. Currently, judges are both local and state employees. This complicated relationship is antiquated and no longer serves its intended purpose — having to do with pensions.
The report suggests making court administrators and probate registers state employees as well. However, it may be that it would be better to make all qualified judicial officers such as referees and magistrates state employees.
The idea is to provide uniformity in treatment for all judicial officers. This would also relieve some of the financial pressure on local government. Any discussion of all court employees becoming state employees is years down the road.
Thorpe: The report also addressed technology, which plays an increasing role in courts. What might change?
Mack: Technology in the courts can be a great equalizer in bringing uniformity in access to justice across Michigan. Uniform, connected systems would enable the State Court Administrative Office (SCAO) to manage data without the need for local courts to prepare these reports.
It will reduce the expense of technology due to the purchasing power of the state and create more opportunity to handle more of the courts’ work online. For the public this means greater access, more convenience and lesser expense.
Thorpe: Copies of the report were sent to the governor, state legislative leaders and the Michigan Supreme Court. Who might act on it and when?
Mack: This process will start in the legislature because it will require statutory changes. Meetings with legislative leaders is are underway. Implementation of the recommendations will take time. It took Minnesota many years to transition to a 100 percent unified system. We are not suggesting that, we are suggesting a state-local partnership. Full unification is not necessary to achieve the primary benefits of a unified system.
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