OCBA UPDATE: Judicial independence


I recently participated in a roundtable discussion about proposed amendments to the statutes governing the pretrial release of criminal defendants (the proposed changes seemed to be, in part, a response to the belief that certain bond amounts are being set too high). Other recent legislation appears to be a result of adverse outcomes in family court cases (a recent Detroit News opinion article suggested that differences in “… statewide custody determinations” emanate from “… the biases of individual judges and Friend of the Court referees.”) While well-meaning, the legislative emphasis on “fixing” the situation puts at risk the independence of the judiciary, which is a cornerstone of our state and federal democracy.

Michigan recognizes that “[a]n independent and honorable judiciary is indispensable in our society.”1 And for good reason. Judicial independence is a critical component of the proper functioning of a democratic government and the protection of individual rights. “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 This separation and independence guarantees each individual citizen impartial judicial review of (and protection from) the actions of the other branches of government. No one can disagree that time and again in the history of our country, the courage and independence of the judiciary has maintained the delicate balance of power that defines democracy.

Judicial independence is both institutional and decisional. “Institutional judicial independence … embodies the concept that the judiciary, as a separate branch of government, acts independently of the other two branches, without legislative or executive control … [D]ecisional independence embodies the concept that individual judges decide cases fairly, impartially and according to the facts and the law, not according to whim, prejudice or fear, or the dictates of the legislature or executive, or the latest opinion poll.”3 Proposed legislation that seeks to “fix” issues with decisional independence cannot but adversely affect institutional independence. Such legislation seems to ignore the means by which decisional errors can and should be rectified.

While slightly tongue-in-cheek, Judge Alex Kozinski’s 1993 symposium address, “What I Ate for Breakfast and Other Mysteries of Judicial Decision Making,” makes the case that there is not much room for judges to abuse their decisional independence. Despite what some might think, “… what you absolutely cannot get away with is abandoning legal principles in favor of results on a consistent basis.”4 Judge Kozinski correctly notes there are simply too many controls in place for the train to go consistently off the tracks. That is, provided we attorneys do our part.

It will always be true that “marginal cases may present difficult line-drawing problems,” but the “… larger reality, however, is that judges exercise their powers subject to very significant constraints.”5 Individual judges are by no means omnipotent and, as a result, their authority and independence do not require substantial legislative limitation. There are already checks and balances in place to challenge a bad decision (or in some cases, a bad judge) and, provided attorneys properly utilize them, there should be no reason to legislate what need not be legislated.

Legislative responses to perceived issues with decisional independence undermine the public’s confidence in a fair and impartial process. The idea that the legislature needs to “fix” the judiciary creates no other impression than that the judges are not doing things right. Certainly, judges must decide issues according to law, rather than their own whim or to the wind of public opinion, and judges should be accountable for their decisions. But the way to best ensure that the judges properly make decisions is not to limit their independence, but to ensure that decisions receive the appropriate review on appeal.

As attorneys, we should be sure the public understands that a proper exercise of discretion is not to be confused with whimsical decision-making merely because the outcome is adverse. Explaining outcomes and defending the independence of the judiciary is part of our job. We, as attorneys, must be cognizant of the fact that “… there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.”6 We should encourage respectful disagreement with adverse decisions, but by the same token, we should encourage appeal of adverse decisions where we believe the decision to be incorrect. Finally, to my friends in the judicial branch whose decisions we may appeal in the coming year, I hope you see appeals not as criticism of your judgment. Rather, they protect your independence and ability to make the decisions that matter in this state.


1 Michigan Code of Judicial Conduct Canon 1.
2 “The Federalist Papers,” No. 78.
3 U.S. v. Mendoza, __ F.Supp.2d ___, 2004 WL 11911118 (WD Cal 2004).
4 Reprinted at 26 Loy. L.A. Rev 993 (1993).
5 Id.
6 Maldonado v. Ford Motor Co, 476 Mich 372, 388 (2006)(citing People v. Babcock, 469 Mich 247, 249 (2003)).
Gerald J. Gleeson II, of Miller, Canfield, Paddock, & Stone PLC, is the 85th president of the Oakland County Bar Association.