May 18 2016 01:07 PM

Picking a county prosecutor, Ingham judges confuse their role

Starting July 2, Gretchen Whitmer will replace disgraced Ingham County Prosecutor Stuart Dunnings III, a short-term assignment that raises her profile in what is expected to be a run for governor in 2018.

It's a good choice, though tarnished by the unnecessary secrecy that Ingham County's judges used to hide how and why they picked the former state senator and Democratic leader over six other candidates.

The process could have been open and should have been. County prosecutor is an elected office, not an appointment. It's a significant distinction that either didn't matter or was never considered by the county's judiciary. Perhaps, they were just judges being judges. It's one of the more rarefied, solitary and powerful perches in our society.

But the difference between an election and an appointment is important. Prosecutors exert extraordinary power over people's lives, deciding what crimes to pursue, what charges to level and how defendants are treated before trials. People need a voice in deciding who will be the chief law enforcement officer in their community.

State law gives county judges the privilege of filling vacancies in elected offices, in this case Dunning's decision to resign. In these unusual circumstances, judges become the voice of the people … .or should be.

So you have to ask, why wouldn't Chief Judge Janelle A. Lawless open up the process used to pick a new prosecutor?

“It was really a collective decision of all seven of the judges,” Lawless said. She noted that the action conformed with policies established by the Michigan Supreme Court. The judges followed the letter of the law, but missed the spirit.

Michigan has two landmark laws that advance the right of people to know how their government works and how officials behave. One is the Freedom of Information Act; the other is the Open Meetings Act, which the Attorney General's Office summarizes this way:

“In enacting the OMA, the Legislature promoted a new era in governmental accountability and fostered openness in government to enhance responsible decision making.”

“Nothing in the OMA prohibits a public body from adopting an ordinance, resolution, rule, or charter provision that requires a greater degree of openness relative to public body meetings than the standards provided for in the OMA.”

What this really means is that public bodies shouldn't hide behind the act and are free to be more open than the legalistic limits of the law.

Legislated to accommodate the constitutional separation of powers, the Open Meetings Act does not apply to the judiciary, which most of the time operates inside of its courts. But when judges step outside of their courtrooms and hang up their robes, as they did with the Whitmer appointment, the role changes.

The judiciary is the least understood of the three branches of government and certainly the most secretive. When we deal with the courts, it's usually related to crime, civil infractions, perhaps a lawsuit. Opening up the process of picking a prosecutor offered the judges a chance to demonstrate that they work for the people in a less legalistic setting. And that would be good.

Surveys find that people's trust in the judiciary has declined, just as it has with other branches of government, businesses, religions, news organizations — just about everything.

Erosion of trust in the U.S. Supreme Court has been dramatic. A Gallup poll released in September 2015 found that only 53 percent have a great deal or fair amount of trust in the court, and the trend was worsening.

Local courts fare somewhat better, but a survey by the National Center for State Courts, found that the perception of political bias affected about half of all people's view of the judiciary.

Although Whitmer was by far the best choice to fill out Dunning's term, she is very much a political insider. Lawless said there were no interviews with candidates. Judge William E. Collette said Whitmer was the unanimous choice.

But the secret deliberations and decision by Ingham County's judges feed people's suspicions about judicial bias. Lawyers who argue in front of judges often give them large campaign contributions. It's all done through their political action committees and is quite legal.

Whitmer's political action committee, the Whitmer Leadership Fund, contributed $50 to the reelection campaign of Lawless in 2008 and $100, also in 2008, to Collette.

It's a small amount, insignificant really. Neither Lawless, Collette or Whitmer said they were aware of the contribution. Still, it's about appearance.

“Doubts about partisanship, political bias represent greatest threat to public confidence,” the National Center for State Courts, said in a report accompanying its survey.

“The one negative attribute that garnered majority agreement in our survey was political, with 53 percent saying it describes the courts in their state and 56 percent saying the same about judges in their state. Concerns about political bias in the selection of judges, as well as the decisions they make on the bench, are evident in two statement pairs we tested in this survey.”

For Ingham judges, political bias didn't happen on the bench. But it didn't have to happen at all.