Michigan Supreme Court Justice

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  • Doug Dern

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    Frank Szymanski

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    David Viviano

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Biographical Information

What is the primary role of the state Supreme Court? In what ways, if any, has the court failed to exercise its authority appropriately over the last decade? In what ways has it changed the way it exercises its authority?

What are the most serious problems facing Michigan courts, and what should the state Supreme Court do to address them?

Which two or three decisions rendered by the state Supreme Court in the last decade have had the greatest impact on Michigan, for good or ill?

How would you decide when to overrule a previous state Supreme Court decision? Identify at least one instance in which you believe the state Supreme Court appropriately or inappropriately overruled one of its previous decisions.

Has the proliferation of third-party campaign spending compromised the impartiality of Michigan judges? Or is the charge that judicial candidates are too beholden to campaign donors exaggerated? What steps, if any, should the state Supreme Court take to reassure the public that Michigan judges are impartial?

What changes in the process by which justices are selected (or in the rules regarding the financing of state Supreme Court elections) would improve either the judicial process or public perceptions of that process?

Is Michigan’s current system of enforcing ethical conduct on the part of its lawyers working satisfactorily? If not, what should the state Supreme Court do to improve it?

Is Michigan’s current system of enforcing ethical conduct on the part of its judges working satisfactorily? If not, what should the state Supreme Court do to improve it?

Are judicial resources allocated fairly in Michigan? What can state Supreme Court justices do to promote a more efficient and/or equitable distribution of judicial resources?

Have you ever been convicted of a misdemeanor or felony? Explain.

Have you ever filed for personal bankruptcy? Explain.

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City of residence Grosse Pointe, MI
Age 63
Military service No.
Degrees earned B.A. History (1974) University of Notre Dame and J.D. (1980) U of D School of Law
Vehicles owned Ford Focus
Incumbent? false
Race/ethnicity Caucasion
Current occupation Wayne County Third Circuit Court Judge
Other relevant professional experience 26 years trial attorney at all levels of trial courts.
Current or previous elected office Wayne County Probate Judge
The Court is responsible for interpreting the law in the cases that are brought before the court and for supervising the administration of the Courts in the state. The court has interfered with local control by appointing its own slate of chief judges rather than allowing local courts to decide this for themselves. Also the court has failed to address the issue of inadequate representation for indigent defendants and according to the State Appellate Defender’s sentencing errors are costing Michigan taxpayers millions of dollars. We need fair representation in Michigan and at the moment we are not getting it.
See above & Michigan courts need to be given the tools to provide solutions, not just bury our problems with costly inadequate responses to issues such as mental illness, drug addiction, PTSD veterans, and human trafficking. We need to treat these problems and those who are afflicted, not just send people to prison without addressing underlying needs in a meaningful way. We have some specialized treatment courts already, but we are not doing enough. I’ve been at the forefront of educating my fellow jurists and members of the education community and the community as a whole on issues such as childhood trauma and implicit bias and how they impact the lives of the people we see in our courts.
Let me discuss one in the space and time I have that illustrates a lack of common sense justice and let me start by asking if anyone thinks the level of justice someone receives should depend on when they were born? It should not. However, in Miller v. Alabama (2012) the US Supreme Court ruled that mandatory life without parole for juveniles was cruel and unusual punishment for all but the most egregious cases. The Michigan Supreme Court ruled that this decision would not be applied retroactively in Michigan in People v. Carp, 298 Mich 472 (2012). In a 78 page opinion the Michigan Supreme Court ignored common sense and tried to justify continued mandatory “life without parole" for juveniles.
I would consider all ramifications of any decision to overrule a prior decision. We have seen major changes on a number of issues in our society. Same sex marriage, for example, is now legal.

I disagree with the court’s decision in Rory v. Continental, 473 Mich 457 (2005) which overruled Herweyer v. Clark Hwy Services, Inc. 455 Mich 14. Herweyer invalidated a contract clause that shortened the statute of limitations as an adhesion contract and Rory overruled this decision. The Herweyer court recognized the imbalance between an employee and an employer in an employment contract drafted by an employer and in Rory the court dealt with an insurance contract drafted by an insurance company.
I believe third party campaign spending presents a clear and present danger to the impartiality of the judiciary. It is not for me to say who has compromised themselves based on the inordinate amount of “dark money” that has been tossed at campaigns for the Supreme Court. I’ll leave that for others to decide. The fact is we should have complete transparency including for “issue oriented pacs” who are clearly and cleverly out to influence voters in judicial races. Why let those with the big money throw their influence around in the dark. Let them stand in the light and be seen with their causes whatever they may be. Let’s give voters the chance to “consider the source” of campaign attack ads.
We could have primaries to select the nominees and as stated above we should have total transparency for financing. Those that are willing to spend the baskets of money they have on the causes they stand for should be proud of their efforts rather than secretive. Transparency will bring the "dark money" of judicial campaigns into the light.
We have had a number of instances of unethical conduct on the part of lawyers and judges. Most of the cases that I know something about have resulted in appropriate penalties so I am not aware of specific failings in this area, though I will be interested to hear of any concerns members of the bar, bench, or community have.

We have had a number of instances of unethical conduct on the part of lawyers and judges. Most of the cases that I know something about have resulted in appropriate penalties so I am not aware of specific failings in this area, though I will be interested to hear of any concerns members of the bar, bench, or community have.
Recently there has been a move to consolidate and coordinate courts to assist in the distribution of justice and judicial resources. My understanding is that this has resulted in substantial saving for Michigan taxpayers. As a taxpayer and a trial judge I appreciate this effort and I will be willing to continue to review the efficient allocation of judicial resources.
City of residence Sterling Heights
Age 44
Military service N/A
Degrees earned B.A., Hillsdale College; J.D., University of Michigan Law School
Vehicles owned Lincoln MKZ Hybrid and Chrysler Town and Country
Incumbent? true
Race/ethnicity Caucasian
Current occupation Justice, Michigan Supreme Court
Other relevant professional experience Chief Judge, 16th Judicial Circuit and Macomb County Probate Courts; Circuit Judge, 16th Judicial Circuit Court; Attorney & Managing Member, Viviano & Viviano, PLLC; City Attorney, City of Center Line; Associate Attorney, Jenner & Block, LLC; Associate Attorney, Dickinson Wright, PLLC
Current or previous elected office Michigan Supreme Court Justice (March 2013 – present); Macomb County Circuit Judge (2007 – 2013)
The role of the Supreme Court is to monitor the health of the law in Michigan and oversee the administration of the state’s court system. When ruling on cases, we must do so in accordance with the rule of law, respecting the authority of the coordinate branches of government and recognizing the limited role of the judiciary in our constitutional framework. The Court exceeds its constitutional authority when it deviates from the plain language of the Constitution and statutes, thereby seizing for itself the power to declare what the law ought to be. Instead, our job is simply to say what the law is and determine how it applies to a particular set of facts.
A continuing problem facing our court system relates to how our courts are funded. Under the current system, courts are primarily funded at the local level. Local control has many virtues, but this framework makes it difficult to implement statewide reforms. We are currently working to reform our public defense system (to ensure quality legal representation regardless of the ability to pay) and have made significant advancements in the areas of e-filing and administrative consolidation. However, to implement new technologies and make reforms on a statewide basis, we need to work with the Legislature to obtain statewide funding or rethink the way we fund our court system.
One case that continues to have a positive impact on Michigan law is Rory v Continental Ins, 473 Mich 457 (2005). In that case, the Court held that unambiguous contracts are not open to judicial construction and must be enforced as written. In so holding, the Court brought predictability to the law, giving citizens the confidence to freely arrange their affairs via contract. Another case with a significant impact on Michigan is People v Cunningham, 496 Mich 145 (2014). By holding that trial judges may only impose costs against criminal defendants that are authorized by the Legislature, our Court recognized the limited role of judicial officers in our tripartite system of government.
Under the principle of stare decisis, when I am convinced that a prior decision of our Court is not just wrongly decided, but is doing more harm than good to the law in Michigan, it is incumbent upon me as a justice to revisit that decision. A recent example of this is the Court’s decision in People v Lockridge, 498 Mich 358 (2015), in which we held Michigan’s criminal sentencing scheme unconstitutional. Although our Court had rejected similar claims in previous cases, given recent changes in the law by the U.S. Supreme Court, we were obligated to revisit the issue and decide the issue differently in light of developments in the law.
I do not believe that third-party spending has compromised the impartiality of Michigan judges. Despite reported increases in third-party spending in judicial campaigns, our Court has issued more unanimous opinions and made fewer decisions along “partisan” lines than at any time in recent memory. I strongly believe that the Michigan Supreme Court should be ever vigilant in amending, interpreting and applying the Code of Judicial Conduct to ensure that our judges conduct themselves appropriately while campaigning for office, and while on the bench always rule according to the justice of the cause before them, without bias or favoritism.
I favor our current judicial selection system, but acknowledge the continuing public debate on how it can be improved. Thus, for example, while substituting the partisan nominating process for open, nonpartisan primaries could reduce the appearance of partisanship, it could also increase the amount of money in judicial elections. And, as a candidate, I am already required to disclose all of my campaign contributions and expenditures. In the end, any proposal for changing how we select our judges is inherently a policy choice that should be made by the people through their elected representatives or by a popular referendum.
I believe we have in place a good framework for processing attorney grievance complaints and enforcing our rules of professional conduct. Under the current system, the Attorney Grievance Commission serves as the prosecutorial arm, investigating allegations of attorney misconduct and bringing the meritorious complaints to the Attorney Discipline Board. Because the AGC is having to do more with less, I support efforts to explore ways to more efficiently process, investigate, and prosecute attorney grievances, including increased coordination with the State Bar, which already provides public information and assistance with regard to the professional regulation of lawyers.
Michigan has a strong system of enforcing judicial ethics, from its code of judicial conduct to this Court’s decisions interpreting and applying that code. The system is working satisfactorily, as documented by the fact that, during my tenure on the Court, we have taken strong action on several occasions to enforce the Michigan Code of Judicial Conduct, including the removal of a judge when the circumstances required it. However, there is room for improvement and the Court is currently reviewing the efficacy of our rules and procedures for judicial disciplinary proceedings through the Court’s administrative process.
Like most other organizations and governmental units, over the past few years our Court has worked with the Legislature to “right-size” Michigan’s judiciary. This process has eliminated 26 unnecessary judgeships, saving the taxpayers over $10 million. As a result, we are able to allocate more resources to the places where they are needed most. We are also becoming more efficient through the use of new technologies and administrative consolidation. I am committed to continuing to work with the Legislature and using all the resources at the Court’s disposal to ensure that we are allocating our judicial resources fairly and managing them responsibly in every jurisdiction in Michigan.