September 23, 1996

Editor

Michigan Lawyers Weekly

Via fax

Re: Jurisprudence in Wonderland, Or a Grand Unified Theory of Judicial Nightmare

Attention: Kris Kroll

Dear Editor:

Almost every advance sheet of the Michigan Supreme Court is replete with new court rules and orders. New checklists, recitals and litanies abound. Published Rules volumes, because all the new regulations of the Court are given immediate effect, are obsolete when published. As the judicial pendulum jerked back and forth, we found pretrials replaced with scheduling orders, and scheduling orders replaced with early scheduling conferences. In a masterpiece of integration, new Rules 1.401(B) and (C) are each defined in terms of the other. To be sure, the recasting of time periods from days, to weeks (7 day intervals), and then back to days in the septegesimal system, does keep the mind agile.

Granted, many of these changes are inevitable consequences of the well-intentioned, but to my mind absolutely useless, integration of all the rules for all the courts in a single numbering sequence. Though these revisions do impart an aura of progress, as it now appears they set the stage for even more dangerous things to come.

The most frightening, and to my mind silly, of the grand illusions that abound is that it would be wonderful to behold a court that did everything poorly and nothing well, an sort of Grand Unified Trial Court for Everything, where felony sentencing judges could have, perhaps as a hobby, the handling objections to fiduciary accounts on (as it were) a rainy day, and district judges could handle bench trials involving capital cases, securities issues, and juvenile delinquents.

I had thought, however, that the threat should not be perceived as real (perhaps, rather, as something on one's list of things to worry about just above invasions of killer bees), because Michigan has a Constitution. And even when I read Administrative Orders 1996-1 and 1996-2, I had rather hoped that the whole thing would go away. However, now that the Experiment has been extended to Berrien County, where I work, I am prompted to action.

The action that I take is in writing the legislature, which I have done. But perhaps others can be incited to action, and hence this letter. I thought it would be useful, therefore, to look at the constitution, and the proposal, and see what may be running afoul of what. I did so, briefly, with the following result:

Administrative Order

One Trial Court

Constitution:

One court of justice which shall be divided into . . . one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote. § 1.VI(1)

Comment

Jurisdictional issues arise.

Administrative Order

The . . . Trial Court may form divisions . . ..

Constitution

The circuit court has original jurisdiction in all matters . . .; appellate jurisdiction from all inferior courts . . .; power to issue, hear and determine . . . writs; supervisory and general control over inferior courts and tribunals. § 1.VI(13)

Comment

Jurisdictional issues arise.

Administrative Order

. . . divisions may correspond to the existing workload of the circuit, probate, and district courts, or may reflect another partition of the workload of the court; provided that the . . . Trial Court will incorporate into one general division issues affecting the family.

Constitution

In each county . . . there shall be a probate court . . .. § 1.VI(15)

Comment

Jurisdictional issues arise.

Administrative Order

Presumably, violations would be punishable as contempt, as MCR provides that [f]or a contempt . . . the court shall either order the accused . . . to show cause . . .; or (2) issue a bench warrant . . .. (MCR 3.606)

Constitution

(1) Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of . . . (the foregoing) and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred . . .. § 1.IX(32) Comment

The jurisdictional issues become expensive.

Thus, as the experimental rule repeatedly raises jurisdictional issues under the constitution, and as these issues can be expensive, I wonder who is going to ask the litigants for permission to multiply try their causes, once before the pretend-court, and once before the real one? And who assumes the responsibility of the governmental liabilities to whistle blowers? And why is there apparent silence on the constitutional issues?

One might assume that since the proponent of the experiment is the court which interprets the constitution, the challenges are settled before they arise. However, the Michigan Supreme Court is not the only arbiter of the Michigan constitution. And, certainly, the Court would not pre-judge such a case.

Sincerely,

Vance A. Fisher