YOU BE THE JUDGE

A circuit court judge is arguable one of the most powerful officials in the state. While judges don’t vote to make laws like legislators do, or operate government like the governor does, a circuit judge is vested with the awesome power to void legislation by ruling it to be unconstitutional, or to force executive action or restraint. Only circuit court judges can try felony cases, or sentence a convict to state prison. They preside over the high dollar cases, divorces, and suits for injunction. Judges are the umpires in the operation of government, and in an American justice system that aspires to judge all officials and private citizens uniformly according to the “Rule of Law.” The effects of judgments on individuals, on companies, and on the community at large can be very significant indeed.

So a great judge is a blessing; a bad one a curse.

Trial judges are elected in non-partisan elections, in theory, at least.

Typically, the way in which a judge is actually selected in practice is very partisan indeed. The Michigan Constitution allows the sitting Governor to appoint a new replacement for a retiring judge. As the system has evolved, almost all judges first attain the bench though this political appointment process.    

Judges are disqualified for reelection at age 70, but once a person is appointed judge by the Governor, they can generally cruise to reelection until retirement. The constitution provides a unique advantage for incumbent judicial candidates, called the “incumbency designation.” This means the incumbent candidate is listed on the ballot as: “So-and-so, Judge of Circuit Court”, not just plain candidate “so-and-so.”

In the world of election science, the incumbency designation is an effective deterrent to challenging of an incumbent judge, and most sitting judges tend to run unopposed for reelection. When judges reach retirement age, they tend to resign their posts so as to allow the sitting governor the opportunity to choose the next judge by appointment, rather than leave the seat open to let the people decide.

There is some logic to this, but it isn’t pretty; the judge was probably appointed by a governor and is just returning the favor to a successor governor of the same political persuasion, allowing that governor to extend political patronage by appointing the new judge for perpetual reelection.

Luckily, the patronage system of judicial appointment breaks down once in a while, when the retiring judge refuses to “return the favor” to a sitting governor with questionable judgment. Only then do the people get a clean shot at electing their local judge in an open non-partisan election.

When Judge William Crane retired recently, he rightly denied Governor Granholm the prerogative to appoint his replacement. By his act of quiet defiance, Judge Crane made sure that we the people get to choose his replacement in a rare open and competitive judicial election this year. 

Still, it is true that most people take the justice system for granted, and don’t actually know anything about the judicial candidates or what they do.  So seldom do people get to vote in an open race for judge, that they don’t really develop the knack for making a great choice.

The news media generally provides little coverage, and people just do not hear much about the candidates.  Harder still, a judicial candidate has to be careful making detailed campaign promises to voters, since the Michigan Cannons of Judicial Ethics limit what a judicial candidate can say; “A candidate, including an incumbent judge, for a judicial office…should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”

Consequently, the best a judicial candidate can do is to show community support by asking residents to post yard signs, and meet as many voters as possible.

In order to give voter’s some insights into the characters of both candidates for judge, Review Magazine has taken the time to put relevant questions to the candidates, and we let them answer the questions at some length and argue their case to the court of public opinion, in their own words, without interruption, editing, or even commentary [except for this comment: I know from personal observation that both of the candidates are men of conviction, intellect, candor, and good character. Both are technically proficient in the law. Both are grounded and even tempered, even with their obvious competitive instincts as professional advocates. There is simply no bad candidate in this race, but the candidates do offer distinctly different world views].

So which of the two will you support, knowing that the winner this year will likely be reelected unopposed until he retires? If you think this is important, what will you do to support one or the other campaign? Read their answers below [the order of presentation was determined by coin toss then alternated], and learn more about them at their respective websites [www.jimborchardforjudge.com and www.jimhowell4judge.com].

Get informed, and on November 2nd, you be the judge!

Opening Statements

Howell: There is a vast difference in experience between my opponent and myself and this election should be about what the person has done in their life. Not about family name or the courthouse politics that comes when an opponent’s brother is already a circuit judge.  

My experience is broad:  Vietnam Veteran, Police Officer, Michigan State Representative, Chairman of Judiciary, Assistant Attorney General (prosecutor), and courtroom attorney.  My careers with the courts spans 40 years.  I have been married for 40 years, father of three children, and grandfather of eight.

As a police officer I put myself through college and law school and graduated fourth in my class.  Working on the streets as a patrol officer put me in direct contact with the victims of crime in our community.  As Chairman of Judiciary, I was able to view the courts in depth and know what is needed to serve the public.  My law practice has involved family, civil, criminal, trial and appellate law.

Experience is the difference. 

Borchard: Circuit Court is primarily a trial court.  The three largest categories of cases handled by Circuit Court Judges are criminal, family law, and civil litigation.  These are the three areas of practice that I have concentrated on over my thirty-four years as a trial attorney.

Saginaw County Circuit Judges spend roughly two-thirds of their time handling criminal felony trials. I have spent the last ten years of my practice in the Saginaw County Prosecutor’s Office as one of the chief Circuit Court trial attorneys.  Simply put, I have prosecuted some of Saginaw County’s most dangerous criminals.  In doing so, I have represented the victims of these crimes as well as our community as a whole. 

I have strived to bring justice for these victims and their families. 13 Saginaw County Judges and 13 local police agencies and associations have endorsed me.  I have a good, working relationship with Saginaw County’s legal community, including all of the victims’ rights advocates and associations.

The second largest area of practice that I have concentrated on has been family law.  I was in private practice with Smith Bovill, P.C., and handled family law cases for over twenty years. Family law matters constitute the largest part of the Circuit Court’s docket aside from criminal matters. 

For these reasons, I am asking the Saginaw Community to vote for me on November 2nd. I believe that I am the most qualified candidate for the Circuit Judge's position. I have the courtroom experience necessary to be an effective judge.  I am truly non-partisan.  I will work hard and I will be fair to every individual from every walk of life. 

Review: When and how did you decide you wanted to be a judge, what encouragement have you received for others in the profession, and what steps have you taken to position yourself to be a credible candidate for the Judge?

Borchard: My legal career has placed me in a unique position to be a credible candidate for judge.  Ten years ago, I took a significant cut in pay to leave private practice and follow my heart to return to the Saginaw County Prosecutor’s Office, where I have tried and convicted Saginaw County’s most dangerous felons. 

As Judge, I can have a greater impact on peoples’ lives after trial. I would assist victims in obtaining justice through the sentencing process.  I would also be able to use my experience to effectively determine who can be rehabilitated and who needs to be removed from our community for society’s protection.

I have been encouraged to run and endorsed by numerous local police officers, judges, and victims’ rights advocates. Throughout my career I have made it a point to give back to my community.  I have spent twenty-three years as a Big Brother with Big Brothers/Big Sisters.  I served on the Board of Directors for Catholic Family Services.  I have served as a Civil Service Commissioner for the City of Saginaw Police and Fire.  I have donated over 100 pints of blood to Michigan Community Blood.  I have been a member of Saginaw Township Rotary and am currently a member of Frankenmuth Rotary and have coached youth soccer and football.

Howell: I first decided I wanted to be a judge while I was still a police officer in the City of Saginaw.  Over the years I have received quite a bit of encouragement from local judges and judges throughout the state.  I have been involved with the courts now for over 40 years, at all levels.  I have had the privilege of enforcing the law as a police officer, practicing the law as an attorney in private practice, prosecuting as an assistant attorney general, and making the law as a legislator. 

Additionally, as Chairman of Judiciary I have overseen the courts throughout the State of Michigan and know our strengths and weaknesses in relation to other court systems. 

Review: Please discuss some local judges you have admired most during your long career as a lawyer; explain how they earned your admiration and how you would apply their legacy to your own service as a Judge?

Howell: Two come quickly to mind.  Judge Eugene Snow Huff for his intellect and Judge Robert S. Gilbert for his common sense.  I selected Judge Huff to swear me in as a lawyer, and Judge Gilbert was the juvenile judge when I was a police officer. 

Although Judge Huff retired shortly after I was sworn in, I was privileged to try a number of cases in front of Judge Gilbert.   Judge Fred J. Borchard (yes, I know that is my opponent’s father), I considered a friend and did admire for how practical he was and how he ran his courtroom. 

In the past, other local judges have endorsed me who now endorse my opponent.  It has been a difficult situation to run against a lawyer who is the brother of a sitting circuit judge, Judge Fred L. Borchard.

Many of the judges who endorse my opponent are close to his brother, the judge.  Other local judges still endorse me, including Judge Meter and retired Judge Gilbert.  Additionally, I am endorsed by judges from the Supreme Court, the appellate court, and circuit courts throughout the state who are not associated with the local situation and are endorsing me on my qualities alone.

Borchard: In thirty-four years as a trial attorney, I have practiced and tried cases throughout the State of Michigan.  I have had the pleasure of practicing in front of some of the best Judges in the State, but I have also had to practice in front of some that weren’t so good. 

More than anything, courtroom experience is what makes a judge effective. The Judge that I have admired, not just my whole career but my whole life, is my father.  I have been told time and time again by his peers that he was one of the best judges to have served the State of Michigan.  His demeanor and work ethic were admired by all. 

Some people have accused me of running on my family name.  I consider that a compliment!  I am proud of my father and his service to our community, and I am proud of my family.  I am running based upon who I am, what I have accomplished in my career, and what I believe I can contribute to our community.

Review: As a Judge, you would be called upon to judge others in a professional capacity. Do you consider yourself to be particularly “judgmental” in your personal life, and do you think you might become a more “judgmental” in your personal life after you attain the prestige and power of being a Circuit Court Judge? If elected, what would you do to guard against falling into the trap that the ancient philosopher Cicero called “the arrogance of officialdom.”

Borchard: I will rely on my common sense and ability to work with people to be an effective judge.  I will work hard, and I will make thoughtful and timely decisions in all the areas of the law covered by Circuit Court.

A judge’s feelings about any given case should not be apparent to a jury.  A judge needs to rule on the law and effectively move a case along in a professional and dignified manner.  I have obtained these skills from observing my father and other highly qualified Judges in Michigan throughout my thirty-four years of practice.

I don’t consider myself judgmental in my personal life.  Most people who know me would agree that I will not fall victim to “the black robe syndrome.”  All people need to be treated with dignity and respect.

Howell: I am judgmental as it applies to me and my behavior.  I am probably my harshest critic.  I tend to be more forgiving of others, and try to understand how they found themselves in a particular situation.  I have had the opportunity to be tested against falling into the trap of arrogance. 

As a police officer I had the authority and responsibility to “judge” people on many occasions.  I tried to use this power carefully, and I believe I accomplished it. 

As a legislator, and especially as Chairman of Judiciary, I was in a position of power to decide what legislation would be taken up by my committee, and thus the Michigan House of Representatives.  I tried to listen to ideas, no matter what the source and was known to be a very fair chairman.  
 
Review: A judge decides what evidence is given to the jury, and what evidence will be held back from them. Evidentiary rulings are often fatal to one side or the other. The jury is the ultimate finder of fact in a case, applying the facts they determine to the legal instructions the judge gives them, but the judge is both the finder of facts and the law in ruling what evidence the jury gets to hear about. These factual determinations that underlay evidentiary rulings are almost never questioned by appellate courts. Therefore, since so much is riding on what witnesses you would believe in an evidentiary hearing, it would be important for voters to know whether you would consider some witnesses as being inherently more credible than others.

For example, would you tend to believe a police officer, informant, or alleged victim over a defendant in a criminal case? What if an officer claimed consent to search was given, while the defendant claimed not such consent was given? Is it appropriate, in general, to require the police to get such consent in writing where possible? Is any witness inherently credible or not? Why?

Howell: Naturally some witnesses are more credible than others.  Life experience comes into play when making these judgments.  As a police officer I was called upon to make an initial determination of who was being truthful.  I depended on my experience and whether what the person was saying made practical sense and fit the facts.  I would also look at the motivation of the person in either being truthful, or not.  No person, regardless of profession or standing, is inherently truthful or lying.  Perception also comes into play.  As far as consent to search, it always is better to have signed consent, although even that has and will be continued to be questioned with claims of coercion.

Borchard: A person’s credibility is determined by many factors.  The jury instructions clearly set forth parameters, which are to be applied to all persons under oath.  Physical evidence, scientific evidence, the demeanor of the witness, a person’s interest in the outcome of the case, a person’s past history of credibility, and numerous other factors are set out in the Michigan Jury Instructions to guide juries, as well as judges, in determining the credibility of witnesses. A judge cannot require police to get written consent.  It certainly would be beneficial where consent is an issue.  A judge, however, cannot require something that the law does not. There are no witnesses who are inherently credible.  Life skills and experiences help us determine whether we believe someone is telling us the truth or telling us a lie.

Review: You have worked in both and had long successful careers in the private sector before moving into your public sector careers. Which of the two sectors do you find most financially rewarding, most intellectually satisfying, most frustrating, most time consuming, and most valuable in preparing you to become a Judge? Why?

Borchard: I have always worked hard and made a decent living.  Working as a prosecutor has been a very satisfying career for me.  I represent victims of crimes on a daily basis and help them obtain justice using my skills as a trial attorney and a human being.  At the end of the day, I feel like I have made a positive difference for the people of our community.

Howell: The two things that were most satisfying of the many things that I have done were being a Saginaw Police Officer, and being the State Representative for a good portion of Saginaw County.  Having said this, I have enjoyed every aspect of my work as an attorney.  Representing people in times of need has been rewarding, and has given me a perspective on human behavior that is probably unmatched in any other career field.  I have been fortunate in my career choices as I have been able to be of service to others and challenged at the same time.