Over the years, we have observed Fox 2 Detroit's "ambush journalism" in the context of the judiciary. Who could forget the piece that ended former Judge Dennis Powers' career as a district court judge in Novi; or their -unsuccessful- attempt to put egg on Judge Rae Lee Chabot's robes.

The idea is to get some choice undercover footage of the judge or justice outside the courtroom, preferably out-of-doors, at home, or at a restaurant. Then, when they least suspect it, stuff a microphone in their face as they are walking toward their car and ask them why they are not in court.

This time, Fox 2 set their sights on the Michigan Supreme Court and Justice Brian Zahra. The ambush occurred outside his parents' home, apparently in the middle of a Tuesday morning; the allegation is that Justice Zahra only goes into his office once a week.

This story raises the issue of whether a Supreme Court justice is required to maintain regular office hours between 9:00 am and 5:00 pm. To address this issue, you have to know something about what a High Court justice does.

Unlike other Michigan courts, the Supreme Court controls its docket by selecting -through a vote of the 7 justices- which cases it will decide. On average, there are about 3000 cases filed with the High Court each year.

The job entails reading an endless supply of briefs written by the best lawyers in Michigan and other states; the job entails staying abreast of the developments in the law; reading lower court opinions; reading statutes; thinking about how those laws apply to a particular set of facts; and, in their assigned cases, writing the opinion that will become binding law on all the lower courts in Michigan.

These days, all appellate briefs -along with the attachments known as an appendix- are required to be uploaded to the court website. As Justice Zahra said in his interview, he has his entire docket and office on a thumb drive.

No one would seriously argue that reading submissions in electronic format requires someone to be sitting at a desk in an office between the hours of 9 and 5. In fact, an argument could be made that a traditional office setting is a place of distraction when it comes to reading, thinking and writing about the law.

Oftentimes, when this blogger has an appellate brief due, I avoid the office for the peace and quiet of my private study in my home. To have a stream of staff walk in and out of my office when trying to complete a brief on deadline is stressful and counterproductive.

My first job out of law school in 1988 was a law clerk position at the Michigan Court of Appeals. In the pre-hearing division, we were assigned an office with a complete set of Michigan reports and statutes; actual books on the shelves; no computers. Our reports to the judges were written-out long-hand on legal pads and then given to secretaries in a typing pool.

Today, an entire law library, along with all the files in my law practice, fit in my laptop computer with instant access. With smart phones, the expectation is that legal professionals are available 24/7.

So who knows whether Justice Zahra works on weekends, late into the night, or early in the morning in order to complete his opinions in the cases assigned to him by the Chief. Does this really matter so long as his output, as one of seven justices on the High Court, is getting done on time?

We are told by the Chief Justice, Robert Young, that his work is timely and exemplary. He gets high marks from his colleagues on the bench; those in the best position to know whether Justice Zahra is doing his job.

Also, a supreme court justice is different than a trial judge that must be present in her courtroom everyday in order to address her docket through hearings, trials and conferences. When trial court judges run late or are absent, the docket starts to back-up, and expensive legal professionals end-up standing around a judicially empty courtroom.

That's a problem for the trial courts. On appeal, not so much.

Post #537

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This is not a resignation, he says.  Judge Dennis Powers, having served on the district court bench in Novi for the past 16-years, told Michigan Lawyers Weekly that he submitted a letter of retirement, not resignation.

Today is the first day Judge Powers' courtroom sits empty following his sudden change in plans.

The embattled judge was facing a trial this month at the Judicial Tenure Commission over allegations of improper expense reports, a "ghost docket", threatening a "whistle blower" staff member, and other judicial improprieties.  Up until 2-weeks ago, it looked like Judge Powers, 72-years old and thus ineligible by age to run for another election under state law, was determined to fight the charges to the bitter end.  Judge Powers' lawyers at the Vandeveer Garza law firm were gearing-up; now they have withdrawn from the matter.

Not to condone judicial impropriety [these allegations will never carry the weight of a judicial conviction in light of the Judge's sudden retirement], but we here at the Law Blogger will hate to see Judge Powers go.  He was always a gracious and reasonable jurist in our experience.  Personally, I had one of my biggest felony cases begin in the Novi District Court, and Judge Powers handled it very well; for that I will always be grateful.

That said, however, this is truly a bad end to an otherwise outstanding judicial tenure.  When judges are accused of impropriety -something that has been rampant out in Novi- the effect is that the foundation of the justice system erodes and the community loses faith in the concept of achieving justice as a civic goal in our free society.  This is not a good result in a free society governed by laws that are ruled upon by a judiciary elected from the community.

The next step out in Novi is for Governor Rick Snyder to appoint a lawyer to finish-out the remaining two years of Judge Powers' term.

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Novi District Judge Dennis Powers

Over here at the Law Blogger, we've dared to imagine what it's like to be a judge.  While none of our lawyers have ever been on the non-partisan ballot, we work with enough judges to marvel at the awesome responsibilities they shoulder every day, and the substantial powers entrusted to them to decide cases.

To maintain a well-oiled docket, either at the district court or the circuit court level, is a monumental task that requires legal knowledge, wisdom and perhaps most importantly, management skills.  As either a circuit or district court judge, you are elected from the very community in which you pronounce judgment, day-in-day-out.

 Judges, even more so than our public servants in the other branches of government, must have impeccable integrity.  When a judge breaches the public's trust, it erodes the fabric of our justice system; when that breach is due to dishonesty, the damage is accelerated.

Two veteran jurists in Novi have been in the news over the past year for this type of mission-critical breakdown.  They have left their communities wondering about the brand of justice that is served at the 52/1st District Court.

Last week, the Judicial Tenure Commission filed a 58-page complaint against district judge Dennis Powers, alleging among other things that Judge Powers requested reimbursements to which he was not entitled, was frequently late to court, granted favors to his "friends", as famously detailed in a Fox News' expose, and threatened to terminate the whistle-blower on his staff after the local media reported on the story.

For his part, Judge Brian MacKenzie, in the adjacent chambers at the 52/1st, is also under scrutiny; his docket is being reviewed by a higher court; and a tape recording made in Judge MacKenzie's chambers about a questionable conversation the judge directed involving an exchange of dismissals, civil for criminal, is under review by the FBI.  We shall see where all that goes...

Our blog has already detailed some of the shenanigans sponsored by Judge Brian MacKenzie in an earlier Law Blogger post.  Since then, Oakland Circuit Judge Colleen O'Brien did find that Judge MacKenzie acted contrary to the law in at least 8 cases, and ordered part of his docket [in domestic violence cases] to be subject to her review.

Then there is the 2014 election where the allegations against Judge MacKenzie will be tested on the non-partisan ballot, first in the August primary, then in the general election if MacKenzie survives the primary; he is being challenged by two local attorneys- his former law clerk Travis Reeds, and Scott Powers, Judge Dennis Powers' son.

With the formal JTC complaint now filed against him, it is uncertain whether Judge Powers will even make it through the two years remaining on his term.  That would open-up a seat on this radioactive bench for Governor Rick Snyder to fill through a local judicial appointment.

In order to restore faith in our local judiciary, Governor Snyder needs to get that appointment right, should he have the opportunity.  Stay tuned and we will keep you posted of all significant developments happening out in Novi.

In the meantime, if you've had an interesting experience in a district court, we would like to hear from you.

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