The Role of the Michigan Open Justice Commission in Improving Public Trust and Confidence


by Justice Marilyn Kelly and Lorraine H. Weber
Judge Harold Hood

When citizens turn to or are forced into litigation, they do so on the basis of an implied agreement between them and their government. The agreement rests on a foundation of defined rights and responsibilities between the parties. It is dependent on both the perception and the reality that each citizen can trust the fairness, efficiency, and competency of the system to execute its responsibilities in every case. From the time of the founding of this country, it was recognized that confidence on the part of all citizens in the administration of justice is essential to good governance. Alexander Hamilton reflected this concept when he observed that "the simple administration of law brings out reverence, esteem and affection in the people."

Today, increasingly, judges and attorneys face cynicism from the public, a failure of trust and confidence, a loss of "reverence, esteem and affection." According to a Caravan poll by the Opinion Research Corporation released July 4, 2000, one-third of Americans believe that federal judges are often biased against poor people or minorities.

The State Bar of Michigan has made initiatives aimed at this problem, one being formation of the Open Justice Commission. In its mission statement, the commission is specifically charged with responsibility to "increase public confidence in the fairness of the legal profession and the equal application of law for all citizens."

The goals of the commission reflect a nationwide agenda only recently adopted, the National Plan for Action on Public Trust and Confidence in the Courts. Developed by five leading judicial and legal organizations, it has been described as an unprecedented focusing of national attention and commitment on improving public confidence and trust in the legal system. The developing organizations were the Conference of Chief Justices, National Conference of Judges, National Association of Women Judges, National Center for State Courts, and American Bar Association.

In May of 1999, 500 people, including leaders from state and federal courts, bar associations, the media, and citizen groups, convened in a first-ever conference of the National Plan for Action. Its goal was to address the loss of public trust in the justice system. Many chief justices of state supreme courts were present, including Michigan Chief Justice Elizabeth Weaver. Forty-six states, plus Guam and Puerto Rico, sent teams. In addition to Justice Weaver, the Michigan team included Michigan Chamber of Commerce President James Barrett, State Court Administrator John Ferry, Michigan Supreme Court Public Information Officer David Gruber, Steven B. Hantler of the Chrysler Corporation, State Bar of Michigan President Thomas Lenga, and Alexander N. Luvall, Executive Court Administrator for the Third Circuit Court.

The conference engaged its participants in an intensive strategic planning exercise to identify and prioritize recommendations for increasing public confidence in the courts and in the legal system generally. The conferees were asked to address five questions:

1.How serious is the overall issue of loss of public trust?

2.What are the critical issues affecting public trust?

3.What are the most effective strategies to deal with these critical issues?

4.What are the barriers to effectuating these strategies?

5.What actions can be taken at the national level to help surmount the barriers and implement the strategies?

HOW SERIOUS IS THE OVERALL ISSUE OF LOSS OF PUBLIC TRUST?

When conference participants were asked how serious is the problem of loss of public trust, 90 percent ranked it serious. Not only did they overwhelmingly identify it as serious, they felt it their responsibility to do something about it. Judges and other court-related participants saw judges as the natural leaders in this effort. Attorneys focused on the organized bar for leadership.

WHAT ARE THE CRITICAL ISSUES AFFECTING PUBLIC TRUST?

The following studies on public trust and confidence identify as critical issues how race, gender, and special population groups are treated in the courts. The studies suggest that these groups perceive greater bias and that their perceptions are often based in reality.

The National Center for State Courts Survey Results

In 1999, the National Center for State Courts conducted a survey on public trust and confidence in the courts. Respondents were asked to indicate the extent to which they agreed with a series of 16 statements about court performance. The survey covered such subjects as access, timeliness, equality, fairness, independence, and responsiveness. Overall, those polled gave a rating of "average"to the performance of the courts in their community. Hispanic respondents expressed the greatest satisfaction. The assessment by Caucasians was somewhat lower. African Americans were consistently the most negative about the courts.

Several of the findings reflected public dissatisfaction. Among them were: 70 percent of African Americans thought that, as a group, they are treated somewhat worse or far worse than other groups; 81 percent of all respondents agreed that politics influences court decisions; 56 percent felt that most juries are not representative of the community; 68 percent did not agree that it is affordable to bring a case to court and 87 percent felt that retaining a lawyer contributes significantly to the cost of litigation; only 10 percent felt that courts in their communities handled cases in an excellent manner, while 20 percent felt that criminal and family cases are handled in a poor manner; 30 percent felt that juvenile cases are handled poorly; and 44 percent felt that judges were out of touch with what was going on in their communities.

Most respondents felt strongly that some groups receive preferential treatment from the courts. In answering the questions posed, only about half of the respondents agreed that men and women are treated equally; even fewer believed that among racial or ethnic groups or between wealthy and poor people the treatment is equal. After an analysis breaking the data into sub-groups, the respondents’ perceived differences in treatment become even more pronounced.

People who were less likely to agree that sub-groups are treated equally include women, non-Caucasians, those with lower incomes and less education, and those with negative court experiences. Caucasian males, those more educated, and those with higher incomes reflected a much higher level of trust and confidence. Men were more likely and women less likely to agree that the system treats men and women equally; Caucasians were more likely and non-Caucasians less likely to agree that the system treats different racial and ethnic groups the same; similar findings were reached regarding questions about income.

Most Americans surveyed felt that "people like them"were treated either better or the same as others. However, this perception was not shared by African Americans. Two-thirds of African Americans felt that "people like them"were treated somewhat or far worse than other people. Almost 70 percent of African-American respondents said that African Americans, as a group, receive somewhat worse or far worse treatment from the courts; a substantial number (over 40 percent) of Caucasian/Non-Hispanic and Hispanic respondents agreed.

Approximately 33 percent of Hispanic respondents said that Hispanics, as a group, got somewhat worse or far worse treatment from the courts. A greater number of Caucasians/Non-Hispanics (47 percent) and African Americans (60 percent) felt that Hispanics, as a group, receive somewhat worse or far worse treatment from the courts. A majority of respondents believed that non-English speaking people receive somewhat worse or far worse treatment from the courts. However, a greater number of Hispanic (59 percent) and African-American respondents (66 percent) held that belief.

The ABA Survey Results

The American Bar Association conducted a similar study in 1998. Its findings were consistent with those of the National Plan for Action. At least conceptually, there was a high level of support for the justice system. Some key findings of the study were that people strongly believe in the system. The core of this positive image was public perception that courts are the constitutional protectors of individual rights and that they ensure that litigants have adequate and effective legal representation. People believe that judges are generally fair and honest in their decision-making and that, as a whole, they treat others with respect and courtesy.

The American public, as represented by the survey respondents, possesses a negative image about the courts with respect to access to justice issues, such as the treatment of minority groups. The system received low grades in the areas of independence and responsiveness. Courts were viewed as too costly, too slow, and unsuccessful in giving adequate attention to all cases. Juries were regarded as unrepresentative of their communities.

While most respondents had confidence in the overall justice system, the degree of confidence clearly varied for specific components of the system. It was influenced by the respondent’s level of knowledge, past court experience, and personal demographic traits.

In addition to tracking confidence by knowledge level and court experiences, the study considered the demographic characteristics of people with the most confidence in the justice system. It found that they are likely to be men who have higher incomes and more education than average and who have had positive litigation and jury experience.

Unlike the National Center study, the ABA survey found no consistent differences in confidence among ethnic groups. About the same number of Caucasians and non-Caucasians were extremely or very confident in the overall justice system. "Non-Caucasians" included African Americans, Hispanics, Asians, and others. In spite of there being a large total sample, 1,000 respondents, the survey reported that there was an insufficient number to break ethnic groups out separately. Therefore, they were massed together, with African Americans comprising the majority of non-Caucasians.

It should be noted, however, that the survey showed attitudes of Caucasians and non-Caucasians toward the system varying, with Caucasians holding more positive attitudes in many areas, especially in the area of equality of treatment.

The ABA Journal and NBA Magazine Survey Results

An important parallel to these results can be seen in the February 1999 issue of the ABA Journal entitled "Race and the Law." In a collaborative effort, the Journal and the National Bar Association Magazine polled 477 Caucasian lawyers, 489 African-American lawyers, and 35 lawyers of other ethnic backgrounds. The purposes of this research were to identify lawyers’ perceptions of the justice system and to understand what differences of perception may exist based on race. The study found that perceptions of racism in the justice system among lawyers of different races are similar to perceptions among the general population. In some cases, the differences were even larger.

The Michigan Supreme Court Racial/Ethnic and Gender Task Forces’ Findings

It is important to note that the national findings reviewed here are consistent with conclusions reached by gender, race, and other open justice initiatives at the state level. Michigan is no exception. In 1989, the Michigan Supreme Court Task Forces on Racial/Ethnic Issues in the Courts and Gender Issues in the Courts completed their studies. They included two years of extensive citizen, judicial, and lawyer surveys; data collection and research; and 17 statewide public hearings.

The task forces concluded that the perception of bias adversely affects justice and that the perception often is based in reality. Race, ethnicity, gender, and other special populations were key factors determining the degree of public trust and confidence. Ten years later, the same issues are prominent on our profession’s public agenda, and the same disturbing findings remain valid.

WHAT ARE THE MOST EFFECTIVE STRATEGIES TO DEAL WITH THESE CRITICAL ISSUES?

By the end of the National Plan for Action Conference, the group had identified strategies that could positively impact public trust and confidence in the judicial system. On a scale of 8-0, the conference ranked 16 strategies by their potential effectiveness. Six were ranked 5.0 or higher and stood out clearly as the most important.

In order of priority, the six strategies were:

1.Improve education and training (this included public school education)

2.Make the courts more inclusive and outreaching

3.Improve external communication

4.Provide swift, fair, and reasonably priced justice

5.Share public trust programs and activities among states

6.Implement task force recommendations on gender, race, and bias and replicate successes

THE EMERGING ROLE OF MICHIGAN’S OPEN JUSTICE COMMISSION

Michigan’s Open Justice Commission has undertaken 35 projects in the last year directly related to these strategies. A principal objective of the commission is to implement the recommendations of the 1989 task force reports. The conclusions of the national conference emphasize the importance of that mission. These projects have the potential, by targeting under-represented groups, of expanding the commission’s reach to the larger issue of lack of public confidence in the courts.

The commission is in the process of implementing educational programs for judges and lawyers related to cultural awareness, juvenile justice, and sexual orientation. To the extent that it succeeds, it will expand the knowledge and awareness of both lawyers and judges, encouraging an environment of inclusion and fairness. The commission’s jury representation project recognizes the importance of, and urges broad citizen participation in the legal system. Additionally, the commission will produce best-practices manuals on juvenile justice, court administration, and jury initiatives for Michigan courts and bar associations considering undertaking their own public trust projects. Initiatives such as the Domestic Violence Pro Bono Project unite a large and diverse group of stakeholders into a working coalition with a common purpose: to identify and train attorneys to represent low-income domestic violence victims in civil proceedings.

WHAT ARE THE BARRIERS TO EFFECTUATING THESE STRATEGIES?

In the first open microphone session, National Plan for Action Conference participants identified 23 barriers to the successful implementation of the six strategies. When reduced to major categories, these barriers were:

Problems in the Legal Profession—Lack of diversity, lack of self-discipline, excessive use of legal jargon, failure to oppose legislative encroachment on the judicial branch, failure of the profession to educate its members on the need for self-reform

Problems in the Judiciary—Failure of judges to listen or interact with court users, too much hierarchy and too little democracy, failure to lead, lack of will to make changes, failure of quality control in the lower courts

Weaknesses in Procedures—Tension between fairness and efficiency, emphasis on winning at the expense of collaboration and facilitation, failure to develop judicial and nonjudicial alternative dispute resolution mechanisms

Poor Attitudes on the Part of the Public—Citizen dissatisfaction with government and generalized failure to realize that some skepticism about government is inherent in a democracy, insufficient public accessibility to court proceedings, failure to give sufficient education to the public on the role and procedures of the judiciary, unrealistic expectations about judges and courts, media misinformation

Insensitivity to Minorities—Failure to deal aggressively with racial and ethnic bias, lack of understanding of how tribal judiciaries relate to state judiciaries

Inadequate Resources—Inadequate resources provided to courts

Lack of Data—Lack of empirical data defining the problems and identifying what works well

WHAT ACTIONS CAN BE TAKEN AT THE NATIONAL LEVEL TO HELP SURMOUNT THE BARRIERS AND IMPLEMENT THE STRATEGIES?

The National Plan for Action identified a number of vital strategies for planning a national agenda to enhance public trust and confidence. These strategies provide a roadmap for state initiatives as well. The Michigan Open Justice Commission is committed to designing, supporting, and implementing state and local projects that put these strategies into a comprehensive plan for open justice in our state. Each of the commission’s 35 projects is consistent with this national agenda and supports the effort to improve public trust and confidence.

The National Plan for Action includes:

•Develop and/or disseminate models or best practices

•Examine the role of lawyers and their impact on public trust

•Engage in public education at the state and local level

•Improve public access through information technology

•Foster and maintain a network to sustain public trust

•Provide education programs for people within the system

•Develop standards and procedural reforms

•Promote ongoing state dialogue on public trust

•Provide specialized expertise

•Act as liaison or take a proactive stance with the other branches of government

CONCLUSION

Quoting John Jay, the first Chief Justice of the United States, keynote speaker Chief Justice William H. Rehnquist encapsulated the theme of the National Plan for Action Conference: "Next to doing right, the great object in the administration of justice should be to give public satisfaction." Michigan’s Open Justice Commission has undertaken an ambitious agenda for improving public trust and confidence in our state’s judicial system. It reflects the State Bar’s ongoing commitment, not only to do right, but also to improve public satisfaction.

Judges and lawyers are typically over-occupied in their daily work, resolving tough questions and managing the complexity of the practice of law and the administration of justice. In the press of these responsibilities, it is easy to forget that our commitment is to serve and that the ultimate recipient of our service is the public. It is at our peril that we fail to recognize our responsibility to improve both the perception of and the reality of fairness and openness in the legal profession and in the courts.


Judge Harold Hood has served as a member of the Michigan Court of Appeals since 1982. Before that he served respectively, starting in January 1973, as a judge of the Common Pleas Court of Detroit, the Recorders Court of Detroit, and the Wayne Circuit Court. He also served as Chief Assistant United States Attorney for the Eastern District of Michigan. From 1987 to 1989, Judge Hood chaired the Supreme Court's Task Force on Racial/Ethnic Issues in the Courts and currently co-chairs the Open Justice Commission.


Justice Marilyn Kelly
Justice Marilyn Kelly received her law degree with honors from Wayne State University in 1971 and was a trial lawyer for 17 years, principally in Wayne and Oakland Counties, where she formed Marilyn Kelly & Associates. In 1988, she was elected to the Michigan Court of Appeals and reelected in 1994. In 1996, Justice Kelly was elected to the Michigan Supreme Court. She has been president of the Women’s Bar Association of Oakland County and the Women Lawyers Association of Michigan. She has served on the State Bar Representative Assembly, the Family Law Council, the Communications Committee, and currently is co-chair of the Open Justice Commission.

Lorraine H. Weber <br>Judge Harold Hood
Lorraine Weber is an honors graduate of both the University of Michigan and Boston College of Law. She was the Wayne County Probate Court Administrator and a referee in the Juvenile Division until August of 1997. She served as executive director for the Michigan Supreme Court Task Forces on Gender and Racial/Ethnic Issues in the Courts and was the special advisor to the State Bar of Michigan Task Force on Race, Ethnic, and Gender Issues in the Courts and Legal Profession. She is currently special advisor and member of the Open Justice Commission of the State Bar of Michigan and is employed by the State Bar of Michigan as consultant on open justice, specializing in diversity issues, gender, race, and ethnic discrimination and the presence and impact of bias on the Michigan court system and the legal profession.

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