Perverse justice: politics and hubris inside the Washtenaw County Courts
By Tom Clynes
With contributions by David Alexander
Your first thought, when watching the video, is, “This can’t be happening in Ann Arbor.” The recording, from late last year, depicts a lawyerless father clearing his throat and beginning his argument for returning his two children to their home in Vermont, from which they’ve been taken by their mother without the father’s knowledge or consent. Shortly after he begins to describe Vermont’s currently thriving economy, the judge interrupts him and holds up a magazine.
“They don’t allow this in Ann Arbor, but I get The Weekly Standard, and it’s rather right wing,” the judge says, as he turns to an article titled “Down and Out in Vermont.” He reads aloud passages he has marked with highlighter, which describe an “epidemic” and “plague” of heroin in Vermont. “I don’t know if that sounds like a place you want to move your kids,” the judge concludes.
Later, the father will try to present data showing that Vermont and Michigan are nearly identical in their rates of adolescent hard drug use (they rank 15th and 16th, respectively) and that the children’s hometown compares favorably to Ann Arbor in terms of health and medical care, schools, economics and quality of life.
The judge will refuse to accept the father’s exhibits; he apparently has all he needs to make his decision. Ann Arbor may be too liberal for Nelson, but Vermont is off the scales, the place that pioneered gay marriage, universal health care for children, even (gasp) the localvore movement: “One of my friends has a good friend that lives in southeastern Vermont,” the judge blurts out at one point, apropos of nothing being discussed at the time. “His wife stays home and milks the goats and makes goat cheese. Is that what you want (your ex-wife) to do?”
When the father refers to court transcripts from an expert witness on the issue of parental child abduction, the judge says he hasn’t read many of the transcripts, and demands that the father “hurry it up” and “move it along.” As the man begins to stammer, clearly thrown off balance, one of the mother’s two attorneys begins to smirk and snicker. She and her co-counsel and their client have lucked out; their case has been assigned to Judge Charles Nelson — and their opponent is going down in flames.
• • •
“Of all our elected officials, a judge is more likely to directly touch your life than any other elected official,” said Tracy Van den Bergh, a candidate for the position that Nelson had been brought in to fill, on a “temporary” basis that eventually stretched many months. “You may go through a divorce, your kid may get an MIP (minor in possession of alcohol), you may need to sort out a will.”
And yet, of all our elected officials, judges are typically those we know least about — so little, in fact, that about a third of voters will not, during the Aug. 5 elections, even turn the ballot over to vote for these “nonpartisan” positions.
Most of us don’t feel qualified to judge the judges, two of whom will be chosen in this year’s elections (two open seats in the Washtenaw County Courts is an extremely rare occurrence). Those who are most qualified are the attorneys who appear in front of judges on a regular basis. And so, to get a sense of the current state of the local courts and judiciary, The Ann interviewed more than a dozen local attorneys, in addition to judges, court officials and legal scholars. What emerged is a portrait of a troubled and often dysfunctional system, guided by an aloof and unengaged judicial leadership that is functionally accountable to no one, despite the paradoxical fact that judges are elected by the people they are sworn to serve.
“The court is a very important part of our civil society,” said one attorney who works with low-income clients. “And right now, people are tremendously dissatisfied. There’s mismanagement, an uncaring bureaucracy, lost records and a ridiculous backlog. But mostly, it’s the judges: the arrogance, the bias, the bizarre behavior.”
This attorney, like most of the attorneys who agreed to talk to The Ann, would speak only on the condition of anonymity, and it’s not difficult to understand why. “We have to appear in front of these judges, and whether we respect them or not, we have to pretend we do,” said one divorce attorney. “You’d like to think constructive criticism would be welcomed, but these are people who are used to having everyone rise when they walk into a room. Would there be repercussions if I publicly criticized a judge? Yes there would be, for me and for my clients.”
At this point, I need to disclose that I was inspired to investigate the Washtenaw County Courts by my experience there, during a divorce. It wasn’t so much the outcome that troubled me, it was the process and the actions of the people involved in that process (some of whom appear in this article). I wanted to know how typical my experience was, how the system had come to be, who was responsible, and what could be done to make it better.
Among attorneys, the consensus that there are major problems within the local judiciary is nearly — but not completely — unanimous. A couple of well-established lawyers said their experiences with local judges have been mostly positive. They feel that the system works fairly well — especially in comparison to Wayne County.
And nobody believes that judges have an easy job. Judges deal with issues that are hard to pin down and with people who are angry and indignant. With family law cases, especially, there’s often little evidence other than “he said, she said” testimony. Court resources are tight, and judges are expected to meet efficiency standards.
Also, certain judges break the mold and are highly respected throughout the legal community. Attorneys said they admired both the legal and listening skills of Darlene O’Brien and Archie Brown, as well as Carol Kuhnke and John Collins. These judges, one attorney said, “listen to the end, ask questions and are very involved in decisions. Whether I win or lose, I see that they weighed their decisions carefully, and I understand and respect their reasoning.”
Unfortunately, though, the more problematic judges tend to stay the longest, and to rise to the top. Judge Donald Shelton has been with the Washtenaw courts for 24 years, serving as chief judge from 2010 through the end of last year. The announcement that he will retire in September was greeted with sighs of relief from the legal community.
Shelton, who declined to be interviewed, began his legal career as a U.S. Army staff attorney in 1970, and is known, as one attorney put it, as “a hard-ass without heart.”
“Shelton is a walking case for why there should be term limits for judges,” said one legal scholar. “He has his favorite group of old-boys’-club lawyers and he holds grudges against others; he retaliates by making their clients suffer for it.”
Another attorney who specializes in real estate said, “You really have to wonder about some of the decisions he made. He’s been taken to task by the Court of Appeals over his conduct of receivership cases, but it hasn’t changed how he does things.”
But one attorney, Patrick J. Conlin Jr., had positive things to say about Shelton at a recent campaign fundraiser at Bill’s Beer Garden. Conlin, who is running for Shelton’s soon-to-be-empty seat, asked Shelton to endorse him as his successor. “I talked to Judge Shelton and he gave me his support,” said Conlin, who pledged to carry on Shelton’s “great work.”
Shelton returned the compliments and said, “I’m going to urge everyone to vote for Pat Conlin. And I want to point out the most important person in this campaign, Trish Douglas, the campaign treasurer. I urge you to get to know her very well, and put little pieces of paper in her hand.”
• • •
During his tenure as chief judge, Shelton, a native of Jackson, was responsible for filling vacancies when judges were away for extended periods. In December 2011, Judge Nancy Wheeler went on sick leave. Shelton turned to his fellow Jacksonite, retired judge Charles Nelson, to take Wheeler’s docket in January 2012. Wheeler, whom lawyers had considered one of the court’s most inscrutable judges, returned on a part-time basis in March 2012, and Nelson left, only to once again take over Wheeler’s docket, at Shelton’s invitation, in October 2013. Nelson left again in December 2013.
The game of judicial musical chairs created chaos. “I had a case where we had a trial just before she got sick,” said Tamara Garwood, who is running for Wheeler’s seat (and has Wheeler’s endorsement). “Judge Nelson ended up undoing what Judge Wheeler had done, but his opinion didn’t resolve all the issues. Then Judge Wheeler came back and she corrected some of his decision, but before we could finalize things she was gone again and Judge Nelson was back. At that point, attorneys began avoiding the courtroom.”
Though it became apparent in mid-2013 that Wheeler would never be well enough to return full-time, she refused to retire — at least not while a Republican governor could appoint her successor. (Governors can appoint judges to fill judicial slots between elections; these appointees usually run in the next election, enjoying an incumbent’s advantage that is almost impossible to overcome.) Wheeler continued to collect her $140,000 salary until May 2014, though she only worked part of that time. She finally announced her retirement on May 1, 2014, immediately after the ballot had been finalized and the governor’s appointee could not be listed as the incumbent.
Regardless of what one might think of Wheeler’s motives, her stunt to keep a conservative Republican from taking over her bench seems to have backfired — at least in the “short” term.
“She can’t be happy about the mess Nelson made of her courtroom,” said one family law attorney, who described Nelson’s court as “a zoo.” Another attorney recalls that Nelson was so confused that he at one point “mistook me for the litigant, and was trying to swear me in to take testimony for proofs for judgment.” Nelson also reportedly ejected a nervous litigant whom the judge accused of mumbling, yelling, “Get out of here until you learn to speak!”
Nelson seems to have made no attempt to camouflage his biases about “liberal” Ann Arbor. Aside from reading William Kristol’s neoconservative Weekly Standard rants from the bench, Nelson frustrated attorneys with his misinterpretations and disregard for the rule of law. He baffled litigants with his impatience and hostility, lack of preparation, incoherent opinions and statements that some interpreted as misogynistic. One family law attorney said that reading one of Nelson’s opinions left her in a state of shock. “I hadn’t seen language like that in a legal document before. He referred to my client’s testimony as ‘a crock’ — and he wasn’t talking about a crock pot. He criticized a PPO (personal protection order) that he himself had signed. His math was wrong. Worst of all, the opinion was missing so many bits and pieces that we couldn’t use it to enter a judgment. And so now we’ve got to go back to yet another judge, to get it sorted out.”
Toward the end of 2013, attorneys were scrambling to do anything they could to get their cases postponed until after Nelson’s departure — leaving the judges who eventually took over the docket (John Collins, and then Carol Kuhnke) with a backlog and a series of messes to untangle.
“The whole episode was an embarrassment to the court,” said one divorce attorney. “Nelson had no business being there.”
Apart from judges’ antics, the court’s management and budgetary issues have affected customer service, particularly at the Friend of the Court. The FOC serves parties with cases involving divorce, family support and other domestic relations issues. As the FOC has lost referees and other staff members, the growing backlog has been exacerbated by outdated record-keeping.
Many of the people who deal with the Friend of the Court don’t have attorneys. “And even those who have a lawyer are struggling from paycheck to paycheck,” said one attorney who often works with clients on public assistance. “It’s clearly unfair to make someone wait for six months for a result on a continuation of child support. But that’s what happens when they refuse to hire more referees.”
Another concern, especially among advocates for domestic violence victims, is the court’s flippant handling of petitions for personal protection orders. “I’ve seen women wandering around the clerk’s office, confused; no one seems to know where to send them,” said Garwood.
The Ann interviewed a West Side woman who asked that her name not be used. “I had a stalker and it got really scary,” she said. “I went to the police and they sent me to the court. They sent me from room to room and it was all a bunch of confusion. After two hours I gave up and left there crying. It was a terrible experience. No one would help me.”
Trial court administrator Dan Dwyer said the court is “not required” to have anyone on hand to help with PPOs. He added that the court needs to strike a balance between allowing access to the court system without appearing to be an advocate for one side.
“That shouldn’t stop them from training people to refer victims to non-court services,” said an attorney who advocates for battered women. “For instance, SafeHouse Center can help with PPOs, and so can the Washtenaw County/EMU Legal Resource Center. Women shouldn’t be turned out to face their tormentors because court employees don’t know what they’re doing.”
Sometimes, Friend of the Court cases need to be escalated to a formal hearing in front of a judge. When that happens, parties need recordings of referee hearings, which then must be transcribed (at a cost of up to $5 per page). It can take weeks for the FOC to provide recordings, which are often delivered incomplete — when they can be found at all. That’s right: Recordings of hearings have been disappearing.
“I find it surprising and disturbing that the record for my hearings was incomplete and I wasn’t even made aware of it,” said one FOC referee, who has since started backing up his hearings on an additional device, even as the court has begun to install new equipment.
Some judges (including Nelson) have insisted on going ahead with hearings and trials, even though a missing transcript can heavily advantage or disadvantage one party over the other. Nelson decided at least one case despite an incomplete evidentiary record, over the objections of the party whose recorded evidence was lost by the FOC.
FOC head Garber said he is unaware how often the malfunctions occurred, but is nevertheless “concerned,” saying that “if it happens once, it’s too much.” Though he said he has taken steps to remedy the problem, he contends that the lost files didn’t make much of a difference, because the litigant is free to refile and re-testify.
“No, he’s wrong,” said an attorney who works with low-income clients. “This is a very serious problem. Judges make rulings based on these records, and the whole purpose is to avoid duplication. The cost of getting these transcribed can run into thousands of dollars, not to mention the expense of attorneys and expert witnesses. It’s outrageous for Garber to say, ‘Oops, sorry, we lost your tapes, but it’s no big deal, just do it all again.’ For many people, that spells the end of their quest for justice.”
The court’s outdated case records system has been another source of frustration. That’s one area that should improve in October, when a new paperless system is slated to go online. According to Dwyer, the system will allow attorneys to e-file paperwork. Dwyer said the system shift was prompted by the fact that the current system is no longer supported technically.
Unfortunately, the new system will do nothing to improve transparency. It won’t allow searches for, say, a particular attorney’s win/loss record with a particular judge. Those kind of patterns would be useful to a journalist who needs hard data to confirm whether attorneys’ endorsements and campaign donations to judges affect case outcomes, as many attorneys believe. “It’s well known that certain legal firms and legal family dynasties that support a judge’s campaign do better in front of those judges,” said one legal scholar who has closely observed the Washtenaw County courts, “and that attorneys who don’t endorse and fund those campaigns do worse.”
Allowing public access to such metadata, as other states and counties have done, should be relatively straightforward — if the court really wanted the public to have access. But Dwyer contends there’s no need. “Broadened public access to records is not something people vocalize a need for; most people only want access to their own cases.”
• • •
On the first of January, David S. Swartz took over from Shelton as chief judge of the Washtenaw County Trial Court. Swartz is a conservative who was appointed to the Circuit Court by Republican Gov. John Engler in 1997 to replace Judge Patrick J. Conlin Sr. As chief judge, Swartz is responsible for the overall function of the courthouse, including assignment of judges’ dockets, judicial administration and visiting judges.
Swartz is tall, with white hair and a white goatee. He wears small dark sunglasses when outside, as he was recently at a campaign fundraiser for Patrick Conlin Jr., who said Swartz is “doing a great job, doing his level best every day to deliver the great service that this city needs.” Swartz smiled as he took the compliment. But when The Ann brought up evidence of dysfunction in his courthouse, it became clear that Swartz is not a man accustomed to, or comfortable with, criticism.
Confronted with the numerous complaints about Judge Nelson’s conduct, Swartz crossed his arms and shifted in his seat. “I don’t understand where that’s coming from,” he said. “He’s a good judge. He’s fair and competent. I don’t presume to know the ins and outs of every move that goes on in every courtroom, but I never saw or heard about anything inappropriate. People have a legitimate means to bring those concerns forward, and they just are not.”
But a review of video recordings from Swartz’s courtroom confirms that the chief judge did, in fact, hear numerous concerns about Nelson’s inappropriate behavior and perceived biases. Swartz was informed of Judge Nelson bringing in The Weekly Standard as evidence; about Nelson’s bizarre comments about goat-milking; about his decisions based on incomplete and missing evidence; about his hostility toward witnesses and litigants. He was also informed of concerns that Nelson’s behavior had the potential to embarrass and negatively affect the credibility of the court.
The video recordings show Swartz dismissing all requests to take action, citing the “high hurdle” for demonstrating a judge’s bias.
“Actually, you’re clearing that hurdle with room to spare if a judge is bringing his or her own evidence into the courtroom,” said a U-M Law School professor who specializes in judicial standards. “A judge is not supposed to access collateral sources that are not in evidence. That’s a really big no-no that should have disqualified him. Plus, think about it: The litigant is proposing to move his kids back to a place known for its progressivism, and the judge is citing an article from a niche right-wing political opinion journal as a reason not to go there. How can anyone say that adheres to the accepted standards of objectivity that are outlined in the Michigan Code of Judicial Conduct?”
Some observers of the Nelson affair have noted that Ann Arbor has a far different culture than Jackson, Nelson’s home. But Swartz dismissed that notion. “The political climate is irrelevant. A judge doesn’t strive toward political leanings one way or another.”
Dwyer and Swartz say that although the county’s budgets are stretched, the court has worked hard to improve service. Swartz suggested that The Ann call the leadership of the county Bar Association, who, Swartz said, would confirm that his court is doing a great job. Neither the Bar Association’s president nor its executive director returned multiple phone calls.
Swartz dismissed concerns about poor customer service, claiming that anonymous surveys show that “people are generally satisfied with their experience.” But the “surveys” turned out to be anything but a scientific sample of the tens of thousands of people who access court services each year. The Circuit Court survey had only 58 respondents; the Probate Court 41. The surveys were apparently handed out on a single day last year, and visitors could decide whether to fill them out or throw them away.
“This isn’t the kind of methodology that should make them jump up and down,” said David Duguid, a survey research expert at Socratic Technologies. “Apart from covering yourself by being able to say, ‘Look, we did a survey and it says we’re doing great,’ it’s hard to see what value something like this would have. I’d question whether it would be at all representative of who’s using the courts, and how well they are functioning.”
What the survey does best is to point out that there is really no functional system of accountability for the people — and the system that supports them — who have the power to affect our lives more profoundly than any other individuals on Earth. This lack of accountability may seem paradoxical to our ideals of a democratic society, since judges are elected by voters. But elections may be, in fact, the worst way to select judges.
“Most of the public has no knowledge of a judge and judges can’t say much about themselves,” says Robert Davidow, a retired professor of law at George Mason University who now lives in Ann Arbor. “Elections focus on who has money and connections and name recognition, not who is the best person for the job.” Davidow doesn’t believe judges should be appointed by governors either; he suggests a committee of two lawyers, two academics (one of whom would be selected by lawyers) and two laypersons.
“The most likely people to hold judges accountable are actually lawyers,” said one attorney, “but considering that none of us will talk to you unless it’s off the record, you can see how well that’s working.”
Michigan has a Judicial Tenure Commission, which handles complaints against judges — and which, it seems, any lawyer would be a fool to make use of. Paul Fischer, the commission’s executive director, said that the commission discloses the identity of complainants to judges, and that circumstances that would warrant anonymity are very rare. “In fact,” he said, “I can’t even think of one.”
In the federal courts, a well-functioning appellate system helps to keep judges accountable, since poor decisions can be appealed. Michigan has an appellate system too — and it is a mess. Appeals are so costly that they’re typically out of reach for all but the wealthiest litigants, and the system often has a multi-year backlog. Should an appeal make it all the way to the Michigan Supreme Court, the “verdict” is not good: In a University of Chicago Law School ranking of the nation’s state supreme courts, Michigan’s came in dead last.
• • •
Earlier this year, I spent several afternoons at the courthouse, observing judges in action. I was struck by one major difference between Swartz and other judges. The others reviewed motions and other documents submitted in advance, and used the hearing as an opportunity to clarify positions. They listened and they asked questions.
Chief Judge Swartz’s hearings were different. He yawned profusely as attorneys and litigants made their arguments. He rarely asked questions. And when both sides finished, he reached to his side and picked up an opinion that had been prepared in advance — apparently by judicial attorney JoAnne Barron, according to lawyers familiar with his system — and read it verbatim.
When asked about his pre-written decisions, Swartz claimed that neither side is ever surprised by an opinion and that oral arguments are just an aside. “By the time a judge is writing an opinion, he or she has already obtained most of the relevant facts,” he said. “I already have everything I need. Often, lawyers will even waive oral arguments.”
To an observer without legal training, this was jarring. Were the many hours (and thousands of dollars in attorney fees) spent preparing for hearings wasted on a sham whose outcome was predetermined?
“Actually, that’s how it’s usually done,” said one U-M legal scholar, who paused before adding, “in federal appeals courts. But not in local courts. It’s true that motions are written, and oral arguments are for lawyers to summarize. But the judge is supposed to listen and ask questions, then decide. If it’s obviously decided in advance, it comes off as discourteous and mean, especially to a litigant representing himself. It’s disheartening, because you feel like you are wasting your time. It shows he doesn’t care about what you say, that he’s not listening and involved, not acting like a public servant.”
When asked if his approach could lead to a perception that litigants are not being respected or listened to in the courtroom, Swartz scowled. “That’s just the way it’s done.”
“Fortunately,” said another attorney who has appeared before Swartz, “that is not the way it’s usually done in Washtenaw County, and the good judges don’t do that. I don’t know why he does that or why he allows JoAnne to have such apparent influence. I’ve only seen him go off script once, and reconsider what JoAnne had written.”
• • •
Attorneys often talk about “black robe syndrome,” the trap of self-importance that judges can fall into after months and years of having everyone act deferentially toward them.
“The judicial system is the closest thing to a fiefdom that we have in our society,” said one legal clinician. “We say it’s about justice, but it’s also about power. Not even the president can just throw you in jail without a reason. But a judge can. Most judges go into it well intentioned, but if you really want to be a judge, you’ve got to have an ego.”
“We all have biases,” said Tracy Van den Bergh. “The question is, how do we guard against biases affecting our decisions? There has to be a lot of self reflection, you have to check yourself against self importance, and grow and evolve in the right direction. Being a judge can change you for the better or the worse. But you’re kidding yourself if you don’t think it will change you.”
Have Swartz’s nearly 20 years on the bench changed him?
“No,” he said. “I’m the exact same person as I was when I started practicing law, before I became a judge.”
Then again, maybe we expect too much from our judges.
“What people miss is that they think a judge is a dispassionate observer who doesn’t let personal biases creep in, but that would be incredibly difficult if not impossible,” said David A. Santacroce, associate dean for experiential education and clinical professor of law at the U-M Law School. “The law isn’t black and white. A judge can make the law do what she wants it to do. They all have history and life experiences, and it affects the way they think. I think most judges work hard to be as dispassionate as possible. But you can’t get away from your life’s experiences.”
And so, with the election coming up, it’s worth asking: What do we want from our judges?
“I think we want judges with heart,” said Veronique Liem, who along with Patrick Conlin Jr. and Michael Woodyard is vying for Shelton’s seat. “The law is conservative, it favors the status quo. But the majority of people in court need more than that. They’re experiencing a life crisis and they need a fair and compassionate judge.”
“I think we need judges who understand that they are capable of making mistakes,” said Van den Bergh, who is running for Wheeler’s seat. “Judge (Darlene) O’Brien once gave me some good advice. She said, ‘If you make a mistake and realize it and are willing to admit it, you can change it, you can fix it.’”
Swartz, who has never had a contested race and will run as the unopposed incumbent again this year, contends that mistakes are not his to make: “No, I have never regretted a judgment. I haven’t ever made a judgment that was unfair or outside appropriate conduct for a judge. A good judge doesn’t project himself into the case. If you don’t do that you shouldn’t be in a position to regret your decisions.”
As for Nelson, he declined to be interviewed for this story, so there was no chance to ask him if he’d come back to “liberal” Ann Arbor. If so, he’d apparently be welcomed with open arms. Chief Judge Swartz, when asked if he’d hire Nelson again, said, “I would. I’m confident of his abilities, and with the integrity he brought to this court.”
• • •
Tom Clynes writes regularly for National Geographic and Popular Science, where he is a contributing editor, and is the author of the upcoming book, “The Boy Who Played With Fusion.” He is also the “lawyerless father” in the court hearing described at the beginning of this story.