A Michigan Prosecutor on the Importance of State Judicial Elections

As a nation, we’re talking about courts a lot these days, and understandably so. Each June, we’re subjected to a deluge of blockbuster decisions from the U.S. Supreme Court.

The breadth of these decisions is dizzying in scope. Two years ago, the Court overruled Roe v. Wade. This year, it eliminated the Chevron doctrine — a cornerstone of federal administrative law that gave agencies deference in interpreting ambiguous statutes. And the list goes on. In just the past two years, the Court has issued major decisions relating to firearms, presidential immunity, environmental protection, government corruption, and much more.

But for all the attention paid to our federal courts, the crucial role of state court judges remains overlooked. As the Prosecuting Attorney for Washtenaw County, Michigan, I have a deep understanding of the importance of state courts — and who sits on them. I also know that it’s not just the state supreme court justices who matter. In the past two years, we’ve seen lower court judges play a meaningful role in upholding the rights of people in Michigan.

Nowhere has the importance of trial court judges been clearer than in reproductive rights. After the U.S. Supreme Court declared in Dobbs v. Jackson Women’s Health Organization that the federal Constitution no longer guarantees the right to abortion, healthcare workers and patients faced a slew of legal uncertainties about the precise boundaries of reproductive rights in their states. Some worried they could face criminal charges for providing or receiving abortion care.

Michigan was hardly immune from the confusion wrought by Dobbs. But, thanks to rulings by state trial court judges, Michiganders didn’t face the same level of uncertainty around their healthcare as residents of other states.

Like many states, Michigan maintained an archaic law criminalizing abortion. That law threatened to spring back into effect once Roe was overruled, meaning that medical providers (and potentially patients) could be criminally prosecuted for abortion. Recognizing that threat, Planned Parenthood and Gov. Gretchen Whitmer filed separate lawsuits in April 2022 urging Michigan courts to rule that the Michigan Constitution protected abortion rights.

In May — before Dobbs was issued — Judge Elizabeth Gleicher issued a ruling in Planned Parenthood’s case, siding with Planned Parenthood and prohibiting enforcement of Michigan’s 1931 abortion law. But in August, a state appellate court held that the ruling applied only to the state attorney general, not to county prosecutors. That meant county prosecutors were free to begin prosecuting medical providers for abortion services.

That left Whitmer’s lawsuit. She had named as defendants every elected prosecutor who had an abortion clinic in their jurisdiction — including me — because enforcement of the abortion ban would fall to us. Seven of us identified as pro-choice and realigned as friendly defendants, litigating the case alongside Whitmer’s team. Judge Jacob Cunningham conducted a full, live hearing on the constitutionality of Michigan’s antiquated abortion law. And at the end of the hearing, after listening to testimony from witnesses on both sides, he issued an injunction preventing county prosecutors from prosecuting abortion cases and ruling that the Michigan Constitution likely protects reproductive rights.

Had those two trial judges not issued their respective injunctions, healthcare providers in Michigan would likely have been forced to cease offering abortion services altogether. Instead, abortion services in Michigan continued largely uninterrupted post-Dobbs. And in November 2022, Michigan voters overwhelmingly voted to amend the Michigan Constitution to expressly protect abortion rights.

Protecting abortion is not the only way that Michigan courts have broadened rights beyond federal constitutional guarantees. Relying on the state constitution, courts in Michigan have also steadily expanded the sentencing protections afforded to young people convicted of crimes. Currently, the federal Constitution, as interpreted by the U.S. Supreme Court in Miller v. Alabama, offers limited protection from extreme sentencing to children. Under Miller, defendants under the age of 18 can be sentenced to life in prison without the possibility of parole only if a judge first finds that they are “permanently incorrigible.” The U.S. Constitution provides no protections at all against excessive prison terms for people 18 and over.

But the Michigan Supreme Court has held that the state constitution requires courts to make a finding of “permanent incorrigibility” for 18 year olds — in addition to those under 18 — before those defendants are sentenced to life without parole. And it may be poised to go further: there are currently four cases pending before the high court asking it to broaden sentencing protections for youth, including one requesting the Miller protections be extended to 20 year olds.

From my own experience as a prosecutor, I’ve realized that neither prosecutors nor judges know who a young person will be in 20, 30, or 50 years. Rehabilitation is possible, particularly for the very young. In fact, my office employed a former juvenile lifer — a man named Edward Sanders, who at 17 was sentenced to life in prison. He was re-sentenced after the Supreme Court’s decision in Miller and became a valued member of our Washtenaw County Conviction Integrity & Expungement Unit.

The litigants in the cases currently pending before the state high court point to evolving medical and scientific research, which shows that the brains of juveniles and youth in their early 20s differ from older adults’ in constitutionally significant ways. Children and young adults lack maturity and have an underdeveloped sense of responsibility, which makes them more likely to engage in reckless behavior and more amenable to rehabilitation. Some state courts have already relied on this science to extend protections against life-with-out-parole sentences to young adults up to 20 years old.

Should Michigan’s high court follow suit, it will be up to state trial courts to apply those expanded protections to the young people before them.

But as state courts giveth, they can also take away. Michigan’s experience during the Covid-19 pandemic illustrates that dynamic. In 2020, Whitmer exercised her authority under the Emergency Powers of the Governor Act to institute health-and-safety measures pertaining to the pandemic. The Michigan Supreme Court invalidated that law, ruling that under the state constitution the legislature cannot delegate such significant authority to the executive branch of government.

Taken to the extreme, this so-called non-delegation doctrine could undermine the efficiency of state agencies. It is a baseline feature of governance that the legislature passes laws and the executive branch carries them out. But if state courts start second-guessing how much authority the legislature can grant to the executive (and its agencies), it could significantly hamstring executive agencies’ ability to function. Again, many of these crucial decisions as to how state agencies function will be decided by state trial judges.

State agencies have become all the more important since the U.S. Supreme Court overruled Chevron v. Natural Resources Defense Council this past June. That landmark case established so-called Chevron deference — directing judges to defer to executive agencies’ reasonable interpretations of ambiguous laws passed by Congress. The Court’s decision to overrule Chevron will have a significant impact on federal agencies across government, and on policy issues from environmental protection to workers’ rights to access to healthcare.

But the Supreme Court’s decision overruling Chevron affects only federal agencies. State agencies also enforce environmental laws, workplace safety laws, wage and hour laws, and so much more.

How will those state agencies function in a post-Chevron world? Again, it depends on how state courts interpret their own law. Courts in multiple states have already held that something like Chevron deference applies in those states. In those states, executive agencies will be able to operate with something resembling the flexibility that federal agencies enjoyed during the Chevron era. But as Michigan’s experience during Covid-19 demonstrates, state courts can also diminish agencies’ flexibility by embracing theories such as the non-delegation doctrine.

Concerned about all of this? Well, here’s the good news: Unlike at the federal level — where judges are appointed by the president for lifetime positions — state court judges in many states are directly elected by the people. That means we get to choose the people who are making these hugely consequential decisions.

The bad news is that state judicial races are frequently overlooked. Sometimes (as in Michigan) they’re on the non-partisan section of the ballot. Voters who vote the “straight party” ticket often simply skip past these races. And because the races are typically listed on the back of the ballot, others forget to bubble them in. That dynamic is particularly pronounced for judicial races other than the state supreme court.

But state courts at all levels make crucial decisions that affect people’s lives. Sometimes, the stakes are statewide — like the litigation over abortion rights in Michigan. Yet even in cases that don’t make headlines, state judges are critical. Day in and day out, they make decisions about criminal sentences, child custody matters, and disputes between landlord and tenants.

These cases, in many circumstances, implicate the most important aspects of a litigant’s life. They implicate people’s freedom. Their family. Their home. It matters greatly who we have making these decisions, at every level of the state judiciary.

So read up on your local judicial candidates. Figure out what they stand for. If you like someone, donate money and volunteer for their campaign. The judges in these oft-overlooked races may end up deciding issues of critical importance in the aftermath of U.S. Supreme Court decisions. And they will assuredly decide issues of pronounced importance to the people and the communities they serve.

Eli Savit is the Prosecuting Attorney for Washtenaw County, Michigan.

Suggested Citation: Eli Savit, A Michigan Prosecutor on the Importance of State Judicial Elections, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 2, 2024), https://statecourtreport.org/our-work/analysis-opinion/whats-stake-michigan-judicial-races-prosecutor-weighs.