Michigan's Supreme Court justices keep a close eye on the rest of the state's judges, making sure they're keeping busy. But who is watching the supremes?
One justice says he's working hard although it looks like he's been carried away with the concept of court recess.
When a public official who makes more than $164,000 only goes to the office once a week, it may look like he's cheating the taxpayers. But Supreme Court justices say looks can be deceiving, So M.L. Elrick is here to present the evidence, introduce the witnesses and let you, the viewer, judge the judge.
Brian Zahra is a justice on Michigan's Supreme Court. Unlike trial court judges, our Supreme Court justices only spend about one week each month in court. Unlike most judges in Michigan, Justice Zahra only goes to his office one day a week.
Elrick: "If you heard of a public employee, who never went to the office, spent most of his time at his house, or at his parents' house, what would you think of that?"
Zahra: "Are they doing their job? Is there any reason for you to believe that my opinions aren't timely, that I'm not prepared for court that I'm not doing every bit of the job that I'm supposed to be doing? Sometimes, several hours more than I probably would be doing if I was a state employee who had to sit at a desk."
Justice Zahra raises some great points. I've pondered these very questions for months as I've watched the justice take his kids to school, teach twice a week, spend two afternoons each week at his parents' house and walk his dog in the middle of the afternoon.
Zahra: "I work until 11:30, 12 o'clock at night some times. I read, I write, there's plenty of time I'm working."
"No one is saying Zahra isn't a good son - for what it's worth, I admire him for the afternoons he spends tending to his elderly father and ailing mother. And he sure seems to be a good father, even coaching his son's hockey team, as you can see in this YouTube video.
But his schedule is packed. He has so much going on that he sometimes needs his law clerk to teach his college class. Which brings us back to a key question:
"Is this a renaissance man, who can be an outstanding judge while doing these other things," said Charlie Geyh, Indiana School of Law. "Or is this a judge, is this someone who is putting judging second and letting his outside activities take the driver's seat?"
Charlie Geyh is an Indiana University Law School professor. I'm no expert on judicial ethics, but he is - and we have some of the same concerns.
Elrick: "We never see you go to the office, we see you teach, we see you go to Lansing once a week, we see you come here."
Zahra: "You can't see the internet. You can't see that I'm tied in to my office, all the time. So, you don't have to be at a particular place to read your briefs."
Elrick: "Well, I understand that, but ..."
Zahra: "As a matter of fact, it's all on a thumb drive. I've got it all on a thumb drive, right in my pocket."
"What you've got is a story that includes, you know, during business hours, running around with the kids, hanging out with the parents," said Geyh. "That is all suggestive of a more cavalier approach that is the source of my one concern: which is, you know, would the public really be confident that this judge is acting at all times in a manner that promotes the integrity of the judicial branch when they're using their day in ways that doesn't feel or seem like it's work-related. And those perceptions matter."
Geyh isn't the only one concerned about the public's perceptions. The Michigan Code of Judicial Conduct approved by the Michigan Supreme Court itself, says judges must expect to be the "subject of constant public scrutiny." The code says judges should avoid even the "appearance of impropriety." And judicial duties "take precedence over all other activities."
Elrick: "Are you concerned about how the public may view this?"
"Of course, of course, especially when you go out and say he doesn't show up to work," said Chief Justice Robert Young. "Of course I'm concerned about that. But I am telling you I don't think the perception is backed by a full appreciation for how broad a job it is, how much work we put in, that isn't visible that can be done anywhere."
Elrick: "We saw you at the economic club kind of make light of the question, 'what do judges do when they're not on the bench, none of your business.'"
"Did I say that," Young said.
All kidding aside, here are some of the things the justices say keep them supremely busy:
Administrative duties: the Supreme Court oversees all of Michigan's lower courts, which includes making sure lower court judges aren't slacking.
Reading: each justice reviews reports on the 3,000 cases seeking a hearing before the full court. Justices say that's a ton of work -- even though each has an assistant and four clerks to help.
Discussing cases: the justices meet once a week in Lansing, but they say they are in constant contact online and by phone.
Hearing cases: the court holds oral arguments one week of every month.
Writing: the justices take turns writing the majority opinion on the three or four dozen cases it decides each year.
"Look, I understand the perceptions," Young said. "But as the putative leader of the court, my only concern is whether the members of the court are doing their jobs. And I can tell you that Justice Zahra is doing his job. And he's doing it in an exceptional way."
"I work with Justice Zahra and I talk with him every day about work," said Justice Bridget Mary McCormack. "And he's getting his work done."
Still, justices play by a different set of rules. Most state employees are barred from taking a second job that interferes with their day job.
And while judges are encouraged to teach, Justice Zahra is the only Supreme Court justice who teaches during the day. Interestingly, while the Supreme Court has created metrics to gauge the workload of almost every other judge in Michigan, Young says there's no empirical yardstick that shows how the justices themselves measure up.
"They're hard to have metrics here," said Justice Young. "Somebody may have more opinions one year, and fewer the next, it has nothing to do with productivity."
Before I left Justice Zahra at the curb of his parent's home, I gave him my card. A week later, he invited me to meet him in Lansing.
"I don't think that what I do is an appearance of impropriety at all," said Zahra. "I think it is the appearance of propriety and that I have my priorities in the right place."
"I'm a responsible and dedicated teacher," Zahra said. "I'm a responsible and dedicated son, father and husband, I'm a dedicated and responsible justice of the Supreme Court. These are all jobs that are 24 hour jobs. And in the course of 24 hours I do what needs to be done in all of them.
"You seem to think that doing the job requires you to be at a desk from 9 to 5. That's an antiquated view. Technology makes jobs like this something you can do anytime, anywhere. And in fact it is a job you do anytime, anywhere and all the time. Because even when I'm out taking a walk, I'm thinking about some cases or I'm taking a break and I'm always trying to think about what's going on. It's not something you can turn on or turn off."
Elrick: "You seem to think and maybe the other justices think as well, that this is just FOX 2 saying that "This looks funny." I would suggest that most people in Michigan would say this looks funny.
"This is the court that talks about appearances, that talks about scrutiny that talks about propriety. This isn't M.L. Elrick. I didn't write any of this. I printed it. From your website."
Look, I'm just a working stiff who keeps odd hours, too. The difference between me and the Supreme Court justices is that taxpayers don't give me $164,000 a year.
The other difference is that he worries about appearances and Geyh says justices, should, too.
"My worry really is that there is kind of a disconnect between how the judiciary perceives itself sometimes and the way the public perceives the judiciary," he said.
Elrick: "Do you feel that any of your extracurricular activities interfere with your judicial activities?"
Zahra: "I don't."
Elrick: "No question?"
Zahra: "No question."
Like Justice Zahra, I have a side gig teaching a college course but my class meets at night, the reason for that is simple: my boss would never agree to let me take off during the work day. But Zahra tells me he would not teach at night. He says it would take too much time away from his family.