There are six candidates running for two seats on the Michigan Supreme Court in the upcoming election. But two of those candidates are not eligible to be sworn in, if they win.
Thomas W. Howe and Jody White do appear on the statewide ballot. Under Michigan law, they meet all the requirements to run for the court. But getting on the ballot and taking office are two different things.
The decision to run
In Michigan, judicial candidates appear without party affiliation, but they are nominated by political parties. The U.S. Taxpayers Party of Michigan nominated White and Howe.
Donna Brandenburg is the party chair. She’s also the party’s candidate for governor.
“I was so impressed and I am impressed by their command of the law,” Brandenburg told Michigan Public.
As part of a series of interviews with all of the Michigan Supreme Court candidates, Michigan Public asked Howe and White why they were running.
“Why I'm running is because of the close network of bar members that have been running the judiciary for many decades,” White said.
"Because the state needs a different choice," Howe said. "The issue is that the bar members that are currently on the Michigan Supreme Court are not doing their job. They'll never do their job, and the public needs to take this court back.”
Both White and Howe have been involved in complex, contentious probate cases. They have complaints about the probate court system. White told us she’s also seen probate issues in her work as a real estate broker.
“These attorneys are working in probate court and are able to take what is your inheritance or your generational wealth,” White said.
Candidates, but not attorneys
Howe and White are not attorneys. They don’t think you should have to be a member of the bar to serve on the state Supreme Court.
But here’s the thing… the Michigan Constitution explicitly says you do. Michigan Public reached out to the Michigan Secretary of State’s office. The office sent us the official requirements to become a justice:
“To be eligible for the office of Supreme Court Justice, a person must be a registered and qualified elector of the State of Michigan by the filing deadline; licensed to practice law in Michigan; and at the time of election or appointment, be less than 70 years of age. In addition, the individual must have been admitted to the practice of law for at least five years.”
So if they can’t meet the requirements, why are they on the ballot at all? The Secretary of State’s office also pointed us to an official opinion from former state Attorney General Frank Kelley issued in 1997. That opinion says the deadline to meet the requirement to be a justice is the day they would take office.
Howe and White are aware of the requirement to be an attorney. U.S. Taxpayers Party of Michigan Chair Donna Brandenburg is too.
“I don't subscribe to the fact that they can't take office," Brandenburg said. "We're just going to continue forward on this because the system has to be challenged.”
White and Howe have tried to make the argument that being admitted to the State Bar of Michigan is a membership and not a state license.
What happens if they win?
For a look at what could happen if White and/or Howe won the race, Michigan Public turned to University of Detroit Mercy Law Professor Aman McLeod.
"Someone, presumably either the attorney general or the runner up would file a quo warranto suit, and then the court would decide whether or not Mr. Howe, for example, was qualified," he said.
McLeod also explained what would happen next.
"If the appeals court — which I expect that it would — finds that Mr. Howe is not eligible to hold office and the suit was filed before he took office, the next person, the next highest vote getter who was eligible, would get the seat," McLeod said.
"If Mr. Howe had somehow taken office by the time the decision was made, then there would be a vacancy, and whoever was governor at that point would then get to appoint somebody," he said.
Michigan Public asked to interview an expert from the Michigan Secretary of State’s office about the situation. The office declined. We also asked, in writing, what the office would do next if White or Howe were to win the election. The Secretary of State’s office did not respond.
As for the U.S. Taxpayers Party of Michigan, Brandenburg said the party would not be involved in any lawsuits, if Howe or White win the election.
“I don't know what they're going to do. You know, this is up to the individual," she said.
"It won't come through the party. We are a platform that gives ballot access.”
In this race, the two Democratic Party nominees — Megan Cavanagh and Noah Hood — are current Supreme Court Justices. The two Republican nominees — Casandra Morse-Bills and Michael Warren — are elected judges in lower Michigan Courts.
It’s rare for third-party candidates to win elections. But it’s possible that some Michiganders will select White and Howe as their two choices for the Supreme Court without realizing they aren’t eligible to serve.
