LANSING, Mich. (Michigan News Source) – There doesn’t appear to be much diversity in the Commission on Diversity, Equity and Inclusion in the Michigan Judiciary. At least not when it comes to gender.

In January 2021, the Michigan Supreme Court and the State Court Administrative Office created a Diversity, Equity and Inclusive Committee with the initial goal of exploring issues related to the demographics of the workforce that support the judiciary and training within the judicial branches. The committee’s work grew to include exploration of other topics that impact Michigan communities. On October 1, 2021, the Committee presented a report to the state’s Supreme Court that included a recommendation that the court create an ongoing interdisciplinary commission to continue and build on the work that had been done to date.

On January 5, 2022, the Michigan Supreme Court (MSC) issued an order that created the Commission on Diversity, Equity and Inclusion in the Michigan Judiciary (DEI Commission). Included in the order was the purpose of the commission which included developing policies and standards to promote diversity, equity, and inclusion; assisting the judicial branch with elimination of disparities within the justice system; increasing participation of members from under-represented communities in
judicial branch leadership; assisting local courts with implementation of diversity, equity, and inclusion plans and processes; and collaborating with other judicial branch commissions, governmental entities, and private partners to propose and implement policies aimed at achieving a more diverse, equitable, and inclusive justice system.

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The commission’s duty is listed as assessing the demographic and other disparities within the judicial branch and the justice system and develop, coordinate, and implement initiatives to achieve their described goals.

In June of 2022, the MSC issued an order that appointed 24 members to DEI Commission and two co-chairs. Those members are listed as to be from courts, professional associations, advocacy groups, law schools, affinity and/or special purpose bar associations and community members who have contact with the justice system. The Executive Team is listed as containing members provided collaboratively by the State Court Administrative Office and other Supreme Court staff, the State Bar of Michigan, and the Michigan State Bar Foundation. Two co-chairs were also appointed: Supreme Court Justice Elizabeth M. Welch who was a Democratic Party nominee and Michigan Court of Appeals Judge Cynthia Stephens (retired) who was appointed by former Democratic Michigan Governor Jennifer Granholm.

The rest of the members were to include people who were in positions such as being within the Michigan State Planning Body, the Prosecuting Attorneys Association of Michigan and the Association of Black Judges of Michigan. One of members of the commission, Robyn Afrik, with the Michigan Association of Counties, was previously the DEI director in Ottawa County before the board was taken over by a group of conservatives that were affiliated with the organization “Ottawa Impact.” After winning their elections, the group dismantled the DEI department and approved a three-month severance package for Afrik in preparation of her firing.

With the exception of the commission members who will serve by virtue of their status, rules in the order creating the DEI commission said that the Supreme Court was to appoint all members of the commission. The Michigan Supreme Court includes four female justices and three male justices with the Democrats controlling the majority on the court with four Democrats vs. three Republicans.

In addition to Welch and Stephens, who are both female, the rest of the commission includes 19 female members and only five males. Those males are: Chief Judge Kenneth Akini, Michigan Tribal State Federal Judicial Forum; J. Dee Brooks, Prosecuting Attorneys Association of Michigan; Peter Cunningham (executive team member), State Bar of Michigan Executive Director; Judge Austin Garrett, Association of Black Judges of Michigan and Josh Hilgart, Michigan State Planning Body.

The result of the appointments is that the DEI Commission, which investigates and makes recommendations on diversity within the state’s judicial system, doesn’t appear to be diverse at all when gender comes into play even though the commission was charged with “the elimination of demographic and other disparities within the Michigan judiciary and justice system.”

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Now that the commission has been set, they issued a press release at the end of November announcing the draft release of a strategic report titled “Commission on Diversity, Equity and Inclusion in the Michigan Judiciary.” This strategic plan will be used to guide the work of the DEI Commission as they go forward. The co-chairs say in the introduction of the plan, “As co-chairs of the Commission, we are proud to present a strategic plan which will guide the Commission’s work. This plan, developed after much discussion, public input, and research, describes the process that justice system stakeholders should embrace to achieve the goals set forth in Michigan Supreme Court Administrative Order 2022-1.”

With the release of the 26-page plan, the commission is seeking feedback by Friday, December 22nd via a written survey here. The public may also provide feedback during the commission’s virtual public meeting (registration required) on Friday, December 15, 2023, from 1:00 p.m. to 3:00 p.m.

The DEI Commission’s strategic plan highlights five key strategic objectives and details 17 recommendations to achieve them: Community – Those served by the justice system are heard valued and respected; Talent – A judicial workforce that reflects the communities served; Value & Connection – Judicial employees experience high morale, high retention rates, and opportunities for growth; Judicial Vitality – Pathways to judgeship and judge leadership are more inclusive, varied, and transparent; Alignment – Equity initiatives are coordinated and supported within judicial systems across Michigan.

In their letter introducing the strategic plan, the co-chairs ask the public “to support their local courts as they develop implementation plans, and to join us in working together toward building a judiciary that reflects Michigan’s diversity and is trusted by all.”

There have been many past efforts to get the courts to be more diverse and inclusive including in 2021, with a national call to action to prioritize fairness in the courts that was made by both the Conference of Chief Justices and the Conference of State Court Administrators. Included in their recommendations, as well as suggestions from other entities who have called on the justice system to take direct action to better reflect and serve its communities, are goals to eliminate gender, racial, and ethnic discrimination in the Michigan judicial system.

The disparity of having so many females on the state’s judicial DEI commission seems odd when they are tasked to be diverse and one of their goals is to remove gender discrimination.

The gender representation on the commission doesn’t appear to accurately represent the number of women in the judicial system. National statistics which report that women are still underrepresented in the judicial system. A article from last year in Investopedia reports that the jobs that make up the United States judicial system – lawyers, clerks, paralegals, judges, and other judicial workers – have historically been largely held by men and that the field is still dominated by men. They report that women lawyers make up approximately 37.4% of the lawyers in the United States and that in the 94 district courts across the country, women only make up about 1/3 of the total number of district judges – with about the same number in the 13 circuit courts as well. In the Supreme Court, three of the justices are women and six are men – which again, is 1/3. Using these similar statistics, one would assume that a DEI Commission purporting to represent a specific community would also follow these statistical numbers when choosing their commission members – but that was not the case. Although the Merriam-Webster dictionary defines “diverse” as not being of the same kind, it appears that many groups, including the Michigan Supreme Court, looks at the word as meaning bringing into the fold more of something that wasn’t there in the past.

It’s not as if the court is oblivious to gender issues, however. In fact, in a September order, the Michigan Supreme Court said that effective January 1, 2024, a rule had been adopted that doesn’t allow the misgendering of parties and attorneys in Michigan courts. The rule requires Michigan judges to “use the individual’s name, the designated salutation or personal pronouns, or other respectful means that is not inconsistent with the individual’s designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing.” The statewide rule was approved 5-2.

Can the Michigan Supreme Court’s DEI Commission make fair decisions on diversity, equity and inclusion if their own commission does not meet their stated criteria for DEI success? Or can their opinions and policies be based on subjective interpretation? Judge David F. Viviano seems to think so.

In the order that appointed the DEI Commission, Judge David F. Viviano gave a dissenting opinion on it saying, “I continue to object to the creation of the Commission on Diversity, Equity, and Inclusion for the reasons I previously stated. While I have no objection to the individuals appointed to the Commission (indeed, they all appear to be well-intentioned and I appreciate their willingness to serve), it is difficult to assess the merits of their applications because, as I noted before, this Court has not defined the key terms ‘diversity,’ ‘equity,’ and “inclusion.’ Without such definitions to establish the Commission’s purview, I do not know how to determine whether the applicants are qualified for the task before them.”

Judge Viviano goes on to say, “The applicants, in their written submissions, have put forward starkly different views of the Commission’s role and purposes. Some have emphasized the need to remove obstacles to full participation in our courts, to create equal opportunity for all, and to cultivate a broad-based diversity of views and experiences. Others, by contrast, have suggested that inveterate prejudice runs through society and that reeducation is necessary to extirpate hidden but omnipresent biases. The first vision represents the promise of our ideals and founding documents, while the second, I fear, will only foster division and perpetuate the very problems it purports to solve. Until we have more clarity regarding the aims of the Commission, I cannot support it. Accordingly, I dissent.”