In Conversation with Chief Justice Bridget Mary McCormack
by Chief Justice Bridget Mary McCormack
September 27, 2020
This interview with Chief Justice Bridget Mary McCormack , Chief Justice of the Michigan Supreme Court, was conducted and condensed by franknews.
I am the chief justice of the Michigan Supreme Court. I was elected to the Court in 2012. And in 2019, I was selected by my colleagues to be the chief justice.
How is the CDC eviction ban being implemented throughout Michigan?
Michigan has 242 trial courts, including 103 district courts where eviction proceedings are heard. And different judges are interpreting and handling the CDC guidance differently.
One of the things my colleagues and I are going to be talking about over the next few days is whether there is a reason for the Supreme Court to issue any administrative order so that we have uniformity.
It concerns me that different people are having different outcomes in different parts of one state.
That doesn't mean that issuing an order that governs everybody is the right thing to do, but it is something that we have done throughout this pandemic. In fact, we've issued 19 emergency administrative orders to help the courts figure out how to do business in this new world, including one to address the eviction backlog when Michigan's eviction ban was lifted. So it might also make sense for us to figure out if there's a uniform way we should give trial courts instructions on what to do.
What has been the overlap of the CDC guideline and Michigan’s efforts?
The governor issued an executive order back at the end of March and it expired sometime in July. District courts started to process eviction cases then. The Michigan Supreme court issued an order for how to process that backlog and the process for addressing pandemic evictions that included a diversion program.
The Legislature has allocated a significant amount of funding for addressing that backlog — $60 million was allocated to our diversion program. That money goes towards direct payments to satisfy outstanding rent due as well as to fund additional legal aid lawyers across the state to help people connect with available resources.
We had a statewide process for both addressing the backlog and helping folks find their way to funding when the CDC guidance came out. So now, there is Cares Act funding on the table that the Legislature needs to have spent by the end of the calendar year, but the CDC guidance makes it really hard to figure out whether you can still help the tenant and the landlord access the funding or not.
What steps has the Court taken to ensure that tenants do have counsel?
I should say that normally they're not entitled to government-funded counsel.
Eviction cases are civil cases, and nobody is entitled to government-funded counsel in civil cases.
In criminal cases, if you can't afford a lawyer, you are entitled to counsel at the government's expense. That's not true in civil cases.
In this emergency diversion program, a chunk of the funding was directed to legal aid lawyers. The diversion program requires courts to connect a tenant who is facing eviction with a legal aid lawyer so they can figure out if they can access funding to satisfy the outstanding judgment. But, again, that is not a process that is required and it only happens in places where a judge has set up their own eviction diversion program, and they have a legal aid office that works with them on it. It's not something that happens in nonemergency COVID times.
Are there parts of this that you hope extends to the future?
Hopefully, it helps both tenants and landlords. Not every landlord is some big corporation. Some of them are people who are just renting one apartment to try to cover their own rent. What we are seeing is an economic crisis of people who can't afford rent because they've lost their jobs or been impacted by the COVID-19 crisis in ways that they can't pay their bills. If they get evicted, and there is no market for someone to fill that place, that is only going to extend the problem.
We also know it is disruptive to public health to have people without homes. We know that people are better off at home. A diversion program makes a lot of sense in figuring out how we solve this economic crisis and public health crisis. Whether it continues beyond is above my paygrade.
And why do you feel like it's so important that tenants do have access to legal aid?
So they can fully understand what they might be legally entitled to ask a court for, or more acutely in this case, so they can find their way to funding that might actually help them. What they need more than anything is money. The legal aid lawyers throughout the state know exactly how to get them help if they're entitled to it.
Frankly, if we had a little bit less regulation of the bar, we could have non-lawyer navigators helping people to get funding.
This is one of the areas where we should be thinking long term — if we're not going to be able to afford lawyers for every person facing eviction, are there other ways we can help them get the information they need?
When you have a health care issue, you don't see a specialist every single time. Sometimes the nurse practitioner can help you, sometimes a physician's assistant can help you. In law we have only one professional that is public-facing — a lawyer. It might be that this is the opportunity to think about how we can diversify the kinds of professionals who can help people with legal problems.
When you say, "if we can change the regulation to the bar," what does that mean exactly?
It just means that right now we only license lawyers and it doesn't have to be that way. There are a couple of states, Utah and Arizona, who have pilot projects where they are experimenting with licensing professionals to help people with legal problems who are not lawyers.
We're never going to get to a point where we have enough lawyers to assist everybody with every civil legal problem. Eight out of ten people in Michigan can't afford lawyers for their civil legal problems.
Maybe there are other ways we can make sure that they are connected to resources, understand their rights, and understand what's available to them, short of having a fully licensed lawyer to represent them.
Is there anything else that you think is important for people to know about their own rights in this situation?
In Michigan, I'd say to take advantage of our statewide diversion program and get connected with your local legal aid office. Make sure you access the funding that the Legislature has put aside for you. This is what it's there for. Let's make sure we take advantage of it.