22nd Circuit Judicial Race: Kuhnke, Fink

Attorneys Carol Kuhnke and Jim Fink, the top two vote-getters in the Aug. 7, 2012 primary, are now vying for a vacancy on the 22nd Circuit Court bench to be left by retiring judge Melinda Morris. The nonpartisan judicial elections on Nov. 6 are for six-year terms.

At a candidate forum held in Ann Arbor’s Bach Elementary School cafeteria earlier this month, sponsored by the Washtenaw County Bar Association and the Old West Side Association, Kuhnke and Fink fielded questions on fairly standard topics: judicial temperament, experience, role models and the like.

In addition, Kuhnke and Fink have both provided written responses to questions on the League of Women Voters vote411.org website. And they previously participated in a June 23 forum for the primary race covered by The Chronicle, which included a total of four candidates.

Campaign finance statements filed with the state show that the cumulative total amounts raised by Kuhnke and Fink for their campaigns are $82,018 and $93,465 respectively.

Of her $82,018 total, Kuhnke has raised $46,738 since the primary election, and had spent just $13,892 between the primary and the close of books on Oct. 21. That left her with $34,405 to spend in the final two weeks of the general election campaign. Of his $93,465, Fink has raised $37,635 since the primary, and has spent $20,967 during the same period. He has $21,417 left to spend in the final two weeks.

Kuhnke has been practicing law for 18 years, longer than Fink’s 14 years, and is campaigning with the slogan, “The most experienced.” Fink is inclined to add to the mix his previous 20 years of experience working in law enforcement, starting in 1977 as a Washtenaw County sheriff’s deputy and moving up the ranks to commander.

Fink argued implicitly that the quality of the endorsements he’s received – from local judges – is better than some Kuhnke has received, from judges in other counties in southeastern Michigan where she’s argued cases. One local judge, Tim Connors – who is seeking re-election to the 22nd Circuit Court in a separate race against Mike Woodyard – is listed on websites for both Fink and Kuhnke among their endorsements. Connors and Woodyard participated in the Oct. 16 forum with Fink and Kuhnke – their responses are included in a separate Chronicle report.

Fink challenged any perception that he felt entitled to the judgeship based on the service of his father and older brother as judges, by stating it’s not the case that he felt entitled. He described how he’d always planned to practice law, even though he took a “side trip” to work in law enforcement.

Kuhnke described her vocation to the law as stemming in part from her undergrad studies in philosophy, and the impact that the meaning of words can have on people’s lives. She was matter of fact in drawing out one contrast between herself and Fink: “I’m a woman.” She thinks that having a woman’s voice on the court is important, but stated that she did not think she deserved a vote just because she is a woman.

An issue related to women’s health was highlighted in a question fielded from the audience. Fink is endorsed by Right to Life of Michigan – so the question related to whether Fink had pledged to rule against young women who were requesting a “judicial bypass” for permission to have an abortion. Fink was emphatic in stating that in order to receive that organization’s endorsement, he’d made no such pledge and that he hadn’t been asked such a question.

Even though the judicial bypass question came last at the forum, this detailed report of candidate responses begins there.

Judicial Bypass

The issue of judicial bypass came up during an audience Q&A at the end of the formal forum, as part of a question asked by local attorney Tom Wieder.

Judicial Bypass: Statutory Background

In the state of Michigan, the judicial bypass is an option for minors who are not able to obtain parental permission to have an abortion. From Act 211 of 1990, it’s the provision in 722.903 Section 3(2):

722.903 Consent to abortion on minor; petition for waiver of parental consent. Section 3.
(1) Except as otherwise provided in this act, a person shall not perform an abortion on a minor without first obtaining the written consent of the minor and 1 of the parents or the legal guardian of the minor.
(2) If a parent or the legal guardian is not available or refuses to give his or her consent, or if the minor elects not to seek consent of a parent or the legal guardian, the minor may petition the probate court pursuant to section 4 for a waiver of the parental consent requirement of this section.

For the 22nd Circuit Court, the probate court’s responsibility for such waivers is handled by the family division of the trial court. It’s chief judge Donald Shelton who hears petitions for waivers of the parental consent requirement, with judge Tim Connors serving as alternate. The statute sets forth two criteria for granting a waiver as follows:

722.904 … granting waiver of parental consent; … Section 4
(3) The probate court shall grant a waiver of parental consent if it finds either of the following:
(a) The minor is sufficiently mature and well-enough informed to make the decision regarding abortion independently of her parents or legal guardian.
(b) The waiver would be in the best interests of the minor.

Judicial Bypass: Right to Life of Michigan

Jim Fink is listed on the Right to Life of Michigan’s website as an endorsee, though his campaign website does not include the endorsement. The criteria for endorsement set forth on the RLM website include the following:

Prolife – First and foremost, a candidate must be prolife with no exceptions other than life of the mother. A candidate must also complete a Candidate Questionnaire and agree to a Human Life Amendment to the U.S. Constitution, effectively establishing personhood from the moment of conception.

In a phone interview with The Chronicle following the Oct. 16 candidate forum, Fink confirmed that he had completed a questionnaire for Right to Life of Michigan, and described his answers to the RLM questions as including the kind of statements he’s made during the campaign – that he’d have to set aside his personal opinion in applying the law. Fink indicated that the material provided with the questionnaire made clear that for judicial candidates, they were not being asked to commit to ruling in a particular way on certain types of cases – because that would be an ethical violation.

In a separate phone interview, David Malone – director of Right to Life of Michigan – indicated to The Chronicle that the endorsement questionnaire sent to judicial candidates was different from the one sent to non-judicial candidates. He described how it’s made clear in the questionnaire materials that candidates are not being asked to say how they’ll rule in a particular case. Malone declined to provide The Chronicle with a copy of the questionnaire, explaining that it’s not made available to non-candidates. Fink deferred to the RLM’s preference that the questionnaire not be disseminated.

Judicial Bypass: Question for Candidates

The WCBA had prepared questions for the candidates covering standard topics like judicial temperament, experience and what led the candidates to consider a career in law. But during the second part of the forum, questions from the audience were entertained as well. The requirement that all questions be suitable for all four candidates led to some grumbling – based in part on the fact that not all four candidates were running against each other.

Local attorney Peter Davis, who indicated he had a question just for Woodyard, responded to moderator Steve Borgsdorf’s enforcement of the rule by saying, “So you want softball questions?” Borgsdorf responded with, “No, they can be fastballs, but everyone’s got to get a chance to bat.” The analogy was apt, as at the time of the forum, the Detroit Tigers baseball team was handing the New York Yankees a 2-1 defeat in the American League Championship Series.

The judicial bypass question from the audience came from local attorney Tom Wieder. The question was pointedly for Fink, but the other three candidates weighed in on the topic of judicial bypasses as well.

Wieder’s windup noted that one of the matters that can come before the circuit court is a so-called “judicial bypass case.” Those are cases where a minor wants to have an abortion and cannot obtain the consent of a parent or guardian, he explained. There have been about 125 of those cases in the last four years, Wieder said, which were decided on the circuit bench. “Mr. Fink, you’ve been endorsed by Right to Life of Michigan, a condition of which is that you agree to oppose abortion except in cases where the life of the mother is at stake. Given that pledge, aren’t you effectively saying to any young woman who came before you in a judicial bypass case, unless her life were endangered, you would not grant a bypass?”

Jim Fink: Fink responded by saying, “Mr. Wieder, I was not asked to pledge anything, or to say what I would do in any particular case.” Fink went on to say that it would, in fact, be unethical for him to do so. “I wasn’t asked the question, sir.” But the statute is pretty clear, Fink stated – a judge has to consider two factors and then make a decision. “I’m going to apply the law and I’m going to follow the law,” he said. Fink noted that he had a lot of pro-choice supporters who trusted him to do just that. Wieder came back to the Right to Life of Michigan endorsement and cited the text on that organization’s website, which explains how a candidate would have to indicate that they wouldn’t support abortion except to save the life of the mother. Fink responded with: “I can tell you I was not asked that question.”

Carol Kuhnke: She described it as a difficult decision for a young woman to make. For a young woman who has the courage to file that kind of petition – to ask a judge’s permission to have an abortion – she hoped she would have a compassionate and sensitive ear. She said she does not believe in abortion for herself but is adamantly pro-choice.

Introductions

The forum began with the opportunity for each candidate to make some opening remarks.

Carol Kuhnke: She observed that she recognized many of the people in the audience. She began her introduction by reviewing her educational background – she graduated from Milan High School in 1986, making her 44 years old. As an undergrad at the University of Michigan she studied philosophy and the history of art, majoring in both. She obtained her law degree from the Chicago-Kent College of Law. After finishing law school she practiced in Chicago for a couple of years. She missed Michigan tremendously, she said, and was fortunate enough to talk Peter Davis into hiring her as an associate. Shortly after that they became law partners, and they have practiced together for 16 years. So she’s been practicing law for almost 20 years, she said. She has spent all that time trying cases. She enjoys working hard and she enjoys that work.

Kuhnke is running for judge because she knows that her experience has trained her well to do that job. She knows that judges touch people’s lives, she said – not in the way that the legislature or the executive branch does, but rather one person at a time.

Most people never have to go to court or deal with the judge, she allowed. But when they do, you want the best person as judge – someone who will handle the case with compassion and with respect for the law. She noted that she had been endorsed by a lot of judges – judges in whose courtrooms she’s tried cases. She then listed off several of the judges who had endorsed her. She described judges who had endorsed her as coming from several counties across southeast Michigan where she has tried cases.

Jim Fink: Looking around the room, he said, there are very few people he didn’t know. He described himself as a native of Washtenaw County, born in Beyer Hospital in Ypsilanti. He graduated from Eastern Michigan University and the Detroit College of Law. He attended law school while he was a police officer working full-time. He attended classes sometimes during the day and sometimes in the evening, and was able to do that and still graduate summa cum laude, he said.

Fink has been practicing law in private practice for about 14 years, he said. But he’d spent 20 years doing police work before that. In his legal practice, he said, he is in virtually all the courts throughout Washtenaw County. And the judges he appears in front of, and the lawyers that he practices with, have all rated his candidacy highly, he said. Of the 10 local judges who have endorsed in this race – and who will be affected by the outcome of this election – nine have endorsed him, Fink said. The Washtenaw County Bar Association poll, whose respondents are attorneys who will be affected by the result of the election, rated him the highest among the candidates, he noted. Fink was also rated outstanding by the Women Lawyers Association of Michigan, he added. “I like to make things better,” he said. He does that in his practice and he would do that as a judge, he said. He loves the community and he loves the law, he said. And that’s why he’s running for judge, he concluded.

Judicial Temperament

Question: What does judicial temperament mean to you? If elected, what type of judicial temperament would you most like to convey?

Jim Fink: When he considers judicial temperament, he thinks about the way judges treat people and make people feel, and how they manage the cases that are before them in the courtroom.

What he would like to convey is a sense that the court cares what’s going on, that every one will have his or her day in court and will be heard and treated fairly – and that the outcome of the case will be based on the facts and the law, and not on any inappropriate external factors. Because it was mostly a room full of lawyers at the forum, he felt like he could characterize it as one of those things where you know it when you see it.

Fink felt like everyone in the room knew when they were in the presence of a judge who didn’t have a good judicial temperament. He thought he would be the kind of judge where people left the courtroom believing they received justice and were treated fairly and kindly, regardless of the outcome of the case.

Carol Kuhnke: She felt that judicial temperament has a lot to do with being patient enough to hear what somebody thinks they need to tell you. Sometimes the judge doesn’t need to hear everything that a litigant wants to be heard – but knowing that the judge is going to listen and pay attention and take stock of what’s being said is important. It’s important to lend the right gravitas to the matter that is before the court, she said. Everything that comes before the circuit court is something that is very serious to the person who is there. It might be a matter of who gets custody of the children during holidays, or whether someone goes to prison. Or there might be some disaster in your life that is affecting your ability to earn a living and to feed your children. So lending the right gravitas to the process that is before you is critical to a judicial temperament, she concluded.

Budgetary Challenges

Question: How do you perceive your role as circuit court judge in addressing budgetary challenges?

Carol Kuhnke: Most lawyers in the room, she ventured, would know that Washtenaw County is one of the few counties that was determined to have fewer judges than are actually needed in the circuit court. The Michigan Supreme Court undertook a study of courts around the state and determined that Washtenaw County needed another judge – as opposed to having too many judges, as was the case with some of the other counties in the state. The understanding among the judges on the Washtenaw County circuit court is that the five of them could handle the workload, and they decided not to burden the county and the state with that added expense of adding another judge. So she thinks that the next judge needs to be ready to handle that workload – knowing that according to the state supreme court, five judges are not enough.

The civil docket of the court reflects about half of the cases that are filed, Kuhnke said, but because civil cases are more motion-intensive, they take longer to resolve – so she feels that her experience with civil cases is important. She knows how to move cases long. With 20 years of experience as a trial attorney, she knows that there are ways to manage the docket a little bit better, to help cases resolve earlier – for example, through a more focused discovery program. It might be worth taking another look at a case after three months or six months instead of waiting for a year, she suggested.

Jim Fink: He observed that there are five judges on the circuit court and two probate judges. They are a team, he said, and they work together. And they work out the distribution of the docket. The budgetary concerns are negotiated with the county and judges work as a team in those negotiations as well. As a member of that team, he would work with the other judges, and he would work with the court administrative staff to make the budget the best budget the court can get.

The other part is to do the best you can with what you have, Fink said. He mentioned that furlough days for the staff have helped to save money, but on those furlough days, no work gets done, he noted. So even if the judge is in the office working, the staff is not processing paperwork. Making sure that the workflow for people who are doing the everyday work is the best that it can be will help things be more efficient, he said. It’s important to streamline work for employees so that they’re not duplicating efforts. He mentioned electronic filing as a way to make things more efficient – both for the consumer and for the court staff.

Experience with Types of Law

Question: The current docket for judge Melinda Morris consists of criminal and civil cases, and judge Timothy Connors’ current docket consists of civil and family law matters. The chief judge could reassign those dockets based on the experience and expertise of the judges who are elected. Could each candidate please speak to their experience in each of those types of law and how you feel your experience would help you as a judge on the bench.

Jim Fink: He stated that he has experience in virtually every kind of matter that will come before the circuit court. He’s done civil litigation, and he has a lot of experience with criminal law, both as a police officer and as an attorney. He practices in probate court and in the juvenile court, representing children who have been charged with offenses. He handles injunctive relief for municipalities, when they’re trying to abate a nuisance or defend against municipalities who are trying to stop a client of his from doing something.

Fink practices family law and has experience in pursuing and defending against personal protection orders. While some candidates have more experience than others, he allowed, his is a balanced practice. And his experience goes back further than his 14 years in private practice, and includes the time that he was working for the county as a police officer. He feels that that experience will prepare him to handle anything. He said that someone once told him it’s not so important that someone has done a particular thing, but that they have been successful in the things that they have done.

Carol Kuhnke: Most of her work has been in civil law, she said, but she’s also handled some divorces and some criminal matters. She has done everything that comes before the circuit court, she said. She characterized her civil experience as very solid as far as knowing how to manage that docket. Sometimes the civil cases linger, she said, and take up a lot more time and resources of the court than they need to. She said some cases have been resolved only after 10 years. Moving those cases along faster would be good for the civil docket – and that would also benefit the criminal docket, because it would free up judges’ time.

Kuhnke said she has a lot of experience with land use, pointing out her experience serving for 12 years on the zoning board of appeals for the city of Ann Arbor. She was appointed to that position initially by then-mayor Ingrid Sheldon and made chair of the zoning board of appeals by mayor John Hieftje. She’s also worked in the probate court with minors and people who are not competent, and has worked in the probate courts to work out what needs to be done in order to allow the case to move forward in the circuit court.

Experience with Trials

Question: What is your experience as a trial attorney? What’s your experience in civil versus criminal trials and bench versus jury trials?

Carol Kuhnke: She indicated no experience in criminal trials, but said she’d tried civil cases since she was licensed to practice law. The first trial she had was in 1994 in Chicago. She was given a file and sent to court, she had to try the case on her own. She was representing a young man, an eight-year-old boy, who was injured on city of Chicago property. The last trial she’d had was last month in Hillsdale, where she defended a nurse who’d been accused of malpractice.

Kuhnke has been trying cases all of her career – and all of them have been jury trials, she said. But some had a bench trial aspect to them. When you sue an entity that’s part of the state of Michigan, the case goes to the Court of Claims – the judge will decide the case against the state and the jury will decide the case against any individuals. So sometimes she has tried cases that have a bench trial and jury trial going on at the same time. She has tried cases all over southeast Michigan, she said.

Jim Fink: Like Kuhnke, most of his trial work has been civil as well, he said. Most of them have been bench trials. He’s also had criminal trials. He’s handled matters that have not gone to trial – involving injunctions or restraining orders or appeals from the district court. He suggested that he has had a unique view of trials, as the officer in charge or a witness in dozens, if not hundreds, of felony and misdemeanor trials. As a police officer, he has watched trials unfold in a different way than most lawyers observe a trial.

Vocation to the Field of Law

Question: Why are you a lawyer? Why did you choose this profession? As part of your answer, identify a mentor or a role model who ought to be credited with where you are today.

Jim Fink: He began by identifying a role model: “My dad.” His father, Bob Fink, had been a lawyer and a judge in Washtenaw County, and his brother Karl also had been a judge, he said. He then addressed an issue that he’d been hearing, which was: “Fink thinks he’s entitled to this because his father and older brother were judges.” That’s not the case, Fink stated. He’s earned the support he has. Nobody earned the ratings from the Washtenaw County Bar Association except for him. No one got the endorsements of the other judges in the county, except for him. But he said that his father and his older brother were great influences on him.

His brother was a lot older than he is, Fink said, and as a little kid he grew up loving the idea of being a lawyer. “I became a cop, because I wasn’t going to class.” You don’t get to be a lawyer without a law degree, he noted, and you don’t get to go to law school without an undergraduate degree and he wasn’t doing those things. So he took a little side trip, and when he matured a little bit he went back to school and pursued his original dream. He loved police work and enjoyed it, but practicing law was the thing that he planned to do as a kid.

Carol Kuhnke: Her parents are not lawyers, she began, adding that she did not interpret the question as a slam against Fink. She became a lawyer as a natural progression from her study of philosophy as an undergrad, she said. She noted that some people feel like you have to do something else if you major in philosophy – but she found philosophy to be such an intriguing discipline, and she loved studying problems and solving problems and understanding how words work, and interpreting the law.

It was a philosophy professor of hers, Louis Loeb, who told her that she ought to be a lawyer. “It’s his fault that I became a lawyer!” she quipped. As far as someone who’s inspired her, or who has been a mentor, she identified Michigan Supreme Court justice Alton Thomas Davis. [Davis has endorsed Kuhnke.] She knew him as a circuit court judge, and knew him when he was a judge on the court of appeals, and as a supreme court justice. She found him to be an incredible scholar of the law. He’s someone who knows and understands people. He’s someone who understands the power and the obligation of the court and its effect on people’s lives. She called him a wonderful human being and she hoped that she could be like him.

Argument for Yourself, Against Opponent

Question: What do you see in yourself – in quality or experience – that you would bring to the bench that’s either absent in your opponent or that you’d be better at than your opponent. What’s unique to you that you would bring?

Carol Kuhnke: She said her experience is much deeper than Fink’s. Not every case goes to trial, she said, but you have to work every case as if it’s going to trial. Another key difference that she identified: “I’m a woman.” There’s been one woman to sit on the circuit court bench, she noted, and that’s Melinda Morris. Morris is retiring, and out of the five circuit court judges, Kuhnke feels that there is room for a woman as one of them. She would not ask anyone to vote for her just because she’s a woman, she said. She feels like her experience and her character justify a vote for her.

The Women Lawyers Association had rated her outstanding for the job, Kuhnke noted. If it’s a draw between the two candidates – and she doesn’t think it is – she still feels like there is room to vote for a woman, so that there will be a woman’s voice represented on the court. As a trial attorney, she’s spent many hours and days on end in court or in depositions where she is the only woman in the room except for the court reporter. A lot of times she is mistaken for the court reporter, she said. She ventured that judge Morris herself has probably had the same kind of experience when she attends judicial conferences. A woman’s voice is important in all matters of society, she said.

Jim Fink: He stated that he’s not interested in doing a comparison to say why somebody should not vote for Carol Kuhnke. But he said there are some things that he felt had generated such broad support for him. People trust him to follow the law, he said, and to put personal feelings aside, and to leave politics out of the courtroom, to work hard and to do the job. For people who’ve been following the race at all, he said they know that his support comes from across the political spectrum. He cited his support from public defender Lloyd Powell and county prosecutor Brian Mackie. He noted that he’d also been rated outstanding by the Women Lawyers Association of Michigan. He was gratified that they’d done that because the easy, default position would have been to say that the man rates lower than the woman, he said.

Election Information

These candidates will be on the ballot for the Nov. 6 general election. To see a sample ballot for your precinct, visit the Secretary of State’s website. Additional information about local candidates and other voter information is available on the Washtenaw county clerk’s elections division website.

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