The Governance Question Nobody Is Asking Directly
Michigan’s court system operates under the constitutional concept of One Court of Justice, established by Article VI of the Michigan Constitution. The Michigan Supreme Court holds administrative authority over the entire system and delegates many operational responsibilities to the State Court Administrative Office. SCAO coordinates statewide court operations through administrative memoranda, operational standards and guidelines, trial court reference manuals, model Local Administrative Orders, and implementation toolkits.
None of these documents are secret. Most are publicly available. What is less visible is how much operational authority they can carry, and how a mechanism designed for coordination can function in practice as policymaking.
Across administrative law, scholars and federal courts have increasingly examined this phenomenon when it appears in regulatory agencies: when guidance documents shape real-world behavior, they can begin to resemble rulemaking in everything but name. The Supreme Court’s decision in U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016), emphasized that the practical consequences of agency action matter when evaluating whether it constitutes reviewable final action, even when the agency characterizes its decision as advisory. Michigan’s judicial administration structure raises a parallel question. When SCAO guidance shapes court operations statewide through a mechanism courts cannot easily decline, where does policymaking actually occur?
SCAO’s Administrative Instruments
SCAO distributes administrative direction through several formal and informal instruments. Administrative memoranda direct courts to adopt changes in case file management, implement privacy protections, adjust operational workflows, and adopt procedural standards. Trial court reference manuals provide detailed guidance on how administrative responsibilities should be carried out. Model Local Administrative Orders offer template language for courts drafting their own internal policies. Implementation toolkits translate statewide requirements into step-by-step operational procedures.
Unlike statutes or Michigan Court Rules, most of these materials are not issued through a public rulemaking process. They are produced within the administrative structure and distributed to courts through channels that do not include legislative committee review, public comment periods, or appellate oversight. Courts implement the guidance because SCAO oversees compliance with statewide administrative standards and because, for a complex statewide judiciary, administrative coordination serves genuine operational purposes. The efficiency rationale is real. The transparency cost is also real.
Regional court administrators and internal legal counsel within SCAO assist courts in drafting and reviewing Local Administrative Orders, identifying compliance issues, and advising how proposed policies align with existing administrative standards. These advisors do not issue judicial opinions and do not make law in the formal sense. But their interpretations can shape how guidance is applied in practice before it reaches any court that might review it.
Administrative law scholars describe this as informal legal authority: legal interpretation exercised within an administrative structure without the visibility of published judicial decisions. It is not unique to Michigan. It is, however, particularly significant in a court administration context where the advisory function and the approval function rest in the same institutional hands.
The LAO Approval Mechanism
The most operationally significant element of SCAO’s administrative authority is its role in the Local Administrative Order approval process. Local Administrative Orders are policies adopted by individual trial courts to govern internal procedures, including scheduling practices, probation supervision procedures, case assignment systems, specialty court operations, courtroom technology and filing procedures, and administrative workflows. Many LAOs cannot take effect until they are reviewed and, in many cases, approved by SCAO.
The approval process creates an operational policy pipeline that runs as follows.
The critical observation is what happens when this process runs across dozens of trial courts over time. A single court proposes a new administrative procedure. During review, SCAO suggests revisions to the language. The court resubmits and the revised order is approved. Later, a different court proposes a similar change. The same language or structural approach is suggested during review. A third court proposes something similar. Over time, multiple courts adopt nearly identical operational policies through separate Local Administrative Orders. No statute changed. No Michigan Court Rule was amended. No Supreme Court administrative order was issued. Yet a statewide operational practice can emerge, shaped by a revision and approval process that is not publicly documented and that courts cannot easily challenge without risking disapproval of their proposed policies.
When the Pipeline Serves Coordination and When It Raises Accountability Questions
The LAO approval mechanism is not inherently improper. Courts need consistent administrative standards to function effectively as a statewide system. A probation supervision procedure that works in Washtenaw County should be broadly consistent with what happens in Montcalm County, not because uniformity is an end in itself but because inconsistent administrative practices produce inconsistent outcomes for people moving through the system. SCAO’s coordination role serves that purpose.
The accountability concern is not that SCAO exercises administrative authority. It is that the mechanism through which that authority shapes court practice lacks the transparency conditions that would allow it to be examined, challenged, or corrected when it is misapplied. Legislatures may not track what LAO language has been standardized across courts. Attorneys practicing in multiple jurisdictions may see consistent policies without being able to identify their origin. Litigants affected by administrative practices have no mechanism to challenge the guidance that produced those practices because the guidance is advisory and the LAO is local. The origin of the effective policy is invisible to the people most affected by it.
When operational policy spreads through administrative guidance and LAO approval processes rather than through visible rulemaking, accountability becomes structurally diffuse. No single institution appears to have formally created the rule. The trial court adopted a Local Administrative Order. SCAO approved it. The Supreme Court issued no order. The legislature passed no statute. But the rule exists, and it shapes outcomes for defendants, families, and attorneys who have no visible target for a challenge to the policy itself.
This is the condition federal courts addressed in Hawkes Co.: that the practical consequences of agency action matter for accountability purposes regardless of how the agency characterizes the action’s legal status. Michigan’s judicial governance structure has not been systematically examined against that standard.
What Transparency Would Require
The SCAO guidance accountability gap is not resolved by asserting that the guidance is advisory. Advisory guidance that courts cannot decline without jeopardizing the approval of their operational policies is not advisory in any meaningful sense. The transparency question is whether the practical authority exercised through the LAO approval process is visible enough to be accountable.
Meaningful transparency in this system would require, at minimum, a public index of all approved LAOs across Michigan trial courts with sufficient detail to allow observers to identify when consistent language has been adopted across jurisdictions. It would require publication of the substantive comments and revision suggestions made by SCAO during the approval process, so that the source of standardized language is traceable. It would require a documented basis for significant departures from SCAO model language. And it would require a mechanism by which attorneys, litigants, and legislators can identify administrative guidance that has the practical effect of law and subject it to the kind of review that formal rulemaking receives.
None of those requirements would eliminate SCAO’s administrative coordination function. They would make the policy pipeline visible to the institutions and individuals whose daily practice it governs. That is the accountability condition the current structure does not satisfy, and it is the condition that the trial court funding reform proposal analyzed separately by Clutch Justice also fails to address if centralized funding authority is added to an administrative structure that already lacks adequate transparency at the guidance and approval level.
This analysis connects directly to Clutch Justice’s broader coverage of SCAO authority, the trial court funding reform proposal, and the MiFILE record architecture expansion. Each of those developments involves SCAO’s administrative reach expanding in ways that are operationally significant and institutionally opaque. Read together, they describe a consistent pattern: administrative authority accumulating through mechanisms that function below the threshold of public rulemaking and formal legal review.
Michigan trial court funding reform: who controls the courts when the money moves? → | MiFILE expansion and the architecture of the record → | Full SCAO coverage archive →
Michigan Constitution, Article VI — Read →
U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016) — Read →
SCAO Primary MaterialsMichigan State Court Administrative Office — Trial Court Administration Reference Guide — Read →
Michigan Courts — Model Local Administrative Orders — Read →
Michigan Courts Administrative Memoranda Archive — courts.michigan.gov →
Related Clutch Justice AnalysisMichigan Trial Court Funding Reform: Who Controls the Courts When the Money Moves? →
