A JUDGE'S JOURNAL: Turbulent time at the Michigan Supreme Court, Part X

By Thomas E. Brennan

What goes around

Stick with me on this. It's confusing, but very interesting.

Under the constitution of 1908, Michigan had eight justices on its Supreme Court. With a solid Republican majority, John Dethmers became the first so-called permanent chief justice. He was chief for six years from 1956 to 1962.

In 1962, Thomas (the Mighty) Kavanagh wanted to become chief. The court was evenly divided. Dethmers stayed on as chief because there were not five votes to elect someone else.

Finally, to end the deadlock, Paul Adams, a Democrat, broke ranks to vote for Leland Carr, a Republican.

Kavanagh never forgave him, and in the November election supported the Republican, Mike O'Hara, against Adams. In return, O'Hara promised to support Kavanagh for chief.

O'Hara defeated Adams, and Kavanagh was elected chief justice in 1964.

I was elected in 1966, defeating Otis Smith, a Democrat. The court was still eight justices in 1967, evenly split between Republicans and Democrats. Gene Black wanted me to be the chief, but I declined. He then joined the Republicans to put Dethmers back in the center chair.

In November of 1968 O'Hara and Ted Souris were due to run for reelection. When Souris decided not to run, the constitution of 1963 required that the Court be reduced to seven.

That left O'Hara as the only incumbent on the ballot. He lost to Thomas Giles Kavanagh. Thomas the Good was reelected in 1976 and was alone on the ballot again in 1984.

His opponent was Dorothy Comstock Riley.

Dorothy had good support among members of the Bar, women's organizations, and of course the Republican Party which nominated her.

The only issue she campaigned on was her qualifications. She had experience, both as a trial judge and on the Court of Appeals.

Still, almost every news conference in cities across the state would eventually turn to the case of Kelley v Riley.

Was she running to seek revenge for being ousted?

What did she think about the Court's action in that case?

How did she feel about it?

Did she think she could work with Soapy Williams?

Dorothy gave short, evasive answers. She never took the bait. She was determined to travel the high road, conscious that if she won, she would be working every day with men who had rejected her the year before.

Still, there was no way to prevent it. Riley v Kavanagh became a reprise of Kelley v Riley, a referendum on the Court's ouster of Dorothy Riley.

The response of the people was resounding.

Dorothy Comstock Riley was returned to the Supreme Court.

Thomas the Good was ousted by the voters.

The Michigan constitution of 1963 provides that no person can run for judicial office after their 70th birthday.

Born in 1911, G. Mennen Williams was ineligible to run for re-election in 1986.

In January, 1987, the Court elected his successor as leader of the court. The vote was unanimous. Three Democrats, three Republicans and Charles Leonard Levin elected the second lady to serve as the chief justice of Michigan.

Dorothy Comstock Riley.

What goes around, comes around. That's what they say in politics.

The echo of mischief

The evil that men do lives after them; the good is oft interred with their bones.

So said Mark Antony in Shakespeare's "Julius Caesar." So it might also be said of Soapy Williams.

Twenty-eight years after Kelley v Riley, another attorney general, this time a Republican, Bill Schuette, has filed a Quo Warranto proceeding seeking to remove a Michigan Judge.

Kelley sought to remove a woman from a male court. Schuette wants to oust a black judge from a white court.

Here's the scenario: Hugh Clarke was appointed by outgoing Democratic Governor Jennifer Granholm in the waning days of 2010 to fill a vacancy in the Lansing District Court caused by the resignation of Amy Krause, who was appointed to the Court of Appeals.

Krause had just been re-elected in November of 2010 to a term to begin on January 1, 2011.

Clarke's appointment specified that he is to serve until a successor to Krause is elected. That will be in November of 2012.

Brother Schuette, waving the Kelley v Riley flag says, "No." He wants the new Republican Governor, Rick Snyder, to appoint a judge for Lansing.

His lawsuit claims that on January 1, 2011, when Judge Krause's new term of office was to begin, a new vacancy was created. He insists that Judge Clarke ceased to be a judge on that day.

And so, I suppose, the attorney general will argue that he is not asking the court to remove a judge. Not really. He'll say he is not really asking the court to do what the constitution forbids. No matter how it looks to everybody.

The problem with that theory is this: if Clarke is not a judge, why do you want him ousted? What is it you want him ousted from?

If Hugh Clarke were truly a stranger to the office of District Judge, a pretender, a squatter, if you will, there would be no need to seek a court order ousting him. The court administrator would tell him to get out. The state treasurer would take him off the payroll. The lawyers would refuse to appear. The plaintiffs and defendants would go elsewhere or stay home.

If there were, in fact, a new vacancy created on January 1, it would have been filled by the governor. The new judge would have been put on the payroll. He or she would have donned the robe and started hearing cases.

But the attorney general knows there is no vacancy. His brief describes Hugh Clarke as a "sitting judge."

His lawsuit is the common law writ of Quo Warranto, a Latin phrase which means, "By what authority?" The writ is used to inquire into the legal basis for exercising official power.

By definition, Quo Warranto is only used when the respondent is a de facto office holder. You don't ask someone, "By what authority are you functioning as a judge?" unless the person is actually functioning as a judge.

Frank Kelley referred to the ousting of Dorothy Riley as a "judicially created vacancy." And that's exactly what Bill Schuette is trying to do. He wants the court to remove a judge. To create a vacancy. To do exactly what the constitution of Michigan says the court cannot do.

The Michigan constitution provides three ways to remove a judge. He can be impeached. He can be removed for misconduct at the recommendation of the Judicial Tenure Commission, or he can be removed for any other reason by the governor with consent of two-thirds of both houses of the legislature.

The Supreme Court can't do it. The Supreme Court should not have done it in 1983.

The Riley case should be assigned to the archives like Dred Scott and Plessy v Ferguson. And Soapy's mischief should likewise be undone.

(Continued next week in Part XI.)


Thomas E. Brennan is a former trial and appellate judge, and youngest chief justice of the Supreme Court in Michigan history. He is the founder of the Thomas M. Cooley Law School, the largest accredited college of law in the United States, formerly serving as its dean and president before retiring.

Published: Fri, May 6, 2011


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