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

By Thomas E. Brennan

Terrible Tuesday

Her weekend had been ebullient. The challenge to her tenure on the Supreme Court was dismissed. Between congratulatory phone calls, including several from her husband, Wally, who was in New Orleans for the mid-year meeting of the American Bar Association, and preparations for the upcoming week of work in Lansing, Dorothy Comstock Riley fairly bubbled with enthusiasm and anticipation.

On Monday morning, her law clerk, Brian McKeen, loaded her things into the car. Two large briefcases full of papers, her overnight bag, and the leather case in which her carefully folded judicial robe was carried.

Despite the fact that she had been on the court for nearly a month, she had worn her robe only three times; at her own inauguration and those of Justices Brickley and Cavanagh.

She would stay at the Capital Park Hotel, a short walk to the Law Building.

And she would be ready. Always a good student, Dorothy approached her duties with scrupulous diligence. Her colleagues would soon see how valuable she could be.

Tuesday, Feb. 15 dawned a clear, crisp, cold Michigan winter day. The agenda called for the court to meet at 9:30 and be in conference all day, disposing of administrative chores.

And window matters.

That's what they called applications for leave to appeal and other miscellaneous motions. Window matters. It all started generations ago when the clerk of the court brought each justice his share of motions to read and decide. They were stacked on the window ledge. Hence the name.

The mood in the conference room was polite, but somber. Dorothy went out of her way to be cheerful and friendly. Nine-thirty came and went. Everybody in their chairs except Chuck Levin.

It was ever thus. Justice Charles Levin had no concept of time. He was always late. His opinions were invariably overdue. He was slow to decide, slower to act.

When the bailiff appeared at the door to announce that Mr. Justice Levin had just called from his car to report that he was a few miles west of Howell and that he would be there as soon as possible, there was a collective groan around the table.

Someone attempted to break the ice.

"Maybe we ought to oust him for habitual tardiness."

Nobody laughed.

As the day passed, the court worked its way through several dozen issues. Dorothy contributed to the discussion, stating her views succinctly and softly. As was the custom, lunch was brought in, and the work continued until late afternoon.

It was nearly four o'clock when Soapy gaveled adjournment.

In the hallway, Mike Cavanagh took Dorothy's arm and asked her to stop by his office for a few moments.

Inside, he began by expressing his personal regard and admiration for her as a person and as fellow judge on the Court of Appeals. He was sure that they would be able to work well together on the Supreme Court as well. He hoped she understood that his vote in the Quo Warranto proceedings was not reflective of any personal animosity. While she knew he was a lifelong Democrat, he hoped she appreciated that his vote was based on his reading of the law, that it was principled and not political.

Dorothy reassured him that they were friends, and that there was no hatchet to be buried.

They hugged. She left to go to dinner with her clerk.

Twenty minutes later Justice Cavanagh's phone rang. It was the chief summoning him to a meeting in his office. Now.

The Darkest Day

15 February, 16:30 hours.

Retired Navy Commander, and currently Supreme Court Justice James L. Ryan is teaching a class in evidence at the Thomas M. Cooley Law School in the converted Masonic Temple Building across from the State Capital.

In mid sentence, the door opens and class is interrupted by a messenger from the dean's office.

The note delivers an abrupt and ominous message.

Please call the Chief Justice at his office.

Ryan apologized to his students, gave them a quick assignment for next week's class, and headed out the door and down the elevator to the dean's office.

Within minutes he heard the familiar voice of Soapy Williams.

"I'm teaching a class. What's so important to interrupt my class?"

Soapy spoke in his usual slow, deliberate tone. "We have four votes to oust Dorothy. I thought I would do you the courtesy of letting you know before the news gets out."

"When are you going to do this?"

"Now. Right now."

"Without a hearing? Without even hearing from me?"

"No, indeed. That's why I asked you to call. We're here in my office."

Ryan could feel his face redden, his heart thumping, teeth grinding.

"I'll be right there," he growled and slammed the phone down.

Minutes later, he stepped out of the elevator on the third floor of the Law Building. As he started down the hall, he encountered Jim Brickley, just coming out of his office. They compared notes. Brickley had just received the same summons.

Soapy was behind his desk. Mike Cavanagh and Giles Kavanagh were sitting on the couch. Chuck Levin was standing near the window.

Ryan waded right in. He was more than angry. He was livid. The case of Kelley v Riley was over. The court had issued its order. Indeed, made the order immediately effective.

There was nothing pending in the court on which to vote, no lawsuit for them to decide.

He reminded the chief justice that the court's own rules require a petition for a rehearing to be filed by one of the litigants, and an opportunity for both sides to be heard before the court could revisit one of its decisions.

There simply is no such thing as the court re-voting on a case which has already been decided. It cannot be done. Not only would it violate the court's own rules, it clearly deprived Dorothy Riley of notice and an opportunity to be heard.

Didn't the justices realize that what they were doing violated the Constitution of the United States? Weren't they aware of the damage this would do to the prestige of the court?

Soapy said nothing. Only Chuck Levin spoke. He hadn't really intended to vote for Dorothy. He only meant to say that he wasn't persuaded either way.

Ryan asked if he would be given a chance to file a dissenting opinion.

Soapy nodded, "Yes, but not tonight. We are going ahead with the order."

The meeting lasted thirty, maybe forty minutes. Finally Brickley pulled Ryan aside."We're swimming upstream," he whispered. And so they were.

Soapy signed the order ousting Dorothy and called for Harold Hoag, the Clerk of the Court.

(Continued next week in Part VIII.)


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, Apr 15, 2011