Sunday, January 30, 2011

MUSICAL CHAIRS (Number 4)

In December,1982 the Supreme Court of Michigan was in a state of flux. The seats were being emptied and filled like a children’s party game. But without the music.

John Fitzgerald, son of Depression era Governor Frank Fitzgerald was appointed in 1974 and elected to a full eight year term that autumn.

A scholarly gentleman and a popular teacher, John was instrumental in the organization of the Thomas M. Cooley Law School and very much enjoyed the interchange with students.

So he decided not to run for reelection in 1982. In December, he was living out the last days of his term.

Mary Coleman, unexpectedly announced her retirement after serving only two years of an eight year term.

Despite the pleas of some around the table, she decided to resign effective December 27 so that outgoing Republican Governor Bill Milliken could appoint her replacement.

She did and he did, sending his Lieutenant Governor, one time President of Eastern Michigan University, James H. Brickley to the court.

Four days later, newly elected Justice Michael Cavanagh would be sworn in. And of course, there was Blair Moody’s replacement, Dorothy Comstock Riley.

The partisan count was back to three against three. And Levin.

For a veteran of the political wars like G. Mennen Williams, the world had turned upside down. Blair Moody had been elected in a landslide. His seat belonged to the Democrats. Dorothy Riley had been specifically rejected by the voters in the same election.

The people had just elected a Democratic Governor. To Soapy, that meant that the people wanted a Democrat to be making judicial appointments. Milliken was finished, living out the last days of his term. He had no mandate. He had no business making last minute appointments that would determine the course of the Supreme Court for years to come.

It wasn’t right. And Soapy knew right from wrong.

So would Frank Kelley.

Frank had been the state’s chief law enforcement officer for so long he was known as the Eternal General of Michigan.

A Democrat down to his socks, Kelley would surely agree that the Riley appointment didn’t pass the smell test.

Of course, he would have to admit that the warrant of appointment from Governor Milliken said Riley was to serve until January 1, 1985, after a successor to Justice Moody was elected in 1984.

That’s what the letter said. And that’s what the constitution said.
“…until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs…”

But words in a constitution are sometimes ambiguous. Sometimes they need explaining by smart lawyers and top notch law clerks.

In those days, the Supreme Court maintained a suite of offices in the Lafayette Building in downtown Detroit. Soapy had an office there. That’s where they put Dorothy Riley.

Around Christmas time, Dorothy told her husband that her clerk had found some interesting things in the waste basket next to the copy machine.

Draft copies of a brief arguing for her removal.

They were going to try to get her off of the court.

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