The Capital press corps were all there, crowded into the lobby outside the courtroom on the third floor of the Law Building.
Even the TV crews.
There would be no cameras allowed in the courtroom, but they were hoping to catch the lawyers on the way in or out. Get a sound bite. Get something.
It was a Saturday morning. Nobody remembered the Supreme Court conducting a hearing on a Saturday. Ever.
But this was different. The Attorney General was trying to oust one of the justices of the court. The Democrat Attorney General. A justice appointed by a Republican Governor. It was political. It was juicy. And besides, it was Saturday, and nothing else was going on.
It had been only five days since the AG had filed his lawsuit in the Court of Appeals. When he did, he asked that the matter be immediately transferred to the Supreme Court.
Whether to by pass the lower court; that was the only issue.
Louis J. Caruso, the State Solicitor General argued on behalf of Frank Kelley.
An experienced and knowledgeable appellate advocate, Caruso made a solid legal argument, showing how the case met all the requirements for granting by pass specified in the Court Rules.
His main thrust was simple. This case will come to this court for final decision anyway. Let’s not drag it out. It’s not in the public interest.
Dorothy’s lawyer, Fred Buesser, on the other hand, was a fish out of water.
A prominent divorce lawyer, Buesser appeared as counsel in every celebrated marital break up in southeastern Michigan. But those things rarely got to the Supreme Court. Fred’s forte was negotiation, not advocacy.
He stumbled, he hemmed and hawed. He rambled. And he really stepped in the goo-goo when he suggested that the court itself was responsible for creating an atmosphere of public crisis, which, he insisted was entirely artificial and unnecessary.
No doubt Buesser’s approach reflected what Dorothy and Wally Riley had expected would be the case; that her colleagues on the court would be inclined to defend her, to give her the benefit of the doubt.
Mike Cavanagh had been her colleague on the Court of Appeals. Giles Kavanagh and Chuck Levin were also alumni of that court, where there was a great sense of fellowship and fraternity. In its nearly twenty year history, no incumbent Court of Appeals judge had ever been defeated.
Party labels were unimportant there. They were all elected as non partisans, and tended to think and act that way.
But if Dorothy herself was naïve, her lawyer didn’t have a clue.
He belabored the fact that Dorothy was a member of the court under color of law, such that her participation in the work of the court, though obviously not in her own case, could not be challenged by any of the litigants.
Good law, of course, with plenty of precedents to back it up.
Finally, he unloaded his best argument. Get a decision in the lower court so that if there is a tie vote in the Supreme Court, the lower court decision will stand.
Returning to the podium for rebuttal, Caruso was asked about the possibility of a tie vote.
His answer foreshadowed the disaster that awaited the people of Michigan.
“I don’t know. I just simply hope that it doesn’t happen. But it’s a problem this Court is going to have to deal with. I have no solution.”
Sunday, February 27, 2011
Friday, February 4, 2011
A NEW CHIEF (Number 7)
Excluding family, Jim Ryan is my oldest and dearest friend on the planet.
He is now a retired United States Court of Appeals Judge. Very distinguished.
As a college boy in the 1950’s, he used to come to our house on Sunday nights to sustain himself on Polly’s meat loaf and while away the hours afterward discussing life, love, marriage and the law.
When he came home from the navy, he joined our boot strap law firm. After I went on the Common Pleas Court Bench, he was elected Justice of the Peace.
I became a Circuit Judge. He became a Circuit Judge.
I went on the Supreme Court. He went on the Supreme Court.
I started a law school. He joined the Board of Directors and started teaching.
It has been my privilege to introduce and eulogize him on a number of occasions, and he has often returned the favor.
So I suppose it was only natural that in January of 1983, he agreed to be a candidate for Chief Justice.
The court met in the old Lafayette Building in downtown Detroit. It was only days after Dorothy Riley had been excluded from discussion about her status.
Ryan’s effort was hardly an example of political skill. Jim Brickley, an old friend and fellow Republican, would make the nomination. Dorothy Riley would add her support.
A fourth vote would have to come from somewhere.
Chuck Levin? The nominal independent who had supported Mary Coleman and John Fitzgerald in 1982? Was he really opposed to Soapy?
Giles Kavanagh? Though they were fellow Democrats, there was no love lost between him and Soapy. And he had also been party to the uprising that put Mary in the center chair.
Whatever scenario Ryan had hoped to see unfold on that January morning in the old Lafayette Building, he was quickly disabused of it when the issue was raised about Dorothy’s competence to participate in the election of the Chief Justice.
Once again, and with sugar coated condescension, it was suggested that it might not “look good” if Justice Riley participated in view of the Attorney General’s lawsuit.
When a majority chased her from the room, humiliated, Ryan knew he would have no chance to be the next Chief Justice.
After the vote was taken and Soapy had been elected by a vote of four to two, Giles Kavanagh, always a cheer leader for collegiality, suggested that, for the record, the vote should be made unanimous.
Ryan said no.
After the conference Jim Brickley pulled Ryan aside.
“We’re going to have to learn how to count better,” he offered with a smile.
Ryan thanked him for supporting a losing cause. A lesson had been learned. In the Michigan Supreme Court the name of the game is ‘four votes.’
It was just another instance of the rampant partisanship that infected the court.
Now it would be a six member court for as long as it took to decide the Attorney General’s challenge to Dorothy.
Soapy had his court. He was the leader. He was the boss. But at what cost?
Years later, recording an oral history of the court, Jim Ryan reflected on those days.
“Dorothy was deeply hurt and she was sure we were wrong, and I was sure we were wrong, and we, with that stroke, went a long way toward destroying the superb relations that the members of the Court had one to the other over the whole of the years I was there.”
He is now a retired United States Court of Appeals Judge. Very distinguished.
As a college boy in the 1950’s, he used to come to our house on Sunday nights to sustain himself on Polly’s meat loaf and while away the hours afterward discussing life, love, marriage and the law.
When he came home from the navy, he joined our boot strap law firm. After I went on the Common Pleas Court Bench, he was elected Justice of the Peace.
I became a Circuit Judge. He became a Circuit Judge.
I went on the Supreme Court. He went on the Supreme Court.
I started a law school. He joined the Board of Directors and started teaching.
It has been my privilege to introduce and eulogize him on a number of occasions, and he has often returned the favor.
So I suppose it was only natural that in January of 1983, he agreed to be a candidate for Chief Justice.
The court met in the old Lafayette Building in downtown Detroit. It was only days after Dorothy Riley had been excluded from discussion about her status.
Ryan’s effort was hardly an example of political skill. Jim Brickley, an old friend and fellow Republican, would make the nomination. Dorothy Riley would add her support.
A fourth vote would have to come from somewhere.
Chuck Levin? The nominal independent who had supported Mary Coleman and John Fitzgerald in 1982? Was he really opposed to Soapy?
Giles Kavanagh? Though they were fellow Democrats, there was no love lost between him and Soapy. And he had also been party to the uprising that put Mary in the center chair.
Whatever scenario Ryan had hoped to see unfold on that January morning in the old Lafayette Building, he was quickly disabused of it when the issue was raised about Dorothy’s competence to participate in the election of the Chief Justice.
Once again, and with sugar coated condescension, it was suggested that it might not “look good” if Justice Riley participated in view of the Attorney General’s lawsuit.
When a majority chased her from the room, humiliated, Ryan knew he would have no chance to be the next Chief Justice.
After the vote was taken and Soapy had been elected by a vote of four to two, Giles Kavanagh, always a cheer leader for collegiality, suggested that, for the record, the vote should be made unanimous.
Ryan said no.
After the conference Jim Brickley pulled Ryan aside.
“We’re going to have to learn how to count better,” he offered with a smile.
Ryan thanked him for supporting a losing cause. A lesson had been learned. In the Michigan Supreme Court the name of the game is ‘four votes.’
It was just another instance of the rampant partisanship that infected the court.
Now it would be a six member court for as long as it took to decide the Attorney General’s challenge to Dorothy.
Soapy had his court. He was the leader. He was the boss. But at what cost?
Years later, recording an oral history of the court, Jim Ryan reflected on those days.
“Dorothy was deeply hurt and she was sure we were wrong, and I was sure we were wrong, and we, with that stroke, went a long way toward destroying the superb relations that the members of the Court had one to the other over the whole of the years I was there.”
A GENTLE TIGER (Number 6)
It is not widely known, but the second woman to serve on the Michigan Supreme Court was also the first Hispanic.
Josephine Grima was born in a suburb of Mexico City. She studied nursing at the University of Indiana and found work as a nurse at the veteran’s hospital in Battle Creek, Michigan.
There she met Charles Comstock who had returned from service in World War I. They married, moved to Detroit and on December 6, 1924 became the parents of little Dorothy.
She was a pretty, petite package, and stayed that way all her life.
The very definition of diminutive, she stood barely taller than five feet and didn’t weigh 100 pounds in her overcoat.
Attractive and popular, she was elected homecoming queen at Wayne State University before going on to law school there.
When she graduated in 1949, she was a rarity. The only females in law firms were the secretaries. Undaunted she opened her own law office, and made it work.
She met and married Wallace D. Riley, a mountain of grace and girth, himself an accomplished member of the bar, who was elected President of the State Bar of Michigan and eventually President of the American Bar Association.
Dorothy began her public service as an assistant Wayne County Friend of the Court. From there, she became a Circuit Judge, then a Judge of the Michigan Court of Appeals.
Soft spoken and unassuming, she nevertheless harbored a will of steel and the tenacity of a tiger.
New Year’s Day in 1983 was on a Saturday.
She spent several hours at her office over the week end, preparing for the January term of court. She had studied all the cases on the docket. She had read the briefs. She would be ready to hear the arguments of counsel. To ask probing questions. To seek truth and justice in every case.
Still, there was this uneasiness. The sense of foreboding.
She wouldn’t have long to wait.
By daybreak on Monday, her phone was ringing. The press wanted to have her reaction to the suit filed by the Attorney General to remove her from the Supreme Court.
In typically demur fashion, she declined to comment. She knew nothing of the suit, hadn’t seen it. But don’t bother to call again. She would not comment on this or any other pending litigation.
By early afternoon, Harold Hoag, the efficient ex navy officer who served the court as its chief clerk, called. He was arranging a telephone conference of the justices. To deal with the crisis. To talk about her. The very thought of it sent chills down her spine, and prompted a nauseous taste under her tongue.
Soon, too soon, they were all on the phone. Her colleagues. Her co-workers. Jim Ryan. Jim Brickley, Mike Cavanagh, Chuck Levin, Tom Kavanagh, Soapy Williams.
And they were talking about her.
She was no longer a colleague. She was a case. She had resigned a secure position on the Court of Appeals to come to the Supreme Court. She loved being an appellate judge. She was good at it. And respected by bench and bar.
Now she was just another Defendant.
Someone suggested she ought not to be sitting in on a discussion of the Attorney General’s law suit. It didn’t look good.
She hung up the phone. A woman would be entitled to cry. Not Dorothy.
Josephine Grima was born in a suburb of Mexico City. She studied nursing at the University of Indiana and found work as a nurse at the veteran’s hospital in Battle Creek, Michigan.
There she met Charles Comstock who had returned from service in World War I. They married, moved to Detroit and on December 6, 1924 became the parents of little Dorothy.
She was a pretty, petite package, and stayed that way all her life.
The very definition of diminutive, she stood barely taller than five feet and didn’t weigh 100 pounds in her overcoat.
Attractive and popular, she was elected homecoming queen at Wayne State University before going on to law school there.
When she graduated in 1949, she was a rarity. The only females in law firms were the secretaries. Undaunted she opened her own law office, and made it work.
She met and married Wallace D. Riley, a mountain of grace and girth, himself an accomplished member of the bar, who was elected President of the State Bar of Michigan and eventually President of the American Bar Association.
Dorothy began her public service as an assistant Wayne County Friend of the Court. From there, she became a Circuit Judge, then a Judge of the Michigan Court of Appeals.
Soft spoken and unassuming, she nevertheless harbored a will of steel and the tenacity of a tiger.
New Year’s Day in 1983 was on a Saturday.
She spent several hours at her office over the week end, preparing for the January term of court. She had studied all the cases on the docket. She had read the briefs. She would be ready to hear the arguments of counsel. To ask probing questions. To seek truth and justice in every case.
Still, there was this uneasiness. The sense of foreboding.
She wouldn’t have long to wait.
By daybreak on Monday, her phone was ringing. The press wanted to have her reaction to the suit filed by the Attorney General to remove her from the Supreme Court.
In typically demur fashion, she declined to comment. She knew nothing of the suit, hadn’t seen it. But don’t bother to call again. She would not comment on this or any other pending litigation.
By early afternoon, Harold Hoag, the efficient ex navy officer who served the court as its chief clerk, called. He was arranging a telephone conference of the justices. To deal with the crisis. To talk about her. The very thought of it sent chills down her spine, and prompted a nauseous taste under her tongue.
Soon, too soon, they were all on the phone. Her colleagues. Her co-workers. Jim Ryan. Jim Brickley, Mike Cavanagh, Chuck Levin, Tom Kavanagh, Soapy Williams.
And they were talking about her.
She was no longer a colleague. She was a case. She had resigned a secure position on the Court of Appeals to come to the Supreme Court. She loved being an appellate judge. She was good at it. And respected by bench and bar.
Now she was just another Defendant.
Someone suggested she ought not to be sitting in on a discussion of the Attorney General’s law suit. It didn’t look good.
She hung up the phone. A woman would be entitled to cry. Not Dorothy.
Thursday, February 3, 2011
KELLEY'S THEORY (Number 5)
I always liked Frank Kelley.
We were both hot shot young Irish lawyers in Detroit over half a century ago. Frank loved to preside at the middle table in Jacoby’s Bar across from the Wayne County Building during the morning coffee hour.
His quick wit and disarming smile always assured him an attentive audience, and the more they listened, the more he talked.
1961 was a good year for both of us.
I was elected Judge of the Common Pleas Court of Detroit. He was appointed Attorney General of Michigan by Governor John B. Swainson.
Frank lasted a lot longer than I did as a public servant.
When he retired in 1998, he was the longest serving Attorney General in the United States. Ever.
Frank Kelley was, and at age 86, still is a damn good lawyer. But he is a better politician. Always was. You don’t get elected 10 times with both Republican and Democratic Governors unless you know how to play the game.
And Frank knows how.
Somehow the Attorney general’s office came to be interested in the presence of Dorothy Comstock Riley on the Supreme Court. Whether it had anything to do with the research that found its way to the wastebasket outside of Soapy’s offices, no one will ever really know.
Call me naïve, but I never infer impropriety with respect to the actions or decisions of public officials. I assume, as I think all citizens should, that elected officials do what they do because they perceive it to be their duty.
Whether their perception of duty is accurate or not is always a matter fairly to be debated, but their motives are not relevant.
I have no doubt that the genesis of the lawsuit was political. On the face of it, the letter of appointment from Governor Milliken was in standard form. It was cast in the language of Section 23, Article 6 of the state constitution. It told Dorothy Riley that she was appointed to serve until after a successor to Justice Moody was elected in November of 1984.
There was an old case on the books in which the court refused to oust an appointed judge in a similar situation.
You had to go looking in the law library to find a basis to challenge Justice Riley.
Certainly the Attorney General was as dismayed as Justice Williams over the fact that Governor Milliken was making lame duck appointments to the bench. Kelley had lived with the Republican in the Governor’s mansion for fifteen years. He must have been ecstatic to anticipate working with fellow Democrat Jim Blanchard.
The first linchpin of Kelley’s theory came from a “what if” scenario. What if John Fitzgerald had died instead of Blair Moody?
In the November election, Michael Cavanagh was elected to succeed Fitzgerald. He was waiting for January first to be sworn in. Certainly the constitution wouldn’t deprive him of the office just because his predecessor died.
Ergo, the constitution doesn’t always mean what it says.
Or, what if Mike Cavanagh had died?
Would John Fitzgerald have continued to be a Justice of the Supreme Court until after the next election? Fitz hadn’t resigned. He just didn’t run for reelection.
The Attorney General’s research staff dug deeper. The constitution says that Supreme Court justices serve for an eight year term. Period. They are not authorized to hold over until a successor is elected.
So Fitzgerald could not have stayed on after his eight year term was over. And neither, Frank Kelley would argue, could Dorothy Comstock Riley.
We were both hot shot young Irish lawyers in Detroit over half a century ago. Frank loved to preside at the middle table in Jacoby’s Bar across from the Wayne County Building during the morning coffee hour.
His quick wit and disarming smile always assured him an attentive audience, and the more they listened, the more he talked.
1961 was a good year for both of us.
I was elected Judge of the Common Pleas Court of Detroit. He was appointed Attorney General of Michigan by Governor John B. Swainson.
Frank lasted a lot longer than I did as a public servant.
When he retired in 1998, he was the longest serving Attorney General in the United States. Ever.
Frank Kelley was, and at age 86, still is a damn good lawyer. But he is a better politician. Always was. You don’t get elected 10 times with both Republican and Democratic Governors unless you know how to play the game.
And Frank knows how.
Somehow the Attorney general’s office came to be interested in the presence of Dorothy Comstock Riley on the Supreme Court. Whether it had anything to do with the research that found its way to the wastebasket outside of Soapy’s offices, no one will ever really know.
Call me naïve, but I never infer impropriety with respect to the actions or decisions of public officials. I assume, as I think all citizens should, that elected officials do what they do because they perceive it to be their duty.
Whether their perception of duty is accurate or not is always a matter fairly to be debated, but their motives are not relevant.
I have no doubt that the genesis of the lawsuit was political. On the face of it, the letter of appointment from Governor Milliken was in standard form. It was cast in the language of Section 23, Article 6 of the state constitution. It told Dorothy Riley that she was appointed to serve until after a successor to Justice Moody was elected in November of 1984.
There was an old case on the books in which the court refused to oust an appointed judge in a similar situation.
You had to go looking in the law library to find a basis to challenge Justice Riley.
Certainly the Attorney General was as dismayed as Justice Williams over the fact that Governor Milliken was making lame duck appointments to the bench. Kelley had lived with the Republican in the Governor’s mansion for fifteen years. He must have been ecstatic to anticipate working with fellow Democrat Jim Blanchard.
The first linchpin of Kelley’s theory came from a “what if” scenario. What if John Fitzgerald had died instead of Blair Moody?
In the November election, Michael Cavanagh was elected to succeed Fitzgerald. He was waiting for January first to be sworn in. Certainly the constitution wouldn’t deprive him of the office just because his predecessor died.
Ergo, the constitution doesn’t always mean what it says.
Or, what if Mike Cavanagh had died?
Would John Fitzgerald have continued to be a Justice of the Supreme Court until after the next election? Fitz hadn’t resigned. He just didn’t run for reelection.
The Attorney General’s research staff dug deeper. The constitution says that Supreme Court justices serve for an eight year term. Period. They are not authorized to hold over until a successor is elected.
So Fitzgerald could not have stayed on after his eight year term was over. And neither, Frank Kelley would argue, could Dorothy Comstock Riley.
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