Sunday, February 27, 2011

THE BATTLE BEGINS (Number 8)

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 na├»ve, 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.”

2 comments:

  1. Tom, I disagree, and am surprised, with your characterization of Fred's advocacy on behalf of Dorothy. I had to read it a few times to make sure I was reading it correctly.

    Fred was not a one dimensional divorce negotiator, he was a helluva advocate as well. I should know, I worked for him, watched him in court, and learned more skills in my time with him than in any other similar time period after law school, or from any other lawyer. His appellate acumen is a matter of record.

    Equally importantly, the Buessers are gentlemen, and would never have published something like this about anyone.

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  2. It is a matter of record that Dorothy's counsel never raised the Article 6, Section 4 prohibition against removal of a judge.

    Nothing personal intended.

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