Tuesday, March 1, 2011

AN ELEPHANT IN THE ROOM (Number 9)

The oral arguments in the Riley case were scheduled for January 24, 1983, just two weeks after the court decided to take the case.

That’s not a lot of time to do the type of research and write the kind of briefs that a case of that importance demands.

Former Governor Milliken had retained University of Michigan law professor J.J. White to write an Amicus Curiae brief supporting his right to appoint Justice Riley until the next general election, but the main work was to be done by the firm of Buesser and Buesser of Detroit.

The firm consisted of the two sons of Fred Buesser, Jr., an old and dear friend of both Wally and Dorothy Riley. Fred had been Wally’s campaign manager when he was elected President of the American Bar Association.

He was a good lawyer as were his sons, but their specialty was domestic law, not constitutional law.

I decided to butt in.

I called Fred III. Could they use some help? I wasn’t looking for compensated legal work. I was offering to donate my services. I felt strongly about the case.

Fred was gracious, but firm in the position that they had everything under control.

I told him I had done a little preliminary research. I asked him if he planned to argue that the Supreme Court didn’t have the power to remove a judge.

Now, after nearly thirty years, I cannot call up the exact words of our conversation, but I distinctly remember that he declined my offer and insisted that they were confident of their argument.

What bothered me was that he seemed willing to concede that the Supreme Court does in fact have the constitutional authority to remove a judge, and that the issues framed by the Attorney General were the only issues involved in the case.

Article 6, Section 4 of the Michigan Constitution of 1963 provides:
The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.

Article 6, Section 4 is the only place in the constitution which gives the Supreme Court any power. It gives the court three and only three kinds of power: Superintending control. Prerogative and remedial writs. Appellate jurisdiction.

So the constitution, ratified by the people, says to the Supreme Court:

You cannot remove a judge.

You cannot remove a judge when superintending the courts.

You cannot remove a judge with a prerogative or remedial writ.

You cannot remove a judge on appeal.

In short, the people have said to the court, you cannot remove a judge at all. Ever. For any reason. On any theory.

January 24th was marked on the calendars of the Lansing press corps. And the TV News departments. They crowded the courtroom, looking for clues from the arguments of counsel, from the questions of the Justices.

I was wondering, too.

What would the Attorney General argue? That ouster is not removal? That a justice is not a judge? That Dorothy Riley is not in fact a judge at all?

The debate went on for nearly an hour.

The briefs comprised hundreds of pages.

Nobody mentioned Article 6, Section 4. It was the proverbial elephant in the room. Too big not to be obvious, but somehow ignored by everyone.

I hoped for Dorothy’s sake that the elephant wouldn’t be needed.

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