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.

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