Wednesday, March 30, 2011


To some folks, it’s a sacred relic.

The original Constitution of the United States is kept in a specially designed exhibit case and vault in the Exhibition Hall of the National Archives Building in Washington, D.C.

Two pages of the Constitution are on display when the Hall is open to visitors; every day of the year except Christmas and New Year’s Day. The other pages are down in the vault except on September 17, when all four pages are brought out in celebration of Constitution Day.

Our federal government goes to a lot of trouble to protect those four pieces of paper.

Each page is encased in a Thermopane envelope filled with helium and a measured amount of water vapor. All the contaminates in the air we breathe are kept out. And nobody can actually touch the pages.

Even the display case has laminated glass filters and a yellow cellulose acetate layer to keep out ultraviolet rays.

That’s not all. Twenty feet below the display case is a vault. It’s 5 feet by 7 and a half feet and it’s six feet deep. The floor and walls are steel and concrete, fifteen inches thick.

There’s an electric mechanism that lowers the display case into the vault and closes a massive lid over it. There’s a stand by device in case of a power failure.

The vault is located in the center of the building, so there are either three or four solid masonry walls on every side, plus five floors and a roof of reinforced concrete above it.

Whenever the Constitution is on exhibit, it is protected by an armed military guard. No flash bulb photographs are allowed.

Bottom line, we the people of the United States have built a shrine to the Constitution. It’s an historical relic. You take the kids there to see it. To whisper and point with awe and reverence.

Just like the Lincoln Memorial, the Washington Monument, the Tomb of the Unknown Soldier. It’s one of the sites to see. A look at history. A peek at the past.

I think it’s wonderful that our federal government is taking such good care of the original constitution. It feeds our need to connect emotionally with the Founders of our nation, and to appreciate what a marvelous thing was done two centuries ago.

But there is a downside.

Treating the charter of our nation with untouchable reverence feeds the notion that it is somehow a divinely inspired pronouncement. Like the ten commandments to be carried around in the Ark of the Covenant, but not otherwise given much attention.

Folks figure that if it’s God’s law, God will enforce it.

And if the Constitution is a one time gift from on high, then it is permanent, complete, perfect and unchangeable. There are no more Washingtons, Madisons, Hamiltons or Franklins and never will be.

But of course everybody knows there are no more twenty dollar jury trials in Federal Court, as required by the seventh amendment, and the two year limit on appropriations for the military set out in Article 1,Section 8 has been swept under the rug.

Because everybody knows that times change. This is the twenty first century. It’s a different world, and it runs on a different set of rules.

The Constitution is protected and revered because it is old. But sooner or later old becomes ancient and ancient becomes archaic. And archaic means it doesn’t really matter anymore.

So the more we love it and honor it, the less we want to think about it or obey it.

Sort of like taking grandma to the home.

Tuesday, March 29, 2011


It was important for Cooley’s new Law Review to be a credible scholarly publication.

We were the new kid on the block. The non-conforming, anti-establishment professional school with no university affiliation. No cadre of Phd’s. No football team.

The maiden issue of our Law Review, especially the lead article, had to be laden with footnotes, citations of authority, references to recognized authors and their works.

I dug in with determination. Soon my office was piled high with books, strewn with fools cap, and cluttered with three by five cards. I had always needled the faculty about keeping their offices tidy. Now I was another messy professor.

But if I wanted to be scholarly, I was not about to write a speculative work of pure theory. Erudition was not my strong suite. My whole career had been directed toward action.

Mere expository writing didn’t appeal to me. To begin with, I have a very selective memory. People who win trivia competitions amaze me. I remember what is important to me. If it isn’t going to be on the final, forget it.

As a lawyer and a judge, especially as an appellate judge, I wrote to persuade. I analyzed to decide. To my way of thinking, advocacy is the highest and most meaningful form of communication.

Law and politics were both my vocation and my avocation. I had read many of the works of Thomas McIntyre Cooley, the learned 19th century jurist for whom our law school was named. He was a prodigious scholar and writer. His work on constitutional limitations remains on the first rank even today.

Especially today. Cooley wrote about constitutions back in a day when people still understood the legal and political realities associated with adopting the supreme law of the land.

I was appalled, both as a judge and as a legal educator, that one could graduate from college and even from law school in the United States, and never read the 4,543 words that comprise the United States Constitution.

Earlier in my judicial career, I was invited to teach a course in the American Constitution at the University of Detroit. I always began the first day of class by telling the students – they were all juniors and seniors – to take out a piece of paper and write down the Preamble to the U. S. Constitution.

Quite a few of them wrote “We the People…” That’s all. Just “We the People…”

Once in a while, I would get a truly poetic and patriotic essay about justice, equality, and freedom, which, while high sounding and impressive, had no similarity to the actual Preamble.

In the three or four years I taught there only a handful of students got it right.

Constitutional Law is a required course in almost all American law schools, but I doubt that any Con Law professor requires his or her students to read the constitution. The focus is all on Supreme Court cases.

Charles Evans Hughes, a Chief Justice of the United States Supreme Court famously said, “The constitution is what the Supreme Court says it is.” Professor Felix Frankfurter, who later was appointed to the Supreme Court by Franklin D. Roosevelt, went even further. He said. “The Supreme Court is the Constitution.”

In 1949, George Orwell wrote a book called “1984.” It was an imaginative journey into a future decade when advances in science would make human freedom and democracy obsolete.

By 1984, it was coming to pass. We had put a man on the moon. Americans thought government could do anything. They didn’t know or care how things got done. Whether laws were made by Congress, or declared by the Supreme Court, or commanded by the President made no difference.

Just get the job done. Control inflation. Protect the environment. Rev up the economy.

America was becoming a government of men and not of laws. I felt it was time to get back to basics.

Thursday, March 24, 2011



That’s what we owed as of February 16, 2011 at 2:08:30 AM.

That’s $45,434.10 for every man, woman and child in the United States.

It’s getting to be a worry. Americans of every political stripe moan and groan on the Internet and elsewhere about the burden of debt. ‘Fourteen trillion dollars’ has become a battle cry. A rallying cry. Even, in some neighborhoods, a call to arms.

One movement it occasions is the thrust for a balanced budget amendment to the federal constitution. The latest version, introduced in the House of Representatives as House Joint Resolution 1 is as follows:

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

Section 2. The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

Section 4. No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.

Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

Section 8. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2012

With all due respect for the bona fides of the Congressmen who endorsed this resolution, I must say it does not do what the American people hope will be done. In fact, it has the aura of a smoke screen to cover continued deficit spending by the Congress.

What exactly does it mean, for example, to say that in the President’s proposed budget outlays shall not exceed receipts?

A budget is an estimate, for heaven’s sake. An estimate is an opinion. A guess. A target. A hope. Nay, an estimate is an illusion. When I was a young married man I drew up household budgets every other month. They always balanced, but I never could live by them.

The three fifths vote and the rollcall requirement are window dressing. Forty votes in the House and ten in the Senate are hardly the stuff of constitutional protection.

And how about the exemption for wartime and “threat to national security?”

That language would have nullified their amendment over the last decade, and for how much longer in this dangerous world?

HJ Res 1 only proves what most Americans intuitively know. You don’t leave the fox in charge of the hen house. And you don’t give the job of drafting a balanced budget amendment to the very people who have spent us into 14 trillion dollars worth of trouble and worry.

If war is too serious to be left to the generals, constitutional reform is too important to be left to the politicians.

We need a convention, and we need it now.

Tuesday, March 22, 2011


By the early eighties, Thomas M. Cooley Law School was well established. Still, there was much to do. For one thing, we needed a Law Review. All respectable law schools have law reviews.

Making Law Review is the definition of success to many students.

Fortunately, we had a faculty member on board who knew something about starting academic publications. His name was Spencer Abraham. When a student at the Harvard Law School, Spencer had founded the Harvard Journal of Law and Policy. It is still being published and has earned the kind of prestige normally associated with Harvard. Spencer succeeded personally as well. He was eventually elected United States Senator from Michigan.

Spencer agreed to take on the job of faculty moderator. One of his first initiatives was to persuade me to write the inaugural article for the new publication.

I had been away from scholarly writing for a long time. While I had authored many opinions on the Supreme Court, they were not of the truly academic genre. And anyway, even opinion writing was then ten years ago.

I did have an interest, however, which got my juices flowing. Cooley had become a truly national law school. At every welcoming luncheon, I would ask the students from each state to stand and be recognized. There were always more than forty states represented. Realizing that they were part of a truly national class always bolstered the enthusiasm of the freshmen.

Not to mention how satisfying it was for the faculty and the admissions office.

The decade of the 1980’s was a special time in the history of the United States. It was the occasion to celebrate the two hundredth anniversary of the establishment of our nation. Cornwallis’s surrender at Yorktown, the recognition of American independence, and finally, the adoption of the United States Constitution, made the 1780’s a special time in our history.

I conceived of the idea of conducting a convention as contemplated by Article V of the Federal Constitution, and I invited the Student Bar Association to participate.

I told them that if we could enlist the participation of actual registered voters from two-thirds of the states, we would convene and undertake to consider whatever amendments the students might propose.

I rented a huge tent, which enclosed the parking lot next to the administration building on South Grand Avenue. Rented tables and chairs. Had signs made identifying the states.

When the day came, more than two hundred student ‘delegates’ showed up. We had a credentials committee which examined the identification of each attendee, and directed them to the table where their state caucus was ensconced.

Phil Prygoski, our outstanding Con Law professor undertook to deliver the keynote address, whereupon, I took the microphone and tried to steer the assembly through the process of introducing, debating and voting on various proposed constitutional amendments.

It was a great exercise. I was especially touched by some of the personal experiences and backgrounds many of them brought to the table. On some issues, they were predictably liberal. On others, surprisingly traditional. The age and citizenship criteria for election as President were hotly contested, but ultimately not targeted for change.

The mock convention affirmed my determination to focus my law review article on the process of amending the constitution contemplated by Article V.

It would be a labor of love.

It was before I became addicted to word processing on the computer. I took out my lawyer-like yellow foolscap pad and across the top of the first page I scribbled the title.

Return to Philadelphia.

Friday, March 11, 2011


The evil that men do lives after them; the good is oft interred with their bones.

So said Mark Anthony in Shakespeare’s Julius Ceasar. So it might also be said of Soapy Williams.

Twenty-eight years after Kelley v Riley, another Attorney General, this time a Republican, Bill Schuette, has filed a Quo Warranto proceeding seeking to remove a Michigan Judge.

Kelley sought to remove a woman from a male court. Schuette wants to oust a black judge from a white court.

Here’s the scenario: Hugh Clarke was appointed by outgoing Democratic Governor Jennifer Granholm in the waning days of 2010 to fill a vacancy in the Lansing District Court caused by the resignation of Amy Krause, who was appointed to the Court of Appeals.

Krause had just been reelected in November of 2010 to a term to begin on January 1, 2011.

Clarke’s appointment specified that he is to serve until a successor to Krause is elected. That will be in November of 2012.

Brother Schuette, waving the Kelley v Riley flag says, “No.” He wants the new Republican Governor, Rick Snyder, to appoint a judge for Lansing.

His lawsuit claims that on January 1, 2011, when Judge Krause’s new term of office was to begin, a new vacancy was created. He insists that Judge Clarke ceased to be a judge on that day.

And so, I suppose, the Attorney General will argue that he is not asking the court to remove a judge. Not really. He’ll say he is not really asking the court to do what the constitution forbids. No matter how it looks to everybody.

The problem with that theory is this: if Clarke is not a judge, why do you want him ousted? What is it you want him ousted from?

If Hugh Clarke were truly a stranger to the office of District Judge, a pretender, a squatter, if you will, there would be no need to seek a court order ousting him. The court administrator would tell him to get out. The State Treasurer would take him off the payroll. The lawyers would refuse to appear. The plaintiffs and defendants would go elsewhere or stay home.

If there were, in fact, a new vacancy created on January 1, it would have been filled by the Governor. The new judge would have been put on the payroll. He or she would have donned the robe and started hearing cases.

But the Attorney General knows there is no vacancy. His brief describes Hugh Clarke as a “sitting judge.”

His lawsuit is the common law writ of Quo Warranto, a Latin phrase which means, “By what authority?” The writ is used to inquire into the legal basis for exercising official power.

By definition, Quo Warranto is only used when the respondent is a de facto office holder. You don’t ask someone, “By what authority are you functioning as a judge?” unless the person is actually functioning as a judge.

Frank Kelley referred to the ousting of Dorothy Riley as a “judicially created vacancy.” And that’s exactly what Bill Schuette is trying to do. He wants the court to remove a judge. To create a vacancy. To do exactly what the constitution of Michigan says the court cannot do.

The Michigan constitution provides three ways to remove a judge. He can be impeached. He can be removed for misconduct at the recommendation of the Judicial Tenure Commission, or he can be removed for any other reason by the Governor with consent of two-thirds of both houses of the legislature.

The Supreme Court can’t do it. The Supreme Court should not have done it in 1983.

The Riley case should be assigned to the archives like Dred Scott and Plessy v Ferguson.

And Soapy’s mischief should likewise be undone.

Thursday, March 10, 2011


Stick with me on this. It’s confusing, but very interesting.

Under the constitution of 1908, Michigan had eight justices on its Supreme Court. With a solid Republican majority, John Dethmers became the first so called permanent Chief Justice. He was Chief for six years from 1956 to 1962.

In 1962, Thomas (the Mighty) Kavanagh wanted to become Chief. The court was evenly divided. Dethmers stayed on as Chief because there were not five votes to elect someone else.

Finally, to end the deadlock, Paul Adams, a Democrat, broke ranks to vote for Leland Carr, a Republican.

Kavanagh never forgave him, and in the November election supported the Republican, Mike O’Hara, against Adams. In return, O’Hara promised to support Kavanagh for Chief.
O’Hara defeated Adams, and Kavanagh was elected Chief Justice in 1964.

I was elected in 1966, defeating Otis Smith, a Democrat. The court was still eight justices in 1967, evenly split between Republicans and Democrats. Gene Black wanted me to be the Chief, but I declined. He then joined the Republicans to put Dethmers back in the center chair.

In November of 1968 O’Hara and Ted Souris were due to run for reelection. When Souris decided not to run, the constitution of 1963 required that the Court be reduced to seven.

That left O’Hara as the only incumbent on the ballot. He lost to Thomas Giles Kavanagh. Thomas the Good was reelected in 1976 and was alone on the ballot again in 1984.

His opponent was Dorothy Comstock Riley.

Dorothy had good support among members of the Bar, women’s organizations, and of course the Republican Party which nominated her.

The only issue she campaigned on was her qualifications. She had experience, both as a trial judge and on the Court of Appeals.

Still, almost every news conference in cities across the state would eventually turn to the case of Kelley v Riley.

Was she running to seek revenge for being ousted?

What did she think about the Court’s action in that case?

How did she feel about it?

Did she think she could work with Soapy Williams?

Dorothy gave short, evasive answers. She never took the bait. She was determined to travel the high road, conscious that if she won, she would be working every day with men who had rejected her the year before.

Still, there was no way to prevent it. Riley v Kavanagh became a reprise of Kelley v Riley, a referendum on the Court’s ouster of Dorothy Riley.

The response of the people was resounding.

Dorothy Comstock Riley was returned to the Supreme Court.

Thomas the Good was ousted by the voters.

The Michigan constitution of 1963 provides that no person can run for judicial office after their seventieth birthday.

Born in 1911, G. Mennen Williams was ineligible to run for reelection in 1986.

In January, 1987, the Court elected his successor as leader of the court. The vote was unanimous. Three Democrats, three Republicans and Charles Leonard Levin elected the second lady to serve as the Chief justice of Michigan.

Dorothy Comstock Riley.

What goes around, comes around. That’s what they say in politics.

Wednesday, March 9, 2011


Somewhere in the dark recesses of my mind I had the notion that there is some kind of a writ that would permit a stranger like me to butt into someone else’s law suit.

A little digging in the law library yielded the writ of Coram Nobis. It’s an ancient common law writ used to correct a fundamental error or miscarriage of justice.

I thought it fit the Riley case.

I prepared an application for a writ of Coram Nobis and filed it in the Supreme Court.

Then I called a news conference.

No doubt the reporters thought I was playing the part of Don Quixote, tilting at windmills, chasing the impossible dream.

One of them finally posed the question. What did I think the Court would do with my request? Did I think they would listen to me? What did I plan to do next?

I told them that I had asked for a chance to address the Court, and I expected to do so at the next scheduled session of the Court, which would be on March 8th.

And if the Court didn’t permit me to speak, what would I do then?

That question gave me a chance to utter a usable sound bite.

“My portrait is hanging in the courtroom,“ I said. “I’ll probably just sit under it until they call on me.”

Actually, it never came to that.

George Bushnell, representing the State Bar of Michigan, was scheduled to argue the first case on March 8, 1983. When Soapy gaveled the Court into session, George stood and asked the court to permit him to yield to me.

They did, and he did, and I had my say.

I began by recounting my exchange of letters with the court clerk, in which I was admonished to avoid personal contact with members of the Court.






Then I told the court that I could not imagine any theory or explanation which might weaken or carve out an exception to that plain and simple denial of authority, and concluded by saying,


Soapy stared at me in silence. Like a seven hundred pound gorilla.

Tuesday, March 8, 2011


Cooler heads would surely have deemed my effort a fool’s mission.

Truthfully, I did not really expect to be able to persuade the Supreme Court to do yet another turn around and seat Dorothy Riley.

Even Chuck Levin, perhaps especially Chuck Levin, would not be inclined to revisit the decision to oust Dorothy.

But at this point that did not matter so much as the damage the court had done to itself because of its departure from proper procedure.

It was perhaps overly sanguine, but I really thought that getting the court to revisit their decision and do it over again, even if it meant the same result, was within the realm of possibility.

In any case, the bizarre process would be, or ought to be of great interest to law students.

So I arranged to meet with students at all five of the law schools in Michigan.

At each school, I invited the media to attend.

In order to emphasize the remarkable failure of all the lawyers in the case to consider Article 6, Section 4 of the state constitution, I had lapel stickers printer, which announced in large bold letters, THE SUPREME COURT DOES NOT HAVE THE POWER TO REMOVE A JUDGE.

A few of the students did try to challenge me.

Their primary argument was based on the same thought process displayed by the news media. If all those high priced lawyers and all those esteemed judges didn’t think the constitution prohibited the court from removing Justice Riley, how could I say otherwise?

I, of course, returned the challenge. If the words don’t mean what they say, what do they mean?

The tour of law schools ended at Thomas M. Cooley Law School in Lansing.

I billed it as a debate between myself and my old friend Frank Kelley, who, incidentally, was a part time member of the Cooley faculty.

Frank declined to show up. I knew he would. I had the maintenance staff dig up a Styrofoam bust from the store room and I topped it with a grey British solicitor’s wig and set it on the speakers table next to me.

Using my most resonant stentorian voice, I played the role of Frank Kelley trying to answer my questions. The faculty, students, newsmen and TV folk enjoyed the show.

How many people came to share my indignation over the Supreme Court’s lapse of propriety is questionable.

Admittedly, I was getting publicity. But it troubled me that the news stories used phrases like, “Brennan, who was a Republican candidate for Lieutenant Governor, claims that the constitution prohibits the court form removing a judge.”

The implication, of course, was that I was motivated by partisanship. Also, that what the constitution actually said was subject to differences of opinion.

I turned my attention to the State bar of Michigan. At the time, I was a member of the governing Board of Commissioners. I raised the issue with the Board and asked the bar to pass a resolution urging the Court to revisit the Riley case.

Only 15 of the 26 commissioners showed up for the meeting. Nine of them voted against taking any action.

The dominant argument against my motion was that criticizing the Court would do no good. They had done what they had done, and weren’t about to back down.

On February 23, I wrote a letter to the justices, in which I urged them to reopen the case and consider Article 6 Section 4.

The clerk replied promptly, advising me that the case was, or might be still pending, and that the justices would not accept any communication from me.

Monday, March 7, 2011


The media were all over it. Headlines blared the news that the Supreme Court had reversed its decision and ousted Dorothy Riley.

The court’s sudden about face was the handle that gave the story legs. To the average person, Supreme Court decisions are sacrosanct. Once the Supreme Court has spoken, the matter, any matter, is done. Over. Finished.

The idea that the justices might be able to take a mulligan doesn’t sit well with most folks.

Especially when the division of votes on the court follows party affiliation, the picture of a court counting and recounting noses confirms the suspicion of the public that court decisions are not really based on law, but are simply expressions of the political choices of the justices.

The Riley ouster fermented lots of editorial comment about the need somehow to get the Supreme Court out of politics. It’s an old theme that rises up and ebbs like a predictable tide of public opinion.

Of course the immediate focus was on Chuck Levin. The enigmatic justice had created a fire storm with his change of heart. The media demanded an explanation.

Reluctantly, Levin agreed to a news conference.

Press relations were not Levin’s forte. Getting a sound bite from him was like trying to distill a doctoral thesis on atomic particles down to a headline.

He answered every question with a long, complicated dissertation.

His first opinion wasn’t really intended to support Riley. It just said that he didn’t want to do anything. He still couldn’t decide which Governor should be able to make the appointment.

In fact, he didn’t think the court should be deciding the matter. He could see no reason why the new Governor, Jim Blanchard, couldn’t have appointed somebody to the court also. The court had operated with eight members for many years, it could do so again, at least until the next election.

When the fog and the obfuscation settled, what emerged in the papers was the simple fact that Levin had changed his mind. No one will ever know why. Maybe not even Levin himself.

There were rumors that some Democratic Party operatives figuratively camped out at Levin’s home over the weekend. If so, and if he had decided to vote to oust her, he would have been sitting across the table at the conference that Tuesday harboring the knowledge of what he had decided to do.

Or, as it has been suggested, was there something that happened that day, something she said, some way she voted, which triggered his decision?

Whatever the scenario, it was a fait accompli.

As I read the press reports, my blood began to boil.

Being a former Chief Justice of the Supreme Court of Michigan meant a lot to me. It was the defining achievement of my career. Whatever demeaned the court diminished me, as it besmirched the reputations of my friends and embarrassed the institution we all had served.

I tried to reach Dorothy, but she declined to talk to me. I spoke to Wally. He thanked me for my interest, but he made it clear that Dorothy was not going to take the matter to the Federal Courts. She felt the work of the court had already been unduly interrupted. Continuing to embroil the court in internal conflict was not good for the court and not good for Michigan.

I remembered what old Gene Black had said when I was on the court. I protested something that was proposed, saying, “We can’t do that. We have no authority to do it.”

His reply stuck with me. “If we do it, who shall gainsay us?” It came to be known as the seven hundred pound gorilla rule.

The notion that a majority of the court can do whatever they want to do is absolutely anathema to me. It denies the rule of law.

I could not let it stand without a challenge.

Sunday, March 6, 2011


Justice Dorothy Comstock Riley treated her law clerk, Brian Mckeen to dinner at Robert’s a campy underground bistro in East Lansing..

It had been an interesting day, her first back in action since the dreadful challenge to her appointment had been mounted by Frank Kelley.

It was a celebration. Dorothy was assured that her relations with members of the court would be collegial and friendly.

Even Soapy, whom they suspected had connived to remove her even before Frank Kelley filed his lawsuit, had come around. On Friday afternoon he had walked into her office and offered his congratulations. He was very gracious. His gesture was particularly meaningful and appreciated by Dorothy.

The war was over.

It was time to celebrate.

Sometime around seven o’clock, they returned to the Capital Park Hotel. It was raining. Brian dropped the justice off at the front door, then went on to park the car.

As Dorothy entered the lobby, she recognized a familiar face.

Harold Hoag, the Clerk of the Supreme Court walking toward her. She instantly sensed that something was amiss. He handed her a piece of paper and said, “Mrs. Riley, I have an order for you.” Then he turned and walked out of the building.

She unfolded the document, an eight and half by eleven standard letter size page.
At the top was the title of the case of Kelley v Riley.

She read the words slowly, in stunned disbelief.

Upon reconsideration on the Court’s own motion, there now being four justices who vote for ouster, the order of February 11, 1983 in this cause is vacated. This cause having been brought to this Court by complaint for quo warranto and due deliberation having been had of the complaint and the of the briefs and oral arguments of the parties, it is hereby ordered and adjudged that defendant Dorothy Comstock Riley, has, since the first day of January, 1983, claimed to exercise the office of Justice of the Supreme Court, and whereas, upon full consideration we find that claim from that date to be without authority, it is ordered that the said defendant, Dorothy Comstock Riley is hereby ousted and excluded from the office of Justice of the Supreme Court.

She was still standing there, paralyzed by shock, when Brian came into the lobby.

Shoving the document into her purse, she gave her clerk a strained smile.

“Pack your bag, Brian.” She said it in a low but firm voice. “We’re checking out.”

The 97 mile ride down Interstate 96 to Grosse Pointe was mostly silent, with sporadic bursts of commentary, mostly by Brian.

How could they do this? How could men, sworn to uphold the constitution, so blatantly and crassly violate their oaths of office?

The Federal Courts would not let this happen. His boss had not been given even the merest modicum of due process.

She had been fired. He would lose his job as well. They had been on the payroll for six weeks of 1983. Would they be expected to return their salaries?

It had been an emotional roller coaster of a day. Excitement and anticipation in the morning. Celebration at supper. Then darkness and devastation.

86 Lothrup. Home again. Early. Unexpectedly. And broken hearted.

Brian carried her bags inside, and said good night.

And then Dorothy was alone. Her son, Peter was staying with his grandmother. Wally
was in New Orleans.

If she shed a tear, nobody saw it.

Saturday, March 5, 2011


15 February, 16:30 hours.

Retired Navy Commander, and currently Supreme Court Justice James L. Ryan is teaching a class in evidence at the Thomas M. Cooley Law School in the converted Masonic Temple Building across from the State Capital.

In mid sentence, the door opens and class is interrupted by a messenger from the Dean’s office.

The note delivers an abrupt and ominous message. Please call the Chief Justice at his office.

Jim Ryan apologized to his students, gave them a quick assignment for next weeks' class, then headed out the door and down the elevator to the Dean’s office.

Within minutes he had Soapy Williams on the line.

“I’m teaching a class. What’s so important to interrupt my class?”

Soapy spoke in his usual slow, deliberate tone. “We have four votes to oust Dorothy. I thought I would do you the courtesy of letting you know before the news gets out.”

“When are you going to do this?”

“Now. Right now.”

“Without a hearing? Without even a meeting of the court?”

“No, indeed. That’s why I asked you to call. We’re here in my office.”

Ryan could feel his face redden, his heart thumping, teeth grinding.

“I’ll be right there,” he growled and slammed the phone down.

Minutes later, he stepped out of the elevator on the third floor of the Law Building. As he started down the hall, he encountered Jim Brickley, just coming out of his office. They compared notes. Brickley had just received the same summons.

Soapy was behind his desk. Mike Cavanagh and Giles Kavanagh were sitting on the couch. Chuck Levin was standing near the window.

Ryan waded right in. He was more than angry. He was livid. The case of Kelley v Riley was over. The court had issued its order. Indeed made the order immediately effective.

There was nothing pending in the court on which to vote, no lawsuit for them to decide.

He reminded the Chief Justice that the court’s own rules require a petition for a rehearing to be filed by one of the litigants, and an opportunity for both sides to be heard before the court could revisit one of its decisions.

There simply is no such thing as the court re-voting on a case which has already been decided. It cannot be done. Not only would it violate the court’s own rules, it clearly deprived Dorothy Riley of notice and an opportunity to be heard.

Didn’t the justices realize that what they were doing violated the Constitution of the United States? Weren’t they aware of the damage this would do to the prestige of the court?

Soapy said nothing. Only Chuck Levin spoke. He hadn’t really intended to vote for Dorothy. He only meant to say that he wasn’t persuaded either way.

Ryan asked if he would be given a chance to file a dissenting opinion.

Soapy nodded, ”Yes, but not tonight. We are going ahead with the order.”

The meeting lasted thirty, maybe forty minutes. Finally Brickley pulled Ryan aside.“We’re swimming upstream,” he whispered. And so they were.

As they left the room, they could hear the Chief Justice calling Harold Hoag, the Clerk of the Court.

Friday, March 4, 2011


Her weekend had been ebullient. The challenge to her tenure on the Supreme Court was dismissed. Between congratulatory phone calls, including several from her husband Wally, who was in New Orleans for the mid year meeting of the American Bar Association, and preparations for the upcoming week of work in Lansing, Dorothy Riley fairly bubbled with enthusiasm and anticipation.

On Monday morning, her law clerk, Brian Mckeen, loaded her things into the car. Two large briefcases full of papers, her overnight bag, and the leather case in which her carefully folded judicial robe was carried.

Despite the fact that she had been on the court for nearly a month, she had worn her robe only three times; at her own inauguration and those of Justices Brickley and Cavanagh.

She would stay at the Capital Park Hotel, a short walk to the Law Building.

And she would be ready. Always a good student, Dorothy approached her duties with scrupulous diligence. Her colleagues would soon see how valuable she could be.

Tuesday, February 15 dawned a clear, crisp, cold Michigan winter day. The agenda called for the court to meet at 9:30 and be in conference all day, disposing of administrative chores.

And window matters.

That’s what they called applications for leave to appeal and other miscellaneous motions. Window matters. It all started generations ago when the clerk of the court brought each Justice his share of motions to read and decide. They were stacked on the window ledge. Hence the name.

The mood in the conference room was polite, but somber. Dorothy went out of her way to be cheerful and friendly. Nine-thirty came and went. Everybody in their chairs except Chuck Levin.

It was ever thus. Justice Charles Levin had no concept of time. He was always late. His opinions were invariably overdue. He was slow to decide, slower to act.

When the bailiff appeared at the door to announce that Mr. Justice Levin had just called from his car to report that he was a few miles west of Howell and that he would be there as soon as possible, there was a collective groan around the table.

Someone attempted to break the ice.

“Maybe we ought to oust him for habitual tardiness.”

Nobody laughed.

As the day passed, the court worked its way through several dozen issues. Dorothy contributed to the discussion, stating her views succinctly and softly. As was the custom, lunch was brought in, and the work continued until late afternoon.

It was nearly four o’clock when Soapy gaveled adjournment.

In the hallway, Mike Cavanagh took Dorothy’s arm and asked her to stop by his office for a few moments.

Inside, he began by expressing his personal regard and admiration for her as a person and as fellow judge on the Court of Appeals. He was sure that they would be able to work together on the Supreme Court as well. He hoped she understood that his vote in the Quo Warranto proceedings was not reflective of any personal animosity. While she knew he was a lifelong Democrat, he hoped she appreciated that his vote was based on his reading of the law, that it was principled and not political.

Dorothy reassured him that they were friends, and that there was no hatchet to be buried.

They hugged. She left to go to dinner with her clerk.

Twenty minutes later Justice Cavanagh’s phone rang. It was the Chief summoning him to a meeting in his office. Now.

Thursday, March 3, 2011

A TIME TO WRITE (Number 12)

In the Supreme Court of Michigan, the process of writing opinions is often a free for all.

Having expressed their gut reactions on the day of argument, the Justices repair to their caves to ferret out the footnotes and compose the soaring prose by which they will justify to the public, the legal profession, the media and the ages the very same conclusion they hinted at in conference.

These draft opinions are then circulated among the members of the court, and memos fly between and among their offices, agreeing, disagreeing, praising, criticizing, debunking, and concurring.

Eventually, the court complies with the mandate of Article 6, Section 6 of the State Constitution. It says:

Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissent.

In the case of Attorney General Kelley v Riley, the six participating justices ended up filing five opinions. The longest came from Soapy Williams.

Covering 27 pages, the Chief Justice’s opinion was divided by Roman Numerals into eight segments. It cites the constitution, it cites statutes, it cites cases. It concludes that Dorothy Riley’s appointment ended on January 1, 1983, and that newly elected Governor Blanchard was entitled to appoint someone to fill the vacancy caused by the death of Justice Moody.

Justices Kavanagh and Cavanagh concurred with the Chief.

Mike Cavanagh had been elected to the Court of Appeals in 1975. Dorothy Riley came on that court a year later, the first woman to be seated there.

They were colleagues for nearly seven years, but they had known each other much longer. As a young lawyer, Cavanagh had been an investigator for the Wayne County Friend of the Court’s office. His supervisor was Dorothy Comstock Riley.

The Court of Appeals sits in panels of three judges. Dorothy and Mike sat on cases together many times. They were friends.

Mike Cavanagh is an affable Irishman. Charming and witty, people like him and he likes people.

The Riley case greeted him on his first day on the Supreme Court. It was hardly the kind of decision he had dreamed of confronting while campaigning across Michigan two months before.

His concurring opinion revealed discomfort:

*** this case is not only of constitutional significance to our state, but it is also of personal significance to us, as we have been faced with the difficult task of making a legal judgment involving one of our own colleagues. Certainly no one has disputed defendant's personal qualifications to hold office ***

Justice Levin’s opinion revealed discomfort too, but not so much at ousting a colleague, as with embroiling the court in the process of judicial selection. He wrote:

We should carefully guard the reputation of this Court. Which Governor’s appointee sits on this Court matters far less in the long run than that this Court continue to be, and be perceived as, impartial and objective *** I am accordingly of the opinion that no judgment of ouster should be issued at this time by this Court in respect to the appointment of Justice Dorothy C. Riley ***

On Friday, February 11, 1983 the six sitting Justices met in the conference room and signed their opinions.

Then they directed the Clerk, Hal Hoag, to prepare an order dismissing the Attorney General’s lawsuit. And giving it immediate effect.

Dorothy was back on the Court. The nightmare was over, she told herself.

Wednesday, March 2, 2011

IN THE DUGOUT (Number 11)

The word dugout is older than baseball. It’s basically just a hole in the ground. The most primitive form of shelter known to man.

When Harry Kelly wanted to share a confidence, he’s say, “We’re talkin’ in the dugout here.”

A colleague of mine on the Michigan Supreme Court and one time Governor, Harry was left for dead at the Battle of the Argonne Forest in 1918. Stacked in a temporary battlefield morgue, he managed to move enough to get noticed, and came home with only one leg, but otherwise very much alive.

Harry liked to say that the meetings of the Supreme Court in the conference room immediately after hearing oral arguments were ‘in the dugout.’

It was a time and place where Justices talked to each other off the record. Shared their impressions, preferences, hunches.

Nothing was in stone. Nothing was final. Nothing was binding.

Still, there were straw votes, and humans being what they are, the gut reactions that get shared in the dugout very often mature into the final, formal opinion of the court.

On January 24, 1983, the justices did what they always did in the dugout.

Chief Justice Williams went around the table, asking each member of the court to express an opinion about the case of Attorney General v Riley.

The split was predictable.

The “K” Kavanagh and the “C” Cavanagh both felt the Attorney General was right. So did the Chief Justice. Brickley and Ryan were inclined to go the other way.

Which, again predictably, left the matter up to Charles L. Levin.

Chuck Levin, the only surviving member of the court on which I served, is a very intelligent man.

I remember him as a man who spoke and wrote in very long sentences. No combination of words or ideas was too complex or convoluted to overload his brain or his pen.

He was, and remains, a scrupulously gentle and caring human being who shows up at the most inauspicious funerals and sends thoughtful, if not timely, notes of condolence, appreciation or congratulation.

That gentility spills over into his decision making.

He never jumps to a conclusion. Indeed, the very notion of a conclusion is nearly anathema to him. He is never happier than when a fork in the road has a multitude of prongs.

When it came time for Chuck to express his initial impression of the Riley case, he deferred. It was his usual way. He wanted to hear what the others would say. He wanted to weigh all the factors.

And so the discussion continued. But nobody changed their mind. It came back to Levin.

As he often did, he began by summarizing the arguments on both sides, noting the strengths and weaknesses of each.

Finally, he admitted what he so frequently had to admit.

He couldn’t make up his mind.

That said, he reluctantly deferred to the ancient, logical, and common sense rule of judicial decision making.

The Plaintiff always has the burden of proof and the burden of persuasion. If you make a claim, you have to prove your claim. If you want the court to do something, you have to prove your entitlement.

The Attorney General hadn’t convinced him that Justice Riley should be ousted.
And so he said, “I guess I’m with Dorothy.”

Tuesday, March 1, 2011

DEJA VU (Number 10)

When I was Chief Justice, I was privileged to have a real cracker jack chief of staff by the name of Mike Devine.

I used to call him QT. His forte was quick thinking. For every crisis he had a ready answer, almost always the right one.

Mike has gone on to a successful career in the law and in banking. A leukemia survivor who takes each day as a blessing from a gracious Creator, Mike is more than glib. His memory for details is encyclopedic.

He called me the other day to add his own sidebar to the story of Michigan’s Second Lady.

It is a convoluted tale, typical of what happens in politics.

In 1969, Wayne County Sheriff Ray Gribbs eked out a narrow victory over Dick Austin, a popular black candidate, to become Mayor of Detroit. But the handwriting was on the wall. In the mayoral election of 1973, Detroit would elect its first black mayor.

Ed Bell was a charismatic black judge with political ambitions. In order to be eligible to run for mayor in 1973, he would have to leave the bench a year ahead of time. So in the Spring of 1972, he announced his resignation. Supposedly, he would leave the bench at a point in time when it was too late for his vacant seat on the circuit court to be filled in the 1972 November election.

Which would mean that the Governor’s appointed judge would serve until after the election of 1974.

Whether by miscalculation or mere happenstance, Judge Bell resigned just a little too early and he created a vacancy when there were still five days left for someone to become a candidate to succeed him in the November 1972 election.

Enter my friend Mike Devine. He and then Circuit Court Judge Jim Ryan were returning from lunch when a happy, noisy crowd of well dressed citizens emerged from the elevators. They had been in the eleventh floor auditorium where Ed Bell had just announced his campaign for Mayor and his resignation from the bench.

That night, Mike called Traffic Court Judge John Kirwan, a former University of Detroit basketball star, and said, “How would you like to be a Circuit Court Judge?”

There were just five days left to garner several thousand signatures on petitions to put Kirwan’s name on the ballot. Mike recalls conducting signature gathering classes for groups of Kelly girls at 7:30 in the morning.

They got the job done, but the Secretary of State refused to accept the petitions, relying on a statute which defined the ‘next election’ as one for which the filing date was more than seventy days after the vacancy occurred.

Governor William G. Milliken also relied on the seventy day statutory grace period. He assumed that his appointee would serve until after the 1974 election. His appointee would have two years of service on the bench and would have the benefit of the ballot designation as an incumbent Circuit Judge, practically assuring election.

Mike thought the seventy day statute was unconstitutional. Article 6, Section 23 said the vacancy was to be filled at the next election. And next means next.

The Michigan Supreme Court agreed, and in August of 1972 it ordered the Secretary of State to accept John Kirwan’s petitions, and place his name on the ballot.

And so it was that Governor Milliken’s appointee, who expected to serve at least two years and to be able to run in 1974 as an incumbent, was left with a dead end six month interim job.

The disappointed short term judge was none other than Dorothy Comstock Riley.

Ten years later, her judicial career would once again be on the docket of the Michigan Supreme Court.


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.