Friday, March 11, 2011

THE ECHO OF MISCHIEF (Number 20)

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.

4 comments:

  1. Tom, I have been fascinated with your story. I didn't try to research any of it ahead of each installment, as your account is far superior than any Wiki entry could hope to be. I was therefore quite relieved that Justice Riley was returned to the Court in a landslide and fully vindicated by being chosen for Chief Justice.

    Still, it was sad that the Court let stand its decision over her ouster. That's an embarrassing scar it will forever bear.

    But aside from this fine story I am taking away your nugget of logic, your challenge to the law students, which is now burned in my consciousness for future use, "If the words don't mean what they say, what do they mean?" Be assured I will put it to good use.

    Thank you, Judge.

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  2. Tom,
    Thank you for the history lesson. I found it a fascinating story. Unfortunately, I see too often both courts politicians doing violence to the meaning of words. Creating confusion with willful misinterpretation of what is actually quite clear has led to mistrust of our elected officials and the courts. I fear this will ultimately lead to the downfall of our great nation.

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  3. Judge,

    I play golf with you here at LJ.

    Now for the real question from a non-lawyer. You state that the Michigan Constitution provides 3 ways to remove a judge, but mention nothing about what it says when replacing someone who is removed, resigns, becomes incapacitated, or dies in office. Surely that possibility is addressed in the Michigan Constitution, or in Michigan law. If that's the case is it written so vaguely that it is has to be decided by the court?

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  4. Ron:

    Under the 1963 Constitution, there was no power of appointment. If a judge died, they would have to find a retired judge to fill in until the next election.

    In 1968 the constitution was amended to restore the governor's appointment power. It said that he could appoint a judge who would serve until the next election, when a successor would be elected.

    The problem arises when the successor has already been elected before the judge dies.

    If Judge A loses in November to Mr. B, and then A dies before the end of the year and C is appointed to serve until the next election,
    what will happen when B shows up on January 1 to take the oath of office?

    That's the case where the amendment of 1968 is ambiguous and ends up in court.

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