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.