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.”

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