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.

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