Tuesday, May 10, 2011

WELCOME BACK

I had not argued a case in the Michigan Supreme Court in more than fifty years.

Everything was different. The Courthouse. The security precautions. The people, of course.

And TV cameras, for heaven’s sake. I had been a voice crying in the wilderness a half century ago, urging television in the courtrooms. Now there it was. And I would be on it.

For folks who have never seen a Supreme Court case argued, take a look at:

http://cst.clickstreamtv.net/mpi/cst.html?account=sbm&clip=050311_msc_54a&flashVersion=10&playlist=05_03_11_msc_54a_judge&realVersion=&route=1&cstSessionID=971282&sessionID=M20110510128871BE0F4&server=&speedZone=300&wmpVersion=9&referenceID=&emailCampaignID=&recipientID=&fileID=

Despite my years on the bench, I confess that I was nervous. Chief Justice Bob Young graciously greeted me with “Welcome back.” I was so up tight, I didn’t thank him.

Bad start.

Afterwards, a generous email from an old friend gave me occasion to size up the experience. I told him I was having “litigation remorse.” I should have said this. I should have said that. Why didn’t I think of this? Why didn’t I think of that?

He reminded me that the best jury speeches are addressed to the ceiling of a lawyer’s bedroom on the night after the trial.

Still, mulling over the questions asked by the justices, I can’t help but think that some of them simply didn’t understand the gist of my argument.

Chief Justice Young, for example, asked if I was claiming that the Court could not remove an imposter.

I wish I had answered by pointing out that an imposter is not a judge, and that removing an imposter is not removing a judge.

Suppose, for example, that a judge goes on vacation, and while he is away, his jealous, identical twin brother, dons the robe and starts holding court. The imposter can’t make enforceable decisions. Can’t legally put people in jail. Anyone can challenge him. You don’t need a Quo Warranto action. And when you take the gavel away from him, you are not removing a judge, you are exposing an imposter.

Justice Marilyn Kelly put the case that someone other than Judge Krause might have won the District Court election in November 2010. If Judge Clarke tried to stay on the job after January 1, couldn’t the Court remove him and install the newly elected judge?

I wish I had responded by telling her that when I was Chief Justice there was a judge who kept coming to the office after he lost the election. I told him to clean out his desk and go home. It’s not rocket science. You don’t need a court order to remove somebody from an office they no longer hold.

Justice Zahra wondered what would happen if the new Governor had also appointed someone to the job. Would the Court then have the power to remove Judge Clarke?

Again, I wish I had answered that there is only one judgeship at issue. If there are two claimants, one of them is a judge and the other is not a judge. You can’t remove the judge because the constitution forbids it, and you can’t remove the other claimant because he doesn’t occupy an office from which to be removed.

I did try to remind the Court that even the Attorney general agrees that Hugh Clarke is a sitting District Judge. But I should have pointed out that their own Court Administrator lists Clarke as a judge, monitors his workload, and keeps his judicial statistics.

Arguing the case for the umpteenth time to my bedroom ceiling, I can hear myself asking the justices the crucial question, If the words,’The Supreme Court shall not have the power to remove a judge’do not mean that you can’t remove a judge, what exactly do they mean?

The ceiling doesn’t answer. Maybe the Supreme Court of Michigan will.

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