Memorable cases-- 'Dissenter' to retire from 6th Circuit Court of Appeals

By John Minnis Legal News Imagine, if you will, a major alternative-energy company wants to locate within the City of Detroit, promising 6,000 jobs directly, and thousands more indirectly. With 28 percent unemployment and huge budget deficits, Mayor Dave Bing and the city council are elated. With metro-area unemployment at 14 percent, Wayne, Oakland and Macomb County leaders back the plan, as do the governor and state lawmakers, who themselves are facing a $1 billion budget deficit. The company, though, wants the city to provide a 500-acre site with adequate road and rail access. The site the company wants is occupied by 6,000 residents, 1,400 homes, 144 businesses, 16 churches, two schools and a hospital. Undaunted, the city proceeds under eminent domain to take the property for the economic "public good." A handful of residents, however, don't want to move, and others distrust the company's promises. They sue the city. The case makes it all the way to the Michigan Supreme Court, where two justices, despite the economic distress facing the city and state and despite near universal support of the plan, dissent. Those courageous justices would be someone like Judge James L. Ryan, soon to retire from the U.S. Court of Appeals, Sixth Circuit. In fact, while on the Michigan Supreme Court, Ryan was one of only two dissenters in Poletown Neighborhood Council v. Detroit. The year was 1981 amid the last "great recession" facing Detroit and Michigan. The company was General Motors, and the property bordered Hamtramck and was known as "Poletown" due to the once concentration of Polish Americans. In a 5-2 decision, with Justice John W. Fitzgerald joining the dissent, the state high court upheld the city's economic taking of the property and deeding it over to a private company, GM, for the "public good." In its per curiam opinion, the court said the public benefits were "clear and significant" and that the private benefits to General Motors were "merely incidental." It was a landmark case, and the court seemed to know it was breaking new ground. "If the public benefit was not so clear and significant," the court said, "we would hesitate to sanction approval of such a project." "There were an awful lot of cases," says Ryan, 77, when asked about his most memorable cases over the years. "The Poletown case gained some national attention, and I wrote the dissenting opinion." Fitzgerald submitted his dissent along with the majority's per curiam opinion. Ryan took another month to gather his thoughts. "Unemployment was very high," Ryan recalls of the time three decades ago. "The City of Detroit condemned hundreds of acres for what was called a public benefit to help resolve high unemployment. The only problem is that homeowners thought it was unconstitutional to virtually give the land to General Motors. The Michigan Constitution says 'public use' not 'benefit.'" Life went on, the plant was built. But 23 years later, Ryan was vindicated when the Michigan Supreme Court "vehemently" reversed itself in County of Wayne v. Hathcock. The 2004 case involved the so-called "Pinnacle Project," an "aeropark" near Metro Airport. That project, too, promised to create thousands of jobs, but the court fell back on Ryan's "public use" argument under the state Constitution. Ryan's moral victory was short-lived, however, when the U.S. Supreme Court upheld an economic-development taking similar to Poletown in Kelo v. City of New London (2005). "They came to the wrong decision," Ryan says of Kelo. "The Supremes were wrong, but they're the Supremes." Incidentally, Ryan recalls an interview he had some years later with WJR's J.P. McCarthy. Looking out from J.P.'s "bird's nest" atop the Fisher Building, Ryan noticed that the vast expanse of parking lots around the Hamtramck Assembly Plant was empty due to robotics and automation. The thousands of jobs Detroit hoped for never developed. "That myth, that hope, turned out to be wrong," Ryan says. "I didn't anticipate that when I wrote my dissent, but it topped off the whole episode." Ryan began his 47-year judicial career as a justice of the peace in Redford Township in 1963. In fact, he served on the very committee that abolished the justice of the peace and replaced it with a district court system. Elected in 1966 to the Wayne County Circuit Court, Ryan served there for nine years before being appointed to the Michigan Supreme Court in 1975 by Gov. William G. Milliken. He served as a justice for 10 years before being appointed by President Ronald Reagan to the U.S. Court of Appeals for the Sixth Circuit. In both appointments, Ryan skipped a grade by first not serving on the state appellate court before becoming a state Supreme Court justice and for jumping to the federal appellate court without having served as a U.S. District Court judge. "I loved it," Ryan says of serving on the Michigan Supreme Court. "I loved every day of it." A 1956 University of Detroit School of Law graduate, Ryan entered the U.S. Navy Officer Candidate School, after which he become a commissioned naval officer and served with the U.S. Marine Corps for three years as a JAG officer. Following his enlistment, he served for another 31 years as a Naval Reserve military judge and retired in 1972 with the rank of captain. Throughout much of his judicial career, Ryan taught evidence, criminal procedure and constitutional law part time. He is proud of his involvement in the creation of the Michigan Judicial Institute, the training division of the State Court Administrative Office of the Michigan Supreme Court. As a result, Ryan has lectured on judicial education programs in 30 states. While Ryan loved serving on the Michigan Supreme Court, he hated running for office. As an appointee, he had to run for office twice within two years. Had he not been appointed to the Sixth Circuit in 1985, it is doubtful Ryan would have submitted to another statewide election in 1986. "I spent seven months of that year (1976) campaigning to save my seat," Ryan recalls. "I thought it was a significant waste of time running to defend my seat when I should have been studying to be a good judge. In 1978, I had to run again instead of sitting in my chambers and reading my briefs and studying." Ryan says the time spent running for re-election is "Exhibit A" in his favoring gubernatorial appointment of Michigan Supreme Court justices. "I didn't always feel that way," he says. "In the place where the court makes policy, the people should decide. When it comes to elections, voters don't have the vaguest idea of the candidate's background, judiciary history. So I'm in favor of some kind of process where an accountable politician appoints the justices." On the Sixth Circuit Court of Appeals, Ryan likes the intellectual challenges. He also appreciates the perks, such as libraries and electronic conferencing that cut down on travel. "It has just been a great privilege," he says of serving on the federal appellate court. Ryan says he thought and prayed much about when he should step down from the bench. He finally decided his "curveball was losing its hum." "Someone 77 years old can't be a sharp as when he was 47 or 37," he says, "and probably should make way for someone whose mental faculties are sharper." Ryan, a widower of three years, is married to his second wife, Loretta Nagle Ryan, also a widow. Together, they have 41 grandchildren all living in Michigan and many involved in Little League and other sports. "That tells you how busy I'll be," he says. "I just want to serve our big, blended family as much as I can. " Other than spending time with his grandkids, Ryan has no other plans for retirement. "I'd like to say I'm going to write a book," he says, "but I know myself and I know it'll never get done." In the meantime, Judge Ryan has until Sept. 3 to write his last three opinions, one of which is a dissent, of course. "I write a lot of dissents," he admits. "It's not unusual." Published: Tue, Jul 6, 2010

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