A JUDGE'S JOURNAL: Turbulent time at the Michigan Supreme Court, Part IV

Editor's Note: This is Part IV in Thomas Brennan's account of a turbulent time on the Michigan Supreme Court. Brennan's ongoing series runs every Tuesday and Thursday in the Detroit Legal News. A New Chief Excluding family, Jim Ryan is my oldest and dearest friend on the planet. As a college boy in the 1950s, he used to come to our house on Sunday nights to sustain himself on Polly's meatloaf and while away the hours afterward discussing life, love, marriage and the law. When he came home from the navy, he joined our bootstrap law firm. After I went on the Common Pleas Court Bench, he was elected Justice of the Peace. I became a Circuit Judge. He became a Circuit Judge. I went on the Supreme Court. He went on the Supreme Court. I started a law school. He joined the Board of Directors and started teaching. It has been my privilege to introduce him and eulogize on a number of occasions, and he has often returned the favor. So I suppose it was only natural that in January of 1983, he agreed to be a candidate for Chief Justice. The court met in the old Lafayette Building in downtown Detroit. It was only days after Dorothy Riley had been excluded from discussion about her status. Ryan's effort was hardly an example of political skill. Jim Brickley, an old friend and fellow Republican, would make the nomination. Dorothy Riley would add her support. A fourth vote would have to come from somewhere. Chuck Levin? The nominal independent who had supported Mary Coleman and John Fitzgerald in 1982? Was he really opposed to Soapy? Giles Kavanagh? Though they were fellow Democrats, there was no love lost between him and Soapy. And he had also been party to the uprising that put Mary in the center chair. Whatever scenario Ryan had hoped to see unfold on that January morning in the old Lafayette Building, he was quickly disabused of it when the issue was raised about Dorothy's competence to participate in the election of the Chief Justice. Once again, and with sugar coated condescension, it was suggested that it might not "look good" if Justice Riley participated in view of the attorney general's lawsuit. When a majority chased her from the room, humiliated, Ryan knew he would have no chance to be the next Chief Justice. After the vote was taken and Soapy had been elected by a vote of four to two, Giles Kavanagh, always a cheerleader for collegiality, suggested that, for the record, the vote should be made unanimous. Ryan said no. After the conference Jim Brickley pulled Ryan aside. "We're going to have to learn how to count better," he offered with a smile. Ryan thanked him for supporting a losing cause. A lesson had been learned. In the Michigan Supreme Court the name of the game is "four votes." It was just another instance of the rampant partisanship that infected the court. Now it would be a six-member court for as long as it took to decide the attorney general's challenge to Dorothy. Soapy had his court. He was the leader. He was the boss. But at what cost? Years later, recording an oral history of the court, Jim Ryan reflected on those days. "Dorothy was deeply hurt and she was sure we were wrong, and I was sure we were wrong, and we, with that stroke, went a long way toward destroying the superb relations that the members of the Court had one to the other over the whole of the years I was there." The Battle Begins The Capitol press corps were all there, crowded into the lobby outside the courtroom on the third floor of the Law Building. Even the TV crews. There would be no cameras allowed in the courtroom, but they were hoping to catch the lawyers on the way in or out. Get a sound bite. Get something. It was a Saturday morning. Nobody remembered the Supreme Court conducting a hearing on a Saturday. Ever. But this was different. The attorney general was trying to oust one of the justices of the court. The Democrat attorney general. A justice appointed by a Republican governor. It was political. It was juicy. And besides, it was Saturday, and nothing else was going on. It had been only five days since the A.G. had filed his lawsuit in the Court of Appeals. When he did, he asked that the matter be immediately transferred to the Supreme Court. Whether to by pass the lower court; that was the only issue. Louis J. Caruso, the state solicitor general, argued on behalf of Frank Kelley. An experienced and knowledgeable appellate advocate, Caruso made a solid legal argument, showing how the case met all the requirements for granting by pass specified in the Court Rules. His main thrust was simple. This case will come to this court for final decision anyway. Let's not drag it out. It's not in the public interest. Dorothy's lawyer, Fred Buesser, on the other hand, was a fish out of water. A prominent divorce lawyer, Buesser appeared as counsel in every celebrated marital break up in southeastern Michigan. But those things rarely got to the Supreme Court. Fred's forte was negotiation, not advocacy. He stumbled, he hemmed and hawed. He rambled. And he really stepped in the goo-goo when he suggested that the court itself was responsible for creating an atmosphere of public crisis, which, he insisted was entirely artificial and unnecessary. No doubt Buesser's approach reflected what Dorothy and Wally Riley had expected would be the case; that her colleagues on the court would be inclined to defend her, to give her the benefit of the doubt. Mike Cavanagh had been her colleague on the Court of Appeals. Giles Kavanagh and Chuck Levin were also alumni of that court, where there was a great sense of fellowship and fraternity. In its nearly 20-year history, no incumbent Court of Appeals judge had ever been defeated. Party labels were unimportant there. They were all elected as non-partisans, and tended to think and act that way. But if Dorothy herself was naïve, her lawyer didn't have a clue. He belabored the fact that Dorothy was a member of the court under color of law, such that her participation in the work of the court, though obviously not in her own case, could not be challenged by any of the litigants. Good law, of course, with plenty of precedents to back it up. Finally, he unloaded his best argument. Get a decision in the lower court so that if there is a tie vote in the Supreme Court, the lower court decision will stand. Returning to the podium for rebuttal, Caruso was asked about the possibility of a tie vote. His answer foreshadowed the disaster that awaited the people of Michigan. "I don't know. I just simply hope that it doesn't happen. But it's a problem this Court is going to have to deal with. I have no solution." Part V will appear in Thursday's edition of the DetroitLegal News. ---------- Thomas E. Brennan is a former trial and appellate judge, and youngest chief justice of the Supreme Court in Michigan history. He is the founder of the Thomas M. Cooley Law School, the largest accredited college of law in the United States, formerly serving as its dean and president before retiring. Published: Tue, Mar 8, 2011