A Judge's Journal: Part IV

Editor's Note: This is Part IX in Thomas Brennan's account of a turbulent time on the Michigan Supreme Court. The final chapter will appear in Thursday's edition. Hitting the Road Cooler heads would surely have deemed my effort a fool's mission. Truthfully, I did not really expect to be able to persuade the Supreme Court to do yet another turnaround and seat Dorothy Riley. Even Chuck Levin, perhaps especially Chuck Levin, would not be inclined to revisit the decision to oust Dorothy. But at this point that did not matter so much as the damage the court had done to itself because of its departure from proper procedure. It was perhaps overly sanguine, but I really thought that getting the court to revisit their decision and do it over again, even if it meant the same result, was within the realm of possibility. In any case, the bizarre process would be, or ought to be of great interest to law students. So I arranged to meet with students at all five of the law schools in Michigan. At each school, I invited the media to attend. In order to emphasize the remarkable failure of all the lawyers in the case to consider Article 6, Section 4 of the state constitution, I had lapel stickers printed that announced in large bold letters, "THE SUPREME COURT DOES NOT HAVE THE POWER TO REMOVE A JUDGE." A few of the students did try to challenge me. Their primary argument was based on the same thought process displayed by the news media. If all those high priced lawyers and all those esteemed judges didn't think the constitution prohibited the court from removing Justice Riley, how could I say otherwise? I, of course, returned the challenge. If the words don't mean what they say, what do they mean? The tour of law schools ended at Thomas M. Cooley Law School in Lansing. I billed it as a debate between myself and my old friend Frank Kelley, who, incidentally, was a parttime member of the Cooley faculty. Frank declined to show up. I knew he would. I had the maintenance staff dig up a Styrofoam bust from the store room and I topped it with a grey British solicitor's wig and set it on the speakers table next to me. Using my most resonant stentorian voice, I played the role of Frank Kelley trying to answer my questions. The faculty, students, newsmen and TV folk enjoyed the show. How many people came to share my indignation over the Supreme Court's lapse of propriety is questionable. Admittedly, I was getting publicity. But it troubled me that the news stories used phrases like, "Brennan, who was a Republican candidate for Lieutenant Governor, claims that the constitution prohibits the court from removing a judge." The implication, of course, was that I was motivated by partisanship. Also, that what the constitution actually said was subject to differences of opinion. I turned my attention to the State Bar of Michigan. At the time, I was a member of the governing Board of Commissioners. I raised the issue with the Board and asked the bar to pass a resolution urging the Court to revisit the Riley case. Only 15 of the 26 commissioners showed up for the meeting. Nine of them voted against taking any action. The dominant argument against my motion was that criticizing the Court would do no good. They had done what they had done, and weren't about to back down. On February 23, I wrote a letter to the justices, in which I urged them to reopen the case and consider Article 6 Section 4. The clerk replied promptly, advising me that the case was, or might be still pending, and that the justices would not accept any communication from me. An Ancient Writ Somewhere in the dark recesses of my mind I had the notion that there is some kind of a writ that would permit a stranger like me to butt into someone else's lawsuit. A little digging in the law library yielded the writ of Coram Nobis. It's an ancient common law writ used to correct a fundamental error or miscarriage of justice. I thought it fit the Riley case. I prepared an application for a writ of Coram Nobis and filed it in the Supreme Court. Then I called a news conference. No doubt the reporters thought I was playing the part of Don Quixote, tilting at windmills, chasing the impossible dream. One of them finally posed the question. What did I think the Court would do with my request? Did I think they would listen to me? What did I plan to do next? I told them that I had asked for a chance to address the Court, and I expected to do so at the next scheduled session of the Court, which would be on March 8th. And if the Court didn't permit me to speak, what would I do then? That question gave me a chance to utter a usable sound bite. "My portrait is hanging in the courtroom," I said. "I'll probably just sit under it until they call on me." Actually, it never came to that. George Bushnell, representing the State Bar of Michigan, was scheduled to argue the first case on March 8, 1983. When Soapy gaveled the Court into session, George stood and asked the court to permit him to yield to me. They did, and he did, and I had my say. I began by recounting my exchange of letters with the court clerk, in which I was admonished to avoid personal contact with members of the Court. I HAVE OBSERVED THOSE REGULATIONS, IF IT PLEASE THE COURT, AND THE JUSTICES HAVE OBSERVED THEM AS WELL. WE HAVE EVEN AVOIDED THOSE SOCIAL CONTACTS WHICH OUR LONG FRIENDSHIPS - AND I COUNT EACH OF YOU AS MY FRIEND - WOULD OTHERWISE HAVE OCCASIONED, OUT OF CONCERN TO AVOID EVEN THE APPEARANCE OF IMPROPRIETY. I AM HERE THIS MORNING, IN KEEPING WITH THAT OBJECTIVE, TO PROVIDE AN OPPORTUNITY FOR PROPER, PUBLIC DIALOG ON THE PROPOSITION WHICH I ADVANCED IN MY LETTER. ARTICLE 6, SECTION 4 OF THE CONSTITUTION STATES: "THE SUPREME COURT SHALL NOT HAVE THE POWER TO REMOVE A JUDGE." IT IS MY PROPOSITION THAT SECTION 4 IS UNQUESTIONABLY CONTROLLING IN THIS CASE. THERE IS NO QUESTION THAT JUSTICE RILEY WAS A JUDGE. THERE IS NO QUESTION THAT THIS COURT PURPORTED TO REMOVE HER. THE PLAIN AND UNAMBIGUOUS MEANING OF SECTION 4 IS SUPPORTED BY THE CONSTITUTIONAL CONVENTION'S ADDRESS TO THE PEOPLE, WHICH STATES THAT THE COURT "*** IS DENIED THE POWER TO REMOVE A JUDGE." Then I told the court that I could not imagine any theory or explanation which might weaken or carve out an exception to that plain and simple denial of authority, and concluded by saying, BUT IF ARICLE 6, SECTION 4 IS TO BE EXPLAINED AWAY, IF THE COURT PLEASE, IT DESERVES A DECENT BURIAL, AND I RESPECTFULLY SUGGEST THAT IF THIS COURT IS GOING TO REMOVE A JUDGE CONTRARY TO THE APPARENT EXPRESS PROHIBITION OF THE CONSTITUTION, IT OWES THE PROFESSION AND THE PUBLIC THE DUTY TO STATE ITS REASONS IN WRITING AND ON THE RECORD. Soapy stared at me in silence. Like a 700-pound gorilla. Published: Tue, Apr 5, 2011