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

By Thomas E. Brennan In the Dugout The word dugout is older than baseball. It's basically just a hole in the ground. The most primitive form of shelter known to man. When Harry Kelly wanted to share a confidence, he'd say, "We're talkin' in the dugout here." A colleague of mine on the Michigan Supreme Court and one time governor, Harry was left for dead at the Battle of the Argonne Forest in 1918. Stacked in a temporary battlefield morgue, he managed to move enough to get noticed, and came home with only one leg, but otherwise very much alive. Harry liked to say that the meetings of the Supreme Court in the conference room immediately after hearing oral arguments were "in the dugout." It was a time and place where justices talked to each other off the record. Shared their impressions, preferences, hunches. Nothing was in stone. Nothing was final. Nothing was binding. Still, there were straw votes, and humans being what they are, the gut reactions that got shared in the dugout very often matured into the final, formal opinion of the court. On January 24, 1983, the justices did what they always did in the dugout. Chief Justice Williams went around the table, asking each member of the court to express an opinion about the case of Attorney General v Riley. The split was predictable. The "K" Kavanagh and the "C" Cavanagh both felt the attorney general was right. So did the chief justice. Brickley and Ryan were inclined to go the other way. Which, again predictably, left the matter up to Charles L. Levin. Chuck Levin, the only surviving member of the court on which I served, is a very intelligent man. I remember him as a man who spoke and wrote in very long sentences. No combination of words or ideas was too complex or convoluted to overload his brain or his pen. He was, and remains, a scrupulously gentle and caring human being who shows up at the most inauspicious funerals and sends thoughtful, if not timely, notes of condolence, appreciation or congratulation. That gentility spills over into his decision-making. He never jumps to a conclusion. Indeed, the very notion of a conclusion is nearly anathema to him. He is never happier than when a fork in the road has a multitude of prongs. When it came time for Chuck to express his initial impression of the Riley case, he deferred. It was his usual way. He wanted to hear what the others would say. He wanted to weigh all the factors. And so the discussion continued. But nobody changed their mind. It came back to Levin. As he often did, he began by summarizing the arguments on both sides, noting the strengths and weaknesses of each. Finally, he admitted what he so frequently had to admit. He couldn't make up his mind. That said, he reluctantly deferred to the ancient, logical, and common sense rule of judicial decision-making. The Plaintiff always has the burden of proof and the burden of persuasion. If you make a claim, you have to prove your claim. If you want the court to do something, you have to prove your entitlement. The attorney general hadn't convinced him that Justice Riley should be ousted. And so he said, "I guess I'm with Dorothy." A Time to Write 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: "(T)his 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. (Continued next week in Part VII.) ---------------- 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: Fri, Apr 8, 2011