- Posted April 22, 2011
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A JUDGE'S JOURNAL: Turbulent time at the Michigan Supreme Court, Part VIII
By Thomas E. Brennan
Completely Alone
Justice Dorothy Comstock Riley treated her law clerk, Brian McKeen, to dinner at Robert's, a campy underground bistro in East Lansing.
It had been an interesting day, her first back in action since the dreadful challenge to her appointment had been mounted by Frank Kelley.
It was a celebration. Dorothy was assured that her relations with members of the court would be collegial and friendly.
Even Soapy, whom they suspected had connived to remove her even before Frank Kelley filed his lawsuit, had come around. On Friday afternoon he had walked into her office and offered his congratulations. He was very gracious. His gesture was particularly meaningful and appreciated by Dorothy.
The war was over.
It was time to celebrate.
Sometime around seven o'clock, they returned to the Capital Park Hotel. It was raining. Brian dropped the justice off at the front door, then went on to park the car.
As Dorothy entered the lobby, she recognized a familiar face.
It was Harold Hoag, the Clerk of the Supreme Court, walking toward her. She instantly sensed that something was amiss. He handed her a piece of paper and said, "Mrs. Riley, I have an order for you." Then he turned and walked out of the building.
She unfolded the document, an eight and half by eleven standard letter size page.
At the top was the title of the case of Kelley v Riley.
She read the words slowly, in stunned disbelief.
"Upon reconsideration on the Court's own motion, there now being four justices who vote for ouster, the order of February 11, 1983 in this cause is vacated. This cause having been brought to this Court by complaint for quo warranto and due deliberation having been had of the complaint and the of the briefs and oral arguments of the parties, it is hereby ordered and adjudged that defendant Dorothy Comstock Riley, has, since the first day of January, 1983, claimed to exercise the office of Justice of the Supreme Court, and whereas, upon full consideration we find that claim from that date to be without authority, it is ordered that the said defendant, Dorothy Comstock Riley, is hereby ousted and excluded from the office of Justice of the Supreme Court."
She was still standing there, paralyzed by shock, when Brian came into the lobby.
Shoving the document into her purse, she gave her clerk a strained smile.
"Pack your bag, Brian." She said it in a low but firm voice. "We're checking out."
The 97-mile ride down Interstate 96 to Grosse Pointe was mostly silent, with sporadic bursts of commentary, mostly by Brian.
How could they do this? How could men, sworn to uphold the constitution, so blatantly and crassly violate their oaths of office?
The Federal Courts would not let this happen. His boss had not been given even the merest modicum of due process.
She had been fired. He would lose his job as well. They had been on the payroll for six weeks of 1983. Would they be expected to return their salaries?
It had been an emotional roller coaster of a day. Excitement and anticipation in the morning. Celebration at supper. Then darkness and devastation.
They arrived at 86 Lothrup. Home again. Early. Unexpectedly. And broken hearted.
Brian carried her bags inside, and said good night.
And then Dorothy was alone. Her son, Peter, was staying with his grandmother. Wally was in New Orleans.
If she shed a tear, nobody saw it.
Explaining the Inexplicable
The media were all over it. Headlines blared the news that the Supreme Court had reversed its decision and ousted Dorothy Riley.
The court's sudden about face was the handle that gave the story legs. To the average person, Supreme Court decisions are sacrosanct. Once the Supreme Court has spoken, the matter, any matter, is done. Over. Finished.
The idea that the justices might be able to take a mulligan doesn't sit well with most folks.
Especially when the division of votes on the court follows party affiliation, the picture of a court counting and recounting noses confirms the suspicion of the public that court decisions are not really based on law, but are simply expressions of the political choices of the justices.
The Riley ouster fermented lots of editorial comment about the need somehow to get the Supreme Court out of politics. It's an old theme that rises up and ebbs like a predictable tide of public opinion.
Of course the immediate focus was on Chuck Levin. The enigmatic justice had created a firestorm with his change of heart. The media demanded an explanation. Reluctantly, Levin agreed to a news conference.
Press relations were not Levin's forte. Getting a sound bite from him was like trying to distill a doctoral thesis on atomic particles down to a headline.
He answered every question with a long, complicated dissertation.
His first opinion wasn't really intended to support Riley. It just said that he didn't want to do anything. He still couldn't decide which governor should be able to make the appointment.
In fact, he didn't think the court should be deciding the matter. He could see no reason why the new governor, Jim Blanchard, couldn't have appointed somebody to the court also. The court had operated with eight members for many years, it could do so again, at least until the next election.
When the fog and the obfuscation settled, what emerged in the papers was the simple fact that Levin had changed his mind. No one will ever know why. Maybe not even Levin himself.
There were rumors that some Democratic Party operatives figuratively camped out at Levin's home over the weekend. If so, and if he had decided to vote to oust her, he would have been sitting across the table at the conference that Tuesday harboring the knowledge of what he had decided to do.
Or, as it has been suggested, was there something that happened that day, something she said, some way she voted, that triggered his decision?
Whatever the scenario, it was a fait accompli.
As I read the press reports, my blood began to boil.
Being a former chief justice of the Supreme Court of Michigan meant a lot to me. It was the defining achievement of my career. Whatever demeaned the court diminished me, as it besmirched the reputations of my friends and embarrassed the institution we all had served.
I tried to reach Dorothy, but she declined to talk to me. I spoke to Wally. He thanked me for my interest, but he made it clear that Dorothy was not going to take the matter to the federal courts. She felt the work of the court had already been unduly interrupted. Continuing to embroil the court in internal conflict was not good for the court and not good for Michigan.
I remembered what old Gene Black had said when I was on the court. I protested something that was proposed, saying, "We can't do that. We have no authority to do it."
His reply stuck with me. "If we do it, who shall gainsay us?" It came to be known as the seven hundred pound gorilla rule.
The notion that a majority of the court can do whatever they want to do is absolutely anathema to me. It denies the rule of law.
I could not let it stand without a challenge.
(Continued next week in Part IX.)
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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.
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