Turbulent time at the Michigan Supreme Court, Part V

Editor's Note: This is Part V 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.

An Elephant in the Room

Oral arguments in the Riley case were scheduled for Jan. 24, 1983, just two weeks after the court decided to take the case.

That's not a lot of time to do the type of research and write the kind of briefs that a case of that importance demands.

Former Governor Milliken had retained University of Michigan law professor J.J. White to write an Amicus Curiae brief supporting his right to appoint Justice Riley until the next general election, but the main work was to be done by the firm of Buesser and Buesser of Detroit.

The firm consisted of the two sons of Fred Buesser Jr., an old and dear friend of both Wally and Dorothy Riley. Fred had been Wally's campaign manager when he was elected President of the American Bar Association.

He was a good lawyer as were his sons, but their specialty was domestic law, not constitutional law.

I decided to butt in.

I called Fred III. Could they use some help? I wasn't looking for compensated legal work. I was offering to donate my services. I felt strongly about the case.

Fred was gracious, but firm in the position that they had everything under control.

I told him I had done a little preliminary research. I asked him if he planned to argue that the Supreme Court didn't have the power to remove a judge.

Now, after nearly thirty years, I cannot call up the exact words of our conversation, but I distinctly remember that he declined my offer and insisted that they were confident of their argument.

What bothered me was that he seemed willing to concede that the Supreme Court does in fact have the constitutional authority to remove a judge, and that the issues framed by the attorney general were the only issues involved in the case.

Article 6, Section 4 of the Michigan Constitution of 1963 provides:

"The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge."

Article 6, Section 4 is the only place in the constitution which gives the Supreme Court any power. It gives the court three and only three kinds of power. Superintending control. Prerogative and remedial writs. Appellate jurisdiction.

So the constitution, ratified by the people, says to the Supreme Court:

You cannot remove a judge.

You cannot remove a judge when superintending the courts.

You cannot remove a judge with a prerogative or remedial writ.

You cannot remove a judge on appeal.

In short, the people have said to the court, you cannot remove a judge at all. Ever. For any reason. On any theory.

January 24th was marked on the calendars of the Lansing press corps. And the TV news departments. They crowded the courtroom, looking for clues from the arguments of counsel, from the questions of the justices.

I was wondering, too.

What would the attorney general argue? That ouster is not removal? That a justice is not a judge? That Dorothy Riley is not in fact a judge at all?

The debate went on for nearly an hour.

The briefs comprised hundreds of pages.

Nobody mentioned Article 6, Section 4. It was the proverbial elephant in the room. Too big not to be obvious, but somehow ignored by everyone.

I hoped for Dorothy's sake that the elephant wouldn't be needed.

Déjà Vu

When I was chief justice, I was privileged to have a real cracker jack chief of staff by the name of Mike Devine.

I used to call him Q.T. His forte was quick thinking. For every crisis he had a ready answer, almost always the right one.

Mike has gone on to a successful career in the law and in banking. A leukemia survivor who takes each day as a blessing from a gracious Creator, Mike is more than glib. His memory for details is encyclopedic.

He called me the other day to add his own sidebar to the story of Michigan's Second Lady.

It is a convoluted tale, typical of what happens in politics.

In 1969, Wayne County Sheriff Ray Gribbs eked out a narrow victory over Dick Austin, a popular black candidate, to become Mayor of Detroit. But the handwriting was on the wall. In the mayoral election of 1973, Detroit would elect its first black mayor.

Ed Bell was a charismatic black judge with political ambitions. In order to be eligible to run for mayor in 1973, he would have to leave the bench a year ahead of time. So in the spring of 1972, he announced his resignation. Supposedly, he would leave the bench at a point in time when it was too late for his vacant seat on the circuit court to be filled in the 1972 November election.

Which would mean that the governor's appointed judge would serve until after the election of 1974.

Whether by miscalculation or mere happenstance, Judge Bell resigned just a little too early and he created a vacancy when there were still five days left for someone to become a candidate to succeed him in the November 1972 election.

Enter my friend Mike Devine. He and then Circuit Court Judge Jim Ryan were returning from lunch when a happy, noisy crowd of well-dressed citizens emerged from the elevators. They had been in the eleventh floor auditorium where Ed Bell had just announced his campaign for mayor and his resignation from the bench.

That night, Mike called Traffic Court Judge John Kirwan, a former University of Detroit basketball star, and said, "How would you like to be a circuit court judge?"

There were just five days left to garner several thousand signatures on petitions to put Kirwan's name on the ballot. Mike recalls conducting signature-gathering classes for groups of Kelly girls at 7:30 in the morning.

They got the job done, but the secretary of state refused to accept the petitions, relying on a statute which defined the "next election" as one for which the filing date was more than 70 days after the vacancy occurred.

Governor William G. Milliken also relied on the 70-day statutory grace period. He assumed that his appointee would serve until after the 1974 election. His appointee would have two years of service on the bench and would have the benefit of the ballot designation as an incumbent circuit judge, practically assuring election.

Mike thought the 70-day statute was unconstitutional. Article 6, Section 23 said the vacancy was to be filled at the next election. And next means next.

The Michigan Supreme Court agreed, and in August of 1972 it ordered the secretary of state to accept John Kirwan's petitions, and place his name on the ballot.

And so it was that Governor Milliken's appointee, who expected to serve at least two years and to be able to run in 1974 as an incumbent, was left with a dead end six-month interim job.

The disappointed short-term judge was none other than Dorothy Comstock Riley.

Ten years later, her judicial career would once again be on the docket of the Michigan Supreme Court.

Part VI will appear in Tuesday's edition of the Detroit Legal 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: Thu, Mar 10, 2011