A Judge's Journal Thomas E. Brennan-- Turbulent times at the Michigan Supreme Court, Part III

Picking the Chief

In January of every odd numbered year, the justices of the Michigan Supreme Court elect a chief justice.

That's because in November of the even numbered years one or two of the justices are up for election, and if the court personnel changes, there just might be a new leader.

It wasn't always that way. For about a hundred years prior to 1956 the justices rotated the job.

Chuck Levin often suggested that they go back to the old way. You can't blame him. As the only real independent on the court, rotation was about the only way he would ever get to sit in the center chair.

From 1971 until 1975, Justice Thomas M. Kavanagh was the chief. We used to call him ''Thomas the Mighty.'' In January of 1975, he was succeeded by his namesake, Thomas Giles Kavanagh, ''Thomas the Good.''

By 1977, the political complexion of the court had changed. Now there were three Republicans, three Democrats, and Levin. Giles Kavanagh was re-elected chief justice.

Soapy was still waiting. Blair Moody Jr. was solidly in his corner. His father had been appointed United States Senator by then Governor Williams.

Then came the rebellion of 1979.

Kavanagh decided to step aside as chief justice, but not in favor of Soapy. He and Chuck Levin jumped ship to install Mary Stallings Coleman. The first woman elected to the court now became the first woman to be chosen chief justice by her colleagues.

As liberal as Soapy was, and as committed to women's rights, Coleman was still junior to him. And he wasn't invited to the restaurant where the decision was made.

So he waited.

In November of 1982, when Democratic nominee Michael Francis Cavanagh was elected, to succeed Republican John Fitzgerald, Soapy could count four votes, even without Justice Levin.

Now it would be Soapy's turn to lead. The middle chair would be his. He had earned it. He deserved it. He wanted it.

And this time, he would have it.

Being chief was important to him. Twelve years in the governor's mansion gave him unique experience as an executive. He knew how to get things done, how to manage people, how to inspire them, how to use them.

The state provided each justice with a law clerk. Soapy wasn't satisfied. He hired two more clerks with his own money. He would hold meetings, delegate tasks, synthesize their efforts.

His opinions had the ring of executive white papers. He would argue with eloquence what he believed to be the right thing to do. If the precedents didn't easily line up with his view of justice, he marshaled his considerable intellectual powers and the help of his staff to get where he wanted to go.

Then the unthinkable happened.

On the day after Thanksgiving, after celebrating and giving thanks with his wife and five children, Blair Moody died.

On December 9, 1982, Republican Governor William Milliken appointed Dorothy Comstock Riley, who had lost by a quarter of one percent of the vote to Mike Cavanagh two weeks before, to fill the Moody vacancy.

Musical Chairs

In December 1982 the Supreme Court of Michigan was in a state of flux. The seats were being emptied and filled like a children's party game. But without the music.

John Fitzgerald, son of Depression era Governor Frank Fitzgerald, was appointed in 1974 and elected to a full eight-year term that autumn.

A scholarly gentleman and a popular teacher, John was instrumental in the organization of the Thomas M. Cooley Law School and very much enjoyed the interchange with students.

So he decided not to run for re-election in 1982. In December, he was living out the last days of his term.

Mary Coleman unexpectedly announced her retirement after serving only two years of an eight-year term.

Despite the pleas of some around the table, she decided to resign effective December 27 so that outgoing Republican Governor Bill Milliken could appoint her replacement.

She did and he did, sending his lieutenant governor, one time president of Eastern Michigan University, James H. Brickley to the court.

Four days later, newly elected Justice Michael Cavanagh would be sworn in. And of course, there was Blair Moody's replacement, Dorothy Comstock Riley.

The count was back to three against three. And Levin.

For a veteran of the political wars like G. Mennen Williams, the world had turned upside down. Blair Moody had been elected in a landslide. His seat belonged to the Democrats. Dorothy Riley had been specifically rejected by the voters in the same election.

The people had just elected a Democratic governor. To Soapy, that meant that the people wanted a Democrat to be making judicial appointments. Milliken was finished, living out the last days of his term. He had no mandate. He had no business making last-minute appointments that would determine the course of the Supreme Court for years to come.

It wasn't right. And Soapy knew right from wrong.

So would Frank Kelley.

Frank had been the state's chief law enforcement officer for so long he was known as the ''Eternal General of Michigan.''

A Democrat down to his socks, Kelley would surely agree that the Riley appointment didn't pass the smell test.

Of course, he would have to admit that the warrant of appointment from Governor Milliken said Riley was to serve until January 1, 1985, after a successor to Justice Moody was elected in 1984.

That's what the letter said. And that's what the constitution said.

''...until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs...''

But words in a constitution are sometimes ambiguous. Sometimes they need explaining by smart lawyers and top-notch law clerks.

In those days, the Supreme Court maintained a suite of offices in the Lafayette Building in downtown Detroit. Soapy had an office there. That's where they put Dorothy Riley.

Around Christmas time, Dorothy told her husband that her clerk had found some interesting things in the wastebasket next to the copy machine.

Draft copies of a brief arguing for her removal from the court.

They were going to try to get her off of the court.

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 31, 2011