A Judge's Journal ...

Turbulent time at the Michigan Supreme Court, Part III

By Thomas E. Brennan

Kelley’s Theory
I always liked Frank Kelley.

We were both hotshot young Irish lawyers in Detroit more than half a century ago. Frank loved to preside at the middle table in Jacoby’s Bar across from the Wayne County
Building during the morning coffee hour.

His quick wit and disarming smile always assured him an attentive audience, and the more they listened, the more he talked.
1961 was a good year for both of us.

I was elected judge of the Common Pleas Court of Detroit. He was appointed Attorney General of Michigan by Governor John B. Swainson.

Frank lasted a lot longer than I did as a public servant.

When he retired in 1998, he was the longest serving Attorney General in the United States. Ever.

Frank Kelley was, and at age 86, still is a damn good lawyer. But he is a better politician. Always was. You don’t get elected 10 times with both Republican and Democratic governors unless you know how to play the game.

And Frank knows how.

Somehow the Attorney General’s office came to be interested in the presence of Dorothy Comstock Riley on the Supreme Court. Whether it had anything to do with the research that found its way to the wastebasket outside of Soapy’s offices, no one will ever really know.

Call me naïve, but I never infer impropriety with respect to the actions or decisions of public officials. I assume, as I think all citizens should, that elected officials do what they do because they perceive it to be their duty.

Whether their perception of duty is accurate or not is always a matter fairly to be debated, but their motives are not relevant.

I have no doubt that the genesis of the lawsuit was political. On the face of it, the letter of appointment from Governor Milliken was in standard form. It was cast in the language of Section 23, Article 6 of the state constitution. It told Dorothy Riley that she was appointed to serve until after a successor to Justice Moody was elected in November of 1984.

There was an old case on the books in which the court refused to oust an appointed judge in a similar situation.

You had to go looking in the law library to find a basis to challenge Justice Riley.

Certainly the Attorney General was as dismayed as Justice Williams over the fact that Governor Milliken was making lame duck appointments to the bench. Kelley had lived with the Republican in the Governor’s mansion for 15 years. He must have been ecstatic to anticipate working with fellow Democrat Jim Blanchard.

The first linchpin of Kelley’s theory came from a “what if” scenario. What if John Fitzgerald had died instead of Blair Moody?

In the November election, Michael Cavanagh was elected to succeed Fitzgerald. He was waiting for January first to be sworn in. Certainly the constitution wouldn’t deprive him of the office just because his predecessor died.

Ergo, the constitution doesn’t always mean what it says.

Or, what if Mike Cavanagh had died?

Would John Fitzgerald have continued to be a Justice of the Supreme Court until after the next election? Fitz hadn’t resigned. He just didn’t run for reelection.

The Attorney General’s research staff dug deeper. The constitution says that Supreme Court justices serve for an eight-year term. Period. They are not authorized to hold over until a successor is elected.

So Fitzgerald could not have stayed on after his eight-year term was over. And neither, Frank Kelley argued, could Dorothy Comstock Riley.

A Gentle Tiger   
It is not widely known, but the second woman to serve on the Michigan Supreme Court was also the first Hispanic.

Josephine Grima was born in a suburb of Mexico City. She studied nursing at the University of Indiana and found work as a nurse at the veteran’s hospital in Battle Creek, Michigan.

There she met Charles Comstock who had returned from service in World War I.

They married, moved to Detroit and on December 6, 1924 became the parents of little Dorothy.

She was a pretty, petite package, and stayed that way all her life.

The very definition of diminutive, she stood barely taller than five feet and didn’t weigh 100 pounds in her overcoat.

Attractive and popular, she was elected homecoming queen at Wayne State University before going on to law school there.

When she graduated in 1949, she was a rarity. The only females in law firms were the secretaries. Undaunted, she opened her own law office, and made it work.

She met and married Wallace D. Riley, a mountain of grace and girth, himself an accomplished member of the bar, who was elected president of the State Bar of  Michigan and eventually president of the American Bar Association.

Dorothy began her public service as an assistant Wayne County Friend of the Court. From there, she became a Circuit Judge, then a judge of the Michigan Court of Appeals.
Soft spoken and unassuming, she nevertheless harbored a will of steel and the tenacity of a tiger.

New Year’s Day in 1983 was on a Saturday.

She spent several hours at her office over the weekend, preparing for the January term of court. She had studied all the cases on the docket. She had read the briefs. She would be ready to hear the arguments of counsel. To ask probing questions. To seek truth and justice in every case.

Still, there was this uneasiness. The sense of foreboding.

She wouldn’t have long to wait.

By daybreak on Monday, her phone was ringing. The press wanted to have her reaction to the suit filed by the Attorney General to remove her from the Supreme Court.

In typically demur fashion, she declined to comment. She knew nothing of the suit, hadn’t seen it. But don’t bother to call again. She would not comment on this or any other pending litigation.

By early afternoon, Harold Hoag, the efficient ex-Navy officer who served the court as its chief clerk, called. He was arranging a telephone conference of the justices. To deal with the crisis. To talk about her. The very thought of it sent chills down her spine, and prompted a nauseous taste under her tongue.

Soon, too soon, they were all on the phone. Her colleagues. Her co-workers. Jim Ryan. Jim Brickley, Mike Cavanagh, Chuck Levin, Tom Kavanagh, Soapy Williams.

And they were talking about her.

She was no longer a colleague. She was a case. She had resigned a secure position on the Court of Appeals to come to the Supreme Court. She loved being an appellate judge. She was good at it. And respected by bench and bar.

Now she was just another defendant.

Someone suggested she ought not to be sitting in on a discussion of the Attorney General’s lawsuit. It didn’t look good.

She hung up the phone. A woman would be entitled to cry. Not Dorothy.

(Continued in Part IV next week.)

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.