Interview with John Warner Fitzgerald
Interview conducted by Roger F. Lane
October 8, 1990
1. Joining the Supreme Court and leaving the Court of
Now, the tape has started and the listener should know that
we're focusing on Justice John Warner Fitzgerald who served on the Supreme
Court from 1974 through 1982, is that correct?
Well, 1982, yes. At that time, the term expired in January 1 at
12:00 p.m., so you can say 1983, I guess. They changed that subsequently.
We're sitting in Justice Fitzgerald's office in the Cooley Law
School where he is now a professor. The introducer is Roger Lane representing
the Michigan Supreme Court Historical Society, and we propose to just ramble a
little bit and reminisce and get as much of Justice Fitzgerald's recollections
about his judicial service and his family background as time will permit. I
thought I would start the conversation by asking Justice Fitzgerald to explain
how it was that he ever first thought of sitting on the Supreme Court of
Michigan and just what were the circumstances.
First sitting on the Supreme Court of Michigan, I suppose every
lawyer thinks at some time that he would like to sit on the Supreme Court, but
I don't know that the idea ever really occurred to me in concrete or absolute
terms. The first time that it arose that I saw that there might be an
opportunity to sit on the Supreme Court, there might be a chance that I might,
came about in 1973 when then Justice Brennan retired or resigned from the
Supreme Court so he could spend all his time at Cooley Law School. I was on the
Court of Appeals at that time, and this created a vacancy on the Supreme Court
for a one year period. He resigned as of December 31, 1972 so there was going
to be that one year of 1973. I was appointed in 1973, but our constitution
requires that anybody who is appointed to a court run at the next election, so
that's always a consideration. Well, I was on the Court of Appeals and I was on
the original Court of Appeals, and I had been elected to a ten year term. They
had done this to stagger. They had ten year terms, eight year terms and six
That was in what year?
I was elected to the Court of Appeals in 1965. And so I had one
more year to go on my Court of Appeals term, and the consideration then comes
up do I want to give an indication that I am interested in the appointment for
this one remaining year of Justice Brennan's term which would mean I would have
to resign from the Court of Appeals and then also run for the Supreme Court the
next election which would be in 1974. So that was of some concern, of course, I
would have had to run for the Court of Appeals also, but the Court of Appeals,
being a new organization, the tenure there is considerably less volatile than
it had been on the Supreme Court because there had been justices who had been
on the Supreme Court and had been defeated for re-election. Otis Smith,...
May I interrupt at this point?
Has there ever been a sitting Court of Appeals judge?
Not to my knowledge, no. I don't think so, no sitting Court of
Appeals judge has ever been defeated.
That speaks to the difference in the selection process, does it
I think it does. I'm trying to think of the other...Mike...
Mike O'Hara had been defeated and running for re-election on
the Supreme Court, so the job obviously was a little more...re-election was a
little more volatile than it was on the Court of Appeals, but I kind of looked
at it from the standpoint that if I were ever to be on the Supreme Court, this
was the time to do it, and this was probably the mode in which to do it because
to run would have meant that I wouldn't be running for the Court of Appeals and
I would only be running for the Supreme Court and if you lost, you lost.
However, of course, this was sort of the situation with the
Supreme Court appointment, so I indicated to the governor, then Governor
Milliken, that I was interested in appointment to the Supreme Court and
considerable time went on...I think about a three month period in which there
were others interested in appointment to the Supreme Court, not the least of
which was Tim Quinn, who was also on the Court of Appeals, and there were
others. Well, I ultimately heard from the governor asking me if I would accept
an appointment to the Supreme Court and on November 14, 1973, I was appointed
to the Supreme Court. I said yes, I would, and I was appointed to the Supreme
When did Justice Brennan leave?
He left as of...
The same day?
No, he left as of the first of August, I believe it was, that
year, and then he didn't leave until the end of 1972. He said, on August 1st,
"I am resigning, but I am going to finish out the year to December 31st", so I
was appointed in November, but my term would not start until December 31 or
January. I am looking at my certificate of appointment dated the first day of
January, actually 1974 was when I...he stayed on through 1973, and I went in on
January 1, 1974, but it had been announced in November that I was to be
appointed to the Supreme Court. Well, that of course, necessitated running in
November, 1974 which I went into with my eyes wide open, I knew this, and it
was a kind of a volatile time because not only was I getting acquainted with a
new job on the Supreme Court but also having to start to think about running in
a state-wide election in November.
It was very...it was a tough time because the procedures on the
Supreme Court as far as hearing the cases and getting reports from
commissioners was totally different from the Court of Appeals, so I was not
only learning the job but also getting into the whole concept of keeping the
job. Well, passing over that made for a very difficult nine or ten months
there, and I then ran again in November of 1974 in the general election and was
then elected for an eight-year term, a full term on the Supreme Court, so in
effect, I had nine years on the Court of Appeals, quit one year short of my
term ending, and then as it turned out, I had a grand total of nine years on
the Supreme Court, one year of Brennan's term and eight years to which I was
elected, so that added up to the fact that I had nine years on both courts.
From day one, had you made up your mind that you would run in
Oh, yes. No question about that. That was...it was not said as
a condition, "Would you take the appointment and also run?", I think that was
just inherent that anybody appointed for that one year period would also run
This would be a non-spoken position of the appointment, would
it not, from the governor's standpoint.
Totally unspoken. No word was ever mentioned, "would you take a
one year appointment and also run when you need to?". That was never mentioned
at all, and I think that anybody who took the appointment would just expect
they were going to run as I did.
Sooner or later, I think I would like to ask about the
political tenor of events and to get your thoughts on that subject. Now whether
you would care to go into the atmosphere that you entered when you took your
seat on the court and how you responded to the problems of the campaign -
whether this is the time for that...I think people would be interested in
knowing that. We've talked about the Court of Appeals where people are almost
never defeated and where the atmosphere, is it not, extremely different.
The atmosphere is totally different on the Court of Appeals.
You never see in the media a Court of Appeals judge identified as a Republican
or as a Democrat. As you know, it is very common in media accounts to say that
the Supreme Court is composed of "x" number of Republicans and "x" number of
Democrats. It's just...well, I think in some respects, it's a canard that is
hung on the Supreme Court, and it is never hung on the Court of Appeals judges
for the difference in the selection process - to get on the Court of Appeals,
you have to file petitions, non-partisan petitions, and then run and the
election is totally non-partisan. Supreme Court, you've got to take a
nomination of a political party which does sort of put a mantle on you.
Now, there is also the provision that if you are an incumbent on
the Supreme Court, you don't have to be re-nominated by a political party. You
can file an affidavit of incumbency and you're on the ballot automatically. I
remember thinking a little bit as July, I think it was, you had to file the
affidavit of incumbency, and then the partisan conventions where nominees were
chosen were in August, wondering was this the time to maybe junk this whole
idea, be the first one ever to do it, and just not take a nomination from the
Republican party, since I had a Republican background - just not do it. I'd be
on the ballot. I would have the incumbent designation. It would say "Justice of
the Supreme Court" under my name. Well, I didn't give than an awful lot of
thought. I gave it some thought, but not too much.
Did you file the affidavit?
Yes, everybody files an affidavit.
I mean the one that guarantees your listing on the ballot?
Yes, I filed the affidavit, and everybody always does, because
I suppose there's always that outside possibility that you might outrage your
party in some way and they don't nominate you.
One of your colleagues on the Supreme Court outraged his party
some years later, right?
And did not get re-nominated.
And you're referring to, of course, Thomas Giles Kavanagh, and
he did not get re...but the affidavit of incumbency insures that your name is
on the ballot just as though you were nominated. Well, as I say, I thought it
over a little bit..."Is this a time to make a play for junking this system of
choosing", at least as far as I'm concerned, "choosing Supreme Court nominees",
and say, "I am now a non-partisan, and I'm not going to take a partisan
nomination". Well, I guess I'm too much of a team player, and thought this was
not the time to rock the boat to this extent, so I filed by affidavit of
incumbency, also went to the convention, went through all of the motions for
the nomination and got it at the Republican convention.
So, I was there on the ballot for two reasons, the affidavit of
incumbency that anybody's got who is an incumbent, and I was also nominated by
the party. But the idea did cross my mind of not taking it, saying I'm on the
Supreme Court, I'm a non-partisan. But I think as time, to some degree, has
shown, this identification of Supreme Court justices as Republicans and
Democrats continues even to this day, and we haven't really progressed too much
to the idea that the Supreme Court is a non-partisan job. We haven't really
progressed very far in that direction whereas the Court of Appeals started out
that way, is to this day, considered non-partisan.
I doubt seriously that anybody in the state of Michigan could
break-down the number of Court of Appeals judges that there are in the state
now and identify each of them as to what, at least, their political beginnings
were. I don't think anybody could do that.
Here's a selection process, that is, for the Supreme Court,
that has been roundly damned for decades, perhaps longer, and yet, do you see
any chance that it might be changed, and if not, why not?
I don't see any for the foreseeable future, and you will find
even the candidates today for this upcoming election in the fall of 1990 saying
that this is an outmoded, unworkable, contradictory process, that I go one day
to a political convention and the next day, I am a non-partisan. I think both
present candidates have said this. It just does not make sense, and Michigan is
the only state that has this particular type of nomination process. Some
states, the Supreme Court justices run on a partisan ticket; some of them run
truly on a non-partisan ticket just as Court of Appeals judges do in this
state. Why won't it change or why hasn't it changed?
I think partly it's because both major political parties
see...want to be able to say, "Well, we put, or we have a member of our party
on the Supreme Court", and so long as they've got this hold, new nominees for
the Supreme Court have to be nominated at a partisan convention, they'll be
able to do that. There have been some abortive attempts to do away with it,
suggested changes that the legislature has talked about, but they've never
gotten any place.
Do you think the change in the reapportionment provisions, that
is, now that the party stake in reapportionment that was once directly thrust
into the Supreme Court...now that that is no longer true or is it any longer
Well, actually there have been two times that the Supreme Court
ended up in apportioning the state and I think that probably is a factor also
that the political parties, want to, at least in their minds, keep a string on
the members of the Supreme Court, when it comes down to one of their very most
serious functions and that's apportionment, but this business of filing an
affidavit of incumbency did, at least, open a door for a Supreme Court justice
to cast off political considerations, if he wanted to, and not take that
I think perhaps that was an attempt, though it has not been very
successful, to divorce the Supreme Court from politics. While we're discussing
this, I do want to say that political considerations as such do not very often
enter into the decisions of the Supreme Court or the deliberations of the
Supreme Court. It is something that is alleged that is not so. You can take any
volume of the Michigan Reports and read it, and rarely will you ever find a
combination of the justices as coming down as majority or minority opinions in
a case based on their political affiliations. It runs much more to legal
philosophy, social philosophy if you will, and I don't know whether that goes
along with political affiliation or not, but it is very rare when it comes down
to political affiliation as deciding a case. The last apportionment,
re-apportionment case, as I recall, was unanimous.
When we re-apportioned the state of Michigan the last time, it
was a unanimous decision with one concurring opinion, as I recall, filed by
Justice Blair Moody in which he concurred in the result but expressed some
different reasons there for it, so that kind of picks the whole theory in the
head. Here, you've got all the justices agreeing on apportionment regardless of
political party. If the parties think that keeping some sort of string in the
nomination process on the justices is going to make any big difference, it
doesn't appear to work out that way.
2. Supreme Court campaigns and the decision-making process.
But Justice Fitzgerald, returning to your 1974 election
campaign, do I recall that you declined all contributions from lawyers?
I did. That was my one big experiment in the elective process.
I had always had the feeling that lawyers, as far as courts are concerned, are
a special interest group, and consequently, I decided early on that I would
simply say, "I will not take any money from lawyers" which, when you come right
down to it, was a rather remarkable pronouncement, but you know what? It didn't
create a ripple. It didn't create a ripple. It got maybe six or eight inches of
copy in the newspapers and that was the end of it. It was never mentioned
again, so all that I accomplished was taking in considerably less revenue than
any other candidate ever has.
Before or since, in modern times, has this ever been done?
Not to my knowledge. Now, there have been some limitations put
on the amount of money that lawyers may contribute. One hundred dollars is the
most that a single lawyer can contribute to a candidate. That, as I recall,
that limitation was not on at the time that I said, "I will take no money from
lawyers". As I say, it read real good at the time that I did it, but it
scarcely created a ripple, and, you know, it was just a sort of experiment in
nothingness, as it turned out.
In practical terms, did it severely limit your...?
Yes, it did cut down considerably on the amount of money
because lawyers are major contributors to judicial campaigns, and I think this
$100.00 limitation is a fine thing, and certainly $100.00 is a drop in the
bucket when it comes to the cost of an election, but add enough of those
together, and you've got quite a bit of money. Consequently, it did curtail
considerably the amount of money that I took in, and it was a noble experiment,
but it was a wash-out.
You won, as I recall, in a very close...
Very tight election. My opponent...the Democratic party had
nominated Blair Moody to run against me, and of course, he came with good
credentials as a Circuit Judge in Detroit. His father had been a U.S. Senator.
He had spent time in Washington himself, and he had had some very important
cases in Detroit and like that. His name was certainly well-known, and I think
the Democrats saw this as a main chance to defeat an incumbent, so Blair Moody
was nominated. It was a very, very tight election. I won by exactly 11,000
votes on the head, and the vote was upwards, as I recall, of 2,000,000. It was
900,000 and something versus 900,000 and something, and the differential was
exactly 11,000 votes, so it was a narrow, very narrow victory.
Do you remember how much your campaign expenditures amounted to
and how much his amounted to?
I am almost embarrassed to say how much my campaign
expenditures amounted to. I don't recall exactly. Of course, we filed...you
filed reports. They were not as detailed as they are now, but I think my total
expenditure for that campaign was something in the vicinity of about $16,000 or
$17,000. Well, that is not very much to run a state-wide campaign on, and I
think that then later Justice Moody who ran two years later and defeated
incumbent Justice Lindemer...I think his expenditures, if I recall correctly,
and I certainly stand to be corrected on this, were in the vicinity of a
$120,000 or so. Now we have to remember, of course, that this is almost twenty
years ago and either amount went a lot farther then...
But the ratio...
Our ratio was about 8:1, I would say probably, and so, as I
say, my experiment was not...I won, but it was...and I don't know that having
had money from lawyers and had more money to put into television, newspapers,
radio, whatever, would have increased the margin or not. Hard to say. It's one
of those things you have no idea whether I would have won by...maybe I would
have won by 12,000 votes instead of 11,000. Who knows?
There is speculation that I've heard that the campaign
format..when you have to run for the Supreme Court, saps the energies of the
court in discharging its judicial function. Did you find out of that
...of other experiences that this was true? What could you say
I did. Now, the court is very, very lenient or understanding
of...it's generally two members are campaigning in any given election. The
other person who was running for election at this time was Thomas Matthew
Kavanagh. At the time I was running on the Republican nomination, Thomas
Matthew Kavanagh was running with the Democratic Nomination. Of course, he was
the Chief Justice, and that period of time, and I suspect it is still true,
that period of time from approximately July until November, the activities of
the court are not crippled but curtailed because of the fact that there are
certain times that the candidates, the two candidates, simply can't be there or
certainly, you've got at all times the thought of a campaign on your mind, but
I found that as far as the two of us were concerned, Thomas Matthew Kavanagh
and myself, they were very understanding, and we got out work out and all that,
but at any time...I think in every two years from July to November, the court's
work is...I guess the best word I could use is "hampered" by the fact that two
of the seven members are running for election. There are certain things that
you have to go to. There are certain times that you can be there and the other
justice that is running can't be there, and it does, I guess, hamper...that's
the best word I can think of. It hampers the operation of the court.
As long as you've got to run, there's always going to be that
problem, I guess.
Thinking of historians or scholars that might in some future
time be interested deeply in this part of the Supreme Court process and what
inhibits it, would you care to go into the mechanics of Supreme Court decision
making as distinguished, let's say, from City Council where one fellow is on a
trip or vacation, and they take the vote, and it is 5-1 with two or three
missing. You don't do that on the Supreme Court, do you, because each...
You are obliged to vote. You may to abstain from an opinion.
You can disqualify yourself for whatever reason there may be...say "I shouldn't
hear that case because I was...maybe I was the trial judge down below before I
came on the court", or something you can disqualify, but if there is a case
that you have sat on and heard, and then an opinion is circulating around the
conference table or even what turns out to be a dissent is circulating, you've
got...you can't say, "Well, I guess I won't sign this one. I abstain from it".
You have to participate. If you sat on and heard the case and not previously
disqualified yourself or recused yourself for some good reason.
Would it be fair to say, too, that the individual justice
regarding himself as a state-wide elective officer, is very particular about
the exercise of his responsibilities?
And the others understand this, and he would, if he felt it
necessary, everything would be delayed until he could get...
Oh, yes, until you've had an opportunity to think it over. This
is one of the reasons that partly contributes to delays on the Supreme Court.
Not only on the Supreme Court, but the Court of Appeals also, to a much lesser
degree, that if you get an opinion that you didn't write, from one of the other
justices, you're allowed generally about as much time as you need to consider,
"Do I want to sign this?", or "Don't I want to sign this? Do I want to write a
dissent? Do I want to just sign it an concur only in the result?" The members
of the court are very courteous, almost courteous, I would say, to a fault in
allowing people as much time as they want to consider whether they're going to
sign an opinion and it does, occasionally, lead to delays.
There are times when a justice cannot make up his or her mind.
"Is this what I want to sign?" Particularly at the time I went on, and I think
this is no longer quite so much true... I think there are today some deadlines
that we tried off and on, and it just didn't work. I think it's just too
traditional that you have as long as you want, unlike the U.S. Supreme Court
which, by tradition, gets everything out by the end of June that they've heard
during the year. Rarely does ever a case that is argued before the U.S. Supreme
Court ever go beyond the last week in June for a decision and here, I have seen
cases...I recall cases that have laid six months, nine months while one justice
was making up his or her mind..."Do I or don't I want to sign this?"
Why does it happen here and not in Washington?
Well, I think simply because of tradition. I think, and I don't
know that it is written any place that the U.S. Supreme Court must get all of
its cases out, written and released by the end of June, but it has always been
that way. Once in a great while, it will go over on a case, but it never goes
over more than a couple weeks, maybe a month at the most, and it's just one
case that maybe they heard late, and there isn't time to get the opinion around
by the end of June. As I say, I know of no place where it says they have to.
There is also, I think in the U.S. Supreme Court, the idea of a
summer recess. They are off from June until October, and while the work of the
court goes on...I know they're reading, they're studying, they are hearing
emergency appeals on a one to one basis. The justices are assigned different
parts of the country to hear emergency appeals. They can issue stays and things
like that. The Michigan Supreme Court continues to work through the summer.
Maybe not hear cases in one month, but there are administrative meetings where
all of the justices are around the table. There are opinion conferences all
around the table. U.S. Supreme Court...my understanding is during the summer,
they don't all sit down around the table and talk about their cases because
theoretically, they are all done.
3. The case of Scholle vs. Secretary of State and the composition
of the Supreme Court during his time.
Do I recall that you had a conspicuous experience on what
happens in summer recess where you...this would have been prior to your service
on the Supreme Court, I believe...didn't you go to...or what am I thinking
about...to New Hampshire?
Tell us about...what is the story on that?
Well, it goes back to when I was in the Senate from 1958 to
1965 when I was elected to the Court of Appeals, and it was the famous one-man,
one-vote case, now called one-person, one-vote case...Scholle vs. Hare. Gus
Scholle vs. Secretary of State saying that the State of Michigan was
mal-apportioned and that while the House of Representatives approximately was
apportioned right, the Senate was all out of commission. Senatorial
districts...there was no rhyme or reason to the size of them, either
geographically or population, and I was one of three senators who intervened on
behalf of the Senate in the case of Scholle vs. Hare, and the case was...had
been through the Michigan Supreme Court in which it was said that it was
mal-apportioned, had gone up to the U.S. Supreme Court under the Federal
constitution and it began to look like the U.S. Supreme Court would also say
that Michigan was mal-apportioned, and it had to be done on a much more
There were three Republican Senators: Senator Beadle who was the
majority leader of the Senate, Senator Younger from here in Lansing and myself
coming from Grand Ledge, and I guess probably one of the reasons that Senator
Younger and I were on it was because we were right around Lansing all the time,
and Senator Beadle as sort of the head of the Republican senators, so we
intervened, and if you read the actual report of Scholle vs. Hare in the books,
it will say, "August Scholle vs. James Hare" and underneath, "Intervening
parties: John W. Fitzgerald, Paul Younger and Frank Beadle", and the U.S.
Supreme Court had the matter before it, and it looked as though the election
for senator in the state of Michigan was going to be at-large. In other words,
there were, at that time, 34, I believe, senate seats, and if you were going to
run for the senate, you ran as a senator over the entire state of Michigan.
Well, even the greatest advocates of one-person, one-vote didn't
advocate that, so in order to avoid this...this had been the court's decision
that you run at large...we went, the three of us, with our attorney who was
then Whitney North Seymour from New York City, who had been hired, frankly, by
the Republican party at a very...he really believed in what he was doing, very
nominal sum, and we went to Littleton, New Hampshire where Justice Potter
Stewart spent summers, and presented the case for a stay which would permit
running in our old districts for one more election until things could be
straightened out, and Justice Stewart granted a stay which meant that at the
primary in August and in the general election in November, the Michigan senate
districts would remain the same as they were.
That was in 1964, was it?
That was in 1964, yes.
And this was an individual act by Justice Stewart...?
Yes, he issued a stay which they may do. Then, when the court
reconvenes, it is considered by the entire court.
But in Michigan, there is no analogous...?
No analogous situation where one justice may act, at least
within recent history, where one justice can issue a stay pending a get
together of the entire court to decide what the vote is on making it a
permanent stay or dissolving it. There is no analogous situation.
Justice Fitzgerald, do you recall what the political
alignment...we talked a little about the political forces impinging on the
actions of the Michigan Supreme Court...what was the political set of events
when you arrived in 1973? Or was it the first of 1974?
The first of 1974.
Who were your colleagues at that time?
My colleagues were Justice Levin who had also been on the Court
of Appeals and had run as an Independent for the Supreme Court, but that's
another story, and Justice Thomas Giles Kavanagh, who had also been on the
Michigan Court of Appeals, Justice Williams...
Justice Swainson,...we have five...let me think, who else was
there at that time?
And T.M. Kavanagh who was Chief Justice, and...
And Justice Coleman.
And Justice Coleman, yes. That was the...those were the people
on the court at that time...myself, Justices Swainson, Coleman, Williams, T.G.
Kavanagh, T.M. Kavanagh and Justice Levin. And of course, while we're
discussing the political name tags that are hung on justices, as I mentioned
before, and I'm sure anybody listening to this knows, Justice Levin did run as
an Independent, and consequently, has made use of this affidavit of incumbency
ever since, and has never been nominated by a major political party.
Was that true?
Oh, yes, never has been nominated by a major political party,
so he simply files his affidavit of incumbency, and he is on the ballot, so...I
suppose that if one were to look at the breakdown of the court politically, at
least what the media would have said at the time, there were two Republicans on
the court, me and Justice Coleman. The Democrats would have been Justices
Swainson, Williams, T.G. Kavanagh, T.M. Kavanagh, and one Independent, Justice
Would you care to talk about the concept of collegiality?
Sometimes there is quite a bit made of this aspect of service on the Supreme
Well, there is a lot more collegiality than the general public,
and I think, for that matter, the media thinks there is, or would like to think
there is. There aren't...any disagreements and so forth that I have ever
discovered, ran to legal philosophy and not political philosophy. One of my
ex-colleagues, Justice Thomas Giles Kavanagh, used to have a saying that I
remember he said, or I heard that he said early on when on the court, "The
members of the Supreme Court are, for a certain period of time, involuntary
You didn't choose with whom you sit, and consequently, you just
have to...there has to be a certain amount of collegiality and right now in the
legal profession, there is all this talk about civility and professionalism and
so forth, and I think on the court, at least, civility certainly, and
professionalism and collegiality always did obtain, much more than people
thought it did, and now, for whatever reason it is, the profession is waking up
to this that civility right now, in the practice of law, is not what it once
was, and we ought to do something about it. On the court, at least, it was not
any great problem.
Well, that is during your period of service. Now, you would not
apply that comment to times that...where for example, the plate glass
conference table cover was smashed by somebody's fist...
I have heard that story, but I don't know whether it is
apocryphal or whether it actually happened. I have heard that sometime before I
went on the Supreme Court, one of the justices was so adamant about his
position on something or something, that he banged his fist down on the plate
glass top of the conference table and broke it. I've heard the story, but I
never heard it from anybody who was there at the time, and I never heard it
from anybody who saw it happen. Who knows, maybe the water decanter fell over
and broke the thing. I guess a plate glass top to the conference table broke,
but how, I don't know, and this story has hung around for years, and years and
years. As I say, I never heard from anybody who was there at the time that it
actually happened, or anybody that ever claimed that they saw it happen. That's
not to say it didn't happen, but I never heard it from anybody who saw it
Would you...you were not on the court at the time of Gene
Black. He had already left by the time you arrived on the court, didn't he?
Yes, he departed...yes, he had departed two years previously, I
believe it was.
4. Family background and attending the University of Michigan Law
End of side 1, tape 1.
Justice Fitzgerald, I hope that our conversation would lead
back into your early origins in the respect that your family is very much
identified with public service for what, the fourth generation?
Well, I think what we need to talk about is your reaction to
your father being governor and whether this...I think you said, while it was
interesting, you didn't...
It didn't spur me on to want to be a public servant at the
time. I mean, there are really...the thought really didn't cross my mind.
It's been observed, you know, that your family...I think I've
heard this said, is the only family in Michigan history to have produced a top
officer, first ranking officer in two branches of government, the executive and
you having served as Chief Justice in...
Well, I think that's true. At least, it has never been called
to my attention any other family that had that situation arise, and then of
course, there is...my father was never in the Legislative branch and he was
never in the Judicial branch, and I was never in the Executive branch. However,
my grandfather was in the Legislative branch, and my son is now in the
Legislative branch, so between the four of us, we have covered all branches of
government. No, I don't think there is anybody that has ever produced a
governor and a Chief Justice in one or two generations. To return to the topic
at hand, I don't think...I have no recollection, at least, that his experiences
and what I shared of them spurred me on to think that public service is what I
wanted to do.
So when he died, you were a freshman in high school?
I was a freshman in high school and went on to finish high
school. World War II was on. I graduated in 1942. Pearl Harbor had been in
1941, and any able-bodied male at that time expected to go into the service,
and I did. I managed to get in two terms at Michigan State and went into the
service for two years. Then I ultimately came back and finished up at Michigan
What was the nature of your military service?
It was not glorious. It was...I never...when pressed, I never
left the United States. I was one of those people who simply shuttled from
coast to coast, from Texas to New Jersey to Illinois in the United States. I
never went over seas.
What branch were you in?
I was in the Infantry, strangely enough.
Were you ever assigned to a divisional component of the
Infantry, the 95th division or...?
I was, at one time, assigned to 104th Division, but I
ultimately was discharged from the army following a bout of pneumonia. I had
viral pneumonia which is one of those things that leaves you mighty weak for
six months to a year after you have it, and I had an especially bad case, and
so I was discharge, I got a medical discharge, and the war was not quite over
yet. The war ran on for another three to four months at the time I got
discharged, but as I say, I was one of those people who just shuttled from
coast to coast in the United States with different assignments and never did
Then you finished at Michigan State?
Then I finished up at Michigan State. Even then, I didn't have
in mind that I was going to even become a lawyer. That had not yet really
occurred to me. Oh, I suppose that he being a lawyer, it once in a while it had
occurred to me like it did to a lot of people, but I really didn't plan at that
time to become a lawyer and while at Michigan State, I had worked in what was
then called the Public Relations Department at Michigan State and when I
graduated, I was offered a job there, so I stayed on there, and I stayed on
there for four years. It was about that time that I began to think in terms of
a law degree, but still not in terms of a political entree because I was a
lawyer or anything like that. I entered University of Michigan law school. I
made the decision, "I'm going to quit and I'm going to go to law school".
That would have been about 1948, 1949?
No, that was not until 1952. I entered there in 1952 and went
on what they called then the "Accelerated Program" which most law schools still
have. I don't know whether Michigan still does or not. Three summers and two
years, and I started in the summer of 1952 and finished in the summer of
1954...three summer terms and two full academic, regular academic years. I
guess there must have been in my mind some urgency, but I was about four or
five years older, you see, than all of my classmates. Most of them had not been
in World War II because they were too young, and I was eighteen when I went in
myself. I was young, but because of the time that I had worked at Michigan
State and the two years that I was out and in the army, I was five years or so
older than all of my classmates, and so I kind of had the feeling that I wanted
to get done as fast as I could, so I stayed on that accelerated program, and
finished up. Well, what to do? I always had sort of had in mind that I guess
that if it works out right, one goes back to one's home town to practice law,
so when I finished law school and took the bar exam. It took as long then to
find out whether you passed the bar as it does now.
I took it in July and found out in December then that I had
passed, and I got sworn in to the bar, and I had made all the plans to practice
law in Grand Ledge. I had gone so far as on sheer faith that I was going to
practice to have stationary printed and rent an office and fix that up so that
as soon as I found out that I had passed and could practice, I could open up.
Well, as it turned out, I did pass, and I was sworn in in very late December of
that...1954, and opened up an office in January, 1955. Well, I had a general
practice in Grand Ledge. I suppose there were a few people that were waiting
for me to get through law school, but not too many, and but, you know, business
began to come. It's always slow when you start up on your own, and in January,
1955, I got a very interesting telephone call, and it was from then to be
Representative Charles Chamberlain of Ingham County. He had been elected to
Congress, and up until that time, he had practiced, he had been prosecutor and
things like that here in Ingham County, but he'd also had a job with the Senate
which was called Legal Counsel to the Senate. They had one lawyer on the
payroll then in those days, generally somebody relatively fresh out of law
school, and you were assigned to the Chairman of the Senate Judiciary
Committee. You really had more connection with the Chairman of the Senate
Judiciary Committee than anybody else though the title of the job was "Legal
Counsel to the Senate".
The job consisted of research for the Judiciary Committee and
things like that. Representative Chamberlain called me up one day and asked me
if I was interested in a part-time job with the legislature, and I said, "Well,
what?". He didn't even reveal what it was. Well, it turned out that he had had
this job up until this time, and the Chairman of the Senate Judiciary Committee
was Senator Harry Hittle from Lansing, and he had told then Representative
Chamberlain, "Find a replacement for yourself. Find me somebody to take this
job," and Representative Chamberlain had not buckled right down and found
somebody immediately and here, it was about time for the session to start. He
was leaving, and...
He had been elected to Congress?
Yes, and Senator Hittle wanted somebody in this job. I said to
Representative Chamberlain, I said, "Well, what is it?". He said, "Well, it's
Legal Counsel to the Senate", and he outlined the duties and so forth. Well, I
had never heard of the job before, or anything about it, and I said, "Well, it
sounds interesting. How much time does it take away from the practice of law?",
and he said, "Well, it takes whatever...you're there when the legislature is in
session", and of course, in those days, the legislature was in session a lot
less than it is now, and I said, "Well, that sounds interesting", and he said,
"Well, come in tomorrow and meet with me and Senator Hittle, and we'll talk
about it, and see if you are the person he might want for this job". So I went
in and met with the three of them, and I evidently was fine with Senator
Hittle, and he said, "Are you interested in the job?", and I said, "Yes, I am",
because as I say, I was just starting a law practice, and it was not that
overwhelming yet, and it was a per diem job. You were paid by the day when the
legislature was in session, and it paid the magnificent sum at that time of
$20.00/day which, if you had to spend the whole day away from you office, maybe
didn't pay, but there were also other times when the legislature...what it came
down to, if they were in session for five days in a given week or you had to go
in for a special meeting or something, it could mean $100.00 or so/week. In
those days, to a beginning lawyer, that didn't look too bad, so I took the job.
How did Charlie Chamberlain happen to call you? Had you been
acquainted for some time?
I had not been acquainted with him, and that is a happenstance.
At the time I passed the bar in December, he saw in the newspaper a little
squib of who had passed the bar in this area. Well, there weren't as many
people taking the bar in those days as there are now, and from the Lansing area
including Grand Ledge, my home town, there were probably three or four names at
best, for the whole state, and he told me later, he said, "I saw that name
there, 'John Fitzgerald, Grand Ledge'", and he said, "I thought to myself that
must be Frank Fitzgerald's son", and he said, "My acquaintance with your father
goes back to when he was much younger, back in the 1930's and he had achieved
the award of Eagle Scout, and there had been a ceremony here in Lansing in
which he had been presented with his Eagle Scout badge and among the presenters
was my father who was then Governor of the state", so talk about small worlds
and coincidences...there was a real one, and he said to himself, "That must
be...". Well, here he was in the position of Senator Hittle breathing down his
neck, saying, "Find somebody to replace you", and him not being able to think
of anybody right off hand, and suddenly he thought, he had read where I had
passed the bar and I was setting up law practice in Grand Ledge and
consequently, he called me and asked if I would be interested in the job.
That almost is a providential type of story, but at any rate, I
was fine with Senator Hittle, and I took on the job, and it was not terribly
demanding. You had to analyze bills and things like that and be present all the
time during the sessions and so forth. It blended in okay with the practice of
law because you only had to be there during session time which, you know, it
didn't run eight hours/day, so I spent two years in that job, and Senator
Hittle passed away sometime after that, within the next couple years, and the
Chairman of the Judiciary Committee became none other than a senator from
Kalamazoo, Carlton Morris, and this was a patronage job, pure and simple, and
had Senator Morris wanted somebody else in it, I would have been out of a job,
and somebody else would have been in there. It was pure and simple patronage.
But he evidently had nobody in mind, and he had been on the Judiciary
Committee, and I had worked with him over the past couple years, and everything
was fine, so he said will I take this job for another two years, and I said,
"Yes, I will", so I took the job for another two years.
During that period of time, the senator from the district in
which I lived, which was then the 15th District, and it was comprised of Eaton,
Clinton and Shiawassee counties...the senator from that district was a lawyer
from Owosso by the name of Donald Smith. Well, Don Smith's attendance record
was not everything that it might be, and he was absent for long periods of time
and so forth, and pretty soon, it became pretty obvious that he was not going
to run for re-election at the next election because, as I recall the story at
any rate, he had gone to California and his Senate checks were being forwarded
to him in California, and so while they never got to the point where the seat
was declared vacant or anything, or he was never censured by the Senate or
anything, he obviously wasn't there so Carlton Morris said to me, "Why don't
you run for the job? There's a vacancy there. I mean, that's the time to run
when there's no incumbent", and obviously Donald Smith, Senator Donald Smith
was not going to run, so I gave that a lot of thought. Should I or shouldn't
I?, and I guess I really, up until that point, had not really thought too much
about a political career. Well, I decided to do it. I ran in a three-way
5. The Court of Appeals in 1964 and T. John Lesinki.
That would have been your first...?
That would have been my first term in 1958, starting in 1958. I
suppose this would have been the election of 19...would there have been an
election in the fall of 1957...at any rate, 1958...maybe it was in the election
of 1958, and I ran in a three-way primary. Two candidates from Shiawassee
County and me from Eaton County and nobody from Clinton County. The candidates
from Shiawassee County were a young lawyer from there by the name of Lewis
Benson and a House member who had decided to run for the Senate by the name of
Adrian deBoom. He had decided he would now run for this vacancy there in the
Senate seat. Well, I...between the two of them, they managed very nicely to
split the Shiawassee County votes since they both came from Owosso, which left
me Eaton County and Clinton County which added together pretty well, put them
out of the picture. I was elected to the Senate.
I spent three terms there, and in my last term, we had had the
constitutional convention. It was now the fall of 1964, the constitution of
1963...it was now the fall of 1964, and created during that legislative session
was the new Court of Appeals which the constitution called for. Well, there
were two members of the legislature who were very interested in running for the
new Court of Appeals, myself...I had had three terms in the Senate and that was
beginning to be about enough and the other one was the then Lieutenant
Governor, T. John Lesinski who presided, of course, over the Senate, and whom I
knew very well. So, between the two of us, we saw to it...well, there was no
question what it was going to pass, but we sort of shepherded through the
legislation creating this new Court of Appeals, and both of us ran for it in
the election of 1964, in the fall of 1964. Both were elected.
Did you run by districts?
Ran by districts. There were three districts, just as there are
now, and he ran in the 1st District and I ran in the 3rd District which was the
big outstate. Wayne County was a District all by itself then. Now, it's got a
little more territory in it. The two of us were elected, both of us to terms on
the Court of Appeals, and we both left...he left the Lieutenant Governor's job
and that, of course, was in the day and age when the Lieutenant Governor could
be of opposite parties and George Romney was governor.
That was the last time around?
That was the last time around that the Lieutenant Governor
could be of the opposite party of the governor, and so T. John Lesinski went on
the Court of Appeals, and I did. There were three elected from each district,
for a total Court of Appeals of nine. The terms were staggered, ten years,
eight years, six years, depending on how many you got, and I happened to get
the ten year term.
Did you run high, electorally?
You led the...
I got the most votes in the 3rd District which gave me the ten
Oh, I see. One in each district.
One in each district, and that was then to go into a staggered
six year situation.
Who were the others in the 3rd District.
There was Robert Burns who had been a Municipal Judge in Grand
Rapids and Donald Holbrook, Sr. who had been a Circuit Judge in Clare and
Isabella and Midland Counties, so we were the three who were elected in the 3rd
Were there a great many candidates?
As I recall originally, for the primary, there were nine, nine
And that meant that the six were in the run-off.
Six were in the run-off, yes.
Interruption in recording.
I have heard some stories about what happened following the
canvas of the vote. Here you were, as I understand it, there were nine...
You were saying "following the canvas".
Yes, now, would you relate what happened? Here there are nine
Court of Appeals judges waiting to be sworn in. They don't have a place to sit.
They don't have any waste baskets. They don't have anything...
They had nothing.
I understand this was quite an interesting period that followed
there. What did you do immediately after being elected?
Once we knew we were elected, there were nine of that knew we
had been elected, and there had to be some sort of organization because the
court was supposed to start sitting in January, and one of the things we were
going to see to it that there was a session of court in each District in
January, but this took a little lead time, so I don't know just exactly how it
came about, but it was decided that the nine of us would have a meeting and
elect a Chief Judge who would in turn, tell the State of Michigan how much
money we needed to set up three courtrooms and offices for the judges and so
forth, so we went to a place over in the thumb area to get away from the media
as much as possible...
Was this a hunting cabin?
It was called the "Detroit Hunt and Fish Club", and it happened
that John Gillis who had been elected in the 1st District and I think Louis
McGregor, who had been elected in the 2nd, both belonged to it, and it was
nothing but really kind of a fairly primitive hunting cabin where relatively
large groups could go. I think that was the name of it -"Detroit Hunt and Fish
In Tawas or East Tawas or something?
Yes, right around that territory. I forget exactly where. So we
spent, I think two, maybe three days there talking about how we would organize
the Court of Appeals. Well, one of the first jobs that we had to do was choose
a Chief Judge of the court who would have the responsibility of organizing the
whole operation, getting the money and signing the leases and setting up the
offices in the courtrooms, and all that sort of thing. What it came down to was
really the chief contenders for the job were me and T. John because we'd sort
of come out of the operation which created the Court of Appeals in the
legislature and still knew many members of the legislature. The breakdown of
the Court of Appeals, if you look at it politically, just for the heck of it,
was more Republicans than Democrats, and I suppose if we had cast a ballot on
that basis, I probably would have been elected, but there were two things that
entered in here.
I didn't want the job, and have to take on all of this business
of leases and looking over places for offices and courtrooms and all that sort
of thing. I didn't want to do that very bad, and second, I was a great admirer
of T. John's managerial abilities and organizational abilities, so I simply
said, "I'm not interested in this job", and there was no question that the only
other logical person for it was T. John Lesinski, and so he was chosen as Chief
Judge. Well, I suppose, just for the heck of it, I was named what they called
Chief Judge Pro-Tem who could act in the absence of the Chief Judge. I kept
that job all the time I was on the Court of Appeals, so he went immediately to
work, and he, of course, was located in Detroit which was a little easier for
Renting courtroom space offices...the offices for the Lansing
court here were in what was then called the Pruden Building, now the Washington
Square Building, exactly where they are today, same courtroom exactly, but it
was going to be a period of time before it could be remodeled into judges'
offices, courtroom, clerks' offices and so forth. I started out, and for about
four months, simply sat or kept office, not office hours, but did my work out
of my office in Grand Ledge...moved some file cases out there. I had a
secretary who had been with me in the Senate. She was going to be my secretary
on the Court of Appeals, Makianne Jones. She commuted out to Grand Ledge and
when I had to go and hear cases,...but we did the work in the back room for
about four months. Then the offices were completed here in Lansing, and I moved
here to where the offices are to this very day.
Justice Fitzgerald, the Court of Appeals made a splendid name
for itself almost from day one and apparently had a great esprit. Can you
confirm that and trace back to what accounted for it as against the experience
that you were later to have?
Well, I think that one of the reasons why there was a real
spirit there and cooperation and everything is that we were sort of writing on
a tableau raza. It was ground zero. I mean, here is a court which didn't exist
on December 31st and did exist on January 1st, and so everybody kind of felt
that they had to pull together to create a workable court which likewise, I
think there was a certain pride...you know, we never had an intermediate Court
of Appeals in Michigan, and there was a certain pride in "let's do it right".
Then, for instant backlog, the Supreme Court took, I think it was something in
200 or 300 cases they had, transferred them back to us, so we had an immediate
job to hear all of those cases that the Supreme Court had on their docket.
As I said, we were determined that we were going to sit in
January and we did. We sat in odd places in January...in Grand Rapids, I sat
there...we all sat in our own district the first time around. I sat...we sat in
the Federal Building in Grand Rapids. For a couple of months in Detroit, it was
necessary to sit in the old Circuit Court rooms there and in the Federal
Building, because we had no courtrooms. It was just the fact that here you had
nine people who were determined that this was going to be a good court, and as
you say, I guess it always did enjoy a good reputation and a lot of it was just
plain old hard work.
Was the fact that nobody had to think about an election for six
years...do you think that...?
That helped, I'm sure. Nobody had to think about election for
six years. I didn't have to think about it for ten years, and the person in
between didn't have to think about it for eight years.
Is there any morale to be drawn from this, you know, just
generally, in terms of...?
Well, I don't know how it would ever arise except...of course,
the Supreme Court terms are eight years which gives you a lot of running room,
You don't have any six year moratoriums.
Every year, somebody is running, and here, nobody was going to
run for six years, so it did...there had to be no thought of electioneering or
anything like that, and all the total efforts could go into creating the court
and making sure that it ran right. We were fortunate in having an excellent
first clerk, a gentleman who had been an administrative assistant to T. John
Lesinski when he was Lieutenant Governor, and that was Ron Dzierbicki, and he
became clerk of the Court of Appeals, and he was very, very good at
organization and detail and so forth, and a great deal of credit goes to him
for setting up the systems, so many of which exist to this very day.
Was there not some innovation in the preparation of cases once
they came through the door?
Would you care to talk about that?
Well, there was a system devised by which...in the first place,
the new constitution provided that from every judgement of a Circuit Court,
there was an appeal of right to the Court of Appeals, so we had a ready-made
source of cases. Any final judgement of a Circuit Court was appealable,
criminal and civil, but you've got some very knotty ones, ones that were
difficulty and also, if the appeal were not brought in the requisite amount of
time or if it was an appeal from something that was not a final order of the
court, say some order made during the course of a trial in exclusion of
evidence or admitting of evidence, those cases had to come by what we call
"leave to appeal".
They had to ask the court, "May we have an appeal?" So we
instituted a system of commissioners and the very first commissioner was a
gentleman who had been my first law clerk for six months and was Otto
Stockmeyer who now teaches here at Cooley Law School, and he stayed on with the
Court of Appeals and became head of their Research Department until he came to
Cooley Law School. He became the first commissioner who looked over these cases
that we did not definitely, automatically have to take and made a
recommendation, "Take it or not". We sometimes followed it, sometimes
Did the Supreme Court, at that time, function in a similar
They had one person who looked over material and prepared
memos, but they had nothing of exactly comparable nature, and certainly nothing
like they have now with the commissioner system that they have now. It was done
largely on the recommendation of the justices. They talked every case over
around a table, sat there and they read the material, and somebody would move
to take the case and took a vote, "Do we take it or don't we?". On the Court of
Appeals, we were able to do it by telephone conference call or just by mailing
in votes. We would get the material...we were only dealing with three people
also in each district.
These things were broken down by district, and you could say,
"Well, I vote we take it", and somebody else could say, "Well, I vote we take
it", and the third panel member could say, "I vote we don't". Well, majority
ruled, so it was the nucleus, at least of the system that is still used today,
only I think they have something in the vicinity of six or seven commissioners
on the Court of Appeals and they have a pre-hearing staff which we didn't have
when we started. Some young lawyers, fresh out of law school, bright, who
looked over all these cases and wrote up what they call bench memorandums that
sort of digested the cases. The Supreme Court didn't have anything like that.
You could get it out of your own law clerk, but there was no central
organization that served the entire court.
What was the inspiration for the pre-hearing division?
Experience of other states. It was not unique to Michigan. I
mean, we didn't think it up here. Some states had had Courts of Appeals for
many years...California went back into the 1930's. Other states, New York had
had one for many years, and I recall that was one of the jobs that our clerk,
Ron Dzierbicki took upon himself, "How do other states do it?". Well, this
pre-hearing, central pre-hearing division seemed to be the most successful in
states who had had Courts of Appeals for a number of years, so we started
patterning, but we did make refinements in it and so forth and changes and so
One thing, it served...our pre-hearing division served the
entire court. Other states such as Illinois and California tended to keep
things within their districts. We had three districts here in Michigan of equal
population now on the Court of Appeals, and they would have...each district
would have its own pre-hearing staff, its own commissioners. Well, we started a
central staff that served everybody on the court, which made it a truly
statewide court, and also, I think, was considerably more efficient because any
given commissioner or pre-hearing attorney might be working on something from
the 1st Division one day and on something from the 3rd Division the next.
Everybody knew what was going on all over, and it was not parochial as it
tended to be in other states. Some states still use that system where the
district is everything.
Some of us thought that the quality of writing and the brevity
of opinions were very high order in the Court of Appeals, and I had heard that
there was a little bit of whiplash applied from time to time. What can you say
One of the reason was that people were accustomed to very long
opinions from the Supreme Court, and that would have been the norm up until
that point. The idea of the Court of Appeals was that it was going to be a
volume court because of this matter of Appeal of Right. Any final order of a
Circuit Court was appealable. We weren't going to have the luxury or the time
or write all of this material, and plus the fact that when we first started
out, the case load was not terribly high, and you had time to write and
re-write and handcraft and so forth.
Now, today, there isn't the time to do this because of the sheer
volume, plus I think everybody on the Court of Appeals...here's the first time
that any of them had started having things they had written printed in a set of
report books, the Mich-Ap reports, and I think there was a certain pride of
authorship there that they work to the point where if this is going to down in
the book that's going to be here 100 to 200 years from now and it's got my name
on it, I want it to read well and to be good. Plus, we did talk in terms of the
fact that brevity...we were not writing for the ages. There was another appeal
possible to the Supreme Court if the Supreme Court took the case.
Then, you had to apply after the Court of Appeals decision was
out, you had to apply to the Supreme Court and they could either take the case
or not. So I think there was some thought that we are not, in many instances
here, writing the last word on this, so why go into agonizing detail. We will
decide the case and give the reasons therefore, make it lucid, make it short,
make it punchy, make it so it's understandable to anybody. If the Supreme Court
wants to take it then on a leave to appeal and write 40 pages, so be it. They
can. But there was...we often had talks about this..."Let's keep it short and
keep it simple and readable".
Then, as I say, we did have the luxury of the fact that at that
point, at any rate, the first couple of years, backlog was not...and the amount
of cases coming in, was not as heavy. You want to remember, this is the first
time that the lawyers of this state had an opportunity to appeal any case that
came out of a Circuit Court. When they began to get this idea through their
head that they could appeal anything, more and more of them did it, and
everything built up.
How much credit would T. John Lesinski be entitled to for his
leadership during this early period?
Oh, a great deal, a great deal. He did have a lot of vision as
to what the court function ought to be and he also worked closely with Ron
Dzierbicki whom he worked with for four years prior to that. They made a very,
very good team, so the actual organization, physical organization, certainly,
the courtrooms, the offices, the early employees and so forth, T. John deserves
the lion's share of credit for that.
We were all able to hire our own secretary and our own law
clerk, but he was the one who sought out good people for other jobs in the
court, and saw to it that the physical plant...he liked that sort of thing. I
can remember going into his office, and he had sort of an architect's desk set
up in there with plans of courtrooms and things like that, remodeling
jobs...for instance, the one here in Lansing in the Washington Square Building,
that whole place was carved out of just an old office, a rather old office
As T. John used to remind people, "over the drugstore".
Yes, over the drugstore. It was over a Walgreen's drugstore,
and we turned that into a very credible courtroom facility, and it still is.
The Detroit facilities are still exactly where they were. That was a little
newer building, the First Federal Building in Detroit. Grand Rapids was the
biggest problem...it was hard to find a downtown Grand Rapids office building
that lent itself...we finally did find one in the Exhibitor's Building but
subsequent to that time, the state has built a new office building in Grand
Rapids where the Court of Appeals now is, but we set up a very credible
courtroom and offices there.
Was there any secret to the high quality of personnel that you
were able to bring into the Court of Appeals?
End of side 2, tape 1.
Well, I think it was a little bit like those of us that had run
for it...everybody saw an opportunity here of something that was going to grow
and prosper and be a kind of a showcase for their talents, and there was
considerably competition for a lot of jobs there, and so consequently, you were
able to get some of the best people for this particular job.
6. Upheavals in the Court and selecting a new Chief Justice in
1974 and the death of Justice Thomas M. Kavanagh in 1975 and the investigation
of Justice John Swainson.
Incidently, we are going to have to crimp along about 2:45. I
turned by ankle over the weekend, and I've got a real sore ankle and decided
I'd better go to the doctor to see whether it is sprained or what, so I've got
a three o'clock appointment. If we can wind up about 2:45, that would be the
This is another session in the Oral History project. Former
justice, John Fitzgerald, is sitting in his office at Cooley Law School where
is now professor and here to represent the Historical Society is Roger Lane.
This is our second session of taping and this time, what we hope to cover, I
think, is some of the cases Justice Fitzgerald worked on and wrote and
dissented from, and some of the atmosphere of the court which was a little bit
troubled during the early years that he was there. Now, what do you remember
about just your entry into the whole system? You replaced Tom Brennan, and
Brennan, prior to his resignation, seemed to feel that he was a little lonely
there, and there was an element in the court that made him uncomfortable. I'll
leave it to you. What do you remember about that?
Okay, I'll try to recall. When I went on the court at the time
of Justice Brennan's resignation and I was appointed, then I had a year to
serve in which I also had to run for re-election, because of the Michigan law
that requires that appointees to the bench run at the next election, next
regularly scheduled election...so I came on in January of that year and had to
run in the fall of 1974 in the election for what actually amounted to a new
term for Justice Brennan who had departed. I was in his slot, so to speak, so
that year, of course, went along, and it was a difficult year because...well,
of serving on the court and running for election at any given time is a little
tough. We have already discussed kind of the business of that and how it does
disrupt the operation of the court when there is an election every two years
for at least two members, two members of the court, and then an off year when
there is just one member.
Had John Swainson's troubles surfaced at that point?
No, they had not. His troubles did not surface until January of
1975. I had been re-elected, or elected for a new eight year term in November
of 1974. My opponent had been later Justice Blair Moody, and I had defeated him
for the position, so starting January 1, 1974, I now had a eight year term on
January, by the way, was a period of upheaval, was it not?
This was, because it was at that point that customarily, the
court elects a Chief Justice. There had been considerable dissatisfaction on
the part of some members of the court with Thomas Matthew Kavanagh as Chief
Justice. He had been the Chief Justice for some period of time and there were
those who had said, "I simply cannot vote for him again for Chief Justice of
the court", and so I was now a new vote in an election of a Chief Justice
because I had never voted before for a Chief Justice so I suppose that I sort
of revolved a little bit about I felt about this.
We had an interesting situation in that only Chief Justice
Thomas Matthew Kavanagh are the only ones who had their offices here in Lansing
so we had had considerable contact over that one year period. Likewise, he had
run at the same time I did. We were both candidates in that previous November
election. I think he came into January that year fully anticipating that he
would be re-elected as Chief Justice. At least, he gave no indication that he
didn't think he would, but there was a group of justices, and I think that the
vote on the election of Chief Justice has been speculated upon and even got
down to the point where it was published in the media as to who voted for whom
when the ultimate election took place in January of that year after we started
our new year. But, in December, I had some feelers and some contacts from a
couple of the justices that perhaps it should not be an automatic re-election
of Thomas Matthew Kavanagh to the office of Chief Justice, and we should think
about the possibility of replacing him.
So these persons that were thinking in this direction were
Justice Coleman and Justice Levin and Justice Thomas Giles Kavanagh. Well, that
was three members of the court. I am, of course, presumptively or ostensibly,
was a fourth vote. Well, four votes was all it took to elect a Chief Justice.
So thinking that it would not do at all for us to discuss this matter in the
Supreme Court chambers in Lansing, we decided to have a lunch meeting someplace
and talk this all over. There was nothing at all hard and fast or cut and dried
about the situation. So, we decided to meet someplace away from the gaze of the
media and the Open Meetings Act certainly was not violated because it was not a
session of the Supreme Court or anything like that. It was simply getting
together to talk about the possibility of who might be an alternative to Thomas
Matthew Kavanagh as Chief Justice.
We met...elected to meet at a place that was convenient for all
of us and that turned out to be the Schuler Restaurant in Jackson, and that was
convenient to me coming from Lansing, and for members from Detroit who only had
to go up I-94, Justice Thomas Giles Kavanagh and Justice Levin and for Justice
Coleman who had her office in Battle Creek to go over the Jackson. We met there
and had a lunch meeting to discuss the upcoming election for Chief Justice.
Pretty obviously, I was the swing vote because there were those three votes.
Presumptively, the other three votes were then Chief Justice Thomas Matthew
Kavanagh, himself, Justice Swainson and Justice Williams. So that was three on
one side, supposedly four...Thomas Matthew Kavanagh, and three on the other
side of not committed to him. That left me sort of in the middle since I was a
new vote who had never voted before for chief justice. So we had this luncheon
meeting and talked it all over and the upshot of the matter was that somebody
decided that it was time for a change in the office of Chief Justice.
I really forget how many years Thomas Matthew Kavanagh had been
Chief Justice, but it was for a number of years and the question then arose as
to whom this job should go. Well, of the four of us, which as I say,
constituted enough votes to change Chief Justices, the senior member was Thomas
Giles Kavanagh, and so it was more or less decided that our votes would go to
him when the election took place in an administrative meeting of the court. So,
when that meeting came up, and as I recall, it was either later that week or
early in the following week. By then, of course, in the interest of
collegiality, if you will, or of disclosure of the facts, we had communicated,
and I believe it was Thomas Giles Kavanagh who had done the communicating to
then Chief Justice, Thomas Matthew Kavanagh, that he didn't any longer have
four votes for the office of Chief Justice. We thought this was only fair and
not go into a meeting and drop this on him. So, he was forewarned that he no
longer had four votes. The notice of it to him was not particularly a long time
period or anything.
It may have only been a day or so before the vote was coming up.
So, it came the morning of the administrative conference and everybody was in
Lansing and were gathering to go to the conference table, and there was some
talk, obviously Chief Justice Thomas Matthew Kavanagh was agitated because he
knew he was no longer going to be Chief Justice in a matter of a few
hours...Justice Swainson attempted to sort of conciliate the entire matter,
saying "were we sure of what we were doing here, and did we know what we were
doing" and so forth, and Justice Williams; he also attempted to perhaps, I
guess the term "conciliate" is as good as any, the matter but we had more or
less formed a pact at this lunch meeting that these are the ways that we would
vote. So, there was no deterring the entire thing.
I remember when 10:00 came and it was time to go into the
conference room, it was a pretty grim group that went in there because
everybody knew exactly what was going to be the outcome. I do not remember
totally the mechanics of it, but I believe, to the best of my recollection,
there was a motion made for the nomination of a Chief Justice, and I do not
recall whether it was Justice Williams or Justice Swainson who suggested once
again Thomas Matthew Kavanagh, and as I best recall, there was a vote at that
time, at which point, he received three votes. He did not receive four. At that
juncture, I believe it may have been either Justice Levin or Justice Coleman
who made a motion that Chief Justice be Thomas Giles Kavanagh who, upon taking
the vote, received four votes which made him the new Chief Justice. Well, the
protocol in the court is that, with the election of a new Chief Justice, the
person becomes Chief Justice immediately, so there is no waiting period or
anything like that. The changed, the deposed, if you will, chief justice is
still a member of the court, still an Associate Justice and so forth with the
same vote and so forth as the Chief Justice, but no longer occupies the head of
the table as presiding over meetings of the court.
I recall that after the vote was taken and the fact was
accomplished, we decided to take a brief recess and this necessitated, of
course, a slight shift in all of the chairs around the conference table
whereupon, when we re-assembled, Justice Thomas Giles Kavanagh now sat at the
head of the table and Justice Thomas Matthew Kavanagh was slightly...well, to
his immediate right or left but no longer sat at head of the table. Well, you
can imagine that someone who had been Chief Justice that long, who I really do
believe thought up until the last minute that there was going to perhaps be
enough votes to re-elect him, that there was some rancor in the whole situation
and sort of an uneasy atmosphere in the room after we re-assembled to continue
our administrative meeting.
This was the first matter of business...had to get that out of
the way before we went on to any of the other matters. That was accomplished.
We went on then and dealt with matters that were coming around, administrative
matters, opinions and things like that, but the rancor continued. there was a
noticeable cooling of relationships on the court that ensued for some time
after that. It was not the harmonious or seemingly harmonious group that we had
had in the previous year that I had been there. Well, subsequent to that, and
I'm trying to think which came first, Thomas Matthew Kavanagh, who as I say,
shared the office in Lansing...I think this must have been along in March or so
in 1974 and...
Would this not have been January, 1975 when the
Yes, excuse me, 1975. This was in 1975 when the election...the
election had been in November of 1974. The election of the Chief Justice was in
January, 1975. Thank you for correcting me. So, perhaps along in March, 1975,
and as I say, my office and Thomas Matthew Kavanagh's office were in Lansing,
directly across from each other, so while the others were gone, I was there and
was around him considerably more than the others were. I remember one day, he
said...he was on his way out, and I guess, just as an aside, said, "I'm leaving
to get my annual physical", and I said, "Well, good luck", and he left.
The following week, he did not reappear on the scene and we were
given to understand that in the course of the physical, they had discovered a
very serious malignant growth in the colon which called for immediate surgery.
They had performed that, and it was malignant and of sufficient magnitude that
he never did return to the court. I remember being called...I went to visit him
in the hospital a couple of times, and he was considerably sedated because he
was extremely ill, but I remember being called one evening. This was perhaps a
week to ten days after the surgery, saying that it again looked like the end
was imminent, and so I went up and paid a call, and I think all the other
justices at some juncture had been into see him, at least.
How much he was cognizant of this, I really don't know, but at
any rate, he passed away never having left the hospital following the surgery
for the colon cancer, and not long after that, we were having another session
of the court, (all of these were held in Lansing, incidently), in which the
office of the Chief Justice was now directly across the hall from mine, it was
the so-called "Chief Justice's Office". It was perhaps a little more extensive
that some of the other offices, so this office was occupied by Thomas Giles
Kavanagh when he came to Lansing for a meeting. He was not there regularly but
whenever he was in Lansing, he used this office.
I remember seeing him arrive this particular morning of an
administrative conference, and he seemed considerably agitated, but nothing was
said and the meeting was to start at 10:00 or 9:30, I don't remember which. We
all gathered in the conference room except for Chief Justice Thomas Giles
Kavanagh. He didn't come and didn't come, and we began to wonder where...he may
have been tied up by a phone call or something. He came in and as I say, was
This would have been at about, after Thomas...
This was shortly thereafter. How long, I don't know.
April or May?
April or May, perhaps one month or less after the death of
Thomas Matthew Kavanagh. There had not yet been an appointment to replace
Thomas Matthew Kavanagh which turned out to be then Justice Lawrence Lindemer
was appointed as his replacement, but it had not year occurred.
He was appointed in June, I think, was he not?
Yes, as I recall, it was into the summer. So this all
transpired prior to that. We were short one member of the court, and that was a
fact. So perhaps 45 minutes or an hour late, Chief Justice Thomas Giles
Kavanagh came into the conference room and sat down and said, "I have some
very, very serious news for you". Also, I guess as I think of it, also absent
right at that juncture was Justice Swainson.
He had been present but apparently excused himself?
I believe he might have excused himself. I don't recall, but he
was not present at the particular moment that we re-convened, so there were two
empty seats at the table. At that point, Chief Justice Thomas Giles Kavanagh
said, "I have some very sad and serious news for the court which I will relay
to you", and he preceded to tell us what had been told to him by the Justice
Department that Justice Swainson was under investigation, at any rate, for a
number of charges including acceptance of a bribe and other types of
Well, this, of course, came as an absolute bombshell to all of
us because we had had no indication of it and every appearance was that Thomas
Giles Kavanagh, the Chief Justice, had just learned about it himself. This may
have accounted for his lack of coming to the meeting on time that morning. He
had just been sort of briefed on this entire matter. Well, I remember we were
all very stunned and dumbfounded. Here we are, also, at that juncture, absent
two members of the court. Justice Swainson was there, he just didn't happen, as
I recall, just did not happen to be in the room at the time though he was
present in Lansing...so I don't recall that we really buckled down and did too
much work at that particular point. We were all just trying to digest this and
think what it meant.
Was the news relayed in the sense that not only was there an
investigation in the sense that investigations seem to be going on almost all
the time of somebody or another but that this was an advanced investigation
that was very likely to result in charges being leveled?
Yes, we were given to believe this, that the investigation had
been ongoing and it was likely, very likely to result in an indictment within
the foreseeable future. So, as I say, we were all trying to digest the matter.
It seems that it revolved around, and you may get this from other person that
are talked to in this oral history, a case which was signed in December, 1973
by the court. Allegations by a convicted felon and I'm trying to think of his
John Joseph Whalen.
John Whalen, that's correct. I was trying to think of his name,
in which he alleged that for certain favors, the trial had been granted to him.
I really didn't know too much about this because the opinion, dealing with the
Whalen case, had been signed at the December, 1973 conference which I guessed I
mentioned previously...I was a guest at. I was the eighth justice. I was
sitting in a chair away from the table watching "how does this work?", and this
has always been the custom to invite new justices in for the last meeting of
the court before they take office, and presumptively, somebody is leaving, so
that is the point where supposedly this opinion was signed which granted him a
It even escapes my mind what the charges against Whalen were.
I'd have to re-read the case, I guess, in order to remember, but at any rate,
that is not so significant as the fact that he had made these allegations
through an intermediary that he had been granted a new trial by Supreme Court
decision and as I say, I was sort of...it was all sort of revolving around my
head because I had not been a party of that particular opinion. It had been
signed the day I was a guest in the room. Well, as time went on and there was a
grand jury hearing being conducted and so forth in Detroit and of course, one
of the main players in the whole scenario who was then Chief Justice, Thomas
Matthew Kavanagh, was no longer with us, so as I recall, all members of the
court testified at the grand jury proceedings, but I never was called because I
never had any connection with this particular case. I never had to go to the
grand jury, but it did.
Were you interviewed by...?
No, I was never contacted by the FBI, the Justice Department or
any functionary thereof. I guess simply because I was not on the court at the
time that any of the allegations, supposed allegations, supposedly arose. I
just wasn't even there. I did sit in the room the day that the opinion was
passed around, but that was the extent of my involvement. So this whole matter
sort of swirled around my head a little bit because I didn't have too much
comprehension of it, never having been connected with that particular session
of the court where it happened. One of the main players, the person who was
Chief Justice at the time, was now deceased so that removed one main person who
I suppose would have testified, called to testify at the grand jury, but all
the other members of the court were called to testify as to their recollections
surrounding the Whalen case, and the upshot of the grand jury was, as I recall,
perhaps along in June or July resulted in an indictment of Justice Swainson and
as I recall, the charges were bribery, a couple of counts of it.
I really don't remember the specific details but none the less,
a serious, a very, very serious allegation, and as I recall at that juncture
when the indictment came down, he recused himself of any further participation
in the court's business. It runs in my mind there was a short period of time,
this may have come down...the indictment may have come down before Justice
Lindemer was appointed, because it runs in my mind we were down, at that...one
point, by two justices. Thomas Matthew Kavanagh was dead and not had a
replacement justice appointment, and Justice Swainson had recused himself from
any further business, so there might have been a small period of time that the
Supreme Court consisted of five active or voting justices.
And, of course, yourself was in a position, if I understand it
correctly, of having been on the court a short enough time so that you probably
had not heard some of the cases that were in the process.
That's another consideration, yes. Some of the cases that were
to be signed, where the opinions had been worked on and so forth, if you did
not sit and hear the oral argument, you didn't participate in the case, so
there was a period of time there when, as I recall, we were effectively down to
four justices who could sign opinions. Well, of course, four makes a functional
court if you get everybody to agree because you've got four votes out of seven,
but it was a very great period of upheaval in the court there. We were
short-handed. There was this pall over the court as various justices went
before the grand jury hearings in Detroit.
You can well imagine that it was a period of great stress on the
court, functioning in the continuum of the court's work, though we managed to
do it. I remember saying in gest after one section of the court, after Justice
Thomas Matthew Kavanagh had died,...well, first of all, we'd elected a new
Chief Justice and then Thomas Matthew Kavanagh had died, and Justice Swainson
was either indicted or on the verge of indictment, I remember saying in gest at
the meeting of the court, "Have things always been this bad or did they just
get bad when I came on the court?" to which my colleagues jokingly said, "They
got bad when you came on the court. They weren't bad before that", but that is
just an aside of something that I recall happening. Needless to say, it was a
very, very difficult time.
I don't remember the exact time frame...perhaps you can refresh
me. I don't remember the exact time frame of the trial of Justice Swainson, and
I know a number of members of the court testified at the trial as to their
recollections surrounding the Whalen case. I was never called. I never went
near the trial, was never subpoenaed or anything, so my recollections of that
are a little vague. I certainly was not going to go to the trial as an
observer, and I was never called as a witness, so at the time of the trial, and
I do not remember exactly when it was,...
Justice Swainson, resigned, did he not, in November, so that
must have been about the time of the verdict?
Yes, he was exonerated, as I recall...he was a "not guilty"
verdict on the count of bribery and all that he was convicted of was one count
of perjury which arose, as I recall, from a statement that he had made to the
investigators and a statement that he may have made to the grand jury, or
whatever. I don't recall how the perjury charge came up but anyway, it was one
of the charges in the trial. That's all that he was ever convicted of. The
bribery charge, he was found not guilty of, so the most serious charge of all,
was one that he was exonerated of. But, all through that period of time, period
of the trial and as I recall, there was an appeal which was either turned down
or affirmed...at any rate, the conviction stood. There was a brief period of
time then when really the function of the court was almost ground to a halt.
We were so totally demoralized and stunned by this event that we
did not function for some short period of time. Justice Swainson then resigned
from the court, as you suggest, in November, and his replacement then was
Justice James Ryan, appointed by the governor to replace Justice Swainson, so
we were back to strength, at least. Justice Lindemer had been appointed to
replace Justice Thomas Matthew Kavanagh, and Justice Ryan had been appointed to
replace Justice Swainson who had resigned. So in a period of one year, we had a
totally metamorphosed court. We had a new Chief Justice, and two new members
that had not been on the court a year previous, and there is an old saying in
appellate court circles that any change in appellate court changes the
chemistry of the court, and not only had our chemistry changed from the fact
that Justice Thomas Giles Kavanagh was now chief justice, we now had two new
members and likewise, we had been through a very traumatic period, what with
the trial of one of the members of the court and its aftermath.
So with that being over, we pretty much got back into the
routine and getting acquainted with the new members of the court, Justice
Lindemer and Justice Ryan, the members of the court were now Chief Justice
Thomas Giles Kavanagh, Justice Coleman, myself, Justice Lindemer, Justice Ryan,
Justice Williams, Justice Levin, so it was a big period of change and a very
traumatic one. I am sure that in the interviews that ensue with other justices,
those involved, as a matter of fact, Justice Swainson, Justice Kavanagh, many
of the gaps that I have left here will be filled in for the listener, and many
of the details, as I say, I simply don't remember. The case, as I say, that was
involved there, the Whalen case, I knew nothing about and was not as much of a
participant in the grand jury investigation and the trial as were all the other
members of the court, because I hadn't been there when it happened. So, with
that, I guess that's sort of a background as to what the upheaval was of the
year 1975 which was considerable for...
A consequence of the court being somewhat crippled or
short-handed was, among other things, was the Manistee State Bank versus
McGowan, a 3-2 decision on the guest passenger statue. Was that kind of
representative of one of the effects, the fact that you couldn't decide? There
was a 2-2 vote as I remember.
There was one 2-2 vote.
Dearborn fire fighters?
Yes. For some reason, some member of the court had refused
himself or herself from that case. In other words, had some connection, so they
felt they should not participate in it. Well, there was always, in the thoughts
of the practicing bar, the profession, what does a 3-2 or a 2-2 decision of the
Supreme Court mean as far as precedential law is concerned? You haven't not a
clear majority of a seven member court which, of course, takes four, so what
does a 3-2 mean, what does a 2-2 mean? Well, I am not sure that ever was
totally resolved to anyone's complete satisfaction.
I think that either you or Justice Coleman, in the dissent, in
the Manistee State Bank case, expressed anxiety over the fact that the
constitutionality decision could, where there was some question of policy,
whether the court should express its judgement as against the legislature's,
where it was a policy matter, that ...
When we did not have a majority of the court speaking.
Right, and that this was declared, I think, at one time, to be
precedential, was it not? The three...
Yes, yes. There was a point where it was declared that this is
a majority of the court sitting, court participating, and this is precedential.
Now, there was another action that we could have taken, and I'm not
positive...I know of situations where it has been taken, and that is a
re-submission of a case. It's been heard, as it turns out, there aren't enough
justices able to participate in the decision who have heard the case so it is
asked that it is re-submitted to the new seven member court, and that has
happened on occasion, and cases have been re-submitted, and basically what it
amounts to is you sort of start all over again.
The lawyers, once again, put forth all of their arguments with
the opportunity for them to convince two members or perhaps even three of their
position, and then you're free to take a vote and you'll have whatever
necessary amount. This was a real concern at that period of time as to what is
the precedential value. As I say, I believe ultimately, it was decided that a
3-2 vote was a majority of the court at least participating and had some
precedential value. That was a question when we were in that short-handed
period there that did arise.
Justice Fitzgerald, do you...as you look back, was there
anything that could have been done to alleviate this grievous problem or was it
just kind of like a stroke of fate that there was no answer to it?
No, there really was no answer to it. I mean, we were really
short-handed there. There is no provision for temporary Supreme Court justices
unlike all the other courts in the state. You could have a missing Court of
Appeals member and a retired judge or a sitting Circuit judge, even, can be
appointed for a month or two months or whatever, to sit on the Court of
Appeals, just as in a vacancy, should a Circuit Judge die, you can have another
Circuit Judge take his place. There is no provision to replace a Supreme Court
justice, so you're waiting, when a vacancy does arise, either from death or
other cause, you're waiting for an appointment by the governor and the seat
remains vacant. There is no way around it.
There is no provision to call back, say, a retired justice of
the Supreme Court and to appoint them to sit for that period of time. I'm not
sure that is practical anyway, because that's a short period of time, and they
would be participating in cases they had never heard, and about the only thing
that they could participate in properly would be administrative matters and
things like that, votes on day-to-day work of the court. It would be very hard
for them to participate in very many of the cases, so I'm not sure there needs
to be any way to remedy that because certainly the governor's appointment
powers spring into existence as soon as there is a vacancy and it's however
fast he chooses to act. As I say, I recall, it was a very, very difficult
period of time when we were short-handed there.
Is there any analogy between travail of the Michigan Supreme
Court in this period and what happened in California when three justices were
recalled? Do you remember in about 1986 or somewhere in there?
I'm not sure. Were they recalled, or did they get the vote of
Maybe that is what...
California Supreme Court justices...
I mis-spoke, it was...
...stand for retention. The question on the ballot is "Shall
Justice 'so-and-so' be retained in office?", and three of them said, "No". The
voters said "no", they shall not. Well, the election came, of course, prior to
the end of their terms and so forth, and there was a terrible hiatus there in
the California. That's a different election system, of course, one that has
been sometimes suggested for the state of Michigan. The justices run on a
retention system, rather than an adversary system between two persons running
for an office, the question is "Shall 'so-and-so' be retained?", but we've
never come to that, and a number of states do have it. Yes, there would be a
strong analogy to the California where the voters turned out three justices of
the California Supreme Court all at once. I don't imagine that the California
Supreme Court functioned very well during that period of time.
Probably not, but they were undoubtedly given a set of premises
involved in the standing for re-election or for confirmation, probably of some
transitional mechanism there, would you not think?
Well, I would think, yes.
It would have to serve at least until the vote was canvassed,
or some other...
Yes, yes...right. But I suspect when you suddenly, like in
California, have three members of the court that the voters don't want on the
court any more, it must create a not very pleasant atmosphere in which to work.
Our situation was a difficult atmosphere, but it was not one of our making nor
of the voters' making. We headed into 1976 then with a full complement of
justices and able to hear all of the cases and everyone to participate unless
there was some reason they refused themselves from a case. In hearing
everything and deciding everything that came before us, but there was that one
year period in which the upheaval was very consequential and disrupted the
whole entire Supreme Court operation, no question about it.
Yes, that was a...I guess that was without precedent.
There was nothing that I know of or have ever heard of that was
comparable in the State of Michigan, at any rate to the upheaval that we had
for that one year, and certainly nothing since where there was a time that
there were only five justices on the court, actually, for a period...not too
long, but none the less, a period where there were only five of us around the
End of side 1, tape 2.
You know, this prompts me to recall that I came in March,
1976...early in March, and was called over with Chief Justice Thomas Giles
Kavanagh when he appeared before a group of Booth Newspaper editorial writers
and editors and what was to have been a confidential, off-the-record kind of a
meeting, and he expressed, even to that group...it amazed me, of course, as a
recently reformed newspaper man, he expressed very strong opinions about
the...what had happened to John Swainson and the manner in which-
7. Memorable cases concerning workers' compensation.
Well, we've talked a lot about the turmoil in the court in
1975. How about some discussion of those cases that you dealt with that you
might have felt were either memorable cases or that were particularly
challenging. You know, one of the first ones that comes to my mind that caused
quite a buzz as I remember is the Beavers case. Do you recall that?
I remember People vs. Beavers vividly.
Right, a question of whether you could wire up an informant and
send them into a situation and record and use what they recorded, and ...
Broadcasting live, too, to the cop outside. Wasn't that part of
Yes, yes. He was also listening. One thing that you want to, I
suppose, know is that we knew when we heard cases which ones were actually ours
to write the opinion on. Now, if it turned out that you weren't going to be in
the majority, you didn't write the opinion, but the Beavers case happened to be
mine, and so I had to get into this. I was fresh enough on the Supreme Court,
so a lot of these matters that were coming along were new matters to me.
Another thing I should preface this by saying is that any case that came from
the Court of Appeals, of course, that I had participating in, I didn't
participate in on the Supreme Court for the reason that, so to speak, I had
said everything I had to say on the Court of Appeals.
I had sort of tipped my hand how I felt about this case, and
this happened with regularity. When I first went on the court, there were cases
coming up from Court of Appeals that I had been one of the three panel members,
so when that case was argued before the Supreme Court, I simply excused myself
from the bench, and my six colleagues heard and decided that case. I just
didn't have any part in it. I would be less than honest if I would say that
there was once or twice, or many more times when I was reversed; what I had
said on the Court of Appeals was not the view of the six members of the Supreme
Court, but that goes with the territory, so you don't worry about that. Just as
any judge that gets reversed...the difference is from us on the Michigan
Supreme Court, it goes up to the U.S. Supreme Court. You don't get reversed
very often. So, the Beavers case dealt with participant monitoring. The
interesting thing about the Beavers case that it was under the Michigan
constitution. We were, of course, dealing only with what the Michigan
constitution said, not the Federal constitution on this sort of thing.
How was a decision like that arrived at, Justice
That we would interpret it under the Michigan...?
Right, rather than...this was a 4th amendment case, if you
would look at it in U.S. context, was it not?
Yes. Well, I don't know how it actually came down to that, that
we would decide this under the Michigan constitution rather than the Federal
constitution, but it is a very, very common...it was just beginning to kind of
come into prominence at that time where state Appellate Courts were more and
more deciding cases under their constitution rather than the Federal
constitution. I am going to give you a reprint of an article out of today's,
October 8th, Time magazine which goes into this in some depth. "One Nation Very
Divisible" is the title of it,..."As the U.S. Supreme Court grows more
conservative, state benches are becoming the new bulwarks of liberalism", and
it discusses that whole aspect. This is now very, very common. This was an
early...we simply decided that we were going to reach a different result that
the U.S. Supreme Court had reached.
Well, now that...was not that part of what attracted attention
to your role in this?
If this had been Charles Levin, it would have been one thing,
but when you wrote the opinion, it became something else.
Yes, I suppose that is true.
Did you get any back flush for that...?
Not particularly, except for the fact that People vs. Beavers
is still being taught in law schools today, and appears in most criminal law
As when they get into the matter of 4th amendment, search and
seizure, and things like that in criminal law. So I'll just pass that article
along to you, and it is in the October 8, 1990 Time Magazine, and it goes into
what a trend this is in the United States today, but this was an early example
This is page 76, if anybody should...
Yes, October 8, 1990 Time. So, I guess that we weren't pioneers
in doing this.
You'd had an entrapment case...Turner came along about then,
Or maybe there were some others that I don't quite....
Afraid I don't remember right off hand, the Turner case. You
might be able to refresh my...
I don't recall too much about it except that there was a police
activity by a man who had an outside earlier friendly connection with the
"target" of the investigation, and there was some question raised, I think, as
to whether or not the friendship equation was exploited in the interest of
catching this fellow and convicting him. Well, at any rate, I think that the
point is clear that this was early.
This sort of thing was...
This was an early example of a case, rather than being decided
under the U.S. constitution, was decided under state constitution...it was
decided that we could decide cases differently under a state constitution than
the U.S. Supreme court under the...we could make it broader or narrower, the
interpretation of a given right, so to speak. I think probably the case that I
best remember out of the entire time I was on the court, and perhaps where I
think, at any rate, I cast a vote for what was the law and so forth was the
Poletown Neighborhood Council vs. The City of Detroit.
Yes. Why don't you recall...?
Well, Poletown case arose because General Motors Corporation
was seeking to condemn a large portion of the city of Detroit and the city of
Hamtramak. This was called Poletown because a large number of people who lived
there of Polish decent. It was monumental the number of buildings that were
going to be taken, the number of people that were going to be displaced, the
number of churches and business that were going to be torn down, and it all
arose over the fact that General Motors had to have a piece of land that was
served by a certain number of freeways, which this was, a certain number of
railroad tracks that came into it and so forth.
The city of Detroit, of course, at that period of time...the
case was decided in 1981, but the automobile industry was in bad shape at the
time, and General Motors had said, "Unless we can automate more and get certain
efficiencies, new type of plant to replace our old plants in Detroit, the
Jefferson Avenue plant and so forth, we're just going to move out of Michigan.
We'll move to Oklahoma", as I recall. So, they sort of had the city of Detroit
where they wanted them, plus they were also demanding a number of tax
concessions and so forth, and the big thing, of course, was this power of
condemnation, to take a vast area. There had been a statute enacted by the
legislature, the previous year to this, and it has often been said it was
enacted with this in mind, the so-called "quick take" statute which enabled the
condemnation procedure to speed up considerable. You got the land, and then you
could decide how much the person got for his property later. The Poletown case
came up to us in an atmosphere of serious economic problems in Detroit...
This was about the time of the 38% income tax to relieve the
State Treasury of some of its grievous problems...
That's correct, yes, in addition to everything else. They
wanted to take this large tract of land, thousands of houses, churches. I think
it was nine churches that were to be demolished among this, in this given area,
which was sort of a tight-knit ethnic area, called Poletown, as the name
suggests. We were testing the constitutionality of the law which said no taking
of private property for private purposes; you can only take private property
for a public purpose. Well, the court heard the opinion and the decision came
down ultimately, 5-2, that the taking of Poletown area was private property,
was a public purpose.
Well, I couldn't swallow this. It was to my way of thinking that
if you took private property with the idea and the full knowledge that it was
going to go to General Motors Corporation, that is taking it for a private
purpose, so this was the case...the wrecking balls had swung in some instances
and were ready to swing some more. This was sort of a record...I'm looking for
something in my file here on Poletown. Sort of a record for speed on the
decision by the Supreme Court. The reason I find this in my file is that I
teach Property at Cooley Law School and naturally, this is an aspect of it,
condemnation, and I'm looking at the head notes of the Poletown case argued
3/3/81, decided 3/13/81. From oral submission to written decision - 10 days.
That's a little unusual.
Very few Supreme Court cases come down that fast, but here we
were, as I say, the wrecking ball had been swinging and had been stopped, and
the whole thing had to move on or move on, one of the two, so it was necessary
that we make this decision. Well, the majority of the court, five members, said
that this was a proper exercise of the power of condemnation, that to alleviate
unemployment is a public purpose. Well, this has never been...the taking power
had never been construed this far before, to alleviate unemployment is a public
purpose. I am reading from a majority opinion here...it says "the power of
eminent domain is to be used in this instance primarily to accomplish the
essential public purposes of alleviating unemployment and re-vitalizing the
economic base of the community.The benefit to a private interest is merely
Well, I didn't quite see it that way. I thought that the
benefit to a private interest, General Motors for a private interest, was a
little more than incidental, and so it was necessary that we get out an
opinion, the majority opinion, that simply is a precarium opinion of the court,
not terribly long, probably not more than 15 pages or so, and it ends up that
it is concurred in by Justices Coleman, Kavanagh, Williams, Levin and Blair
Moody, who incidently, had replaced Justice Lindemer at this juncture on the
court, concurring in that, and I then, very rapidly, once I knew how the court
was going to come down and what reasoning they were going to use, I had to get
a fast dissent out, and so my dissent starts out simply by saying "this court
today decides that the power of eminent domain permits the taking of private
property with the object of transferring it to another private property for the
purpose of constructing and operating a factory on the ground that the
unemployment and other economic benefits of this privately operated industrial
facility are such as to satisfy the public use requirement for the exercise of
the eminent domain power because I believe the proposed condemnation clearly
exceeds the government authority to take property through the power of eminent
domain, I dissent", and went into about a seven or eight page dissent.
Well, Justice Ryan concurred with me and signed my opinion.
Well, then later, we had the whole thing out. There was the vote - 5-2 with the
majority opinion and the dissenting opinion. Justice Ryan then, as anybody can
do, was able to write a much longer opinion and go into all of the facts of
what had happened in this. I had simply come down with the legal reasoning and
not gone a great deal into the facts of the situation, so the vote was 5-2, and
Justice Ryan later found his own dissenting opinion, a phrase from which has
become quite famous: "What General Motors wants, General Motors gets", and that
is contained in his dissenting opinion. But at any rate, we had fulfilled the
requirements of what the Supreme Court is there for by having heard the case
argued one day and ten days later, we had an opinion by the majority and a
dissent out and Justice Ryan was able to file his dissent. I think it was maybe
a month or six weeks when he filed his.
That's a little unusual, is it not?
Well, ordinarily, yes, but there simply wasn't time, and he was
free. I did not sign his dissent, not that I didn't think it was okay, but he
did use a little different reasoning in the thing and actually, what he did
more than anything else was flush out the entire situation which, from a short
majority in a short dissent, is a little bit hard to get all the background of
the case in either one of them, so his dissent serves a purpose, if you read
that, of laying out the entire history of this quick-take statute and the
actions of the City of Detroit in condemning property and so forth. Well, I
don't know, there are still Poletown cases on award of damages still in the
courts today, and this is 1990, so...at any rate, I think that probably was the
most significant case that I had a connection with while I was on the court was
the Poletown case in which I dissented at the time, and the majority and much
of the media thought, "Well, let's just forget about that constitutional
provision that private property shall not be taken for private purposes".
You had some...a whole philosophy of
I guess you could say that. I don't as it was strict
constructionism. It was certainly in the Poletown case, because I do think
stretching to say that it is a public purpose to alleviate the economic
conditions is stretching the taking clause.
You also wrote a case, as I recall, that was very meticulous in
preserving the ballot right of a minority party. Was it the Socialist Workers
or one of those, that the...wherein you again enunciated your conviction that
you ought to go very slow in disturbing the very fundamental rights of people
in our society?
I think it had to do, as I recall, with the percentage of votes
that you had to have in order to get candidates of a certain party on the
On the November ballot...
On the November ballot.
In order...they had to...they could get on the primary
Yes, but if they didn't get enough votes in that election, they
wouldn't be on the November ballot, as I recall, and I believe it was the
Socialist Workers Party. I am trying to recall the actual name of the case. It
was a...and I guess you could, as I recall, the result was that they were
allowed on the ballot.
You were on the prevailing side of that...
Yes, the prevailing side of that particular matter, so I
How about the state Constitutional issue where...I think that
you lost on this one...where there was the tie vote proposition in the Senate.
Do you recall that one?
It was the vote of the Lieutenant Governor as splitting a tie
when you got, say an 17-17 vote or 18-18 vote in the state Senate, nobody has
got a majority of vote, either side, and the Lieutenant Governor casts the
tie-breaking vote on the passage. As I recall, I took kind of a...maybe having
served in the Senate, I don't know...
Your position, as I recall, was it not, that if the
constitution says that the majority of those elected and serving is necessary
to adopt a bill...
And my point was that the Lieutenant Governor had never been
elected to the Senate.
I guess maybe as much as strict constitutional interpretation,
common sense and a fair reading reached that conclusion for me, that it was "of
the members elected and serving", was the term, and when the Lieutenant
Governor casts the tie vote, that is not a vote of a member elected and serving
enough to push it over to one more vote for one side or the other, either yes
There were a string of Workers Compensation cases I think where
you were on the dissenting side in many instances. One of them that I recall
that brought a little attention is the Honey West case. Do you remember that
Yes, that was a question of definition of "wife", I think.
"Dependent", that was it. It was "dependent, and Honey West
had, I think, lived with and done for this man for many, many years, and he had
died, and the question, I think, was whether she would continue to receive his
Yes, not Social Security, Workers Compensation benefits, and I
believe the majority said, "Yes, she stood in exactly the same position as a
wife and should receive them", and as I recall, I was in the dissenting group
on that one. It runs in my mind that maybe that was about a 3-4 decision.
I think it was, and she was legally married, as I recall, to
To another man, yes, drawing Workers Compensation on her late
person that she had co-habited with and never had been married to.
Your position was this is stretching things.
Stretching things, yes, to say that she was...granted, she may
have been dependent on him, but I think, thinking more in terms that dependency
sort of entailed marriage. I am not sure today exactly how that case would come
out. I think it would come out exactly the same as it did before. We are more
and more stretching the term "dependent" today than we ever were then, but I
remember, I think I took a kind of a narrow interpretation of what a dependent
was. At least, she had better have been married to him sometime, and she was
Do you recall the Workers Compensation cases that turned on
mental illness? The subjective rule was adopted in Deziel vs. Difco, and there
was a Redfern vs. Sparks Withington. Do you recall those case?
Vaguely. The Deziel case...there was some kind of a term that
came out of that mental illness that resulted in a severe social dysfunction. I
think I dissented on that. It came down to the definition of mental illness, as
I recall, and that was one, I think, of the few actual votes that came perhaps
down to a partisan vote, as I recall. It was Justice Ryan, Justice Coleman and
myself in dissent, and the other members of the court who either had their
beginnings in the Democrat party or in the Independent Party of Justice Levin's
went the other direction, a much more liberal interpretation of that mental
As I recall, and you correct me if I am mistaken here, what was
called a subjective rule, was it not, wherein if the employed person who
suffers disability says, "Boss, I just can't hack it anymore...".
Yes, "I can't cope", then that was mental illness by that
And that was the end of the matter, and you pain benefits, is
As I recall, that was what was decided in that. It was left
more or less up to the employee argumentally, disabled or not...as you say,
this was a subjective test, and I think what I was thinking of more of those
terms was perhaps a little more objective test, not...it seems to me for
somebody to tell the boss, "I am mentally disabled, and I can't carry on any
longer", is sort of a self-serving declaration because they are going to, of
course, go on disability, and...
Do you remember, was it the Dressler or Drexler case where the
employee had, on his employment application, falsified the answer to a question
that related to previous disability.
He had had a back injury, and...
He said he didn't have a back injury, and then he got a back
injury on the job, and as I recall, I was in the dissent on that and the
majority said he gets Workers Compensation.
What was the rationale, do you remember?
I honestly do not recall what the rationale of the...I think
that perhaps...it got into matters of injury and re-injury in the Workers Comp.
area, and I think that he did suffer, I guess you could say from the
facts...his back did get worse on the job. He may have re-injured or an injury
arose on the job, and I think the majority said "This is sufficient" despite
the fact that he had concealed it when he came on the job.
In one of the dissents, it seems to me there was the phrase,
either yours or someone else's, "It pays to lie".
I don't recall that that was my phrase, but it might be, and as
it turned out, he had concealed the fact of a back injury, then got a back
injury or re-injured it, aggravated it, and drew benefits, and I suppose that's
where that term probably came from, "It pays to lie". He drew Workers
Compensation benefits that he was not drawing before because he had lied on
his...he would not have been hired, probably, had they known he had a bad
8. The legislative role of the court, collegiality, and the
There were cases, and maybe I'm carrying on too much about
these subject matters, but it seems to me there were other cases besides the
election case, and the monitoring case where you were, and I was thinking of
the fairly strict construction of the constitutional language as far as this
passing a bill in the Senate is concerned, where you would, in your comments,
either being on the prevailing side or in a dissent, would bring up the matter
of the separation of powers. This was a fairly consistent theme, was it not, in
your writings that this is a matter for the legislature? What is your feeling
about the courts role in making public policy in that period?
Well, there was always that, and it continues to this day, is
the court legislating by a certain interpretation of something the legislature
has passed. I guess that, you know, it is always said that we're the products
of our backgrounds. Having served three terms as a state Senator, I guess I'm
perhaps viewed a little more stringently than some on the court, the function
of a legislative body, that what they say shouldn't be tinkered with too much.
As a corollary to this, there was just recently an opinion that
came down from the Michigan Supreme Court now as of a couple weeks ago in which
there was a statement, a dissent filed by one of the Justices interpreting what
the Legislature had said, and the Legislature had not said that at all. The
opinion said, "This is what they would have said if they had considered the
matter". Now that's about as far as you can carry judicial legislation or
changing what the legislature did say. I guess any time that I came down on the
side of saying, "This is what it says, and we aren't going to expand it any",
came probably from the fact that I had been in the legislature, and didn't like
to see...there is such a thing as statutory interpretation, any court sometimes
has to do that.
A statute does not read well, and you have to...but to change
what it a pretty obvious meaning of a statute into something else, I never did
care too much for that, and I think, as I say, this case, and I can't think of
the name of it, came down just recently where one dissenting opinion said,
"This is what the legislature would have said if they considered the matter".
That's about as far as you can take it. I always...I guess, if anything, I
erred on the side of strict interpretation of what the legislature said without
going too far afield.
Was the Michigan court, in your view, somewhat typical or was
this...to put it another way, this tendency to stretch matters in the field of
legislating an infirmity of the court system generally? You know, there have
I'm not sure. I think there are courts that are known as strict
interpreting courts and others who aren't, and there was a period of time on
the Michigan Supreme Court prior to when I got there when the Michigan Court
did have a pretty strong national reputation for, for want of a better term,
legislating, interpreting legislative acts in a way that best fit social
solutions or economic solutions, but that...by the time...I don't think the
court, at the time I was there, was known for this. We had majorities and
dissents and so forth, but I don't think the court was notorious for being a
legislating court at the time I was there. There was a time maybe ten years
prior to that, that it was considered to be pretty much on the cutting edge of
judicial legislation. That had sort of begun to fade.
Did you feel that during the latter part of your tenure on the
court..I'm thinking now after the first year or two, or year and one-half of
turbulence, did you feel that the court achieved a very high level of
collegiality and good will?
Very much so. At the time that I left, there was a great deal
of, for want of a better term, collegiality, for whatever that means. We
disagreed often on matters of law. It was rarely, rarely ever on partisan
issues or on partisan lines, and at the time that I left, the court was very,
very happy and very well. However, just as I left, things turned less so, as
you will remember, Justice Coleman had retired, leaving just prior to the end
of the term, and I was Chief Justice at the end of the year in which I left,
and now Chief Justice Riley was appointed to the court and spent the last two
weeks of December on the Michigan Supreme Court only to be deposed, after I had
left, as soon as the session started up again the next year, only to be
Justice Williams had become Chief Justice, and Justice Riley was
put off the court...she had been appointed by Governor Milliken, and Governor
Blanchard then taking office, had appointed Justice Boyle, and the court heard
the entire matter and said Justice Riley goes and Justice Boyle, as Governor
Blanchard's appointment, is the proper successor, so as I left, the storm flags
were flying because, as I say, Justice Riley spent two weeks on the court when
I was Chief Justice and participated in administrative matters and things like
that. She was unable to participate in any of the cases because she hadn't
heard any of them, but the storm signals were flying that it was going to be a
bad year coming up, which turned out, it was a bad six months of quite a bit of
turmoil before the court, once again, settled down. It has turned in, since
then, to I think a well-functioning, as witness to the fact that Justice Riley,
who was deposed from the court, has gone on to become Chief Justice, so I think
that perhaps the collegiality is back. But the last two or three weeks of my
tenure on the Supreme Court, things weren't...obviously were not heading in
exactly a tranquil direction.
Do you recall in making a judgement as to the condition of the
court during this period that we speak of just now, there was a conspicuous
absence, as I recall, of severe rancorous criticism, even where there was
disagreement, basic deep philosophical disagreement, but there was nothing like
a slashing memoranda?
No, there was never any writing back and forth in opinions or
anything like that. If you had made up your mind about how a case should come
out, you wrote your opinion. If you didn't agree with that, you wrote a
dissent. There was never any personal innuendo or any kind of use of
intra-court memoranda or communications or anything like that in opinions. It
was a very tranquil period as far as personal relationships and personal
How do you account for that as compared with the bitter strife
that you have heard about...?
Well, I think that perhaps part of it was the very fact that we
had been through that baptism of fire that year that I spoke about there when
we realized just how bad things could conceivably be in the Supreme Court. Here
is a change in Chief Justices which was rancorous, the death of one of the
justices, a period when we were down to five, one of the justices the object of
a Justice Department investigation and later a trial that we realized that
petty differences that we might have between ourselves were pretty innocuous
compared to what really could happen and so consequently, all of the pettiness
and the rancor that could have, simply because you disagreed violently with
somebody, all kind of faded into the background.
You simply spoke your piece in the only way the court can, in a
written opinion...you spoke your piece, and that was that. There was no point
in making it personal because I think we had, the majority of us, had been
through such an awful period of baptism of fire to realize that petty
differences, as far as the court is concerned, should be left behind and not
perpetuated, and so things were pretty good for the last three years, four
years that I was on the court, very little rancor, certainly no personal hatred
or vindictiveness at all, that I could see.
This is interesting...at least I was interested in your
attitude about that because I ran a scan similar to the one of your cases on
John Voelker when he served in 1957 - 1959. It was interesting to me, and maybe
you would see something worth observing about this, that the machine turned up
84 cases where he wrote the majority opinion and 14 dissents where either he
wrote a dissent...and when I did the same for your cases, and I have forgotten
whether the total is entered in those sheets or not, but it came out something
like 89-75. There was not that overwhelming ratio of relative agreement and
yet, there was...there seemed to be an atmosphere of civility.
Yes. There was a much greater atmosphere of civility than I've
been given to understand the court had in previous years. A lot think the
reason was for...as I say, the only explanation I have for it is that perhaps
we had all learned that personal differences are transitory, and that it's real
trouble that contributes to a court's problem and external forces and so forth.
I guess there's a old saying that most Appellate cases probably come out the
way they ought to come out. You know, no matter how many dissents that may be
filed. I think that we had just learned... and plus, in addition, it was a very
congenial group. I think we genuinely had affection for each other. I remember,
I think it started this interview last time, I observed that Thomas Giles
Kavanagh once said that members of an Appellate Court are involuntary seat
mates for a period of time, so we had sort of maybe all come to realize that,
that we are here and we've got a job to do, and there is no point in injecting
any kind of venom or unpleasantness into it. Do your job and don't go any
farther that you have to in being unpleasant or rancorous.
Three of you had served on the Court of Appeals prior to
Did that have anything to do...?
May well have, because that was a very harmonious operation,
particularly in the early days, and Justice Kavanagh, Justice Thomas Giles
Kavanagh, Justice Levin and I...all three of us had served on the Court of
Appeals and had been in a formative period of it and perhaps saw that an
appellate court, granted, a slightly different function and different means of
sitting and things like that, could be a harmonious, pleasant atmosphere, and
so, as I say, the last few years were...it was a pleasant place to work.
I know in my role, I would think of trying to project the idea
for public relations reason of a "Family Court". I counted up one time the
number of children and grandchildren that the members then sitting on the court
had, and there was quite a large number, and the years of marriage, and at that
one time or prior to the last of your service there, all of the justices had
been married for a long time to their original spouse, not only were there
children and grandchildren, but there was a sense of stability in a family
Yes, that may have been our own personal mind sets or something
that had something to do with it. It's hard to say.
End of side 2, tape 2.
Well, Justice Fitzgerald, I think this tape is about run out.
Would you mind if I take a few snapshots very quickly? This is the end of the
tape on 10/8/90.