Interview with LAWRENCE B.
Sponsored by Michigan Supreme Court Historical
Conducted by Roger F. Lane
October 4 - 9, 1990
1. Justice Lindemer talks about being appointed to the Supreme
Court after the death of Justice Thomas M. Kavanagh, working for Consumers
Power after not winning re-election, and later going back to the firm in which
he was a partner before his appointment. He discusses the effects on the court
of Justice John Swainson's investigation and resignation in 1975 and
philosophical differences among the Justices.
Have you got him on tape?
Oh, that's great.
Well, you know Larry, what I'd like to do. This is testing. I
want to be sure that the machine is operating right, and I will stop it in a
second here. That right light ought to be on. Okay, this is Justice Lawrence
Lindemer sitting in a conference room in his law firm's offices. With him is
Roger Lane representing the Michigan Supreme Court Historical Society, and
we're here to tape some of the reminiscences and observations, commentaries
that Justice Lindemer would care to make about his service on the Supreme
Court. He went on the Supreme Court in...what was it...June of...?
June of 1975.
And served through calendar, 1976.
Justice Lindemer, what was the first thought you ever had about
the fact that someday you might serve on the Supreme Court? As a young lawyer,
did you aspire to this or did it come on suddenly later on?
I really hadn't anticipated going on the court, and it was not
one of the things that I had as a goal in my life when I started. I enjoyed the
practice of law and I guess to the extent I thought about doing anything else,
I thought about doing something in politics rather than in the judiciary.
Did the idea of politics as you thought of then embrace the
No, it didn't, and I guess I never really thought about it. The
death of Justice Kavanagh came as a surprise to me. I did not realize how ill
This was in April, 1975, right?
Yes. Well, I think he...didn't he die earlier, in February, or
did he die in April, 1975.
I'd have to look it up.
I'm not sure. I thought maybe he might have died as early as
February of 1975, but I'm not certain about that. I was talking to Joyce
Braithwaite in the Governor's office about another matter, I think, and I said
at the time, "You know, that's something that might interest me", and she acted
surprised because my recollection, Roger, is that the pay at that time was
$42,000.00 which wasn't much, and I was making considerably more than that in
the practice of law.
At that time, you were a partner in this firm...?
At that time, I was the...yes, I was...the firm's name at that
time was Foster, Lindemer, Swift and Collins, so I was second to Dick Foster in
the firm name, and I'd had a good practice and things were going well.
This was the largest law firm in town, too, was it not?
Yes, it was and is the largest law firm really between the
Detroit area and Grand Rapids. So, it came as a surprise and then I mentioned
it with some degree of casualness, really. Then she got back to me and made
some additional inquiries and so forth, and I began to think if there was a
possibility, it was something that I thought I would like to do.
Our children had been educated, and while we were no where near
wealthy, Becky and I didn't have any major financial concerns, and I felt it
was something that I could do, and if I was successful in doing it and stayed
on the court, that it would be something that I would be willing to spend the
rest of my legal career on. So, I discussed it with very few people, Dick
Foster being one. I didn't discuss it with him initially, but when there
appeared to be some chance that at least I was being considered, I discussed it
with him. The interesting thing was that in all the speculation about the
appointment of a successor to succeed Thomas Matthew Kavanagh, my name never
That doesn't speak very well for the newspaper men back then,
But it pleased me because it was a clear indication in whom I
placed confidence for the confidentiality were observing it, and it never got
out. It came as a surprise to the onlookers. I remember how diligently Bill
Milliken went about it. Among other things, I don't know...I knew the State
Police ran a check on me.
At that time, had you talked to Milliken or was that later?
Later. Not about this. No, I never importuned him about it at
all. I felt that neither he nor the Republican Party owed me anything, and if
it was something he thought was good to do, fine. If it wasn't, I certainly
would understand, because there were a lot of people who were more vocal in
their desire for the appointment, who had, I thought, very good
recommendations, so I did not put pressure on him.
But I remember one time, he wanted to...after the State Police
had cleared me and so forth, he said, "I want to know about your income tax
returns and so forth". He said, "I don't like to do this, Larry", and he called
me directly about this. He said, "I don't like to do this, Larry", but he said,
"Could I see your last three year income tax returns", and I said, "Sure". He
said, "Have you had any problem? Have you been audited?" and so forth. And I
guess I was audited in 1964 but had not been since then, and that proved
So, anyway, we met, and I don't recall where we met, but this
entire transaction about the income tax return took place in the back seat of
the Governor's limousine while he was going from one place to another and then,
as I recall, the driver had to take me back to my car, wherever it was, so
nobody knew that I was with him. He went over and asked me some questions about
it, and so forth, and decided that he wasn't going to be embarrassed about
anything that might come up from that source. Then, I was told that I was going
to be appointed, and that the Governor was going to announce it on the 5th of
On the morning of the 5th of May, I had to be in Circuit Court
in Livingston County before Judge Paul Mahinske, and I remembered that I wasn't
sure how long that would take, and I didn't want to be tied up past the noon
hour because it was going to be sometime after the noon hour that this would
break, that the Governor would announce it, so I went into see Judge Mahinske,
and I said, "I hate to ask for any special favors, but if I could possibly get
on with this motion early in the docket, it would be a great help to me because
I do have something happening this afternoon that I've got to take care of and
be ready to take care of", and he didn't ask me anything about it. He was very
accommodating, and I think, as I recall, I was either first or second up on the
call of motions.
We got the matter out of the way, and so forth. Incidently, I
won my last motion before I was going on the bench. Then it was announced, and
at that time, it was...well, I guess, shortly after it was announced, Thomas
Giles Kavanagh who was then Chief Justice, called me and said, "When can we get
together?", and I said, "Well, I'm available at your discretion", so I think
within a day or so, I went over to see him. He came into town, and we sat in
his office and talked and set up a time for the swearing in and for me to go on
the bench and so forth that would have allowed me to clean up some of the
things that I had and get in touch with my clients, and you know, that sort of
Was the disengagement process, considering the fact of your
heavy commitment in your law practice...was this a problem? It took you
what...a month or so, did it?
Well, I was sworn in June 4th. No, it really wasn't a problem
because I had within the firm, a number of people who were willing to help, and
I was able to get in touch with my clients very quickly. I think I did most of
it by telephone and said, "I'm willing to transfer the file or whatever to
anybody you want. If you want someone in this firm to handle the matter, I'm
perfectly willing to see that it gets handled properly for you, but whatever
your desires are, we will accommodate to them", and I guess there were a couple
of people that wanted something to go to Jackson or Ann Arbor, but a lot of my
clients...Michigan Milk Producers Association was my largest single client at
I was general counsel of that organization, and I had told, I
had given them a little bit of warning about it...just the manager on a
confidential basis, and that was another instance; they observed the
confidentiality of our discussion. They wanted to continue with the firm, and
we got somebody here to move in on that, and so that's the way that was taken
care of. It was not a terribly difficult problem. One of the side notes with
the quasi-humorous aspect is that we had kept this so tight that the firm had
just ordered a whole batch of new stationary...I don't know, $4,000.00 to
$5,000.00 worth of new stationary with a name on it, which of course, the
minute I went on the bench, had to be thrown away, so we got a lot of scrap
paper out of that.
Your firm name then switched to what?
"Foster, Swift and Collins" and the reason it later became
"Foster, Swift, Collins & Coey"...the reason that it remained just "Foster,
Swift and Collins" was that we all realized that I had to withstand election in
1976, and there was no guarantee that I would be re-elected, and there would be
a slight possibility that if I didn't, I might come back and so forth, and so
they wanted to keep that option open.
On that particular point, when I was not successful in 1976, and
Blair Moody defeated me, the firm got in touch with me right away, and said,
"Are you coming back?" and were most cordial about it, but I felt at the time
that...well, when they got in touch with me, I hadn't talked with anybody else
about doing anything else, and I thought that maybe I would, but also, the firm
had made its adjustment to my not being here.
The clients that I had were happy with the lawyers in the firm
with whom they were working and for me to come back and take those or to try to
take those clients back and so forth would have been a little bit sticky, and I
could see the possibility of there being some other elements of stickiness to
coming back in after...although it was only something less than two years,
nevertheless, changes had been made, and the firm was operating very well
without me. I decided that I would wait before I made that decision and then
eventually, as you know, I made a decision to go elsewhere, so it wasn't until
that stint was done that I came back to the firm.
When did you come back? Do you recall?
Yes. Instead of coming back to the firm in 1976, Al Aymond, who
was Chairman of the Board of Consumers Power Company, had come to see me at my
home in Stockbridge, and we talked about my going there. The General Counsel at
that time was James B. Falahee, Jim Falahee. Al was very high on Jim Falahee,
and I think had in mind moving him up in the management of Consumers Power
Company which, of course, is what happened to Jim.
He later on became president of it and so forth, so he was moved
up, and I went in as General Counsel at Consumers. I stayed there until my
sixty-fifth birthday which was in August, 1986, and I retired from Consumers
effective September 1, 1986, but they didn't have my successor on board, so at
Bill McCormick's request - he was the CEO at Consumers, and at his request, I
stayed as a consultant until Tony Smith was able to come aboard which was in
late 1986. In fact, I think I really didn't start with the firm here until
November, 1986, so I've been back almost four years now.
I wanted to point out what I'm doing here so you'll know. This
is to index the tape, little tiny notes to tell people that are going to look
It doesn't bother me. Go right ahead. Well, let's see. Go back
1975, right, thank you. I had in the practice of law, had done
some litigation in the trial courts. I had also handled appeals. I had handled
matters in the Michigan Supreme Court, so I was familiar with the Court a bit.
A couple of members of the Court, I guess, had heard that mine was one of the
names under consideration.
Prior to the announcement?
Prior to the announcement, and they didn't hear it from me, and
in fact, I don't know where they heard it from. They never indicated, and I
never asked, but I remember Chuck Levin was one, and he and I met for dinner in
Mason, Michigan one night, and...at his request, and we talked about it, and he
told me of the various aspects of it that appealed to him and so forth and
urged that if I had a chance to do it, that I do it. I met Ted Souris on the
highway one day, and he'd heard about it. I didn't know that he'd heard about
it, but he heard about it, and he indicated that he thought it might be
something that I would enjoy doing although he had voluntarily left.
He had served when...from 1960 to 1967 or somewhere in
I can't tell you the years. I would suspect...I would have
thought it was later than that, Roger, but I don't have in my mind of the years
that Souris served on the Court. I mentioned those just by way of example. I
don't recall any member of the Court with a Republican background, and that
would have been Mary Coleman and John Fitzgerald...neither of them spoke to me
about it that I can recall, and maybe they didn't know what was going on or
what possibly was going on.
Have you ever seen Levin in Mason since that night?
No. I have not seen Levin in Mason although subsequent to that
night, I saw the entire Court in Stockbridge, believe it or not. We had dinner
at my home one night. The members of the Court and their wives, and it was
during a period of time that the heavy cloud hung over John Swainson, and he
wasn't coming into court. He was operating out of his home. He had not retired
from the Court. He was still a justice, but he just wasn't around.
Would you like to face that whole situation kind of head on? I
was going to ask you what the proper time...there were 3:2 decisions, weren't
there, at times?
And there was a Court that had...that wasn't hitting on all
sixteen cylinders for obvious reasons.
Or even all eight cylinders.
Was there...did this damage the Court or the function of the
Oh, it had to.
Was there any remedy for that other than what happened?
I don't have any alternative to suggest for what happened given
the various facts that became subsequently known. I don't know what else could
have been done. I was so new on the Court. I had no experience to compare the
Court during this relatively brief period of time with what had transpired
before. I do know that when he left the Court and Jim Ryan came on that the
operation smoothed out and so forth which is only because of the difficulty of
that situation. The Court hired counsel...
Now, excuse me, Justice Lindemer. Let's pin it down. Now, the
resignation of John Swainson from the Court occurred...was it in November,
I mean 1975...quite late in the year.
It was quite late in the year, yes. My recollection is that it
was November, but I can't be certain.
And Justice Ryan would have joined the Court at some...
Sometime subsequent to that. It seems to me that it was
practically into 1976 before he came on the Court again. I haven't looked up
any of these dates, and I don't recall. You've got it right there, Roger.
So for a period starting with the death of Justice Thomas
Thomas Matthew Kavanagh, yes.
Thomas Matthew, and that would have been in very early part of
1975. I cannot spot it here instantly, but it would have been in February,
March or April.
And so for a better part of a year, until Justice Ryan,
appointed December 2, 1975...I suppose he probably was seated at some time
subsequent to that?
Yes, see he had been on the bench, so he could have moved
almost immediately after appointment right into the Court. He didn't have to
wind down a practice. He'd been a Circuit Court Judge in Wayne County, and he
moved from there directly to the Court.
So there was quite a long period of time when the Court
Well, I think prior to my appointment or prior to my taking
office in June, probably Swainson had been more active on the Court, but I
know, and the only thing I know is that after I was on the Court, Swainson's
participation was very low for the period of time until he resigned, and, as
you say, that's November, so from early June through November, there was very
little participation by Justice Swainson on the Court, and it was his...his
travails were a matter of grave concern to the Court as a body and of course,
to the individual justices.
That was a most unhappy episode in the history of the..
Well, you were there then.
I came...I was in Michigan then.
But you came after that to work for Thomas Giles.
Yes, I came in March, the first of March of 1976.
1976, okay, so that preceded you.
But, of course, it overhung the entire state agenda, you might
say, because of the conspicuousness of the office and...
But you see, Alice Swainson, Justice Swainson's wife, and my
wife, Becky, were members of the same art class in Chelsea, Michigan, and knew
each other there, so in the early fall of 1975, when we hosted the Court, we
invited the Swainsons to come, and didn't know whether they would or not, but
they decided to, and we just had a social evening, a chance to get to know each
other and spouses better and so forth.
That was prior to your appointment?
Oh, no. No, no. It was the fall of 1975.
I see, I get it.
No, I was on the Court at that time. So they came...
What were some of the evidences of the effects of this? Were
cases backed up? Were there cases where there were six votes maybe, and the
Court was evenly divided? Were there cases that because of the uncertainty were
informally postponed or put off hoping that the Court would have a full
complement in a few months? Do you remember any of the details?
I don't recall, other than the fact that there were fewer of us
to apportion the cases among, but I don't recall that there was any specific
delay in considering matters unless, of course, John Swainson was involved.
If it was an opinion of his, and so forth. My recollection is a
little bit weak on this, Roger, but I think that to the extent that he had been
assigned matters and had participated in matters before, that those were
largely concluded in this period of time, and he was not assigned, during this
period of time, at least it is my recollection, he was not assigned anything
further to do.
Of course, when I was first there at the Court conferences, I
was on the sidelines for much of it because the conferences were considering
matters that had taken place, cases that had been heard by the Court and
opinions that had been circulated involving cases on which I had not been
sitting and about which I had no knowledge.
I recall specifically John Swainson coming to the Court for some
of these conferences. I don't recall that he sat on the bench to hear cases,
but I think to the extent that he had matters on which he had worked, and those
matters were the subject of discussion in conference, that he came to
participate in those until, of course, his time that he resigned.
And would he participate actively in the sense that he would
make recommendations or suggest changes in draft opinions and that sort of
I don't have any recollection of the extent of his
participation in those conferences which indicates to me that there was nothing
of particular note, either one way or the other.
This period that we're talking about was a period during which
he was under investigation or had he been...
He had not been indicted. He had not been indicted. My
recollection...well, I really ought to check.
Well, let's see. Here, I can pull out the date of his
resignation. Let's see...Justice Ryan succeeded him, didn't he? He was
appointed December 2nd, so it would have had to have been before that. This
summary that I've gotten out of the Michigan Manual here is not too clear.
Well, it has what are considered to be the...in frail condition
Now, that's the footnotes, and here are the periods of
I'm going to make a guess that it was November when he
resigned, and I think if I'm wrong, it would only be by a very little bit.
Oh, yes. It just says...it shows the year of his resignation
was 1975. Swainson served on the Court from 1971 to 1975, and it just says
"resigned". It doesn't say the date of the resignation. My recollection is that
it was in late October or November, and because there was not a long period of
time after his resignation before Jim Ryan was appointed to fill that
Jim Ryan was kind of an odds-on choice at that particular
moment, was he not?
Yes, I think he was.
Well now, when you...if you think it's appropriate way to
go...what were your recollections of your reception on the Court in the sense
of the individual treatment that you received, and how you clutched into this
problem where the court was short-handed? Did they pile you up a little extra
I have nothing to compare it with. I didn't know whether we had
extra piled on us or not. I just know that I was...as soon as I got on and sat
and started hearing these cases, I was assigned the same as the other members
of the Court who were there.
The thing that I remember most...Giles Kavanagh...of course, you
know him well...Thomas Giles Kavanagh was Chief Justice, and one of the most
gracious people in the world, and when he called me over and we started
talking, I think almost immediately, in spite of our partisan political
differences which frankly, were not matters of concern to either one of us, but
he was very friendly and helpful. Every member of that Court was.
I did not feel, except very briefly...I think Justice Williams
may have been a little bit cool to my appointment at the beginning but very
frankly, I think that melted away. It wasn't that we didn't have our
differences, and we did, and I had my differences with Chief Justice Kavanagh,
but those were differences based on our philosophy of what the law was and what
the law ought to be, and you know, the differences were really on a high level.
We didn't have personality conflicts in my recollection.
In philosophical orientation...let's call it that...to split
basically...I don't mean to put words into your tape here, but so that it can
be understood, because I want to ask you about the differences between this
period and some other experiences that the Court had...was once you were set on
the Court, there was yourself, Justice Ryan...
No, he wasn't on yet. Myself, Justice Fitzgerald and Justice
Coleman sort of shared a philosophy. We had differences between ourselves, too,
but basically the three of us would look at an approach to a legal problem in
much the same manner and on the other side, basically Justice Thomas Giles
Kavanagh, Justice Williams, Justice Swainson and Justice Levin were...looked at
things a little bit differently.
Although, you know, if you did it just numerically, probably the
number of times in which we all agreed or at least, the agreement broke down
this philosophical division, if you can call it that, were much, much more
frequent than the times in which we split into those two groups, and when we
did split into those groups, there was no bitterness or rancor or...I have
heard stories about the table pounding times and Justices not speaking to each
other and so forth in the past.
That did not happen while I was there at all. The differences
that we had were differences relegated to the work that we were doing. They
were not personality differences. I think we all had a pretty high level of
mutual respect. I remember telling Giles that I thought he was a [expletive] of
a guy if he could just get his head screwed on right.
And he never did.
And you know, and he laughed, and he'd say the same thing to
me. We had some things...well, to highlight it, I remember we were arguing
about an issue, and the issue was whether or not the Court should consider what
some of its members regarded to be an error in the trial when the basis of that
error had not been preserved for appeal.
They found something that one of the lawyers had done that they
thought that lawyer shouldn't have done, but the lawyer on the other side
didn't object to it, and I took the position that if the lawyer on the other
side hadn't objected to it, and the Court had not made any exception on it,
that the matter was not preserved, that we shouldn't try to look into it.
This was an orthodox position at that time, was it not?
I don't know whether it was orthodox or not because it was a
position, and I remember Soapy Williams was the championing the change that we
ought to consider this thing, and we ought to reverse...this was a criminal
matter, and we ought to reverse the conviction because this error had taken
place in the trial.
I remember the discussion on that thing because I felt for the
first time that I was getting through to Soapy on something. I said, "You know,
in the course of a trial, loads of things happen. You don't want to object to
everything. Sometimes, as a tactic, you won't object because you anticipate
that what is going to happen in the response to which you might otherwise have
objected is going to help your cause".
I said, If you give the trial attorney the chance to withhold
his objection so that he runs...he gets the chance of getting that bonus in the
trial that he thinks the answer will bring and then, in spite of the fact that
he hasn't objected, you later on say that that question should not have been
asked or that answer should not have been given or whatever you say that you
indicates that you find an error there, you're giving the guy two shots at
He succeeds the first time, or he doesn't succeed the first
time, but he runs that risk because he wants to get that answer in there even
though it is objectionable. Now, you find that it is objectionable, but he
didn't object to it, so you're going to reverse the thing anyway". I said,
"That gives him a 'no lose' situation", and I said, That is not, in my
judgement, the way the thing ought to be done".
Did you win the argument?
I'll bet not.
I'm not sure that I won it in that case, but I remember Soapy
came down to my office subsequent to that discussion and brought it up again,
and we discussed it further at some length. I think really he had a better idea
of what I was saying after we discussed it the second time, probably because I
wasn't sufficiently articulate the first time, and I'm not at all certain that
it didn't have, in the long term, some effect on his thinking. I don't know
whether it did or not.
I heard something happen here.
That may have been my shoe.
(End of side 1, tape 1)
I'm nervous about the time here. Maybe I ought to stop it and
turn it over anyway rather than risk...I want to pursue this a little bit
further if you don't mind
2. Justice Lindemer continues talking about differences among the
Justices, the importance of face-to-face communication in collegial actions,
and the geographical fracturing of the court at the time of his interview. He
discusses the case of People vs. Cooper concerning double jeopardy, a case on
tax law (his first case on the Supreme Court), and relations among the Justices
after the 1974 elections.
The light's on.
Is it? Okay. That's what we want. I was going to suggest - do
you think what was illustrated there was the familiar argument that an
appellate court judge should have a good dose of trial experience before taking
the Appellate Bench, and in this case, you did have a good dose of such
experience, and I think this was something that Governor Williams, Justice
Williams did not have. He never did do much private practice, did he?
Probably...maybe, I don't know about his trial experience. He might not have
had any at all.
Well, I think he did have some trial experience as an Assistant
Attorney General, but I never got the idea that it was an extensive trial
experience. Well, I think it helps.
I think an ideal court would be a court which contained an
academician in the law, a recent practitioner in the law as well as people with
judicial experience at lower courts, except for the lowest, of course, then
you've got to start with people just from the practitioner ranks, because I
think all of those backgrounds lead one to have a different type of
contribution that that person can make to the court, to the deliberations of
everybody, which brings me to another aspect of the court life which always
troubled me, Roger. It still does, and will, and I suspect it will never be
changed...historically, the Supreme Court which was based in Lansing was housed
in Lansing, and the Justices all lived here so that every day, they saw each
other. Every day, they had a chance to exchange ideas face to face. Every day,
they had a chance to have lunch together, to explore each other's thinking
processes and so forth.
As you mentioned in the case of Justice Williams walking down
to your office...
Yes, and that was one of the few days that he had some extra
time and was in Lansing, because his office was in Detroit. Now, we have
Justices in Detroit, we have one Justice only, I think, in Lansing, Justices in
Traverse City, and very frankly, the only time that they get together is for
official court functions in Lansing or Detroit.
How many days...
And that's wrong.
How many days or months would you suppose the Court is together
in the sense that you're talking about now?
Oh, gracious. What did we have? We had about four days of
hearings a month and two or three days of conferences a month and that's it,
you know, seven...let's say that that has increased. Suppose that there is a
day a week now of conference, and I don't believe that's the case.
So you're talking about maybe six days out of 20 or seven out
of 20 working days in the month that the court is together.
Yes, and other than that...of course, you have telephone
contact, but it isn't the same, and telephone contact is generally one-on-one.
There were many occasions, many occasions, and I discussed this, incidently,
with Thomas Giles Kavanagh. I said, "As Chief Justice, you ought to move to
Lansing", and I discussed it with Jim Ryan, and both of them indicated that
they thought there was some merit in the suggestion and it was something that
they were going to give serious thought to and neither one of them ever did it,
but I guess the guy that broke the pattern that had existed previously was Gene
Black. He didn't like to travel from Port Huron over to Lansing, and he didn't
want to move to Lansing. Well, you know, I frankly don't have a heck of a lot
of sympathy for that point of view.
I think that if you're going to serve on the Court as a Justice
of the Court, if it requires you to live in Lansing, you ought to live in
Lansing. I can't imagine being Attorney General of the State...well, I guess I
can imagine being Attorney General but I can't imagine doing things that
involve collegial action.
Justice Lindemer, is it not true that the constitution requires
the Supreme Court to sit in Lansing at the seat of government, I think is the
Yes, that's the language.
Do you recall, and I think this would have been before your
service on the Court, that on one occasion, the legislature tried to withhold
private cars from the members of the Court, and on another occasion, tried to
prevent the expenditure of funds for the rental of offices outside of Lansing.
Do you recall those events?
I do not recall those events, Roger. That doesn't surprise me,
but I don't recall.
Well, this happened in the 1960's. I can't recite you chapter
and verse, but I have a vivid recall of this because what you have said just in
the last several minutes was a point that was very strongly made by at least a
small group of the influential legislatures.
I think of Traxler who was Chairman of Judiciary, Holbrook could
have been with him although I'm not sure of that. Gar Lane, he was kind of
hard-headed on the subject, and what happened was Kelly, our Attorney General,
determined that the legislature had exceeded its authority, and once the Court
was appropriated funds, it was entirely within the discretion of the Court how
those funds those be expended or something like that. You don't recall
I don't recall that. I might have not been paying attention to
the Court that closely at that time.
But this is what you're talking about?
Part of the reason, the stated reasons for these things was
that these were the instrumentalities of fractioning the Court and allowing and
supporting this pattern of court conduct that you referred to a little bit
Well, I probably lost the vote of every justice of the Court
except Mike Kavanagh, and I never had his at the start on anything that I've
been in court on, so, you know....I firmly believe that, and was never able to
convince anybody that it ought to be done.
To me, it would have been very much better if there had been
considerably more time and the run of the mine stuff that judges of that court
do between formal court sessions could be done...well, I know that I conferred
with John Fitzgerald and with Mary Coleman, with much more frequency, and I
guess I did with Giles Kavanagh, too, because he was in Lansing a lot more than
the others. He felt that his duties as Chief Justice kept him here and when
he'd come in for something else, we'd frequently have something to talk about,
but you're in the midst of looking at a case and something strikes you, and
you'd like very much to have, in addition to your law clerks to bounce the
thing around with, to have another justice to talk it over with, and maybe two
or three so that you wouldn't get just one opinion but you'd get a couple of
different opinions, and I think it would be more constructive, and I frankly
think it would improve the speed of the decision-making process, but we don't
Do you see any relevance with the line of thought that you have
been articulating, the Court...I'll call it fractionated geographically much of
the time...between that and the fact that when you came to the Court, there
were four Commissioners. Now, there are sixteen Commissioners. Then, the staff
including secretaries and law clerks probably...let's say if there were seven
members of the Court, there might have been seventeen or eighteen and now, I
suspect, but I don't really know, but let's say there are thirty. Is there any
connection, or would you have any observations to make about that?
I don't know whether there is any connection. I know that the
work of the Court, the number of cases in which appeal is sought, has increased
geometrically, I guess, but I know there was a period of time in which I had
one secretary and one clerk. Now, there was also a period of time in which I
had one secretary and two clerks.
As I understand it now, every Justice has a secretary and three
clerks which all goes towards speeding things up and so forth, but...another
thing...I remember when I went in, I was...I didn't have anybody in mind to
serve as clerk, and Thomas Matthew Kavanagh had a couple clerks. He'd been
Chief Justice, but the previous January, Thomas Giles Kavanagh had been
selected as Chief Justice.
One of my predecessor's clerks was Bob Kehres, and I checked
with the other justices, and they said that he was a thoughtful, constructive,
young man and did his work well, and so forth, and I thought that...I knew his
father in the legislature. I knew he came from a Democratic Party background
and I thought probably as clerk to Thomas Matthew Kavanagh, he would have a
different philosophy than mine, and I thought that would be a good mix, that it
would help me in challenging my own predilections to have someone like this on
my inner staff, and the only thing I asked of him...I said, "I don't want you
to change your philosophy or anything else, but I do insist upon loyalty". I
said, "What we do in this office, I want you to give me the same degree of
loyalty that you gave Thomas Matthew Kavanagh, and if you think that you can do
that, and if you will tell me that you will do that, then I would like to have
you as one of my clerks, but if you have any doubt about it, now is the time to
fess up", and he said, "No, I can do that". And he did, as far as I know. He
was just fine.
He and my clerks always served as a sounding board. I would come
back from a court session, and they'd say, "Well, what do you think of such and
such a case?", and I would give my preliminary indication, "Well, I think this
ought to be done or that ought to be done", and once in a while, they'd say,
"Yeah, that's the way it looks to us", and once in a while, they'd say, "Oh,
you can't do that, judge. You can't do that", and I'd say, "Okay, maybe I
can't, but you guys figure out the best argument you can why I shouldn't and
we'll tackle it in a couple days", and they reacted as though it were a game.
They ganged up on me. Once in a while, they developed a crack in my thought
processes. Every time I ended up agreeing with them, I said, "You're just
selling me a bill of goods. I'm losing my mind". But it wasn't that. It was a
more thorough ventilation of pros and cons of a given position, and I always
welcomed being challenged. Then one day in one of our conferences, I remember
Soapy telling me how he selected his law clerks, and the first requirement was
that they be philosophically in tune with him, so he had a different approach.
He felt that was more helpful to him. I felt to have somebody philosophically
in tune to me...I wouldn't have minded if one of my clerks had been and every
now and then, one was, but it didn't bother me if they weren't, and I welcomed
it as a challenging to my own thought process.
That's very interesting. I think that given the idea of what
we're trying to do here is to leave something for the scholars and the students
of the judiciary to ruminate about and maybe to be instructed about in the
future. I think this is what we're supposed to be doing or what I conceived to
Well, if we've done something right, hurrah!
Let me tell you something that I had thought to bring up. You
kind of blocked out the whole subject matter, but I was going to ask you, after
having looked over this sheet...now, here is the printout through the West Law
Retrieval System of the titles of all the cases that you wrote during your
service on the court. At least, that's what the machine tells us, and then in a
separate list are all those where you dissented, and you'll notice if you look
to the bottom number that there are 22 cases that where you were the author of
You're shown in the reports, Lindemer, J, and then the opinion
of the court follows, and there are 22 where you are recorded as dissenting,
either writing a dissent or concurring in a dissent. Now, I talked not so long
ago to Justice, former Justice Voelker who served in...let's call it a
different era. He served in the 50's, late 1950's. When I did the same thing
with respect to his service, it came out 84 to 14.
84 majority and 14 dissent? What did you say mine was - 22 and
Right in front of you there, 22 and 22, but I asked him about
22 and 23.
I beg your pardon.
Actually, I had one more dissent than...
Well, the first time that I brought this up with anybody was
with him, and I said, "Isn't this pretty unusual, given the fact of the
division on the court then?", Now, if you'll recall, he came on the court at a
time when he was hailed as tilting the court, 5:3 to the liberal or the
Democratic philosophy as to how it had been before. He succeeded Justice
Boyles, and I said, "How is it, when the popular wisdom was that this was a
sharply divided court philosophically, that here is what the statistics show?".
He said, "Well, I really don't know. I think we tried to be civil to one
another and we were reluctant to disagree or to show acrimony", and he
mentioned a few instances where he...one of them was the famous nudity
case...remember? Well, that was one of the cases much discussed that he wrote,
and he dissented without going into the mechanics...it was recorded in the
reports as a dissent but had the majority vote. That was an idiosyncracy of how
these things were reported.
Now, he dissented in this case from Dethmers who was the Chief
Justice. These two men were classmates, he told me, in law school, and he said
that he was a little reluctant to write as vigorously as he did in this case,
and he wrote what some people describe, I think erroneously, as an outspoken
championing of a certain kind of nudity in a camp setting off in the
wilderness, a social kind of nudity, and he was a little...I'm not saying
apologetic, but he was very much aware that he was going against the Chief
Justice. He didn't want to belittle or ridicule the arguments on the other
side, and I thought...I don't know whether he had it right or not, but this was
a nice thing to be able to say that "if I can't agree, I'll write concur in
result or I dissent, and not bother too much about it".
I don't know whether he had it right or not. For one thing, and
this may be more of an explanation, in those days, you didn't have copying
machines. You didn't have a lot of Commissioners. You didn't have a bunch of
law clerks. You didn't have secretaries that could turn out copies in a zillion
words a minute through the modern marvels of communication devices and all
that. What...does this suggest anything worth talking about to you on the
Court? Now, obviously, this statistical idea of 22 - 23 or whatever it
is...this is a statistic. You've already said that you valued the civility that
you experienced on the court, and if I recall...you haven't talked about
collegiality, but I think that's another way to talk about it.
Oh, yes. It was a collegial group. We...I think we enjoyed each
other, and enjoyed exchanging differing opinions and so forth.
During your service on the Court, was is perhaps excessively
preoccupied with things like the guilty plea cases, procedural manners having
to do with criminal trials, Worker's Comp. cases that somehow put into the
basket a lot more things that had an inherent philosophical division in them
that was normally the diet of the Court?
I don't think the period of time that I was there was
outstanding for anything of that nature. I remember one of the cases that I
wrote that gave me the most trouble was People against Cooper.
I was going to ask you about that.
Cooper had been...had walked into a bank in Battle Creek, and
it happened to be the bank in the building of which Mary Coleman had her Battle
Creek office, and he threatened them with a bomb.
Referring to People vs. Cooper, correct?
Yes, People vs. Cooper...that's...
You wrote that one, didn't you?
Yes. 398Mich458. Yes, I did write it, and there was no question
but that he had done this. He had raised in his trial in Federal Court for a
violation of the Federal Criminal Statutes...
Was it bank robbery statutes?
Yes. He had raised the defense of insanity, mental incompetence
and insanity and in essence, that he lacked the will to commit, and my
understanding is that the Federal case was tried very poorly by the
prosecution. In any event, he was acquitted. He then was brought to trial under
a State statute that was much the same type of thing, and was convicted. The
question that he raised was one of double jeopardy.
There was a real argument and some statutory basis for holding
that as between the Federal and State approach to this, there was not double
jeopardy, and unless the guy was mentally incompetent, and incidentally, he
argued his own case before the Court, and it was a case, Roger...this is a
personal note...my father happened to be visiting us from Syracuse, New York at
the time that this case was argued, and I told him that I thought he might
enjoy that case because it was a case that was causing me some trouble, and he
was in the courtroom and listened to it, and did enjoy it...this guy argued his
Cooper...very well, too.
Very well, very well. He had had nothing to do for the year or
two because he lost his job as an English teacher. He was an English teacher, I
think, at a high school or maybe a junior college...I don't recall where, but
he had been an English teacher. He was an educated man. His thought processes
were good, and so forth. He did a very good job, and the case was assigned to
me. Now, I know the guy did the act. There wasn't any question of that.
Did he not...was it not a spectacular...this was not a garden
variety bank robbery. Didn't he have some dynamite strapped to his belt or
something like that?
I don't recall whether it was that or whether he just had a
bomb in a suitcase or something. And, Mary Coleman said to me, "Oh, dear me.
The people with whom I live aren't going to understand if this man walks free".
So we had to wrestle with this case, and I finally was convinced that the
double jeopardy claim was a valid claim and that we had to reverse the
conviction, and it was a tough one for me for all the reason that I've
mentioned. Mary Coleman finally concurred in that at the end, but that case...I
remember very well.
Well, you carried the day. Didn't the whole court come along
Yes, we did. We finally all...I believe it was unanimous. My
recollection is that it was unanimous.
This happened, I think, just before I got there, and it was a
celebrated case as I heard about it because of the way this fellow handled
himself. Usually...is it not true that when you have somebody arguing...what is
the old aphorism..."only a fool would hire himself to defend himself"?
"The lawyer who pleads his own case has a fool for a
Yes, that's it.
This guy avoided that trap. He wasn't a lawyer. He had spent
and where he got whatever help he got, but he made an excellent presentation
and raised the issues very well, and those were the issues that determined it.
Reading in preparation for the hearing of that case, reading what we had before
us, I had temporarily concluded "There ain't no way this guy is going to walk
free", you know, and it was a case in which...
Was he a personally attractive man?
Nothing particularly attractive...he was...he, you know,
heck...he came into court and he was dressed well. He spoke well. He looked
decent. You know, I guess he was a personally attractive guy, and didn't have a
beard. The record ought to show that you have one so that that comment will be
Marx...was there any significance in that name? Is this Carl
Marx that gave him his first name? Marx Cooper, wasn't that it?
Was it Marx or Max? I think it was Max. I don't recall. I think
it was Max.
Maybe I'm mistaken in my recollection. I thought it was Marx.
That's beside the point. That was one of the memorable cases, right?
Yes, I think so. It was a case that really taxed me.
Were there another case or two during that time that really
stand out in your memory? How about the...
I remember the very first case I had, Roger. We had been given
our assignments, and I had my first assignment on a case that I had
heard...don't even remember what it was. We got back to our offices, and the
next day, Soapy called me from Detroit, and he said, "Larry, I picked up such
and such a case, and it's a tax matter. The case that you were assigned (and he
named it), is one that I've done some work on a companion case back a couple of
years", and he said, "I'd like very much to have that case if you'd be willing
to switch with me", and I said, "Well, I'd be glad to accommodate. What's the
process? Do we have to go to the Chief Justice or what do we do about this?,
and he said, "Oh, well we can...we can transfer cases if there's a reason. I
think the reason would be that I have done a lot of the basic work on the
questions that are involved in the case that was assigned to you, and I've
already got it done".
Judicial economy, shall we say.
Judicial economy or whatever. So I said, "Look, Soapy, if you
work out the details of it, I don't have a problem with it, but I've got to
tell you one thing. I don't like tax law, never did like tax law, don't
practice tax law, and if you're giving me a tax case, that's going to make it
difficult". That's the case he gave me, and I sweated over that
"blankety-blank" thing and finally got it worked out, and I guess everybody was
satisfied. My recollection is that the Court was unanimous on that, and...
Looking back, do you regard this as sort of a little bit of
No, I did not regard this as hazing. No, no. I don't think
Soapy would ever go for that. Incidentally, because I've mentioned him two or
three times, I don't want you to get the impression, Roger, that...I think that
he and I, by the time I left the Court, had a very good relationship.
I remember when Blair Moody was nominated by the Democrats to
run against me, he came to see me, and he said, "Larry, I want you to know that
Blair and I go back a long way. His father was a close friend of mine. I
appointed him to fill a vacancy in the United States Senate". He said, "I've
known him all his life. I've worked with him and for him in getting a
judgeship, and he's asked me to head up his fund raising, and I'm going to do
it." I said that I appreciated his telling me that, that I regretted that
because I felt he would be efficient and effective in doing what he was setting
out to do, but I said, "You know, I understand where you're coming from, and I
appreciate your straight forwardness of coming in and telling me about it face
to face". He said, "Well, that's the way I prefer to do business", and it was
the way he preferred to do business.
There really wasn't anything sneaky about G. Mennen Williams,
You know. Excuse me...I don't want to...this is your tape, and
if you say you've...I do, though, want to bring up the fact that was there not,
specifically with regard to Moody candidacy two years earlier, there was some
hard feelings, was there not, on the Court because of?
Yes. Moody ran against John Fitzgerald two years earlier, I
think. Isn't that correct?
And Fitzgerald beat him, and I'm sure Williams campaigned for
Moody at that time, and I think that Fitzgerald felt more deeply about it and
less understanding about it that I. I knew what Soapy's political leanings were
and I knew his great adherence to the Democratic Party, and I knew that Blair
Moody and he had had these ties and so forth, and frankly, it didn't come as a
surprise to me. It came as a modest disappointment, but I couldn't have
imagined that I would have so impressed him with my judicial abilities in less
than the two years that he would have said, "I'm going to stay out of this
thing". I knew that he'd never back anybody who wasn't from the Democratic
Party. He was very strict on his party allegiances, more so, I think, than some
of the others, but he was up front about it.
Did he overtly campaign for Moody?
Yes, he did. He did.
Are there strictures in the canons about such things when you
I'm not aware that he ever did anything that would violate any
of the canons or...but he didn't have to. I mean, he was a former governor, he
was a justice of the Court. He certainly had the right to express his personal
opinion on matters. I don't have any knowledge that he ever campaigned against
me. I don't know...well, he might have said, for instance, to the UAW that he
didn't think that my philosophy was consistent with their philosophy, what
they'd like to see on the court, something like that, but I don't think he ever
took off personally against me. I've never had any indication of that.
I hadn't asked Justice Fitzgerald about this, and I'm going to
speak to him again next week, but I think, or at least I was told that he was
offended by the then Chief Justice Thomas Matthew Kavanagh opposing, for
example, in a campaign setting, I guess perhaps for the literature, maybe of
Blair Moody in 1974, and I think may have felt that this was not compatible
with the collegiality requirement...
Well, Thomas Matthew Kavanagh was a different type of person
that Soapy Williams was and much, much, and of course, I know this only by
reputation, but after I got on the Court, I heard from people with both
Republican and Democratic background, stories about Thomas Matthew Kavanagh
which gave me insights into his character. I always regarded him before I was
on the Court as a very political guy, and he was...I'll never forget.
I went to a meeting, a dinner that the Michigan Trial Lawyers
Association had to pay a tribute to Thomas Matthew Kavanagh, and I went because
I felt I had to go, that this was one of those things that I must do, and it
was clearly apparent to me that the things that I'd heard about his very close
allegiance with that group were absolutely true. I mean, they had their man as
Chief Justice, and there was no question, and they didn't like me, and both of
those things became...it was an unpleasant evening...both of those things
became apparent to me.
Does this lead you to comment or make any observation on the
selection process, and the...
Roger, you don't have enough tapes to get me started on that
Okay. Well, let's...would you care to address that subject in
this context. If you would, I can...
Yeah, let me say that...
If you would speak at some length, I think I will swap this
(End of side 2, tape 1)
3. Justice Lindemer discusses the judicial selection process,
philosophical differences with Justice Williams in regard to judicial activism,
and the functioning of the court system and the power of the courts. He then
briefly talks about sentencing guidelines, the role of the court, and state
Roger, on the topic of the selection of judges, first I've got
to acknowledge that my feelings on this are discounted by those who disagree
with me because they say, "Well, sure he feels that way because he was
appointed to the Court and then couldn't get elected again", and in fact, in
discussions, I've had that said to me, and so I know that that is out
But the fact of the matter is, on the basis of my experience
anyway, the average voter or the multitude of voters in the state do not know
who the candidates for judge or justice are, don't know how to make judgments,
mistrust the lawyers who have a better handle on it, and the recommendations of
those lawyers, and you have a major fall-off between the votes on the partisan
races and the votes on the non-partisan judicial races.
You always have had, which indicates two things: 1) a lack of
information and knowledge, and 2), a lack of high degree of interest. I think
that governors would act responsibly in appointing justices to the Supreme
Court and in appointing judges to the Court of Appeals. If we had some sort of
a filtering mechanism, and I'd be perfectly willing to consider most anything
that would have essential elements of fairness, bi-partisanship and a
reflection on legal ability to the extent that you can get that.
It might very well be that a commission, a judicial appointment
commission composed of members of the bar, appointed by the Bar Association,
together with representatives of the media, and representatives of the public
generally would be a commission that could evaluate from among anybody who
wants to be considered for a judicial appointment. This commission could
evaluate and then rate or return to the governor from, let's say, you have an
opening on the Supreme Court, and you have twenty people who submit their names
or for whom others submit their names for consideration, and say that they
would...this screening group would give to the governor a list of three or four
or five from whom the governor could appoint. The appointment would be for,
let's say, one eight-year term with no more than one additional eight-year
I think you'd get responsible appointments, and I think that you
would get...you might get better people to be interested in being considered
for the appointments. It's a very tough thing today to get somebody to run, and
look at the name identification. The name "Kavanagh", except for Giles' defeat
by the present Chief Justice Dorothy Comstock Riley, has been a name that has
been magic on the Court, and I don't know...and Fitzgerald...it isn't just one
party or the other.
Would you care to relate your observations to what is going on
or just has gone on in Washington where you had a choice made on an appointment
basis with consent, that I think taxed a lot of people's sense of the process
or...I don't know...what would you say about that?
Well, the thing about that...that's a lifetime appointment, and
the constitution, the fathers have decided that that's the way that should be
done, and I don't want to attack that. I don't prefer a process in which the
governor would submit a name, for instance, to the Senate for ratification
without this, what I call the filtering process. I think the filtering process
is of much greater value than the input of the Senate, whether it be the United
States Senate or the Michigan State Senate, very frankly, and I think a
properly designed filtering process to keep the situation in which a political
hack, and I was accused of being a political hack by some when I was appointed.
I had had partisan Republican background. Everybody knew that. I was appointed
by a Republican governor, and that was one of the terms that was used in an
editorial greeting my appointment.
Oh, was that right?
I don't recall.
Yes, and I think, and it may be immodest of me to say it, but I
think that among my colleagues on the Court, and the personnel who knew about
the Court and so forth, that I destroyed that political hack charge. I don't
think that that was thought to be a viable charge at the conclusion of my term,
but I was not successful in being re-elected.
I remember...she is well-known for her outspoken
comments...Martha Griffiths sat on the Board of Directors of Consumers Power
Company when I was asked by Al Aymond to serve as General Counsel, and it was a
matter that he had to take to the Board of Directors, and he asked...he
presented my name and gave my qualifications and so forth, and it was mentioned
that I'd been on the Court and had been defeated by Blair Moody, and one of the
directors from outside the state and without much political knowledge of the
state said, so I'm told by Al Aymond, "How come he was defeated for election to
the court on which he'd been serving?", and Martha Griffiths piped up and said,
"Because his name was Lindemer. If his name had been anything else, he probably
would have been elected". So that put that thing to rest.
And Martha Griffiths, I am told, on that occasion, came to my
defense, and said that I had established a reputation among those on the Court
as someone that she would be delighted to see be General Counsel to Consumers,
so, you know. I don't think the present process is a good one. I have great
feelings. I frequently vote for judges who have a background in a Democratic
Party. I have in the past, and I shall in the future, if I...because I'm in a
position to have some knowledge about what they're like, you know, as people,
as lawyers, as people who will serve as judges, so that is an advantage I have,
but my God, there are not very many people who have the ability to make those
judgments, and I just think that we've been very fortunate, and I think that a
lot of people who have been elected and have not demonstrated prior to election
a hell of a lot of aptitude for successful judicial work, have grown into it. I
think we've been fortunate. We've had some bad ones, too, but that's neither
here nor there. I suspect under any system, you're going to have errors made. I
suspect even the best system will sometimes produce someone not really worthy
of the appointment.
But like you say in summary, though, is an appointment system
with this filtration process that you described is much to be preferred over
what we have now.
It seems so to me, and you know, the thing that bothered me
most when I was campaigning for Judge, I remember specifically going to a
meeting in Kalamazoo. I don't know, Rotary Club or somebody that would hear
me...you know, people are not interested in listening to judges, and what do
you tell them? The only thing I could say is that "I will work hard. I will try
to be balanced in my approach, but I can't make you a promise about anything.
If you have some secret agenda, sorry, buddy, I can't help you with it",
because you have to make your decisions, when you make your decisions on the
basis of a record that appears before you at that time, not on the political
overlays that pertain to the particular issue involved, if there is an issue
with political overlays. It's...you go into a group, and they want to hear
"What can you do for me?". "I can't do a [expletive] thing for you except try
to be a good judge", and that doesn't have any sex appeal.
Not in our system of politics where less than 1/2 the people
And it doesn't do much for the Democratic process, does it?
It doesn't seem to me that it does. Having people on the ballot
that are ignored by what...1/4 to 1/2...maybe about 1/3 of the voters...if you
have fewer than 50% of the people going to the polls and then of that number,
you have about 1/3 who don't vote in judicial races because they don't know or
don't care, you know, you've got a very small segment of the population making
the decisions. I took my defeat with difficulty because I had tried and I
enjoyed it, and I was prepared to end my legal career on the bench if the
people were to elect me to do so.
If you could have referendum on the Court, you'd be there today
until dooms day because, you know, I know enough about the esteem in which you
were held because I was there. I can contribute that much.
Yeah. I felt, I always felt...
By Soapy and the rest...
Yeah. I always felt that I made friends, and gained respect
from my colleagues on the Court. I felt that, but you know...that's the way
(break in tape)
Let's stop it there.
This is Justice Lindemer continuing the tape that the forward
part of this tape was done on 10/4/90 and this is continuing that discussion
about his service on the Michigan Supreme Court. Justice Lindemer, how do we
start this part of it?
Roger, you were...when we were talking last, you'd made a
marginal notation somewhere about a philosophy that I had with respect to the
Court letting the legislature set policy rather than the Court stepping in to
set policy, and I remember that we had some philosophical differences on that
up there, and I think the highlight of the difference was with Soapy. He really
believed that there were things which he could see in the light of today's
wisdom that mandated changes in what had been established precedent, and I
generally felt that if those changes were to come, that they should come as a
result of legislative action rather than action by the Court. I didn't think
that it was our function to step into that and make those changes but he did.
It was just an honest difference in philosophy.
Would you go so far as to call his attitude judicial activism
Yes, I think it was judicial activism, and I am or was a
judicial conservative, and it isn't that we always disagreed on the outcome of
the matter. Some of the things that he was trying to do I didn't think at all
were evil or contrary to the interests of the public, but I felt that the Court
shouldn't do it, that we should defer to the legislature.
Did Shavers come during this period or Placek...comparative
negligence was one of the...?
No, those came after, but that is the type of thing...that is
the type of thing that Soapy did and did successfully, but those were active I
had left the Court. But you know, a part of the consequence of that is that,
for instance, the no-fault statutes were enacted during the period of time in
which we had contributory negligence, and then...and the remedial action of the
legislature took into consideration the fact that we had contributory
Then Soapy changes contributory negligence to comparative
negligence and still leaves the no-fault in there as the no-fault had been
devised to apply to contributory negligence, so that you really get differing
results that the legislature could have foreseen when they did it, and that's
the kind of thing that troubled me, but again, it was just a matter, not of
right and wrong necessarily, but philosophy and the belief in what the Court
should or should not do, and I felt reasonably strongly that the Court should
resist doing the things that were not clearly within its mandate.
Did you have the highway cases or some of them where the rule
of...I think it was Reich...was tested; the idea that the legislature had said
under certain accident conditions where the Highway Department, Transportation
Department was a defendant...highway defect, that the aggrieved party, the
person who presumably was going to sue, had very limited period of time...I
think it was 60 days to make the first move, and if the party did not do that,
the right to go after the highway for defective bridge or whatever was
In the Court of Claims, that would have been.
I remember that case, but I can't remember whether this was in
your time band, and the same principle came up later, and I can remember
repeated dissents. Look, here's what the legislature said was the time for this
kind of remedy to be sought. In its wisdom or lack of it, it is not for us to
second-guess the legislature.
Yes, and that's basically the posture that I would take, but I
can't remember, Roger, frankly, whether or not...because I have, since I left
the Court, I have tried to follow the advance sheets, and I've done a
reasonably good job of it, so that I'm aware of some of those things, some of
those points, but I don't remember whether they happened when I was on the
Court or whether they happened subsequent there to.
Wait a minute...this one may be...maybe these don't ring a
bell. Do they with you? Look at these things: 6, 7 and 8. Those were in the
wake of the one that I specifically mentioned, and I think you dissented in
each one of those.
That's what I was thinking of. They weren't very spectacular
I don't have independent recollections. I see that I did
dissent and basically, I dissented on the basis of the policy that I've stated
that if changes were to be made in that, the legislature ought to make
You served in the legislature, and you served in the
And I served in the Executive Branch, too.
As a Regent of the University of Michigan.
That's interesting. I just wondered if you wanted, if you felt
deeply about this to expand your observations about the role of the legislature
in determining policy and the mechanisms are provided when policy is being
determined under our form of government. That is, you have the elected
representative answerable every two years, or whatever it. You have a broad
range of subject matter that's within the legislative compass. You have
hearings at the committee level. You give a committee action the chance for,
refinement of the policy, whatever it is. Then you have a review on the floor,
then you have action by the plenary body, the House, the Senate, and then it
goes back across. Now, the founding fathers, I thought...maybe this is what you
had in mind.
Well, this is how to make policy, not three people in the
Manistee State Bank vs. McGowan...
...saying that was wrong.
Yes, that's exactly right. The legislature had the advantage of
considering policy changes against the panoply of the entire factual situation,
pertinent and not pertinent. The Court's review of these things should have
been restricted to the matters presented by the opposing parties to the Court
because only those matters to which opposing parties devoted their attention
were really properly honed, it seems to me, for the Court to make a decision on
them. And to use those as an excuse for a philosophical venture into
policy...may have been parallel and may have been similar, but it isn't exactly
the same. To the same that it wasn't the same was dangerous.
I don't know that I'm expressing it very well, but I did feel,
always have, still do feel that it is not the proper function of a court, any
court, to go beyond that which has been properly refined by the adversarial
process in getting the questions to the court. That's...you're right. The
legislature has the committee system. It has investigative powers. It can get
into a hell of a lot of different aspects of all these problems much more fully
than the Court can. I think that's where it should have been left. And
moreover, by definition, the legislature is basically to represent the wishes
of the people. The Courts, basically, are to resolve and to determine the
resolution of differences between people, not to represent anybody. The courts
don't represent anybody except that court's belief in what the body of law is.
That's the only thing it represents.
Do you remember, Justice Lindemer, the Indian fishing rights
case? Does this ring any bells with you? That was the one where I think you
dissented, and it had to do with...the trial was in LeBlanc.
People vs. LeBlanc...okay, it was a criminal case. Gill net
Yes, that was it, and the question that this thing focused on
was basically, hundred and some years back, was treaty rights, and my
recollection was that you expressed yourself at that time with some conviction
as to whether treaty rights in the setting of deciding such matters as the
economic benefit of a tribe for, well...what?...hundreds of years, should be
treated like a principle imbedded in stone. That is, who knows...I'm getting
way off here.
You've had, perhaps you've had the advantage of some refreshing
on that, and I haven't. I just don't recall what...I remember the title,
because I knew an Indian named LeBlanc. It didn't happen to be the same one,
but...so I do remember the title, but I don't recall the theories of that
One of the situations that strikes me that is rather...not
quite unique but comparatively so with respect to your service on the Court, is
you had spent a lot of time before and after in the active aggressive practice
of law, not slip and fall cases and that sort of thing, but you've been all
over the lot as I understand it, and I just wondered if you had any thoughts
about the function of the courts from the standpoint of the busy practitioner.
This gets into such things as delay, backlog, introducing, as I think you
mentioned earlier, the new issues that are not argued and a court comes up and
says, "Well, here...we figured this thing out. Here's the answer that you
didn't ask us for". I just wondered. You must have some convictions about the
court's role in the...
Well, if a court...you have a couple of different things. The
trial courts are the courts that ought to move with alacrity. They ought to get
decisions made. I think that there are some very fine people, brilliant people,
perhaps, serving on courts who lack one essential element that a judge in my
opinion ought to have and that is the ability to make a decision, to get
something decided...right or wrong, to get it decided.
I'm talking about the trial court level. If you make the
assumption that these are basically honest people trying to do what they
perceive to be the right thing to do, then I think society is materially
benefitted if they get the decision made and get them out and move on to other
things. Now, my belief is that most of the decisions that are made are correct.
In those minority of situations in which a party feels aggrieved by the
decision that is made, the appellate process is there. The appellate process
allows for a little bit more thoughtful deliberation, perhaps, but almost by
definition, that applies to a fewer number of cases except for criminal appeals
and you and I both know, there are lots of criminal cases that aren't appealed,
although the courts of record and the courts that are published, you think that
all criminal cases are appealed because they so far outnumber the civil, but
that isn't true.
So, I think that the trial courts should get decisions made and
get them out. I don't know how you're going to do it. I have in mind a Federal
judge in the Western District of Michigan whom I knew well, a wonderful
guy...bright, honest, upright, couldn't make a decision if it meant his life. I
mean, it was just terrible, and held things up for two and three years until
finally either the parties resolved the matter or else he was forced eventually
to make a decision, and that is very bad stuff.
Is there something amiss in the mechanics of bringing a case to
trial that accounts for those many cases where you get to the courthouse steps
after an agonizing preliminary over many months or a year and one-half, and on
the morning the trial is to begin, the case is settled? What does that tell us
about whether the system of...let's call it the justice system...is working or
even the practice of law? Is there something amiss when this happens with the
frequency that it seems to happen or is this about as good a way as anybody has
ever figured out?
Well, I don't know, Roger. It's a better system than the lance
and the mace, I guess. You know, we used to historically resolve some things on
the field of combat, and the winner in the physical combat was the victor on
the issues that were involved, and this is, I suspect, a helpful refinement on
that. While it's not perfect, perhaps it's not perfect because the people
involved aren't perfect, and you aren't going to do anything about that in your
lifetime or mine. So, I think there are abuses of the process.
I think that unfortunately, there are lawyers whose financial
interests are served by creating delays, by...make work projects for their
clients, and I would hope that sometime, something would happen that that would
be changed, but I don't know that it is going to, realistically.
Have you paid any attention to the new creation, just coming
into focus of the legislature that is called, I think, the Commission of the
Courts in the 21st Century or something like that...a big large number of
people being put on a commission? Do you see..what do you see coming out of
something like that, or is this just...What's your opinion?
I don't know. I guess I'm a little bit cynical about
commissions although, and I've served on some. I've served on some study
commissions that I thought were helpful. I have served on other study
commissions that I thought were a waste of time, but I have to say to you, in
all honesty, that the results for the public good as between one group and the
other isn't a great deal different. I really don't know that...I don't know
what to expect. I don't expect much, but it is not an impossibility that
something positive will come out of all of this, and I would certainly hope
that that's the case.
Is the Supreme Court of Michigan, in your judgement, derelict
in not more aggressively exercising the powers it is given constitutionally
that regulate the practice and procedure of law? The Court Rules are a big body
of procedure of law, aren't they? The Court has very extensive powers in that
area that could arguably either speed things along or get things resolved more
fairly or with less motion and cost. Do you have any thoughts about that?
Well, I don't know that there's anything particularly wrong
with the way the Court is proceeding in its administration of the practice of
law. Now, you can, over the course of time, you can always devise something
that is an improvement on that which has gone before, that is, assuming that
you don't have a dead society, and we don't, so there are chances to make
improvements, and I think improvements are made frequently. I think in my
lifetime as a lawyer, the amount of control over lawyers and the disciplining
of lawyers has improved. I think it has improved rather markedly, and still, we
have and we see it frequently, those occasions in which it fails because some
of our brethren and sisters stray from the straight and narrow and commit
offenses against clients, other lawyers and the courts and the public in
I think there are perhaps too many lawyers now. I think it is a
litigious society. I think that in part, it stems from the desire on the part
of some lawyers to achieve financial success, but I'm not sure that it is as
grievous as sometimes I've heard it charged, and...
Either during your time or shortly after the Court, the Court
got into the matter of, in effect, reviewing sentences. I'm talking about the
concept of sentencing guidelines which, as I recall, started in this state at
any rate, with a commissioner of some initiative of the Supreme Court,
I think Blair Moody was, my successor was involved in that. It
seems to me that he chaired a committee of the Court that was charged with the
looking into sentencing guidelines, so that came after I was there.
I just wondered if this was an example. Now, we talked briefly
about Placek, the comparative negligence. The introduction of that is a great
volume of activity within the court system. Let's put it that way. You don't
have one guy's out and another guy's in as you do in contributory negligence,
and so then you'd litigate..."Well, is the guy 30 or 40 or 10 or what?". In
this, in sentencing guidelines, you get into another function of the Appellate
courts that was not there before, and you tell the trial court people what to
do within...you know, you put fences around what they can do. I just wondered
if this was in accord with your thoughts about how the court system ought to
conduct itself or whether it...well...
Well, I think the development of guidelines for sentencing by
the lower courts is within the proper realm of influence that the Supreme Court
ought to have. I guess that doesn't particularly trouble me.
Penalties are fixed, of course, initially by the
Then it's up to a judge sitting there after hearing the
evidence and all of that sort of thing conducted in trial to, within limits,
within certain discretion, to fix a punishment that...the limits of it are set
out for him in the statutes.
And to be able to justify what he or she does on the basis of
the record before them, and that doesn't seem to me to be a particularly
onerous or disagreeable aspect of it. I think that that doesn't violate any of
I can remember Justice Williams making a point not so long ago
that the proliferation of law cases on litigation was a good,...oftentimes
people address that general problem by saying the courts are suffocating, and
everything is delayed...his attitude, as I recall it, was that this is good,
the proliferation of litigation because it shows that more and more people are
vindicating their rights in the courts. I just wondered if this...he had been
sort of nibbling around the area...are the courts taking on too much of a
volume of stuff that is causing them to lose sight of the central function that
originally was the function?
Well, all I have to say about that is that I have difficulty
sometimes understanding the logic and the reasoning that leads some courts
under some circumstances to greatly enlarge the so-called rights of one person
as against the rights of another, and I just...I am just not with it on some of
those things. There are some that I think are logical extensions of things that
have existed and that are constitutionally based. Maybe this goes to philosophy
again. There are a great many, however, that I think are not. I get a little
bit disgusted with some of the stuff that I see, but that may be just me.
Let me ask a question that harks back to judicial selection
with a twist. Suppose when you were approached to serve on the Michigan Supreme
Court, the system had been such that you were like Judge Souter and had to
submit yourself to the kind of examination that he has undergone before you
could sit a first day on the court. Would this have chilled your inclination to
serve? Or maybe I'm not...It sort of sounds loaded the way I say that. I'd just
kind of...people would be interested in your opinion...
(End of side 1, tape 2)
Well, the epitome of senatorial review of court appointments
obviously was the Bork case. Souter didn't approach that in rancor and
bitterness and nastiness and so forth, and you're talking about a lifetime
appointment. Now, I don't know. I guess I would not be in favor of a lifetime
appointment system on the state courts. I would think that people ought to be,
if I could play God with it, I would appoint members of the Supreme Court for a
term of eight years, but then have some review process, either a review by the
electorate or some other process, a review by the legislative and executive
branches. There are different things that could be done.
4. Justice Lindemer continues to discuss judicial appointments.
He then talks about his involvement with the Honey West (workers compensation)
case and the decision in the case against District Judge Ryman. He concludes
with his view of law practice at the time of his interview and the situation
with Justice Swainson.
Now we've got it going again.
Where were we?
We were talking about appointments, and...
Oh, yes, the lifetime thing. I don't think that I would have
minded a review by the judiciary committee and by the Senate of the State of
Michigan. I don't think that would have chilled my...if I had been appointed
under a circumstance in which I would have been able to serve for a few years
and then had some objective review of my performance that would have allowed me
to continue on unless I made, unless I was doing a lousy job, and so I don't
think it would have been, would have disenchanted me.
The interrogation is very searching. I don't know whether you
got a chance to see some of that on...
I saw just excerpts of it.
By the way, did we ever figure out Cooper's...was it Marx or
Max or what?
I never looked that up. What's the citation on that?
Let me see. That was People vs. Cooper and...I've got this
written on so much...People vs. Cooper was 398-450.
I don't have that volume in here.
I noticed that you were participating in some of the 3:2
decisions early on in your service, those decisions being caused by the
Yes. Let me see, was there some other factor in the timing of
it...no, I guess not, at that time. A little earlier, there was the TMK death,
you know, and for a while, they were two people short really.
Well, but I replaced TMK.
But there were a lot of cases in the pipeline that you could
Yes, but a lot of them I couldn't sit on, you see. If I wasn't
there for all argument...now there were a couple...I believe there were a
couple which, by agreement of the parties, I was allowed to participate in and
what I did in those was review the audiotapes of the arguments. We had all of
the paperwork, of course, in the courtroom, but the tapes of the oral arguments
I was able to review. I'm not sure whether that happened more than once or
twice. I just don't know. I don't recall, but it would not have happened
without the agreement of the parties, but I remember there were a couple of
cases in which I was not allowed to sit but I was in on the discussion of them,
and I had pretty strong opinions on them, and I remember one was a Worker's
Comp. case in which this woman...the question was whether or not under the
statutes, she was the widow.
That wasn't the Honey West case, was it?
Yes, it was. It was.
You didn't get to vote on that, did you?
No, I didn't. She was before the court two or three different
times under different names. She must have been quite a woman because she was
constantly living with somebody else and remarrying and so forth. She had a
fantastic history of marital and extramarital relationships, and the result of
the various Soapy Williams' opinions which were, in every instance, favorable
to her, were in my mind, just absolutely ridiculous. I couldn't fathom. But I
will say this, and I said just about exactly that to Soapy, you know, and we
got laughing about it because...and Mary Coleman...I remember Mary Coleman
wrote on the last case a dissent which I have a copy of. I just loved that
dissent. I thought it was absolutely marvelous.
For a woman who had raised a family and been married to the
same man for 40-odd years, it was wild...Honey West, as I recall, was at the
time she received the Worker's Comp. award, was married to some fella in Texas
and that she...
I think that's the second or third case, Roger, that...the
first case had been heard before I went on the Court but was under discussion
by the Court when I went on the Court, and the final case involving her took
place after I was off the Court, and involved a different set of men.
The one, West vs. Barton-Malow Construction Company and I was
I think that was the last one.
The determination, as I recall, was that she was a dependent on
the fellow that died within the meaning of the provision in the Worker's Comp.
law that said little children and...
They should come in for consideration.
And what had happened...I may be getting these...but she was
legally married to somebody else so that she couldn't be a wife, and that
presented the smallest of remark that Justice Williams, but not one that he
It was overcome.
Yes, it was.
Do you remember, shortly after you went on, it fell to you to
write a decision upholding the removal of a district judge named...
Ryman. Do you remember that? Was that a remarkable case in any
respect? I don't remember the...
The remarkable thing about that case was that Judge Ryman
represented himself before the Court, and the amazing thing to me was the
cavalier attitude that he displayed toward what he'd done. Basically, what he
had done was not done to profit himself. He had forged the signature of a
decedent and had his secretary notarize it...whether it was a notarization or a
witnessing, I'm not sure...and he had done all this to facilitate the probate
of an estate, but of course, the whole thing was fraudulent, and it just didn't
seem that he had any appreciation that a person in a judicial position, to say
nothing of a plain ordinary lawyer, should ever get into that kind of a
transgression, and it was his attitude and the facts of the situation that so
troubled me and eventually the other members of the Court, I think, joined in
removing him from the bench. I don't think there was a dissent on that,
although there was a lot of...there may have been a dissent. I don't know.
I think Levin said the man should be disciplined but...
...not removed. Yes, that could be. There was sympathy for him.
I had some sympathy for him.
Where was he from, do you recall?
Yes. It seems to be he was from over in the Nuwego area, north
of Grand Rapids, somewhere in there. He was not an evil person or anything
else. He just...well, he was removed from the bench.
Do you remember the case of the Council 23 of the AFL
governmental employees union against Recorder's Court Judge, the
probation...the case about the probation officers who under some strange
arrangement in Cook County, were employees of the Court, demanding certain
financial rights from the Court. There is a jurisdiction of question whether
this was for the Court to resolve this or the public employees...PERA...what
was that? Public Employees Relations Authority or whatever the proper name of
it was. You don't remember that?
I just don't recall that one.
Tahash vs. Flint Dodge where the woman took a car for a test
drive, smashed it up...do you remember that? I think she had to pay.
Yes, she had to pay. I don't think there were any great points
of law in that. It was a question of just getting a decision made. I don't even
remember why the court took that particular case. It didn't seem to me that it
was all that important.
There was, I suppose, an insurance aspect to it. Wouldn't you
think that the dealer's insurance would have been broad enough to encompass
that type of situation because a dealer has got cars out with some frequency,
and the percentages being the way they are, somebody is going to smash...
Well, you know, I just don't remember whether this was some
risk she specifically assumed or what. I don't have that recollection.
It was an accident.
I don't have that recollection of the case, so I guess I...
You didn't get to sit on the Colonial Dodge where the fellow
had a car delivered to him. He rode the freeways around Detroit, had to be on
the road a lot, and he specified when he ordered the car that there should be a
spare tire, and he paid attention to things like that, and they had to be
deluxe tires because of the amount of miles...you know...that was a case that
was interesting in the same way because this fellow, when he had his wife pick
up the car and drive it home, he found out that they had not put a spare tire
in the thing after having expressly agreed to do that, simply because there was
a strike in Akron or something like that, and he took it back..."Give me what I
ordered or stuff it"...that was his attitude, and this thing bounced around for
a long time before the Court finally, I think, gave this guy some relief.
It wasn't a yes or no, black or white case. I don't have a
recollection of it.
Is there anything, just about the whole panoply of the practice
of law in Michigan...could be this appointment, could be the performance of the
law schools, could be the way the admission practice is handled, the bar
examiners? Do you have any opinions on any of that sort of thing that you would
feel like delivering? Here is a good chance to do it. I don't want to press you
for this, but it's an opportunity is the way I look at it. You have had a
degree of experience in government, the Court and the other things that were
mentioned, and in the practice. My Gosh, Larry, you're not a spring chicken any
more. How old are you?
69. Yes...I'm in my 70th year right now, and I'm feeling it a
I'm just trying to say...you have a right to have certain
opinions that should be...
Just by lasting this long, huh?
I hope I didn't say it quite like that.
I don't know that I have anything particular. I have been...I'm
in charge of the committee that hires for this firm now, and so I have been
interviewing and talking with some of the young people who are approaching us,
looking for jobs and so forth, and I'm tremendously favorably impressed with a
lot of them, just a great number of them, and I'm thankful that I do not have
to compete with them to get into the profession of the law at this time. That
would be very difficult. At the same time, I think that there has been a degree
of civility in the practice that has been lost.
I think there has been a degree of acknowledgement of the public
interest that has been lost, and I'm not at all certain how much of this is
based upon nostalgia...maybe I'm forgetting some of the things that happened 30
and 40 years ago that were troublesome to me at that time and remembering more
prominently those things that I thought were good about the practice. I can't
make that judgement, but I think that generally, the practice is moving
Generally, we have not abandoned the standards that we would
like to see maintained, that there is always room for massive improvement, both
on the courts and in the practicing profession, but that's as it should be. I
don't have any golden nuggets of wisdom or anything like that to pass along to
anybody else. I think that the situation is reasonably healthy, and that those
problems that exist will find solutions.
I guess I'm a little bit troubled at times on the selection
process that we have for our judges, but in the total picture, I'm not sure
that it has worked out all that badly. People basically intend to do things
correctly, and those who don't most frequently have their comeuppance. You
know, when you think of all of the people that have served on the Court of
Appeals and the Supreme Court, really the only potential black mark is the
Bronson thing. Among judges on the lower courts, there have been things, but
they have basically been eradicated. The trouble spots have been found, and
I know there are...talking about trouble spots...I know there
are some people that feel strongly to this day that John Swainson was more a
victim than a miscreant...but that's not...
And that's why I don't...I didn't list John Swainson as being a
particularly black mark. It was a terribly unfortunate series of circumstances,
and John operated in a way that perhaps lent itself to that, and I don't mean
this in a way that casts any negative aspersions. It's just part of his
personality. He wanted to be a friend to everybody, and I've heard a lot of
people say, and I'm not at all certain that I disagree, that John is more a
victim than a guilty party, but that's history now.
And he's come back, and I think probably done very well.
Given the devastation of these events that we're talking about,
it's not much short of miraculous the way in which he has righted himself after
a period of travail...you know, he is president...I'm going to talk to him not
very long from now, and...
Yes, I think he is...the president of the State Historical
He's a delightful guy, and Alice is a most-exemplary helpmate,
so I'm glad to see the good things that have happened to him, and I frankly
think that he's handled himself very well over the past several years. I think
there was a period of time in which he was having some problems that he's got
behind him now, and that's great.
I read somewhere that he said this episode that he went through
in 1975 and thereafter was more desolating than the loss of his legs in the
I can believe it.
Then he came back.
Well, shall we not...
(End of side 2, tape 2)
I think so.