Interview with James L. Ryan
Sponsored by Michigan Supreme Court Historical
Conducted by Roger F. Lane
November 13 - 15, 1990
1. Justice Ryan talks about his family history, going to Catholic
schools, working at WXYZ Television, attending the University of Detroit, and
entering law school before graduating in order to extend his draft deferment
for the Korean War. After graduation, he joined the armed forces and served as
a lawyer before joining his first law firm, Waldron, Brennan, Brickley and
Maher. He then talks about running for Justice of the Peace in 1963, Circuit
Court Judge in 1966, and his time in those offices.
This is another in a series of historical tapes that is
sponsored by the Michigan Supreme Court Historical Society. It is November 13,
1990. The focus today is on former Justice James L. Ryan. With him is Roger
Lane representing the historical society, and we're sitting in the chambers of
Justice Ryan who is now a judge on the Sixth Circuit Court of Appeals of the
United States. Justice Ryan, I would like to start by asking you about your
early family and professional background. Right from ground zero. You were born
in Detroit and grew up there.
What kind of family setting did you grow up in? How many kids
were there in your family?
There were just two of us. I have a sister who is about five
years younger whose name is Joan Fitzgerald, lives just outside of Washington,
D.C. We were born and raised in the west side of Detroit, attended the
parochial schools, St. Francis de Sales, and then I went off to Catholic
Central High School. It was automatic in those days, at least in my family,
that if one got to college at all, if you were an Irish Catholic, you went to U
of D period. There were no other options unless you were rich, in which case,
you went to Notre Dame, and we weren't.
What did your dad do?
Well, he worked in this building. We were in what used to be
called the Federal Building, and now called the United States Courthouse here
at Fort Street and Washington Boulevard in Detroit, and he worked in the post
office. I remember stories when I was very small about my dad being the only
one in his family of five brothers and sisters or six, who was working during
the depression, and I have a vague memory of taking baskets of food over to my
paternal grandfather's house to take care of everybody, because my dad worked
for the Federal government. I have a snapshot at home which, of course, I've
had for more than 50 years, which is a picture of my dad standing on the
sidewalk out in front of this building when the building had been open about
six months in 1933, and the snapshot is taken of him watching a fire across
Fort Street. What was burning, I don't know. I must say, almost every time I
come into this building...I've been here five years now, I somehow seem to be
conscious of the fact that my dad was working here when I was born.
This very pile of rocks.
Yes, this pile of rocks downstairs on the first floor, sorting
mail and servicing the public through those windows in what now is the lobby of
the U.S. Courthouse. We had a "parochial" upbringing, I think. The community
when I was a kid in the 30's and early 40's on the west side of Detroit was the
parish in the neighborhood. There didn't seem to be very many Catholics in our
neighborhood and so there was sort of a dual community, the neighborhood and
parish activities. My world was fairly tightly confined.
When I said to my mother and dad that I wanted to go to Catholic
Central High School, I don't know what could have gone through their heads but
they couldn't understand why since we had a high school in the parish and there
were good public schools nearby, Cooley High School, but I had watched Catholic
Central play football. They were a high school power in those days, and I wish
I could say I was mesmerized by the academic opportunity but I was mesmerized
by the power of the football team. I was one of three kids who didn't remain at
St. Francis de Sales Grade School for high school, but instead...the other two
went elsewhere, and I took a bus and a streetcar every day for four years to
Catholic Central which was probably the most significant decision every made in
my life because even today, the corp of close personal friends I have, Mary and
I have, are for the most part, fellows I have known and been close to since we
were in high school at Catholic Central.
Was Catholic Central...did it draw from the entire city?
Yes, it did. It drew heavily from the near-east side, from the
Hamtramack area. I had come from what then was the far-west side, but it
was...there were only three parochial or Catholic boys' high schools in town at
the time, U of D High, de Sales, and Catholic Central. Now, there are I suppose
nearly a dozen.
Were you taught in grade school and then again in high school
by nuns or clerics of one form or another.
We had the nuns, the sisters, servants of the Immaculate Heart
of Mary, the IHM's at St. Francis de Sales and at Catholic Central, we were
taught with no exceptions by the priests or scholastics or seminarians who were
studying to be priests, and who were a year or two away from an ordination.
Through my four years, every teacher I had was either a priest or a seminarian,
and they are the Basilian Fathers, the congregation of St. Basil, originally a
French order whose priests came to Toronto in about the time of the Civil War,
as I recall and considerably after that, built St. Michaels College in Toronto
and after that, Assumption College in Windsor, and that's where they came from
when they came to Detroit, so the influence of the high school was very heavily
not only priests but Canadian priests, so hockey was a dominant influence and
topic, and I'm told there are traces in my speech of usages which are thought
to be Canadian. Again, I've remained very close to the Basilian Fathers because
of that influence. Two of the teachers who taught me are still at Catholic
Central. A couple of them taught our two sons.
As you look back and sort of assess where you came from and how
you got to where you are, was there some identifiable characteristics that
were, that resulted this...for example, sometimes people say that there is a
great accent on discipline in the parochial schools, particularly the grade
schools, and that the nuns are kind of hard task masters as they used to be in
the hospitals. Did you experience that?
Well, I think in retrospect, I did. I didn't think that I was
being treated at all shabbily then or even more strictly by comparison to my
friends who went to the public schools but in retrospect, it's pretty clear
that in those days, the so-called unusual discipline of the Catholic schools
was real, I think. There were a lot of "don't's"; maybe too many. And at
Catholic Central, the credo of the Basilian Fathers translated from the Latin
is "teach me goodness, discipline and knowledge", "in that order", they always
add, and so it was a square corners environment there, and I think that did
have probably a heavier influence than I really appreciate, not only in what I
decided to try to do with my life in terms of work but it probably also had an
influence, unintended, I'm sure, on my philosophy about living; maybe my
philosophy about government. It may have been the first seeds of essentially a
conservative approach to constitutional law, for example.
Was there an emphasis on...what will I call it...classical
learning in the sense that...perhaps, did you take Latin?
This was more common in those days. I understand that in some
respectable high schools today, Latin is not offered.
I guess it is not. I know it is not, because our children have
not had Latin. There was no choice. You had to take Latin.
That was part of the drill.
Absolutely, and you had to take a Romance language as well, and
the better students, I was not then counted among them, took Greek if they
wished. That was an option. It was an education in the classics, but not
heavily so in all candor. Catholic Central High School at that time, attracted
a broad spectrum of boys, young men from everywhere in the city and from a
broad spectrum of abilities. Not everybody was a great academic student. They
divided us, I remember, into four groups. Group I was the superior students and
Group II were those who the tests revealed to be something less for some reason
or another, then Group III and Group IV, so it was a great mix of the real
world. It wasn't too heady academically at Catholic Central in those days.
We've kind of skipped over your mother here. You talked a
little about your dad. What are the dominant things that come to mind when you
recall your mother's influence.
Frankly, it wasn't the happiest childhood, although I have no
great regrets. My dad had a drinking problem, and he left home when I was about
in the eighth grade and my mother was required to go out to work which was
during the war, earlier than the eighth grade, maybe the sixth grade. I recall
rather sadly how she would get up in the dark at 6:00 or 6:30 in the morning
and no matter what the weather, wait for a bus; we had no car; we never had a
car, and take the bus or maybe two of them to the old Graham Paige plant in
Detroit which the Army had taken over, and she had a clerical job. She hadn't
worked in years. She had been a graduate of St. Leos High School in Detroit in
about 1925. She was the eldest girl in a family of eight, and had been offered
a scholarship to several colleges including Nazareth and Mt. Saint Joseph.
These would have been academic scholarships?
She was, what will we say...gifted, talented?
Very much so. She was a Latin scholar. To the extent I had any
success in Latin in high school was because it was fun for my mother. But she
couldn't go to school because she had to work, and that's not a novel story for
that generation. She didn't go to college, so while she had no formal
education, she was extremely bright, and totally loving of the two of us, but
she was terribly saddened by the fact that she had to be away most of the
waking hours of the day when my sister was second grade, third grade and I was
in the sixth or seventh and on up, and she really worked herself to death. She
died when she was 50 years old, when I was a second year law student, I think.
I've thought about that statement and whether it could be verified, and I think
it can be. Things weren't very good financially in our family, and that was one
of the reasons, I think, the community was the neighborhood of the parish. It
wasn't any purposeful inward turning of any kind. So, she contracted cancer and
knew it, and didn't get any treatment, couldn't miss work, she thought because
there really was no place to turn. Near the very end, of course, I was working
full time, and I had worked full time all during college. I had always worked
forty hours or more a week...
What kind of work did you do?
Well, I was...all these things...I was working at WXYZ
I thought I saw that...it's in your biography, isn't it?
I wondered. That required some explanation...I was going to ask
A priest at Catholic Central who is still there, still
teaching, Father Norb Clemens, was a gifted artist in the sense that he was a
musician. He was an orphan, and his mother died of a heart attack when he was
in the seventh grade, and his father was a detective who was killed in an
ambush by some criminals in Youngstown in 19...well, I forgot the year.
They sent young Norb Clemens to Assumption College, and young
Norb Clemens, having no family, somehow got interested in music and ultimately
organized a band and in the late 20's and early 30's, would come over from
Windsor to Detroit and play jobs and dances here, got interested in the
theatre, was ordained a priest about 1940 and was at Catholic Central. He was
terribly gifted at singing and music and got interested in the theatre.
Catholic Central, under his direction, Father Norb Clemens' direction,
produced, during a span of about eight years, first run Broadway plays, here in
the hands of these high school kids. When I got to Catholic Central in 1946,
they were producing shows that would run eight, nine, ten nights in this high
Bill Rabe Sr. would review them in the Detroit Times. I have the
clippings at home, and Bill Rabe Jr. remembers seeing them. When I got there, I
was somehow attracted to that, and got into his plays, and apparently he
thought there was some potential there, and I thought I was interested in the
theatre, so when I graduated from high school, I had no dad at home and I had
no job, and there was no way I was going to go to U of D because I didn't have
any money plus I got a job, so I asked Father Norb if he thought he could he
help, and he called one his old pals who had been an actor for him at Catholic
Central who was then Assistant Program Editor at WXYZ, John Lee.
To shorten up the story, I went to see John Lee, and he said,
"I'll find a job for you", and within weeks, I was hired at WXYZ Television as
what was then called a Floor Manager, and worked those studios in the old
Maccabees Building from 1950 until about 1956 when I was finished law school.
That was the source of the income for the tuition. It was my interest in the
theatre was profound after about a year of that; I was sure that what I was
seeing being produced there, I could do as well or better, but life being as it
is, as I saw more and more of the life of the people involved in this small
cameo of show business here in Detroit...
Was this at the radio or television?
Television station, and this was produced for consumption here
Yes, in those days, there was great deal more live programming
locally than there is now. The vast majority of our air time was live local
production including some plays. This, remember, is before the networks
So in your working capacity there, you were thrown in, at least
on the edge of this...I don't suppose...did you perform?
No, not at first. I was in the production department and worked
my way up through that. Thought I wanted to perform, and an occasion came along
in which some auditions were scheduled for a part which came to be kind of a
fad for two to three years. There were five or six characters on television in
the Detroit market. One was called the Black Spider. One was called the White
Camellia. This concept was later made a success by Bill Kennedy. It's simply
the matter of introducing about fourth run movies, the introducer being some
kind of a fictional character who would attract a certain segment of the
I auditioned for such a part called the City Kid. It was an
individual who was intended to be modeled after Leo Gorcey and the Bowery Boys,
later called the East Side Kids. For about a year or year and one-half, near
the end of my time in television, I was both working production and had this
program of my own.
You were in law school at this time?
Yes, I was a senior in college and a freshman in law school
Was this at night, then, or how did you mix it in?
No, it depended on what the registration was at U of D. If I
could get courses heavily concentrated in the daytime, I would persuade the
people at WXYZ to put me on the afternoon shift. That's what I did most of the
five years. Occasionally, they would agree to transfer me to the day shift if I
could only get night courses. Somehow, it worked out. Of course, I went to
summer school all the time so that I could accelerate the program.
What did this do for your academic standing?
Well, it affected it negatively. My grades show that I was an
average student. I didn't have much time to study. I regret that deeply now
because my education wasn't very good. It was hit and miss, and if you'll
permit a digression, I'll tell you what I've undertaken to do about that. Near
the end of that period, 50 - 54, I was a senior at the University of Detroit
Arts and Science College and because of this hopscotching between the
University campus and WXYZ television, I was perhaps six hours short of being a
full blown senior and unless I did something spectacular, I wasn't going to
graduate precisely in four years.
At the end of the first semester of my senior year, I began to
see...we used to say "bodies falling left and right". They were people among us
who had had draft deferments; the draft was on in those days for the Korean
War, were being drafted right off the U of D campus despite the fact that they
thought they had deferments, so I went down to the draft board in the winter of
1954 and said to the lady, "I'm scheduled to graduate, I hope, next June, and I
want to go to law school. Is there any risk that my deferment will not be
extended because I've finished one academic program?", and she said, "There's a
very good chance you'll be drafted", and this was perhaps December.
So I ran down to the law school and registered in the middle of
the winter to get into law school despite not having my undergraduate degree
and so I started law school in January, 1954, assuming that I would avoid this
break in my education which may have tempted the draft board to grab me, and it
worked. They continued my deferment, but when I finished law school in 1956
which I also accelerated - I only went to law school for two years because I
was afraid of being drafted, because I was running out of money and energy, so
I finished law school in 1956, and that is...34 years ago, I guess.
You would have been what...24 at that time...?
Right, so I didn't have a degree.
Oh, an undergraduate degree, but you did have your law.
I had a law degree, and that has been on my mind, Roger, these
thirty-four years, and it's also been on my mind that I was grabbing courses in
the undergraduate program sometimes because they wouldn't offer too much
challenge to my working schedule which was critical to be there at all, and I
have never been satisfied with the quality of my undergraduate education,
especially not in the last few years when I find myself writing for a living,
so a year ago, I went over the U of D and told them the story I just told you
and said, "I want to get my degree, but more than that, I want to get educated.
Do you have a program for a guy like me?" I had lunch with the dean, and he
said, "Yes, we have. There are two tracks we can offer you to finish your
undergraduate program. The modern corp program for liberal arts people or we
can re-create the track you were on in 1950 when you started here."
How much did you have to go, six or eight?
It turned out to be about 18 hours. I think it's 18. So I
started 1-1/2 years ago back at U of D, and I am going to school now one night
a week, and I am finished up to get my undergraduate degree and I have the
happy opportunity to pick courses which are the ones I dodged 35 years ago. Two
semesters ago, I took a course in Theology of Protestantism and the Reformation
which I enjoyed immensely. Last semester, I took a course in American
Literature from the Civil War to the present and today, this semester now, I'm
taking English History from the Roman Period through the 15th century. I'm
thinking about seeing my advisor this week to pick out something for next
How much longer on the calendar do you have to go? Maybe
sometime next year?
I think I'll take something this summer, so it is going to be
about three more semesters, I think.
That's quite a story.
Well, it isn't the one we came to talk about, and I got...
I got you off the track. Now, your mother became very seriously
ill of cancer, and she continued to work?
Yes, she did. She continued to work. She contracted cancer
about 1950, and died in 1955, worked up until about 90 days before when she
couldn't move any more.
Did she work in a clerical capacity at Graham Paige?
That was only during the War. When the war was over and the
army pulled out of Graham Paige in 1945 or 1946, she then went to work for a
company called Detrex Corporation which had its office only two blocks from our
house for a while but later on, moved to mid town Detroit.
That pattern persisted, and my dad...they tried mightily to put
the marriage back together again, but alcohol was his problem as it was his
father's problem, and he just wasn't able to handle it, and they never were
able to put the marriage together, and I think he suffered from terrible guilt
feelings and so...I really believe this, and so he didn't make any effort to
keep in contact with my sister and me as we were growing up except on occasions
when he shouldn't have called on the phone in the circumstances, but I must
say, the day that I was sworn in as a Circuit Judge in Wayne County Circuit
Court, I looked up, and he had been living in a distant state, Texas, for many
years, and I looked up, and he was in the audience.
Didn't know he was going to be there?
Didn't know he was going to be there and hadn't talked to him
I skipped over something in trying to steer the conversation
around here. What was the germ of your interest in the law that resulted in
your going to law school and becoming an lawyer and a judge? Can you figure it
out? Was it something obvious, somebody ahead of you?
I think so. I think it was a combination of three things
probably. One of them was the only fellow in our neighborhood, to my knowledge,
who had gone to college lived a couple blocks away. His name is Bill Gilbride,
and he was ten years old, is ten years older than I. I'd always admired him,
and he went to law school. That was kind of a model. He is a senior partner
today in a Detroit firm and a dear friend of mine.
That was one factor, and the other was Father Clemens at
Catholic Central who worked with me in public speaking and in writing, and that
tied in nicely with my interest in amateur acting, and the third component was,
when I was at WXYZ Television, through the graciousness of John Lee, the
Assistant Producer who hired me, who had been one of Father Clemens' boys at
Catholic Central; John kept reminding me in what I now remember as a very
subtle way that the glamor that I was apparently seeing in the life of show
business was perhaps very superficial and maybe even vapid, and that he had
seen that when he was younger, and had started into law school at U of D and
had dropped out and had given his career over to show business, but he thought
I ought to think about if I enjoyed the theatre and if I enjoyed entertainment
in that respect, the rewards might be much greater if I were to be involved in
it in the business end of it as a lawyer, and he encouraged me to go to law
school. He facilitated the scheduling of my work at WXYZ to enable me to do
that, so I think those three things put it together.
Now, prior to your graduation, had you been on a track of some
sort that took you into your first practice situation, law practice
No, the armed forces...I'd had that deferment for eight years,
so the minute I graduated, I went into the Navy, Officer Candidate School, and
into the JAG Corp and I served about 41 months with the Marine Corp.
Oh, you did?
As a lawyer, yes.
This would have been 56 or so?
Better than three years, right?
Take you up to 60 or so, close to 60.
Yes, it was in 60, and my friends who were back here, the
fellows I was closest to started their own law practice. I don't know whether
it is because, like me...well, that isn't the reason, but they are such people
as Tom Brennan who later became Chief Justice of the Supreme Court.
Were you in the famous law firm that had Brennan, Maher,
Waldron, Brickley and...who was it...was Gribbs in there?
Well, yes. I'll tell you what that was. While I was away
fighting the great war on the beaches of the blue Pacific in Southern
California, my service was in peace time, Roger, and really learning something
about how to try law suits because I was prosecuting and defending criminal
cases in the Marine Corp., my pals were back here trying to organize a law
practice, so I returned home after my 3-1/2 years in the service, and the first
thing you do is look up your pals, and my pals were Tom Brennan, who was ahead
of me at Catholic Central and who had been a pal at U of D. and Dick Maher who
was a classmate at U of D.
Now on the State Court of Appeals?
Now on the State Court of Appeals, and the law firm was in the
First National Building and there is was, in the door, "Waldron, Brennan,
Brickley and Maher. I walked in and my pals said, "Nice to see you, but we're
struggling to feed our families, and if you want to join us, we'd love to have
you, but you've got to bring in your own business". I came aboard on that basis
and stayed with those fellows for about three or four years. The people in the
firm were Bob Waldron...
Who later was Speaker of the House...
Speaker of the House, and he was never around. He was in
Lansing all the time, and we thought he was the Grosse Pointe feed. He was
going to send us all the business. We were too naive to recognize that because
Bob lived in Grosse Pointe and represented it didn't mean he was going to have
any law business, and he didn't have much to send. Then there was Tom Brennan
whom I've just described, and then there was his brother, Joe Brennan, who is
now deceased, Terry, as we called him. Dick Maher, who was on the Court of
Appeals. None of these fellows, for some reason or another, had to go in the
service, so they'd been at this for three years. They rented space in the suite
in order to help make ends meet to another U of D grad who had been an
Assistant Prosecutor and had gotten tired of it, and wanted to try private
practice, and his name was Ray Gribbs.
Mayor...no, Sheriff...no...What was he?
He was first the Sheriff, then later Mayor of Detroit, and now
he is the Judge of the Court of Appeals, and the next fellow in that sub-rental
group was Jim Brickley whom we all knew, although he didn't go to U of D
because he went up to St. Michaels in Toronto to study with the Basilian
Fathers. We got to know him quickly when he came out of college. Jim Brickley,
of course, went from that practice to a membership in the Detroit Common
Counsel, the a United States Attorney for the Eastern District of Michigan,
then Lieutenant Governor, and now in the Michigan Supreme Court.
Do you know of any other law firm in the State that produced
three Supreme Court justices?
I can't think of any. It was a great law firm as the
description...of course, you're sensitive to all these names and these roles,
but everybody in the...the law firm self-destructed because everybody got
elected to public office, and there was an article written in the Detroit News
by a female columnist whose name I've forgotten, and she claims to have coined
the expression, "The Irish Mafia", which had reference to our law firm, and
added to that Jerry Cavanaugh. Jerry was a contemporary of ours, but he was not
in our law firm.
He was a little behind you, wasn't he.
A little ahead of us. My class in the law school was 1956.
Jerry's was 1954, I think. Jerry was very much active in the Young Democrats at
U of D, and none of us were active in any organized political party of any kind
at all, and all of us, as the record shows, became more interested in judicial
office, non-partisan judicial office that Jerry was interested in.
Here you are in 1960, and they gave you a closet in a
magnificent law firm. What happened next?
Nothing. Absolutely nothing. I sat there and watched the ships
go up and down the Detroit River. Nobody knocked on the door and said that they
were desperate to have Jim Ryan represent them. These dear pals of mine who
were the corp of this firm had combed the neighborhoods to get all the law
business they could while I was out on the west coast with the Marine Corp and
my dear wife was teaching school. We had no children. After two years of
sitting around, I almost...well, I made up my mind I was going to go back in
the service. I loved trying cases. I loved the Navy. I loved serving with the
Marine Corp, and I came within a hair's breadth of returning after about 1-1/2
years of sitting in the First National Building with no law business.
But the Holy Spirit works in strange ways, and at the last
minute, I decided maybe I shouldn't do that. My roots were terribly deep here,
really, in Wayne County, my family, ancestors, so I told these fellows that I
loved the relationship but we were better off as pals than business associates.
The firm was self-destructing anyway. Tom Brennan was running for Congress.
Dick Maher was running for the Traffic Court in Detroit. Waldron was Speaker of
the House. Brickley was salivating at the prospect of running for Del Smith's
seat on the Detroit Common Counsel, and so I went out to Redford Township, and
opened a small law office and ran for Justice of the Peace.
I figured if I could get elected Justice of the Peace in Redford
Township, I could probably live on the fees of the office while the law
practice was building. The Redford Justice of the Peace was the biggest Justice
Court in the State of Michigan in terms of the volume of its business, and it
was, if not a full time job if one were elected to it, it was darn close to
This would have been what...1962?
1963, so I did. I ran in 1963. It was a partisan office in
those days. I ran on the Republican ticket. All these personalities whose names
I just mentioned, and all the friends I guess I ever had came out to Redford
township en masse and literally overwhelmed the local politicos with this
campaign that we put together. It was the closest thing to the crusades that I
can think of looking back on it. Because of a convoluted filing process I won't
bore you with, I defeated an incumbent Justice of the Peace in the primary and
then defeated a second incumbent Justice of the Peace in the run-off and was
elected in the spring of 1963.
I can recall Jim Brickley who was then a member of the Common
Counsel of the City of Detroit wanted to help as we had helped him, and he worn
sun glasses on the day that was gray and overcast in the late winter, going up
and down the streets in Redford Township, knocking on doors, getting petition
signatures, hoping nobody would recognize Councilman Brickley from Detroit.
Dick Maher was a Traffic Court Judge, and he was tacking up signs. So it
worked. It was a very busy Justice Court.
In those days, we were paid with fees in the Justice system, so
I served in the Justice Court from 1963 to 1966, and in 1966, there were
vacancies, three new judgeships in the Wayne Circuit Court, and I thought that
after having been a lawyer for nine years, three of them as a really the
equivalent of a Municipal Judge, it was such a busy Justice Court, that perhaps
I was ready for what was a real intellectual challenge for the first time, of
the Wayne Circuit Bench. So, I ran. The same maniac devotion that was invested
in this Justice of the Peace race in Redford was mounted again in Detroit with
the help of all the people I've named and dozens of other U of D friends and
friends from grade school worked for eight months, and we won in the Wayne
Circuit race in the fall of 1966, and that was the end of the law practice.
As a Justice of the Peace, of course, I could practice law and
did, and I never liked it. I was never suited for the practice of law, I'd made
up my mind, that I could never be happy....while I understand the philosophical
distinction between a lawyer and his client's cause, I could never bring myself
to mount a vigorous attack for a cause that I didn't think was right, so I was
happy to get out of the law practice.
How did you run in 1966?
There were three of us elected; Cornelia Kennedy, who was then
not very well known but a very, very experienced woman lawyer in the City of
Detroit, finished first, enjoyed the endorsement of all our associations and
everybody, deservedly, I might tell you. She is today a colleague of mine on
this Court. I finished second, very close to her, and the third judge elected
was Judge George Martin, who had been for 22 years, the Municipal Judge of the
City of Dearborn.
Was there a big field? Were there others that...?
Yes, in the primary, there were 43 in the primary. It was the
first opportunity in years for...in 1966 and in 1967, the size of the Wayne
Bench was expanded. Four new judges were elected in 1965, and three of us
elected in 1966, so it was the last chance, we thought in those days, to run
for a vacancy in the Wayne Circuit Court. A new judgeship, so it attacked a
You know, early, sometime fairly early in your career now in an
electoral context, you ran for something, you, as an identifiable Republican,
managed to get labor support. How did that all come about, and was this
reflected in your initial win in Wayne County for Circuit Judge, or was this
something that had just gradually accrued later in your career?
I'm not sure. I think it's just as simple as this, Roger. I
didn't have any labor support in the primary when I ran for Wayne County
Circuit Judge against that field of 43. Labor didn't do a lot of endorsing in
judicial primaries, and the secret activity they were conducting was on behalf
of two or three candidates whom I knew who were entitled to that kind of
support, and I wasn't.
Once I was nominated, however, in a field of six, considerable
amount of labor support did come along, and I think it was for two reasons: 1)
I think they thought my chances of winning were probably fairly good since
three were to be elected out of six, and 2) fellows like Dick Maher who was
elected by now to the Traffic Court in Detroit with heavy labor support
introduced me to the Titans of the local labor political action groups, and I
made it my business to go around hat in hand and ask them to look at my
candidacy, and as a result, there was some early labor support. Not universal,
But that was something that was noteworthy for a fellow that
had a real clear Republican identification, was it not?
Yes, it was, but of course, without denying that I had run as a
Republican Justice of the Peace, you had to be either a Democrat or Republican,
I did everything I could in Redford to conceal the fact that I had been elected
on the Republican ticket. As a matter of fact, in the campaign, the signs read:
"Ryan, a new man for justice", and the Republican Party people had meetings,
literally had meetings to decide whether to condemn me for not putting
Republican on the ballot, so I didn't advertise.
I figured an Irish Catholic with a name like Ryan will be taken
by, in those days, by a lot of people to be a Democrat if you needed to be a
Democrat. I have to tell you in all candor, I didn't have a political mind set
about being a Democrat or a Republican when I ran for Justice of the Peace. I
picked out the guy in the primary who I thought was most beatable, and it
happened to be the guy on the Republican side. It's really just that
Here you are now. It's 1966, fall election, I guess, so you go
on the bench in late December or...
January 1, 1967.
At what stage...I suppose you, at that time, had a usual mixed
docket of criminal and civil. That's the way it was then, was it not?
And then I suppose you began to think ahead...what's the next
step. You were doing your work, obviously, but a Court of Appeals had been
created in 1964. Did that put any thoughts in your head?
(End of side 1, tape 1)
Yes, it did. I loved my nearly ten years on the Wayne Circuit
Bench. I'm not sure I was qualified for that Court. I probably was not
qualified when I was elected. I had only tried one Circuit Court case to a
verdict as a lawyer when I was elected, although I had tried a lot of cases in
the Justice Court as a judge, many to juries, minor civil cases, still the
complexities of Civil law in the Circuit Court were such that I was really
challenged, and I made up my mind, (I haven't done this in everything I've done
in life, I confess), but I made up my mind that by God, I was going to be the
best damned Circuit Judge in Wayne County or I was going to get out, and I
wasn't sure what it would take to do that.
I don't say that I achieved that, but I did study very, very
hard, and I really changed my lifestyle, socially and otherwise, and became
maybe a bit too isolated in those days, but I enjoyed the work immensely, and I
became very early in my career at the Wayne Circuit Court, I became involved in
continuing Judicial education. The National Judicial College in Nevada had been
created in 1964. It was and is a first-class national continuing judicial
educational body. I attended it as a student in the summer of 1967, my first
I was invited back to the faculty in 1970, and I taught judges
from 1970 on, and as you know, the teacher is the one who learns most, so I
really developed, I thought, some measure of expertise, technically, at least,
as a trial judge. After about seven or eight years of that, it got a little old
instructing juries, to be perfectly candid, telling the same thing, performing
what was very often a ritualistic function, and I was beginning to see a change
in the cast of characters among the lawyers who were appearing on motion day
and arguing motions. A younger group was beginning to come along. There were
innovations in the law of torts and in the law of indemnification.
2. Justice Ryan discusses the changes in lawyers during his time
as Wayne County Circuit Court Judge, his colleagues, Thomas Brennan and John
Swainson, and being appointed to the Michigan Supreme Court by Governor
Milliken after Swainson resigned.
You were saying there was a change in the character of the
Well, I saw this new...not so much a new breed, because the
period we're talking about is only seven or eight years, but a kind of wave of
younger lawyers coming along who were doing some rather innovative new things
in terms of argument and pleading, and I began to see myself as kind of a
spectator to this evolution in the law, both substantive and procedural
evolution, and I'm watching these young people doing interesting things, and I
began to get a little fidgety and thought I would like to have a bigger piece
of the action than calling ball and strike, overruled and sustained while these
bright young guys are trying these cases.
I didn't feel that I had the real, whatever it takes to be an
effective practitioner, so I began to think about Appellate Court work which
would give me an opportunity to do some writing, do some reading and some
studying, that I never had a chance to do, and most trial judges don't have a
chance to do it in an urban area.
You were serving initially with Brennan and Swainson, both of
whom went on to the Supreme Court, right?
Actually, Tom Brennan and I, as close as we are, passed as
ships in the night in the Wayne Circuit Court.
Is that right?
He left the autumn before I arrived. John Swainson and I were
serving together, and we were very close friends. Got to be friends because of
serving together in the Wayne Circuit. So in 1974 - 75, in that period,
something in there, perhaps a little earlier, I called Jim Brickley, my old law
partner and friend who was then Lieutenant Governor and asked what the
prospects might be for me to move up to the Court of Appeals although I wasn't
sure I wanted to, and he did some exploring and indicated to me that I should
get some paperwork in to the Governor whom I'd never met.
In 1975, you had never met?
No. Perhaps what I'm talking about might be earlier 1974 now.
Early 1974, I think it was. So, I got the paperwork in, and I got to thinking
about the Court of Appeals and made up my mind that I really didn't want to be
on the Court of Appeals. I remember Tom Brennan saying to me once that he would
never be interested in serving on the Michigan Court of Appeals because to him,
the work there was in the nature of correcting blue books all day long and
setting them back to the trial judges, students, let's say to get that asimile,
as opposed to the Supreme Court which was a common law Court of law making, in
a large respect.
I thought about that, and I really thought that maybe I agreed
with that, so I remember calling Brickley one day and saying, "Will you meet me
at the Book Cadillac Hotel after work for a drink?" and he did. I said, "Jim, I
know you've been looking about on my behalf, but I don't want to be on the
Court of Appeals, and I don't know whether anybody is thinking about appointing
me, but the off chance that they might be, I wouldn't want you to be
embarrassed, so if I'm under consideration, could you get my name pulled, and
I'm not sure I am under consideration". Well, he tried to talk me out of that a
little bit. I thought, "By golly, maybe I am in the finals". Well, within a
week or so, George Bashara was appointed to the Michigan Court of Appeals. He
had been a Wayne Probate Judge, and nothing further was said about my change of
In later years, Jim Brickley has told me that it wasn't
necessary to pull my name because I wasn't at the top of the list. But I got to
thinking about the Appellate Court work after that, and never did anything
about it. I didn't know the Governor. I wasn't active in the Republican Party,
never had been even in the short stint in Redford as a Republican JP didn't
have any party involvement of any kind. I loved my work as a trial judge,
wasn't sure that I wanted to leave. When my good friend John Swainson, with
whom I'd served and to whom I'd gotten very close when we were Wayne Circuit
Judges, was accused of a crime in the Federal Court system, and that is
certainly detailed elsewhere by others in his history, the upshot of it all was
that in early November, 1975, John was convicted of two or three counts of
perjury, which conviction he immediately appealed to the United States Court of
Appeals but under the law, his conviction of a felony required that he resign
from the Michigan Supreme Court, and he did, creating a vacancy.
That was November, 1975?
Yes, so I communicated to my friend, Lieutenant Governor
Brickley that I would be interested in being considered, recognized that if I
had any chance, it was a very, very long chance because I really had no friends
in the party or the administration except Jim Brickley, and Brickley and the
Governor, as I understood it, were good friends, enjoyed one another's mutual
respect, but saw things differently on a number of issues, and I didn't have
the feeling that Jim was necessarily going to turn the Governor's head on any
such thing. So the process was pursued. I sent the papers in and was
interviewed by the State Bar of Michigan which had been asked by Governor
Milliken as a matter of course to interview people who had expressed interest.
I made a call on the lady, Joyce Braithwaite, who now is Mrs.
Brickley, who was the Governor's principle assistant for judicial appointments
and never met her in my life. We had an interview, and I really thought that
the chances of it going anyplace were almost nil when a couple of signals came
my way in the Thanksgiving week of November that I might be under
consideration. Then a leak from WJR one day on the radio which is a surprise to
me that my name was being considered, and the Governor called me when I was
sitting on the bench, I think it was December 4, or 5, 1975. I was trying a
case in the Wayne Circuit Court.
My secretary, who is still with me now, Fran, came into the
court room which she never did. Her face was as white as this shirt I'm wearing
now that the Governor is on the phone. It was a complete surprise, and in his
gracious style, he asked me if I would...I'll never forget his
expression..."Would I do him the honor of accepting his appointment?" I'd never
been appointed to anything before, so that was a new style to me. That was the
Supreme Court appointment.
There wasn't the kind of political identification then, in your
selection that would have been, say, in John Fitzgerald, who had run, for
example and served in the Senate and had a strong background through his family
and other activity as an office holder.
That's right. Nobody in my family, no one I was ever associated
with had any history of activity in the party. I had not...I have some
suspicions why it ultimately came to me, but they're only suspicions.
Were there others, as you remember, who seemed to be hot
prospects for that appointment? I don't remember enough about it.
3. Justice Ryan then talks about Proposal B, regarding abortion,
the nature of the Supreme Court and its lack of litigation knowledge, and the
Shavers vs. Attorney General case concerning no-fault automobile insurance.
Ryan concludes by talking about the law of comparative negligence and
The hottest competition was George Bashara, my friend, George
Bashara, who was then on the Michigan Court of Appeals and who had a history of
being very, very active in the party before becoming a judge and was very close
to the Governor, and I don't know why I was chosen instead of George, but I'll
share with you my thoughts about it, and if it winds up on the cutting room
floor, that's somebody else's judgement which is okay with me.
I had been very, very active in the Respect for Life movement in
1971, 1972, 1973, 1974 because I thought there was coming to our culture kind
of a pernicious notion which would find its way into legislation that...having
to do primarily with a lack of regard for the sanctity of human life, all
across the spectrum, not just the unborn, not just abortion, but the treatment
of a newborn handicap, the treatment that are given mentally retarded people
who are post-teenage years, and kind of an increasing disrespect, I thought,
for the aged. That generated my interest in the Respect for Life movement that
was contrary to what some people think. Not just a matter of interest in the
subject of abortion, so I had done some writing, given some speeches, a lot of
speeches, and somehow became identified in Michigan as somebody who was
interested in this subject in 1972, 1973, 1974.
Now, there had been a ballot proposal, Proposal B on the ballot
in 1972, called Proposal B which, had it been adopted, would have brought to
Michigan, legislation providing abortion on demand, really, up until about 15
weeks. At that stage in history, the only states that had abortion legislation
of that sort, as I remember, were Colorado, New York and California...maybe
another state, and I thought that legislation was bad legislation, and I gave a
lot of speeches in opposition to it, and it was, of course, roundly defeated by
the public at the polls in the biggest percentage of rejection of an initiative
in the history of the state. But I somehow got identified with this cause.
Roe vs. Wade was decided in 1973 in the United States Supreme
Court, and I was just one voice among many who were interested in
constitutional law who thought, no matter where one stood on the abortion
question, whether pro-choice or pro- life, that it was an incredibly poorly
reasoned constitutional law document, and I said so without trying to be
strident or disrespectful to the Supreme Court.
I go into all this, and now I end it, Roger, because I was given
reason to think that while Governor Milliken's view was the so-called
pro-choice view, he also had been the beneficiary of the political support of
the Michigan Catholic Conference for a lot of reasons. He was a good governor,
in their judgement, but he also had expressed support, in principle, for the
concept of some kind of parochiaid, some kind of financial support for private
schools which would keep them alive to preserve a dual school system, and he
was going to come up for election again, and I have reason to think from what I
learned in later years, that the Governor was interested in doing whatever he
could honorably to enjoy the support of what he believed would be kind of a
monolithic Catholic vote. There isn't any such thing in my opinion. I'm told
that his advisors suggested to him that it would be good not to alienate the
Catholics. Well, there had just been a vacancy on the Michigan Supreme Court
which the Governor had filled in 1975.
That was the appointment of Larry Lindemer?
That was the appointment of Larry Lindemer who was the
Governor's close personal friend, had been a State Chairman of the Republican
Party, was a most distinguished lawyer, but didn't have a very re-electable
name, a lot of people thought, a more distinguished and more capable lawyer,
Governor Milliken could not have found to put on the Court, in my opinion. He
appointed Lindemer to the Court and in a matter of months later, the Swainson
vacancy occurred in the context of this political background that I've tried to
snapshot here, and this Irish Catholic judge from Wayne County who didn't seem
to have too much baggage hanging around his neck, good or bad, seemed to fit
some kind of a profile, I later was told, that might not do the Governor any
harm politically and hopefully would not embarrass him in terms of my
competence, and I've come to believe in later years that that was kind of the
atmosphere in which my appointment was made.
Do you think that the trial experience that you had as a
Circuit judge was a factor?
Yes, I think it was.
A lot of electoral contest for the Supreme Court, the issue
comes up that people that sit there are short, generally speaking, on trial
experience judicially. I just wondered what you thought about that?
I think it was an important dimension. I don't mean in talking
about this Irish Catholic and pro-life business to suggest that those were the
dominant considerations. I just think they were in the mix, and I think that
the fact that there was no Justice sitting on the Court who had any trial court
experience to any extent was very important. Maybe as we visit here, I'll share
with you how important I think that was, later on as we talk.
Yes, I was going to bring up some things that might be
pertinent to that. We might as well jump into one of them right now. I had this
Westlaw printout, and these things are inexact, but by and large, what it is
supposed to represent was a number of opinions that you wrote, opinions of the
Court on the one hand and dissents on the other. I tried to scan through and
see what I could learn from this, you know, in a relatively cursory manner, and
I thought I noticed that you had an awful lot of criminal cases that you wrote.
A lot of them were opinions of the Court but there were a number of dissents.
Sometimes, they show up in this Westlaw printout as strings of them, and I
wondered if there was some arrangement within the Court that steered a lot of
these cases to you where there were question of evidence and jury instruction
and that sort of thing or whether this just...how did it come about or was not
my observation well-grounded?
You know, I think it is well-grounded. I had forgotten about
that pattern, but I think there was something of a pattern there. When I came
to the Court, I thought of myself and spoke of myself as the luckiest guy in
America, for a kid from the background I came from, with average academic
performance, to have the opportunity to be here was almost overwhelming, and I
tried not to forget that, but there was another circumstance of which I was
equally conscious, and that is that among my peers in the trial judiciary, the
Supreme Court was held in very, very low esteem.
A part of that, I guess, is professional jealousy, and part of
it is politics, and I don't know what the rest of the mix is, but it was there,
and it was a lack of regard which was held by trial judges and lawyers, not
universally, but trial judges and lawyers who were pretty darn bright people,
so I tried to figure out...I had my own opinion about that, and I didn't think
the Court was anywhere near as good as it could be, and I thought the area
where it was most deficient was in understanding the litigation process. The
other six Justices on the Court, none of them had any extensive trial
experience, either as trial lawyers or as Judges.
When I arrived, there was Justice Coleman who had been a Probate
Judge, and that is a very circumscribed kind of judicial function. It isn't
really litigation of any breadth at all. There was G. Mennen Williams who had
had zero judicial experience when he came to the Court. He had been there about
five years when I arrived.
Very little trial experience.
Almost none, and what little he had was many, many years ago.
Then there was my friend, Thomas Giles Kavanagh, who had had a little trial
experience, but he would be the first to say virtually none. He had served on
the Michigan Court of Appeals, not as a trial judge. Then there was Larry
Lindemer who was one of the finest legal minds and is today that I have ever
encountered. He made a rich contribution to our conferences because he had been
practicing lawyer for 27 years, but he wasn't a trial lawyer. He was an office
lawyer, as they used to say.
Then there was John Fitzgerald, who had been on the Michigan
Court of Appeals and before that, in the Senate, and never claimed to have any
extensive trial experience, and didn't, and then there was Chuck Levin who
didn't have much trial experience at all, almost none, he has said. The nature
of his practice which was extensive and valuable was not trial practice, so
that was the environment.
I had not only been a trial judge, I had been interested and
active in teaching trial techniques to trial judges at the National College for
years, and I began to find in our decisions, I thought, both a lack of
understanding or what the process should and must be, both under the rules and
under the constitution, and kind of a treatment of it which was unwarranted in
the law, so I guess I prepared a relatively large number of dissents in which I
addressed matters of what are now called Criminal Procedure which are very
often constitutional law issues about search and seizure, about line-ups, about
That's evidence instructions, prosecutorial process or
The jurisdiction question, police conduct... these seem to be
your cup of tea as a result of your experience, I assume.
I think so.
Was there some mechanism within the Court that caused you to
draw these cases or to become the person who wrote...?
No, there never was. I don't know what went on in the Court
before I got there, but I was told that there had been some personal and
political tension among members of the Court in the years ahead of my coming,
and as a result of that, they had adopted a hard and fast rule about the
assignment of cases, that after the oral arguments, the opinion writing would
be assigned to a justice by lot, out of a hat, and really a carefully policed
You never knew what case you were going to get until after it
was argued, and they still do that today. However, once a case was assigned to
an author for the majority, anybody at the table who disagreed with what the
majority opinion was going to be was free to write a dissent, and if I'm to
have the kind of candor, brutal candor I'm sometimes noted for, Roger, I've got
to tell you, the Court was very, very liberal, and you've got to put that in
quotes with respect to both civil and criminal justice at the time I got there
in the sense that...I now will over-state it a bit..that if it seems fair, it
must be okay, and we'll find a way to say it's okay.
I had a kind of a different perspective as to how to review
criminal cases, especially, in the early days, and to the extent that there was
anybody else in the Court who saw things as I did, they were less inclined to
volunteer to write than I was. I was a newcomer to the Appellate Judiciary, and
I was all hot to trot, so I wrote a lot of dissents in the beginning.
Did this occur, too, that there would be some discussion after
arguments, the case would be assigned. You would take a look at it, and you'd
say, "Holy cow, did you get a load of this". You'd see something in it that
would say, "If I'd realized this when they were arguing about it...this ought
to be decisive", and maybe you'd try out the fellow that got the assignment,
and he'd say, "Why don't you take care of your cases. I'll take care of mine",
and perhaps ultimately, by writing, you focused the Court in a different way
and did sometimes those dissents become the opinion of the Court, or wasn't
there much of that?
You know, you go back in the reports...excuse me for the
interruption, but you go back in the reports and the person doing what I'm
doing happens to notice that it was the custom through Hiram Bond's tenure, I
guess, and you pick up the reports and here it says, "Dissenting - so and so",
and it was the style in which reporting was done, but that might be the opinion
of the Court if you count up the votes. So I really had that in the back of my
Sometimes...it was the practice that the justice to whom the
case was assigned would appear in the reports as having written the lead
opinion but the guy to whom it was assigned in those days might turn out to be
writing a dissent, as you point out. They've done away with that practice
I think in all candor, I didn't turn the Court around to my
point of view nearly as often as I wished I could have, and I think the reason
is indigenous to the Michigan Supreme Court and the way the justices get there,
the nature of the institution, and the other reason is that I have, all my
life, struggled with a personal style which is abrasive to some people,
especially in a collegial environment.
I think now that I'm getting old that I recognize more clearly
that I used to that I'm not as effective as I wish I were at persuading others
to my point of view because the style of my argument is off-putting, sometimes
too aggressive, so I think I lost the opportunity to persuade others to come my
way because of my own personal style, the short-comings of it, sometimes, so
that's why a lot of those opinions appeared as dissents instead of swinging
somebody to my way.
The other reason was that the Court, when I first came to it...I
hate to use the words "Liberal" and "Conservative, but they do have some
meaning...it was a Court in which there was a kind of a heavy inclination, both
in criminal and civil juris prudence in those early days to favor an outcome
which was very compassionate, very understanding, which was generous, often
without a lot of regard with what the law was on the subject.
I'll have to bring to mind some words that you wrote in Shavers
and somehow,....I didn't do...this is the only time I did it, I think...In one
of your early sentences in your dissent, you say, "This Court is often wrong on
policy and short on judicial restraint", and I mean, you can put this in
different ways, but that comes close, doesn't it?
I wish I'd remember that. I remember it now that you...that's
right on the button.
Well, let's talk a little bit about Shavers. Now here is a
perfect example of what you've been talking about, was it now?
I can't remember. What's Shavers?
Shavers was the no-fault case.
This is where the Supreme Court rendered judgement, I think you
called it "in futuro" of constitutionality. If you'll pardon me my
amazement...see, here I was just starting into law school, and this stuff
wasn't in the books. I didn't know where this came from and I thought, "My
gosh, do I understand what's being done here?" You know, I didn't dwell as a
student on this. I was busy with other things but I certainly thought this was
a most remarkable judicial approach to a question of this kind. Why don't you
relate a little bit of what you saw of this thing at the time?
I wish I had read Shavers before we talked. It would jog my
memory, but I remember it enough to tell you that there was a crescendo of
attention in the media to this case that was coming up the ladder to the
Michigan Supreme Court, the case being the challenge to the constitutionality
of Michigan's new no-fault auto insurance statute. No-fault auto insurance was
a hot, new, progressive, modern subject which was invented by a law professor
at Harvard who is now a Federal district judge and a colleague of his, Bob
Yes, and there were all kinds of versions of auto no-fault, and
it was revolutionary. There was no question about that. We need not get into
the details of it here. Michigan's version of it came along about five or six
years after it first was adopted, I think in Massachusetts, and a couple other
places. It had its own spins, its own innovations, very, very complex,
revolutionary, and the promise was made to the public that if they would
support through their legislators, the adoption of the no- fault auto insurance
statue, the payoff would be lower premiums, dramatically lower premiums, and
we'd get a lot of these disputes out of the Courts. That would cut out the
lawyers which was a politically appealing pitch to make to the public in the
State of Michigan. You're going to get the lawyers out of the business of auto
accidents, and you're going to reduce the premiums. This might be Mecca. So it
raced through...I shouldn't say "raced through", it got through the
1972, I think.
1972, I guess, not without opposition, and ultimately found its
way to the Supreme Court in the form of the case you've described, Shavers vs.
the Attorney General or somebody.
It was a very, very tough case for all of us because the
statute is very comprehensive, to me, very, very complex. All seven of us
worked mightily to understand it. When we got all through, the majority of us
were of the opinion that the thing probably was not constitutional for some
technical reasons, to be sure, but a legal technicality...I remember one day, I
was talking to Tom Brennan...I digress now for a moment...and somebody in our
group during the conversation referred to a legal technicality, and Tom said,
"You know what a legal technicality is?", and I said, "What is it?". He says,
"That's a rule of constitutional law that Martin Haydon, the editor of the
Detroit News, doesn't agree with". There were some of these highly technical
provisions of the Michigan constitution which we thought collided with the auto
Now, if I recall, this was a suit for a declaratory judgement,
In almost sort of an advisory opinion context. There was no
case or controversy in the traditional sense before the Court. This was an
invitation to ratify something the legislature did or to amend it or...
It was critically important. A declaratory judgement is an
appropriate judicial vehicle to do just what you've described. It was necessary
for us to make an all together declaration about the constitutionality of the
statute because millions and billions of dollars of potential insurance
coverage had to be organized by the insurers to cover Michigan's drivers so
they had to know whether the statute was any good or not.
After working very hard on it, our Court came to the conclusion,
as I recall, that it was not constitutional, the way it was written, and it
needed to be fixed up. So I, who had been taught throughout my life, that if a
statute is not constitutional, it is invalid, it is void, it has no binding
existence, so I was prepared to produce an opinion that said as much when the
majority of my colleagues said "Well, that's true except this will throw the
whole state of Michigan into terrific confusion about auto insurance so let's
hold that it's not constitutional yet, but we'll approve it for the interim and
we'll give the legislature 18 months within which to correct technical
deficiencies", one of my colleagues said, which means that they can take an
unconstitutional statute and try to make it constitutional.
And we're getting here, as I recall, into due process and that
sort of thing.
Absolutely, it was...as I say, I wish I had read it, but I do
recall that during this interim period, this statute is binding on everybody.
This unconstitutional statute, my colleagues said, which isn't worth the paper
is written on, will be binding upon every registered motorist in the state of
Michigan and on the insurance companies that are writing the insurance, and on
the victims of accidents. Well, the plaintiff's Bar Association thought they
had died and gone to heaven.
Here, they had lost the case on the constitutionality of the
statute but nevertheless won the case because the Supreme Court put out a
majority opinion holding that while it isn't any good, we're going to leave it
in place and give the Legislature 18 months to fix up the deficiency. That's
probably a good example of a case in which I don't know whether I had any
chance of convincing my colleagues that that is judicial craziness to do that,
but if I had any chance, I probably lost it because I was do heated about what
I regarded as a totally inappropriate judicial performance...
Is there any counterpart to that in Michigan constitutional
history that you know of? I understand this sort of thing has been done in New
Jersey or some place? What call you tell the tape about that?
My memory is that there isn't any counterpart in Michigan
judicial history at all. There hadn't been at that time, and there had been a
case or two in which that devise was utilized elsewhere, and my argument to
Shavers dissent, as I recall, was that doesn't make it right. It is still
wrong, and even if there had been some precedent in Michigan, it wouldn't be
That's my memory that it wasn't done before that, and it
hasn't...I thought the world was coming to an end. Here was the Michigan
Supreme Court behaving in an utterly non-judicial fashion, reaching out to do
the work of the legislature, really invading the separation of powers principle
in a serious way in a statute which had very high profile, but I was in the
minority and my colleagues who saw it differently were men and woman of good
will and good faith and not dumb by any means, so I accepted that as an
instance in which I simply could not see and still can't how the decision was
valid under the Michigan Constitution, but that's just what happened. The
legislature got the statute back and altered it in a way which ultimately
satisfied all of us on the Court that the unconstitutionality of it had been
Was there any similarity...I realize there are certainly easily
observable distinctions but do you find also in the Placek case on comparative
negligence some similar mind set among your colleagues on the Court where in, I
think it was probably after you got there, 1975 or 1976, there was a case. I
think it's Kirby vs. somebody or another where there had been an aborted
attempt at an opinion of the Court.
People on the Court sought to get four votes for switching by
judicial decision from the contributory negligence to the comparative
negligence system in Michigan, and then I guess I lose track a little bit about
what the change was on the Court but a couple years later, in 1978, I think it
was, you had this Placek vs. Sterling Heights case and there again, I think you
did not write. I think you concurred.
Yes, I did.
Was this somewhat similar...was this also an example of where
the Court functioned in a way that showed its disposition not to follow in
close track to the adjudication traditions of Michigan and the United States
and got off on another tack or is it not that kind of a case? Do you remember
Yes, I do. I remember it in a general way.
It was a 4:3.
I remember the decision, and I concurred with the majority.
Oh, you did? I thought you concurred with the...
Do you have it there? Placek?
It shows up here as a dissent. It's 405 Mich 538. This
retrieval system is no infallible. I have discovered that, but my recollection
is that you joined Justice Coleman.
Yes, 405 Mich 538. It was 538 or 638. I have trouble reading
these darn things. Could it be 638 or 538?
I've got it. It's 638. I did concur with Justice Coleman in the
I think part of her point was...
I remember now.
Let me just take a minute at the risk of overdoing it here.
(interruption in tape).
This is fine. I think this is what we're trying to do. I'm
going to turn off the tape here for a minute while you take a look
You've looked at that case now.
Well, I'm reminded in looking at the case that I did dissent,
but the dissent is one of these technicalities, one of these rules of law the
editor of the Detroit News doesn't agree with. Let me just say that my
conception of the role of a Court of second appellate appeal which is what the
Michigan Supreme Court was and is because of the intermediate Court of Appeals
here, is to continue the common law tradition of being in some part, a law
It comes as a shock to some people that one who has a fairly
conservative perspective on the judicial function as I have should see a Court
as a law maker. After all, the president who appointed me to this job
campaigned widely and obviously successfully on the notion that he would
appoint Federal judges who would apply the law and not make it. That was good
for a national campaign but the truth of the matter is, in the common law
tradition as in Michigan, the intermediate Court of Appeals is charged
primarily with the business of correcting error but the Second Appellate Court
is charged primarily with the business of construing the Constitution of the
State of Michigan, construing new statutory enactments and developing the
common law which is to create and advance that body of the law which the
legislature has not addressed and apparently isn't willing to address, and so
the Michigan Supreme Court granted leave in those cases often in which it
thought it necessary to advance appropriate judge-made law.
This business of comparative negligence and contributory
negligence in Michigan had always been in the common law area. The legislature
had not created the doctrine of contributory negligence although it is
universally recognized across the country and had been for decades, it was
nearly everywhere judge-made law in the law of negligence, the law of torts,
that a person who contributed in any fashion whatever, no matter how
minusculely to the injury he suffers, cannot recover anything, and in the
literature, contributory negligence had been severely criticized for years and
years and years as an unfair doctrine.
If a plaintiff was only infinitesimally at fault in causing his
injury, why should he be barred totally from any recovery? Michigan was never
out on the cutting edge of the development of the tort law, but it was pretty
darn close. When the issue first came up before I got to the Court, the
composition of the Court was such, and the nature of the case presented to it
was such, that it wasn't the right vehicle.
And it wasn't the right time for the judges to go to
comparative negligence as opposed to contributory. When Placek came along, the
composition of the Court was such and in looking at the picture of us here in
this Volume 405, the Court then was Chief Justice Coleman, Justice Williams,
Justice T.G. Kavanagh, Justice Fitzgerald, Justice Levin, Justice Blair Moody
Moody probably was the fourth vote, right?
Yes. And so we, not to be too technical in the matter, after
considering this thing, all seven of us came to the conclusion that comparative
negligence was an idea whose time had come in the development of the common law
in Michigan. Where we parted and the principle which divides us 4:3 in this
case report of Placek vs. Sterling Heights is that Justice Coleman, Justice
Fitzgerald and I thought that since we are creating new law, the law of
comparative negligence, it ought to be like all law, applicable only
prospectively for instances which occurred in the future. The majority of the
Court, the other four justices, didn't think so for reasons that are fairly
technical but are defensible as a matter of principle of good lawyers. They
thought the new rule ought to be applicable for accidents which had been
occurring for many months before we even heard the case. That the only thing
that divided us of any significance.
Now, governmental immunity...is that an example of the sort of
common law? I realize there is a statute, but it's...my recollection is that it
is so amorphous that you can't tell what it says, or would you not put that in
the category of common law development?
I'd call it interstitial judicial law making because there was
a statute as you said, and it was written broadly and vaguely and very
imprecisely, and in my opinion, as you have heard and noted today, my not so
humble opinion, the members of the Michigan Supreme Court had botched up the
law of governmental immunity rather badly, doing the best they could with a
poorly written statute and trying to create some distinctions between the
immunity of municipal government, city governments as opposed to other
governments, state and county.
The result was a mess, and so it was a proper subject for
judicial law making, both because there had been some what I think was some
poor judicial law making on the fringes of the statute before my time. I wasn't
alone on this view, so we felt we had some straightening out to do and some
augmenting of the statute to do. You know, it's the tradition in the Federal
system, Roger, that probably more often than not, Congress tends to write
legislation very, very broadly, almost vaguely, with the sometimes explicit but
usually implicit understanding that the Federal judiciary will fill in the
gaps. That has not been the tradition historically in Michigan.
The legislature in Michigan has, for the most part, tended to
write with greater particularity when it makes statutes. The governmental
immunity statute was not one of them. It was written broadly and a little
loosy-goosy, so we were making a lot of law about governmental immunity to try
to straighten that out.
(End of side 2, tape 1)
Just to finish up on governmental immunity, do you remember in
1982, Ross vs. Consumer Power came along and the Court was reduced to six
persons at that time, and the Court divided equally.
4. Justice Ryan discusses the case of Ross vs. Consumers Power
and the processes of the court, the process of judicial selection, and the
disruptive nature of elections in terms of interrupting work flow and the high
turnover rate of justices.
Let's get back to Ross vs. Consumer Power on rehearing. Now
this time, the Court, I think, invested a great deal of effort in trying to do
it right? Do you remember that? There were about nine cases, I think, that were
combined, and I think that...well, it was sort of a melange...by and large, a
large majority of the Court, five or six, swung with most of the decisions, and
various circumstances...one was a drowning case at the Social Services camp on
Lake Michigan, and then here was a drainage ditch fact situation with Ross, and
there were all kinds of things in between. Did you recall what you thought
about that case, and did it do about what a Court is able to do to straighten
out that kind of a subject matter?
Roger, I must say, I don't have any strong memory of how I felt
about that process at the time. I do recall what you said, and that is I was
very sensitive that the trial bar, and I knew many, many, many trial lawyers
from this area, southeastern Michigan, because of my time on the trial bench,
and they would in appropriate circumstances, remind me that they didn't know
what to tell their clients about this burgeoning potential business in
governmental liability, and so I was very sensitive that we needed to do what
all of us on the Court agreed to do and that is to try to gather together a
group of representative types of torts, accident cases, so we got the nine or
so you described, and of course, we had complicated our task x 9 to do it that
way, because it is sometimes far easier to write a principle of law into the
juris prudence when the facts are discrete and relative to one event, a
drowning in a drainage ditch, but when you've got nine different events -
school yard accidents and auto accidents, and the rest of it, it is more
difficult to write with precision.
You have to write more broadly, so the product which we turned
out in Ross vs. Consumer Power was, I think, a contribution to straightening
out the juris prudence, to be sure, but we necessarily straightened it out in a
way which was imperfect because we were trying to write to nine different
factual scenarios. Some litigation was generated thereafter and was addressed
after I left the Court, so obviously we did it imperfectly. But I thought we
did about as best we could. I don't remember where I came down in those
Well, let me ask about a sort of a tangential aspect of this. I
mentioned already in the first Ross vs. Consumer Power ended in a 3:3 deadlock,
and this was because Justice Moody had died shortly before the time for
disposing of this matter, and then the Court came back and I think a full two
years later, with this blockbuster, systematic, very intense, highly organized
way of trying to deal with the problem.
Was there something about the kind of deadlock situation that
resulted from Justice Moody's death where the Court had a most extraordinary
problem with a great engorgement of judicial work, 70 and 95% done and a lot of
potential 3:3 splits? Was there some result from the Moody experience in these
splits and having to adopt the opinions and all that that perhaps chastened the
Court a little bit in the future in its attempt to carry on in...what will I
say... a more orderly systematic way or am I just making wind here?
You're not making wind, but my memory is that while we
recognized that we had a terrific problem because of the 3:3 split cases, we
did not have any real effective means to do anything about it. After all, if
the Court is divided at a time when the court is short-handed, there are an
even number of justices, you can strive mightily to re-examine your position to
try to avoid an even split in order to get the cases decided, but there is a
point beyond which one cannot go, and we had many fewer cases during that short
period that were going to be 50:50 splits, 3:3 than turned out because all of
us tried mightily to find out whether we could re-examine our tentative first
position and shift over to help create a majority, and one can do that with
honor if what assigns you tentatively to one side of the case is a minor
procedural point of some kind which is not as big as the issue itself.
Still, there were a lot of cases. The result of the 3:3 split on
the governmental immunity cases, of course, was that there was a big back-up in
the pipe line. Trial judges didn't know how to rule because the Supreme Court
hadn't...lawyers didn't know how to advise clients in their offices. It was a
bigger disaster than most of us on the Court really appreciated at the time.
There was nothing we could do about it except urge the governor to make an
Just for sort of an objective historical view, do you recall
when the news of Justice Moody's death came? At this time...maybe we can double
back, go into the procedure why this was so, but here you had a great mass of
work ready to be dumped out the end of the pipe line...do you recall how it
was...I notice there are many cases or several anyway in the reports that show
that right at the introductory remark that two or three or maybe one judge,
Justice of the Supreme Court, had adopted the Moody draft opinion which was in
a very advanced stage, and then others agreed, and the case was disposed of. Do
you remember what procedure, how you reacted when you all got together at
conference? What was the..how was the problem perceived?
I don't really remember the detail. Blair's death was sudden.
There was no illness in advance of it which would give us to think about maybe
we ought to be prepared for something. As you know, he died of a heart attack.
I got a phone call from his court reporter at my home at about 5:20 a.m. one
morning, and the Court got together almost immediately and began to address
this problem. The first thing we had to do was find out the size of the problem
- how many cases were pending and how many among those cases that were pending
had we indicated a tentative vote that was going to be now evenly divided.
There weren't too many, actually.
After all arguments each day, we always had a brief
post-argument conference, and we would indicate our tentative direction,
whether to affirm or reverse, so we had this unofficial and tentative vote on a
piece of paper as to all the cases Blair had participated in. There weren't
actually too many but unfortunately, one of them was a case which had a long
tail, and that was the governmental immunity case for which hundreds of cases
were in the system in Michigan awaiting disposition, waiting for our rule. So,
no, I don't remember, Roger, that we saw that as such a big crisis.
Well, this brings up, though, another aspect of the Court's
work. Here it is...this was right around Thanksgiving Day, 1982. There had just
been an electoral campaign. Moody had been re-elected. Mike Kavanagh had been
elected, as I recall along side him to new eight year terms. I don't want to be
a prosecutorial questioner here but obviously, there was a great engorgement of
the pipeline, so to speak. Was this associated with the electoral campaign, and
does this happen repetitively, the way the Court is selected and because of the
requirements of a sitting Justice to get re-elected, does this distort the
production aspect of the Court?
Yes, yes, it did, and because of the fact that honesty requires
that I remind myself I'm talking about my period there, that's all I'm
addressing. I don't know how it operates today. I've been gone five years, but
every two years, we had two of us standing for re-election. The way it works
out, once in a while, only one ran, but it didn't make much difference whether
it was one or two, and that year was...the elective process is very
interrupting of the work of the court, enormously interrupting. It is difficult
to overstate it.
Is it probably the strongest argument against the present
judicial selection system?
No, I don't think it's the strongest. I think it is a strong
argument, but I don't think it's one the public cares about. I don't think it's
one that the political policy makers care about. It's one lawyers and judges
care about and the public should, but I think there is no practical way to
educate the public. The work of the Court slows down. There is an understanding
among the justices that if the one or two who are candidates say, "I just have
to be in Adrian for a dinner this night. I can't be at the conference", well,
there might be a tendency to try to work around that schedule. It is respected,
the fact the candidate has to be on the highway. There are 83 counties in
Michigan, 9 million people to talk to. There are no issues of a judicial
campaign, so it's face-to-face personality appearance for the justices.
The people that are interested in this subject should be
reminded, should they not, that in the functioning of the Michigan Supreme
Court, each of the eight or seven members is an independently state-wide
elected public officer that has all the baggage, if you want to use such a
phrase, that goes with that concept of how you got into a high public office
and not only that, but each one is constitutionally required to participate in
every decision. That's true, it is not?
Yes, and that's the important part. The Court doesn't sit in
panels, as you well know and most of our readers know. It is a unitary body of
seven. All seven act or no one acts. When a justice is sick or disabled, the
Court does not meet. It works around that. Near the end of my time when Chief
Justice Williams was recovering from surgery that turned out to be very serious
- some thought he wouldn't survive it, we went to his home in Grosse Pointe and
conducted conferences of the Court there because we simply couldn't work. The
Court is seven, it is not six, so during the even numbered years when two
justices are trying to cover the tens of thousands of miles of Michigan that
need to be covered, the Court's production is down.
There's another factor in the mix, and it doesn't occur
frequently, but it occurred from time to time that there would be a highly
controversial case before the Court...auto no fault might be an example,
governmental immunity another, Poletown might be another. They were not
examples, but they could have been examples, of cases of high public attention
in which a justice made up his or her mind about the law requires to be done,
and the question was should that case be slowed down on the track until after
the election for fear that a justice who did what he or she thought was right,
what the constitution requires, and which might be very unpopular, would suffer
for it at the next election, and that was always in the back of our heads.
Was one such case a PBB toxic case that involved the
destruction of some cattle and whether they should be buried or incinerated and
that sort of thing, where the environmental voltage in the public was quite
My answer is not satisfactory because, to be honest, I can't
remember that it was, and I'd have to get back into the books to jog my memory
to find out whether there was any such case that we ever delayed. I can't think
of one off the top of my head.
Do you remember there was a time, and I'm going to guess, in
1981, maybe, when there were 1,000 cattle marshalled at Mio in Michigan or
somewhere up there where a gigantic pit had been dug, and there was a great
controversy about this. First of all, whether there was really the kind of
hazard to the public health...it was a hysteria in the public, if you
Yes, I do. I remember it.
And when it came time, given the premises of this hysteria,
you've got a bunch of poison out there, what are you going to do with it? Are
you going to bury it and ruin the water or are you going to burn up the poison
and stick it in the air and do that kind of harm? Actually, in my humble
judgement, this was more hysteria that reality, but the point is if you're
going to have to face the electorate, you're going to have to explain your
position and I think Justice Moody, as I recall, and this is all scuttlebutt
kind of stuff that I'm relating now, and I would identify it as scuttlebutt
stuff, but I can remember, speaking of the voltage, how charged up the public
was and if some fellow voted to poison us one was or the other, that was pretty
heavy stuff in the political field.
Yes. If that was the case, I don't remember that it was. You
see, none of this is as simple as it might be. The culture, the judicial
culture of the Michigan Supreme Court, all the time I was there, and I'm told
for a long time before I got there, and until very recently, has been one in
which the productivity of the Court, pace of productivity of the Court could be
severely criticized. The culture was if a judge, justice were assigned an
opinion and he wrote the opinion or she did and circulated among the
colleagues, any colleague could hold the circulated opinion with the view to
writing a dissent as long as he wanted to.
There was no tradition of peer pressure on the Supreme Court to
get the work out within any stated period of time. In the United States Supreme
Court, for example, it's only tradition. It's not even a rule. The tradition in
that court is no case goes undecided beyond a year. The Supreme Court convenes
the first time in October, it recesses the next July...all the opinions are out
by July, no matter what it takes to do it. Such a thing is unheard of in the
Michigan Supreme Court and so the bench and bar knew for years and years,
decades, that opinions on our court might be up there for a year, year and
one-half, two years, or longer.
There wasn't the adequate peer pressure to get it out. I
understand that's been corrected by Chief Justice Riley and the members of the
Court now, but the Michigan Supreme Court was not a hot court. It was not a
Court whose tradition...it was what is called a cold court. It was not a court
whose tradition was that the justices were thoroughly prepared in the cases
before oral argument. I'm shifting now from your question about the impact of
the political campaigning, but I do want to talk about this last subject of the
hot court vs. cold court along the way. Political campaigning is seriously
detrimental to the judicial mission on the Supreme Court. Every justice who is
appointed to that court or elected to it knows that the Michigan Supreme Court
is the one level in the Michigan judiciary which has the highest turnover as a
result of rejection at the polls of incumbents.
It is interesting, if I may point it out, that in the Court of
Appeals, I don't think there has ever been an incumbent defeated.
That's correct. No incumbent has ever been defeated.
But in the Supreme Court, this can happen and does happen.
It happens regularly. Chief Justice Dethmers was knocked off
after twenty three years on the Court, largely because the other names on the
ballot were G. Mennen Williams and John Swainson. Justice Mike O'Hara who had
been elected to the Court was knocked off the Court because he was defeated by
a man by the name of Thomas G. Kavanagh with a K, when there was another Thomas
Kavanagh on the Court. You know all of this, but our readers might not. Before
Paul Adams, the former mayor of Kalamazoo, I think...
Sault Ste. Marie.
Sault Ste. Marie was defeated for reasons which I've always
understood were internal and political of the Democratic Party. Clark Adams,
his brother, who was a distinguished trial judge in Oakland County was on the
Court for a short time. He was knocked off. As I said, the best lawyer with
whom I've ever working in my life, Larry Lindemer, was defeated the first time
he went to the polls to be retained because Lindemer is not an electable name.
During my own time, Thomas Giles Kavanagh was ultimately defeated.
None of these men, in my opinion, were turned out of the Court
by the public because of any shortcoming in their judicial philosophy, any
inefficiency but always for a reason that has nothing to do with the vitally
important components of service on the Supreme Court. All of us knew that, high
turnover rates, so that when you campaigned to remain on the Court as I did
twice, you know you've got to give it all you can possibly give it. When you're
appointed to the Supreme Court, if you've had a law practice, it folds up. It
goes away. Very often, you have nothing to go back to. Justice Dethmers was
defeated in the Supreme Court and died within six months, partly of a broken
heart and partly because he had nothing to do.
What's the remedy for this, or is there one?
Well, it's a remedy that has no popular appear in Michigan.
They figured out the remedy in Philadelphia over 200 years ago, and it took
them about two afternoons to agree that if you're going to have an independent
judiciary, then you can't have a judiciary which has to be politically
responsive to the electorate. You have to put the accountability in the
appointing authority, so the Federal judiciary which I think generally
speaking, enjoys some esteem in the public consciousness is appointed judiciary
Many of the New England state Supreme Courts have justices, some
of whom are appointed for life, some of whom are appointed for long, long
terms, as many as fourteen years, when they're re-examined by the legislature.
Many states have Supreme Court judiciaries whose vacancies are filled by
appointment and after some relatively lengthy period of time, the person goes
on the ballot for retention - yes or no..."Shall we keep Justice Lane - yes or
no?" Michigan does it about as poorly as it could possibly be done and is
frankly the laughing stock of the nation.
As I went around on the judicial education business, people
would ask me "Can it really be so that..." and then they would describe our
selection process in Michigan and laugh about it, that process being, as you
know and as others in our Court have probably described in this history, an
initial vacancy is filled by a temporary gubernatorial appointment but the
appointee must, at the next election, be nominated by a political party or file
an affidavit of incumbency. The affidavit of incumbency was a great idea that
Gene Black had. He thought that would eliminate this nonsense of the
non-partisan Supreme Court justice having to go the Democrat or Republican
Party to get nominated. Well, the way it has worked out is not the way he
What would you say about the California system that was much in
the news a few years ago when three members of the California Supreme
Court...what is the right word?...rejected. They were not retained.
Kicked off the Court by popular vote. What do you think of
The idea...the business of a lengthy appointment which requires
the Supreme Court justice to appear on the ballot for retention or no is a
political compromise which is normally and roughly the middle ground between
the lifetime appointment and this partisan electoral process that exists, for
example in Ohio where the Supreme Court justices run every six or eight years
on party labels.
The middle ground compromise is the California system. I don't
know whether it is...it is perhaps 12 years. Politically speaking, it is a
compromise, but it works. If I were writing the law or asked my opinion, it is
my opinion that over the broad spectrum of experience, the lifetime appointment
of the members of the judiciary is the wiser course. It isn't perfect. It
doesn't always result in better judges or justices, but it is one which makes
such an important contribution in such an important way, and it has apparently
worked so well in the Federal system, not perfectly, but is work emulating.
I don't think it's politically practical to expect that it will
be ever be adopted in the State of Michigan in my lifetime, but it is a process
which imposes strict accountability in the governor for the appointments. I
think it heightens the governor's consciousness of the people that he selects
for the judiciary, especially for the Supreme Court, and I think it sensitizes
the people to the importance of electing legislators who may have a
confirmation role, and governors would have this appointive role if they do not
have a crack at the judiciary.
At the end of my speech about this is Michigan's elective
process, if you look at the record, works in a surprising way. The judges who
are closest to the people, circuit judges - I'm going to eliminate the district
courts now because I have not done a study, but I did a study of the Wayne
County judiciary excluding the District Court, and I found that for a period of
50 years ending about five or six years ago, the voters of the County of Wayne
never turned out one of the judges who was an incumbent except for reasons
which are shameful. The first black judge ever appointed to the judiciary of
Wayne County, Charles Jones in Recorders Court was defeated the first time he
came up for election. One of the very first Jewish judges to be appointed here,
Judge Rubiner, was rejected by the electorate in Wayne County in the late 30's,
early 40's. The first high-profile Polish judge, Judge Targonski who was
appointed to the Wayne Circuit Court was rejected and one or two others, but
the pattern is the voters do not turn out incumbents in the trial court.
In the Michigan Court of Appeals, as you have observed, no
incumbent has ever been turned out, and on the Michigan Supreme Court, there is
a regular pattern of turning out incumbents but for reason almost no one in the
electorate can explain except to say the opposition name on the ballot was more
familiar and more attractive. So, I don't think the electorate process works in
Let me veer off to a subject that in my mind is somewhat
related here. One of the...a couple of the cases that you drew early in your
period on the Supreme Court were discipline cases where it affected judges, and
I wanted to ask you, too, about bar discipline and what your thoughts were
about how that is handled, both in the Supreme Court and in the interest of the
state generally. Now, you had early on, you had the Probert case. You had
Hague. Do you recall those.
I recall the cases, and I recall the judges. I don't recall the
issues before the Court.
Well, Hague is an easy one to go back to. Hague was a
Traffic court judge.
Yes, that's right, and he was sort of a hip shooter and free
spirit who didn't want to be bothered by what he was told by his superiors and
that sort of thing and among other things, he would not enforce the law that
had to do with prostitution and I think there were a couple other conspicuous
examples of that where he thumbed his nose, and just wouldn't perform, and he
was, to the best of my recollection...I know he was disciplined. I think he was
removed, but if he wasn't, the voters removed him and of course, those two
things tend to go hand in hand sometimes, don't they?
Yes, they do.
Probert, I don't recall. His misbehavior was very conspicuous,
It seems to me he was a probate judge in the Coldwater area. Do
I have the right man?
I think over in Wyoming, near Grand Rapids, somewhere in there.
I might be thinking of another case.
Well, this is all pretty far in the past. Do you think that
from what you saw on the Michigan Supreme Court that the system for keeping
judges reasonably responsive and on the track in their tasks works pretty
Yes, I do. I think it does, and we were comforted during my
time on the court that there was in place the Judicial Tenure Commission as a
constitutional body to do the policing. I don't know how in the world, if there
hadn't been the Tenure Commission and all of its processes, how we would ever
have met our responsibilities to superintend the Michigan Judiciary. We simply
could not have done it adequately through the regional administrators. I mean,
when the Justice of the Peace system was abolished, and the District Court
system came in, and as the explosion of litigation required new Circuit Court
judges, we suddenly, in the late 70's and early 80's in Michigan found
ourselves on the Supreme Court superintending, relatively speaking, a huge
These District judges...they used to be J.P.'s, they're full
time people, several hundred of them. I forgot how many Circuit judges, but the
number of Circuit judges increased the Probate judges. The elective process
tends to bring to the judiciary some number of people who would never otherwise
be chosen by anybody to be a judge. That doesn't mean that good judges weren't
elected. I'd like to think that I did a fairly adequate job as a trial Court
judge, and I was elected, and I can think of dozens and dozens of others, but
"x" number of judges come to the bench because they're politically popular in
their locale, and they don't have, at least they don't demonstrate the first
quality of the most elemental gifts of a judicial temperament, but on the
Supreme Court in Lansing, we'd have no idea of what is going on in such
courtrooms without the benefit of a Judicial Tenure Commission.
I thought it worked very well. The process was carefully thought
out. It was modeled on work done in other states. I think it works. It is not
perfect, and I think the Supreme Court has to kind of ride herd on the
Commission so that it doesn't get carried away with its own authority.
What would you say, out of the state of affairs with respect to
lawyer discipline and the mechanisms? I think this is reflected like...you
wrote In re Jacques. Do you remember that?
And then the Supreme Court, as I understand it, of the United
States had a different view reflected in an Ohio case, and it had to be heard
again, and I think you pulled that one. I think of the Falk, all the stuff that
Alan Falk raised to the Court. Do you recall anything about the Falk
I recall the Jacques matters better, but I do recall the Falk
case. The Jacques case, of course, was the one in which this lawyer whom I knew
when I was a trial judge because he had been in my courtroom, had been accused
of openly soliciting business, and I was interested in the case because one of
the last cases I tried as a trial judge was the tragic Port Huron tunnel
explosion case. It was in a kind of perverse way, it was probably the high
point of my trial judiciary career. It was a case that was tried for about 16
weeks before a jury in the Wayne Circuit Court. There were about 12 lawyers at
the table, three for the plaintiffs and about nine for the various defendants,
absolutely the cream of the trial bar in southeastern Michigan, the best and
the brightest trial lawyers, very complex case. There were about 22 death cases
joined for trial.
Deaths occurred because of a methane gas explosion in the tunnel
which was being built in Lake Huron to provide water for all of southeastern
Michigan. A rich experience. The case was settled after about 16 weeks for
millions and millions of dollars. I then went to the Supreme Court and a couple
years, what occurs but there is this charge made against a lawyer for having
gone up to Port Huron through an intermediary and solicited widows to give him
the case to bring against all the defendants for their husbands' death. Whether
the charge was valid or not is for others to say, but the case finally came to
the Supreme Court which Mr. Jacques, having been found by the administrative
process to be guilty of misconduct, was entitled to have his hearing in our
It was argued, and it was assigned to me in the blind draw, as I
said earlier, cases always are, so I wrote the opinion to unhorse him from the
practice of law which I thought the law required that we do because advertising
was forbidden by the canons of professional responsibility. So I wrote the
opinion for the Court, away it went, and as you said, within a couple weeks,
the United States Supreme Court decided that the commercial speech laws of the
first amendment or component of the first amendment made it unconstitutional
for the states to forbid lawyers to advertise, so Mr. Jacques was back before
us, and said to us, "So there", as it were, which he was entitled to say, so we
heard the case on rehearing, and we had a rule that if a case were to be
reheard, we would not use the blind draw system to assign it to a justice.
We would give the justice who wrote the opinion the first time
to write again and for that reason, they said to me...I remember Soapy saying,
"Well, you unhorsed him. Would you like to horse him again?", so I wrote the
opinion eating crow...I think I wrote it, anyway, that said that the law has
changed, and what was formerly a professional sin is no more, and away we go...
The Falk case was a case brought by Alan Falk, a Commissioner of the Michigan
Court of Appeals in which he challenged on Federal Constitutional grounds the
expenditure of portions of dues lawyers paid for membership in the State Bar of
Michigan. Membership in the State Bar of Michigan is compulsory under state
statute. All of us have to belong. We all have to pay dues, and Alan Falk
brought a law suit asserting that some part of the dues, at least, paid for
political activity he didn't agree with.
I recall at the conference table, Charles Levin, who I'm proud
to keep as a dear friend even to this moment, who is Jewish, and who has a rich
sense of humor...we were discussing the case around the table, and he said that
he had views about various aspects of the case, and somebody said, "Well,
Chuck, what do you think about this allegation that Mr. Falk makes that his
first amendment freedom of religion privileges have been invaded?", and Chuck,
with a knowing smile on his face, knew what we were talking about, and he said,
"You're referring to Mr. Falk's allegation that there are social gatherings
held by the Commissioners of the State Bar of Michigan at which the Justices
are sometimes present", social, at which pork and shellfish, food forbidden to
Orthodox Jews, as I understand it, is served, having been purchased in part by
dues paid by Mr. Falk and others of the Jewish faith who would be expected to
object if they wished.
Chuck said that he would prefer not to write that part of the
opinion if it were all right with everybody when it was all over. He was
kidding, of course, but it showed the good will around the table, but it also
illustrated that Falk was making an argument that had much broader appear than
at first we thought. I have forgotten who wrote the opinion. I didn't write it.
I wrote a dissent.
I think that's true, and I don't recall. You know, there were a
couple bites on the apple there. I think the first time around, it was
determined that the record was insufficient to determine a lot of...
And Judge Lincoln was appointed as a Master of whatever...I've
forgotten what he was called...Master, I guess, and he held some hearings and
the thing eventually came back, and I lose track of the detail except that
there was a product there. Now, for example, as a lawyer, you get these forms -
"Do you agree to this and that", and law pack, and "Are you willing to have
some of your dues go". It seems to me to the Bar Foundation on some...What the
heck is that?
Well, I think that we are now extended the opportunity to have
our dues reduced by the percentage of the funds which would go to legislative
lobbying or that percentage could be donated to the Michigan Bar
Yes, that was it, and then there were some other consequences.
I noticed the Bar Journal prints ad nauseam the position of the Commissioners
I don't really remember the Falk case that well. It didn't turn
me on. I mean, that's...
It was more a burr under the saddle.
Yes, it was.
And it was meant to be, I think.
It was meant to be, and it changed the relationship of the Bar
to the practicing lawyers. You know, there was a time on the Court...one of the
reason I loved my work on the Supreme Court, Roger, was because it was so
varied. There was the process of selecting the cases we wished to hear by
granting leave. We'd identify the cases because we thought the law needed to be
clarified in that area or conflicts in the Court of Appeals needed to be
reconciled or was an area of the law in which the state of the common law was
unjust and needed to be corrected, we thought or other reasons.
Then there was the process of writing the opinions, the
studying, the oral arguments, and there was the still additional process of
rule making, writing the rules of evidence, writing the rules of practice, the
civil rules, criminal rules which I enjoyed immensely. There was the
administrative part of the Court which had to do with working on the budgets
for the lower courts, although that was a small part of it, so it was so
varied. I enjoyed that immensely. One of the areas that I enjoyed most in the
Court was the opportunity to be engaged in the rule making process.
Now, the rules were being re-written, were they not, in 1981,
1982, along in there, effective in the 1983 rules..
Yes, that's right.
I can remember the Court held some sessions in the courtroom
sitting at the ground level, shall I say...the floor level, around a table. I
think the room was available for that purpose and big enough and all, and there
were some, well...I don't recall testimony thing, but people were allowed to
address the Court and to explain their perception, some were, at any rate, of
how the rules ought to be framed. I can remember for the first time, you
got...what was it, a little separate book on evidence rules, and you must have
had a big, big part in that. I don't recall.
(End of side 1, tape 2)
I did. I was interested in evidence and I still am. I taught
evidence to the judges for years in the National Judicial College and I taught
as an adjunct professor at the University of Detroit at the Cooley Law School,
and evidence was always kind of a hobby with me. I liked it. The Federal Rules
of Evidence had been adopted for the Federal Courts in 1975 and had been
proposed for adoption in Michigan by a special committee appointed by our Clerk
and by the Bar and that's when we first used the technique you've just
described. We had hearings after a proposed set of Michigan evidence rules had
been adopted by a committee of which I was a member before I came to the
Supreme Court, as a matter of fact.
We had hearings sitting in the well of the courtroom in Lansing
in which we would invite, did invite spokespersons from all segments of the Bar
and the bench, and the Academy to comment on these rules. I loved that work
because I felt some expertise in the law of evidence, but an interesting thing
happened, and I mean this not as any criticism of any Justice, but if a history
is a history, it's got to be what happened. I have already alluded to the fact
that there was a dearth of trial judicial experience on our Court. Until Blair
Moody joined me, I was the only one who had that experience. None of the Court
claimed it, and all in the Court were perfectly willing to cede to another of
us who had some expertise the leadership role in suggesting the resolution of
When it came time to debate among the seven of us whether we
would adopt for application in all Michigan Courts the new proposed evidence
rules...we held these hearings we've just described, and then we set aside a
full week. I'll never forget it, in 1977. I think it was in the autumn, and it
was thought by several on the Court we would just adopt these rules. If the
proposed rules which had been produced by the Commission were approved by the
Commission, they must be okay. The Commission represented lawyers, and judges
and even us, and I didn't see it that way. I thought there were some serious
deficiencies in the Federal Rules of Evidence which had been adopted in many
cases verbatim for Michigan, and I had studied rather thoroughly because of
this interest I've described - I'd studied the Federal Rules and thought I
recognized areas where the Congress just worked out a political compromise
instead of having done what was best for litigants, so I asked if we could take
these proposed rules, ten articles of them, section by section.
I thought Soapy Williams was going to have apoplexy when he
heard that, but we'll get to this later - he was a genius in terms of an
administrator in our Court. He was a great Chief Justice, and he saw his duty
primarily as moving the cases. This idea of going through the proposed rules of
evidence chapter by chapter was enough to give him a stroke. He turned almost
pale, and my friend Thomas Giles Kavanagh, who claimed no expertise in that
technical stuff, wasn't too interested, so the upshot of it all was that there
were primarily two of us on the Court who became and were deeply interested in
every line of every section of the rules of evidence, and we pretty much led
the discussion and that was Chuck Levin and me. There were others on the Court.
Blair Moody wasn't with us yet, so we didn't have the benefit...I don't think
he was...no, we didn't have the benefit of his trial experience, so while the
other justices participated including...
5. Justice Ryan continues to talk about revising the rules of
evidence and the legislative power of the court in certain contexts and the
State Bar of Michigan and Michael Franck
Here we are.
Well, all the Justices participated in some part of the
discussion about the rules of evidence. Chuck Levin and I and occasionally the
others went through those proposed rules, not section by section but paragraph
by paragraph, sentence by sentence, word for word, so the rule which Michigan
Rules of Evidence has adopted for application in March of 1978 were in every
respect, the creation of the Justices of the Supreme Court because that's the
way it turned out. They are, in material respects, different than the document
which was proposed to us.
And they've worn very well, have they not?
They've worn pretty well. There is a report before the Justices
in Michigan now suggesting changes, and a number of the changes being proposed
will change provisions that I succeeded in having written into the rules but
being gone now, I can no longer defend them and who is to say that they were
right in the first place. That's an example of the rule making power of the
Court being taken very seriously.
Now, those stem, do they, from the constitutional language that
gives the Michigan Supreme Court the power to govern the practice and procedure
of the Courts.
And so this is a legislative power within a certain context
that is directly bestowed upon the Michigan Supreme Court by the
The legislature has historically, when it has been moved to,
for whatever motivates legislation, has enacted statutes granting rules of
evidence in Michigan, and they have been, for the most part, ignored by the
Supreme Court in Michigan for generations. Every once in a while, a collision
occurs in a case in which the rules of practice in the trial courts are at odds
with some rule of evidence that the legislature has established.
The legislature has never, in Michigan, adopted a comprehensive
code of evidence, but here and there in the books, you see a short one or two
sentence statute on some isolated rule of evidence. Well, finally a case went
to the Michigan Supreme Court before I got there, Perrin vs. Puhler is the name
of the case. It was written by Gene Black, and the issue squarely before the
Court was who has the authority to make the rules of evidence in Michigan, and
the decision by a divided Court, written in usual strong Gene Black language
was that the separation of powers doctrine of the Michigan Constitution reposes
in the Michigan Supreme Court exclusively the power to determine practice and
procedure, the expression you used, in the courts of the Michigan judiciary and
that includes the rules of evidence, and it's on the basis of that precedent of
the constitutional law case that, just as you've said, that the Michigan
Supreme Court has assumed the prerogative of writing the rules of civil
procedure and the rules of evidence because the Michigan Supreme Court insisted
under the constitution of the state that it had that power.
Now, the legislature in Michigan has adopted rules of evidence
ever since. About every year, they come up with one, and the Michigan Supreme
Court either ignores it or if they think it is a wise rule, they will adopt it
as a rule of the Michigan Supreme Court. The rape shield law is an example.
Something about bail bonds comes to mind. Was there a principle
that had to do with making it more easy...some of the judges, as I remember,
were pretty outrageous about...
Yes, they were.
Wasn't this resolved by both a court rule that became the
practice and some legislative attempt to...?
Well, that's a classic example of the breadth of the work on
the Supreme Court that I earlier said that I loved. Again, those of us who had
been on the fringes of what used to be called the Clinton Street Bar which was
the name, the slang name given to the lawyers who exclusively practiced in the
Recorders Court of the City of Detroit, knew how this bail bond system worked,
and there drifted up to Lansing to the Supreme Court when I was there kind of
an indistinct odor that there might be something wrong, strictly speaking, in
the way in which the bail bond system worked, and the suspicion - no evidence
presented during my time, but the suspicion that the judges in the criminal
courts all over Michigan, not just the Recorders Court, who had to raise money
for re-election and who were reporting contributions from bail bondsmen might
be in a situation in which they could be too easily compromised when the bond
was to be set.
Without having any evidence of specific wrongdoing before us, we
were convinced that an idea had come to fruition that should be adopted in
Michigan and that is to re-examine this assumption that if you don't make a
defendant post a high bond, he won't appear, and so we got into some academic
studies that have been done in the east, the Vera Foundation in New York City
in the New York City Courts, the Manhattan Project. Not the atom bomb, another
in that project, and studied the non-appearance rate of persons on bond and had
come to some conclusions, one of which was you don't need to force a person to
mortgage his house to buy a bail bond from an insurance company or a bondsman
so really after some very comprehensive studies for which I thought our Court
deserved considerably credit, we adopted this rule that the Courts were no
longer to require bail bondsmen to post a bond and that a person, depending on
circumstances and depending on the nature of the case, could simply post 10% of
the bond himself in case or some property, and we weren't sure...this put the
bail bondsmen out of business effectively in the state of Michigan.
Did it work satisfactorily?
Absolutely. It is in place today. The legislature has codified
it, I think.
Before getting too far away from the matter of overseeing trial
court judges and the bar generally, I wanted to ask you if you noticed that
when the Bar dues, remember the disciplinary process, fighting this out of Bar
dues; when the Bar dues went up the last time...now, I think it could have been
June, that recent, that two of the members of the Court in effect dissented
from the...I found this in the fine print of the Bar Journal one day; one of
them being Charles Leonard Levin who said "Instead of $50.00, I'll go for
$15.00 unless you go ahead and build up the budget of the disciplinary arms of
the Bar". Do you remember?
Very well. You've jogged my memory. What I started to say
earlier and then lost track of my thought was that very subject. When I
mentioned a few moments ago that I loved the work of the Superintendents
because I had the privilege of practicing law and serving the lower courts. The
Bar Association's relationship to the Supreme Court was one of some tension all
the time I was there. The State Bar of Michigan was led by lawyer of a very
strong personality, Michael Franck and a brilliant guy, and a professional Bar
bureaucrat of the first order and I don't mean that in a denigrating way.
I think I understand. He came from New York.
It is a bureaucracy.
And he was recruited for that.
He was a full time executive director of a big state bar in
Michigan, a dominant influence in the policy making and in my time, I had
observed the State Bar of Michigan under Mr. Franck's leadership, grow from a
fraternity of lawyers, a compulsory membership, to be sure, in Michigan, into
an enormous bureaucracy, into a multi-storied office building in Lansing, a Bar
to which every lawyer must belong, a Bar Association now which has an elaborate
program of legislative lobbying, publications put out, educational programs and
the rest, most of which are good, I think, but the Bar Association with Mr.
Franck's leadership communicated with the Court very frequently
and insistently with respect to proposed rules that we were considering, rules
of practice, rules of discipline, rules of judicial tenure, rules of evidence,
everything. It was a very articulate body expressing the Bar's preference on
how things be done, insisting that standing commissions and standing committees
appointed by the Supreme Court have members automatically from the State Bar of
I came to the conclusion after serving for almost ten years on
the Michigan Supreme Court and trying to meet my constitutional duty to
superintend the State Bar of Michigan, my 1/7 of the action, that the State Bar
of Michigan had vastly outgrown the purpose for which it was organized in the
first place, and when we were engaged in one of these tense relationships with
the State Bar about some proposed rule, and I've forgotten what rule it
I think it was the rule having to do with how the lawyer
disciplinary process should be composed; whether there should be both a
prosecutorial arm and a adjudicative arm. Historically, there had only been one
body that investigated complaints against lawyers and having decided that there
was some smoke there, would then listen to the evidence from the complainant
and decide whether discipline should be imposed or not, and then the proposal
was made that that should be divided into two groups, a prosecutorial group and
an adjudicative group and that kind of brought to a head a much broader
question of what is the State Bar and has it outgrown its intended purpose.
I came to the conclusion, forgive the personal pronoun, but I
came to the comfortable conclusion that in my judgment, a vast majority of the
work and of the money that was being spent by the State Bar of Michigan was not
primarily for the purpose of an integrated compulsory membership bar
association. Integrated - I don't mean racially.
I understand that.
You understand that. I'm talking about a compulsory bar, so I
am the one who proposed at our conference that the State Bar of Michigan be
dismantled. They had raised the dues for the third or fourth time since I was
on the Court. They had just finished a brand new six story building in Lansing.
I think it's six stories. Elaborate legislative process.
The fault case had focused our attention on the breadth of
political lobbying the Supreme Court of Michigan was engaged in, so I proposed
that we unhorse the State Bar of Michigan, and we ought to require every lawyer
to continue to join the State Bar and that he pay whatever dues are necessary
to fund the bar examination superintendents that it conducts, the grievance
process that it conducts and whatever other functions the State Bar is required
by statute to be involved in and that I thought, although we hadn't yet done a
budget study, I thought maybe $15.00 instead of then, I think, it was $180.00
or $150.00 a year would cover that, and I proposed that those who are
interested in the politics and the society of the Bar Association, were of
course, perfectly free to found a Bar Association like the American Bar
Association which is just a voluntary union, and then they could attract
whatever members they could attract on the basis of the services they were
offering like discounts on cars and other things.
To my utter surprise, an immediate ally for that point of view
was my friend, Chuck Levin, and that's humorous to me and to you because we
both know that for my time on the Court, he and I were generally the
philosophical poles on the Court. He kind of the spokesperson for the generally
liberal perspective and me for the opposite perspective, and we didn't agree on
much, but when we agreed, on we did on most of the rules of evidence, it was a
strange bedfellow arrangement, and this proposal at first was not treated
seriously by a couple of our colleagues.
Did it ever reach...what will I call it...the light of day? Was
Oh, it reached the light of day, all right. It came to the
attention of Mr. Frank and others whose views were totally different about the
role of the Bar.
They didn't immediately put in in the Bar Journal.
No, no. It was discussion around the table, and it probably
should not have gone into the public ear because it was only a proposal, it had
not been proposed by anybody on the outside. It came out of my head, I believe,
although I'd heard; all my life, I had heard lawyers, an ordinary guy and a
woman trying to earn a living in the suburbs and elsewhere who don't belong to
the big silk stocking firms that they don't know why they have to help fund
this bureaucracy up there that doesn't seem to be of any benefit to the
ordinary lawyer. That had been rattling around in my head. Well, when there was
superimposed over that; when I began to learn about the tremendously powerful
influence the State Bar Commissioners had on policy in Michigan, I really came
to this conclusion seriously, and we came very close to doing it. We had an
informal 4:3 vote, non-binding, informal, to see if there was any interest in
this, and I could never get the fourth vote.
Was this about the time of bifurcation of the disciplinary
And was this somehow meshed in? Did this come out, was it part
of the product of the dialogue that you have just described?
Well, it was a byproduct.
Levin would have been very powerfully in favor of this, would
He was powerfully in favor of bifurcating the State Bar
disciplinary process. I was opposed to that.
Yes, but I didn't feel terribly strongly about it. I fell back
on sort of the mundane rule, "if it ain't broke, don't fix it", and I was not
satisfied that I had been shown that there was anything lacking in the
effectiveness or the integrity or the justice of the unitary disciplinary
process which was the practice across the United States, so I was kind of
requiring those who wanted to redesign the wheel to show me why.
Was it not...excuse me.
Well, I was going to say, that discussion was the occasion for
taking a look at the breadth and intensity of the State Bar's influence in
Michigan and in the Supreme Court. It was kind of a catalyst for the broader
discussion, that's all.
Backing up a bit, was it not only in 1970, I think it was, I
think when Tom Brennan was Chief Justice, that the disciplinary apparatus was
given a thorough shaking up and for the first time, the...whatever the
disciplinary commission was called then, was constituted in quite a careful way
to include a broadly representative panel of people including two laymen. One
of them I happened to know, John Murray, who is a friend of mine. Then there
was a fellow from...
Was it Monsignor Kern? But at any rate...
That had a very salutary effect. There were other things that
were built into the system at that time. I remember this because, you remember
there was a messy situation that occurred down in Livingston County that was
widely publicized. The Irish fellow that ran the place.
No, no, Livingston County.
Martin Lavan, and he had kind of crowned himself down there,
and he jerked the judges around and stood by while the widows were
raped...excuse me...you know, they were plundered, and the old people, and that
was pretty bad, and there was a reaction to it and the Bar took notice, and
there were some hearings. I can remember T. John Lesinski talking in the House
of Representatives one night, somehow. I don't recall the occasion, but this
attracted a lot of people's attention and out of it came something that was
pretty good, and that's probably what you're referring to - "if it ain't broke,
don't fix it" because it had been fixed once and was working pretty well. At
any rate, the Court did...was it pretty solidly in favor of dividing the
process by the time that decision was reached?
No, during that period, we did an awful lot of things 4:3. The
decision to divide the process was a divided decision on the Supreme Court.
Whether it was 4:3 or 5:2, I don't remember, but I remember Thomas Giles and
Chuck Levin arguing vigorously for the division and Soapy, whose talents were
just enormous, would...he was the best listener on the Court. He would claim no
particular expertise, no knowledge based on experience about the inner workings
of the Bar or the disciplinary process or how lawyers would get in trouble, and
how sanctions would affect their practice. Didn't claim any knowledge of that,
didn't have any particular knowledge, and he'd listen carefully, and he would
do and did, with respect to that issue, what he did with respect to so many
decisions, many of them having to do with deciding cases, a process which I
criticized in him. He would wait until he had a firm feeling of what was
fairest based on what he knew, and that was the Governor, the administrator,
the executive coming through.
If you've got the power to do something here, then figure out
what's probably the fairest thing to do and then do it. Often, without a lot of
concern about such principles as judicial self-restraint and separation of
powers. Well, I'm talking now about an administrative rule making where there
is no separation of powers and no need for self-restraint particularly, but I
remember that he was not a reluctant, but he was kind of a silent, late vote in
support of bifurcating. It just seemed to him, I remember him saying, probably
fairer than having the same body both prosecute and adjudicate, a hard position
to respond to.
Do you feel that it's worked out pretty well?
Yes, I do.
It costs more money.
It costs a lot more money.
I think that's the beef of Mike Franck among others.
It costs a lot more money. It also diminished the power of the
State Bar of Michigan which to me, is a plus. By the State Bar, I mean the
bureaucracy at the top of it. On the other hand, it introduces sort of a
satellite quasi criminal system into the profession. A lawyer who is charged
with misconduct now is charged by a prosecutorial body. It is necessary that he
or she retain counsel and prepare a defense, mount a defense, present...it's
kind of administrative law of a quasi criminal sort, and on the whole, it
works. My friend, Thomas Giles Kavanagh used to say, "for forms of government,
let fools content. Whatever works, works".
It works, and I don't think my negative vote makes any
You know, what I read in Levin, call it a dissent on the Bar
dues increase, he talked in very serious terms and I gathered that maybe
Griffin at least would go along with him, that if the Bar is not going to
allocate more of its resources to this important disciplinary area, it will be
time for the Supreme Court to take charge of the budgets of those agencies. Did
I read that.
That's what I understood him to be saying.
That's a 1980...it's 1990, though, isn't it? That's a 1990 echo
of the kind of discussions we had around the table in 1984, 1985.
But these things never reached public cognisance, did they?
And probably for the better, I suppose. Another thing lingers
in my mind that I would like to get to before it gets away from us. One of them
- we've talked about the strains in the Court and the divisions and the
tensions. One of the remarkable things, I thought, in my knowledge of your
period on the Court was the apportionment coming together.
How do you explain that?
6. He also discusses the apportionment of the state legislature
in 1982, the appointment of Bernie Apol to draft the map rules in a
non-partisan manner, and Justice Blair Moody and the nearly unanimous decision
to accept the new rules.
The apportionment story, in my opinion, is maybe the most
important part of this history for the period I was there and unfortunately, it
can't be handled...it probably should not be handled off the top of one's head,
but it is a story that results in the real basis for the Court to be applauded,
I think. The history of apportionment...we're talking now about the
apportionment of the State legislature. Under the constitution, it has to be
done, as you know, every ten years.
The Michigan Supreme Court used to apportion the legislature and
the Democrats would come up with an apportionment plan and the Republicans with
an apportionment plan. In the 60's when the Court had a crack at it, the
Justices of a Democratic background had the votes so they approved the
Democratic plan. It was sort of not a very prideful time in the history of the
The Michigan constitution had made a change in how that should
be done and created a commission which would reapportion the legislature, but
the members of the constitutional convention lost their staying power or lost
something and came up with a commission concept that was guaranteed to fail
because it had four Democrats and four Republicans on it with the requirement
that if they couldn't agree, which, of course, they would never do, that the
plans would be submitted to the Michigan Supreme Court for a choice between the
two of them, between the two plans, and so the 1960 maneuver, the commission
couldn't agree, and the case went to the...I'm talking now about the...
1964, that was?
1964. The Democratic plan was adopted. It came up again in the
1970's, in 1972 or 1973, and there was tremendous struggle inside the Michigan
Supreme Court. I was not yet present, but I've spoken to most of the justices
who were there. There was...Thomas Giles Kavanagh, as I recall the story, did
not go along as expected with the Democratic plan and was regarded as a
traitor, and his survival on the Court was threatened, and indeed, the next
time he ran for re-election, the Democratic Party set out to have him defeated
because he wouldn't vote for the Democratic apportionment plan.
Well, it was in that context and with that history that the
1980's version of apportionment came to the Michigan Supreme Court. Sitting
around our table were three people who had been nominated by the Democratic
Party sitting there, G. Mennen Williams, Thomas Giles Kavanagh, Blair Moody.
Three people who had been appointed by a Republican governor and nominated by
the Republican Party - Chief Justice Mary Coleman, John Fitzgerald, as I
recall, and me, and then there was Justice Levin who had nominated himself by
inventing his own political party at the beginning and turned out to be the
biggest vote getter on the Court, but anybody who is a student of the Supreme
Court knew that it wasn't a political court.
There weren't Democrats and Republicans on our Court. I'm very
proud to say that. There were liberals and conservatives. There were persons of
a philosophical bent who found themselves in groups, but it had nothing to do
with partisan politics. I don't think for the rest of my life I'll ever
convince anybody of that, but those of us who served there knew it.
Excuse me, would you make a footnote, though, to the very issue
that you've just been talking about - apportionment. When the Court was obliged
in 1964 to make a decision between two plans, one of them had imprinted a
label, Repu, and the other was Democratic, and the response at that time, would
you make an exception to what you just said in that particular case, or would
Yes, I'd make an exception because what I just said had
reference to the seven persons that I described. Sure, in the 60's and 70's,
Michigan constitution compelled the Supreme Court to chose either the
Republican or the Democratic plan.
You had to make a political choice.
You had to make a choice, and had to make a choice when it came
our turn in the 80's also, but we were seven people. I've never worked with
people like that before and I haven't since, who took their oath of office more
seriously. It was a marvelous group of lawyers and judges with all of our
warts, and partisan political loyalty just wasn't in the decisional process
ever, and that includes Soapy Williams who was the head of the Democratic Party
forever. I was very proud of my colleagues including those I disagreed with
most of the time because they were genuinely judicial with respect to the
subject of partisan politics. Now comes our duty, in 1983, I think it was.
1982, to obey the constitution which said you must chose either
the Democratic plan or the Republican plan. We recognized that neither plan was
fairest for Michigan, and they were both gerrymandered in a way to advantage
the party, and that's a political decision which is okay, but the Supreme Court
should not be put in the position of selecting a package handed to it by a
political party, so we were benefitted, thanks be to God, by the fact that
there had been much turmoil in Federal constitutional law at the close of the
70's and the beginning of the 80's about apportionment in the Federal
legislature, the Congress, and there had been a series of three or four
decisions the United States Supreme Court handed down under what is popularly
known as the "one man-one vote" concept, and those decisions, the names of
which escape me now, but I knew them, almost memorized them when we decided
this case, gave us in the Michigan Supreme Court, the basis to declare that the
Michigan constitutional provision requiring that we chose either the Democratic
plan or the Republican plan was itself unconstitutional.
The Michigan constitutional provision providing for the
apportionment commission which ultimately forced the judiciary, us, to
apportion the state legislature was unconstitutional under the Federal
decisions, U.S. Supreme Court decisions.
Was there unanimity on that particular point, do you
No, there wasn't.
Finally, I know...
There wasn't unanimity on that particular point, and I don't
remember how we divided about that, but the majority was of the view that the
leadership, the man on the Court who forced us to do our own studying, forced
us to the scholarship was Chuck Levin. He became interested in this subject of
apportionment, that is to say, the law of apportionment in a fashion out of all
proportion probably than what he should have been in view of the work load, but
I'm glad he did because he forced us to become students of the subject, and we
all studied it.
We agreed by substantial majority that the Michigan provision
forcing the Supreme Court ultimately to apportion the legislature was
unconstitutional under the Federal constitution so we threw it out. Now we
don't have any plan before us except the Democratic plan which was handed to us
and the Republican plan.
Excuse me, this is within the conference of the Court? You're
describing the various steps. This was not determined in the issuance of a
decision of the Court's soa sponte body or anything like that. You're talking
about how you got to the place where the new rule...
No, that's not right. We got to the place of having this
discussion because a law suit was presented. A law suit was brought by some
plaintiffs challenging the legality of the other guys' plan. The Democrats
challenged the legality of the Republican plan and the Republicans challenged
the legality of the Democratic plan.
They had already manufactured their plans and handed them to
the Court and then began the litigation.
That's right. So we had a package to give a basis to act. To
make a long story much, much shorter, if it is not too late, our Court decided
that we would commission the recently retired Director of Elections of the
State of Michigan, Bernie Apol, would request him to come out of retirement,
and to head up a team of experts who would use computers newly available and
much more finely hone the statistics about population and other relevant data
in the state of Michigan to come up with an apportionment plan which would be
blind to the preferences of the Democratic party and Republican party and which
would, as nearly as possible, comply with the United States Supreme Court's
principle of one man-one vote in the Michigan legislature, the House
particularly, but would meet some other criteria.
We did not want to have townships divided. We didn't want to
have counties divided if we could afford it, so we commissioned brother Apol to
go about his business, call on his expertise and when he got all through, to
come back with a plan that met these criteria which we laid down which we
thought were utterly devoid of partisan political consideration or influence,
and would give Michigan a change to have a legislative apportionment process
which would create districts in which there were approximately the same number
Were these criteria, was there strife over working them
No, there really wasn't. It was amazing because we were not
driven, not influenced. In fact, the counter influence...let me start again.
The reason it wasn't difficult to work out the criteria because the goal was
simple. The goal was a plan which as most nearly as possible, provided for one
man-one vote legislature in Michigan and which would not disturb existing
political boundaries: cities, townships, counties. We knew that to get one
man-one vote, we were probably going to have to cut some counties, but if we
did that, we wanted to cut it perfectly in half, for example. But we didn't
know what the computer would spew out as to the mathematics but we knew one
We knew we were not the least bit concerned as to how it came
out. We didn't care whether this plan would likely result in a change in the
Democrat/Republican balance in the state legislature, and we were, I remember,
very conscientious that we did not want any information from Bernie Apol until
his package was completed about how it was probably going to impact the
legislature. I was never prouder of a group of people in my life than our
Court. Ultimately, we got the package produced. It was imperfect in the sense
that in order to get as close to one man-one vote as mathematically tolerated
by the United States Supreme Court decisions, we were going to have to cut some
political divisions, some counties; we were going to have to cut them in
There could have been a debate on our Court about which counties
get cut because that could have an impact on whether Republicans or Democrats
got elected. I remember we sent Apol back to the computer board again and told
him to strive more mightily now to try to avoid dividing existing political
units and to come back with a formula. I lose track now with the passage of
time as to what the formula was precisely, but he came back with it, and our
Court looked at it and studied it, and we discovered that it was going to
change, that it was probably going to change the composition of the
legislature, and we didn't know which way or whether it would at all.
As it turned out, we speculated it would probably result in an
increase in Republican representation in the Michigan House. That would not
have resulted in a shift of control politically, but it came as a complete
surprise to the seven of us what it would do, and so we discussed the plan
mathematically. We had a number of hearings in our conference room with Apol
and his charts and the computer readouts. We had an assistant on his staff who
did logirhythms and square roots and mathematical computations. You were in on
this at the time.
On the fringe of it. You know, I'm proud to say that I
shared...this was the Court's finest hour.
We finally produced an opinion, and I prayed, and I mean that
literally, that we could find a way for the Court to be unanimous, to show the
people of the state of Michigan, the Bench and the Bar that although we came
from partisan sources to the Court, that this was just too important to be
partisan about and we wanted to lay to rest this terrible reputation the
Supreme Court had for jumping Republican or Democrat in the 60's and 70's and
thanks be to God, we got a unanimous tentative vote at the conference table,
7:0 for what we called the Apol plan, and the chips would fall where they fell,
and it would probably result in a small Republican benefit, but at the 11th
hour, one of the members felt he could not sign the opinion. That was Blair
Moody, and we didn't lobby one another in the court, really, to change position
on opinions. You'd try to persuade another person to your point of view about
the law, but there wasn't any intensive lobbying.
I don't know if there is in any Supreme Court, but we
reconvened, and we attempted to persuade Blair that the differences he had
which were based on a good faith view about what the constitution required, but
not a view the other six of us shared, that the greater good would be the
unanimity of the Court rather than him expressing himself, and now I'll say
something I hope I won't regret. I loved and respected Blair Moody, still do.
He is a colleague in the Wayne Circuit Court. He was a man of unimpeachable
personal integrity. He worried terribly about doing what was right. A man of
high morality, but 1982 was his election year, and the apportionment plan was
going to go because it had six votes minimum. He was about to face a tough,
tough re-election. They're all tough on the Supreme Court. I've forgotten who
his opponent was to be. Oh, it was Dorothy Riley, maybe.
Dorothy Riley, Mike Kavanagh and Moody were all running, and
there was somebody else.
And I have felt to this day, and it is not a criticism of my
brother. It says more about me than it does about him, I suppose, that while he
felt deeply and honestly that this apportionment plan was mathematically not up
to the Federal constitutional snuff, that that was a point on which he could
have said, "Well, I don't have to say so in an opinion. I can sign the
majority". I think had he not had the burden of facing the electorate that
fall, he might have made it 7:0.
I think, was it not 7:0 in some form in that he split off on an
issue of an order or something like that?
Yes, it was. It was an essentially a unanimous decision. The
part that mattered was unanimous, and I don't denigrate his memory at all. He
didn't jump ship for partisan political reasons. He was aboard on the
principle, but he took criticism that was unwarranted in the election because
his partial dissent, the technical issue of the process by which it would have
been implemented, I think it was, attracted a lot of partisan fire as being a
purely political call. It wasn't a purely political call because he felt
honestly and strongly that we were mistaken on that point.
My only point was it would have been nice if it had been a time
and circumstance in which, as he did on other occasions, and we all did on some
occasions, said, "I don't agree totally with what is written here, but I can
sign without compromising my principles". He did what he thought was right and
because he thought it was right. The result was, however, that he didn't
diminish in any way what you said is the Court's finest hour. We were able to
produce a plan that I think has never been assailed as having any partisan
political taint to it.
Are you aware that while this was going on that there were
calls, a few of them anyway, came over from members of legislature, I think in
particular, Joy Conroy, the Senator out of Flint, and I took some calls from
him. I had known him, and I was in the Chief Justice's office, and he wanted to
remind me that the appropriation of the Supreme Court came from the
legislature. You've got seven people on that court now, but you know, there
could be just five if these people don't seem to know how to handle their
responsibility, and that kind of stuff, and it was, I think, it was a terrible
reflection on this man and some of the others. There were, I would say,
probably three whose names, if I went back and worked at it, I could drudge up,
but I'm sure that you must have felt some of that kind of pressure.
We knew there was some heat, but I must say, the vast majority
of the members of the legislature and political parties, I think, recognized
the Court had to do what it thought was right, and it wouldn't get into that.
There was some of that but to the extent that we were aware that there was some
of that going on on both sides of the aisles, all that did was solidify our
determination to try to turn out a product which was devoid of any political
influence in its making, and that's what happened. But it proved, I think it
proves, what an absurd situation it is to ask the judiciary to perform a purely
political act which is to apportion the legislature.
It sure fractured the Court. You know, I went back, because of
this work that I'm doing, and I looked up some of the earlier decisions and do
you know there were as many as 50 and 52 paragraphed headnotes to describe,
distill the views of the seven or at one time, eight members of the Court, and
there were, my God, I think in one or maybe two decisions, there were seven
separate opinions written.
Were there seven?
This is my recollection, but maybe there were two...it was
almost incredible what this did. Of course, the law was changing as this whole
process came along.
Yes, it was. We were benefitted by that.
And ultimately, it settled down somewhat, as you pointed out,
right at the start, but there was a time there when the United States Supreme
Court was entertaining the fundamental questions here that would be decisive if
it went a certain way and it did ultimately. Then, at the same time, the
constitution of Michigan was being re- written and there were questions raised,
of course, about the content of that.
(End of side 2, tape 2)
We were benefitted by that. I want to share this with you
before I forget it. Our Court, the composition of the Court changed a little
during my ten years there, not too much, but
7. Justice Ryan talks about his reception to the Supreme Court in
1975 and its positive chemistry and the turmoil the court was in prior to his
arrival. He also discusses the duties of the court, the collegial decision
process, and the justices' annual retreats. The interview then turns to the
case of West vs. Spartan concerning the Workers Compensation law and the
Poletown case involving General Motors and the city of Detroit's attempts to
keep them from moving out of town but at the expense of established
This is another tape in the series of the Michigan Supreme
Court Historical Society, and this is tape #3 with former Justice James L.
Ryan, and we're going to start out today, Justice Ryan, I hope, talking about
what some people call the chemistry of the Court, and the word that I would
like to focus on if you're willing is the concept of collegiality which I sense
is not widely understood in this context which is an extremely important and
What was your thought about...when you came on the Court in
late 1975, it was at toward the end of a period of great turmoil. Early in
1975, there had been a rather abrupt change in leadership of the Court when
Thomas Matthew Kavanagh was no longer Chief Justice, and then there came the
death of him, and then there came the Swainson problem and during this period,
on came Justice Lindemer, off went Kavanagh, of course, because of his
There was rancor over the change in leadership and much
distress, of course, occasioned by the allegations against Justice Swainson,
and so by the time you got there, the Court had been undermanned. There had
been very divisive occurrence of activity within the Court. Let's go on from
there. When you walked through the door, what kind of a reception did you feel
that you got and from there on, let's just trace it down for a couple of
Well, turmoil is certainly the right word, Roger. There had
been in the early part of 1975, a number of decisions rendered by the Court
when it was a court of just five persons because of the absence of Thomas
Matthew Kavanagh during his last illness and then shortly after he died and
before Larry Lindemer was appointed his successor, and after Justice Swainson
was formally accused in the Federal Court, he stepped down recusing himself
from hearing any cases, so there were a considerable number of cases decided by
a five person court, and there was a question when the court consisting of just
five was decided, 3:2 on a case, for example, whether a 3 person decision could
be a binding precedent in the Court, whether it was binding in lower courts as
much as the majority of the properly constituted court would have been four
people, so that was a concern to the bench and bar for a considerable period of
time. Then, of course, the events you've described, the tension in the Court as
a result of the necessity that the justices testify really against their
colleague, John Swainson.
None of the testimonies, I understood it later, was personally
accusing in any respect, but it was necessary to give evidence, so there was a
period of considerable upset and tension in the Court. To answer your question
directly, when I arrived near Christmas time in 1975, I was received warmly and
enthusiastically, I thought, by every one on the Court. I think it wasn't so
much any gesture toward me personally as it was a sense of relief on the Court
that the Court would then be once again up to its full strength of seven
justices and there would be no need to deal with these questions about the
constitutionality of the Court's decisions as to whether a majority, a real
majority, was deciding cases when the Court was divided.
I had been, I hope, appropriately critical of some of the work
of the Supreme Court before I got there, not in any destructive fashion, I
hope, and I didn't make any public issue of it, but along with a good many
other lawyers in Michigan, I had felt that for a relatively substantial period
of time, maybe ten years or so, the justices seemed to be personally at one
another's throats, if that can be measured by the rhetoric in the opinions.
There were some colorful personalities on the Court. The rumor mill around the
judiciary was that there had even been the threat of physical violence in one
of the conferences some years earlier, and that was kind of the signature which
was hung on the Court, whether justifiable or not, and I was determined when it
turned out that I was appointed to try to be a contributor in an effort to
restore to the Supreme Court the appearance of dignity and importance and
solidarity and collegiality that most of us thought a Supreme Court should
I was welcomed, as I said, very warmly. Seated around the table
on the day that I arrived, as I think we said yesterday, were Chief Justice
Coleman, Justice Thomas Giles Kavanagh, Justice G. Mennen Williams, Justice
Charles Levin, Justice Lawrence Lindemer and Justice John Fitzgerald. The
collegiality - it takes, in my judgment, a reasonably bright and capable lawyer
who comes to a body like the Supreme Court, a minimum of three and maybe five
years to really understand the nature of the work. One can understand it in a
technical sense that there is a necessity to entertain oral argument, to
consider the argument, to read carefully, to study, to write, to confer, but
the nuances of collegial decision making are very, very subtle.
Does this have something to do with what people more frequently
call the chemistry of the Court? It's been said, for example, that on a Court
of this nature, a Court with six or seven or eight people on it, when there's
one change, it changes the chemistry. Does that suggest anything that's
pertinent to what we're...?
That's a good metaphor, and it fits perfectly. That's right. Of
the seven components of the Supreme Court, when there is an alteration of any
one part of it, it does change the chemistry. It changes the attitude of all
the players depending upon the style, the energy, the scholarship of the
newcomer, and it is a new entity any time one component is altered. Well, the
Michigan Supreme Court was suffering, if that's the verb, an alteration of one
or two components at least annually for a period there, and the Court was in
the condition of considerable upset, but as to this notion of collegiality,
without making too much of it, I think it's important to understand that a
Court of second appellate review like the Michigan Supreme Court has a number
of functions to perform besides, in addition to deciding cases and writing
It also has this constitutional duty to superintend the whole of
the state judiciary and the practice of law, to oversee the disciplinary
process for lawyers and for judges, the budgetary responsibility it has with
respect to its own court, the Supreme Court, but the lower courts as well, and
these non-decisional responsibilities, as I call them, require, if the Court is
to be effective, efficient and to be respected as an administrative unit, as it
were, a solidarity and a unity of action on the part of the justices. There
can't be any divisive back-biting or personal or enmities of any kind that
surface, at least, or that interfere with that work. And so, in respect to
those non-decisional duties, rule making as well, it was critical, it seemed to
me, that the Court had to speak as one voice and to have a collegial unitary
understanding of the kind of judiciary we want to have in Michigan.
The education of the judges is another component. However, when
that hat is removed, and the Court turns to its responsibilities of deciding
cases, something different happens. As I said yesterday, the primary function
of a court of second appellate review like our Supreme Court of
Michigan...well, I'm not sure I want to use the word "primary", but among the
primary decisional functions is the development of the common law. The others,
as I said, are to construe the meaning of new statutory enactments, the meaning
of constitutional provisions, both state and Federal, which have not been
explored before and occasionally giving advisory opinions under the Michigan
constitution, but principally, I think, it is to do this interstitial law
making, this business of appropriate judicial law making. Now, to do that
effectively, a member of the Court has to have a comprehensive and a coherent
philosophy of the proper judicial function.
The knee jerk labels for those are...conservatives often are
said to be people who are opposed to judicial law making and simply want to
apply the law the legislature enacts and not make law. That's been a popular
idiom politically in the last decade. It is said, on the other hand, that
judicial liberals in the judiciary; it is said feel that the constitution is a
living document and that it and that statutes must be construed with respect to
the best interests of the people at the time given the facts, that it's all
kind of elastic and the judges should do equity.
The Michigan Supreme Court is essentially a political body,
despite the fact that the justices don't take any oath to uphold any political
philosophy and in fact, take one to uphold the constitution and the statutes.
The truth of the matter is, every member of the Supreme Court got there because
of the political process, and while, during my tenure, I never detected, to my
utter surprise, I never detected any party loyalty in any of the justices,
there was, I think, in everybody a philosophical disposition about the judicial
function which is consistent with the general liberal perspective or generally
the conservative perspective.
So here we are, the seven of us, in the morning during the
administrative conference, trying to speak as one voice with respect to the
superintendents of the Bar and the profession and rule making and budgetary
matters and disciplinary matters and then in the afternoon session, we are
engaged very often in this judicial law making function, part of which requires
the understanding that the Court should not then necessarily strive to speak
with one voice. After all, one of the reason there are seven people on the
Supreme Court is to bring to bear on these difficult questions of often,
usually, first impression, the perspective of seven different people, the
scholarship of seven different people. Otherwise, we'd only need one as Tom
Kavanagh has often said, and so it's altogether appropriate in the decisional
process for a member of the Court to ask himself or herself whether the proper
resolution of this constitutional question or this statutory interpretation is
necessarily what the majority around the table think. To do that properly, you
can't approach a question by saying, "I think I'll be a conservative today
about this", or "I think I'll be a liberal".
I think one needs to have, to be able to bring to bear, as I
said early, a coherent philosophy of judicial law making, and when people get
to the Supreme Court by the happenstance of an election or the happenstance of
a gubernatorial appointment, they don't necessarily come with a background of
scholarship and reflection about developing that kind of a coherent philosophy,
and that's why, in large measure, I think it takes two, or three or four or
five years to learn the job. So, the collegial decision process has to be one
in which every one recognizes that it's all together appropriate for different
philosophical perspectives to be brought to bear in deciding this case, and
when a majority is struck and is evident, the majority decides the case, and
that's the decision, and the minority needs to express, has a constitutional
duty to express its disagreement in writing through the dissents.
There's been a history on the Supreme Court of very vitriolic
dissent writing, sometimes highly personalized, and sometimes even belittling
of the other justices, and I never understood how that could be until I got
there. When I got there, I understood how I could see that the correct answer
for me to a question of first impression was so clear and so self-evident that
it was almost incomprehensible to me how the others could see it differently.
As I got older in the job, there were fewer and fewer of those
occasions when the other point of view was incomprehensible to me, and so I
tried, during my tenure - didn't always succeed, by the say I tried during my
tenure when I was writing in dissent to remember that these are seven
reasonable people around the table and the fact that the majority, in my
judgment, is dead wrong, doesn't mean they're dumb. It doesn't mean they're
ignorant. It doesn't mean they're crazy, and it doesn't mean they are
undertaking to solve the problem in less than a noble way. It means that they
see it differently. So, I thought I can contribute to the esteem in which this
institution is to be held by the bench and bar if I can write vigorously but
not in a belittling or personally critical fashion when I dissented, and I
found that the Court was comprised of six other people who nearly always did
exactly that, and so the chemistry of the decisional process of the Court was
respectful and it was friendly, vigorous, but it wasn't...when there was
disagreement, it wasn't, as I said, vitriolic or personal or belittling in any
It got hot very often during the conferences, but the cooling
off period worked for the most part. When you can disagree vigorously with a
good lawyer - we had good lawyers around the table, and you could disagree
vigorously and let it all out in a written opinion, then edit the opinion down
to take some of the rancor out of it and come back the next day and take up a
new menu of difficult cases with no hold-over bitterness or personal animosity,
then you have a Court whose chemistry is indeed, in my judgement, collegial.
Lay aside yesterday's disagreements as relating to the issue, and we were able
to do that during my time on the Court, for the most part. There were some
exceptions. We all had personal failings once in a while. Because we worked
hard at doing it; all of us were not proud of the reputation the Court had had
for some period of time. Maybe that earlier reputation wasn't justified. I
don't mean it as a personal criticism of my predecessors, but whatever the
cause, it had a bad rep among the profession in this state for its mature,
collegial decision making capacity so what it meant to me, to sum up this
point, is that I had a personal duty to dissent, to disagree when I thought
disagreement was required.
I also had a duty not to disagree for the sake of disagreement.
I didn't think it was terribly important...let me start this thought over
again. You read criticism in the secular press about the Supreme Court of the
state of Michigan and the United States, from time to time, which criticism is
directed at the apparent inability of the Court to decide cases unanimously.
Why 5:4 decisions in Washington. Why 4:3 decisions in Lansing. That is an
unfortunate misunderstanding of the appellate court function. A 4:3 decision is
just as binding, just as substantial, just as significant in terms of its
precedent authority as a 7:0 decision is, but when the 3 dissenters in that
example feel that the majority is in error, they have a duty to say so, not
only to express their views but in order to raise questions for consideration
later by subsequent courts. As you know, that's the way the law gets changed
On the other hand, I felt, and I felt that my colleagues felt,
that it was unwise for the good of the institution to dissent on an
insignificant minor, perhaps highly personal point, just for the purpose of
criticizing the majority. I didn't always succeed in harnassing myself in that
respect, but I tried to, and I think the others did, too, so that there was an
appreciation during my ten years there, for the most part, that when a justice
chose to dissent, he did it after giving considerable thought to whether his
dissent would be useful as opposed to being just personally gratifying to vote
Justice Ryan, was part of this...was there a necessity to have
among the seven members of the Court, individual, let's call it, personal
equations, that embraced among other things, a trust that there would not be
ridicule visited upon one of the members because of some aberration or perhaps
a strange expression of thought that later was recanted. You know, "My, God, I
didn't realize that so and so..."
Was there something about the personal relationship in a group
sense beyond the you and I aspect of it that was necessary for this? I got the
sense that you all had a very deep and abiding respect for one another, even
when there was the kind of difference that could be reduced to a rancorous
episode as in the past as you have described. What...is that part of the
chemistry that we're talking about?
It's an important part of it. We were friends. We liked one
another, but that wasn't accidental. We were thrown together, the seven of us,
because we were members of the Court, either by election or appointment. We
would not have been social friends or otherwise associated were it not for the
Court. We came from radically different backgrounds, economically, socially, in
terms of religious conviction, ethnically; nothing would have brought us
together otherwise save that Court.
We all recognized that so we knew that if we were to make this
outfit work and to help restore its esteem in Michigan, we needed to get to
know one another better and to respect one another personally. Sometimes you
can't force that. Sometimes personal styles are such that as hard as one might
try, you just can't care for another person. Something like that might have
happened in our Court because all of us had distinctly different styles, but
during my ten years there, we served...I served with three different Chief
Justices and if you had to...if I were a governor and had to appoint somebody
to be a chief justice at a certain time in history, I could not have done
better than I think we did at choosing the chief justices. They were, during
each of their terms, the primary catalyst to introducing and preserving this
bond of personal respect which was the Court's glue.
When Mary Coleman was elected Chief Justice, she brought a
graciousness, a style, a reserve to our conference which required the rest of
us to deal with one another and with her with the same sort of deference and
respect and graciousness that she showed in her leadership. When Tom Kavanagh
was the Chief Justice, he's a person utterly devoid of any guile. He has a very
relaxed style. If he emphasized anything first and foremost, it is that we're
in this together and we have to disagree but not disagreeably, so while he was
certainly no cheerleader, he created a personal relationship with each member
of the Court of a kind which reminded us that the institution is infinitely
more important that our individual points of view.
Then when G. Mennen Williams was elected Chief Justice, he
brought to the end of the table the style and the skill and the wisdom of an
executive of very extensive experience, first as a governor, in the State
Department, and as Under Secretary for the State for African Affairs. He was a
diplomate par excellence. He was trained in it in his social cast as a young
man and further trained throughout his life, and he was able to, and for him,
easily, to bring together at the conference table totally disparate points of
view on tough subjects, see to it that they were fully aired and then be the
catalyst to reduce those disagreements to a decision, which as I said earlier,
would be devoid of rancor and vitriolic language or personal enmity. And so we
liked one another in that way. We got into some terrific arguments.
On top of all of what I said about this friendliness, one needs
to understand that the Court was deeply divided philosophically during the
period I was there and in several areas of the juris prudence. The principle
one, of course, was the area of Worker Compensation. Those of us who approached
decisional process from a more conservative perspective were in the minority.
The decisions of the Michigan Supreme Court in the Worker Compensation area
were many and varied.
I came to believe after I was on the Court for a while that as
the legislature continually amended the Worker Compensation Act, they did it in
broad and indistinct and often relatively vague language with the perfect
confidence that the historically liberal Michigan Supreme Court would fill in
all the gaps in a generous, liberal giving way to the advantage of the
claimants, usually, and necessarily therefore, to the disadvantage of the
employer economically. I was joined in that general opinion by at least two
other members of the Court, but we were a minority.
Would you give us your thoughts on one line of those cases that
seemed to be highly illustrated, at least from my observation, and that's the
ones that headed the decisions that dealt with the problem or mental
disability. There was DeZiel, Redfern cases. There were associated with this,
in my mind, the Dressler...the fellow that concealed his back injury. You
remember that case, but speak to that a little bit, would you?
I will, but before I do, I would like to just share a thought
with you on the subject we were talking about earlier, if I may, about the
vague notion of the collegiality of the Court. We made it a point during my
time there to get together socially with the spouses, and we did it always at
the holiday Christmas time, a dinner, and at least one or two other times a
I remember John Fitzgerald hosting a couple of magnificent
Christmas dinners at his historic home in Grand Ledge, beautifully decorated in
a way that reminded all of us of what it must have been like at the time his
father was governor and lived there. We had been invited to Soapy Williams
wonderful home in Grosse Pointe for a number of dinners and in other places.
During my last five years on the Court, it became a custom...well, it was
perhaps the last eight years, it was a custom that in order to enhance this
collegiality, this respect for one another on a personal basis, all of which,
as I said, was for its own good, but it was an effort to put to rest this
terrible reputation the Court had earlier.
We agreed that we would go someplace once a year, just the seven
of us, in what we called a retreat for want of a better name, and we would have
an unstructured agenda and for 2-1/2 or 3 days, we would meet in the morning
and get off our chests whatever might have been on them, and in the afternoon,
rest, and in the evening, have a pleasant dinner and we did that...I recall one
year at the Henry and Edsel Ford Mansion. That was a special memory for me. It
was January, snowing heavily, and those beautiful grounds at the Ford Mansion
were just that.
Mennen Williams was able to arrange for us not only to meet at
the Ford Mansion but to stay there for two nights. There were seven bedroom in
the Edsel Ford home which was just right for the seven of us, and the history,
of course, which was attached to the place, was impressive, and that was the
beginning of a practice that lasted for the last five or six years of my time
on the Court, not to return to the Ford Mansion but each summer, Nancy and
Mennen Williams hosted a three day retreat which sometimes extended to four at
their cottage, as they called it, on the west bluff of Mackinaw Island, the
biggest cottage in the western world, as far as I was concerned, but during
those days, the seven of us would be there with our spouses, relaxing, getting
to know and really getting to love one another. That's the only
important...that's the only...I don't mean that in an emotional way, but to
respect another person on the Court, to appreciate the personal difficulties
they might be having in their life without probing, and to come to appreciate
one another in a fraternal way was the product of those stays on Mackinaw
Mary likes to tell the story of the first time we appeared, how
G. Mennen Williams, then the Chief Justice,...I guess he wasn't Chief Justice
at that time yet, but certainly the former governor of Michigan, before whom
everybody on Mackinaw Island is accustomed to bow and scrape, had two domestic
helpers at the cottage on Mackinaw Island. One was a woman who had been the
member of the domestic staff in the Williams home when Soapy was a child. When
we were on Mackinaw Island, she was in her mid-80's, and a second woman who was
almost that old who assisted Nancy and Soapy at their home here in Grosse
Pointe. There two ladies, as a I say, were of advanced age and so Soapy's
practice was to be the servant at these dinners.
He not only helped them in the kitchen. He jumped up from his
place at the dinner table and would serve all of us, and I will always
remember, as my wife does, the incongruity of this man of great distinction and
accomplishment by the Chief Justice saw himself as a servant of the members of
the Court, and that carried over, the memory of that when we went back to the
conference the next week and for the years thereafter, so those gatherings, I
thought, breathed into the Court as an institution a humanness, sensitivity and
a respect for one another that helped us immensely to express our disagreement
on the cases in a more dignified and scholarly way than might have otherwise
have been the case. These Worker Compensation cases divided the Court radically
and for a long period of time.
Were you there for the Honey West case?
Yes. I can't remember. You'll have to jog my memory. Honey West
was the lady that wasn't sure who her husband was, wasn't that it?
She had one in Texas, but he was long gone. He was still
legally her husband, but she had taken up with this other man and lived with
him and took care of this breakfast and all that for a good many years.
And she was determined to have been within the meaning of the
Workers Comp. law, a dependent, and some of you thought, as I recall, that a
dependent was like a child or a grandparent or somebody, and not the...what
will I call it...the live-in companion.
That was West vs. Spartan.
I do remember Honey West. Yes, I remember that case. Well, that
case is, in a way, illustrative of the deep division which occurred in the
Court about state of Worker Compensation law. I described earlier what I
genuinely believed then, and I do now, was what was going on...the legislature
would write this thing broadly. There had been a long history since the early
60's of the Supreme Court construing it very, very broadly. There had been a
huge uproar in the State of Michigan from the business community that they were
being crippled in this state by the cost of worker compensation premiums.
That's kind of a political argument, economic political
argument. Governors were running for office and candidates for gubernatorial
office on that issue, and I suspect that I had expressed myself on the subject
before I came to the Supreme Court although we didn't have Worker Compensation
cases in the Wayne Circuit. When I got there, it was immediately apparent to me
that there was a decisional philosophy which seemed to drive the disposition of
these Worker Compensation cases that if the question is close, give the worker
the money. After all, the employer has got plenty of it, especially in a state
like this which has the Big Three and other huge operators. I made up my mind
that I was going to try to learn this statute which I hadn't worked with very
much earlier, and read the cases which had been decided in the early 60's
during the period of Talbot Smith and John Voelker and others, Ted Souris and
other very good lawyers.
I came to the conclusion that I just articulated a few minutes
ago that these cases had been decided in a way which did not reflect what the
words in the statute meant. They were being decided to the extent that you can
generalize about something like this...they were being decided in a way which
was philosophically very liberal. After all, as between the two people, the
worker who is in need and the employer who has plenty, let's give it to the
worker. That's great Christian charity, Judeo-Christian charity, if you will,
but I always thought it was pretty lousy juris prudence, so I found myself
dissenting over and over and over again from cases in which the Supreme Court
would give what I thought was an inappropriately broad construction to these
concededly vague concepts the legislature would use in amending the statute.
The insurance industry was going crazy in Michigan and so were the employers,
and there developed at our table, our conference table...this is really letting
the ghosts of the closet...there developed at our conference table in an effort
to keep from getting too heated, kind of an artificial humor when these cases
would come up.
Mary Coleman and John Fitzgerald and I were regularly dissenting
from the generous give-away philosophy often being written into the majority
opinions by Tom Kavanagh and Blair Moody and Mennen Williams and Chuck Levin.
We would go down our calendar of cases for the day, and we'd get to the first
Worker Compensation case, and the Chief Justice would call for a tentative vote
around the table as to whether the decision of the agency awarding benefits
should be affirmed or whether we ought to take the case and look at it again,
and you could almost see the tension of people's faces when one of these cases
came up. Tom Kavanagh, when he was Chief Justice, would say, "Well, here we
have a Workers Compensation case". He'd name it, and then he'd say, "WAW?"
which was our code around the table for "Workman always wins", and just in the
spirit of friendliness, not at all frivolous because we were all prepared.
Chuck Levin would say, "WAW." Soapy is not the kind of guy who went for this
sort of humor very much, but occasionally he would say, "WAW" and then it would
be up to Mary Coleman and Fitzgerald or me to find a fourth vote to take the
Very often, we couldn't get the fourth vote, but when we got it,
it usually meant that one of the four was generally in the more generous side
of Workers Compensation cases would say that maybe this one went too far, and
we would...the mental disability cases were in that category. The statute was
very vague, as I recall, about the entitlement of a worker to benefits as a
result of emotional breakdown or mental disability of one kind or another
suffered in the work place. The cases we got had to be decided on the record we
got, and we didn't always get a case whose record was a complete and as
expertly compiled as ideally you'd like to have it. But, there was, for a
period there, a line of cases in which the Worker Compensation Claimant Bar was
testing the Court, I think, to find out how far our Court would go in awarding
benefits as being for mental disabilities, emotional disabilities, how far we
would go in stretching the concept of the disability was suffered out of and in
the course of the employment. So we got the claimants who were alcoholics
asking for Worker Compensation benefits because the job drove them to drink. We
had those who were person whose personal lives were filled with stress and for
a host of reasons, were suffering emotional burdens of various kind, but could
collect benefits only from the employer.
I don't remember it distinctly the shades of that juris
prudence, but I remember that those cases formed a category of those which I
found generating a misapplication of the intention of the legislature and
broadening the recovery rights of Worker Compensation beyond what the statute
or the constitution warranted. I remember one case very well. I sticks in my
head. McCloud (McClure), I think was the name of the case. A fellow was working
over at the Fort Street Fisher Body Plant for General Motors and as was
customary, on the lunch hour, they went across the street to a saloon on Fort
Street where he and his pals could have lunch and have a beer if they wished or
ate if they wished. McCloud...
McClure, was that it?
McClure, perhaps McClure. McClure, as I recall...all this is
subject to verification in the report, but McClure, I think, had a number of
drinks and came back across the street, across Fort Street to go back to work,
and was struck by a car on Fort Street. I don't remember whether he was killed
or badly injured. Whichever the case, it was tragic, and his wife...it seems to
me it was his widow, not that I think of it, filed a claim for benefits, and
the question was whether McClure was killed out of and in the course of his
I had a very tough time coming to the conclusion and couldn't
that coming back to work from the saloon where, by the way, it turned out that
the evidence showed that he didn't have any lunch except what he drank, was
within the intention of the legislature to compensate persons in an industrial
society for injuries received at work. We got the tough cases. There were
thousands and thousands of cases where benefits were awarded by the agency
which never got to our Court. Understandably, we should have only gotten the
close ones and the tough ones, but I developed what I thought was a coherent
philosophy of the disposition of Worker Compensation cases which found me on
the minority side of the Court for most of the time I was there.
Let's get on to the matter of some of your other dissents. One
of them I think was probably your...I would maybe call it your masterpiece in
the decisional process, the exposition of it, anyway, was the Poletown case.
Why don't you relate how you came to write as you did in that case and what you
thought the importance of it was.
(End of side 1, tape 3)
Well, the Poletown case, as it is called, grew out of the
effort in the City of Detroit to head off, to avoid the threat General Motors
was making to close its manufacturing plants here in the city, the Fisher Body
plant and a second manufacturing plant, and to move out of the State of
Michigan and to take those manufacturing jobs with them. There had been
negotiations underway between General Motors and the mayor of the City of
Detroit and his staff about finding a location in the city where GM could put
up a new modern plant with its robotics capacity which would keep those
manufacturing jobs in the city and the jobs which, of course, relate to a
General Motors had laid down very, very particularized criteria.
They needed "x" number of acres. It seemed to me that they had to have 580
acres or something like that. They had to be at a railroad siding. It had to be
very near a freeway, and there wasn't any such places. A decision was made by
the city that several hundred acres of property would be condemned in an area
which came to be known as Poletown which was a residential area almost
exclusively in a portion of the City of Hamtramack and part of it was the City
of Detroit. It was an old neighborhood of essentially Polish citizens. It
included some eight churches including five of the magnificent churches that
were built prior to...
8. Justice Ryan continues to discuss the Poletown Council vs.
City of Detroit case in which a group of Detroit citizens challenged the city's
plan to condemn private property in order to prevent General Motors from moving
factories to another location. He then talks about the reorganization of the
courts in Wayne County.
Let's go. This tape is working now. I think we're all set.
Well, those churches were...I mention them because they are
symbolically significant of the kind of community it was in Poletown. They were
residents who, for the most part, had been there for decades, one generation
after another, and as we learned in the course of the litigation, the community
was one for which the word "solidarity" was probably discovered, and when that
site was identified, there was great resentment in the community in Hamtramack
and the surrounding areas which were affected by public demonstration and the
rest of it, all of which, I must say, I largely ignored.
However, when the litigation finally bubbled up to the Supreme
Court, the litigation being a law suit by a group of affected citizens who were
challenging the eminent domain claim the City of Detroit was making and without
putting too fine a point on it, their theory was that this was not a taking for
a public use. Their argument was that the City of Detroit was just a conduit
for General Motors to condemn this private property and take it for private
corporate use to build a plant. The case was extremely well briefed in our
Court and I'm sure very well argued. The briefing was outstanding and we had
lots of briefs because of various people who were interested.
When the case was over, we retired to the conference room as we
did in all cases and took kind of a straw vote, a tentative indication of where
the seven of us stood which was common practice, and it was immediately evident
without too much discussion that the Court was going to be 5:2 to affirm the
judgment of the lower court that this was indeed a public taking and was
constitutional. John Fitzgerald and I disagreed, and now it is necessary to
give you just a bit of the flavor of the environment in which the law suit got
As General Motors began its public relations work in connection
with the condemnation of this property, it did it, not surprisingly, very, very
well, and the notion of condemning this vast residential area in Poletown came
to be seen as some kind of united civic effort in Detroit to head off the
ravages of increasing unemployment in the city. It was sold to the newspapers
and to other public opinion makers as a great idea because it was a way to keep
two large manufacturing plants in the City of Detroit, the Fisher Body plant
and one other General Motors manufacturing facility whose name escapes me that
had to be closed because they were obsolete, and they were costing the company
money that was being wasted.
This new modern facility would employ all of those workers and
more, and it was argued that not only would more than 6,000 factory workers
keep their jobs but that this new plant would generate approximately an
additional 12,000 jobs relating to satellite industries, suppliers and the
rest. They even talked in the briefs about motels and restaurants which would
be built up around the Poletown plant to accommodate visiting peddlers and
others, so you have to understand that the newspapers, the mayor's office, New
Detroit, as I recall, universities, everyone was galvanized as a single voice
in support of this civic enterprise to contribute to the renaissance of the
City of Detroit by saving these jobs, increasing these jobs and building this
new modern plant which would be a model for American manufacturing. To be
against this kind of thing was to be uncivic, as I recall, was the implied
This was in 1981, right, and at this time, there was very acute
distress in the auto industry. Unemployment was very high, is that correct? I
think you mentioned this, did you not.
I'm glad you reminded me. Unemployment was very high. I've
forgotten the figures. I did glance at them the other day. As I recall, the
evidence in the case was that the unemployment rate in the City of Detroit was
about 15%, about twice the national urban figure, but the unemployment among
Black males who were semi-skilled, and would have been semi-skilled and
unskilled employees was as high as 30%, so with terrible figures like that, to
provide this opportunity for jobs in Detroit was certainly its own
justification, but as I say, it was that environment in which this concept was
being cheered by everyone, by the newspapers editorially, by the television
editorial commentators and the rest. The case came up in this group, kind of a
rag-tag group of plaintiffs, frankly, as I recall. There were some clergymen
with unfamiliar middle European names, and there were housewives, and people
who were perceived by some segments of the media as being kind of kooks or
The attorney, as I recall, was Riosti, was it not? Do you
remember where he came from?
I think that's right.
He was not a familiar figure.
I wasn't thinking of him in that description, but that's right.
I think that was the attorney's name. You know, I don't mean to denigrate these
plaintiffs, but they didn't present themselves as the sort of streamline class
that you would expect General Motors to have to face in the Supreme Court most
of the time or the City of Detroit. In all events, the case was very well
presented, and it was in that context that we took our straw vote and as I say,
it was 5:2 to move this thing forward. Chief Justice and those of my colleagues
who were in the majority agreed that there was great urgency to get this thing
decided and to get the opinion written and out pronto because General Motors,
as I recall, had ...threatened may be too strong of a word, but had indicated
that its interest in saving the City of Detroit in this way depended upon its
ability to get moving on the project almost instantly.
I think the seasons changing for construction and other
considerations were in the picture. In all events, the majority of our Court
decided that the opinion had to go, and it had to go now. It was gotten out in
ten days. In my ten years on the Court, we'd never gotten an opinion out in ten
days and certainly not one of any significance. We decided cases on an
emergency basis but not supported by an opinion, at least. So my colleague John
Fitzgerald undertook to write the dissent, and he told me to do a workman-like
job in three or four days to get the thing circulated to our colleagues and to
conference. He was going to have to write a fairly abbreviated opinion and
state the obvious and that's all, which he did and did very well. I signed it,
but I remember fuming during that period that I could not understand this rush
to judgment by our colleagues except that they were caught up in this frenzy of
civic enthusiasm on which this whole cause had been riding for a year.
During that week before the opinion was released, I dug into the
law of eminent domain far deeper than I ever had before, had the assistance of
a brilliant young man in my chambers who was a law clerk who laid aside
everything to help me find what I needed to learn, and I told my colleagues
that I was going to dissent, and I would write an opinion later, and I did. I
wrote, Roger, the dissent you have referred to, Poletown Council vs. The City
of Detroit dissent which I didn't file until thirty days. It took me that long
to do it right. It got some notoriety, and though that isn't why I wrote it the
way I wrote it, I thought a lot of things had to be said, and I said them, and
they're in the opinion. It got more public notoriety when I filed it later,
thirty days after the majority opinion was released, than I thought it would,
which again, I suppose, that I don't understand how the media thinks.
Well, I can help you there. Part of the genius of this was a
very lucid and thorough and succinct presentation of the atmosphere in which
the matter was decided, and with all the factual predicates laid down in a
cogent way, and this is the kind of stuff that the lay people can understand,
the newspaper people could understand it, and I think much of the time, people
that write the opinion; I think too much, they're writing them for other
lawyers, and they're using fairly obscure jargon sometimes, and this is not the
kind of stuff that newspaper people who are not particularly hustlers all the
time are accustomed to, and they don't want to penetrate, try to get through
the obscure language and so on. This rang like a bell, and it was easy to
digest and said what needed to be said.
Well, it's nice to have left a footprint that even you would
think that well of, and it is true. Really to my surprise, that dissent has
found its way into the case books in a number of the law schools. My son called
one day; he was in law school at Notre Dame, and he said, "You won't believe
this. We talked about a case you wrote today, and I took a lot of heat for it",
he said, and he pointed out to me as other academics have pointed out, that it
is used as the teaching vehicle for eminent domain in some law schools, not
always...with the professors not always agreeing with it, but it is
nevertheless used as a vehicle.
I will just add an aside to that Poletown decision - some weeks
later when the uproar certainly had not died down on the part of the
dispossessed citizens, because after we decided the case in the Court, it was
then necessary that the lower courts in Wayne County go through two or three or
four years of agonizing process through which the individual homeowners would
contest the amount of money being offered to them for their little frame homes
over there, so this thing remained in the paper. But I had occasion to be in
the City County Building in the City of Detroit on an occasion within a year
after this opinion was released, and I walked into the auditorium on the 13th
floor and the Detroit City Counsel was having a regular morning session there
because whatever it is they were talking about attracted a big audience, to my
surprise...I was looking for some other goings on in that place at the time,
and I walked into the back of the room.
The counsel members were sitting up at the Counsel, and I know a
few of them; one of them was Councilman, the late Kenneth Cockrell who was a
widely known liberal activist about whom is said that he was a brilliant
Marxist during his days at Wayne State University. I got to know Ken rather
well, and I think he would never contradict that label. As I walked into the
back of the chamber, he interrupted the counsel session and said he would like
to take the extraordinary step of interrupting the business to introduce a
person who has come into the back of the courtroom, and he went into a short
soliloquy about what a wonder judge Ryan was for having written this wonderful
Poletown dissenting opinion which respected the right of ownership of private
property of the little people, and I laughed, and some of the counsel members
laughed. The audience didn't know what was going on.
I walked out of there and I said, "Well, my life now is
complete. I have heard an avowed Marxist applaud the ownership of private
property and to hang credits on me for having written and supported the
ownership of private property", but that's the Poletown story, and the property
is cleared. The plant has been built, and I'll share with you just a final tag
on that story. A year or so ago, I was invited to the studios of J.P. McCarthy
on station WJR in the crow's nest of the Fisher Building in Detroit which is
just less than a mile from the Poletown plant.
I had never seen the plant because it's on the east side, and I
go home and come to work on the west side, and Joe was showing me around his
brand new studio with great pride, showing me how he can sit in the chair where
he conducts his morning show and look out the window to the east up to Lake St.
Clair, and can look out the window to the west down to the Wyandotte area. He
said, "Come take a look at this wonderful view" which I did and for the first
time saw, from that perch, this huge industrial complex 25 stories and a mile
below which was the Poletown plant and what immediately caught my eye was the
massive area of concrete which was empty which circled the plant, the parking
area, and a relative handful of cars given the size of the space allocated for
I asked Joe if I had forgotten that today was some kind of a
holiday or was the plant shut down for shift change or what. He said, "No, no.
That's a full complement of workers for the day shift, why?". I said, "I don't
understand what all that empty space is over there". He said, "No, that's the
regular complement of a work force down there. It's a relative handful of
cars". I reminded him that the case made for the condemnation of the property
being a public use was largely that it would employ 6,000 people. After looking
at that parking with relatively few number of cars, I did a little research and
discovered that there are about 2,300 people employed at the Poletown plant now
and the work force is declining which makes me sad and not at all proud that my
suspicions were probably correct.
Well, there was an element of prophesy. If you'll recall, in
the early paragraphs of your dissent, when you told about the Japanese
challenge. Now, this is ten years ago, and look at where we are today. Well,
shall we get onto your role...you mentioned that one of the appeals of your
service on the Supreme Court was a variety, and I think you did talk just in
passing about the role that you played in helping implement the organization of
the lower, trial courts or some of them anyway in Wayne County as
a...what?...delegate or representative of the Supreme Court. Why don't you
describe what happened in that episode?
Well, the Court re-organization or the re-organization of the
courts in Wayne County was brought about largely because legislation was
introduced which had been pushed by our Court, by the Chief Justice Coleman,
particularly, to shift the funding of the state courts from the shoulders of
counties and to the state. After all, the courts of the State of Michigan are
really state courts and for years, the local governments have had the burden of
funding about 1/2 the costs or thereabouts, and so this state re-organization
funding program was underway, and as a part of that, a decision was made in the
legislature to abolish the Detroit Traffic Court and the old Detroit Common
Pleas Court and to create in their place a District Court of the kind that had
half a dozen years earlier been established in the smaller cities and townships
around the state.
The Common Pleas Court and the Traffic Court in Detroit were
unique, and it was time that they go. The implications of making that switch
were far greater and more complex than first the legislature thought, I came to
learn. There were seven labor unions involved in the representation of the
staff employees of those courts. There were jurisdictional questions which had
to be worked out. There were security problems. There were problems of
geography, about moving prisoners. There was a question of whether the County
Sheriff would have any jurisdiction in a new City Court and a host of such
problems. So the legislature was addressing them as indeed it was obligated to
do, but somebody, the Supreme Court thought, had to be on the scene to
supervise...maybe that's not the verb...to monitor the process of shifting to
the new court system, because under the constitution, the Supreme Court had the
responsibility of making sure the lower courts operated efficiently, and if the
legislature created a monster that wouldn't work, no matter how innocently, it
was the Supreme Court who would have to answer for it, so the Court designated
through the Chief Justice, delegated to me the responsibility to come to Wayne
County, to be established here in an office and to serve as the eyes and ears
of the Court as this transition was occurring.
The fiscal implications of the change were enormous. The City of
Detroit was being asked to pick up millions of dollars of the cost of the new
court, and it would receive in return some $12 million of state funds it was
never entitled to receive before. The Traffic Ticket Bureau was being
reorganized. A computerized outfit in the City of New York was being hired to
run the traffic ticket enforcement system.
As I recall, that was a terrible mess, wasn't it?
It was a mess, an awful mess, and I wasn't too concerned about
what they created. I was concerned about making it work after the legislature
created it, and so Marilyn Hall, who is now the Constitutional State Court
administrator, as of our conversation today, was then an assistant
administrator, and she came with me to Wayne County, and we spent almost a year
down here in an office in the Lafayette Building and of course, I carried on my
responsibilities as best I could as a member of the Court, hearing and deciding
cases and writing opinions, although I must say doing both jobs resulted in a
bit of a back log for me for a while, but that process was interesting to me in
the sense of it enabled me to see how new courts are created.
It also enabled me to see the senior side of the political log
rolling that went on when opportunity presented itself like that to create
jobs. The result, in my opinion, of it all, without getting into the
technicalities of it, is that the legislature saw an opportunity to create at
least ten judgeships which, in my judgment, were not needed. The City of
Detroit at that time was shifting or probably the shift had pretty much been
completed from a predominantly white community to a predominantly black
The black citizens of the city, certainly rightfully, were very
anxious to be appropriately represented in the judiciary, and justice required
that there be more black judges in the courts in the City of Detroit, but the
creation of this new court system resulted in a creation of ten judgeships
which many of us believed then and still believe were not needed. They were all
filled at one shot at an election, and the fact that the people were elected
were black judges was a positive feature of the outcome. The negative feature
of the outcome is that nearly everyone agreed that the public was helpless to
make any kind of informed judgment about the qualifications of the many, many
candidates whose credentials they were asked to examine to fill these new
judgeships. But fill them they did at the polls, and the result was, when the
dust settled, the creation of a system, of course, which is now working,
working very well, it seems to me, in the City of Detroit, as well as can be
expected given the complexities of operating a court system in an area this
That experience threw me into the power politics milieu of the
City of Detroit. It enabled me to work very closely with the mayor of the City
in a series of meetings in his office and to express regularly what the Supreme
Court's interest was which was primarily to see that a court system was
constructed here which would have a reasonable opportunity to respond to the
mandates of the constitution and the statutes and would work efficiently and
fairly and which could be staffed with people of competence. The mayor was
interested in all that stuff, but he was also interested to see where the
strings of power would lie when it was all over, and I came to see firsthand at
those meetings, that the mayor is a brilliant politician who understands where
the power is, how to acquire it and how to keep it...to watch him utilize the
authority of his office was like watching Leonard Bernstein conduct the New
York Philharmonic. It was a rich experience and memorable.
There must have been some conflict with Coley, and with the
Killeen, the clerk, and that sort of thing.
Terrible conflict. Screaming and ranting and raving at those
meetings. Sam Turner was the Chairman of the Wayne County Board of
Commissioners at the time, and there was...I remember one ongoing tug of war
that had to do with who would pay for and run the Detroit House of Corrections
under the new system, and the mayor had very strong feelings about that and
expressed them most colorfully at meetings of the whole group of people. I
can't say that I watched the air turn color in front of me, but it seemed like
Well, everybody had a chance to do that on this recent ABC
That's right...but it was...the result, as it was, was the
establishment of the court system down here that works, and it might have been
done differently. It might have been done by somebody else in a more efficient
way, but maybe not. The point of it is, Tom Kavanagh used to say to us at the
conference when we were worrying about administrative matters, "For forms of
government, let fools contend. Whatever works, works", was the way he would
corrupt that literary figure. But it works here, and it was a rich experience
for me to have contributed to it administratively, and the only reason I think
it's useful to advert to it here, and I'm not addressing the details of it
because I don't think that's of any interest to our readers, is to point out
that the business of the Supreme Court having the constitutional responsibility
to superintend the judiciary is not just lingo.
It is, in the event, is translated into an enormously broad
spectrum of administrative activity. It means that the justices are not only
hearing arguments, deciding cases and writing opinions and in that way
developing the common law. It also means that they're involved in a broad range
of administrative and supervisory undertakings. I've adverted earlier to the
business of the rule making for all the courts and for some agencies, and the
business of responding to the governor, the legislature when they wish to have
advisory opinions. It also means that the Court is concerned with budgetary
It means the discipline of the bench and the bar is the
responsibility of the Court, and the procedural fashion in which justices
administered, from the biggest urban courts of the state down to the smallest
rural areas, are all responsibilities of the Supreme Court, and this was a
classic example of a justice being asked to hang up the robe for most of the
hours of the day for a year and to get involved in matters of municipal
finance, power politics of city vs. state, the distribution of tax funds, the
allocation of resources here, real estate problems, locating a court system,
designing court rooms. It was a rich experience for me. I can't say that I'd do
it all the same if I did it over, but I think it worked.
9. the Michigan Judicial Institute, the Longstreth case, and the
Colonial Dodge vs. Miller case. Ryan discusses the People vs. Pomeroy and
People vs. Fulcher cases before beginning to discuss the ousting of Justice
Dorothy Riley. (This discussion continues in the next section.
Was it not also your responsibility administratively to monitor
the judicial institute?
What am I talking about, the Michigan Judicial Institute?
Michigan Judicial Institute, that's right. That was really a
different function, as you say. It was also a responsibility. When I came to
the Court in 1975, I had enjoyed, loved is the verb, immensely my work as a
trial judge, and I had been doing a considerable amount of teaching, both in a
couple of law schools as an adjunct professor, and I had been very active on
the faculty of the National Judicial College in Nevada which is the national
forum for the continuing judicial education of men and women from the state
judiciary from every state in the union, world famous institute, and I was and
still am a member of that faculty, teaching evidence and criminal procedure and
criminal law, and I was satisfied from what I learned there that Michigan had a
terrible need for a first-class continuing judicial education program.
The quality of the performance of our judges was whatever it
was, but it could...it was inconsistent and uneven throughout the state, and
indeed, within one Circuit, my own, it was very uneven, so to make a long story
much shorted, with the enthusiastic support of the other justices, only one of
them was very, very tepid in support. He didn't stand in the way of what I was
trying to accomplish, he never cast a negative vote, but he never believed in
continuing judicial education. The others did, however, and supported it, so we
were able to create the Michigan Judicial Institute which came into existence
about 1978 and very largely because of the superb leadership of its executive
director who I hired. His name is Dennis Catlin who still runs the Institute.
It has become a nationally recognized...it is nationally recognized as a
first-class state judicial education program.
We started out with legislative funding of about
$300,000.00/year. That now has grown to $1.5 million/year of legislative
funding augmented by grants from the Kellogg Foundation and other major
institutions who have recognized the quality of the work being done. So I ran
that MJI, as we called it, almost all the ten years I was on the Court. I loved
that kind of work, and at the risk of some immodesty, I think I can report that
the reputation the Institute enjoys among the judges whom it trains is very,
very good as measured by their voluntary attendance...at the 103 days of
programming the Institute offers each year.
Needless to say, one judge does not attend that many sessions
because the sessions are offered in various areas of specialty, but we are one
of the few states, Michigan is, which has a full time continuing judicial
education program in which the attendance is voluntary. Most other states have
found to get the judges there, you have to require it to be done. We don't
here, and the attendance rate is about 76%.
Some of the programs are designed for staff people, too, are
Yes, we broadened it in later years to staff people, so that
was other work which made my time on the Court a delight.
How about some of the...we talked about the Poletown
dissent..how about some of the others that received less attention? One
interesting one that I wanted to ask you about was the Longstreth case where
the Court majority held that the social host, say at a wedding reception in
this case, one of whose guests is a minor, got too much to drink and that
person went out an had an accident, that the liability is sort of in a dram
shop theory would revert back to the host at the wedding reception. Didn't you
dissent on that, or what do you remember about that case?
I remember that it is the case...it was just as you described,
and the plaintiff had tried this new theory, gotten it to us...whereas,
historically in Michigan, because of the statute, if a saloon keeper sold
alcohol to a person who was visibly intoxicated, and the person went out and
injured somebody else in his car or otherwise, the saloon keeper could be held
liable. As you say, the Longstreth case attempted to extend this rationale to
I don't remember precisely the theory on which that was even
arguably credible because the dram shop statute applied explicitly to licensed
saloon keepers, but there was a theory and it was debatable. I was entirely
satisfied after the case was argued that this was probably a great idea. It was
probably an idea whose time had come given the carnage on the highways from
drunk driving, but there wasn't any authority for it in the statute, and the
statute was concerned with saloon keepers and it wasn't concerned with
Some of the members of the Court took the position that it was
just fair. It was very trendy by the way, you may remember in the 60's and 70's
for people to quote the late Chief Justice Earl Warren who many people think
was fine and wonderful man but not very long on legal scholarship, but Warren
was often quoted as having asked a lawyer who was arguing before the Supreme
Court one day, "Yes, I know what the law is, but is it fair?", and people who
quote that question quote it with great admiration, so that's some sort of
valid judicial reasoning. I remember one of the members of our Court who I will
not, at this point, name asking, "What difference does it make whether this
statute technically reaches the homeowner? Isn't it fair that it should apply
to them?" Well, it was one of the few occasions I kept my mouth shut, I think,
for a while, but I had in the back of my head this tension.
We had four kids who are pretty closely aligned in age, and I
remember we always had one or two of them in high school and every other year,
we were graduating one. I remember very well how great it could be if I could
go home and tell the boys who I think then were senior to junior in high
school, "Sorry, no graduation party in June in the backyard with the keg of
beer because of this new law we just made that would hold us liable if one of
the kids got too much to drink and went out and injured somebody". That would
have been terrific, except it wasn't available, in my judgment within the
statute, and so I dissented. Again, it was a dissent...I was doing a lot of
dissenting during my time on the Court, and the majority saw it differently,
and so we had gotten the case signed. I thought the decision was wrong, and I
still got to go home and tell my boys they couldn't have a graduation party
with beer at it.
Let's get to the spare tire case. Do you remember that one?
Not one of my finest hours on the Supreme Court.
That was the Colonial Dodge vs. Miller, right?
Yes. Colonial Dodge vs. Miller. I had been going around the
state giving speeches, I remember very well, about what I thought that the
unique mission of the Supreme Court was, and in that speech, I said, because I
felt it very seriously, that the Supreme Court had a very narrowly
circumscribed mission in terms of selecting the cases it should hear, that the
broad run-of-the-mill appeals should be handled in the Michigan Court of
Appeals because that's why the people created them, and the Supreme Court
should reserve its energy and its time and its authority for cases of genuine
juris prudential significant.
They shouldn't be correcting every error made in lower courts,
so having taken that high road, I was confronted one day with this Miller vs.
Colonial Dodge, Colonial Dodge vs. Miller. Here was a case of which a guy went
out and bought a car from Colonial Dodge down in the Detroit area, and it was
at a time in the early 80's, I think it was, when the tire manufacturers were
on strike around the country, and they weren't making enough tires.
The auto industry developed a policy, the Big Four then, that
they would not have any spare tires in the new cars so brother Miller, the
plaintiff, whoever he was, bought a station wagon, as I recall, from Colonial
Dodge, and the evidence as it developed included his testimony that the reason
he bought this brand new car was although he had a reasonably good second car
for his wife to go to work - I think she was a nurse and had to travel the
freeways from the northern suburbs to the downtown, City of Detroit area, and I
think it was the midnight shift or the afternoon shift, and he was fearful that
if their old car broke down, she would be marooned on a freeway and exposed to
all of the terror which was possible, particularly in light of the activity
which had been reported in the press about people on the freeway being
assaulted...so he bought the new car, got the new car home and discovered there
wasn't any spare tire in it and he hit the roof, and went back to Colonial
Dodge and said, "I just explained to you why I bought this new car.
Now if my wife breaks down on the freeway, she can't change a
tire, and she is really marooned. Take the car back". Colonial Dodge said, "No,
we're not taking the car back. You should have pointed that out before you took
the car". The guy said, "Never in the history of the western world has anybody
ever sold a new car without a spare tire", so that was the law suit that came
up to us. The first thing you do in the Supreme Court, of course, in all cases
is to examine them at the threshold to decide whether the Court will accept the
issue for appeal, and this was a case which since it was a simple breach of
contract case about a spare tire, it was obviously one that didn't fit the
speech I was giving, but I thought, here is a little guy who has really gotten
gypped by the dealership, so I argued forcefully that we take this little guy's
case, and we did take it.
The case was argued, and it was decided, and after all that
maneuvering around, it was decided, I think, in favor of the dealership, which
isn't the outcome I had in mind at all when I argued forcefully for the case
being taken by the Court. I wrote a dissent in which I said the little guy has
gotten the short end of the stick in this deal. A parenthetical aside is that I
didn't know or care who Colonial Dodge was or who Miller was, but in the
campaign that I had very recently conducted to keep my seat on the Supreme
Court, a fairly substantial contributor to the campaign committee was Hoot
McInerny who was an automobile dealer in the northeast part of the City of
Detroit, and he had generated, in turn, contributions from a lot of automobile
dealers to my campaign for which I was grateful.
It is always grateful to get contributions from sources other
than lawyers, a problem by itself, and he never asked me for any consideration
then or at any other time. After the case was over, I discovered I wrote this
fairly strongly worded dissent, coming down hard on this crooked automobile
dealer, Colonial Dodge and found out a few weeks later it was one of Hoot
McInerny's dealership, and while I've seen him from time to time since, I've
always thought the atmosphere was a little cool.
What about the...there's a little bit of interest, I think,
generally in the Supreme Court's attack on the problem of people who are
intoxicated getting into cars and whether they can be held responsible if they
pass out for drunk driving. Do you remember that one?
I'll never forget it. Pomeroy and Fulcher. In order to keep our
sanity on the Court, there were a few inside, one-liner expressions that the
justices would use when the tension was heavy, and you could always break the
tension by reference to brothers Pomeroy and Fulcher. They were two separate
cases, People vs. Pomeroy and People vs. Fulcher. These two fellows were
unrelated to one another, and the incidents were unrelated, but they were both
arrested for drunk driving, and they didn't think they should have been
convicted for drunk driving, and they separately appealed their cases to the
Supreme Court, but they got to our court about the same time, so we joined them
together for hearing.
I don't remember whose case was what facts, but one of them,
Pomeroy maybe, came out of a bar about 2:00 a.m. and he was plenty stiff, and
got into his car, and it was ice cold, mid-winter, turned the ignition on and
promptly plopped over with his forehead on the horn in the middle of the
steering wheel, and the horn is sounding, and the car is on, and there is a can
of beer between his legs, and he is asleep when the police officer arrived,
reached in, turned the ignition off, removed the can of beer, the keys and
arrested Pomeroy, if that's who it was, the drunk driver.
In the unrelated case, Fulcher, I guess it was, that fellow -
similar situation - had too much to drink, left the bar and drove a short
distance from the bar and as I recall, drove his car into a ditch. I think it
got into the ditch nose first as he slid off an icy highway, and it was in
gear, and he had fallen asleep, and the back wheels were spinning at the top of
the ditch. A cop came along and arrested him, so up they come with the argument
that they weren't driving, and so here we are, the seven of us, berobed
geniuses, sitting in the dias of the Michigan Supreme Court listening to these
arguments which had to be made by the lawyers somewhat tongue-in-cheek, this
issue of great juris prudential significant, whether Fulcher, with his head
depressing the horn ring and a can of beer between his legs, was driving,
because the ignition was on, and whether the other guy was driving sound asleep
with his car wheels spinning in a ditch.
We tried mightily to keep a straight face during those
arguments, and succeeded, I hope. The issue was of some significance, but it
wasn't enough that we should have been fooling with the case. It seemed to me
that when it was all over, I regretted taking the cases and thought the
Michigan Court of Appeals did just a fine job handling this thing.
Didn't the decision somehow turn on the distinction between an
operator and driver of a car?
Yes, it did. We were in the conference room...I recall
distinctly going around the table and the justices offering hypothetical
instances to try to decide what a driver and what an operator is. Chuck Levin
insisted that whenever possible, we look at the automobile no-fault statute. We
looked for definitions in that statute. I thought the whole discussion got out
of control. The upshot of it all was about what we deserved. There were only
six people on the Court at the time for reasons I don't remember but there was
a vacancy. We split 3:3 which meant that having struggled with who was a driver
and who was an operator and who was in the ditch and who was in the parking
lot, we didn't make any law at all.
There's one other thing I wanted to ask you about, Justice
Ryan, and that is your thoughts about the handling of the Dorothy Riley case in
1982 after she had been appointed, and her right to sit on the Court was
challenged by Frank Kelley and ultimately, she was removed.
(End of side 1, tape 4)
Well, it was the darkest time, the darkest hour of my time on
the Court easily. Justice Riley, now Chief Justice Riley, had been a candidate
for election to the Court and had lost, and returned to her seat on the
Michigan Court of Appeals. My brother, Blair Moody, in 1982, stood for
re-election to his seat and was re-elected in November, 1982. Governor Milliken
was the governor, but he had chosen not to run in that November, 1982, and
Governor-elect Blanchard had been designated by the people to take office on
January 1st. It was in that circumstance, Blair having been newly elected with
a 1-1/2 months left on his old term, died of a heart attack in Thanksgiving
10. Justice Ryan continues to discuss ousting of Justice Dorothy
Riley, who was appointed when Justice Blair Moody died. He then talks about
campaigning for his office and his decision to leave the Supreme Court in
And needless to say, we were deeply saddened by that sudden
death, and the Court was left terribly concerned about what to do about
opinions he was working on and cases in which he had indicated his tentative
vote, so we had plenty on our menu to be concerned about, and we were concerned
in the longer range with the fact that the Court was now reduced to six people.
Always the threat of 3:3 divisions and no decisions in important cases.
It seems to me that we sent a formal message to the governor,
either inquiring about his intention to fill the post or urging him to do it,
but that doesn't matter very much. Governor Milliken, in all events, after an
appropriate delay, filled Blair Moody's vacancy with the appointment of Dorothy
Riley. She came to the Court immediately with superb reputation as a judicial
scholar in the Court of Appeals, moved into chambers in the Lafayette Building
in Detroit, came to our conference and began to go to work. She was with us a
few weeks, perhaps even less, when a law suit was filed at the insistence of
Governor Blanchard and Attorney General Kelley challenging Governor Milliken's
The theory of the law suit was a bit complicated, and doesn't
matter for this history...suffice it to say that the theory was that because
Justice Moody's vacancy, because Justice Moody's term would not have expired
until the end of 1982, it was Governor Blanchard's seat to fill and not
Governor Milliken's. An interesting question, both factually and
constitutionally, and one which lawyers could reasonably disagree. When the law
suit was filed, it started out in the lower court and was immediately sent to
the Supreme Court, and took its place on the docket awaiting briefing. Dorothy
was participating with us in the decision of all the other cases when suddenly,
one of the Justices one day said he would like to take up the question of the
propriety of Dorothy sitting on cases in our Court when the legitimacy of her
appointment was being challenged, even though we hadn't reached it.
To my immense surprise and her shock, as she was sitting at the
table, this particular justice then said and tried to do it as gently as
possible, said he wondered if Dorothy would mind leaving the room while we
discussed her entitlement to sit on these unrelated cases. Things got a little
hot around the conference table. I certainly was of the opinion that you don't
disqualify a justice from discussing whether the justice has an entitlement to
sit. She certainly had a right to be in the room to listen to it, even if she
wasn't going to contribute to the conversation, which, by the way, she offered
to do. The majority of the seven of us, including her, the majority said no,
they wanted to talk about it in her absence. She left the room humiliated. I
knew her well enough to read that in her face, so after a lengthy discussion
that lasted more than one day, the majority of the Court, over my objection and
the objection of one or two others, decided that Dorothy would be disqualified
from participating in any cases thereafter until the propriety of the governor
appointing her had been resolved by our Court, and we weren't going to get
around to doing that for a couple months because of the briefing schedule.
Dorothy was deeply hurt and she was sure we were wrong, and I
was sure we were wrong, and we, with that stroke, went a long way toward
destroying the superb relations that the members of the Court had one to the
other over the whole of the years I was there. The briefing was accelerated,
the case was argued in the Court. It was a very high profile political case.
Former Chief Justice Thomas E. Brennan became interested in it as a citizen,
and he mounted sort of a quasi public relations campaign in the Lansing
community and in the Cooley Law School of which he was president, in which he
stood for the position that the Supreme Court had no authority to oust its
members under any circumstances. The people do that or the judicial tenure
commission. Former Chief Justice Brennan even filed some pleadings in our Court
and argued a motion..the court ruled against him, and out he went.
Ultimately, the case was argued, and it was decided and our
conference of six justices...at that time, Justice Fitzgerald was gone. Justice
Brickley was on the Court, and so a Court consisting of Justice Williams,
Justice Kavanagh, Justice Levin....
Brickley, Coleman and yourself.
...Coleman, Brickley and myself...was Coleman still there?
No, I'm wrong. By that time, it would have been...Boyle,
Let's take a minute. No, it wasn't Boyle. It was Williams,
Levin, Cavanagh, the second Kavanagh, Brickley and Ryan.
You're right. I'm sorry about that.
The majority of four, the two Kavanaghs, Levin and Williams
agreed that the appointment was invalid and that Justice Riley should be ousted
from the Court. Justice Brickley and I disagreed for what I always thought were
very compelling reasons as I indicated in my dissent. I wrote the dissent for
After the opinion was written and was circulated, the next hand
that we had lost, from my point of view, Dorothy had lost and Michigan had
lost, from my point of view...we were making bad constitutional law, but we
were making it. The next maneuver would be to enter an order which would
address this unique situation which had never been addressed in the history of
the state nor, to our knowledge and the research we did, in any other
circumstance in the United States.
It would be perfectly clear to me...perhaps I shouldn't say
perfectly clear...it seemed clear to me that if a Federal Court was
adjudicating lawfulness of a judicial appointment, that would be one thing, but
for the members of our Court to adjudicate the qualifications of a colleague to
sit was altogether inappropriate. In all events, the next move was an entry of
an order and to find a way in which to have the order carried out and obeyed,
given appropriate deference to the possibility of an Appeal to the United
States Supreme Court that she might make.
In the middle of this, did not Justice Levin suddenly waver, or
there was some...
You've jogged my memory, and you're right, and I'm mistaken.
The vote was not 4:2 at the first conference after the oral argument. The vote
was 3:3. We went around the table, and Justices Cavanagh, Michael, and
Kavanagh, Thomas, and Chief Justice Williams were satisfied that Blanchard and
Attorney General Kelley were right, Dorothy had to go. Justice Brickley and I
felt just the opposite, and Justice Levin did not take a position at the
conference that was very strong either way. He was unsure. It was unclear. He
thought this was an extraordinary thing.
I could see that he was struggling mightily with what he thought
was the right thing to do, and he said that in as much as he had not been
convinced by the plaintiff which was plaintiff's burden that the appointment
was unconstitutional, he was unable to say it was, which I remember him saying,
"leaves me on the side of holding against the Attorney General and in effect,
holding for Dorothy Riley". I thought that was just fine because the result was
that the plaintiff had lost, had not proved the governor's case, and Dorothy
remained on the Court which quite aside from my personal preference, I thought
squared with constitutional law. That was a Wednesday, as I remember. On Friday
about noon, Levin called a press conference up in the Supreme Court chambers in
Michigan, and to my utter amazement, he reversed his position. He said he had
done some more work, some more research, and I'm confident he did. He is a man
of unimpeachable integrity in my opinion, but whatever the driving forces were,
he saw it differently after a couple days, realized that there had been great
publicity for the result that the Court was going to permit her to remain on
the bench. Charlie reversed about noon on Friday two days after our initial
decision. That made it 4:2.
Dorothy was off the Court. You can imagine the pain that she was
suffering in this convoluted process. She had been shelled from the Court's
work within a few weeks after being appointed, denied the opportunity to
participate in unrelated cases, had no work to do, had no role to play in the
question of the determination of her own destiny and was buffeted by the winds
of this strange constitutional argument that was being made both ways, but she
had a decision which permitted her to retain her seat on the Court and two days
later, Levin changed his mind. She had to have been devastated, so as a result
of that, an order had to be entered, and the order was entered in a way which
was the crowning glory of my judgment, the mishandling of a terribly delicate
situation. I was teaching my class in evidence at the time at Cooley Law School
late in the afternoon a day or perhaps a week after the Levin switch. Jim
Brickley was in his chambers in the Supreme Court in Lansing.
I received a message from the switchboard in my classroom and
told to call the Chief Justice which I did immediately about 5:50, and he said,
as best I can remember, and I don't quote him...I'm paraphrasing it. He said,
"Jim, we've got the four votes here for this order on Dorothy's case. We're
about to enter it. We're over here in my chambers. I just thought we ought to
notify you about it". Well, I was floored because during my time on the Court,
there had never been a circumstance in which the Court had ever taken any
action except an emergency action of some kind in which, save in the presence
of the whole seven justices in conference, in the conference room, and I said,
I remember saying, "What's the rush. What do you mean you've got the four
votes. The Court is a court of, in this instance, six people". He said, "Well,
we've got the votes. There is no use prolonging this thing, so we're going to
enter the order. Do you want to be heard about it?" I said, "Certainly, I want
to be heard about it."
Needless to say, I was infuriated. I recessed the class and went
over to the Supreme Court which was only three blocks away, went into Mennen's
Chief Justice chambers and before I got there, I ran into Jim Brickley in the
hall who was coming out of his office. We compared notes. He had gotten the
same phone call 15 minutes earlier, and reacted about the way I did and
wondered how could anybody be talking about entering an order when the Court
wasn't in session. We went into the Chief Justice's office. It was not a
pleasant meeting. I was outraged at the fact, for the first time on my time on
the Court, I was not convinced that these men of good will who saw things
differently than I saw things, had come to their conclusion in this case
utterly without the influence of any extraneous political considerations. I
felt the question was so close and the precedent so non-existent to throw a
colleague off the Court, and a constitutional argument so tenuous that all
signals were the direction of resolving the doubt in favor of the governor's
It was perfectly clear to me...I shouldn't say perfectly clear,
but I was beset with a painful suspicion that we wouldn't be proud of what was
done here. Dorothy was in the Capitol that day. I can't remember why, but we
never saw her, of course, even though she was a Supreme Court Justice and on
the payroll, and in my judgment, perfectly entitled to participate in all the
work on the Court except this case, she was out at a motel in Grand Ledge where
she usually stayed...Dorothy doesn't drive, didn't then and doesn't now.
Doesn't have a driver's license. Had to be driven to Lansing by her husband or
her law clerk or somebody. Hal Hoag, a wonderful Court clerk, a man of great
judgement and diplomacy, was standing over at the corner of the room with his
hands behind his back awaiting instructions.
A form of order had been prepared, I think by Hal, at the Chief
Justice's direction. As the six of us stood there in no small amount of pain,
the Chief Justice signed the order, or caused the clerk to sign the order on
behalf of the majority of four, and then I remember saying that I wanted time
to write a dissent, both to the content of the order and to the manner in which
this was being handled. Brickley and I went over in the corner and conferred,
and I think he persuaded me that I was swimming upstream and not to personalize
this business. I think I followed that advise. The order was then handed to a
messenger. I've forgotten who it was. It may have been Hal Hoag himself.
I think it was.
Who was told...he was surely no messenger, but in that
instance, he took on the role of a messenger which must have been very painful
for him, and he took the order in an envelope and drove his automobile out to
the motel in Grand Ledge, I learned later, and handed it to Associate Justice
Riley who had no idea it was coming. She opened it, learned that she had been
ordered off the Supreme Court by her six colleagues, and I also learned later,
found herself not only in emotional isolation because of what had been done but
physically isolated. She had no car and no way to leave the motel. She called
to Detroit for some transportation, and she left Lansing and left the Court in
what I then thought and what I think now is the most inconsiderate and
ignominious and painful fashion.
It was not a very glorious chapter in the Court's history.
Not a very glorious chapter at all.
That concludes the Dorothy Riley part of it.
It does except the human dimension at the end of it is that
that was a very unsympathetic decision in terms of the public perception, and
the Court was criticized widely for what it did, and of course, that doesn't
matter. If the Court was right, it doesn't matter whether it is criticized, but
as everybody knows, in the next ensuing election, Dorothy Riley ran against our
friend, Thomas Giles Kavanagh, and although Dorothy did not advert to it
explicitly throughout the campaign, the theme the press used about that contest
was that she was going to knock off one of the justices that threw her off the
court. That was the handle on the story, and of course, that's the way it
Well, there were opportunities for this matter to be raised
when she went around, people asked her about this, the newspaper people
I just wanted to share one thought. I'm not totally sure it's
part of the history of the Supreme Court, but it is relevant in the sense that
it is part of my history on the Court, and that is the two state-wide elections
in which I was involved, 1976 and 1978 were horrendous experiences for me.
I was very, very uncomfortable in trying to conduct a state-wide
campaign for an office for which there are no issues of any significance, there
is no public interest of any kind. Statistically, a small minority of Michigan
citizens are interested, and a relatively small minority of the registered
voters even cast a ballot. Still, it is necessary to go around to Michigan's 83
counties and to campaign. I never did know how to campaign for a judicial
office except all out, flank speed. One of my personal shortcomings is
overdoing things a lot. That's an area I always over did it. It was necessary
to raise money, and the only people interested in giving money to a Supreme
Court Justice are lawyers and the candidate's friends although there are some
individuals, just out of respect for the process and the institution and the
candidate, will make contributions, but by and large, the money comes from
lawyers or it doesn't come from anybody.
There is this feeling I had, both in 1976 and 1978 when the
money was being raised, there is something beyond unsavory, really improper in
a sitting justice going to lawyers frontally or even indirectly through a
committee asking for financial contributions, unspoken and implicit in all of
it is that all of the justices, judges in Michigan know that the lawyers feel
that they have to make contributions to these candidacies. It's a kind of
gentile extortion. Lawyers in great numbers are afraid not to donate $100.00 to
the candidacy of a sitting judge or justice for fear that some day the justice
may hold it against that lawyer if he declines.
In addition to that, my appointment came from a Republican
governor, so I had the enthusiastic opposition of all of organized labor in the
State of Michigan. The rules of contributing money to political campaign are
different for labor unions than for corporations so it made the process of
running very, very difficult. Not only was it a terrible distraction from my
work because of the necessity to run around the State of Michigan for seven or
eight months to conduct this campaign, making speeches to service clubs, on
radio stations and political gatherings, partisan political gatherings in parks
all over the state. I found myself standing next to the partisan candidate for
Republican office or for Democratic office when they would let me in the all.
The candidates for governor, senator and legislator and congressman ahead of me
would make promises to the audience as to what they would do if elected, and I
would be called upon to speak. I wasn't able to make any promise of any kind as
to what I would do, except to say I would do my best, which would sound absurd
to an audience which just heard a United States Senator or Governor.
I found this terribly distasteful and a waste of the Court's
resources to the extent I was a resource in 1976 and 1978. I was terribly
troubled by the fundraising. It finally came crunch time in my career about my
tenth year on the Court. I was facing the prospect of a third state-wide
campaign in 1986 and I detested literally the idea of organizing committees,
going to lawyers, begging for money to be wasted on nonsensical television ads
that were designed to make me look attractive physically and to sound good,
because I could have nothing to say ethically to win votes, but that was the
process. The people in the State of Michigan seemed to want to go with that
process. I had looked up the statistics, and the statistics had shown that in
1978, only about 40% of the voters who were inside the voting booth bothered to
cast a ballot for anybody for the Supreme Court.
Was it that low?
60% of the people there were exhausted by the time they got
down to the judges, or the number is very close to that, so it was an exercise
in futility. I loved the Court, even the bad days, I loved the work on the
Court. I remember it fondly. I respected by colleagues despite these tough
cases we've talked about. I cherished the privilege of being involved as I was
in running the continuing judicial education program for Michigan's judges. I
loved the Court as an institution and wanted to stay there, but I simply could
not bring myself to look forward with much enthusiasm to a third state-wide
It was perfectly clear to me that I had written enough on the
Court that the labor movement and the plaintiffs, Bar Association generally in
the state were laying for me. I felt I could probably win another election
because of the maniac fashion of which I always approached judicial elections,
but it was going to be a tax on the Court and on my family and on my own
self-respect to beg money again from lawyers who very often didn't want to
donate it, so despite the fact that I loved the Court, I began to think about
leaving. I had been in the judiciary for about 23 years, and I did something on
the spur of the moment. I didn't have any contacts in the political parties of
Michigan. I think I had only met Governor Milliken once before he appointed me.
I saw the newspapers in January of 1985 that a former member of
the Michigan Supreme Court by the name of George Edwards was retiring from the
United States Court of Appeals in Cincinnati, and so I wrote a letter to the
President of the United States. "Dear President Reagan: My name is Jim Ryan",
etc., and I enclosed my resume and asked to be considered for appointment to
the United States Court of Appeal for the Sixth Circuit. I also wrote a letter
to Attorney General Meese. I never felt sillier in my whole life since I had no
political clout and no pull and nobody else knew I was doing this except my
secretary, Fran Orzel, so I sent the two letters off. I decided the next day
that that was the height of silliness, that I'd better get ready for the
re-election campaign to be conducted the next year, 1986. These letters went
off in late January or early February, and the rest is history.
I was having dinner one night in March when I received a
telephone call from the Justice Department which our youngest daughter, then 18
years old answered, said "He is having his dinner. Could you call back?", and
she hung up. She laughs about that now. I said, "Who was that?", and she said,
"I don't know. Some judge or something". I said, "Kate, who was it, honey?" She
said, "A guy from the Justice Department". I said, "The Justice Department.
What did you tell them". She said, "I told them you were having your dinner, to
call back". Well, I damned near died. It was a Friday night.
Well, the young man did call back later, and that was the
beginning of the end of my career on the Michigan Supreme Court and resulted in
President Reagan's appointment to this court in October of that year in 1985,
and I left the Court in December, 1985, the Supreme Court, with a wonderfully
warm and really a loving dinner party which was hosted by my friend and
philosophical adversary, Chuck Levin at his residence in Detroit. All the
members of the Court were present. It was an elegant affair, and it was an
evening of warmth and affection which was really typical of the kind of Court
that we had nearly always for ten years, and I left the Supreme Court the last
day of December with genuinely ambivalent feelings about this turn in my
I knew I'd never be as happy again...thought I'd never be as
happy again in the work I would do as I was for those ten years and while I do
love the work I'm doing now, and I find it an enormous intellectual challenge
every day, I must say that those ten years on the Michigan Supreme Court were
the happiest years of my professional career.
This is the end of the ex-Justice Ryan tapes on November 13,
14, and today, the 15th.