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Interview with OTIS M. SMITH
Contents
Justice Otis M. Smith talks about his entrance into politics and the Supreme Court, his family history and growing up in Memphis, Tennessee, working multiple jobs to save money to go to college, and enlisting in the armed forces in 1942. He then discusses entering law school and his ambition to succeed from a young age.
Mr. Lane:
This is another in the oral history tapes sponsored by Michigan
Supreme Court Historical Society, and this one focuses on the Supreme Court
career of Otis M. Smith who served from 1961 through 1966. Is that correct?
Justice Smith:
That's correct.
Mr. Lane:
This is Roger Lane representing the Historical Society. We're
sitting on October 23, 1990 in Justice Smith's office in the First National
Building in Detroit. In order to get started, let's focus for a moment on when
it was in your career as a young lawyer or perhaps after you had served a good
deal of time in government, when you first began to be aware of the probability
or possibility of service on the Supreme Court. Was this sort of a childhood
ambition or did it come much later?
Justice Smith:
Well, no way in my wildest dreams could I ever have imagined
that I would sit on the Supreme Court. I think, to put is quickly in
perspective, I started practice in Flint about the first of January, 1951, and
I was in general practice until the middle of 1957 when Governor Williams
appointed me as chairman of the Michigan Public Service Commission.
Mr. Lane:
Was that your first government position?
Justice Smith:
That was my first state position. I had been an Assistant
Prosecutor in Flint in 1954 for just about 1/2 year. It was something that I
had done. I was a public administrator for the county by appointment of the
Attorney General of the state in 1955, 1956 and 1957 until I came into Lansing,
but I have to tell you that I never sought public office in Lansing or let me
put it this way - everything that I sought, I lost. The ones that I did not
seek, somehow they came to me, so...
Mr. Lane:
Were you personally acquainted with Governor Williams?
Justice Smith:
Oh, yes. I came into politics really because of Williams and
became of Sir Thomas Moore. In law school, I became enamored of Sir Thomas Moore,
the law chancellor of England in the days of Henry VIII, the fellow who was
beheaded because he would not pervert the law towards his king's ends, so he
was beheaded and I guess I was tremendously impressed, not only with that kind
of courage, but with the language that he used that was to be significant
throughout my public life. That was before he was beheaded. He said something
like this, "I remain the king's good servant but God's first", and I got the
Hoben's print of the painting made by Hoben, the Dutch painter of Thomas Moore
when I was in law school, and brought it to Flint with me where I made my home,
and had it framed, and I had the printer in Flint insert those words - "The
king's good servant but God's first" to remind me that I had a higher
obligation as a lawyer.
Mr. Lane:
You know what this suggests is that something was imbedded in
your mind very early in your life, perhaps through the church, through the
precept of your parents, that led you to appreciate that concept, that
attitude. How do you explain that?
Justice Smith:
Well, I was brought up in a very religious family, but I cannot
say that I was religious, and I guess the part of that remark from Thomas Moore
about "God's first" was certainly applicable to me off and on in my life, but
I'm one of those people whom the epic poem describes best as "the hound of
heaven is always looking for your soul", and I always seem to be resistant, but
I say that and say that I'm not really...I'm basically religious, but I'm not
an institutional church person as I perhaps ought to be, but I was just struck
with the idea that Thomas Moore made that there were several authorities to whom
he was responsible and to whom he had loyalties, in this case, the king, who
was the embodiment of the government. I always wanted to keep in mind that I
had this obligation to law, but I also had an obligation to a higher law, one
of morals, which would go above law, and that I had...not in a sectarian sense
or secular sense of following some rule of some church, but that I not only had
to satisfy the requirements of law, but I had to satisfy the law of
conscience.
Mr. Lane:
A moment ago...you were talking just before we turned the tape
on...you mentioned your mother and a saying that she often repeated that had,
to me, religious overtones.
Justice Smith:
Oh, yes. Well, my mother was always quoting King James version
of the Bible throughout her life until she passed on in 1979 at age 87, and of
course, my father, having died very early in my life, my brother and I, at
least, we knew the Bible without reading it because my Mother Eva would
certainly quote it to us. You mentioned this thing about not being able really
to be hedonist about things and enjoy a lot of fine clothes and cars and things
of that kind, because even though I think I told you I had the opportunity to
drive a Cadillac, I never drove one while I was at General Motors because I
couldn't bring myself to the idea of consuming so conspicuously, and I always
sort of figured that what the Bible said that my mother quoted had a lot of
truth in it, "better to mortify the flesh to resolve the spirit", and I thought
I was doing that.
Mr. Lane:
As you look back, did she have enormous influence in what they
sometimes call "the formative years"? Did she leave her imprint very
pronounceably on your personality?
Justice Smith:
No question about it. I say that there were several significant
people in my life, one who was my mother. My father died to early to be of any
impact. My scoutmaster, and my brother who is alive, who is three years older
than I am and lives in Washington.
Mr. Lane:
Jay Hamilton?
Justice Smith:
Yes, Jay Hamilton, my brother.
Mr. Lane:
What did you call him, Ham?
Justice Smith:
Well, I don't...he was christened John, but he didn't like
being John Smith, so he changed his name to Jay Hamilton, but that's something
he took himself as a name.
Mr. Lane:
If I may interrupt...there's is something that that brings back
to mind. Do you recall...now, you lived in very, very harsh circumstances from
an economic standpoint as I recall when you were a small boy, in Memphis, was
it?
Justice Smith:
Yes.
Mr. Lane:
One of the tales I remember...
Justice Smith:
Memphis, Tennessee, not Memphis, Michigan. There is a Memphis,
Michigan, as you know, over near Richmond...
Mr. Lane:
Alvey Kaufman...remember Alvey?
Justice Smith:
Yes.
Mr. Lane:
Worked for the Detroit Times, no longer with us. One time not
long after you had come to Lansing, recited in an article that you and your
brother at some early stage in your life had to alternate going to school
because there was one suit of clothes that you had to share or something?
Justice Smith:
We did alternate in high school a couple years. I was in and he
was out and vice versa...
Mr. Lane:
But was it because you were so strapped?
Justice Smith:
Yes. There is nothing especially heroic about it. It is just a
fact that between 1930 and 1940, we lived very close to the edge of starvation,
I mean, literally. There was no Social Security. It kicked in about 1935, and
nobody had the required number of quotas, and there was no thing like ADC and
stuff like that, and I think we were probably too proud to have accepted it had
it been available, but the three of us, my brother, my mother and myself, we
just had to get along the best way we knew how for those ten years.
Mr. Lane:
Did you eat a lot of beans, baked beans and stuff like
that?
Justice Smith:
Ate a lot of cornmeal mush which we'd get for ten cents a bag
for five pounds and boy, that would fill up the void in your stomach, and I
remember going to school, even high school, many times without any food at all,
didn't have anything in the house, no breakfast. We'd go through the morning
and work in the cafeteria at noon. The rules were that the cafeteria workers
couldn't eat until everybody else had eaten, and you'd have what was left over.
So, I'd have usually watery spaghetti, but it just reminds you. You can do a
lot of stuff.
Mr. Lane:
Did it affect your physical well-being? As you look back, do
you point to some infirmity in your development physically that resulted from
this? Or was it just tough times?
Justice Smith:
Just tough, yes. You know, we went to the Wonder Bread Bakery
and got day-old bread for half price and stuff like that.
Mr. Lane:
Does this influence your thoughts about the common nowadays
dialogue with respect to poverty where there are arbitrary limits that must
seem to you like you would have been floating on air if you would have had the
kind of income that now classifies you as a poverty victim.
Justice Smith:
Yes, but I think it's a relative thing, though, you know. I
have thought a lot about that because one tends to be too subjective in judging
things. What we endured in the 30's in the depression, you know about
this...everybody was having a hard time, pretty much, and so poverty was a
relative thing, so there were people who had something to eat but nothing else,
and then there were people like me who used to go by the homes of kinfolk who
had something to eat, and you'd go over there and make irregular calls and say,
"How are you getting along?" I had an Aunt Laura, who used to, her husband
worked at a meat market, and so they always had plenty of food. They lived
almost as poorly as we did except that they had food, you know. They had a
terrible looking house, and had a house full of kids, but they always had food.
I'd go by there and inquire about the health of my aunt Laura, her husband, and
my cousins 1, 2, 3, 4, 5, and 6. My aunt Laura was on to me. She said, "Boy,
you look hungry. Sit down and have some food", and I'd say, "Well, I just came
by to say 'Hello'". She said, "Well, sit down and eat anyway". Oh, I was most
appreciative of that. I suspect a lot of people had to do that.
Mr. Lane:
You know, my wife's father was a butcher, in the...near the
starch works, over in Argo, Illinois, and she recalls people coming in asking
for dog bones, knowing full well that these people were desperate to get
something to put in the pot, and to get some nourishment out of it and some
flavor.
Justice Smith:
Oh, yes.
Mr. Lane:
Anyway, along this line, I also remember, it seems to me,
Justice Smith, that when you got to the appropriate place in your schooling,
you won a scholarship. Was it to Morehouse, and you couldn't...?
Justice Smith:
That's true. I graduated from high school, oh, boy, following
in the footsteps of my brother who had been such an excellent student, and had
been what the kids used to call a BMOC - Big Man On Campus...I was the class
president, editor of the newspaper, editor of the class annual, member of the
debating team, letter man in football, etc. When I got out of high school in
1939, I was offered a scholarship to Morehouse College. It was tuition
scholarship only, and I probably would have gone off to Morehouse and become
part of that little legend down there had it not been for the fact that my
brother, who had a similar scholarship two years early to...
Justice Smith:
I was saying that I probably would have gone off to Morehouse,
but my brother had a similar scholarship, tuition scholarship only to Tuskegee
two years before, and he went down with about all the money the family could
give him to augment the scholarship, and he had a rough time, that year of
1937-38, that he had to cut his hours almost in half to work just to survive,
and I thought, "Well, rather than go off and be subjected to that additional
burden, what I'll do is just work a few years to save money to go to school".
That's what I did. I got a job in Nashville at the state capitol.
Mr. Lane:
And Morehouse was in Atlanta?
Justice Smith:
Atlanta, and I was in Memphis.
Mr. Lane:
You were in Memphis, but you went, though, to Nashville.
Justice Smith:
To Nashville to work as a janitor, messenger in the state
capitol. I did that for a couple of years to save money, lived very
conservatively, I guess you'd call it. I used to do all kinds of things to save
money. One of them...I'm sure that somebody has done this crazy thing
before...you say, "Well, what's the cheapest I can get out with and still get
the nutrients?", and I figured that if I bought a quart of milk and a loaf of
bread and a head of lettuce every day, and split it three ways, 1/3 for
breakfast, 1/3 for lunch and 1/3 for dinner, I can get off the cheapest. I had
tried everything I knew how just to be able to save money to go to school, and
so I did that for, I don't know, several weeks but it got to be awfully
oppressive, so I would do that occasionally rather than for a long time.
Mr. Lane:
Where was your shelter? What was the...?
Justice Smith:
I stayed in a YMCA.
Mr. Lane:
I see.
Justice Smith:
In Nashville, and I also had a room with a family, a minister
and his family for part of that time.
Mr. Lane:
In those days, did you have your sights pretty firmly set on
"someday, I want to be a lawyer"?
Justice Smith:
No, I wanted to be a journalist. I wanted to be what you are. I
wanted to be a journalist. See, I was in the newspaper business in high school,
and when I got out of high school, that interim between high school and the
time I was able to go to college a couple year later, I volunteered to work for
the local Black weekly, something called the National Globe Independent. I did
a lot of free work for them because they couldn't afford to pay anybody extra,
so I just free-lanced for free.
Mr. Lane:
Was that useful experience?
Justice Smith:
Oh, yes. I got books on how to write, you know, and I got a
camera to be able to take pictures to go along with the writing, and I used to
give myself tests on powers of observance, you know, walk around the block; try
to notice everything; come back and write it down, and then go back and check
with what was there...
Mr. Lane:
What got you into this intensely focused kind of activity? This
wasn't characteristic of the fellows that you visited with, was it?
Justice Smith:
A lot of them did, you know. People don't really understand
that part of the African, southern culture of my generation and before. It had
a peculiar focus. Peculiar is not the word for it, but it was unusual, I think,
for the times in that it really had boundless optimism in what could be done if
you were really highly qualified. Mom used to say that you had to be twice as
good as the white person to get the same job. We didn't know realistically as
kids what lay ahead, but we just thought we ought to be good in whatever we
did, and we were encouraged by wonderful teachers, and we were supported
by...
Mr. Lane:
You mentioned the scout master. Did he have something to do
with it?
Justice Smith:
Oh, boy! Charles Chapman, Troup 107, St. Stevens Baptist
Church, Memphis, Tennessee. Wonderful, wonderful man who had a great troop and
he inculcated all kinds of values. He was a tremendous man. I say very quickly
that I had the happy occasion on his 93rd birthday, about a couple of years ago
- he is now dead - to go back to Memphis and along with Kroger, the big food
retailer on whose board I serve, and I have for the last seven years, set up a
camping fund in his memory.
Mr. Lane:
That must have been a delight.
Justice Smith:
Yes, because I remained in contact with him off and on for the
past 50 odd years, 55 years, I guess. He was a big factor because the scouting
movement and the way he portrayed it, the way he ran his troop, and what he
expected of the boys, and how he was able to communicate with the boys the idea
of character and patriotism...
Mr. Lane:
And hard work, I bet...
Justice Smith:
And hard work, oh, yes...
Mr. Lane:
And self-discipline, I suppose.
Justice Smith:
There were a lot of people around me...if you look at a lot of
those people who came out of that milieu, they may not all have been as lucky
as I was in terms of opportunities, but they certainly had a lot on the
ball.
Mr. Lane:
This is a...I'm trying to prepare an index to the tape...that's
what this scribbling is every so many minutes, so that somebody, when they are
interested and want to go back, they can, without looking at the whole thing,
they can find their place. Now then, you were not able to finish school right
away. The war came along, isn't that right?
Justice Smith:
I did save up enough money to enter Fisk University in the fall
of 1941.
Mr. Lane:
Was that in Nashville?
Justice Smith:
That's in Nashville. Fine little Liberal Arts school, was at
that time, really high quality. Very small student body, and I went there. I
was still in the depression, Roger. I got to remember this for you, because
this was an experience that haunted me for years. In order to be able to
survive just that one year in Fisk, I had four jobs. I was janitor of the
gymnasium, and I was secretary to the coach/athletic director who had me
writing to all the coaches and A.D.'s around to set up games for his basketball
and football games, and I read to a blind student, and I waited on tables off
campus at a restaurant for my meals, and then the coach was kind enough to give
me a cot in the basement of the gymnasium which was built, as I remember, in
1889, and it was, of course, in 1941 and 1942. It was a fairly old building.
Well, anyway, I got this cot outfitted, and I had gone to an old moving company
and bought a large show-business type one drawer trunk and put everything I
owned in that trunk, and went down to the basement of the gymnasium to spend my
year. I could not afford to stay in the dormitory. I just didn't have that kind
of money. Well, anyway, I'm down in the basement of the gymnasium for the first
couple of weeks, the great big two-inch roaches and the rats would get up in
bed with me. I remember waking up in the middle of the night with a rat on my
chest with his tail agitating my nose, and I was terrified. I think for 15 to
20 years after that, I would wake up almost in a start just remember that rat
who was on my chest. I flung the covers back and it hit the floor and went
about, but it was terrifying. After a couple, three weeks, the animals learned
that there was a human there, and I guess they didn't like my smell, and they
didn't bother me. The only animals I had any troubles with after that were the
students, the guys...it was a men's gymnasium. I guess the girls used it
occasionally, but the guys would use it mostly, and down there, they had all
the weight lifting equipment and other things, and they would flop on my cot
sometimes, but that's the only people I had to contend with.
Mr. Lane:
These were very hard, grinding times. Did you feel...you
mentioned you did four things to try to keep body and soul together while you
were going to school...did you feel that you were oppressed or that you were
being unfairly dealt with by providence or that you were some how a lot worse
off? Were you conscious of that, than you neighbors, the fellows who were able
to have cars and or course, there wasn't much of that?
Justice Smith:
There wasn't much of that. I don't remember that. I
probably...I didn't feel personally put upon. Let me put it that way. I did
feel very strongly about a system that denied all of us first right of
citizenship, and I became interested in issues during the two years that I was
between high school and college when I was working. I met a lot of people who
were...
Mr. Lane:
That would be 1939 to 1941?
Justice Smith:
Yes, 1939 to 1941, who were busy trying to do something about
it, and I joined up with the NAACP and I did a lot of work in that and other
organizations in the city and the region trying to outlaw lynchings and outlaw
poll taxes as a prerequisite for voting which were the two main items on the
agenda, the kinds of things that we talk about: voting rights acts and things
of that kind that happened in 1964 and 1965. Nobody even thought that could
happen in their lifetime.
Mr. Lane:
Do you remember when you cast your first vote?
Justice Smith:
Oh, yes.
Mr. Lane:
When? Did you have to pay a tax to do it or was this beyond
that time?
Justice Smith:
Let's see. No, I didn't have to pay a tax. I didn't vote down
there because, you see, I went into the service when I was 20 years old, before
I was eligible to vote, and I went into the Reserves in Philadelphia where I
had gone from Fisk, gone to work for the summer but decided to stay for the
year to acquire some skills so that when I went in the Army, I wouldn't be
assigned a truck driving or Cooks and Bakers School. I wanted to go in the Army
with a skill. I thought that might save me from the drudgery of being a cook or
a baker or a truck driver.
Mr. Lane:
You know what my first classification was as a draftee?
Justice Smith:
What?
Mr. Lane:
Ammunition handler. You beat me.
Justice Smith:
Well, when I was a kid, I used to make radios, little battery
sets, and I used to repair radios. I had a kind of a skill that I acquired
somehow, mostly out of interest and reading a lot of stuff, and tinkering
around with it, and so I wanted to be in radio in the Signal Corp, so I
enlisted in the Signal Corp, listed Reserve, and I went to school myself there
in Philadelphia and got a course in radio telegraphy, and I got to be a pretty
fair radio man, even before I went into the service.
Mr. Lane:
Did I remember somewhere that you served in the 477th
Bombardment Group?
Justice Smith:
Yes.
Mr. Lane:
How did that come about? You started in Signal Corp...?
Justice Smith:
Started as Signal Corp, and I was in Reserve from October 1,
1942 until I think it was May 18th or May 23rd...I have forgotten which date,
in 1943. At the bend of the Reserve, I was allowed to work, and this was a year
after I was at Fisk, 1942-43, and when I went into active duty at Fort Meade,
Maryland, I was immediately transferred from the Signal Corp Reserve. I was
transferred to the Air Force and so I was sent to Torrence, Utah for basic
training and then back to Scottfield, Illinois for radio training, Air Force
style, and I became a radio AAF, radio operator, MOS... military occupational
specialty classification 756, and that's what I was in the 477th for a good
long time until I got tired of that, and I was doing a kind of double duty. The
Public Relations officer of the base at Godman Field, Kentucky, just next to
Fort Knox, where the 477th was training...
Mr. Lane:
Godman? G-O-D-M-A-N?
Justice Smith:
Godman Field...Godman Field, Kentucky. That's where I became
editor of the camp newspaper, the Godman Field Beacon, and so I just asked to
be transferred from radio from the squadron to the base headquarters and I then
became a public relation specialist as a sergeant and I also ran the newspaper
as part of that assignment.
Mr. Lane:
Wasn't the 477th the outfit that Coleman Young served in,
Clifton Wharton and...?
Justice Smith:
I don't think Cliff was in, but William G. Coleman, Jr. who was
Secretary of Transportation in the Ford years and a lot of rather prominent
gentleman of color who were in the 477th, fellows around Detroit here, Kermit
Baller, who is a lawyer here, and a lot of other people...Elmer Kennedy, who is
Assistant Director of the City Engineering Department, was a flyer in the
477th. He was a successor to the 332nd fighting group which was the original
Tuskegee airmen group that went overseas in combat, and the 477th was a B-25
medium bomber group, really a really small bomb, but they called it medium at
that time, just medium at that time is not what medium is now. The biggest
thing we had then would be 17's, 24's, and they would be tiny compared to the
transit bombers they have today.
Mr. Lane:
Then when did you...you never did get overseas in your
Army...?
Justice Smith:
No, the 477th never got overseas.
Mr. Lane:
Then what happened? What was the next step in your...?
Justice Smith:
Well, one thing that happened in the army had a lot to do with
what happened to me later. When I graduated from radio school in Scottfield,
Illinois, and in the middle of the year in 1943, because I'd had prior training
and because I was fairly diligent, I came out of radio school #1 in my class.
There were about 400 soldiers from all over the country and all over the world,
for that matter, included three French who were there. I was #1 in my class,
made a 100 perfect score on the final examination, never did that before, and
never did it since. That was to become significant later on. I still wanted to
be a journalist, and so I got out of the service in 1946, and applied to the
William Allen White School of Journalism at Kansas University, I think they
call it, in Lawrence, and what I thought was the School of Journalism at the
University of Michigan, but it turned out to be a department of journalism
rather than a school, and also the College of Journalism at Syracuse. I really
abandoned Michigan because I thought, well, if they just have a department as
part of Liberal Arts Department, they don't really think much of journalism at
Michigan, so I want to go someplace else. I probably would have gone to Kansas
because I had great admiration for William Allen White, the sage of
Emporia.
Mr. Lane:
Was he still active at that time?
Justice Smith:
I think he was, yes. His son certainly was in Washington as a
Bureau Chief, I think, but I was really impressed with his wisdom and the way
he approached journalism, and so I wanted to go where he was, and the school
was named for him in Kansas. But then I read in the paper that they had some
racial trouble out in Lawrence, and I said, "No, no, no. I don't want to go
there", so I went to Syracuse instead. While at Syracuse that one year, adding
that on to my one year at Fisk, 1941-42, my brother is beckoning me from
Washington, D.C. where he now lives with his small family, and he said, "Come
down. Let's get together again", because we'd always planned to do that. So, I
inquired of the various schools in Washington, D.C. and the Catholic University
of American in Washington had a program for admitting returned veterans with
good, with good academic background, B or better, after only two years of
pre-law undergraduate training. Of course, at that time, when I was in
Syracuse, that was 1946-7, I was 25 or 26 years old. I'm getting worried about
getting to be an old man before I get into anything, so I felt if I could
accelerate the process, then I will go immediately into law. Now, how did I
decide to become a lawyer? That was the turning point. Right at Syracuse. I
still wanted to be a journalist because I was enrolled in the School of
Journalism. Quite frankly, I surveyed the journalism situation among the great
color race of the United States and decided that unless you owned a newspaper
as a publisher, then writing was highly unremunerative, and that I probably
couldn't make a decent living out of it, and I thought, "Well, let me see how I
stack up with law", and I had a little bit of a push from my brother who
somehow, for no particular reason, although he just thought I might be a good
lawyer. I don't know why. I don't think he remembers why, but he just thought.
I think he was just tossing out things that I might have ambition for, and of
course, when he mentioned law, I was at first negative about it. I went to the
Veterans Counseling Center at Syracuse, got a battery of test that lasted off
and on for what would amount to almost a week, certainly five full days, and
they were angled towards analyzing my interests and skills towards the
classification called "Author, Journalist, Lawyer", and it turned out that I
had some skills and some considerable interest in that work, and I decided then
to try the law school. I was able to get in the Catholic University Law School
out of that program, which I understand a number of schools had two or three
years without having the requirement of the four year undergraduate degree of
admission to law school, which I think is universal now, but which was not back
in those days, so I got in the Catholic University Law School.
Mr. Lane:
Is that where scoring 100 on the Signal Corp radio test came
in?
Justice Smith:
You're right on target, Roger. You're right on target, because
the Admissions Committee, although I satisfied the formal requirements, was not
that enthusiastic because they had a lot of very bright people in that class,
people with Baccalaureate degrees and some with Masters degrees, and lads who
had been in seminaries and had excellent training, and they weren't too much
persuaded, so I kept writing the Admissions Committee and finally, I was
admitted. I was told by a young law professor at Catholic University, a fellow
by the name of Richard J. Blanchard, who had been an officer in the Navy, and
he was just returned from the service as I was, and he spotted that particular
thing, of being #1 in your class in an Army training school, and he told me
himself, that he had a tough job of convincing the other two members of the
Admission Committee, but he was able to convince them based upon his argument
that anybody who could eager-beaver his way around 400 other soldiers could
probably study law successfully, and that's how I got in.
Mr. Lane:
Did you do well in law school?
Justice Smith:
Yes, I did pretty well. Yes, I was a member of the championship
Moot Court team, won a gold key and dictionary for that. I was on the Law
Review. I was co-author of the leading article in the Law Review with two other
law students. I was told that I was #11 in my class of about 50 some odd
lawyers.
Mr. Lane:
By then, did you begin to develop a focus for..."By God, I'm
going to be a judge someday"?
Justice Smith:
No, no. That's a funny thing. When I was a high school class
president, I wanted to be a United States Senator. Well, all such foolish
notions had gone out of my mind.
Mr. Lane:
No, no. Excuse me, sir. That's significant, it is not? You, at
that stage, when you were 17 or 18 years old, you were thinking not just in a
total dream world, but you were thinking, "Well, by golly, maybe if I do things
right and work hard enough and get a lucky break or two, maybe I could make the
United States Senate". Was this about the way it went?
Justice Smith:
Well, you know, I think I was born in a dream world, because I
was thinking about that, and it came to me on what they call "Class Day"...as a
senior in high school, when you declare what your ambition is, and you go
around wearing the clothes or whatever that indicates what your ambition is,
and with some people, it was kind of a traditional day at that school anyway,
and I got the idea from there, having been junior class president and senior
class president, that I might be headed for elective office. Now, I'm living in
Memphis, Tennessee. You know, I've got no realistic chance of becoming senator
there, although I think that in my era, most of us thought of going north.
Mr. Lane:
That was Kenneth McKellar's..?
Justice Smith:
You're right, K. McKellar. But anyway, I asked my high school
principal, who was a man of great learning, great wisdom, Harvard Divinity
School graduate among other things and had been in World War I...
Mr. Lane:
This was a high school teacher?
Justice Smith:
Yes, he was principal.
Mr. Lane:
And he was a graduate of Harvard Divinity School, you said?
Justice Smith:
Yes. He was a pastor of the church as well as the
principal.
Mr. Lane:
What kind of a school was this?
Justice Smith:
This was a public school...Booker T. Washington High
School.
Mr. Lane:
Must have been a heck of a public school.
Justice Smith:
Well, it was in more ways than one. It was...had severe
problems overcrowding. I can tell you of personal knowledge that separate but
equal did not work because our school had...I think I remember the figure...42
teachers and 2,100 or 2,200 students, so you can tell...we sat two in a seat in
high school in some classes because we just didn't have the teachers, but they
were dedicated and worked you awfully hard. Of course, one of the things about
the southern culture is that it is authoritarian, essentially, it used to be.
They didn't book any kind of a disturbance in high school. You obeyed the
teacher, and if the teacher couldn't handle you, the principal would certainly
intervene, and then the principal could get physical and would, if necessary,
on rare occasion, but there were only a handful of detractors in class and in
the school, I mean. They handled that pretty well. But anyway, I asked the
principal one day, on the steps. I said, "Professor, let me ask you a
question", and this is towards the ambition, and I said, "Do you think I could
become President?", and he said, "Son, president of what?", and I said,
"President of the United States". He mumbled something. He went away just
shaking his head, "This boy is crazy". I didn't ask if I could be Senator. I
asked if I could be President, so I must have been hallucinating a little
bit.
Mr. Lane:
You know, possibly why I bear down so much on this, is I was in
college with a young fellow who unfortunately had heart disease and died when I
was in the Army. He was 25 or so. This fellow had his sights set on the United
States Supreme Court, and as I remember this fellow, just a brilliant man, and
you could imagine -here is a fellow that's handicapped very severely
physically. He can't go out and kick a football around. What's he do? He's
reading, he's using his head, he's using what he's got. And this fellow, I
always felt, even to this day, I entertain the idea seriously that this guy
could have made it, and that's why I think I'm so interested in asking so
insistently about these things of what, where you can go, because my God, you
went somewhere, didn't you?
Justice Smith:
Yes, I always wanted to be somebody. That's what we used to say
down south. The distinction between being good for nothing on the one hand and
being somebody and "being somebody" was kind of a generalization applied to
people who had a college degree and college training and who were school
teachers, lawyers, doctors, dentists...
Mr. Lane:
Any ministers?
Justice Smith:
We didn't...I don't think...the ministry was sort of...I'm sure
that was some body, but I don't think it was...it was something...there, you
had to have the call, whatever that meant. It also included in our little area
there...if you had a significant job in the post office, because a lot of
people of color who had college degrees wound up working in the post office.
That's not the modern post office. That's the old post office where they really
used to give service, so it was to be able to be a railway mail clerk, for
example, was really an accomplishment, and that was "being somebody".
Mr. Lane:
That was a job that at one time, was remunerative, and had some
romance to it.
Justice Smith:
Oh, yes. As a matter of fact, one of the best high school
teachers I ever knew, a fellow by the name of Marvin Tarpley, left teaching
high school to become a railway mail clerk, and so it was part of being
somebody. That's what you thought about. So when I was up in the stratosphere
thinking about being President of the United States and Senator, I was a kid
who was really fantasizing, but having no realistic expectation of doing that,
but just sort of fantasizing about it in the way you would as a teenage
boy.
Mr. Lane:
There's something more, though, is there not?
Justice Smith:
I don't know. That's all I can make of it.
Mr. Lane:
Okay, but never to have fantasized, you might say, in this
sense, never to have had the push and the vision to keep going up one rung
after the other, even when the top is a long way away. That's what I'm trying
to say.
Justice Smith:
Yes. Well, part of the culture that I came from had for one of
its principle motivating sayings, "Shoot for the stars. At least you land
somewhere in the sky". I heard that repeated 100 times when I was growing up,
in school, in church, around the neighborhood - "Shoot for the stars and you
land somewhere in the sky", so it was certainly...we had great optimism about
what America could do, even back in those days, and the thing that is so
significant to me, Roger, is that in my lifetime, a great lot of what I thought
America can do, it has done. Not everything, but you know, this is the basis
for my great pride with anybody about being born here. I think the American
people are fundamentally fair, and when they're faced with things that they see
unfair, that their disposition is to right a wrong. I have great faith in that,
and I always did, even back in the worst days of the Depression and the worst
days of the apartheid system, you want call it in the south. I always kind of
figured, and I wasn't the only one, that someday, this thing would be righted.
They'd fix the system. That's why I volunteered for the Army. I wasn't drafted.
I went off because I thought that a lot of good people, black and white, to
fight for. I really believe in the country. I still do. I have great faith in
it, and I have...I get emotional about it, to tell you the truth.
Justice Smith discusses his employment after leaving law school, his appointment to be Chairman of the Public Service Commission and then State Auditor General, his friendship with Tom Burns, and his work-related health problems. He then talks about his appointment to the Michigan Supreme Court and the legislation apportionment case of the early 1960s.
Mr. Lane:
Let's jump ahead now to...you're out of law school. How did you
happen to come to Flint? That's where you really had your practice, wasn't it,
before you...?
Justice Smith:
Yes. That's one of those things, you know. So much happens, as
you know, by serendipity or happenstance or what anyone would call it. I was
invited to come to Flint. It was almost like the business of my getting in law
school, because I had done something else that...
Mr. Lane:
I see.
Justice Smith:
When I was in law school, as I said, I was on the Moot Court
team. I had been in the preliminaries during that year, 1948 - 1949, and I had
won. I had been judged the best of the four on the floor that particular night,
and that put me, after two prior preliminary rounds, put me into the finals,
two juniors and one senior against two juniors and one senior in the finals,
and we were arguing a moot case before real judges. We had Justice Robert A.
Jackson from the U.S. Supreme Court and Court of Appeals Judge E. Barrett
Prettiman of the Court of Appeals in D.C., and the third member of the bench
was T. Alan Goldsborough, the gruff old ex- congressman from Maryland who was a
District Court judge, and I happened to be on the winning team. My picture was
sent to my home town paper, and my home town at that time was where I last hung
my hat, which was in Flint where I had worked in General Motors on the line
from just after that big strike in 1945-46. I got out of the service in
February 18, 1946, and I went to Flint to work in the factories to save money
to go to school that fall, and this was before I went to Syracuse. I went to
Syracuse in the fall of 1946, but between April and September, I worked in
Chevrolet Manufacturing in Flint.
Mr. Lane:
Was that the time when you were working on some kind of a grind
wheel, dirty job, and you couldn't get...?
Justice Smith:
Yes, I was a nickel buffer.
Mr. Lane:
Nickel buffer, yes.
Justice Smith:
Because I had stayed in Flint for that short period of time,
that the address that the P.R. office at Catholic University had was my address
in Flint, so they sent this picture of me shaking hands with another Supreme
Court Justice who came out for the ceremony, the late William O. Douglas, who
presented the pen and the dictionary to the three winners. That went in the
Flint Journal. Dudley Mallory, a lawyer in Flint, graduate of the University of
Michigan, class of 1926 Law, had been practicing there for 20 - 25 years or so,
saw it, recognized the name. There's a lot of Smith's around Flint, and the
address was a part of Flint that was what people would call a ghetto. Anyway,
he called up members of my family and told them "have the boy come in and see
me when he is next in town", and I went into to see him around Easter, 1949,
and I still had a year to go in law school, and he said, "Keep in touch. I'm
trying to get a nice young man here to help me with the practice. I have 'made
it', so to speak. I want to maintain the office for the clients who have been
coming to me off and on for 25 - 26 years, so if you're interested, keep in
touch", and I did. I didn't really think that seriously about coming back until
I got out of school in 1950 and found out that there was no place for me,
despite the credentials which are not overwhelming, but they were pretty good.
I couldn't find any place. I couldn't find an office to go to, so I went to Mr.
Mallory, and he said, "Well, come on it". I should say that when I graduated
from Catholic U. Law School in 1950, by that time, I was married six months,
married and had a child on the way, and needed to work, so I came from
Washington to Detroit, and got a job working General Motors on the line at the
old Ternstedt Plant down at Fourth and Livernois. I wasn't buffing nickel. I
was doing something very close to it called polishing metal, which was very
similar to buffing nickel, a very dirty job, but I had a law degree, and I had
taken the D.C. Bar examination in June of 1950. I learned in August that I had
passed, so I was working there as a lawyer. I was sworn in by letter in August,
1950 in the D.C. jurisdiction, and then I took the September Bar in Michigan,
1950, and I learned around Christmas time that I passed that one, and then I
was admitted to practice in Flint. I accepted finally Mr. Mallory's offer to
join him in the practice and on the 8th of January, 1951, I was sworn in in
Flint, and he had an office waiting for me. I had a wonderful, wonderful time
starting out with this gentleman who treated me like a son. I had a great time,
good time with him. I was there from 1951 to 1957 when I got a call from George
Stevens who was a lawyer in Flint who was also the County Chairman of the
Democratic Party.
Mr. Lane:
You had been active during this period?
Justice Smith:
Yes, as I say, following this inspiration of Thomas More, I
thought I ought to get into government, and I also had another inspiration, the
Christopher movement, the fall of Keller, and the Christopher movement which
was, to use the old Chinese proverb for their own slogan, "Better to light one
candle than to curse the darkness", so for those reasons, I got involved in
politics in Flint, and I looked for a party to belong to, and at that time, the
Republican party in Flint was kind of a closed shop. They kind of only wanted
you if you were one of the better people, and I was not then a confirmed
Democrat. I had heard of Williams, and I went around to listen to him talk, and
I really became taken with the guy because he was the first politician I met in
a long time who didn't, as I say, insult your intelligence with a lot of
garbage. Williams always talked issues, and that impressed me, and so I sort of
moved into see what they were doing and became involved in his big recount in
1952, and then I think in 1954, I became secretary of a counting committee in
Genesee and I was active in "Dollars for Democrats" and things of that kind,
and worked along with Jerry O'Rourke and other people in Flint who were still
there and were active in the party. It did not prevent me from going off and
doing my civic duty as an Assistant Prosecutor for a Republican prosecutor,
Chester R. Schwesinger who was kind enough to agree to pursue me for a year to
come into the office. When they had a very small office in Flint, they had a
Prosecutor, Chief Assistant, and four assistants, and they were going to lose
one guy, and...
Mr. Lane:
You were one of four assistants?
Justice Smith:
Yes. I guess they've got about 30 some odd now, but I was the
fourth and final assistant, as I called myself, and I went in in the last half
of the year of Ches Schwesinger's and tried - I counted them - 20 jury cases,
and I lost one, but it was the biggest one I tried, and I took about 50 - 60
preliminary examinations and got considerable experience as an Assistant
Prosecutor in that very short time, but anyway, I ran for school board, the
Flint School Board, in 1953. I lost. I ran for Municipal Judge in Flint, and I
think that was in 1955, and lost. Still, I had no thought of ever being on the
Michigan Supreme Court. I think that the little firm that I was a part of by
that time, Mallory and Smith; I think we had two matters, I believe, in the
Supreme Court, during the time I was there. Mr. Mallory's matters, not mine. I
worked on...my ambition when I started practicing law in Flint was scaled down
to what I thought was realistic expectation. I said I wanted to be a good,
honest lawyer and to be regarded so by me peers, and I had a great emphasis on
honest. I wanted simply to be able to make enough living to support my wife and
four sons. That was my ambition when I started practice in Flint. That's all.
Running for the school board - I was asked to do that. Running for the
Municipal judge - I thought I would make a pretty good municipal judge, but I
had no thought about being either a Circuit Judge or on the Supreme Court at
that time. I sort of gave it up as any elective office because Mr. Mallory kept
saying that you can't keep one foot in government and one out. You've got to
decide what you're going to do. Then, here I am, active in the community so
much so that I was chosen by the Flint Junior Chamber of Commerce in 1956 as
"The Most Outstanding Young Man in Flint" in 1956, which I understand brought
me to the attention of Lansing in the way that they had not previously
remembered me. They knew me as a very hard worker for Williams in the election
campaigns, in 1952 and 1954. I had went around all over Flint with Tom Kavanagh
who was elected Attorney General in 1954, and I had worked with Phil Hart who
was Lieutenant Governor, and had great rapport with him and great fondness and
affection for Phil, and so Phil Hart himself told me that when my name was
thrown into the discussion about filling the position of Chairman of the
Michigan Public Service Commission, that he kicked himself for not himself
having advanced it. The fellow who thought about it was Alfred B. Fitt, who was
the Governor's legal advisor, and I had encountered him in these extradition
hearings. I had a couple governor's extradition hearings for clients who were
sought to be extradited to southern states, one Arkansas and one someplace
else, and Al Fitt told me he remembered me because I didn't come up there
wearing the flag of the Democratic Party. I came up there as a lawyer for the
hearings to be conducted, and so he thought that was somewhat unusual, and so
when they were fishing around for a name to fill the Chairmanship which was
vacated by William R. Hart, Bill Hart, he tossed my name in, and he said, "When
I tossed it, and they all said, 'That's it'. See if he is available and see
what the industry thinks about him". Well, I didn't know anything about this,
and I wasn't called immediately. My name was leaked to the industry and then
they put the investigators on it, to come up to Flint to see whether I had any
horns, any great problems with anything that would make it embarrassing for the
Governor to appoint me, and they apparently didn't find anything. I am told
that Tommy McIntyre - you probably knew him - who worked for the Times.
Mr. Lane:
I never met that fellow. I heard about him.
Justice Smith:
I heard about him. Tom Burns, you know him, who followed me by
five or six weeks on the Commission told me, and he knew Tom McIntyre from his
days in the Legislature said that, "I went all over Flint trying to find
something wrong with that guy". He said, "I don't believe it. I couldn't find
anybody who would say anything bad about him. I want to meet this guy". But
anyway, when they couldn't find anything wrong with me, then the Governor,
communicated with the County Chairman, George Stevens, who called me one
afternoon and said, "The Governor wants to appoint you Chairman of the Public
Service Commission". I hadn't asked for it. I knew so little about it, in sort
of a half humorous way, I asked George, "What kind of a welfare agency is
that?", and he said, "Are you serious?". I went up to see the Governor, went
over to Lansing to see the Governor...down, I guess it is from Flint, and he
asked me, "What is your regulatory philosophy?", and I said, "I don't have
one." I said, "I think I know a fact when I see it, and I think I can follow
the law pretty well". He said, "Well, you just can't go over there an be a
housekeeper. You've got to...". I said, "I know what you're asking for,
Governor, but I don't really have a philosophy. I just...". Well, he wasn't too
pleased with that answer, I must tell you. At least he didn't appear to be
pleased, and the more I thought about it, the more I thought, "Well, I'm making
$13,000 to $14,000 now in the law practice and this only pays $11,500, and
that's only a raise...I was paid $9,000 and they raised it to $11,500, and I
finally told Phil Hart who was Lieutenant Governor down here in the Jeff Jack
dinner in the spring, 1957, I said, "Phil, just tell the Governor that I can't
afford to come. I appreciate the thoughtfulness, but I just don't want to
be...I don't want to leave practice. I can't really afford to". He said,
"Well..."
He was so busy with all the crowd, he heard me and didn't hear
me. All I know is the next thing I knew, I was facing Williams, a man whom I
held in awe, and did hold in awe for most of his life, even when I got to know
him almost intimately, I still held him in awe for what he was, you know. He
was an overpowering man with not only his personality, but I always thought he
was a tremendous guy because he stuck to his guns. He was a leader. If he
advanced something that wasn't popular, he would keep right on advancing until
he could sell the people on it, you know, and I thought that was pretty nifty
kind of stuff, and I always found him to be an honest guy. I thought a great
lot of him, but anyway, next thing I know, I'm facing Williams who asked me,
"When can you start? Legislature has raised the pay from $9,000 to $11,500.
When can you start?", and like a blabbering idiot, I said, "Well, I can start
in the fall". He said, "God, no. We've got all kinds of big cases up there,
Bell Telephone cases pending, the application of UPS to start in Michigan is
pending". He said, "We've got to have somebody up there right away". I said, "I
can't do it right away". He said, "When can you do it?" I had a lot of practice
to wind up, and I gave him a date sometime off, and he said, "How about July
1st?", and I said, "Okay". I didn't really mean to go over there, to say yes,
but I couldn't say no, and that's how I got to be PSC Chairman.
Mr. Lane:
How long were you in that job?
Justice Smith:
July, 1957 to about October, 1959, and that's a little story,
too, that may have been reported in the press: Thomas N. Burns, who was a great
friend of Larry Farrell's, and Tommy was a Republican, but he knew all the
Irishes of every stripe, and Larry Farrell and Tom were good friends. When
Frank Shemansky had finally persuaded Williams to let him come back to Wayne
County as Probate Judge, we had to get a replacement, and Tom Burns said to me,
just in idle conversation, "I don't what the hell they're looking for. You're
the best guy. You ought to be...". I hadn't even thought about it. I said,
"Wow". He said, "Are you interested?" I said, "Well, it's interesting.
Mr. Lane:
This is Auditor General, now, State Auditor General?
Justice Smith:
State Auditor General, yes.
Mr. Lane:
At that time, a state-wide elected position, right?
Justice Smith:
Yes, and so he said, "Let me check it out. Do you mind?". I
said, "Oh, no. It would be nice to have been invited, you know". But I wasn't
really thinking about it. I didn't make any pitch for it.
Mr. Lane:
By this time, he was serving with you on the Public
Service?
Justice Smith:
He was a member of the Public Service Commission.
Mr. Lane:
Republican member, right?
Justice Smith:
Right. He came five weeks after I did. He came in August of
1957, and this was 1959, so we had worked together for a couple years at great
harmony. Tommy and I were like brothers. We never disagreed on a matter
ultimately. We used to make 20 or 30 decisions a week, and we'd always discuss
it and carry on the public business.
Mr. Lane:
Did this come to be a very significant help, factor in your
service on the Supreme Court?
Justice Smith:
Being a member of the PSC?
Mr. Lane:
Well, I'm talking about the method, the ability to make these
decisions and to make them in harmony. Now, you, as we will presently discover,
went into an atmosphere that was somewhat lacking in harmony at times, but you,
talking now about the Supreme Court...when you got there, there were some
pretty strong egos and some clashes and that sort of thing. I want to ask you
eventually how it is that you were able to get these, one after the other,
decisions that you wrote without dissent or one concurrence and that sort of
thing. This, to me, is part of your...the significance of the kind of service
that you gave, but anyway...Maybe I asked the question too quickly.
Justice Smith:
I think that really comes from your perception of what the
decision making process is about in government. There are a lot of judges who
will tell you that they are paid to render their personal decisions. I heard
that a lot on the Michigan Supreme Court when I was there from several of the
judges, that they thought their responsibility was to render that personal
judgement. I always thought that in a collegial situation where you were not
the sole decider, that you were supposed to make sense by compromise if
necessary. They say the art of politics is compromise. The art of successful
government is certainly in a place where you have many competing forces is
compromise. There is nothing strange about that. There is nothing profound
about that. That's just a fact.
Mr. Lane:
Well, Burns must have felt the same way. You and Burns had good
chemistry, and you both...
Justice Smith:
Well, we did, and we had great respect for one another's
opinions. That's why we didn't ever disagree on anything ultimately. We'd have
discussions about it if we were on different sides, but usually, rather than
trying to make his point with the other guy and make it stand up, you'd give
your opinion, and you'd say, "What do you think?". That was kind of our way.
He'd say, "Well I think this". I would often say, "God, that sounds better than
what I said", and he'd say, "Well, no. I don't think so". So we'd often wind up
arguing the other guy's position and we'd wind up saying, "Why don't we do
this", and "Sure". Tommy paid me the greatest compliment I have ever been paid
in my life. He said, "I'm older than you are. I've been around longer. I've
been in government more. I was the Assistant Prosecutor. I was in the
Legislature for two terms. I've seen this animal around here. I never thought
I'd be a part of any government, any government agency that worked like this
one. As a Chairman and as a leader of this organization, it works like a
textbook" He paid me...he always paid me the highest compliment about what I
was doing, and he was very cooperative with me in administrative matters. James
H. Lee, who...Maurice Hunt was on when I first went on, but Maurice left...
Mr. Lane:
For California or something.
Justice Smith:
Yes, his term came to an end, but then when Tom came on, and we
just instantly hit it off. Neither one of us was trying to upstage the other
one. We didn't have any personal agendas or party agendas. We just wanted to do
the right thing, and so Jim Lee, who was there and a Democrat...Jim was a
passionate guy, and I'm going to use that word again in connection with
somebody else whom I served with, but Jim had a feeling that somehow the
utilities and the transportation companies including the railroads were not
really forthcoming with everything. He had great suspicions about it, and so he
had difficulty seeing that point of view. After all, he had come from 25 years
of being on the other side as a representative of the City of Detroit tax
payers. He was part of the corporation Counselor's office and was designated to
be the representative of the tax payers in major cases, so Jim had seen a lot,
and I guess it sort of soured him on what was coming from the utilities. I
guess Tommy and I were sort of innocent about it, but we just tried to see what
made sense, and then I would go off and try to sell Mr. Lee on what we had
done, and most of the times, I was successful, but not always. We usually were
unanimous. Tommy and I would basically work it out and we would do it in the
strangest times and strangest places. Both of us commuted to and from Lansing
every day, almost every day. Tommy lived in Saginaw, 75 miles from Lansing. I
lived in Flint, 50 miles away, and we'd often leave together, not always, but
often leave together at 6:00 or 6:30 and headed home. We'd head out to old M-78
and we'd get out to Perry corner, outside of Lansing, and one of us would get a
thought, and we'd raise a hand up in the car, and we'd go over to the parking
lot of that restaurant in the corner, and we'd go in there and have a cup of
tea or coffee, and he'd say, "About that thing we were discussing today, that
case...". I bet we did that 30 to 40 times over a couple years, and sometimes
when we were kind of puzzling over something, I'm driving my little car, and
he's driving his, and we're in tandem. He would go on further. He wouldn't turn
off at Perry corner. He would go up to M-13 to Durand on M-78 and go to Saginaw
that way, and we stopped in there sometimes, but more often than not, we'd get
a hot thought, a hot flash or something on the way outside of the city, stop in
at Perry and discuss it, and say, "Let's do that", or we'd say, "Think about it
overnight". The next morning, we'd come in and say, "What do you think?", and
we would wrestle with the toughest ones and decide what we would do and then
we'd go and try to sell it to Mr. Lee.
Mr. Lane:
There must have been some observing in the front office about
how things were progressing over there because that agency had kind of a spotty
record for some time before, and a heck of a turnover. You're probably more
familiar with that than I when you looked into what you were taking on, but
boy, there was a real...
Justice Smith:
Bill Elmer, John Viele, Bill Hart had come through. It didn't
have a good reputation, and Bob Derengoski, who was then Chief Counsel for the
Commission on assignment from the Attorney General and who later became
Solicitor General of the State before he retired...Bob was the Chief Counsel of
the Commission when I got there, and he told me himself that, after about a
year of the Burns/Smith administration, if you will call it that, that the
appeals were reduced by 2/3's.
Mr. Lane:
Is that right? That's remarkable.
Justice Smith:
I said, "Why is that?" He said, "Marv Salmon and the other
Circuit judges, Coash and other Circuit Judges over in Ingham Circuit which was
the appeal jurisdiction from the Commission's decision, had come to believe in
the Commission and when you got over there, instead of the presumption being
that you're wrong, the presumption was that you're right, so they'd run over
there to get an injunction against the order going into effect, and most of the
time, they were denied. It makes my job very easy". Well, you know, we weren't
playing to any gallery. We were just trying to get it right. Well, next thing
we did, I think, was of some usefulness, was in that the two years that we were
together there, a little bit more, we caught the calendar up to current. We had
a current calendar. We worked like dogs. Tommy worked as hard as I did.
Mr. Lane:
He later went to the Court of Appeals, didn't he?
Justice Smith:
Yes, he retired from there just a few years ago.
Mr. Lane:
I suppose you must have stayed in touch somewhat?
Justice Smith:
Yes, he's a remarkable guy.
Mr. Lane:
Is he out in...where?
Justice Smith:
Saginaw. He's back home in Saginaw.
Mr. Lane:
Excuse me for the interruption. Next was the Auditor General.
Burns ran a little interference there, did he?
Justice Smith:
Yes, Burns thought, "My God, you're the best candidate", and I
hadn't even thought about it. I told you what happened there, and he went
over...he called up and he told me...either he went over or he called up, I'm
not sure, and when he put this out before Larry Farrell, Larry thought it was a
hell of an idea, and I think within an hour or two after we'd had the
conversation about wouldn't it be nice to have been invited to be Auditor
General, here was Larry Farrell on the telephone and said, "Tommy Burns talked
to me about it. I think's that a hell of a good idea. First thing, are you
interested? Second thing, will your health permit it?", because I'd had some
health problems then right on through there. I said, "Well, I don't know. Let
me talk with my doctor".
Mr. Lane:
Was that your ulcer?
Justice Smith:
Ulcer and nerves, anxieties about doing the right thing. I
worked awfully hard, and I was trying to clean up my practice in Flint. The
biggest contributing factor was not the working of the PSC. I loved it. It was
the best job I ever had in my life. I think I probably did as good a job there
as I have ever done anyplace before or since. It was my practice which I had
left in response to the invitation of Williams which I should never have
realistically accepted at that time. I had a big dime store practice. I had a
lot of probate cases. I had a lot of accident cases and things I had loused up,
I had to clean up, and I didn't have anybody to help. I worked nights and
weekends on my private practice trying to clean it up. I went on...I damned
near collapsed.
Mr. Lane:
Just exhausted yourself.
Justice Smith:
Yes.
Mr. Lane:
I remember...you're talking about this kind of over-exertion.
You remember Frank Shemansky, you man who succeeded in Auditor General. He got
into some trouble that way. He was going with four hour nights, and he
collapsed.
Justice Smith:
Was he.
Mr. Lane:
And a professional football player. You remember him, don't
you.
Justice Smith:
Sure, I remember Frank well.
Mr. Lane:
He had a collapse in there somewhere.
Justice Smith:
Did he?
Mr. Lane:
Yes, he did, in the job as Auditor General. But, I keep
interrupting...
Justice Smith:
Anyway, I went back and checked with my doctor in Flint about
what he thought about this job which would obviously put me in political office
where I had to get on the chicken circuit, chicken feed circuit, and he said,
"Well, I don't know. I think it might be a good change for you". I didn't have
him to dodge behind. I thought about it for a few days and I said, "Okay".
That's when I was appointed by Williams to be Auditor General. I had to run in
the 1960 election to succeed myself which I did, and I was elected in the 1960
election and then in 1961...this is how I came to the Court. We had all kinds
of jokes about the Court. Everybody was ambitious, all of the Attorney General,
all the people were ambitious. Whenever there was a vacancy on the Supreme
Court, anybody in the Williams administration, close to it, and some other
places, I suppose, had the ambition to go on the court. I didn't.
Mr. Lane:
You did not?
Justice Smith:
I did not.
Mr. Lane:
Even after this advancement?
Justice Smith:
No, I wasn't even...
Mr. Lane:
Couldn't you see that right up ahead?
Justice Smith:
No, I couldn't. As a matter of fact, my focus always was on
getting my service over and going back to Flint, and of course, the longer I
was away, the dimmer that became, but I had originally intended to go for a
couple years.
Mr. Lane:
You never took you residence out of Flint, did you? Even when
you were on the Court, you stayed in Flint, didn't you?
Justice Smith:
That was a time that I decided that the community was too much,
and when I came to the Court, I thought that I'd better take a chance and move
into Lansing. That is when I came to Lansing, to move to Lansing was in the
early part of 1962, after I had been appointed to the Court. The story of how I
happened to be appointed to the Court is a classic one. I really think so.
Mr. Lane:
Good. Let's hear it.
Justice Smith:
I'm Auditor General. I have run with John Swainson in the 1960
elections and others, of course. This is in the fall of 1961, and Talbot Smith,
who had just been appointed Federal Judge, was leaving the Michigan Supreme
Court, and we were joking around in the administrative board sessions, after
the sessions and before, particularly Sandy Brown and I, who had great rapport.
We used to kid about it. Sandy would say...
Mr. Lane:
Maybe I should interrupt here so that the persons who will hear
this tape will know that...was it once a week or some periodic times, the eight
Chief elective offices, I think it was, of the government, would have a formal
scheduled meeting in a conference room area setting, in the Governor's office,
and that was the State Administrative Board, right?
Justice Smith:
That's right.
Mr. Lane:
And there would be a review of major contracts and that sort of
thing, of policy, some policy discussions, right?
Justice Smith:
Right.
Mr. Lane:
Okay, just so people will understand.
Justice Smith:
Then there were informal meetings every day up there at the
Governor's office. They would last from five minutes to fifteen minutes or
whatever was required to discuss the issues or anything that is facing the
government, you might call the politics of operating the government would be
discussed at that point. It would be just a matter of finding out what is
troubling anybody or the Governor is announcing anything that he wants us to be
aware of and to support, he would speak to that, but in any event, it was
during or after those sessions when we had this little joking around about who
was going to become the next Supreme Court Justice, and I never even thought
about it. I didn't hint that I was interested. I really hadn't thought about
it. If it crossed my mind, it was not a serious thought. Here it is, one
afternoon...it must have been early September...I think early September, I get
a call from John Swainson, the Governor, and he asked me if I could accompany
him to Grand Rapids. He had a couple little stops to make over there, little
appearances he had to make, and he wanted to talk something over with me, he
said. I looked at my calendar and said, "Sure". He said, "Well, can you be
downstairs in the parking space in 15 minutes?", and I said, "Yes, meet you
there". So I met him back at the capitol and got into the Governor's limousine
with the Governor and of course, the State Police driver, and we headed for
Grand Rapids where he had these appearances to make. We got out on the highway
and he said, "What do you think of the vacancy occasioned by Talbot Smith going
to the Federal Court?" Now, I figured that here was my friend and my party
leader and so forth and my chief of government. He's already made his mind up
as to what he wants to do, but he wants to ring me in on it in some way, and he
really isn't interested in me. He's interested in what I think, and he's going
to tell me what he thinks, which he wants to make sure I understand it and
support it. So, I had a little understanding with him and with Williams that I
would always tell them what I really thought.
Mr. Lane:
Always tell them what?
Justice Smith:
What I really thought about anything, that I wouldn't play
games with them. I mean, "Okay, you know, you ask me what I think. You may not
like to hear the answer, but I'm going to give you what I really think, and you
can do anything you want with it, that's your business, but you're going to get
really my best thinking about it, and it's going to be the best I know how".
Anyway, so I said to John Swainson in response to his question, "Well, if you
really want to know what I think, I think you ought to go down in Wayne County
and get one of those Wayne Circuit Judges that Mennen Williams has appointed".
He said, "Name one". I said, "God, there's so many of them". I started ticking
off names. I said, "Horace Gilmore, Joe Salaman, Vic Baum and others, Joe
Rashid. Every one I'd name, he said, "He's not well. He doesn't want it. He's
got a problem". I finally got...I said, "There must be somebody down there.
They're electable. They have great credentials in Wayne County where you need
the vote". He said, "How about you?" It was a complete surprise to me, and I
was sort of taken aback. I said, "Well, I want to think it over". He said,
"What is there to think about?" I said, "You know, that's a big jump. That's
the sixth largest state in the union. That Court is important to a lot of
people. I want to think about it for a bit".
He was a little disappointed with my answer, I think, and he
said, "All right, well think about it. Let me know what your answer is". So we
made the trip, came back to Lansing, and I thought, "Oh, God. What do I do?
This is big, big stuff". Here, I'm 39 years old. I had been a lawyer, I think,
about eleven years. I practiced in Flint for a little bit less than seven. I
had been in government. I mean, this is big league. So I'm starting to quiver a
little bit. I said, "Let's go back to Flint where they know me as a lawyer, not
as a public figure or politician or whatever you want to call it in Lansing.
Let's go back to your roots in Flint where you practiced law and ask some of
the guys, real good guys, both parties, whom you really have confidence in,
people who know you as a lawyer, as a friend, know how you're made up". So, I
went back and talked first of all to Mr. Mallory, my mentor and great
benefactor and then to about three others, John M. Wright and a couple other
guys. "What do you think?". Well, I've got to say honestly that nobody was that
enthusiastic about it, even my own benefactor. He thought about it, and he
said, "Well, Smith, you can't do any worse than some of those old guys up there
already. You might as well try it". With that kind of endorsement, I finally
got back to John Swainson and told him I would try it, and if I didn't work
out, I would be happy to step down, let somebody else do it. He said, "Aw,
you'll do all right". So, Swainson presented me to the Court as a member of the
Bar and as Governor, he introduced me to the Court. I took my seat.
Mr. Lane:
You did that in October, 1961, knowing that you'd have to run,
then?
Justice Smith:
In 1962...
Mr. Lane:
That was in the spring election, right?
Justice Smith:
No, it was the fall.
Mr. Lane:
Was it a fall election?
Justice Smith:
Yes.
Mr. Lane:
For the remainder of the term of Talbot Smith, right?
Justice Smith:
Of Talbot Smith, which would have ended, I think, probably at
the end of 1963 or 1964, but because the new constitution went into effect, it
was suspended in order to get everything, it was...you know, they put the dates
back for all the people who were incumbents for longer terms than...the
effective date of the constitution, I think, was 1963, and I think they put it
back, so my term actually full term expired in the end of 1966, so I ran in
1962 to keep my seat because the law requires you when appointed to run at the
next general election.
Mr. Lane:
You beat Louie McGregor, didn't you?
Justice Smith:
Louie McGregor of Flint, my old home town, who was a Circuit
Judge, Louis D. McGregor.
Mr. Lane:
He was a good one, wasn't he?
Justice Smith:
Yes, he was a good guy. I clearly won in Wayne and south
Macomb. That's where the vote came out, and I did rather well in the U.P. as I
did in 1960...I did very well in the U.P. I think you can look at the
records...I think I won majority of the counties easily in the U.P. in 1960 for
a partisan office, the Auditor's General post, and I did rather well up there
in 1962. I did reasonably well all over the state.
Mr. Lane:
Do you remember when you first walked into the conference of
the Supreme Court? Was the Court meeting at that time, the time of your
appointment, or was it at some subsequent time?
Justice Smith:
I was introduced to the Court. I don't recall if they were in
session in October. They probably were in session. They used to sit in
quarterly sessions. They used to sit...
Mr. Lane:
For terms...
Justice Smith:
Yes, terms, two and three weeks at a time and then meet once a
quarter, and while I was there, they changed it from once a quarter to once a
month, about one week a month, but I was introduced to the Court, took my seat
on the end next to Harry Kelly.
Mr. Lane:
At that time, the Court was in the third floor of the Capitol,
and there was a rather large conference room over to one side of the Court,
opposite to where the courtroom was. Is that the way you remember it?
Justice Smith:
Oh, yes...Kelly, Black, Kavanagh, Souris.
Mr. Lane:
Souris was there?
Justice Smith:
Yes. He had come in early part of 1960. He took John Voelker's
place.
Mr. Lane:
Right. That was an interesting...
Justice Smith:
I was 39, he was 36, I think it was. We were the two boys on
the Court. Everybody else was in their 50's.
Mr. Lane:
Had you had contact with Souris before you went on?
Justice Smith:
Yes, I knew him mildly from his campaign. I think in 1960, he
ran, because I think he was appointed in the early part of 1960 when John
Voelker, who was elected, I think, in the spring election of 1959 and
immediately decided that he didn't want to stay any longer, and he left, and
Governor Williams appointed Ted Souris to the Court, I think, in the early part
of 1960, and I came in the latter part of 1961, so Ted had been there...
Mr. Lane:
He'd been there quite a while.
Justice Smith:
But Thomas M. Kavanagh was there, and the other names that I
mentioned.
Mr. Lane:
What I'd like to do as we get into the work on the Court is to
sort of break-out, if it is agreeable to you, the entire chapter, shall we call
it, on legislation apportionment which kept coming back.
Justice Smith:
And back and back.
Mr. Lane:
And repeated, and in sometimes acrimonious settings and full of
flux because of the new constitution, because of what was going on in
Washington, because, to some degree, the changes in the make-up of the Court.
Do you recall...would it serve any purpose to sort of take a look in your own
mind's eye as to how.
Justice Smith:
I ought to go back and review that. I have some very, very
vivid memories of my work on the Court with the other members, and of course,
the apportionment was the most important thing we ever did.
Mr. Lane:
The reason that I approached the matter in this way is because
it is so recurrent, and it was such an energy consumer, apparently, on the
part, as to the Court. I think when we get to it, I looked it up, and there
were, in one case, the head notes ran to like 50.
Justice Smith:
Everybody wrote an opinion.
Mr. Lane:
There were six and seven opinions in more than one of those
cases, and I think that this might be an opportunity to somehow pull the thread
of that together. There are people, for example, who have been thrown into one
end of it, or Reynolds vs Simms, one man and one vote, one person, one vote
becomes a sort of slogan, kind of a label, and then the substance of all the
churning that went on to arrive at...my gosh, this thing went on long after you
left the Court.
Justice Smith:
It started when August Scholle, who was President of the state
AFL-CIO filed a law suit against the Secretary of State, I think, in the early
1950's. Scholle vs. Hare I, we call it, and that was when the issue was whether
it was a justiciable matter.
Mr. Lane:
The Supreme Court of the United States had held it was not,
right?
Justice Smith:
Let me see. I think it had. I would have to check and see. I
know...I think it had, sure. I think it had in some cases.
Mr. Lane:
In an Illinois case...
Justice Smith:
Well, of course, Baker vs. Carr is the one that overruled that,
and said it was a justiciable matter. That came...
Justice Smith discusses legislative apportionment concerning Scholle vs. Hare, the effect of the U.S. Supreme Court case Reynolds vs. Simms on the court's actions, and the general election of 1966, which he lost to Thomas Brennan.
Mr. Lane:
This is another tape in the series sponsored by the Michigan
Supreme Court Historical Society, and former Justice Otis Smith is here this
morning in his office on the 13th floor of the First National Building. With
him is Roger Lane of the Historical Society, and we're going to talk some more
about his service on the Michigan Supreme Court. That's a counter.
Justice Smith:
Does the date matter? Doesn't matter?
Mr. Lane:
Yes, it does. For the record, you know, that kind of thing.
This is October 25, 1990. Now, can we talk some about the whole, knotty, long
drawn-out problem of legislative apportionment. I would like to suggest that
just before you came on the Court, I think it was in 1960, there was a decision
by the Michigan Supreme Court that was appealed. This had to do with, as I
recall, this was one of the Scholle vs. Hare matters that was brought on by Gus
Scholle, the President of the AFL-CIO in Michigan, and a very astute, forward
looking citizen who was keenly interested in all aspects of the political life
in Lansing, and he had challenged the constitutionality of the apportionment
that then existed, and this was just prior to the meeting of the constitutional
convention in 1961 and 1962. The Supreme Court had upheld the constitutionality
of this unbalanced system where the Senate was partly apportioned on a
geography basis and there were other alleged defects, and it went down to
Washington, and was remanded. Now, does that come about to your time?
Justice Smith:
That certainly does. As a matter of fact, I think it was in the
spring, 1962 when the Baker vs. Carr decision of the U.S. Supreme Court was
made and the Scholle vs. Hare case which was on appeal with many other cases
around the question of whether or not apportionment was a justiciable issue,
that is to say whether or not it could be judged in court rather than being a
political issue which is what the Court had previously said, as you know. So,
we got Scholle vs. Hare II, because there was a I back in the 50's, after the
50's census, these kind of occurred after the census, and Gus Scholle was
interested in one man - one vote, and there was a lot of activity in the early
50's. As a matter of fact, there was, I think, a constitutional amendment,
so-called Balance Legislature Provision, that was passed back in the early
mid-50's which actually kind of grew out of the agitation that Gus Scholle had
started with his interest in apportionment. Curiously enough, this is not the
first time the Michigan Supreme Court had the case, this kind of case. I
checked back, and I think it's in the records that after the 1890 census and I
think after the 1900 census, there were cases, not by Mr. Scholle, of course,
but by other people way back in those days who did not like the apportionment
at the time. There was one case in which the Court, Michigan Supreme Court
stated in one of its opinions that districts which were more than 2:1 could not
be countenanced, and that was back after the 1890 census, I think.
Mr. Lane:
Is that right?
Justice Smith:
Yes, so it had a history to it in Michigan, at least, and I
suspect elsewhere. In any event, we come up to the moment of the decision in
the U.S. Supreme Court case of Baker against Carr in the spring of 1962. I had
been on the Court about four or five months, five or six months, and the remand
occurs and here we are to decide once the Supreme Court had said that in Baker
vs. Carr that it was a justiciable issue, and remanded the case to us. We were
decide whether the attack on the apportionment of the Michigan Senate, as I
remember it, was done by the people in the constitutional amendment in the
50's.
Mr. Lane:
1952, I think.
Justice Smith:
...was unconstitutional when measured against the requirements
of the U.S. constitution, the constitution of the United States. Well, as it
turned out, I was the 7th and deciding vote that year, in 1962, on the question
of whether or not the Senate was mal-apportioned. There were eight of us on the
Court, of course, Justice Adams having come on early in 1962 when Justice
Edwards left to come to Detroit to be Police Commissioner, and Justice Adams
could not participate because he had participated in Scholle vs. Hare as
Attorney General, so he did not participate. The other six justices all had
participated, and they all had expressed themselves as three in being in favor
of apportionment along one man-one vote lines and the other ones being against
it. I really anguished over it because there is a natural reluctance to tinker
with what the people have...
Mr. Lane:
...ordained.
Justice Smith:
Ordained in the constitutional amendment of the 50's. I
discussed it with everybody, practically everybody before I joined, and I was
very, very much upset about it. Of course, it was a thing of high political
moment in 1962 because that was the year that Governor Romney made his
emergence as a real live candidate for Governor, and he was interested and
expressed a great interest in it. It was turned into a partisan issue by the
partisans. Anyway, I anguished over it, and I was not unaware that I had to go
up for election that year in order to maintain my seat. I knew that...
Mr. Lane:
Excuse me, did you need the nomination of a political party to
qualify to be on the ballot?
Justice Smith:
Yes, at that time. I don't think I was worried about that. I
was thinking about, worrying about the enormous interest. The press, I think,
was almost all allied on the side of leaving it alone the way that people had
ordained it in the so-called Balanced Legislature Amendment of the 50's. Of
course, the partisans on the Republican side of the issue were unanimously in
favor of leaving it that way. There was no only great political heat but also
great legal heat on this thing. I worried about it, and I knew that I was in
the eye of a storm. I will tell you exactly what I thought and how I resolved
it. On the one hand, I felt that the U.S. Senate model, having two senators
from each state no matter what the geographical size or population was somewhat
persuasive to me. It was interesting to me that the U.S. Constitution, the same
one that we're now to look at to see if the state legislatures could be
apportioned on the basis of one man-one vote ordained in it that there be two
senators from every state, from little Rhode Island up to, at that time, the
big state of Texas, and also with the populations of New York.
Mr. Lane:
Did it weigh with you that Justice Edwards, I believe in 1960,
had espoused that view with some vigor, and he was oriented philosophically
with Gus Scholle, really, wasn't he?
Justice Smith:
Well, he had been. You know, as much as he had gone, in all due
respects to my good friend George Edwards, that did not figure in my thinking.
The thing that figured to me was that there was a Federal constitutional system
which ordained, in a sense, U.S. Senate apportionment, two per state no matter
what the population, and I worried about that. I also would examine the
arguments, of course, on the other side. To make a long story short, recognized
it as a political legal issue. I said to myself in almost these exact words,
"When in doubt, vote with the people", and I was in doubt, and I voted with the
people, and all hell broke loose. All hell broke loose.
Justice Smith:
4:3 in favor of Scholle vs. Hare and reapportionment, and all
hell broke loose.
Mr. Lane:
Did you, in your opinion...now, you wrote in this case, did you
not?
Justice Smith:
I think..I may have written a concurring. I think I joined in
somebody else's opinion.
Mr. Lane:
I see.
Justice Smith:
I didn't write at that time. I wrote later, after Colorado
against Love and Reynold Simms were decided later. That was a couple years
later. At this time, I think I just decided whether I wanted to join in the
Carr, Dethmers, Kelly opinion or did I want to join in the Black, Kavanagh and
Souris opinion, and I joined in the latter. That's my recollection.
Mr. Lane:
So would this be oriented, then, to what the people's position
was, in your mind, in the light of, say, the Cooley commentaries on the
constitution, or just quite how did...?
Justice Smith:
Well, the people part is that this was obviously to me, at
least, pro people.
Mr. Lane:
The Scholle position?
Justice Smith:
Yes, it voted in favor of people rather than geography and
despite how the U.S. Senate is formulated in the constitution, I still thought
this was further enfranchising the people and because it was a justiciable
issue and because of the arguments that were presented on the side that wanted
to reapportion that even though one could go either way, I think with
conscience, my judgement was when in doubt, vote with the people's interest
which I think is very important in a Democratic Republic. I really think
so.
Mr. Lane:
Excuse me for the interruption. You said, "all hell broke
loose".
Justice Smith:
All hell broke loose, yes.
Mr. Lane:
Do you remember where in the year this was on the calendar.
Justice Smith:
This was 1962.
Mr. Lane:
July, August, September?
Justice Smith:
Well, I think we decided it somewhere around May or June.
Mr. Lane:
Quite early in the year?
Justice Smith:
Early in the year, but it immediately became a campaign issue.
Governor Romney picked it up, and he said it was, and I think I quote
accurately, "It was a most amazing power grab in Michigan history", he said. He
kept repeating that very strongly. I winced at that because the last thing I
was thinking about was power grabbing, you know. I was thinking about, "Oh,
God, the papers took it up, and it was a real, real cause". The only thing that
really diffused it was that John Fitzgerald, who was then a state Senator and
was one of the lawyers for the other side, and some other Republican lawyers
sought the stay, and they went way up in Littleton, New Hampshire and found Mr.
Justice Potter Stewart, who was our Circuit Justice here in the 6th Circuit,
and they presented arguments up there. I think Ted Sachs was on the side of
reapportionment, and they were heard up there in a Federal Court in Littleton,
New Hampshire, which I later visited just to see the sight of all my misery.
But in any event, Justice Stewart, after listening to the arguments, decided to
grant the stay, and I really think that saved my hide in 1962. I really do.
Mr. Lane:
Was one consequence of the decision that you were just
describing that the Senate would run at large in Michigan?
Justice Smith:
In 1962?
Mr. Lane:
Yes, and is that part of the argument that Fitzgerald and the
others took to Potter Stewart?
Justice Smith:
I don't recall that that was their...it later came up in 1966,
1964 rather, as a matter of fact, in Illinois, you remember that after Colorado
against Love, Reynold vs. Simms was decided that one man-one vote legislature,
both houses had to be apportioned that way, they really had a big problem. The
legislature was supposed to decide. They never did apportion and either one or
both Houses in Illinois had to run at large, although the...which is something
else again...this is two years projection that I was involved in again when
those two cases were decided, and that's what I anticipated could happen in
Michigan. In 1962, it was not the issue. I think it was that we were to adopt
some plan or in some way, were to affect it or send it to the legislature, but
because of the stay that was granted by the U.S. Supreme Court Justice, it
never was done.
Mr. Lane:
Right.
Justice Smith:
It sort of got put on hold.
Mr. Lane:
For two years, was it?
Justice Smith:
Yes, for two years.
Mr. Lane:
But you didn't get rid of it.
Justice Smith:
No, we didn't get rid of the issue. In the interim, of course,
the constitutional convention of Michigan 1961 and 1962 came out with...their
own method of dealing with it, and there were to be plans submitted, and I
always remember in 1964 after Reynold Simms, there was the Hanna-Brucker plan
and the Austin-Kleiner plan. That's where I was involved again.
Mr. Lane:
Now in the decision of 1962, that was based, or what was in
place at that time was a 1908 constitution.
Justice Smith:
As amended by the...
Mr. Lane:
As amended, and the new constitution that was being put
together at that time had not yet been finished off, and put before the
people.
Justice Smith:
That's right.
Mr. Lane:
It not only had not been adopted and voted on, but there was
still, I guess, some work going on to finish the document, was there not?
Justice Smith:
Yes, I think it was, and it was submitted to the voters, I
believe it was in the fall election of 1962, the same election, because...
Mr. Lane:
That became an issue. Do you recall? They wound up in 1963, in
the spring election actually voting on it, and that had been...
Justice Smith:
That's right, yes. Well, that set up an apportionment
commission, as you remember, and it was doomed to failure because it ordained
that four would be from one party, not more than four from one party and four
from another, and you got four Democrats and four Republicans, and that meant
automatic deadlock over an apportionment plan. After many meetings, the
apportionment commission adopted...four of them adopted the Hanna-Brucker and
four of them adopted the Austin-Kleiner.
Mr. Lane:
As we talk about it, it seems so obvious that this was a
sure-fire, four to four deadlock. What did the people think that were putting
this into the constitution?
Justice Smith:
Oh, I think they really felt that there would be at least one
vote possible on either side to join the others and make a five person majority
for any kind of a reasonable plan, but it did not happen that way.
Mr. Lane:
Not at all.
Justice Smith:
And I suppose that is certainly theoretically possible, but it
having been so long in Michigan then a political manner as well as a legal
manner, it just wasn't to be...too much to be expected. My solution for it was,
which I advanced at one of my opinions in 1964, purely as a dicta was that
maybe one of the things they could do in order to break the deadlock was to
give the Chief Elections Office, to whit, the Secretary of State, deciding vote
in case of a tie, and that would equip that office with some policy content
which it does not have, because most of the content is service content, which
is fine, but it would make it a more significant office because of the
apportionment thing, and also, I think there would be more a contest if they
were to do that, besides that vote would be used only in the case of a tie.
That would be one way of resolving. Of course, it has been solved some other
way now.
Mr. Lane:
But now that the heat came back on, so to speak, in the spring
of 1964, right? What was the instrumentality of that prior to the decision of
Reynolds vs. Simms that came along? Remember, time became a big factor in this
period, but prior to the time of Reynolds vs. Simms, the Supreme Court was
churning with other, with a resolution of the subject matter issue in some way,
either whether it was a...
Justice Smith:
It was really sort of laid to rest. I don't recall that there
was any big concern for two years. What happens with a new constitution going
into effect and there being an apportionment commission appointed according to
the constitution and it having met and come out with these plans pursuant to
the constitution of 1963...
Mr. Lane:
That's right. It had started to function, had it not, prior to
Reynolds vs. Simms.
Justice Smith:
Yes, it had.
Mr. Lane:
And the issue before the Court early in the year was "Will we
adopt this...?"
Justice Smith:
Will we adopt Hanna-Brucker or Austin-Kleiner, and what we
decided to do was to wait, which was the only sensible thing to do because we
knew that Colorado against Love, and Reynolds vs. Simms were there, and every
month, we'd open up the mail to see whether we had an opinion from the U.S.
Supreme Court, and there wasn't one. This is in the early part of 1964, and
we'd adjourn it for another month, because we wanted to get this direction. It
would have been sillier to gone forward. Then what happened was that...
Mr. Lane:
I can remember in one of your statements...I think you had a
separate opinion on this thing...everybody did, I guess, and it said, if I
remember correctly, and you correct me if I'm wrong, in your opinion issued in
May, I think it was, you said, "Look, I have waited as long as I can wait. I
figured out if there wasn't some word from the Supreme Court of the United
States by May 18th which was an opinion day for the Supreme Court, I am going
to go one way or the other". Was that not...?
Justice Smith:
That's true.
Mr. Lane:
You felt that much pressure from a time standpoint?
Justice Smith:
That's right, and the reason I worried about it was because I
was thinking about the fundamental thing of the orderly election.
Mr. Lane:
Right.
Justice Smith:
There had to be a primary date set to concur with the general
election date in November. There had to be enough time for people to campaign.
What I thought was...I thought it then and I still think it was the right thing
to do...that the worst thing the Court could do was to vote to dissolve, in
effect, the most important branch of government in Michigan, to my way of
thinking is the legislature. That's the people's branch. It's out there. It
represents people, and it really is the heart of the system is the way I see
it. The judiciary is important. The executive is important, but really when you
get right down to it, the heart of the Democratic/Republican form of government
is the legislature, and to put that in the fluid state, I thought would be
unconscionable. That's why, after waiting for three months or so for a decision
to come out of the U.S. Supreme Court, I decided to walk the plank, if you
will, and join with "the Republicans on the Court", and vote in favor of the
Hanna-Brucker plan, and I voted in favor of it reserving the Federal
constitutional... but saying that this is the plan that most accurately
comports with the state constitutional requirements, that is, of the Michigan
State Constitution, and reserved report on the Federal question.
Mr. Lane:
May 26th, now what happened on June 15th?
Justice Smith:
On June 15th, of course, we had received not long after the
decision in favor of Hanna- Brucker with my joining in to give it the majority
in the Court with dissents from some of my colleagues on what you might call my
side of the fence. I joined to give it the fifth vote, and I did so knowing
that I would be criticized, but that's part of the job, you know. So then along
comes the decision in Reynolds-Simms and the only thing to do in view of the
clear pronouncement of the Court, U.S. Supreme Court that it should be one
man-one vote for both Houses, was to recall the decision which we did. We
recalled that opinion and decision, ordaining if you will Hanna-Brucker, and we
re-examined it in the light of the plans that were in front of us, and there
were, I think, at that time, three. There was the Hanna-Brucker. There was the
Austin-Kleiner I which was a real bastard of a plan. I mean, it was really
visibly gerrymanded in favor of the Democrats, and then they had wisely put in
an Austin-Kleiner alternate which was...
Mr. Lane:
Was this after Reynolds vs. Simms?
Justice Smith:
Yes, oh yes. That's what triggered it. Reynolds-Simms was
decided, and we were looking at Reynolds-Simms, and that's when we recalled the
decision made only a few weeks before adopting Hanna-Brucker. We recalled that
and then re-examined it. I think we had re-argument, and then we, by majority,
adopted Austin-Kleiner alternate which was a pretty decent plan. I say it was a
pretty decent...let me point out that it wasn't just a bare majority. Justice
O'Hara who was identified with the other side joined the people who were in
favor of one man-one vote, and he said he concurred in the result, so that gave
us six votes, as I remember, in favor of the Austin-Kleiner alternate. They
tried to get a stay from the Court on that, but the U.S. Supreme Court would
not stay our decision adopting Austin-Kleiner Alternate. We had done a lot of
things to make sure that we could have an orderly election. We got a
certificate from the Secretary of State that there was time to have a primary,
time to conduct elections in an orderly fashion, which is the thing I was
concerned with all the time.
Mr. Lane:
This was on roughly June 20 or 22, somewhere in that, was it
not...getting kind of close where the machinery had to start to turn for an
orderly primary. You were up against the wall, is this not true?
Justice Smith:
Yes. Well, I think they had the primary...I don't recall
whether they had the primary in August or whether they pushed it back a month
to September, but it was time enough to draw the districts, were they already
drawn, to get all the paraphernalia of government in place, to have the
candidates in the primary. This is very important, as you know...to figure out
what district they live in, to figure out whether they want to run or not, you
know...
Mr. Lane:
Who their opponent would be...
Justice Smith:
Yes, and so this is part of the process, and so it was done in
an orderly fashion. I was proud of that. I think I made a significant
contribution to that process, at least, in my judgement...that was the most
important work I ever did on the Court.
Mr. Lane:
But that didn't end it.
Justice Smith:
Effectively, it did.
Mr. Lane:
Well, there were a some...a lot...
Justice Smith:
Well, after every census now, of course, there's always
revisiting, and it's a great moment, but it ended it, I think, for that decade,
because they tried to get a stay, that is, the opponents of the Austin-Kleiner
alternate, which the Supreme Court adopted by a 6:2 vote, as I remember...tried
to get a stay from the U.S. Supreme Court. It was refused, and therefore, that
was the plan that was put into place. I believe in the 1964 elections, it
resulted in very interesting thing that happened in that the vote reflected the
vote of the people, and it continued to do so throughout that decade, because
it was one of the cleanest plans. The opponents of the plan could only quibble
about three or four house districts because we didn't...the Austin-Kleiner
alternate didn't worry about county or township lines. It took census tracks,
and built around census tracks, starting in the middle of the state and fanning
out. The disparities between the largest and the smallest House district was
almost negligible and the same thing in the Senate, and you really had a plan
that could reflect the rule of the people in that district.
Mr. Lane:
But was there not an application to the Supreme Court,
either...I guess it would have been not later in 1964, but in 1965, to have the
whole matter revisited by...
Justice Smith:
It could have been.
Mr. Lane:
Well, there was some argument, if I recall correctly, was there
not that the adoption in compressed time framework of the Austin-Kleiner Plan
II or whatever...
Justice Smith:
Alternate.
Mr. Lane:
Yes, Alternate. In June of 1964, this would be ordered into
effect for the 1964 elections. Some argument was made at least that that was
the Court's determination and that when the dust settled, the apportionment
commission should take a more deliberate look at the whole matter...
Justice Smith:
Well, you're probably right. I don't remember that there was
anything of a serious nature that the Court that I sat on...and of course,
which I left at the end of 1966, had to do about apportionment once it had
adopted the Austin-Kleiner Alternate. I do recall that the opponents tried to
get a stay in the U.S. Supreme Court and failed, but it went into effect
because I remember that one of the first acts of the one man- one vote, the
first one man-one vote legislature in Michigan was to elect Joe Kowalski the
Speaker, and one of the things that they started looking at was making the
legislature go to a full time legislature and kicking the administrative
offices out of the Capitol, and they started using some of the rooms for
committee rooms and that sort of thing.
Mr. Lane:
Well, I'm going to contribute my little two cents of history
here...
Justice Smith:
Good.
Mr. Lane:
...because I was affected excruciatingly, in my judgment. The
thing was sent back, and I don't remember the instrumentality of the remand,
let's call it, of the whole question to the apportionment commission, but what
I do remember, having come to Michigan after the events that we have
discussed...I had been off in New York and came back with two little kids, and
at midnight on December 31st, one of those years, either 1965...I think it was
1965...it must have been 1965, I was sitting in the Appropriations Room on the
second floor of the capitol where the apportionment commission was watching the
clock because it had been given such and such a period of time to review the
matter and if it could, to adopt a plan in the way that the constitution
provided, presumably by five votes, and they were going through these darn
charades, and I was looking on. I knew it was all in my field, an exercise in
futility...
Justice Smith:
Oh, yes. I faintly remember that there was a mandate to review
all plans in light of Reynolds-Simms, and they came up with the same conclusion
that they had previously come up with before Reynolds-Simms was adopted. I
think that's right, yes.
Mr. Lane:
But I remember so...and I was quite bitter about this...sitting
there at New Year's Eve, the stroke of midnight, and all that stuff, and these
people were going through these charades as I viewed it, and all...New Year's
Eve had been given over to this. I had a couple of little kids at home. When I
got out of there at midnight on New Year's Eve, I had to go write some kind of
an article for the morning paper that I worked for that I knew would never
would get printed, and I got home maybe at 2:00 on the morning of January 1st,
somewhat agitated over the political goings- on, as I viewed them...and maybe
they're government goings-on. But anyway, I wanted to make the point that the
thing did simmer on for a while, and I think you had to cast a vote or two.
Maybe this all seems like footnote stuff to you by now.
Justice Smith:
Yes. I think essentially when we adopted Austin-Kleiner
Alternate, we, so far as the Court was concerned, sort of got shed of the
biggest burden, and I think everybody wanted to unburden himself of some kind
of an opinion, and that's when it got lump opinions...well, leading up to it
and also after Reynolds-Simms, we unburdened ourselves with thoughts which, if
you notice, are not just legal. That's when I advanced the thought that one way
you can solve this thing, hassle, was to amend the constitution to provide that
the Chief Elections Officer would have a ninth and deciding vote in case of
tie. Of course, that wasn't done. Nobody paid any attention to it.
Mr. Lane:
Do you remember what Souris wrote, though, as to the validity
of the Commission?
Justice Smith:
Oh, yes.
Mr. Lane:
You probably lost track, but this became the opinion of the
Court in 1982. Are you aware of that?
Justice Smith:
Yes.
Mr. Lane:
That the Commission itself, once you've taken out the
environment in which the Commission was created of limiting...
Justice Smith:
That was on his own motion. I don't think anybody had made that
argument, I don't believe.
Mr. Lane:
It became a factor later on in 1972 when the apportionment
committee...anyway, T.G. Kavanagh got hung up on that because he took the
Souris argument, adopted it, and he was, for that reason and maybe others, he
was deprived of the nomination that you think a Chief Justice of one party
might get from his own party in 1976, and was able to win anyway because the
constitution... Well, that's all for another time. This apportionment business
was a colossal event, was it not?
Justice Smith:
It was a colossal event in the history of the country. As a
matter of fact, you will remember Chief Justice Warren said a number of times
that the most important decision that the U.S. Supreme Court made in his time
was not the Brown vs. School Board decision which a lot of people thought he
would say, which was very important, obviously, but also he said the
apportionment case.
Mr. Lane:
Did he?
Justice Smith:
Yes. I think anybody who is in the law would agree with that,
that it was just so profound in the way that it affected the make-up of the
state legislatures in the 50 states that it was the most profound thing that
was done by the Court. I must say that there's a footnote to all this, that I
believe it was either 1965..no, it was 1965 and 1966, because I went off the
Court in 1966...Chief Justice Warren visited us at our invitation. He had
visited the Michigan Judges Association meeting which was held up at Boyne
Mountain resort, in the, I think, early summer of 1965 or 1966, probably it was
1966, and I had the privilege not only of being one of his two official hosts
at Metropolitan Airport when he arrived by plane from Washington, D.C. That was
an event in itself, which I digress to say was an event because when he stepped
off...of course, naturally, I recognized him, and so did Paul Adams who was the
other host, but I thought he'd have all kinds of guards around him because, you
know, all over the country, they have these signs "Impeach Earl Warren"...
Justice Smith:
What I was saying when the phone rang was that we were chatting
with him about the Warren Commission and things, all kinds of things. He is a
wonderful man, wonderful man. But as I say, as he got off the plane, I was
looking for all these guards, and he came walking off the plane alone with a
little umbrella on his arm and a very tiny overnight case, more like a
briefcase than an overnight case, and we went up to him and said, "Do you have
guards?", and he said, "Oh, no. Oh, no", and this was a time when there were
signs up all over the country, "Impeach Earl Warren", because of his liberal
opinions. In any event, we got on the plane and took him up, brought him up
from Detroit to Boyne Mountain where he stayed with us for a day. One of the
things that he said in his little talk to the judges, he said, "We were
watching what was to happen in the country after the decision of
Reynolds-Simms. We were a little concerned, I must tell you, and then the
Michigan Supreme Court applied", and we did it, I think, two or three weeks
after the decision was in, and he said, and these were his words, "You were the
first to apply and all the others sort of fell over like ten pins. It was
something we always remember". We were the first and we were the purest
apportion legislature because of the application of the Reynolds-Simms in
Michigan, and the way that the apportionment commission had done it, that is,
the four who had done it, and Austin-Kleiner Alternate was almost perfect.
Mr. Lane:
Just so people, listeners, at a future time...Austin was
Richard...
Justice Smith:
Richard H. Austin.
Mr. Lane:
Richard H. Austin who later became Secretary...
Justice Smith:
...of State...
Mr. Lane:
...of State, and is now, by the way.
Justice Smith:
Yes. For a long time, twenty years or so.
Mr. Lane:
And Kleiner, Bob Kleiner...
Justice Smith:
A. Robert Kleiner was a labor lawyer from Grand Rapids,
Michigan, a long-time worker in the Democratic Party as was Dick Austin. Dick,
at that time, was not in public office. He had a little CPA firm in Detroit,
and was active in the Democratic Party.
Mr. Lane:
Kleiner is a little bandy rooster, sort of...
Justice Smith:
Yes, Bob was one of the...I think we'd had a case of one
man-one vote, as I understand it.
Mr. Lane:
Do you know if...now, when Reynolds vs. Simms was
decided...that was what? A Tennessee case, was it? There must have been eight
or ten similar cases before the United States Supreme Court on appeal
from...Colorado was one of them.
Justice Smith:
Yes, Colorado against Love. Those were the two that were
named.
Mr. Lane:
And there were several others, were there not? I think there
were, anyhow, and I just wondered if you knew whether Gus Scholle, perhaps with
his labor connections around the country, had helped sort of orchestrate this
thing or whether his activity was limited.
Justice Smith:
I really don't know. That's a good question. I don't...I didn't
know how they came about...to my way of thinking, if you look at the interest
in that subject even after the 1890 census in the 1900 in Michigan when there
was no Michigan AFL-CIO, there was no Gus Scholle, there was nobody, I think
people had had a long interest in the apportionment of legislatures. Of course,
as you know, the lower house of Congress is supposed to be apportioned on the
basis of population but rarely was. There was a decision of the U.S. Supreme
Court which reiterated that requirement which is clearly in the U.S.
constitution that it be apportioned on the basis of population, and I think
they had to go to court even to get the legislatures to apportion it reasonably
on the basis of population, because it was all gerrymanded.
Mr. Lane:
Did not the Michigan constitution have a requirement in it, the
one from 1908 or 1901 or whatever...
Justice Smith:
1908.
Mr. Lane:
Did id not have a requirement that there should be a
legislative apportionment after each Federal census and this was ignored as it
was ignored similar provisions...?
Justice Smith:
I don't know, but I'd take your research on that. I don't
recall. I wouldn't doubt that. It would be a logical thing to require.
Mr. Lane:
In the 40's, I think, there was a case where people were
agitated, I think, in Illinois, for that matter, because there had been no
obedience to a constitutional provision on apportionment by the legislature,
that it went to the United States Supreme Court, and it was a close vote. I
remember Felix Frankfurter was quoted thereafter as saying that it was a
political thicket, that the Supreme Court should not attempt to...it was a
political question rather than a judicial...
Justice Smith:
Yes, judicial,...
Mr. Lane:
And this was what was overturned by Baker vs. Carr, right?
Justice Smith:
Yes.
Mr. Lane:
Well, it didn't stop there. Were you on the Court when the
principle of one person-one vote was applied on the county level?
Justice Smith:
No, I left the Court at the end of 1966 having been defeated in
the general election of November, 1966, and so I was out of office the first
day of January, 1967.
Mr. Lane:
You did serve out your term, though.
Justice Smith:
Yes.
Mr. Lane:
There was some speculation, was there not, that you
might...
Justice Smith:
You know, Tommy Brennan who I think may have been a little bit
worried about that provision in the Michigan constitution of 1963 which
provided that the Court would go permanently back from eight to seven members
at the death or resignation of the first member, and he made an issue of it in
the press between the time of the election in November when he and Thomas M.
Kavanagh were elected, Thomas M. having been re-elected, and Thomas E. Brennan
having replaced me by the will of the people in the November election in
1966...between the election and the first year...I don't know why he mentioned
that. I suppose he wanted to run up a flag to see if I, who had lost the
election but was still in my seat in my position and would stay in my position
until the end of the year, the first of the next year...only about seven weeks,
might entertain the thought of resigning between the time of the election and
my actual term expiring at the end of the year which at least could present,
would have presented an issue over the constitutional provision that the Court
go from eight to seven being invoked at that point in time. It was mentioned in
a story in the press, and I was asked my opinion about it, and my immediate
response was that I hadn't thought about it, and I thought it would be
ridiculous to try to defeat the vote of the people who obviously voted to
replace me with Tommy Brennan, and I had no intention of resigning. As a matter
of fact, I not only stayed in office, but I literally stayed in office until
Tommy was sworn in on the first of January, 1967, and when he came off the
capitol steps and headed into my office, which was then his office, I handed
him a key to his office and I said, "Good luck".
Mr. Lane:
The Capitol steps being where he was sworn in, right?
Justice Smith:
Yes.
Mr. Lane:
In the traditional January 1st ceremony?
Justice Smith:
Yes, I would not....
Justice Smith talks about his method of writing decisions and the functioning of the court, writing decisions in the Fenestra case and in Berkaw vs. Mayflower Congregational Church, and his high prosecution rate in court decisions. He then discusses excusing himself from a case involving General Motors employees and begins to talk about the judicial selection process.
Mr. Lane:
...things that I wanted to test your memory on, but I guess
this is the wrong issue to test it on was the instance where, in county
apportionment problem...Do you remember, the Michigan constitution had provided
that the supervisors who were key township officers, kind of executive for the
township should, by virtue of their office, serve on the county board.
Justice Smith:
Yes.
Mr. Lane:
And so this introduced an alien kind of a consideration to the
direct one man-one vote kind of a selection process, and gosh, maybe you should
be glad that you weren't on the Court when this happened because what occurred
eventually when the Supreme Court acted on challenges on the county
apportionment was that in Kent and Muskegon, adjacent counties, the Court, by
going 4:4, upheld the apportionment in one county and in the opposite
county...
Justice Smith:
Oh, my goodness.
Mr. Lane:
You don't remember that?
Justice Smith:
No, I wasn't there, but I have a faint recollection that it was
an issue about county apportionment, but I didn't follow it at the time. I
started on my new career.
Mr. Lane:
Well, this might be a way...I'm going to ask you some questions
about the people that you served with and in this instance, there was
consternation when the Court, by dividing itself equally...there were two
opposite results, two adjacent counties that were upheld because of the
principle that the lower decision stands if the Court is divided, and in order
that there should not be an even split, Gene Black had held off one of the
votes so that it would be 4:4 in one case, and 4:3 in the other, and the next
day, walked into the Clerk's office and demanded the original copy of the
opinion and signed it to make it 4:4. Then Chief Justice Thomas Matthew
Kavanagh almost blew up. He was...well, a lot of people were...
Justice Smith:
Who was that who signed it?
Mr. Lane:
Gene Black, and T.M. Kavanagh, Thomas Matthew Kavanagh...I can
remember meeting him in the corridor up there, and he called this
preposterous...not a usual word for him, and he said, "You can quote me!"
Justice Smith:
Tom Kavanagh?
Mr. Lane:
This is Thomas Matthew Kavanagh, yes. Well, one of the other
things about your service on the Court that I wanted to ask you about. I've
skimmed through some of the work that you did, and I thought I noticed some
things of significance that I wanted to ask you about, whether they were
conscious or whether my impression was right or wrong. One of them was that I
think that you had what I'll call a distinctive style of handling an opinion,
and it was characterized by being very low key. You weren't much on adjectives.
You would immediately identify one, two or three issues, discuss them
concisely, with brevity, cut it off, and if necessary, you would say, "Having
decided issue #1, the other issues need not be addressed. The Court orders thus
and so". Now, did you have a model in your mind that you wanted to adhere
closely to in the production of an opinion when it fell to you to write the
opinion?
Justice Smith:
Yes, I had an idea in mind, and my idea was the Brandeis method
which was something I could never perfect, but I always remembered two things
in writing, three things...The first thing is that you've got to learn very
early that the limitations on review. Everything that comes up to the Court has
some limit on it, either a judicially imposed limitation on review or
legislatively imposed limitation on review. What do you do when you're
reviewing a decision of the Worker's Compensation Appeal Board? There's a
standard of review there. What do you do if you're reviewing what used to be
called "equity" case, an old Chancery case. It's de novo...used to be de novo.
In cases involving simple law suits, you were looking at assignments of error.
Unemployment compensation cases, another standard of review coming from the
Appeal Board, so the first thing you'd learn is that there is limitation on
review, and a good conscientious judge may have all kinds of feelings about the
subject matter, but you look at your review limits, #1. Number 2 is something
that I had to learn the hard way because I was so awfully afraid of hurting
somebody by being mistaken, that I used to just worry, worry, worry over
decisions, and realizing that they're going to be used as precedents, perhaps
for many years to come, that I would just work and work and work until I would
get myself into a frazzle in my first year or so on the Court. To tell you the
truth, I wasn't very productive and record will show that...but not my first
year or two, no. You don't want to confuse me with Talbot Smith because I
succeeded him and because his name was Smith, very often people would look at
his work which is quite distinctive from mine...Talbot was an exquisite, highly
stylized legal writer. I wrote plainly because, as I said, never...I read
something that Brandeis said, "Never consider that you have fashioned the
immanent rule which is the living rule beyond which no other rule can even
approach. The burden is yet to be born", so you do your very best with what
you've got, #2, and the third thing is that you seek clarity, having been
exposed to journalism at Syracuse and having started out life to be a
journalist, I thought I would not like to write long, compound, complex
sentences, that I would write shorter sentences and strive for clarity and
simplicity because, to use another Brandeis quote, "When we get cute, somebody
gets hurt", and I was keenly aware that people who wrote in a highly stylized
fashion, unless you happened to have been somebody like Cardoza who could write
and did write in the grand style, as we call it, the ordinary judge just didn't
have that kind of talent, so what you wanted to do was to decide the case,
decide it as simply as possible so that the lawyers and judges who've got to
follow it are looking at something fairly simple, and just fitted for that
occasion, something that they can interpret and apply with a minimum of effort.
The ringing phrase is the highly stylized adjectives to screw up the works and
make it difficult to fall. You're right. I try to write plainly. Another thing
I would do in very big cases, and I'm thinking about the Fenestra case, and a
few others I wrote that were very, very big cases, had huge records, took an
awful long time to wade through a thirteen week trial record...on the big
cases, I would set out the various segments of the opinion...facts, and I would
confine my statement on facts to the section marked "Statement of Facts". I
would take up the issues, and I would label the head of that section...this
is...whatever the issue was, legal issue, and I would confine my discussion of
that legal issue to that section for clarity's sake, simplicity's sake, and
that's what I followed.
Mr. Lane:
Now, I found as I rifled through, I thought, an astonishing
succession of cases where you were the author of the case. Now, I'm talking
about your cases in that sense, and they were unanimous or maybe with a
concurrence by Black or something like that. I'm trying to focus on the
unanimity, the bringing together of the members of the Court where there were
very serious divisions at times, and yet, when you, and I'm asking you if my
observation is true, and if so, whether you strove to make it this way, that
when you got a case, and even, I think the Fenestra case was one where
everybody went along...now, I'll have to check that out, but did you
consciously, in you service on the Supreme Court, conduct yourself in some way
to bring this about when, in a lot of other cases that you did not handle,
there were sharp and bitter and rancorous divisions.
Justice Smith:
Well, I really didn't change who I was, but I heard several of
my colleagues say early in my service on the Court that what you're here for is
to give your individual judgement, and I didn't agree with that, as I told you.
I think we were there to make decisions by unanimous, if possibly, vote, but
certainly by majority vote, and so I wrote to reflect my own view of the law,
but also to reflect whatever inputs I could get from others who might discuss
it, but I never asked anybody to join me in an opinion. I don't think anybody
ever did around there, when I was there. There was no politicking that I knew
of on opinions. You'd write your material and send it around, and if they had
anything to say about it, sometimes, they would. They'd say, "Well, I don't
like what you're saying here, and I can sign that if you want to restate that a
different way". You look at it and decide if that is a better statement of the
law than what you have given, and if you think that it is, you would change it.
If you think that what you said is what you really wanted to say, you'd leave
it that way, and that person would then decide whether they wanted to sign it
or write a separate concurring, or as a last resort, concurring in result
without opinion.
Mr. Lane:
I'm thinking back as I ask you this question to the way of
operating that you described on the Public Service Commission with Tom Burns
where you would exchange your thoughts and you would be very receptive to what
he thought, and before you ever, I guess, started to get into writing an
opinion phase, you had a large degree of harmony between you. Now, did you
carry this over consciously? Did you work at it when you were on the Supreme
Court?
Justice Smith:
I'd like to think that I did, but I don't think that I really
did on the Supreme Court. There wasn't that kind of atmosphere. The PSC, Public
Service Commission was three people, three commissioners, and there were so few
and we were so close together geographically and every other way that it was
much easier to do it there, because we were all operating, working in Lansing,
right down in the corner of the building on the fifth floor of the Cass
Building with adjoining offices, and we very often went to lunch together, so
it was easy to work in great harmony, close harmony there because of the
arrangement and also because of the personalities involves, Tommy Burns and me,
for example. But on the Court...you remember that Justice Black worked out of
his home in Port Huron. Justice Souris worked out of an office in Detroit
College of Law in Detroit. Let me see...Judge Carr and Judge Dethmers were
there as was Justice Adams and Justice O'Hara when he was elected to the Court
in 1962, and came on in 1963, moved from the U.P. down to Lansing. Justice
Kelly worked out of his home in Gaylord, so there wasn't a physical proximity.
A lot of stuff was done by phone and by memo, so we didn't have the same
physical location of the offices, but...
Mr. Lane:
Do you think that perhaps by writing in a very spare style and
deliberately excluding as far as you could gratuitous observations and pointed
comment, did this make your opinions easier for somebody else...?
Justice Smith:
I think that's true. I think that's true, and that's why I did
it. I did it for several reasons. One is, of course, that I wanted to make it
easy for lawyers and judges to read, but I knew from working in the Court that
when a justice decided to write in a colorful style, try to write the grand
style, that we would always say something that somebody wouldn't like, that
might agree with the ultimate decision, but they didn't like this humorous
phraseology or this biting comment about somebody or something in the case, and
it was usually not necessary.
Mr. Lane:
You would deliberately and resolutely abstain from this, did
you not? This is maybe what I'm trying to say?
Justice Smith:
Most of the time. I think once or twice when I got a little
perturbed at one of the justices who wrote something that I thought was...
Mr. Lane:
Excuse me...take, for an example, the case you mentioned.
Here's the Fenestra case. This, as you said a moment ago, was a blockbuster.
This was a big lawsuit where there had been, in effect, a take over, had there
not...the kind of stuff that you read about in recent years in Wall Street.
Gulf American had come in and, as I remember, bought up control of Fenestra, is
that right?
Justice Smith:
Yes. They bought effective control.
Mr. Lane:
And then the people who felt disadvantaged in Fenestra case
went to court to contest this, and as you said, there was a long trial.
Justice Smith:
Thirteen weeks of trial.
Mr. Lane:
Who tried the case?
Justice Smith:
Judge Piggins in Wayne County.
Mr. Lane:
It must have been well tried?
Justice Smith:
Oh, yes. The only thing is the conclusion was wrong.
Mr. Lane:
Here is a case that was loaded with important financial
implications that really took...where an outsider came into Michigan and took
control of a Michigan firm and all that sort of thing...this was a unanimous
decision, was it not, and if so, how did it get to be that way? Do you remember
what the...?
Justice Smith:
Yes, I think at that time, it was said to be the biggest case
ever to come through the Court in terms of court cost which was assessed to the
parties. All I know is that I spent the whole summer on that case, two months
of the summer working on that case. The record was six feet high, almost,
exhibits and also transcripts.
Mr. Lane:
As you worked on the case, would you perhaps, knowing that you
were coming to a touchy part of it, would you perhaps make a phone call or go
over into somebody's office and say, "I want to handle this in a way that we're
not going to get hung up on this thing. How would it strike you if we do
this...?"
Justice Smith:
Well, you know, the thing is that it was such a big case and a
complicated case that essentially, it fell under the heading of a case that
nobody wanted to tussle with until you had written your opinion, and I might
say..I think I mentioned this, but I wrote my own stuff, except for maybe two
or three paragraphs in al of my opinions. I wrote all my own stuff. Dethmers
did that, and Carr did it, and one or two others did it. I think others might
have used their clerks more actively than some of the other of us did. I just
didn't feel that I could really understand the case and all the nuances and
fact of the law except by writing it myself. I'll tell you frankly after
studying a tough case, I often would finish reading all of the material; I
didn't know what I was going to do until I put pen to paper and started writing
a statement of facts.
Mr. Lane:
Would you write it long hand on a yellow lawyers' papers?
Justice Smith:
Oh, yes. I couldn't dictate it. I had to deal with it word by
word to get the familiarity with it. I'm not a facile writer, so I couldn't
just stand up and tell my secretary and dictate off the top of my head.
Mr. Lane:
At this time, did any of the justices use dictating equipment
to any extent?
Justice Smith:
Yes, some did and some didn't. Dethmers, who was a very able
writer, and he belonged to an organization of scribes, as they were called,
legal writers, and Dethmers had a great touch in writing very difficult matters
in minimum space. He had a way of writing sparingly and going to the issue. He
was a master of that, and he wrote all of them out longhand on yellow pads. He
didn't even use a law clerk at that time. I asked him, "Why don't you have a
clerk?", and he said, "Oh, they get in my way.". He'd do his own research.
Mr. Lane:
That's pretty good discipline, is it not, when you have to take
your pen and make each word?
Justice Smith:
Yes, when you're the one who is responsible for every
word...you see, it's always possible if you decide where the appellent or the
appellee is to more or less adopt the statement of facts on the winning side.
Some people did that.
Mr. Lane:
Well, you'll find that in the reports with some frequency,
won't you?
Justice Smith:
Yes, I didn't think I would have the familiarity with it to be
able to deal with except by writing it, and you write the statement of facts,
and you're examining every word, and you are writing it as colorless as you
possibly can, as neutrally as you possibly can, and then as you come to write
it, little things that you've been troubled by come to you as being decisive of
the way the law is supposed to be applied because of the way the facts have
come out, and that's how I gained familiarity with the case is through writing
the statement of the facts, and then I would write the issues and by that time,
with all the law around me, I knew what was triggered by the facts, and I would
go and write the issues and then resolve it.
Mr. Lane:
Here's another really big complicated, touchy case that you
wrote and it came out unanimous, Berkaw vs. Mayflower Congregational
Church.
Justice Smith:
Oh, yes.
Mr. Lane:
How about that one? Here again, you went against the tide in
the result, did you not?
Justice Smith:
Yes.
Mr. Lane:
As you had in the other case. The relief that was sought in the
appeal was...well, the case was turned over...the Supreme Court of Michigan
overturned a lower result, is what I'm trying to say. Now, that's the toughest,
is it not, to get everybody to go along with putting a finger in the eye of the
judge down below, some of whom you know where there's a personal acquaintance
and all that? Did you work hard at this one, too, to achieve a...?
Justice Smith:
I really didn't worry about what was going to happen, either in
the Fenestra or the Berkaw. I wrote it, as I say, as clearly or as plainly as I
could. I must say, going back, making among the final comment on the Fenestra
case, that when I finally finished that animal, that opinion, and we had a
conference day and the Chief Justice called for Fenestra case, and the typical
way was for the Chief to call for it, and the usual thing is if it were a tough
case, some justices said, "Well, I want to hold that another month. I've got
some things I've got to resolve. I'm sorry, but I just want to hold that.", and
it would be passed. So, the typical question from the Chief was, "Okay,
Fenestra", and there was a pause to wait for some justice to say he wanted to
hold it and in the Fenestra, I remember so clearly, nobody said anything, and I
was really surprised because I knew it was a big case, and I could have
understood if somebody had done differently, but nobody said anything. So the
Chief said, "Okay, Otis, I guess you'd better circulate it", so I signed it and
sent the white around, the white copy around...
Mr. Lane:
The record copy.
Justice Smith:
The record copy. It went around, and of course, everybody
signed it. I think Justice Black concurred in the result.
Mr. Lane:
Now, the result, by the way, there was, as to the recovery that
the people from, the aggrieved party from Fenestra wanted...it was premature,
was it not, to grant relief on that?
Justice Smith:
Yes, no matter how many faints and punches and threats that
were made, they really hadn't done anything to deserve the complete reversal of
the case and the requirement that they, the party who had come from the outside
dispose of all their assets, turn them over. I think they owned about 25%,
something like that, maybe a little bit more, effectively had control, but they
really hadn't done anything to deserve that, I wrote to reverse, and of course,
the Court agreed with me. In the Berkaw...the Berkaw was fascinating because it
involved a religious organization.
Mr. Lane:
Just in a nutshell, would you, for the benefit of the...
Justice Smith:
Well, the Berkaw case involved the famous issue of departure.
The U.S. Supreme Court ruled way back, I believe, in the early 1800's that the
courts couldn't tinker around with the matter of faith and beliefs of a
church.
Mr. Lane:
Of a denomination...
Justice Smith:
Yes. All they could do was to test whether there was a
departure from the tenets of the faith that the building had been or property
had been dedicated to, and if it found that there was no departure in the
organization or reorganization of a church, they couldn't touch it, and only
then could they touch the property, disposition of property and so would follow
the faith and beliefs of people who had established the church. In the Berkaw
case, it had to do with many of the merges that occurred in the Protestant
church in the U.S. after World War II. This involved the merger of the
Congregational Church and the Evangelical and Reform into what is now called
the United Church of Christ, and the case had been...a case similar to this had
been heard and decided in New York and also in Arizona, and I think in Ohio, as
I remember. It came up in the case of the Mayflower Congregational Church up
here in the northwest part of Detroit, and the case was tried in the Wayne
Circuit, and the doctrine of collateral estoppel was invoked which is to say
this case has already been decided. The essential issues were before the Court,
and the parties, in effect were before the Court in another case which was
decided previously. In this case, it was Parks Memorial Church...Cadman
Memorial Church in New York, and that decision was followed in Ohio and
Arizona, as I remember it. That held...the cases that were decided following
the Cadman Memorial case in New York, interpreted the New York case as having
decided the issue of departure, and the truth is, they hadn't. They misread it,
and they misread it because of the way...
Mr. Lane:
Decided in the negative?
Justice Smith:
Yes. They decided that there had been no departure, that what
the Court was dealing with here is what the Court, not in New York which took
up the issues...presumed to take up the issues but didn't...the way it was
written was confusing in the Court of Appeals New York case, but in Arizona and
I think in Ohio, they were reading the Cadman Memorial case for something it
didn't say, and the only reason I got onto them was that in referring to the
seminal case that tells you you'll end it up in review, it said in the Cadman
case in New York, Cf. (confer), the old latin for "look at it". Everybody
thought in Arizona and Ohio that that meant they were relying on it, and it was
the law. They were saying, look at that review and be edified about what you
read in that, but it was not the authority, and when I went back into reading
the New York case, the Cadman case, a long opinion that was written by the
trial judge in New York Supreme Court Trial Division and the equally long
opinion that was written by the Appellate judge in the Appellate Division of
the New York Supreme Court, it was clear that they had decided somewhat
peripheral issues about pensions and trusts and things of that kind, but they
had never really taken up the issue of departure. I said, "No, no, no. You've
followed up the wrong thing", and I wrote to reverse the Michigan Court of
Appeals, and I guess my colleagues on the Court found it was satisfactory, and
they all voted for it.
Mr. Lane:
There was another aspect of your work that ties in here. You,
it seemed to me, had a prodigious product. You wrote an unusual number of
cases. I counted them up, and by referring to this Westlaw printout, and I say
that just because of the notation that I'm using. On the left hand column, it
recites the year of the publication of the report that contains the case. I
counted up and I found that under 1963, you wrote 39 opinions. You're credited
with that by Westlaw, anyway.
Justice Smith:
Is that right?
Mr. Lane:
And the output of the Court, in at least comparatively recent
years, has been right around 110 or 120 cases, opinion cases. Now, it's true
that, to my observation, many of the cases that you held are three or four
pages, or five pages in the reports, but I think of that as testimony more to
your method than to the fact that it was a two-bit case. What have you got to
say about this?
Justice Smith:
Well, I think if you compare me or any other justice of my time
with the justices of this time, you will find that we were all much more
productive in the writing of opinions, and the simple reason is first of all,
we had to, because there was no intermediate Appellate Court for at least about
half the time I was on the Court. We were doing around 300 opinions a year on
the Michigan Supreme Court.
Mr. Lane:
Were you?
Justice Smith:
Yes, and so I was probably, in terms of absolute numbers, I
probably was the least productive.
Mr. Lane:
Holy mackerel.
Justice Smith:
I had a review of this done by my clerk in 1966 as I was
approaching the election and I thought I'd be accountable for my work on the
Court, and he found that of the 800 some odd cases that we had decided, I had
written 108 opinions total from the time I was on the Court. He also found that
several things... one is that in about 83%, as I remember, of the cases that
were decided by the Court during my time on the Court, the decisions were
unanimous.
Mr. Lane:
Is that right?
Justice Smith:
Oh, yes, and I remember there were about 11% that were splits
of every kind, and only in about 6% of them were there the kinds of splits that
the press often called partisan splits, over apportionment, over personal
injury law, over the motion of practice, summary judgement practice and things
of that kind where judicial philosophy may have followed to some extent
political philosophy, but that was a very minimal number of cases that were
what the papers called partisan dissents where all the Democrats wound up on
one side and the Republicans on the other.
Mr. Lane:
Do you think you still have in that possession that analysis
that was done by the clerk for you at that time? This would be an interesting
historical document, I think.
Justice Smith:
I don't know.
Mr. Lane:
Do you have much of what he produced in those days other than
what's in the reports? Do you save your memorandums?
Justice Smith:
I used to have it, but the 25 years or so since I was
there...I'd look for it. I would have it in two places. I surely don't have it
easily available....
Mr. Lane:
On a longer term basis, I would encourage, if I may, to
consider whether, if this is lying around somewhere, and here is a repository
for it.
Justice Smith:
One other thing that my clerk, Mike Stafford, who is a lawyer
in Lansing, found is that I had the highest persuasion rate of any of the
justices in terms of the percentage of the cases that I wrote that became
majority view. I was in the 80% group, and I think the next justice was in with
77%, both of which are pretty good, and I analyze that this way. You could say,
here's a guy who really is overwhelming his colleagues. That wasn't true. I
think for reasons we already discussed, I probably picked up votes because I
didn't write with any particular personality, flare or color, didn't want to,
and also that made it easier for the judges to agree with you. The other thing
was that I think, although I used to consider myself a kind of a leading
liberal, I think as it turned out, when I came to face issues, that I probably
wound up in the middle of the Court. I was neither conservative...I was
probably more liberal than I was...I'm sure people would say that, but I was
more kind of a moderate liberal, I guess. If you focus on that, and you think
you're going to build a reputation that way, you're going to be a bad judge.
What you've got to do is call them as you see them and let the chips fall where
they may, and then you find out later on what you are by what you've...
Mr. Lane:
What you've done.
Justice Smith:
What you've done, and then you say, "Oh, was I liberal. Well, I
must have been, or was I moderate liberal, or whatever". I think that I
satisfied myself that the reason I had a persuasion rate that high was because
I probably philosophically fell somewhere towards the middle of the court,
rather than on the left, so to speak.
Mr. Lane:
Do you remember the case...I'm sure you do, where there was a
dispute involving some 5,000 Flint auto workers. I think the name of the case
was Stinson. There had been a strike in Ohio. These fellows were thrown out.
Remember that?
Justice Smith:
Yes.
Mr. Lane:
Okay. Part of it that I want to really have you recall is you
disqualified yourself first time around because you had ownership, and there
were two others on the Court disqualified.
Justice Smith:
Souris.
Mr. Lane:
Souris, and Adams had been as Attorney General, involved in the
thing, and he disqualified for that reason, I think. Do you recall what
happened there?
Justice Smith:
I think at that time, we were thinking in absolute terms. If
you had any interest at all, and I had a nine shares.
Mr. Lane:
Was it eight. I thought you told me eight one time, but you
said under ten.
Justice Smith:
Yes. When I was at Public Service Commission, I became
interested in stocks for the first time in my life, really interested, because
I had so much to do with it in rate cases, dealing with the rates of return,
and so I was looking at stock. I remember buying some Dupont after the first
opinion was announced in the Dupont case requiring Dupont to divest itself of
the 23% interest it held in General Motors, and I remember all the caterwauling
about that will destroy not only Dupont and General Motors, but that decision
will destroy the stock market. I said, "Oh, boy. That's overstated". To make a
long story short, I bird dogged the Dupont stock as it fell from middle 250's,
200 dollars/share down to about 168 dollars/share, and it started back up, and
I grabbed off 10 whole shares for $174.50 a share, and when the divestiture
became final, I not only was able to sell my Dupont, as I think for something
like $230.00/share but in the divestiture, I got almost a share of GM for every
share of Dupont I had owned, and at the time, I was holding nine...eight or
nine shares of GM, and the thinking was that if you had a stock interest in a
major corporation, you wouldn't participate in its cases.
Mr. Lane:
Well, the canons were quite explicit on that, were they
not?
Justice Smith:
I don't think they were at that time. It had to do with an
interest. What we did was we applied the Federal Court rule on rehearing.
Justice Smith:
It came up...it was 3:2, something like that, ridiculous.
Mr. Lane:
What happened was, there were three people who disqualified
themselves, all were felt by Zwerdling, remember A.L. Zwerdling thought that he
would have been the winner if you three did not vote, so it came out actually
3:2 and you had Dethmers, Carr and somebody else carried the day, and he lost,
and so he hit the ceiling and made a lot of waves.
Justice Smith:
We had a rehearing on that, didn't we?
Mr. Lane:
You went back and changed the rules. The way it happened, as I
recall, and you correct me if I'm wrong, was that he asked for a rehearing, and
it was denied, but then the Court, on its own motion, changed its canons that
applied to Michigan. Then...sua sponte, I think, with Souris leading the
charge, you entertained a rehearing without...on your own motion, so to speak.
I don't know what happened. Do you remember what happened in the case?
Justice Smith:
No, I don't. I think we had a new vote on it, but the final
results ought to be in the reports. I'm sure it is. I remember discussing the
rule change. The way we had regarded it, the three of us, was too severe, for
blocking us from deciding cases in which major corporations are listed with
millions and millions of shares.
Mr. Lane:
288 millions at General Motors.
Justice Smith:
Is that what it was?
Mr. Lane:
I think so, and you had eight or whatever it was.
Justice Smith:
We looked for guidance, and I think we found it in the Federal
rules about if stock is listed on a stock exchange, some percentage, a very
small percentage...if you have less than that, you are qualified to participate
in a decision affecting the fortunes, if you will, of that corporation.
Mr. Lane:
I wanted to bring up the matter of the selection process on the
Supreme Court which has come under criticism for many years and for many
people. At one time, Gene Black got pretty shrill, as did my words about this,
and he not only criticized the way the Court was constituted, the make up, the
manner of choosing, selection of Supreme Court justices, but he also criticized
the matter of choosing within the Court a Chief Justice. What are your thoughts
on this subject?
Justice Smith:
Well, I have done a couple 180 degree turns on this one over my
forty years as a lawyer, starting out believing devoutly in the Federal system,
having become acquainted with Federal judges over the years who were appointed,
of course, and then having become acquainted with State judges, very often, who
were elected, not only here, but in most other places around the country, and I
guess my thinking was, for a long time, that both systems produced very good
judges and very poor judges, and I came out kind of a Jeffersonian resolution
of it, and said, "Well, if you follow the philosophy of Jefferson as much as
you can, you make people in high public office accountable to the voters". My,
I hope, final thoughts on it run something like this...I think that a fusion of
the two probably produces the best system. I don't particularly go for the
Missouri Appointment Commission is the standard by which many of these are
based, simply because I think the intense politics would be played out in the
Commission in a different way within the Commission itself. There being no
better way that I can think of to do it, I would leave it up to the Governor to
make the appointments. I like the California system, I'll say that. Let the
Governor make the appointments to major courts, and then to cut down on the
campaign budgets and cut down on the politics, leave it to the people as in the
California system to vote every six or eight years on whether they want to
retain the judge. I like the thought of having judges who wield so much power
in our system...
Justice Smith continues to talk about the judicial selection process and relates it to the U.S. Supreme Court hearings for David Souter at the time. He then discusses the Mallory case concerning the right to counsel, his experience with criminal cases, memorable custody cases, the case of People vs. Lochriccio, and a Township of Pittsfield case concerning zoning. He also discusses his colleagues and their geographic dispersal, the selection of Chief Justice, the personality of Justice Gene Black, and racial classification in the United States.
Mr. Lane:
Here we are again on the matter of judicial selection. What
about the election, the original election in Michigan? Do you approve of that?
The theory is that....
Justice Smith:
I don't anymore. I think the best way to get a Supreme Court is
to have them appointed by the Governor, and then have them, as they do in
California, run against their record, so to speak about every six or eight
years..."Shall Justice 'X' be retained?"...not have a live opponent.
Essentially, that means that they are untouched by partisan politics unless
that do something which, in the public mind, is so grievous over a period of
time that it makes for a good campaign issue by groups or the media or
combination of both who exploit that position of the person so much so that it
becomes in the minds of the voters something that they don't favor. Now, there
are people who say, "Well, the trouble with that is that you're always subject
to the whim of some group or to the press". Well, I think the people have
pretty good sense. They can be misled and are misled from time to time, but by
and large, they figure things out pretty well. They may arrive at the right
decision for the wrong reason, but they can dope it out because essentially,
the press is free, and the ideas are free and people are naturally suspicious
of any kind of campaign. They want to know who is behind it, and usually
opposition exposes that, so I'm comfortable with leaving it to the people just
on the question of whether the justices should be retained. I guess I wouldn't
undo the Federal system and make it like that for the simple reason that the
Federal judges usually cover wider areas and trying to get campaigns together,
I think, would be very difficult, so I guess I'm a pragmatist, essentially, and
if it works, leave it alone. But so far as the State system is concerned, I
like the way they do the Appellate Courts, appointment of Appellate Courts in
California.
Mr. Lane:
It's interesting. In the Appellate Court system in Michigan, if
I am not mistaken, there has never been an incumbent defeated.
Justice Smith:
I don't believe so, except the Supreme Court.
Mr. Lane:
In a Court of Appeals, I meant. On the Supreme Court, of
course, we have had some...
Justice Smith:
Lots of defeats.
Mr. Lane:
Well, quite a few, and a lot of them have been...well, now in
your case, it's pretty tough in this state to run against a Brennan.
Justice Smith:
Oh, good God, what a good Irish name...
Mr. Lane:
A Riley, a Kavanagh...
Justice Smith:
Fitzgerald.
Mr. Lane:
Well, yes.
Justice Smith:
You know the history of the Michigan Supreme Court. Harry Kelly
took on Clark Adams in 1953 and beat him. Mike O'Hara took on Paul Adams in
1962 and beat him. Thomas Giles Kavanagh took on Mike O'Hara. That was
interesting, in 1966, I think it was, and beat him.
Mr. Lane:
1968.
Justice Smith:
It was 1968?
Mr. Lane:
Yes.
Justice Smith:
And there have been...well, Dorothy Riley took on Thomas Giles
and beat him, you know.
Mr. Lane:
Well, that was a pretty unusual set of circumstances that was,
I think in the voters' mind, in that case...would you not think so?
Justice Smith:
Yes.
Mr. Lane:
What went on...
Justice Smith:
I think they just felt she got a raw deal.
Mr. Lane:
Well, and do you realize that when she ran, the year of her
appointment, two or three months or several weeks before her appointment was
announced, she had run within, I think, 10,000 or 15,000 of Mike Kavanagh in a
state-wide race.
Justice Smith:
Yes.
Mr. Lane:
The idea that several people have expressed is that there is
something radically wrong with the proposition that you are nominated one day
by a political convention and the next day and from then on, you're
non-partisan. That's pretty hard to...
Justice Smith:
I prefer not to do it that way. Given the power of decision on
that particular one, I would opt in favor of doing it a better way, I would
think, and I think from all the ways I've seen it alternatively, I could go
with the peer appointment for life. I am enough of a Jeffersonian that when it
is practical to get the voice of the people in it, I would do that, and I think
I like, of all the systems I've seen in the states, I like the California
system best.
Mr. Lane:
If you were in a position of Judge Souter at the time that he
was tapped for the Supreme Court, knowing what was ahead, would you have
accepted the ordeal of...?
Justice Smith:
Oh, sure.
Mr. Lane:
Would you?
Justice Smith:
Yes.
Mr. Lane:
That's pretty tough, though.
Justice Smith:
Well, I don't know. He was a smart guy. He did it just exactly
right. My impression is that Justice Souter is Justice Souter, and he is bright
enough, and I think he outsmarted everybody. He outsmarted the President, who I
think was hoping that he would be more right-wing conservative that he actually
turned out to be. I think the other people who were hoping for that were
disappointed. He essentially, in a very careful and almost crafty way, he spoke
his mind. He let people know...
Mr. Lane:
Up to a point.
Justice Smith:
Up to a point, yes, and he flagged out on the ones that were of
the high political moment where they wanted to get into abortion or something
like that, but he did answer the question that he thought implicit in the
constitution of the United States had a right of privacy in it which, of
course, is the foundation of the Roe-Wade case, so he reveals something of
himself, but he wouldn't get into a discussion of Roe vs. Wade, and I wouldn't
either. If I had been smart enough, I would have had it just the way he
did.
Mr. Lane:
He knew when to end a sentence, didn't he?
Justice Smith:
Yes, he certainly did.
Mr. Lane:
I wanted to ask a question about late in your service, there
came a bunch of cases relating to the provision of counsel which has been a
thorny proposition for many years. One time, as I recall, did not the Supreme
Court during your period of service, extend the right to counsel to
misdemeanants?
Justice Smith:
Yes.
Mr. Lane:
And then it pulled back, right? Was that not true that
it...?
Justice Smith:
I don't think when I was there, it did. It may have, but I
don't recall if it did.
Mr. Lane:
I was going to ask you about the Mallory case which I thought
was during your period, and that was where some fellow wound up in prison for a
parole violation. I think there were several of these cases together, and he
wanted counsel on appeal, and he started out as a misdemeanor conviction, and
the Court held that under the circumstances of this fellow, that he was in
prison and he wanted to get out, that the misdemeanor was at the root of it,
that misdemeanants should be afforded counsel. I just wondered where you think
we are now. Is this issue under control? There is an initiative that just went
through the legislature. I didn't even know about this. Justice Swainson
pointed it out to me, and it provides...it has to do with the abortion
controversy, and it now provides, it's a law of Michigan effective next April,
that if a female minor under 18 should become pregnant and want an abortion and
be unwilling or unable to get parental consent, that she could then have a
right to go to court. The initiative provides a lot of stuff, but one of the
things is that she shall be provided counsel. If she is dissatisfied with the
result, she will be provided further counsel for an appeal. Is this within
the....we had paternity cases, the same thing. Counsel is provided. Where does
this end? Is this good or bad or what?
Justice Smith:
Well, you know, if you take the principle that when you have
legal rights to be vindicated, that you need a lawyer to help you vindicate
your rights, and you follow that right on down through to the nth degree, I
think you can get pretty absurd about it. I think that principle can be and it
should become a pragmatism. There are no absolutes that I know of anyplace,
anywhere. The are temporal truths that we operate under, and they look like
absolutes, but they are always subject to test application and if they don't
work out in some agreeable way, they should be changed. I think you can take it
so far and you can really run it in the ground. Clearly, when major rights are
at stake, they ought to be some help if a person is truly indigent. If they
have to pay for it on time, and they can afford to, they ought to be allowed to
hire their own counselor and pay for it. If they're truly indigent and the
rights to be vindicated are major, that have a great lot to do with health,
welfare, freedom, I don't have any problem with providing counsel, but I
wouldn't provide counsel, I don't think, in an assault and battery case, for
example, a whole bunch of....where, you know, you're looking at ninety days and
the system sort of takes care of it. I don't think I would burden the taxpayers
with the responsibility of always providing counsel in everything that appears
for a case. Even where people are indigent, I think that there are ways of
addressing that. We have, of course, Legal Aid defendant systems in place in
many places. We have a bar that usually is willing, in most cases, to provide
counsel where nothing else is available. The Bar Association was doing that
long before they had Legal Aid defend the lawyers. The County Bar Association
had legal aid committees that provided an awful lot of free services. I
remember that. That Legal Aid defender thing took off in the middle 50's when I
started practicing. The Bar Association thought it was its responsibility to
provide counsel. They didn't cover it as well as they do now, but they...
Mr. Lane:
When you were practicing in Flint, could you find yourself in a
courtroom with a judge sitting up there and saying, "Mr. Smith, will you
approach the bench please. This man needs counsel. I want you to take him out
there and give him some assistance. He is charged with assault and battery" or
something. Did you ever encounter that?
Justice Smith:
I was sworn in on a Monday, and on Tuesday, I was appointed to
defend a person who was in jail, in my absence, I was appointed. On Wednesday
morning, I had to face the jury. Yes, I had a lot of that happen to me,
sure.
Mr. Lane:
Was this a good thing or not?
Justice Smith:
Well, the way I saw it function in Flint at that time, it
worked out all right.
Mr. Lane:
Do you remember somebody...didn't somebody give T. John an
appointment like that under highly charged circumstances, and T. John
said...this was a punitive appointment, I think. I don't remember.
Justice Smith:
Well, you wouldn't take a commercial lawyer and put him on a
murder case. No, you'd put somebody who knows a murder case.
Mr. Lane:
That brings me to something else. As I skimmed through
your...what do I call it? Work product?
Justice Smith:
I suppose, yes.
Mr. Lane:
Okay. I didn't see hardly any criminal cases. Was that because
of the luck of the draw or was there some way that these wound up with somebody
else when you were on the Court?
Justice Smith:
I think it was mostly luck of the draw, I suppose, unless
something happened behind my back I didn't know. I participated in all the
criminal cases, obviously, and there is a small story in that, too. That is
that I found out I had limits on what I was willing to do for criminals. I
remember a guy whose name was something like Vishnesky (sic) who was a lifer at
Marquette. This guy was a very bright guy, and he could write some of the most
beguiling applications for habeas corpus ad testificandum you know, and as soon
as the Court would dispose of one, he would have another ready, and they were
well-written, and they were teases because he'd always say, "Well, you know,
you didn't really consider this, so let me give you a new issue to chew on". I
became acutely aware of Mr. Vishnesky always on the Court, and I took the
trouble to check and found out that before I had arrived on the Court, he had
petitioned the Court seven or eight times unsuccessfully, and while I was on
the Court, he was petitioning about every time we disposed of one, there was
another coming. I think about the third or fourth one before the Court during
my time, I said to my colleagues, "I'm going to tell you something. I have
given Mr. Vishnesky all the due process I'm going to give him. I'm not going to
take my time away from other cases to go through some craftily worded petition.
If he hasn't been able to convince us in ten to twelve times, I just assume
that he can't. He's had his due process with me so from now, the answer so far
as I'm concerned is 'No'." I did that a couple times while I was there. Or we
had a case in Detroit here involving replevin action for some guy who was an
obvious fence, and we got all wound up in high principle on that. I said,
"Pragmatically, I'm going to tell you, fellows. I'm not going to put him back
in the business of being a fence. I'm going to replevin action". I voted with
the lower court, and by 4:4 split decision, somebody was allowed to replevin
all that four or five dozen new tires and clock radios by the dozens and all
kinds of stuff that he had in his possession that was actually discovered
because the cops suspected he was a fence, and they waited for the opportunity
one night when he was opening the door to let somebody in with a whole bunch of
stuff, and they could see, they said, from the outside that his whole room was
filled with shelves, and it was the store. This was actually a private home. I
said, "Oh, no. No, no, no. I know what the principle is. I understand it
probably better than you do" because I really had had more criminal experience
than anybody there.
Mr. Lane:
Oh, had you.
Justice Smith:
Oh, definitely.
Mr. Lane:
I didn't know that.
Justice Smith:
I had been Assistant Prosecutor.
Mr. Lane:
That's right.
Justice Smith:
But also, I'd done a lot of defense work. If you check the
Flint Genessee County Legal News in the fall of 1955, I had more felony cases
pending as a defense lawyer than all the other bar combined.
Mr. Lane:
Is that true?
Justice Smith:
Oh, yes. I had a fair amount of criminal work.
Mr. Lane:
I didn't know that.
Justice Smith:
I finally got weary of it in the last several years of my
practice there, and I just gave up most of it. I mean, when I was practicing, I
used to do a good bit of it as a part of the general practice of law.
Mr. Lane:
Gee, I didn't know that.
Justice Smith:
So I was familiar with the rights of the accused, and I thought
they ought to be protected, but I thought, again, apply common sense to it. My
judgement was a number of the cases that we had probably gone overboard a
little bit.
Mr. Lane:
In your time, were the cases drawn by lot or was there
assignment by the Chief Justice, or how was that done?
Justice Smith:
Well, the Clerk of the Court was to do it in absolute rotation.
When the briefs and records were filed in the Court, he was required to put the
number of the Justice on it. If you were Chief Justice, it would have been #1,
and then in order of seniority, #2, 3, 4, 5, 6, 7, 8. So all the time I was
there, I think I was either 8 or 7. I think I finally got to 6 because
of...with Edwards leaving in the first two months I was there, and Adams coming
on, and then Adams losing the election in 1962, and Mike O'Hara coming on, and
then Carr leaving in 1963 and Paul Adams coming back on in 1964. I think I was
5 or 6 or something like that, my number was, but we were all assigned in
absolute rotation. That didn't mean that you couldn't switch cases by
agreement.
Mr. Lane:
That was Huey Carpenter...was Clerk then, was he or was it Don
Winters?
Justice Smith:
Don Winter.
Mr. Lane:
And your number would come in rotation. If #4 got the last
case, #5 would get the next one, is that it?
Justice Smith:
Yes, 6, 7, 8 and the back up to 1.
Mr. Lane:
When I was looking through this material, I was in the library,
long comes Gene Krasicky. Do you remember Gene?
Justice Smith:
Eugene Krasicky, yes.
Mr. Lane:
I said, he had been on some of these cases. You'll see his name
on as Assistant Attorney General, you know. I said, "Gene, what do you
remember? Do any of these cases jump out at you?" He didn't help me very much,
but what he marked is Osius vs. Dingell, and that was a parol trust by a
babysitter on behalf of the child of the people that...she was an older woman.
She became attached to the child and the family there where she babysat, and
she got a couple hundred...does that ring any bells with you? Was that a case
of significance in your view?
Justice Smith:
I remember Osius vs. Dingell by name, and I don't remember
those facts. I remember Mather case that was a cause celeb. when I was on the
Court. Pearl Gene Hatmaker case vs. somebody, and that was a bitter case that
ran for years and years and years, and I drew the horror of writing the first
opinion in that one, and that one was highly controversial. It had to do with
what some people called the rights of the parents against the rights of
children, asking for the clarification of the best interest of the child, what
that really meant.
Mr. Lane:
And it's still being clarified, I think.
Justice Smith:
I'm sure it would be. I found out nothing can get the Justices
stirred up more emotionally than a custody case.
Mr. Lane:
Well, you were a father of four sons?
Justice Smith:
Yes.
Mr. Lane:
You got stirred up, too, didn't you, on some of those?
Justice Smith:
Well, yes, I was stirred up, but I finally got angry. Some of
them really got angry about what they considered opinions and beliefs that were
either pro-parent or pro- children, and so we had some real, real emotional
sessions over that, that Hatmaker case.
Mr. Lane:
Was that a custody case.
Justice Smith:
Well, it was actually...oh, briefly, it was a case of a young
woman who was described as dull normal who came from up in Gratiot County way,
and who had been married, divorced with two kids, and after the divorce from
the first husband, she had come to live with a sister in the Detroit area, and
she had first one and then two children out of wedlock, and the first child,
she put out for adoption successfully, and the second child, when she had the
child, she thought she wanted to adopt the child and while she was still
recovering from childbirth in the hospital, she let the Michigan Children Aid
Society keep the child temporarily, and then when she got out of the hospital,
she started to think more about it and decided she wanted the child, and she
pursued this for a very long time. She tried to get a chance to see the child,
and the agency decided that it wasn't in the child's best interest or the
parent's best interest to have her see the child. What really got complicated
was that the agency had prospective adoptive parents for this child, and they
kind of put the child on a loan. All this was without benefit of any legal
proceeding at all, put the child on loan to the prospective adoptive parents
who became very much attached to the child, and while the natural mother was
trying to see the child and then ultimately in Court, trying to get the child
back from the prospective adoptive parents, who fought it all the way along
with the Children's Aid Society, it got to be a real..., and what they really
did was the mother went back up north and got counsel from Saginaw, a couple
brothers who were very, very determined lawyers and for eight years, they ran
up and down the highway from Saginaw County to Washtenaw trying to get the baby
back. Of course, by that time, the child is grown up, seven or eight years old,
terrible thing, but of course, I wrote ultimately, when it came to the Court,
to return the child to the mother, because she had shown she was capable. She
had shown her interest. She was not neglectful, and so I didn't know what other
thing you could do other than justify kidnapping, because it was almost a
kidnapping. So, a couple Justices didn't think much of that, and I remember
your papers, the old paper...the Free Press...no, you went with AP, but the
Free Press...well, you were with the Free Press.
Mr. Lane:
Ultimately, yes.
Justice Smith:
They wrote a series of articles about the rights of children
against the rights of parents. I don't think they liked my position because the
way I wrote it, it was like they thought I favored the parental rights. I
didn't have any kind of brief for that one way or the other. I thought the best
interest of the child lay originally with the mother who was still there, and
although there was traumatic kind of removal from the arms, so to speak, of the
only parents she had known, that was occasioned by the fact that everybody
fought it so damn long, but the referee in Probate Court in Washtenaw County
decided originally the right way. He said there is no legal proceeding. It was
only a year or fourteen months after the child had been put out to the agency
for possible adoption. He said, "Nothing here. Give her back to the mother
where she belongs". That was in the second year of the life of the child, as I
remember, but everybody else was so determined to make this woman look
terrible, said she was an unfit mother, she had married, and she got a guy that
really loved her, offered to adopt the child, and he had adopted her other two
children. He was a very good husband, worked for the shop here, and they were
doing fine, and she had recovered from a nervous breakdown that she had when
they wouldn't give her the child back. It was an awful case. It was tough to
decide, and it would have taken Solomon to decide that one. I suppose he would
decide it the same way.
Mr. Lane:
People vs. Lochriccio. That's the tip sheet case. Do you
remember that one where there was a fellow that had a...I think you called it
the equivalent of racing form, only it had to do with numbers, and I think you
enjoyed that case a little bit. You said that the tip sheet paper, whatever the
heck it was, the numbers, did not qualify as gambling paraphernalia. It was
more for the spiritual.
Justice Smith:
Do I have that?
Mr. Lane:
No, you did not use the word "spiritual".
Justice Smith:
I don't remember that. I remember the name of the case, but I
don't remember that.
Mr. Lane:
Well, I saw the name and I looked at it because of that, and
Krasicky at my elbows, and my God, the world if full of Lochriccios. You're
thinking of the one at Pine Knob, so it was just a two-bit case, I guess. Some
poor guy had...he didn't have dice and the actual numbers sheet or how you play
the numbers, but he had some counsel, some written advise to people who were
interested in this, about some hot numbers, hot in the sense of astrology. Use
your birth date, or...
Justice Smith:
Oh, yes, the old numbers business.
Mr. Lane:
And this was related to the numbers kind of gambling, and this
guy just happened to be an enthusiast, I guess, and he had the literature but
not the paraphernalia.
Justice Smith:
I don't remember that.
Mr. Lane:
That was probably a three or four page case. Are there any
others that you think of?
Justice Smith:
Let me see your sheet here for a minute.
Mr. Lane:
That's all the affirmative cases, you know.
Justice Smith:
In re Mathers, that's the case I was talking about. Let's
see...oh, boy. All these names look awfully familiar. Some I remember, some I
don't. I wrote a...the Township of Pittsfield case. That was an interesting
case.
Mr. Lane:
That was a zoning case, was it?
Justice Smith:
Yes. That's the case in which the zoning authorities illegally
granted the permission of the municipality to build a dog kennel at a place
where it was not allowed, because the guy built a kennel and it was discovered
in litigation that they...
Mr. Lane:
Building inspector issued a little permit.
Justice Smith:
Yes, issued a permit contrary to law. Of course, that was
controlled by the Highland Park case that was a similar case on that issue.
When people in authority, in government misread the law, does that change it?
Of course, the obvious answer is "no", so it isn't enough to simply go up and
petition the authorities to act. You'd better be damned sure that they're on
sound ground when they do act because if anything happens, prepositional to
some other party, they can simply point out that they acted contrary to the
law, and the Courts are not going to say, "Well, that's too bad. We're just
going to change the law." We didn't have the authority and so whatever you did
including, in this case, the guy spent all the money.
Mr. Lane:
Doing a lot...
Justice Smith:
Spending for a dog kennel...
Mr. Lane:
Forty or fifty booths, or whatever...
Justice Smith:
He had to tear it down, and I remember, that was based upon a
case that Judge Carr wrote coming out of Highland Park sometime earlier.
Mr. Lane:
What was your feeling about Judge Carr? I mean, you served two
or three years with him, didn't you?
Justice Smith:
Yes, I served with him until he left the Court in 1963, I
think. I had great respect for him. I had respect with everybody. I got along
with him fine. We used to talk. I used to go into talk to him about cases, and
Dethmers, occasionally Gene Black up in Port Huron, who wasn't there, but for
the people who were there, Justices who had their offices in the capitol as I
did, particularly Mike O'Hara...Mike and I were neighbors west of Lansing, and
when he came on the Court, we were not only neighbors, we used to talk a lot
about cases. We'd just go right on home talking, stop by his place, and of
course, I knew his family and he knew mine, and we'd discuss matters a lot.
Sometimes, we'd agree. Sometimes, we wouldn't, but we sure got a lot of
discussion in. O'Hara, to me, was someone like Tom Burns was to me when I was
on the Public Service Commission. He was a person who was reasonable, and you
could discuss things with, and he loved to discuss the law, and he respected
your opinion and I respected his, and so we very often hammered out things
between us that otherwise we probably would not have agreed on because we
understood the positions.
Mr. Lane:
Does the Court, in present day, in recent years, suffer from
the dispersal of the members of the Court which is, I think, more pronounced by
a good deal that it was even when...?
Justice Smith:
I don't think you can have a true collegial Court without
having people be in the same geographical location. I'm all in favor of the
tenure for the Justices where they feel they don't have to maintain residences
in their power centers where they have all the support, say in Wayne County, if
they're from here, and I would have a requirement that they all live in
Lansing.
Mr. Lane:
Do you remember there was a time, I guess it was after you left
the Court, when the legislature tried, in the interest of getting everybody to
come to Lansing, wanted to take the cars away from the members of the Court,
and Kelly said you couldn't do that. Once the Court got the money, it could
spend it the way it wanted to.
Justice Smith:
Yes, well the legislature tried to determine how we would elect
the Chief Justice, for example, and we ignored it when I was there. We said
that is a separation of powers doctrine, takes care of that. We will decide how
we shall do it, and I think that...
Mr. Lane:
What do you think about the way that...
Justice Smith:
Chief Justice? I would just as soon have it the California or
the Federal way. I think that it would take some of the internal politics out
of the Court just by having somebody else decide who was the Chief. I worry a
little bit about when somebody gets...but if they can't run anyway...so long as
they can't run after they reach age 70, that will take care of that, and so
that wouldn't bother me.
Mr. Lane:
Some states, it's not by seniority, is it not, or rotation?
Justice Smith:
Yes. Rotation...I don't...I think if they would do it by
rotation by seniority in long enough intervals to give a person a chance to
really get deeply enmeshed in the administrative side of the Court which is
ever growing. It is a lot of work, and to be able to work with the Court
administrators and so forth of the lower court, Judges, Judges Association and
Chief have so much to do, I would opt in favor of a Chief maybe serving like a
term, say six or eight years or something like that, and then move. They
probably would agree that except for the honor, I'd just as soon not do it, you
know.
Mr. Lane:
Well, but the honor is important to some of them.
Justice Smith:
Oh, yes. We're all humans, and of course, being Chief is a
little bit better than being a Justice, that being an Associate Justice, so
there is a lot of status to it, but there is a lot of work to it, too. They
work...of course, I'm sure they relieve them of some of the case load.
Mr. Lane:
I think they take a half case load, at least in the most recent
times. I'm not acquainted with how it is right now, but it has been that way
when I was over there on the staff. What about Gene Black? What would you say?
How would you characterize this man? You said that you had great respect for
Carr, and you got on with him. Black was a difficult man, was he not?
Justice Smith:
He was a difficult man, and when he was not passionately
involved in something, he could write with great power and force, and he had a
very great knowledge of the law, particularly in some areas. He was certainly
an ex-great trial lawyer, from all accounts that I've heard. He was at his best
as a trial lawyer. He was an advocate by nature, and sometimes, he exhibited
that on the Court, but he was, in four or five different areas of the law, you
know, as I say, when he wasn't passionately interested, he could be a powerful
judge, write powerfully on things.
Mr. Lane:
What would you say, though, of his practice of quoting from the
memoranda of other Justices and filing opinions, supplements to opinions after
the results were in? Is this good practice or a defensible practice?
Justice Smith:
I don't think it's good practice?
Mr. Lane:
You know what I'm talking about?
Justice Smith:
Yes, I do. I don't think that's good practice.
Mr. Lane:
I remember there was a time, now I don't know...this was about
when you were leaving the Court, I think, and it had to do with the Mallory
case where there was counsel provided for this fellow in Jackson who was there
on parole violation. There were four members of the Court and for some reason,
you were not accounted for in my notes, anyway....
Justice Smith:
That's probably when I was out having an appendectomy.
Mr. Lane:
Yes, I think...you were off, you had some illness or surgery or
something like that.
Justice Smith:
I had a fouled up appendectomy, and it caused me to comment
when I got out of the hospital that I had received a telegram from the Court
that read as follows...it was directed to me from the Court..."The Court, by a
fourth revoke, wishes you a speedy recovery".
Mr. Lane:
Well, there were four members...
Justice Smith:
I missed a couple cases, probably a half dozen, I think. I had
more than an appendectomy. I had adhesions that developed, and I was in
intensive for about nine days, and I was out for a better part of the
summer.
Mr. Lane:
I have from my own stuff what I wrote about this thing in the
rough. I don't have the...
Justice Smith:
The Mallory case?
Mr. Lane:
Yes, and it said that there were...these are my words..."In a
rare review, four Justices quoted Canon 19 of the Canons of Judicial Ethics
which they indicated was applicable to Black's angry dissent", and this was a
case where he apparently took a shot of some sort at Ted Souris and revealed
that Souris had been on one side of the deliberations at another stage and then
took a different position, and the, I guess, the inference was not flattering
to Souris, but then I have that Black and O'Hara dissented and said the
majority included so and so. "The rebuke of Black was signed by Souris and
Kavanagh (Thomas Matthew), Dethmers, and Adams", apparently was so
offended.
Justice Smith:
What year was that?
Mr. Lane:
It would have been 1966, I think. It's something that you...you
can touch a little history. It's the kind of stuff that comes out of the
typewriter, and I don't have...I think it would be possible to go back and look
at the reports and to find the foundation for that statement. I don't have any
doubt about its accuracy. I just don't know the facts in terms of...What caused
him to be...was there a personality trait with Black that made him...is there
any explanation why a man with such obvious brilliance and power...he was a
heck of an advocate, wasn't he?
Justice Smith:
Yes, I think, you know...
Mr. Lane:
Did it have anything to do with his traveling back and forth
to...
Justice Smith:
I don't think so. I think Gene could get wound up in causes, as
I said before, that he believed in passionately, and he would write with great
force about that, I guess, beyond...
Mr. Lane:
What I have further in my hand here...do you remember when Jack
Crellin wrote an article about you? This is long after you left the Court.
Justice Smith:
Oh, yes. I was at G.M.
Mr. Lane:
Do you remember the substance of that article, and did it
agree? Was it, in your judgement, a faithful representation as far as your
views on matters? I don't want to go into all the detail of the thing, but here
is a couple pages. It had the nickel, what was it...the nickel?
Justice Smith:
I remember Jack writing...about one of the things about
me...
Mr. Lane:
He had a high regard for you.
Justice Smith:
Yes, I think Jack came in with the idea that I was somehow
heroic for having done what I did as an African American, and I didn't see any
great heroism in what I did, and I tried to disabuse him of it by saying that I
was in large, a part, a creature of history, and that all I could say for
myself was that I hoped I was adequate for the responsibility given me. I was,
of course, grateful for the opportunity, and I would have been grateful if I'd
been stone white. I mean, anybody allowed to do all the things I've been, you
know, Chairman of the Public Service Commission, Auditor General of Michigan,
State Supreme Court Justice, General Counsel of General Motors...I mean, God,
that's a....
Mr. Lane:
Weren't you a regent, too.
Justice Smith:
Regent, yes...
Mr. Lane:
And other offices, a lot of them.
Justice Smith:
Yes, I've been a lot of things.
Mr. Lane:
You sit on the Kroger Board. Do you sit on any other.
Justice Smith:
Detroit Edison.
Mr. Lane:
Do you?
Justice Smith:
Yes. I mean, those opportunities come, and they're rare for
anybody, and all I hope is that I discharge the responsibility well and justify
the confidence of the people who put me in office. That's what I really think
about, and I don't really think it is especially heroic to have been selected,
or that that is anything really heroic about my having done reasonably
adequately in these things because of my racial strain. Yes, I am, as this
article says...I'm part European, part Indian and part African. That's true,
but I only say that to put it in a frame of reference that is face.
Mr. Lane:
By the way, that brings me...on the classification
business...you refer...who is classified thus and so. In some of these Indian
cases. You know, there are certain Indian cases that are be asserted or
resurrected and so on, and I have read or heard, or gee, I don't know, in the
case of an Indian...suppose you're a Chippewa or Iroquois or whatever it is,
you have to establish a certain sort of blood level, and if you got whatever
the heck the percent is, a 1/4 or...
Justice Smith:
There's a Michigan Supreme Court case on that.
Mr. Lane:
There is?
Justice Smith:
Yes, way back...it has to do with African Americans, and it was
decided sometime after the Civil War, I think in the 1870's, 1880's in which
the Michigan Supreme Court held that anybody who was less than 1/4 African was
white if the rest of the blood was white. I kind of go along with the idea that
you are what people call you for purposes of classification in the U.S. where
race is a primary classification. Other places, it's religion, what I call the
group of primary identification. Here, it is race. Other places, it is
religion...Hindus and Muslims, say, in India or Pakistan. I guess in many
places in Europe when it was significant, it was Protestant and Catholic or
something like that
Justice Smith talks about his colleagues Justices Harry Kelly, John Dethmers, George Edwards, Theodore Souris, Thomas M. Kavanagh, Mike O'Hara, and Paul Adams. He then summarizes his time on the court mentioning the seriousness of the court, inherent issues with consistency, and the chemistry of the court.
Mr. Lane:
Okay, here we're on the tape again now. I mentioned to you...I
asked you about some people you served with and one of them, I remember was
Leland Carr. How about some of the other Justices. Harry Kelly...I understand
you had sort of fondness for Harry Kelly.
Justice Smith:
Yes, I had a particular fondness for Kelly. It started out in
an unusual fashion. I came to the Court remembering really the bitter
gubernatorial campaign of 1950, I think it was, in which Harry Kelly was
running against Mennen Williams, my old friend and political saint, and as I
saw it most of the time, and I came prepared not to be particularly fond of Mr.
Kelly because of some of the rather harsh things he had said about my friend,
Mr. Williams during the 1950 campaign, but I found not long after I got to the
Court, that Harry was not as I thought he was. He was...sure, he was a
conservative guy, and sure, he had his sense of values, and he had this
tremendous experience growing out of his age, and he had been in World War I,
and had lost a leg in combat in World War I, and he had come through the wars,
in Illinois where he was from, where incidently, he had known August
Scholle...who was from the same town.
Mr. Lane:
And Lockwood, maybe.
Justice Smith:
Yes, and so anyway, he had come here to practice law in Detroit
with his brothers, and he became Secretary of State and Governor during the war
years, and I found out he was full of happy memories about people and things,
irrespective of who they were, and he was a generous person in spirit.
Mr. Lane:
Great family man, wasn't he?
Justice Smith:
Great family man, yes. I remember him saying at one point at
the end of a conference when we had had a long, tough couple weeks of working,
and we were just chatting about little things, and he said, "Next week, I'm
going to marry off my youngest child. Then, I'll be through. I don't want a
share of stock or anything. I don't want anything but a little log cabin up in
Gaylord, a little house. I'm a rich man".
Mr. Lane:
Did you visit him at his place in Gaylord?
Justice Smith:
Oh, yes. I'd go north. Ordinarily, I'd stop in. I'd call
before, of course, and then stop. He had a place in town where he had his
library. He and his wife Ann, lived there. He took me out one time, up to his
place on the lake where he had a log cabin, very big one, which he had built
way back when his kids were growing up, because I think he had six children, he
and his wife did, and he had been there. He said, "This is my Shangri La", and
he had pictures of himself on a boat, on a little lake just out from the
place...it was a hunting club location just outside of Gaylord. He was a
wonderful fellow, straight arrow. He did what he thought was right. He worked
hard. He asked no quarter in terms of relief from his cases when he wasn't
feeling well, and that was fairly often because he was getting up in years, and
he was diabetic, and he, of course, the leg was off, and he didn't always feel
too well, but he would come to the sessions of the Court, and he would struggle
up to that bench and sit there and listen to the arguments, and he would go out
and do his work. He worked from his office in Gaylord.
Mr. Lane:
Since you were seat mates, weren't you?
Justice Smith:
Yes, because I was a junior member of the Court, I was supposed
to sit on the end, and of course, it was more convenient for Harry to sit on
the end because he had to get off from time to time, so I sat in his old place,
and he sat in mine. I would offer to help him on and off, but more importantly,
we had a good speaking relationship, and when we discussed the cases, I always
was interested in what Harry had to say because he had a lot of experience, and
he had a lot of good common sense, and I liked to hear what he had to say about
anything before I made up my mind.
Mr. Lane:
How about the famous Dutchman, Chief Justice Dethmers? He was
Chief Justice, was he not?
Justice Smith:
Yes, let's see...he had been Chief Justice. I think Leland Carr
was Chief Justice when I got there, and then Kavanagh succeeded him, Thomas M.
Kavanagh. Well, John and I, of course, we both lived there in Lansing, and we
had adjoining offices, and so I visited with him. I got to know him pretty
well. He used to say I was born in Iowa, the Dutch community out there, and I
was sent to Calvin or Hope College, I've forgotten which one, to become a
minister in the Lutheran Church, and I decided to become a lawyer. Of course,
John came from that area of the state, and he had been Attorney General, and he
had been on the Court for some time. As a matter of fact, I think Harry Kelly
appointed both him and Carr to the Court when Harry was Governor from 1944
through 1948, I think somewhere in there.
Mr. Lane:
Was George Edwards on the Court when you...?
Justice Smith:
George was there when I arrived, and I always say he took one
look at me and decided to leave. Actually, I arrived in October and George left
about the first of the year, and what had happened, Jerry Cavanaugh had been
elected mayor down in Detroit, and somehow, they had an understanding that
Cavanaugh wanted to appoint Edwards to become Police Commissioner, because
there was tremendous issue of the treatment accorded Black citizens in Detroit
by the then organized and administered Police Department of the City of Detroit
which was considered to be heavy-handed and not really fair...George left the
Court to become Police Commissioner of Detroit, later going on to the Sixth
Circuit, of course, where he is now. But, I was just absolutely stunned, that
when he came around to say he was going to leave the Court and go with the
Cavanaugh administration as Police Commissioner, the very idea that somebody
would leave the Michigan State Supreme Court and go to the City of Detroit
Police Commissioner's job was almost unbelievable to me. Nothing wrong with
that job, just that it was a huge step down, and he said his mission was to
prove that you could have vigorous law enforcement within the Constitution;
that was his mission, and boy, did he work at it. He campaigned as if he were
running for office. He was not, but he really went around to every place he
could get access to to give that message that a big-city police department can
stay within the Constitutional laws of the country and still be vigorous with
prosecution and criminals.
Mr. Lane:
He got the Police Department started in the direction...
Justice Smith:
Oh, yes. He made a lot of changes. He occasioned the
reservation of some of the, what were considered then as hard-liners. I don't
know about the merits of it but he got, I believe, effective control of the top
echelon of the Police Department and initiated a lot of changes. George was a
great fellow, and he had great energy, of course.
Mr. Lane:
Ted Souris, was he also sitting when you arrived?
Justice Smith:
Yes, Ted arrived, of course, the early part of 1960. He took
John Voelker's place, and I arrived in the latter part of 1961. Of course, we
were the baby judges, if you will. Ted,...I think Ted's about 2-1/2 years
younger than I am. I was 39 when I arrived. I think Ted was about 36, going on
37 when I arrived, and Ted was, as I've often said, he was the single most
effective Justice on the Court during my time. I think Ted, because of his very
hard work, his very good mind and his exquisite preparation of every motion,
every application for leave, of every case, Ted probably changed more minds at
the conference table - I know he did - than any of us, and probably more than
all of us combined over the period of time I was there, five years or so.
Mr. Lane:
Was it because of his hard work or his sheer intellectual power
or...?
Justice Smith:
It was a combination of both. It was a combination of both. Ted
would take some obscure motion of somebody to do something, and it would look
on the surface as like it may have been like a 100 others we had seen, because
we did an awful lot of these things, and had to do them very hurriedly because
we had almost no staff...we were the staff at that time, that is, the Justices
were...and Ted would have it better prepared than most of us, nearly all of us,
and sometimes we were headed in one particular direction, and he said, "Well
just before you make up your mind or something like that, let me just speak to
that for a moment". He would say, "This is not as it appears. It is something a
little bit deeper than that. If you will notice, there is a phrase here or a
clause there. I think is something we want to take another look at. My belief
is that we should do this rather than what you're proposing in your motion to
do". We listened to the argument, and I...
Mr. Lane:
He was often persuasive.
Justice Smith:
He was often persuasive, and we would say, "That sounds pretty
good, Ted", and we would change our minds. He was a hard working and
innovative.
Mr. Lane:
He was a hard worker, was he not?
Justice Smith:
Oh, yes. Everybody was, really, pretty much. Everybody worked
pretty hard at it. As a matter of fact, the most undying impression I have of
the Court is something that happened, I think, in the first month or so I was
on the Court. We were at the end, we were holding Court in quarterly terms at
that time, and that time, we would have hearings once a quarter for usually a
couple weeks at a time, and we came to the end of the hearing session which was
about two weeks, and there was something that was brought up, and boy, we were
all tired. We had been listening to six or seven arguments a day, five days a
week, for two weeks, for ten days, and we all wanted to go back home and get
out of there. We were just tired, and George Edwards had not left the Court at
that time, so it had to be before the end of 1961. He said, "Wait just a
minute. I don't think we should leave until we decide this", and he was
insistent that we take this matter up even though we were tired, and make a
judgement about it before we left. He was so insistent, everybody who was
getting up to leave sat back down, sort of resignedly, and took up the matter
later in the afternoon or early evening and spent another 1/2 hour or so that
we would not have spent at that time resolving the matter.
Mr. Lane:
You also served with Paul Adams and Thomas Matthew
Kavanagh.
Justice Smith:
Yes, and Mike O'Hara.
Mr. Lane:
And Mike O'Hara.
Justice Smith:
Well, Thomas Matthew had, I guess I would call, the instinct
for justice. He had a feel for things. Tom could read the facts of a case, and
pretty much tell from the way things were arrayed as to what he thought was
just or unjust about a situation. His bias, if you will, was in favor of the
little guy, and I think he came by it honestly. I think he was pretty
consistent in his approach to, the great contest between man vs. man and man
vs. institutions, I think Kavanagh felt most keenly about the little guy and
whether he was getting hurt in the melee and not being able to get justice. I
think he was very sensitive to that.
Mr. Lane:
How long did you serve with Mike O'Hara? He came on toward the
end, did he?
Justice Smith:
Mike was in that election of 1962 running against Paul Adams,
and he defeated Paul in the fall election of 1962, and therefore, he was
seated...Mike came on the Court the first of 1963 which was about 14 months
after I arrived there, and he moved from Menominee, Michigan where he lived,
down to Detroit, and he moved in the same neighborhood that I lived in. I had
moved into...just about a year earlier. We became neighbors and good friends,
and discussants. We'd be arguing, when we left the chambers of the Court, we'd
go home in our separate vehicles, and I'd stop very often by his place because
it was on the way to my home, and I'd stop in for an hour or so, and we'd
continue the discussion very often. Mike had the fine balance between what
people call the liberal and the conservative philosophies, and he loved to
write. Mike really loved language. He loved the sound of words...
Mr. Lane:
Embellishment.
Justice Smith:
Yes, and he'd like to put his heart and soul into the opinions,
and he did, if you read his stuff. It's poetic to some extent. It's lyrical and
poetic kind of a thing.
Mr. Lane:
Paul Adams...how about Paul?
Justice Smith:
Paul is everybody that always...reserved gentleman. He is
reserved in personal habits. He is reserved in matters legally. As I said
before, I think that Paul and I probably were close to the center of the Court
philosophically. We arrived by different routes, but I was just cautious. I
think Paul, by nature, was reserved and probably philosophically moderately
conservative or moderately liberal, whatever you want to call it.
Mr. Lane:
What can you tell me about the report, let's call it, that he
was kept from one of those vacancies on the Court because he, as Attorney
General, had been unfriendly toward the Scholle apportionment initiative? Do
you have any knowledge of that?
Justice Smith:
No, I know from everything that was said around there that Paul
was interested in going to the Court. It was clear from the Williams days and
from the Swainson days as well. Paul, of course, took the place of Thomas M.
Kavanagh when he was seated, is that right?
Mr. Lane:
No, let's see. He...let me see if I can...he came on once in
1962.
Justice Smith:
He took the place of Tom Kavanagh...no, no...wait a minute.
Paul took the place of George Edwards.
Mr. Lane:
Right.
Justice Smith:
What I was trying to say was that Paul took the place of Tom
Kavanagh as Attorney General.
Mr. Lane:
Right, that's true. And then later on, he was defeated by Mike
O'Hara in 1962, but then he came on again in....
Justice Smith:
1964.
Mr. Lane:
1964.
Justice Smith:
That was because Judge Carr could not run again.
Mr. Lane:
Right, he had...
Justice Smith:
Paul ran in the last spring election to be held in Michigan for
Justices, in the spring of 1963, and he was elected quite easily, and he came
back on the Court the first of 1964.
Mr. Lane:
And served through the fall, eight years of his term, is that
right?
Justice Smith:
I understand that he did, right? Paul and I were very good
friends. When I had my serious operation for appendectomy that followed up
having adhesions, and I was pretty weak coming out of the hospital. He took one
look at me and said, "Go somewhere and get some rest", and he handed me the
keys to his cottage on the St. Mary's River, way up north, and I went up there
for a week and came back revived, renewed.
Mr. Lane:
That was interesting. That is not the image of him that one
would get from, oh, I guess, the common report about him and the pictures of
him. He looks to be quite austere, aesthetic.
Justice Smith:
Yes, I think that he is essentially that, but he's a very
gentlemanly kind of person, and he was certainly capable of warm sentiments,
and I think it shines though in some of his opinions. He writes with
considerable clarity and brevity.
Mr. Lane:
I noticed, too, that he is not above classical illusion now and
again in his opinions. He will pull a text out of...one doesn't come to mind
right now...Shakespeare or whatever, and he will find wisdom in that that
applies to the case.
Justice Smith:
He is well-read. His wife was a university professor, and Paul
was introduced, I believe, to literature way back in his life, and I think he
was always a reader of classical literature.
Mr. Lane:
Well, summing up your experience on the Supreme Court...a man
who has had about as full a career as I can really think of in terms of public
office, high position in business, was there anything that you sort of took
away from the Court that you didn't have before you went there? Some lesson,
some inspiration of how to...collegiality and that type of thing? You had
experienced a lot of time prior to your time on the Court. You were used to
that, weren't you, the decision-making?
Justice Smith:
Yes, I was in a collegial setting, and I'd had some experience
with that. I guess several things that I came away with from the Court with.
The first thing would be epitomized by that insistence that...George Edwards
that I mentioned before, that we take up the issue now. I found to my great
satisfaction that people I worked with never took any case lightly. Everything
was serious. They were damned serious about everything that came up,
application leave, they may have had varying degrees of energy of which to
tackle it, but nobody gave anything kind of a lick and a promise, sped through
it and dismissed it. There was always somebody who would say, "Wait, I've
looked at this with some case, and I have a thought about it", and they would
be very careful about what they wrote as final precedent. I think we were all
aware that the Michigan Supreme Court, for eighty or ninety percent of all
litigation in Michigan, is the final word. There are not many Federal
questions, and with the state law ranging from A - Z, from everything from
abandonment, the law of abandonment of vehicles, or of children, down to
zoning, it is an awful responsibility to have, to be the final arbitrar of
people's dispute of any state, but in a state as large and as complex as
Michigan, so it was a great pleasing thing to me to know that they took
everything seriously. You might disagree with the result, but they didn't treat
anything lightly. I learned, you know, one other thing that might be of some
benefit, and that is that in a small group of people such as a Court, a
collegial Court, particularly one where the membership doesn't change. I'm not
talking about panels of the Circuit Court where they're all forever changing,
but a Court that has the same membership facing each other every day, day in
and day out, week in and week out, year in and year out, by the very nature of
the beast so to speak, there will be frictions, and usually the frictions are
not so much based upon personal things or political things but upon a kind of
an observation that you'll make from time to time - you're considering a
particular case, and it is approximately what you've had maybe two or three
months before in principle, you think, and you will think you will know where
each justice is going to come out or where they ought to come out based upon
prior decisions, and what you'll find is that people don't see precedent the
same way. Consistencies, personal consistencies seem to be always in question,
and you'll find that not only Michigan Court but I noticed that in talking with
Judges all over the country when I was there and even since that time, that
they'd always find some problem with one of their brethren who could decide
Jones vs Brown three months before one way, and the decide McCormick vs. Hare
three months later a different way when it involved the same principle. The old
thing about consistency would trouble people. Not that they were dishonest but
that they didn't see it or they weren't quite looking at it hard enough or
something, and it would sort of trouble other members, and you'd always say,
"Well, why is he doing that? That's a dumb thing". It came up time and time
again, mostly because you'd view the particular case as one either unlike the
case of before or just like it, and you don't know why the other Justice
decided the way he does. That causes, for some, a little friction. The other
thing I learned about that kind of a close harmony decision process is that
even when there were eight, and I'm sure whether it is nine or ten or twelve or
whatever may be the number, if you change the personnel once, take one person
out and put another one it, it changes the whole chemistry. That person brings
to the Court certain views which are shared in part by some and objected to by
others. It brings a certain style, certain personality, certain expertise, you
might call it, of things that they've done a lot of before, and they have
acquired a considerable body of authoritative knowledge about something. That's
brought it. That changes the chemistry of the Court. Each time that it changed
while I was there, the Supreme Court did, both by the leaving of Edwards...not
both, but all the time, but the leaving of Edwards and the coming of Adams and
then the leaving of Adams and the coming of O'Hara, and then the leaving of
Carr and the coming back of Adams. Every time that would occur, somebody would
leave and somebody else would come on, it would change the temperature of the
Court a little bit, change the chemistry, the decisional process was affected
by one person. I learned that as well.
Mr. Lane:
Is there any sensible way that you think of to keep the change
at a minimum or is change of that sort inevitable and valuable?
Justice Smith:
I think it's inevitable, and probably valuable. I don't know
whether it's just...I don't think it's something that has to be valuable. It
can be destructive, but it certainly...I don't think there's anything you can
do to do it differently unless you're going to remake people.
Mr. Lane:
Or remake the whole system...like the United States Supreme
Court...they're all life-time and so you have less change there, presumably. It
can only occur because of resignation or death rather than for electoral
reasons...or impeachment, I suppose.
Justice Smith:
I rather like the idea that we have here, the requirement that
you cannot run after 70. There are some few, very few, as you know, exceptional
people, who have almost a full mental and physical powers after...I won't even
say 70. I'll say 65 or 70, but most of them slip a little bit in terms of
energy, mental and physical and you really need the top minds and the top
energies for Court. You need experience, of course, but I think the optimum
range is about where they put it, and you shouldn't stay around any longer.
Mr. Lane:
That's interesting. Should we conclude it on that note, or have
you got something else that maybe ought to be said?
Justice Smith:
No, just stop it for a while, and let me see if I can think of
anything else.
Mr. Lane:
This is the end of tape 3 of Former Justice Otis M. Smith on
October 25, 1990.