At my first law firm, a few of us informally agreed that any brief we wrote would have some Latin in it — arguendo, inter alia, ab initio, whatever. So, I get inordinately excited when I see lawsuits brought using the Latin names for the action, such as the quo warranto action recently filed by our new Attorney General over the appointment of Hugh Clarke to fill a vacancy in the 54-A District Court in Lansing.
Quo warranto, literally meaning “by what warrant,” is the name of a legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged.
In November 2010, Amy Krause was re-elected to the Lansing District Court bench. After that, however, she was appointed by then-Governor Granholm to fill a vacancy in the Court of Appeals. This left a district court vacancy, which Ms. Granholm filled on December 20 by appointing Hugh Clarke.
Here’s the problem: The Michigan Constitution and state law say that a judge’s term ends at 12 noon on the 1st day of January. So, since Krause was appointed to the Court of Appeals in November of 2010, her term on the District Court bench still had a little over a month to go, until noon on January 1, 2011. The term she was elected for in November did not begin until noon on January 1, 2011. So, when Granholm appointed Clarke to fill Krause’s seat on the bench, he could only fill her unexpired term ending at noon on January 1, because her new term did not begin until then, and Granholm had no authority to appoint a new judge to fill a vacancy beginning on January 1 since, as we all know, she was no longer the governor.
The bottom line is that Clarke was legally a judge for less than 12 days, from his appointment on December 20 until noon on January 1. This also calls into question the legality of any ruling he has made since January 1.
There are now a pair of lawyers representing Clarke, who of course take the view that he’s good to go. From the Lansing State Journal:
In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”
[Former Michigan Supreme Court Justice and Cooley Law School impresario Thomas]Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.
The first argument ignores the question of when a vacancy occurs, and the second ignores the existence of that time-honored claim, quo warranto.
Clarke and his attorneys will also have a hard time escaping the Supreme Court’s 1983 decision in Attorney General v Riley, 417 Mich 119 (1983). There, Blair Moody was serving on the court and was elected to a new eight-year term in November 1982. Moody died on November 26, 1982, and Governor Milliken appointed Dorothy Comstock Riley on December 9 to fill the vacancy. The Eternal General, Frank Kelley, filed a quo warranto action challenging Riley’s right to hold office after 12 noon on January 1, 1983. The Michigan Supreme Court agreed, finding that the “vacancy” being filled was in the term ending January 1, 1983, and that Moody’s election and subsequent death created another vacancy in the term beginning January 1, 1983, to be filled by the governor in office on that date.
So, applying Riley to the present case yields this result: Krause’s appointment to the Court of Appeals created a vacancy in the District Court that lasted until the end of her term at noon on January 1, 2011. At that time, a new vacancy arose because Krause was serving on another court and therefore not qualified to serve the District Court term to which she had been previously elected. The vacancy beginning January 1 has to be filled by Governor Snyder, since Granholm had no authority to do so.
Why is this Elizabeth Weaver’s fault, you ask? Simple — she resigned from the Supreme Court as part of an unseemly deal to get Alton Davis appointed and tagged as an incumbent for the November 2010 Supreme Court election. To take the appointment, Davis had to resign his seat on the Court of Appeals, thus creating a vacancy filled by the Krause appointment, which in turn created the District Court vacancy and produced the Clarke appointment causing all this ruckus.
Is this really a Weaver issue? Res ipsa loquitur (translation: the thing speaks for itself).
GOOD LAW, BAD LAW, IT'S THE LAW! 