OCTOBER 8, 1996
CHIEF JUSTICE BRICKLEY: I trust that you are not all litigants. Welcome to the opening day of our October term. We are especially pleased to be here because this is our third year of having our opening case of oral arguments received in this magnificent courtroom. Today, we are especially privileged because we not only will be hearing oral arguments, be we are going to recognize a former distinguished jurist, Justice Eugene F. Black, by receiving his portrait. Let me begin by introducing members of Justice Black’s family. First of all, I want to introduce Justice Black’s son, Mr. Gary Black and his wife, Carol. Justice Black’s daughter, Mrs. Susan Black-Land. Jeremy, Ryan, and Douglas McKernon Black, II. Also present are Mrs. Diane Black; Mr. Bruce Black and his wife, Nana; Mrs. Bonnie Black; Mr. David Black, his wife Mary, and their sons Eugene and Austin. I am delighted that all of you could make the trip here today. I now wish to introduce the President of the Michigan Supreme Court Historical Commission, Wallace Riley. Mr. Riley.
“There’s no place like home!” And this is home to this Court. After a lapse of twenty-five years, the Michigan Supreme Court opened Court last year in this restored old historic Supreme Court Chamber, and we are back to continue the tradition this year.
As you know, the last session of the eight-justice Court was held here on March 3, 1970, with Chief Justice Thomas E. Brennan presiding. He is back with us today, this time on the other side of the bench.
Before you begin your regular call at this opening fall session of the Court, the Michigan Supreme Court Historical Society wanted me to review briefly for you what your society, and I call it your society because all of you current justices of the Court are members of the society, has been doing the past year.
The single event in which many of our members participate and with which you are familiar is the Annual Meeting Luncheon. This year nearly one hundred members attended the luncheon at the Detroit Athletic Club on Thursday, April 18, and enjoyed the legal vignette by Judge Avern Cohn. Perhaps they enjoyed even more your rating of Judge Cohn.
This year we have continued to work on membership of the society, and our roster of members now numbers nearly five hundred.
Judge James L. Ryan’s committee is developing an oral history policy, which we shall bring to the Court for approval so we shall know how the dozen or so oral history tapes that we have acquired from former justices will be played and preserved.
We have a committee, chaired by John Wesley Reed, which is at work planning the revision of the Index to Special Sessions of the Court.
We have begun cooperating with the State Bar of Michigan in the Michigan Legal Milestones Program, which was begun by George T. Roumell, Jr., when he was President of the State Bar. In the past year, we participated in milestone 22, “Ending ‘Jim Crow’” (Grand Rapids); milestone 23, “Conveying Michigan” (White Pigeon); and milestone 24, “Murphy’s Dissent” up in Harbor Beach.
A good bit of our time and money during the past year, has gone to restoring, cataloging, and photographing the stable of existing portraits of former justices. We have plans to produce a booklet of colored photographs of these portraits. But I think of much greater archival significance, is that we are putting these portrait images on CD-ROM to save them into the cyberspace century.
Just last month, we staffed an exhibit booth at the State Bar of Michigan Annual Meeting in Grand Rapids to publicize the society and to solicit new members.
Finally, as most of you are aware, we have procured and presented to the Court in the past year the portraits of Justice Robert P. Griffin last October, of Justice Dennis W. Archer last December, and today we are here to present to you the portrait of Justice Eugene F. Black.
The Ceremonies Closing the Capitol Courtroom were held here in this room twenty-six and a half years ago, on March 3, 1970. On your bench sat Justices Dethmers, Kelly, Adams, T.M. Kavanagh, T.G. Kavanagh, and Black with Chief Justice Brennan presiding. It should be noted that Mr. Justice Souris was also present in the chamber on that occasion.
Now, with the Court’s permission, I would like to call upon former Chief Justice Thomas E. Brennan for some remarks.
THE HONORABLE THOMAS E. BRENNAN: May it please the Court. When last I sat, Mr. Chief Justice, where you are sitting, on March 3, 1970, as Wally Riley has reminded us, a little over a quarter century ago, the chair to my extreme left was occupied by the Honorable Eugene F. Black, whose portrait we are privileged to present to you and your colleagues here this morning.
As Mr. Riley, the esteemed President of the Michigan Supreme Court Historical Society has told you, this ceremony is tendered to the Court as part of the society’s ongoing effort to assure that the history of the Court is well articulated and carefully preserved. I think these portrait hanging ceremonies are of special value in that regard. After all, what we say here this morning goes in the books. A verbatim report of our business here becomes part of the permanent record of the proceedings of the Supreme Court, not because our rhetoric especially merits preservation, but because the life and works of the man we honor today deserve to be remembered and better understood.
Eugene Francis Black was born in Marine City, Michigan, on January 27, 1903. He died on Saturday, August 4, 1990, at the age of 87. The New York Times of Thursday, August 9, 1990, carries an obituary of Justice Black which mentions that he attended the Detroit College of Law and University of Michigan Law School. True enough, but not the whole story.
Gene Black spent about a week at the U of M Law School and exactly one day at the Detroit College of Law.
It wasn’t that he didn’t like law school; he just didn’t see the need of it. So he went home to Port Huron, read the law in a local law office, took and passed the bar examination and joined the firm of Steward and Black in 1922, when he was 19 years of age.
Thus began a career in the law that was to be as unique as the man himself.
Unpredictable. Contradictory. At once flamboyant and homespun. Contentious and conciliatory. Decisive yet hesitant.
Gene Black practiced law in St. Clair County for twenty years before entering the United States Navy in 1942. At the end of World War II, he mustered out with the rank of lieutenant and returned briefly to the law practice before he entered the world of politics.
In 1946, Justice Black was elected Attorney General of Michigan on the Republican ticket. He served in that office for two years—two brash, controversial, exciting years in which he wielded the power of the Attorney General’s office like a well-seasoned shillelagh, bopping the heads of auto dealers, politicians, and other assorted icons. That feisty performance shook up the postwar establishment. It also cost him the Republican Party’s nomination in 1948.
Five more years in law practice ended when Democratic Governor G. Mennen Williams appointed Eugene Black Judge of the 31st Judicial Circuit on January 11, 1954, to fill a vacancy.
In November of 1954, he was elected to a full six-year term. He served only a year of it because on April 4, 1955, he was, as a nominee of the Democratic Party, elected a justice of the Michigan Supreme Court. He was not the first, nor indeed the last, Attorney General to end up on this Court, but he was the only one to enjoy the nominations of both major political parties.
Eugene F. Black was seated here in January of 1956. He served for seventeen years until his retirement at the end of 1972. His 625 opinions, including 139 dissents, appear in volumes 344 through 389 of the Michigan Reports.
Students of the common law of Michigan will recognize the name of Justice Eugene Black for as long as Supreme Court cases are read and studied and cited as precedents. His writing was often elegant and obtuse, sometimes spicy and provocative, never prosaic or boring.
Gene Black was a loner.
To my knowledge, he never spent a night in Lansing, Michigan. During his two years as Attorney General and his seventeen years on the Court, he commuted daily from his home on Strawberry Lane on the banks of the Black River in Port Huron.
There was no interstate in those days. Even in good weather it was a nerve-racking two-hour drive on a two-lane rural highway, clogged with school buses and farm implements. In the dead of snow-bound Michigan winters, the trip was truly treacherous.
He shared a desk here in the Capitol when the Court was in session. But his working office was the enclosed and insulated porch on the east side of his home in Port Huron. There, surrounded by his beloved books and wired to the outside world with his precious telephone, he poured out his words of wisdom, admonition, disparagements, commendation, and malediction in prodigious solitude.
He was independent, iconoclastic. He could be irreverent, irascible, impatient, immovable. But he was also often magnanimous and always self-effacing. He never liked the title “Justice Black,” “Judge Black” was good enough for him, and he was always quick to point out that etched in the glass transom above the door to the Supreme Court conference room was the word “Judges.”
He was physically strong. A barrel-chested outdoorsman-type, with a deep, resonant voice that modulated from thundering to mumbling as the mood or the moment required. He saw himself as unfettered, uncommitted, unattached. And he seemed to relish the role.
His own view of himself is well stated in the opening words of his opinion in Williams against the City of Detroit, 364 Michigan 231 on page 270. There he wrote:
When a court of last resort divides according to what the reading public looks upon as political lines, the lone writer of a separate or distinct opinion usually finds himself a sort of rogue in the eyes of his divisively lined up Brethren. He is supposed—so I twig—to join one team or the other; failing which the dainty vestments of delicate ostracism are primly cast upon him. In this epochal case of Williams I accept the role cheerfully, doing so with the uninhibited philosophy of the English lawyer-novelist, Sir Anthony Hawkins:
“For my part, if a man must needs be a knave I would have him a debonair knave…. It makes your sin no worse, as I conceive, to do it a la mode and stylishly.”
That sample of his writing style is fairly typical. So is the paragraph in [Muskegon Prosecuting Attorney ex rel] Schaub v Klevering, in 377 Michigan 666, which begins on page 670. That one paragraph includes the following plethora of modification, “diametrically,” “impressively,” “presently,” “hopelessly,” “presumably,” “equally,” “directly,” and “odiously.”
Wayne Circuit Judge Joe A. Sullivan, whom many of you may remember for his famous observation: “I would rather right than affirmed,” once said of Justice Black that his opinions appeared to have been tacked up on the wall of his porch and liberally sprayed with an adverb gun.
For my part, I always marveled at Justice Black’s erudition. His vast vocabulary was a tribute to his self-motivated learning. A voracious reader, he seemed never to forget anything he read or heard.
He was a great friend and admirer of Justice John Voelker, Michigan’s celebrated author/jurist with whom he served in his early days on this Court. I suspect that that admiration inspired Justice Black to reach for new heights of grand-eloquent rhetoric in his opinions.
And, of course, he took pride in his writing, as I learned to my discomfort when I observed during one of our conferences that I found it necessary to read his opinions with my dictionary close at hand.
Gene Black could be a fearsome adversary. But for all his feistiness, I would not leave this Court or future generations of lawyers with the impression that Justice Black was an unmitigated curmudgeon.
Quite the contrary. He had a hearty laugh and a predictably unpredictable sense of humor. I recall one morning, as we were lined up to enter this very chamber, standing single file, in fully robed anticipation of the Court Crier’s trumpeted, “Hear ye, Hear ye, Hear ye,” Justice Black turned to me with a puckish grin and said: “Y’ know, every time we parade in there with these black dresses on, I expect someone to start singing, ‘Oh When the Saints Go Marching In.’”
Gene Black occasionally combined a keen sense of the ridiculous with a particular penchant for perfection. He sat, as I have said, at the far left of the Chief Justice. It was not where he belonged by seniority, but he liked that position on the bench. Immediately to his left, on the south wall, there hung an old tin-type photograph of one of our predecessors on the Michigan Supreme Court. I don’t know who it was, or what the man looked like in real life, but the photographer had captured a most peculiar facial expression, something between surprise and awkward embarrassment. That picture made Gene Black laugh every time he looked at it. Once Justice Black explained what he thought the facial expression meant, it was quite impossible for any of us to look at that picture without sharing his amusement.
Well, it happened one day that a zealous young advocate stood here at the rostrum and informed the Court that in ruling upon certain proffered evidence, the trial judge had “aired.” He said it more than once. The trial judge “aired” on this point of law and he “aired” on that rule of evidence.
Over and over again, he insisted that the trial “aired.” Finally, Gene Black could sit silent no longer. He leaned forward in his chair and said to the lawyer: “Excuse me, counsel, don’t you mean to say that the trial judge ‘erred’? This,” he said with a flourishing gesture to the tin-type portrait hanging on the wall beside him, “This is what a judge looks like when he ‘airs’!”
Needless to say, Mr. Chief Justice, this lesson in pronunciation remains vivid in my memory to this very day.
May it please the Court, the portrait we unveil here this morning reveals a man who left an important and enduring legacy to the people of Michigan. His dedication to the citizens of this great commonwealth sustained him through two decades of faithful public service. Many of his opinions echo authoritatively in the common law of our state, and will continue to embellish his stature as a jurist into the next century.
Gene Black loved the law and he loved the Supreme Court. This job was his life, his identity, his meaning, his purpose. If he fought with us, as he often did, it is because he believed in what he was doing and in what he thought the Court should be doing.
Beneath it all the record should show, as I believe the portrait confirms, that this man was a very human, human being. He was passionate. He was intense. And he was always faithful to his convictions and to his quest for truth and justice.
It was, for me, a privilege to serve with Justice Black, as it is an honor to share in this commemoration, and to commend his record of service and his memory to this honorable Court.
Chief Justice Brickley: Thank you.
Mr. Riley: There is another former justice, who was also a colleague of Justice Black. He is one of the survivors of that Court and he is with us today, and I watched him as Tom spoke to see if he could muster a few words himself.
The Honorable Thomas G. Kavanagh: Thank you, Mr. Chief Justice, justices, friends of Gene Black one and all. I’m delighted to be here, because I am always thrilled at the prospect of being in this courtroom, seeing the Michigan Supreme Court.
Nobody who ever served on this Court loved it any more than Eugene Francis Black. When we started out, our relationship was, let’s say, less than cordial. Gene was an interloper, and he didn’t hide it too well, you know. So I made it my business to get to know Gene Black. I want to say that before we were through, Gene Black and I were friends.
I recall one time I went up to Port Huron, and Gene and Mrs. Black were gracious, couldn’t have been more gracious. In fact, they treated me like the emperor of the universe. I am not sure whether they had ever had a colleague come to visit them for lunch. But they treated me so well. I appreciated it; I enjoyed it.
I came on the Court in January of 1969, and Gene and I served together for four years through 1972. During that time, the Court issued slightly over 300 opinions. Gene and I agreed on 227 of them and disagreed on 82 of them. A pretty good record.
I enjoyed Gene immensely. His contribution was to the work of this Court. All I can testify to is that he loved this institution. He was proud to serve on it and he worked his tail off to make it a better and better institution. And he did.
Now, as my dear wife reminds me every time I am called upon to speak, there are three rules a public speaker should always observe: one, be clear; two, be brief; three, be seated.
Thank you very much.
Mr. Riley: They may have only agreed seventy-five percent of the time on the opinions but it would be hard to imagine anybody who couldn’t be a one-hundred percent friend of Thomas Giles Kavanagh.
The time has come now when everyone in the room would like to get a look at this person that we have been talking about, so I would like to, with the Court’s permission, call upon Justice Black’s son, Gary. Rob Maniscalco painted this portrait. [At which time the portrait was unveiled.]
A third survivor who served on the Court with Justice Black and who was present, as I indicated, at the closing of this courtroom is back in Court today, and I would like to call on him now, with the Court’s permission, former Justice Theodore Souris for some reflections.
The Honorable Theodore Souris: May it please the Court. I have been asked to offer a few remarks concerning my recollections of Eugene Black as a Supreme Court Justice. If I were asked for a title for my remarks I would have suggested this one: “Eugene F. Black—A Candid Tribute to an Admired Warrior Colleague, Wens and All.”
I will present to you an absolutely candid, truthful, unvarnished, as Gene Black would say, portrait. I will tell you the good and the bad. I will try to give you a portrait of Justice Black as a man and as a justice, not as a husband, father or a grandfather. Justice Black would expect nothing less.
In the course of preparing my remarks I reviewed much of my correspondence with Justice Black and correspondence with other members of the Court about Gene. I also reread some of Gene’s opinions, the most trenchant of which I have had bound, significantly, in scarlet. These two volumes I am holding contain some of those opinions from the first four years of my association with him. I am still working on the last four years.
Eugene F. Black—paradox and enigma. The professional persona of Justice Eugene Black is a stranger to the personable, kind, considerate, solicitous, human he was in his personal relations. Gene was unfailingly civil and courteous in all personal encounters. Indeed he was extraordinarily shy, particularly in the presence of women.
Let me illustrate his kindness and solicitude toward others with only two examples: Justice Harry Kelly, as many of you in this room know, was crippled from wounds suffered in World War I. He endured more pain and discomfort for a longer time than any other human I know. He struggled with that constant pain, working as a public servant for most of his adult life. Gene, during periods of Justice Kelly’s illnesses, very quietly and without any fanfare, without any disclosure to the rest of the Court after the fact, assumed the obligation of writing some of the cases assigned to Justice Kelly. Although he and Justice Kelly disagreed from time to time, as we all did with Gene, he never was personally antagonistic to Justice Kelly. As I am sure you all know, he was antagonistic with all other members of this Court and, at least sometimes, his personal antagonism to us was unmerited.
My second illustration of Gene Black’s compassion is his championing the appointment by this Court of its first Commissioner, Joseph Planck. Why was Gene Black so interested in Joseph Planck? To my knowledge there was not a strong personal relationship between them. But Joseph Planck was a trial lawyer, as had been Gene Black. Indeed, Joseph Planck, like Gene Black, was a superb trial lawyer and not merely a litigator. Unfortunately, Joseph Planck was losing his hearing. He could no longer appear in a courtroom confident that he could represent his clients adequately. He was looking at a future of professional inactivity, no longer able to function as a lawyer. Gene suggested to him, undoubtedly very gently, that he would be able to continue his public service honorably as a professional by working for the Court as a commissioner. Joseph Planck did that extraordinarily well.
In my personal relations with Justice Black, he was always civil and always courteous. We shared an office in the Capitol Building and our eyeball-to-eyeball, toe-to-toe relationships were as pleasant as any I had on the Court.
However, our professional relationship was a contentious one, and I am using a very gentle term to describe it. It started the first day I was on the Court, more accurately, the day before I was sworn into office. That evening Gene handed me a sixty-two-page opinion in the case of Stoliker v Board of State Canvassers,1 which had not yet even been argued to the Court. He asked if I would join him in that opinion, which he proposed to issue the following day, but the following day was the day the Stoliker case was scheduled for argument before the Court! I explained to him that, in any event, I was disqualified from participating in that case because I had served as a member and Chairman of the Board of State Canvassers, the actions of which were being challenged in the Stoliker case. The following day, after the oral arguments, he announced from the bench that he had filed his opinion with the Clerk of the Court in sufficient quantities for all of the newspaper reporters present to have a copy. Three days later, on Thursday, during the Court’s conference, when no one else on the Court had moved, I moved to strike that opinion from the records of the Court. My motion was adopted, but not unanimously. My relationship with Gene from that point forward was somewhat less than cordial professionally.
Again, let me emphasize a point: When we walked back into our office that evening, he was as pleasant as he always was with me personally. I have made a count, as Tom Brennan did, of the opinions that Gene wrote that I signed, but I feel viscerally that I probably joined Gene Black in more of his opinions than any other justice other than Justice Thomas M. Kavanagh and, possibly, Justice Harry Kelly. We were, indeed, soldiers in arms, true colleagues on some major issues procedurally and substantively confronting this Court. For example, he and I agreed to cast our votes in favor of applications for leave to appeal whenever such applications attracted approval from only four of the eight justices then serving. We agreed to do the same thing on applications for rehearing. It seemed to us not to be just to reject such applications when at least half of the then-members of this Court favored granting such applications.
Let me go back now to my portrait of Eugene Black in his capacity as a judge. He was a combative, brutal warrior in his written opinions. He believed, in the words of Johnson that “Treating your adversary with respect is giving him an advantage to which he is not entitled.” Gene Black would rather not be judged by his friendships, but, rather, by the enemies he made. As Justice Brennan has noted, Wayne Circuit Judge Joseph A. Sullivan, when he was Chief Judge of that court, once said that he would rather be right than affirmed. Justice Black, as I knew him, would rather dissent than decide. He preferred to indulge in unrestrained dissent than abide the discipline essential to mustering a majority of the Court.
At one point during our mutual service on the Court, I said to Gene that if he had not been so contentious and combative toward all his colleagues, our Court properly could have been called the Black Court. In my view, he was brilliant, sharply focused, and decisive and divisive; but he also was an absolute loner, incapable of leading an army of two. He had an overpowering need to alienate his friends and associates publicly. He was too prone to impute incompetence and political partisanship, or corrupt motives, to all those who differed with him.
Justice Black filed many supplementary opinions, particularly during the time I served with him, and occasional addendums, as he called them, to describe how he so diligently wrote his opinions that his colleagues “unconscionably” would hold, sometimes for months, whom he did not hesitate, of course, to name, without explaining his colleagues’ stated reasons for holding. He used those supplements and addenda to discuss the internal operations of the Court, designed to infuse collegial discussion, contemplative debate, on the Court itself before final decision was reached. Justice Black did so, in my view, to intimidate the rest of us from expressing views with which he disagreed.
Justice Black seemed to love to hate, to cherish not only the struggle but, also, the hatred. This unfathomable need crippled Justice Black’s effectiveness on the Court. His opinions were frequently so needlessly contentious and abrasive that other justices refused to sign them. He then began writing sterilized per curiam opinions to induce our signatures and, in addition, separate, typically Black opinions in the very same cases to express his lone acerbic views. On rare occasions, one of the justices would sign one of those separate opinions. My sense was that Gene was offended by those joinders because he intended those opinions to stand as his statements and his statements alone. That, at least, was and is my view.
Justice Black’s most enduring contributions to the jurisprudence of this state were accomplished, I believe, between 1955 and 1960, with Justices Talbot Smith, George Edwards, Thomas M. Kavanagh, and John Voelker, before my arrival on the Court. He participated with those other justices in restoring this Court’s reputation. It had been, theretofore, a Court described by Dean Roscoe Pound as having “a bad eminence in the land.” Those justices restored the role of the jury in Michigan’s courts, which had been drastically diminished in prior years by this Court’s too regular affirmances of directed verdicts and of judgments notwithstanding the verdict. They also articulated clearly and forcibly the standards of appellate review applicable to bench decisions, jury verdicts, and administrative agency actions. That Court’s precedent-setting decisions in tort cases, particularly negligence, remain as the law of this state and have been followed in other jurisdictions.
Justice Black, because of his background as the most experience trial lawyer then on the Court, exerted enormous influence on the Court’s decisions involving the substantive laws of negligence and procedural rules of trial practice.
Finally, I do not want to leave the impression in any minds that I have been unduly critical of Justice Black. Please remember that I have expressed my views of him as a justice whom I honor for his many contributions to this Court while candidly recognizing his failings. Perhaps more importantly, I honor him as a man for his humanity and his compassion for others less fortunate than he.
Mr. Riley: Mr. Chief Justice, justices, thank you for your patience. This has been a very special presentation. The speakers, the survivors of the Court, tried to bring you some understanding of the man.
And, as this portrait now makes its way to your courtroom, as you look up on it, perhaps, you will be reminded of what you have heard today. Thank you very much. We now, formally, present this portrait to the Court, and you may accept it for the Court.
Chief Justice Brickley: Well stated. Thank you for helping to bring this man alive for all of us. We are very grateful for that, and, obviously it is a pleasure to accept the portrait.