LANSING, MICHIGAN – OCTOBER 12, 1999
WALLACE D. RILEY: Now today, we add another portrait to the collection of former Justices of the Michigan Supreme Court, that of Justice John D. Voelker. The Voelker portrait was commissioned through the combined efforts of the John D. Voelker Foundation and the Voelker family. With the court’s permission, I would now like to call upon Richard Vander Veen, III, president of the Foundation, to address the court.
MR. RICHARD VANDER VEEN, III: Good morning. It’s a pleasure to see you this morning, and thank you for letting me be here to dedicate this important portrait. It’s a pleasure to stand before your presence and, as I recall, the former Chief Justice Michael Cavanagh saying Voelker had lived a long and good life.
I’d also like to acknowledge the fact that John’s grandson, Adam, and Mary, his wife, are here with their two daughters from Petosky. I’ll introduce, shortly, his daughter, Julie, from Chicago. I’d like to introduce, also, our Board of Directors: Fred Baker, our secretary; Jim Graves; John Frey; and Mr. Gagliardi, who comes from the UP and points north. Will you please stand? Thank you very much.
I want to say thank you to the friends and family of John Voelker, and the people with whom I’ve had the pleasure to help build this foundation. We had the pleasure of knowing John for just a few years, to fish with him, to play cribbage, to enjoy a good yarn. John was a many faceted man, and he lived on his own terms, on terms that many people wish they could. As a jurist, a philosopher, and imminent member of the bench and bar, he served, here, in this courtroom. Here is where his novel, Laughing Whitefish, began to take shape. And when we republished Laughing Whitefish in a limited, signed edition, we put all the dollars that we raised to the Voelker Scholarship Fund.
We’re pleased to tell you this morning, that six native Americans, his choice, have gone through Cooley Law School, the University of Michigan Law School, the University of Wisconsin Law School, and I think are going to be what envisioned, warrior lawyers.
We once asked John, well, why – why Native Americans? Why would you pick scholars to be Native American scholars? He said, let them read my book.
It was here that Laughing Whitefish was argued. Laughing Whitefish is the story of a 19th century, American Indian woman whose father had shown a few folks from Jackson, Michigan, where to find the richest iron ore ever found in the world, the Teal Mine, which is still being mined today.
Those – those entrepreneurs gave a fellow named Archie Coboggom 12% of their company but never paid.
Three times, three times, the daughter, through her Counsel from the Upper Peninsula, stood in this chamber and on the third time they got it right. It turns out that Michigan’s inheritance law could not bar her inheriting because there was a treaty between the United States of America and the Chippewa Indian Nation.
So, John Voelker captured that story in a wonderful book called Laughing Whitefish, which I hope all of you read. And in it he thinks about his mother, and he thinks about all of the loved ones that all of us have lost, and I just want to read to you just a brief passage from that book this morning.
John wrote, “I learned in a rush, one of the stark and bitter lessons of human existence. With terrible clarity I learned that all the places that I would ever see and the books that I would ever read, the music that I would ever listen to, the people I would ever love, that all would one day disappear, leaving nothing behind, nothing at all. If this gave me resignation and humility, I hoped it gave me a kind of daring, a daring to live to the hilt one’s little span.”
In another book, he wrote—called Trout Madness, and this is a limited, signed edition we had published, and again, all dollars to the Foundation, with one of his fishing flies from his vest on the cover—he wrote his testament about fishermen. And many of us who have had the pleasure of going to Frenchman’s Pond, and winding through the woods, and what, as some would say, would take about 45 minutes as the crow flies, from Ishpeming, takes about three hours with John, riding along in his old fish car, winding through his lovely, wonderful woods.
And again, he says in the book, it’s only out there that he can find solitude without loneliness. It’s only out there that bourbon out of an old tin cup tastes best. But most importantly, he, for one, doesn’t want to waste the trip. And I know that none of you have done that, and I hope that none here today waste the trip, but let the spirit of John Voelker live with each of us, as we take a step down the street, and through the woods, and on to a fishing pond. I’d like to introduce Julie Voelker Cohen, and thank you.
MS. JULIE VOELKER COHEN: Madam Chief Justice, distinguished Justices, Historical Society members, Foundation members and friends, I was going to bring you greetings from my mother who is no longer able to travel, but she slipped away from us in September. She will be greatly missed.
She had seen the preliminary renderings of the portrait and enjoyed them very much, as did the rest of the family. Thank you, Mr. Crossman, for your striking likeness. Thank you, too, to the John Voelker Foundation members, especially Rich Vander Veen and Fred Baker, for keeping the memory of my father fresh, working hard to raise money for Native American scholarships and for their efforts in this instance, finding Mr. Crossman and raising the money for the portrait.
When my dad left the court to write, I was very disappointed. It wasn’t that I didn’t want him to write, but that I thought he was a perfect judge. He was aware of individual rights, and seemed to have a built-in intuition about what was fair in dealing with others. Thank you for honoring him in this way.
MR. FREDERICK M. BAKER, JR.: Your Honors, if it please the Court, Frederick Baker on behalf of the Voelker Foundation and the Michigan Supreme Court Historical Society, the portrait committee for John Voelker, John Donaldson Voelker.
When John Voelker resigned from this Court to return to his beloved Upper Peninsula, he offered no apology nor explanation except to remark that “while others may write my opinions, they cannot write my books.”
Anyone who has read any of his 11 published works of fiction, which include, of course, Anatomy of a Murder, and Laughing Whitefish, Danny and the Boys, Hornstein’s Boy, The Jealous Mistress, People Against Kirk, and Trout Madness and Trout Magic, will agree that no one else could write his books. But it is not so clear that others could write his opinions, at least not so well as he wrote them.
In his brief three years on the court, before the success of Anatomy of a Murder, and freedom from the labors of the law, Justice Voelker authored over a hundred opinions, and many concurrences and dissents. They may be read, today, as examples of judicial writing at its best, combining incisive legal analysis with an obviously deep love for the English language, and an equally deep mastery of it.
His opinions reveal something else about John Voelker, a trait all who hold this high position should share, and one he displayed in all he did throughout his life, both on and off the bench. He had a deep and impassioned sense of justice.
Perhaps no opinion of his epitomized this better than the one he wrote in People v. Hildabridle, which is published at 353 Mich, page 562. It’s a nudist colony case in which he urged reversal of indecent exposure conditions. John once told me it was his favorite opinion, and so I’ve chosen it as a focus for today’s presentation.
It was written as a dissent from Chief Justice Dethmer’s brief majority opinion, affirming the convictions of the three defendants who were arrested in a police-orchestrated raid on a nudist camp known as Sunshine Gardens.
The raid and the arrests were made, says Justice Voelker in his opinion, under the guise of serving warrants that were obtained by an illegal police visitation two weeks before. He called this pretext, “operation bootstrap,” and described it as a clumsy and transparent attempt to get around the vexing police problem of illegal search. Justice Voelker’s outrage at the police tactics that he detailed, at some length, in his opinion, can be heard in this passage. Speaking of Chief Justice Dethmer’s opinion, he said:
“My associate devotes but part of one sentence in his opinion to the question of the legality of the search and arrest, merely to note that the defendants had raised the issue.
Yet, to say that the search and arrests here were illegal is an understatement. It was indecent. Indeed, the one big indecency we find in this whole case, descending upon these unsuspecting souls like storm troopers, herding them before clicking cameras like plucked chickens, hauling them away in police cars and questioning them for upwards of five-and-a-half hours, and taking still more pictures. And then, final irony, swearing out warrants that one of their own numbers, the police, was the aggrieved victim of an indecent exposure.
“If this search was legal, then any deputized window peeper with a ladder can spy upon any married couple in the land, and forthwith photograph and arrest them for exposing themselves, indecently, to him.”
Justice Voelker’s Hildabridle dissent included a series of ten hypotheticals worthy of a law professor. In them, he demonstrated the inapplicability of the indecent exposure statute to the facts of the case. One of them, involving a hypothetical exhibitionist’s intentional exposure of his unclothed person to a woman who is stone blind and being led by a seeing eye dog conjures a hilarious echo of the philosopher’s familiar falling tree in the forest. Taken as a whole, his hypotheticals demonstrated remorselessly and inexorably, the legal error that so offended Justice Voelker’s sense of justice.
His dissent contains the following passage, which reflects, I think, all of the talents and the attributes that he brought to his work on this court. His plain spoken eloquence, his deep sense of justice, his tolerance of beliefs different from his own, his courage, and his recognition that humor, too, can be a tool of both analysis and persuasion.
He wrote, “Lest I henceforth be heralded as the patron saint of nudism, which I probably will be anyway, I hasten to preface what follows by stating that I am not a disciple of the cult of nudism. It’s presumed entrapments totally elude me. The prospect of displaying my unveiled person before others, or beholding others thus displayed revolts and horrifies me.
“I think these people have carried an arguably valid, basic idea, that is, that the deliberate de-emphasis of the prevailing western body taboo, with the anticipated lessening and ultimate disappearance of the undoubted eroticism frequently attendant upon such taboo, that is, the very opposite of indecency, to excessive lengths.
“Having said all that, I have at once veered to the heart of this case. It is this, whatever I or my associates may personally think of the practice of nudism has nothing to do with the case. More controlling is the fact that there are a number of earnest people in this world, including these defendants, who do subscribe to organized nudism, and who think that it is morally, mentally, and physically healthful.
“But we need not speculate on, or defend, or attack the philosophy of nudism. The question before us is much simpler. Were these defendants guilty of making an indecent exposure? I say no.
“It is said that there are hearty bands of sincere and earnest folk among us who likewise insist that all mental, moral, and physical health depend absolutely upon the regular consumption of vast quantities of bran. Others possess a similar passion for goat’s milk. Few molest them or even bother their heads about them unless they try, too strenuously, to impose or inflict their queer beliefs upon those who happen to loathe these items.
“Thus, on the facts before us, do I equate the criminality of private, social nudism, at least so far as a violation of the statute is concerned. Private fanaticism or even bad taste is not yet a ground for police interference. If eccentricity were a crime, then all of us were felons.”
John Voelker cared very little for honors such as the one we bestow today by, at last, presenting his portrait to this court. He declined to attend or participate in such functions when he was alive, observing, when he was invited to attend the formal presentation of his bust to this court, that he doubted that his eyes would ever see his city again. What we do today is not so much for his sake, or even for that of his family, and his beloved, late wife, Grace, who passed away only a few weeks ago. Rather, in presenting this portrait to the court, we honor this court, and the tradition of justice that it serves and embodies, a tradition to which John Voelker contributed in his term.
In closing, I offer one last observation about People v. Hildabridle, and it was the aspect of the case that most pleased John. I mentioned, at the outset of my remarks, that Justice Voelker’s opinion was written as a dissent. Indeed, it was published as such, with Justices Smith and Black joining in it. After reading it, however, one of the original majority, Justice Edwards, changed his vote, concurred in Justice Voelker’s result, and the convictions were reversed.
People v. Hildabridle provides a powerful object lesson in the value and the importance of this court’s long tradition of civilized discourse and debate, to the ultimate goal of achieving justice for the people of Michigan. It reminds us that the task of this court, which Justice Voelker called, “the court of last resort,” of one of democracy’s greatest industrial bastions, the State of Michigan, is ultimately providing justice.
At this point, I had hoped to introduce you to the artist, Mr. Rod Crossman, who was to have unveiled his portrait of Justice Voelker, which we present to you today. Unfortunately, on the same day that he called to tell me that he had finished it, he was stricken with a rare form of Bell’s Palsy. It has deprived him of his sense of balance and of his vision. He is recovering, and we wish him well, but he could not attend today.
Mr. Crossman has illustrated each of the five Traver Fly Fishing Fiction Award winning stories the Foundation has published, and he was chosen to do John’s portrait by the Voelker family and the late Grace Voelker. When he sent his conceptual rendering of the portrait for the family’s approval, he wrote that he considered this commission a special honor because he’d always admired John’s work and had longed to meet him when he was alive. But he said, though he had haunted Ishpeming in hopes of meeting John, he was too timid to go to his home and introduce himself.
When Mrs. Voelker sent me a letter, advising that she and the family had approved of the portrait, she wrote, on August 14th, “Most important is the portrait. It is excellent, and I honestly can’t see how it could possibly be improved. I think the artist is amazing. The story of his never meeting John in person makes me very sad. He should have just come to the house like everybody else did.”
When I sent Mr. Crossman a copy of this letter, and he told me, when I drove to Marion, Indiana, last week to collect the portrait, that it him touched deeply to know that Mrs. Voelker was pleased with it and that she saw the image before she passed away. I ask now that John’s daughter, Julie Voelker Cohen, do us the honor of unveiling the portrait, and thank you.
MR. WALLACE D. RILEY: As I sat listening to the recitation about Justice Voelker, the irony of today sort of came over me. This is the most important day for the Society and for the court because we’re going to talk about getting a new building, but the building is only part of the story of the court, isn’t it?
Perhaps the bigger story is the story of the Justices John Voelkers that have sat on that bench and that will sit on the bench hereafter. I have a few numbers for you in closing. One hundred and twenty years ago, the Michigan Supreme Court came to these chambers where it sat for 90 years. And only 30 years ago, the court left these chambers to move to the Law Building. Ten years ago, the Michigan Supreme Court Historical Society was formed, and with the help of then Senate Majority Leader John Engler, we reclaimed these premises and installed the bronze marker on this site. Five years ago, we began the opening of each court year in these chambers.
But I would suggest to you today that this is not just another opening of another year. It’s both the end of the beginning and the beginning of the end of a century transition, where Michigan will join the majority of states that have a Supreme Court building. In less than four hours from now, ground will be broken for Michigan’s Hall of Justice. At the first opening session here on October 10, 1995, five years ago, I concluded my remarks, some of you may remember, as follows, and I quote,
“Speaking of a Michigan Supreme Court building, let the governor and the legislature, and all of the citizens of Michigan know, if you build it, we will come.” Welcome to our field of dreams. Thank you.
CHIEF JUSTICE ELIZABETH WEAVER: Thank you very much, Mr. Riley and the Michigan Supreme Court Historical Society, its board members. We’d like to thank the Voelker Foundation, Mr. Vander Veen, Mr. Baker, and the family of Justice Voelker. It is a very remarkable portrait that has been presented to us. On behalf of all the members of the Supreme Court, we thank you very much.
Now, before we end this special session, I’d like to take a moment to formally and officially welcome to our court our newest justice, Justice Stephen Markman. Justice Markman comes to us well qualified as Governor Engler continues to send us the most qualified judges and justices. Mr. Markman, or Justice Markman, has with him today his family. And they are all on the front row there, his wife, Mrs. Markman. If they would stand: his son, Charles; his son, James; and his parents, Mr. and Mrs. Markman. We would like to warmly welcome Justice Markman and you can see we’ve got him very busy already. Thank you very much.
Now, this will, indeed, close our very special session of the Michigan Supreme Court. We invite those of you who would like to, to stay for our regular session, and we will, as soon as we give the people who need to leave a chance to leave, we will begin our oral argument of our first case, which we will hold here, in these chambers this morning. We will then adjourn, and at 12:30, we will be over on Butler and Ottawa. You’re all invited there to come to the groundbreaking to which Mr. Riley has referred. And then, later this afternoon, we will be in our regular chambers for further oral argument. With that, we are now in recess. Thank you, and adjourn.