AUGUST 30, 1994
CHIEF JUSTICE CAVANAGH: Welcome everybody to this happy occasion, a special session of the Michigan Supreme Court, and welcome all the relatives and friends of THOMAS GILES KAVANAGH.
It’s a very reflective moment for me. I was thinking that some 40 years ago next week I started high school. There I met an obviously very mature classmate, Joseph Hayes Kavanagh. Had to be mature because he was bald, and he already had lost a couple of front teeth due to hockey. But through him I met his father, THOMAS GILES KAVANAGH, and mother, Mary, and was benefited very much by their genuine and reflective affection for all of Hayes’ friends. For me, and I think for our whole crowd, there was such a sincere interest that you and Mrs. Kavanagh expressed in each of our thoughts and our own opinions, and you really made an effort to keep open communication and consistently demand responsibility from your kids and, I think, from us as well. I know that, just as I benefited from my association with Hayes, Katie’s, Tom, Jr.’s, and Kevin’s friends were similarly beneficiaries, and I want to thank you.
Let me introduce, fittingly, to start, the prominent barrister from the State of New York, Mr. Joseph Hayes Kavanagh.
JOSEPH HAYES KAVANAGH: May it please the Court, Mr. Chief Justice, Mr. Justice LEVIN, members of the Court, thank you very much for providing us with this opportunity to be here. It’s a tremendous moment. I would like to take the opportunity, initially, to say that it’s not always that a son has an opportunity to invite people to his father’s “hanging,” and we’re looking forward to it very much.
I’m going to introduce members of the immediate family, there are a lot of others here, I’m sure I will inadvertently omit some.
First of all, my father’s wife, Camilla, my sister Katie, my brother Tom, my brother Kevin, Katie’s husband, Vic Doherty, Tom’s wife, Josie, Katie and Vic’s children, Chuck and Amy, the great grandchild, Charlie, Molly and Kevin O’Shey, Tom Doherty, Tom and Josie’s children, Kristy, Tom, and Joe, and my own children, Giles, Justina, and Joseph Hayes, Jr., also know as Declan or Finbar. My father’s brother Jack Kavanagh and his wife Honey, Lansing residents, Mary, Ed and Joe Murphy, Mary Ed, child of Pauline, who unfortunately is not here. I’d like to remember also my Uncle George, my favorite musician uncle, and, of course, their parents, and my mother.
Going down the line, my favorite mother-in-law, Dorothy Stine and her husband Don, the long suffering, Mary Joe and Henry Heeley, brother and sister-in-law, Donny and Elaine Stine, their children Charlie and Joe, Libby and Dan Fallis, brother and sister-in-law, their children Annie and Michael.
On the new side of the family, the Duffys, we have Denise and Bob Borgan, Janie Duffy, Sheila Zimmer, and Pat Duffy. That’s the immediate family.
As you say, Mr. Chief Justice, it is a reflective time, and thinking back over all of the campaigns and other incidents that occurred that were involved in my father’s becoming a member of this Court, I’d like to share a few that I remember best.
In 1976, the Democratic party, of which my father had been a member all his life, decided that it did not want to renominate him for a new term on the Court and chose to nominate somebody else. A number of people considered the reasons to constitute an attack on the independence of the judiciary. What I remember most about those early days was that George Bushnell, the day after his term as president of the Michigan Bar, circulated a letter signed by all the past presidents of the Michigan Bar then living, addressed to all the members of the bar and characterized the situation as an attack on the independence of the judiciary. That started off a campaign that I was involved with for its duration. I traveled throughout the state and ran into lawyers, believe it or not some of them were not even Democrats, who in great numbers agreed with the position taken by George Bushnell and his colleagues.
I remember one time while driving around the state in a campaign station wagon with bumper stickers and signs, someone, a stranger, came up to me and said, “I want to make a contribution to the campaign.” I said, “Great,” and I told him how to make out a check. And he said: “I’m a lawyer, and I’m a sole practitioner, I represent the little guy. I’m a nobody, but whenever I’m before the Supreme Court, where I’ve been a few times, and I see your father sitting there, I know somebody is going to listen to me; I’ve got a chance. I like that.”
There is one other incident that actually occurred during high school when a number of us were on a retreat at Manresa Retreat House in Bloomfield Hills. We were told to observe a rule of silence, and certain participants were ejected for breaking that rule—I was one of them. My father manifested enormous restraint and tranquility under the circumstances, an indication, I think, of the temperament that made him so well suited to the bench.
One of the other members of the trio who also got kicked out, as we called it, is Professor Hicks from the University of Indiana Law School, and the last one, as I recall, is the presiding Chief Justice of this august Court—and I thought it might be useful for both his colleagues and perhaps the electorate of this state to reflect on what the breaking of a rule of silence might say about the qualifications of an individual to become an appellate judge. I’ll leave that to those others. Thank you very much, Mr. Chief Justice.
My brother Kevin would now like to address the Court.
KEVIN KAVANAGH: Mr. Chief Justice, associate justices, may it please the Court, I’m glad to have the opportunity to indulge in some reminiscences of my own. Of course, in getting ready for today I thought back over now twenty-five years since dad first became a member of the Court. Of course, at that time I was quite a bit younger, and over the years my perspective has changed, especially now that I’ve recently entered the practice of law. In that respect I’m sure my memory is not quite accurate in all chronological detail. The lawyer part of me leaves me wondering if, and hoping that nobody will, file a dissent or concur in the result only.
In thinking back to the time that dad spent on the Court, and particularly the time during which he became the Chief Justice, I remember most vividly the difficulties that seemed to beset the Court in early 1975. I remember very distinctly, it was during the holiday period, sometime between Christmas and New Year’s. Dad had met with some of the associate justices, and they had indicated that they would like him to consider running for Chief Justice. He said that he would, and he announced that decision to the family. There was a mixture of excitement, but you could also tell that, while he was committed to doing it, dad realized it was not going to be an easy responsibility to assume, and it seemed that right from the outset events began to overtake him.
Of course within the matter of months the Court had to deal with the death of THOMAS M. KAVANAGH, who had been the Chief Justice for six years, and shortly after that one of the associate justices was forced to resign in the face of a criminal investigation and I could see that this was weighing tremendously on dad personally.
But dad did make a very nice recovery with his appearance on the Off the Record television program, in which he indicated that he thought that decriminalizing the three “P’s,” pot, pornography, and prostitution was an idea that was certainly worth considering. Once he had gotten the momentum going his way, he was able to sail right on into his reelection campaign in 1976. But all that certainly showed me that the responsibilities he had undertaken were not only of the sort—of the very public sort—that this occasion marks, but also that many of the accomplishments that dad can be credited with, much of the legacy he leaves, are really the product of his character and the sort of strength, and at the same time humility, that he displayed in all his dealings with the Court and the profession. So in the middle of this very public celebration, I think we should keep in mind that this is a celebration simply of dad. Thank you.
CHIEF JUSTICE CAVANAGH: Let me acknowledge just a few of the noted attendees that I have spotted in the audience, apart from those who are going to be giving—sharing some comments with us. Chief Judge DOCTOROFF, from the Court of Appeals, former Chief Judge of the Court of Appeals and a colleague on that Court of THOMAS GILES, Judge T. JOHN LESINSKI, Judge CLIFF TAYLOR, Judge HELENE WHITE, Judge MICHAEL J. KELLY, Judge RICK GRIFFIN, retired Kent County Circuit Judge, Stu Hoffius, Judge MAURA CORRIGAN, Circuit Judge Paul Clulo, and deputy assistant Attorney General, Stanley Steinborn.
Let me recognize now a former Chief Justice of this Court and a former colleague of Thomas Giles, the Honorable THOMAS E. BRENNAN to address us on behalf of the Supreme Court Historical Society…Tom.
HONORABLE THOMAS E. BRENNAN: Mr. Chief Justice, and justices of the Supreme Court—Justice KAVANAGH and distinguished justices and judges, members of the bar, and family and friends.
It’s my privilege to appear here on behalf of the Michigan Supreme Court Historical Society and at the command of its president, Wallace D. Riley, who unfortunately could not be with us today.
Volume 381 of the Michigan Reports notes that THOMAS GILES KAVANAGH resigned as a judge of the Michigan Court of Appeals, effective January 1, 1969, and from that same day he served as a justice of the Supreme Court of Michigan. The next forty volumes of the reports list Justice KAVANAGH as a member of the Court and for one term, as its Chief Justice. He was the ninetieth person to serve as a justice of the Supreme Court. I was the eighty-ninth, having come to the Court two years before Justice KAVANAGH. We served together for four years.
It was, perhaps, the only time in American history when two justices sitting concurrently on a state supreme court bench had both the same surname and the same given name. Our Court had two Tom Kavanaghs. THOMAS MATTHEW KAVANAGH of Carson City, and THOMAS GILES KAVANAGH of Troy. In the jargon of the Court they became known as TM and TG. Of course, as you can well imagine, there were other nicknames given as men who labor in common are wont to do.
One of the more benign, I have disclosed publicly on other occasions, and I repeat here for the record: THOMAS MATTHEW KAVANAGH, the hard driving, politically astute, long-time Chief Justice was aptly called “Thomas The Mighty.” Our distinguished honoree, whose portrait will this day be presented to the Court, was appointed counter-distinction, dubbed “Thomas The Good.”
As his colleague for four hectic, contentious years, I can testify that the title was well earned, and well deserved. Tom Kavanagh was, and is, a good and decent man, with whom it was a pleasure and an inspiration to serve. His self-deprecating, often robust, sometimes ribald, and occasionally even churlish sense of humor, endeared him to his colleagues on the Court as it has to all who have known him through the years. Or perhaps I should say, his sense of humor was ultimately found to be endearing once we realized that behind the mask of Don Rickels, there beat the heart of Mother Teresa.
Tom Kavanagh recently told a room full of lawyers, that while he liked me well enough, he never agreed with anything I wrote. He got a great laugh for that line, as I recall. And I suppose among those old-timers who knew both of us, it must seem that we were about as compatible as Ed Asner and Rush Limbaugh. That’s not so. And this is as good a time as any to set the record straight. I took a long look last night at volume 382 of the Michigan Reports and I discovered, not really to my surprise, that Tom Kavanagh and I concurred in twenty-two of the first twenty-three opinions in which he participated as a Supreme Court justice. We didn’t part company until October of 1969 when Justice KAVANAGH dissented from the affirmance of a conviction of cruelty to cows in People v. Olary.1 Even then, his defection from the straight and narrow path of juridicial righteousness could be traced to a dissenting opinion in the lower court by then Court of Appeals judge, CHARLES LEVIN. In truth, what “Thomas The Good” taught all of us who worked with him was the meaning and importance of collegiality. He was fond of saying that the members of the Court through sheer happenstance and the vicissitudes of politics, ambition, age, health, and geography had been thrown together like survivors sharing a single life raft, and it was our task and our duty to work together for the common benefit. He demonstrated that spirit of cooperation in a thousand ways through his long and productive judicial career.
The Michigan Supreme Court Historical Society, which I am privileged to represent here this afternoon, is proud to participate in this unveiling ceremony. We fervently hope, Mr. Chief Justice, and fully expect, that the presence in this Court’s chambers of a likeness of THOMAS GILES KAVANAGH will nurture the memory of his unique contribution to the spirit of judicial collegiality, and that, so reminded, future justices will be inspired to greater cooperation and fellowship in their common commitment to the jurisprudence of Michigan.
CHIEF JUSTICE CAVANAGH: Thank you Chief Justice BRENNAN. We call upon another Chief Justice of this Court and a colleague of Thomas Giles, both on the Court of Appeals as well as on this Court, the Honorable JOHN FITZGERALD.
HONORABLE JOHN FITZGERALD: Mr. Chief Justice, may it please the Court. I am Mr. JOHN W. FITZGERALD, currently Professor of Law at the Thomas M. Cooley Law School, having given up on the older generation of lawyers and turning my attention to the younger generation with more malleable minds.
My experience as a judge with THOMAS GILES KAVANAGH goes back, perhaps, as far as anyone in this courtroom, perhaps, as far as anyone in this courtroom, perhaps even T. JOHN LESINSKI. Next January 1, 1995, marks the thirtieth anniversary of the Michigan Court of Appeals, and Tom and I have the honor along with T. John of being among its original nine members.
Nine people, many of whom had not known each other before, were drawn together, and were expected to act in a cohesive rational way, and may I add parenthetically to relieve the Supreme Court of part of its load was a daunting task. As I recall, the Supreme Court presented us with something like three hundred cases just so we would have a nice little backlog on opening day.
As soon as the Court of Appeals was organized, liaisons and friendships began to form. Once a month we gathered in panels of three to whittle on this backlog. I was immediately drawn to Tom Kavanagh for a variety of reasons. First, as all of you might expect, his sense of humor. He had an innate sense also of how a case ought to come out; and not least, his overwhelming sense of justice. I remember being on a panel with him involving a particularly rancorous plaintiff, who was taking advantage of a particularly helpless defendant. Tom started the conference when we were discussing the case by saying, “I hate bullies.” I realized that I did too. And so did our third panel member, and needless to say, that case came out the way it should.
Tom graduated to the Supreme Court, and I languished on the Court of Appeals. On the Supreme Court, he had the pleasure of reversing me on more than one occasion. One that stands out in my mind was a peremptory reversal by the entire Supreme Court, perhaps a record of some sort. I had waxed eloquent in an opinion about silence as misrepresentation, and had developed an entirely new theory that privity would no longer be required. I didn’t take the Supreme Court along on that one. What words I had to bear in that order that came back “reversed without opinion.”
It took me a while to catch up with Tom and my other departed colleague, CHARLES LEVIN, who would also move to the Supreme Court, but I finally made it. And it was here on the Supreme Court that I discovered Tom’s full dedication to the law. On many occasions I signed with pleasure his enlightened, forward-looking opinions, particularly in the field of governmental immunity because we discovered that we still hated bullies, and that Justice LEVIN did too. We had many four to three opinions to demonstrate that. When he became Chief Justice, Tom presided over the Court in good times and, perhaps, the most trying time that this Court has ever experienced. But he guided it with a firm and fair hand, and the important result was that the Court emerged cohesive and stronger than ever.
During those times, during my first year on the Court, I said to Tom, “Have things always been this bad or did they go bad when I came on the Court?” Tom looked at me with a twinkle in his eye and said with a straight face, “They went bad when you came on the Court.” So Tom, I’m honored to be here today to see you hanged, if not in fact, at least on the wall of the Supreme Court chamber. I salute you, my friend, colleague, mentor, and in a joke that only you and I will understand, I quote the words of that late statesman, Champ Clark, “We do you but simple justice.”
CHIEF JUSTICE CAVANAGH: Let me call on a distinguished practitioner, member of the State Bar, long time friend of Thomas Giles, soon to be Honorable John Corbett O’Meara.
JOHN CORBETT O’MEARA: I am totally unprepared, Mr. Chief Justice, but may it please the Court, when Hayes was talking I remembered those days in 1976 when we would have meetings to determine whether all of us who were good Democrats would stop being good Democrats and support this man. A lot of us did, and as Hayes said, a lot of Republicans did too. I think that in many ways that period, for those of us who participated, was our greatest time. We did it because we love you Tom. I did not know that was to say something today, but I’m happy and honored.
CHIEF JUSTICE CAVANAGH: I have offered my colleagues each an opportunity to say something, but we all reached a consensus that we have heard from each other more than enough today. They certainly share the comments that have been expressed so far and that I will express, so let me introduce Tom, Jr., who will present the artist and the unveiling.
THOMAS GILES KAVANAGH, JR.: Thank you, Mr. Chief Justice and members of the Court, first of all for accommodating the Kavanagh family schedule by agreeing to this special ceremony today. With many out-of-town relatives and several of the grandchildren in college, this was the best time, and we appreciate your consideration.
I’d like to thank several people, particularly those who made very generous contributions to this effort: the Supreme Court Historical Society, many lawyers and others across the state, raised slightly more than all the cost intended to the creation of this beautiful portrait.
I’d also like to say thanks to the families who unwittingly married into this clan. Hayes mentioned several—but the Doherty family, the Stines, the Cacciottolos, and most recently, certainly not last or least, the Duffeys, who have always been very supportive not only of dad, but of all us, because they have always taken us as we are, not how they might wish us to be. That’s been very important to each of us. I’d like to thank three good friends from Hillsdale College, where I’ve been for the last four years, Dr. Joe MacNamara, Doug Mills, and Scott Smith, who volunteered to come up today to record these proceedings photographically and on videotape. It’s not only nice have those memories, but it’s always great to have friends who are willing to do that. I’d like to thank Justice BRENNAN and particularly his secretary, Sherry Beck, who did all of the paper work associated with raising the funds and paying the bills and so on. Their help, and also that of the Chief Justice’s secretary, Marcia Jackman, made the job that we had trying to put this project together very easy. I thank them on behalf of the entire family.
As everyone has said, and I won’t belabor the points that have been well made today. It is a very special occasion for each of us in the Kavanagh family. Perhaps Dr. Joe MacNamara and his creative wisdom will find a way to transmit a copy of the videotape, perhaps a celestial copy of that tape to those in the family who had their fill of us and moved on to greater pastures. Certainly dad’s parents, Addie and Giles Kavanagh, George Washington Kavanagh, dad’s older brother, and Pauline Kavanagh Drum would love to be here along with our mother, Mary Mahoney Kavanagh. It’s a special day for all of us.
One thing dad taught us to do was cry.
I just wanted to mention a couple of things that I admired as an observer of my dad in the body politic of the Supreme Court, and that was that he really never dealt with it or talked about it as a political organization, even though we know it is. The comments made by former colleagues underscore those points, but I always admired dad’s judicial courage and integrity, and there are two cases that come to mind. The infamous Crestwood Teachers2 case, in which dad joined an opinion upholding the firing of striking teachers. I have to be careful, I know there are some MEA guys in the room. I was teaching school at the time, and I went with dad along with several others to the MEA caucus at the next convention, and I admired his courage in walking in and being very forthright.
Second, the now famous reapportionment opinion3 in 1972, that led to the Democratic party giving the greatest boost that dad’s campaign has ever had by dumping him, so to speak, in ’76. I think he amassed more votes in that election, if my memory holds, than all the other candidates for that office combined.
Finally, a chance that I had, a very special one, to practice with dad. We quickly determined that neither one of us was going to make a lot of money practicing law, so dad decided to get married again, and I went back to academia. So I think we are in very good shape at that point.
At this point, I’d like to bring us to the feature of today, and introduce the tremendous artist who created the portrait that we’ll see in a moment, Sam Knecht, who is the head of the art department at Hillsdale College, where he’s taught for more than twenty years. When you see Sam you won’t believe that, but he not only took this project on as a matter of professional responsibility, he really got to know the subject, the subject’s family, and this environment in which dad served happily for so many years. I think when you see the portrait, he had the artistic ability to capture all of that in one particular focus. Sam graduated from Michigan State and attended the University of Michigan, and he’s also known affectionately as the most famous and favorite artist of Grass Lake, Michigan, where he and his wife Leslie and two daughters reside. I think my mother-in-law, Maria Cacciottolo, could probably say it best in the beautiful language of Italy from where she and my wife Josie came. Sam is truly a magnificent artist and his work will speak for itself.
Before I do that, I want to cover for my brother, Hayes, who very graciously introduced the entire family, but forgot someone who’s a little bit involved in his life in New York, his beautiful wife Tina, who is here today.
One thing I’ve learned, I always prefer to speak last, it just works out better that way. Again, I’d like to introduce the artist, Sam Knecht, who has some comments about the medium he selected and perhaps about the subject that he has rendered. Thank you, each of you, for your accommodations to the family today.
SAM KNECHT: Chief Justice CAVANAGH, esteemed members of the Court, may it please the Court, I feel particularly honored to have been given the opportunity to make a portrait of THOMAS GILES KAVANAGH. I’ve taken this project with a great deal of seriousness, having taught both painting and art history for a number of years.
I’m aware of the traditions of official portraits of governors, justices, and so on. Tom Kavanagh made this not only a task, but a great deal of fun. I became aware that the Supreme Court is not only an institution of principles, but of people, and I felt that it was my responsibility to create an image of the judge which honors both the office and the man.
The members of the Historical Society of the Supreme Court, particularly Tom, Jr., who was the chief spokesman for the project, asked me to show in the background of my painting of the judge the interior of the original Supreme Court courtroom in the Capitol Building. That was a particularly challenging task, as I’m sure many of you here present know how magnificent that architecture is, and it was a challenge that I took eagerly, but was also a difficulty as well. There was a danger that the background could overwhelm the subject. Not a real danger though, because Judge KAVANAGH has a personal magnetism and a warmth that’s undeniable.
So many of the general public have a stereotype of judges or official politicians in general as looking rather dour in their portraits, and that could hardly be appropriate in the case of Justice KAVANAGH as you’ll see in a moment.
For this painting I chose the little-used medium of egg tempera. Just a comment about that process: it’s older in the history of art than oil painting, and literally involves mixing paint from scratch with egg yolks, water, and dry pigments. I followed, traditionally, procedures that go back about five hundred years, and this is a medium that allows the artist to deal with painstaking detail, exploring every square inch of the subject. I felt that that would be the medium of choice to do justice to the Justice and to do justice to the courtroom.
I thank you one and all for the opportunity to be involved in this project, and I believe next, we’ll proceed to the unveiling and would like to ask the sons and daughter to join us at the front and assist in the unveiling.
[At which time the portrait was unveiled.]
CHIEF JUSTICE CAVANAGH: It’s outstanding, Sam, you even got the reflection right—the KAVANAGH reflection.
Your eminence, Thomas Giles, let me give you the opportunity to respond to all these doings.
HONORABLE THOMAS GILES KAVANAGH: Thank you, Mr. Chief Justice, members of the Court, my former colleagues, and friends all. I gave a lot of thought to what I would say on this occasion, and I realized that I don’t have the words to say what’s in my heart. I hope you know how grateful I am and how much I love you all. I have been blessed more than anyone has a right to ask, and I’m grateful for all of those blessings, and I’m grateful for my family, and my friends, and I thank you, and God bless you all.
CHIEF JUSTICE CAVANAGH: TG, I know I speak for all here who have not had the opportunity to speak and very certainly for all your other law clerks, and I say what a privilege it is for us to recognize a man whose legal career, and really your whole life, has been consistently guided by intellectual and honest commitment to the moral law and abiding concern for the welfare of your fellow man. I had run across a work of Sir Henry Wotton, who was an English poet—couldn’t find an Irish poet—that was dirge stuff. Sir Henry lived from 1568 to 1639, right around the time that they started beating those eggs, and one of his works was a poem entitled “The Character of a Happy Life,” whose verses, I would suggest, describe in many respects the character of THOMAS GILES KAVANAGH’s life and legal career. Sir Henry wrote:
How happy is he born and taught
That serveth not another’s will;
Whose armour is his honest thought,
And simple truth his utmost skill!
Whose passions not his masters are;
Whose soul is still prepared for death,
Untied unto the world by care
Of public fame or private breath;
Who envies none that chance doth raise,
Nor vice; who never understood
How deepest wounds are given by praise;
Nor rules of state, but rules of good;
Who hath his life from rumours freed;
Whose conscience is his strong retreat;
Whose state can neither flatterers feed,
Nor ruin make oppressors great;
Who God doth late an early pray
More of His grace than gifts to lend;
And entertains the harmless day
With a religious book or friend;
–This man is freed from servile bands
Of hope to rise or fear to fall:
Lord of himself, though not of lands,
And having nothing, yet hath all.4
On behalf of my colleagues and the entire Michigan Supreme Court family, I’d like to thank the Historical Society, Justice KAVANAGH and his family, and Sam Knecht, and the Portrait Committee for this very fine addition to the rich tradition and history of the Michigan Supreme Court.