Parting Ways: Retiring justice reflects on Supreme Court years


By Tom Kirvan
Legal News

When her beloved mother died earlier this year, at the age of 104, Michigan Supreme Court Justice Marilyn Kelly took time to reflect on a life well lived.

“She outlived her longest surviving sibling by 25 years,” Justice Kelly said of her mother, Evelyn Walter Kelly Cogan. “She was often asked, ‘What’s the secret of your longevity?’”

Her mother’s reply, always spoken with a “twinkle in her eye,” according to Kelly, was decidedly frank: “Well, it wasn’t clean living!”

Kelly, who told the anecdotal story while eulogizing her mother at a memorial service last January, would beg to differ, however, believing that the centenarian’s secret was framed in profound yet simple terms.

“Evelyn loved life,” Kelly said of her mother. “She always found something in life to enjoy. Often it involved the little things. Her love of life made it possible for her to weather the many storms, to handle the many losses and disappointments that she experienced, and not to give up or give out.”

The same, in many respects, could be said of Kelly, now in her final days on the state Supreme Court, where she has left her judicial mark over the past 16 years. Throughout her professional career, which began as a French teacher in Grosse Pointe, Kelly has looked at life with a special fascination, embracing the joys of learning and adventure.

Outside her career in the law, Kelly is constantly in motion, enjoying scuba diving, downhill skiing, traveling, gardening, sailing, dog showing, writing, and even acting. She is ever mindful of the words of her grandmother, who implored her family members to “learn at least one new thing every day.”

That thirst for learning led Kelly to Cape Cod last summer for a weeklong class in writing fiction, an interesting departure from the well crafted and tightly reasoned legal opinions she churns out as a member of the state’s highest court. Not surprisingly, Kelly won an award at the writing workshop for one of her works, a short essay describing a “young idealistic lawyer’s first day on the job.”

Kelly may have drawn upon her own experiences as an up-and-coming lawyer, a time in the early 1970s when the courtroom doors didn’t exactly swing wide open for women. She was just one of six females enrolled in a class of 100 at Wayne State University Law School.

“Back then, plain and simple, women weren’t wanted in the legal profession,” said Kelly, who was elected to the State Board of Education at the age of 26. “It was tough to get a chance, let alone make the grade. When I enrolled in law school, I was naïve enough to think that your gender didn’t matter when it came time to find a job. Little did I know how walled off most firms were for female attorneys.”

She began bumping up against gender barriers at an early age, hoping as a young girl to enter the Soap Box Derby, a venerable contest that attracted racers across the nation.
“At the time, I wanted more than anything to compete in the Soap Box Derby, but I couldn’t because I was a girl,” she lamented. “It was very upsetting to run into a roadblock there, but I wasn’t the type to settle for a consolation prize.”

Instead, she turned even more of her attention to school, developing interests in language and the liberal arts. She was an honors student at Mackenzie High School in Detroit, at Eastern Michigan University, and Middlebury College in Vermont, also pursuing graduate studies at La Sorbonne, the University of Paris. One of three siblings, she then taught French in Grosse Pointe Schools, later serving as a language instructor at Albion College and EMU. Her decision to attend law school at Wayne State may have been fed by “spirited discussions” she frequently enjoyed with her father while growing up.

“We used to love to argue about politics at the dinner table,” Kelly said about her father, Ralph, who worked as a stationary engineer for the Detroit Board of Education. “It made for some wonderful dinner conversations.”

Justice Kelly began her legal career as an associate attorney with Dykema Gossett in Detroit, later becoming a partner with the firm of Dudley, Patterson, Maxwell, Smith & Kelly in Bloomfield Hills. Before her election to the state Court of Appeals in 1988, she headed her own firm in Bloomfield Hills.

She has served as president of the Oakland County Women’s Bar Association and the Women Lawyers’ Association of Michigan, and spent 12 years on the State Board of Education, the last two as president. She is proud of her involvement over the years with a host of charitable and educational concerns, including Channel 56 in Detroit, the Women’s Survival Center in Pontiac, the Detroit Institute of Technology, the Detroit Public Schools, Wayne County Community College, and Oakland County Community College.

Kelly and her first husband, Richard Stout, were married for 28 years before he passed away. She remarried in 2000, exchanging wedding vows with Don Newman, a Southfield physician.

For several years, before Kelly served as chief justice of the Supreme Court, she and her husband spent much of their free time on the dog show circuit, entering their West Highland White Terrier, Duff, in contests around Michigan and neighboring states. The after-hours avocation was more than a mere hobby for the veteran state jurist, who admitted that it began to take on a “life of its own” as her prized dog pranced his way into the winner’s circle on several occasions.

Then, following the 2008 election in which Chief Justice Clifford Taylor lost his bid for re-election to Diane Hathaway, Kelly was chosen to lead the seven-member panel by a slim 4-3 margin, pledging to restore some civility to a court that was at times deeply divided along ideological lines.

In a press conference after her election as chief justice, reporters were not exactly in a congratulatory mood, peppering her with a series of questions about the so-called “house divided” and whether she had the leadership moxie to make it “stand.”

“The tone of the questioning was a bit of a surprise, but I don’t believe that too much blood of mine was spilled,” Kelly said with a smile during an interview a few days later with The Legal News.

At the time, Kelly acknowledged that she had become dismayed with the Republican majority on the court. In a talk at the Michigan State University College of Law on the eve of the 2008 election, Kelly contended that judicial activism had “dramatically” altered the legal landscape in Michigan and that the court majority had selectively “abandoned” the practice of “stare decisis” in rewriting state law. She criticized the majority for catering to insurance companies and for emasculating consumer protection measures.

She saved some of her most pointed remarks for the area of medical malpractice in which the “changes have been shocking,” according to Justice Kelly, who also was a vocal critic of the court shift in criminal law matters.

“The majority’s rulings have permitted many doctors, hospitals, dentists, and others that have committed medical malpractice to escape liability altogether,” she asserted. “They’ve done this through their interpretations and applications of various statutes.”

Over the past few years, Kelly has decried the amount of “special interest money” that has crept into judicial campaigns, especially at the Supreme Court level, contending that it has “skewed the look” of how races are run. Earlier this year, she co-chaired with U.S. Court of Appeals Judge James Ryan the Michigan Judicial Selection Task Force, which recommended “less partisanship” and “more transparency” in the way Supreme Court justices are selected.

“The current process of selecting justices undermines public trust and confidence in the impartiality and independence of the Michigan Supreme Court,” said Kelly. “Polling has consistently shown that a majority of Michigan voters believe that judicial campaign contributions have influence on the decisions that judges make. As the saying goes, perception become reality — a judiciary that is not perceived as impartial is a comprised judiciary. That’s not fair to anyone — not to voters, and not to the judges. Michigan deserves better.”

While she was chief justice in 2010, Kelly spearheaded the establishment of the Solutions on Self-Help Task Force, which was created to “improve and coordinate resources for self-represented” litigants in Michigan.

“The courts are being inundated by people who are representing themselves in various legal matters,” Kelly said. “We needed to address this systematically and we have through the MichiganLegalHelp website that is funded in part by the Michigan State Bar Foundation.”

The website, she indicated, was created to make legal information easier to understand and to show people who need to handle simple legal matters themselves how to navigate the court system properly and efficiently. The website contains articles explaining specific areas of the law, toolkits, forms, and instructional checklists. It also helps users look for a lawyer in their area if they need more assistance.

“As a profession, we need to make pro bono service a priority, especially in economic times like we have been experiencing over the last few years,” Kelly said. “The demands on the legal aid front keep growing and we need to meet that challenge, just as we must address the growing need for qualified interpreters in the courts to help those who are unable to speak or understand English.”

Kelly’s work, as a state jurist and as an advocate for the disadvantaged, has been long admired by her Supreme Court colleague, Justice Michael Cavanagh.

“It has truly been a privilege and a pleasure to have served with Justice Kelly these past 15 years,” Cavanagh said. “She has certainly served the Court and the people of Michigan well. Her efforts at ensuring that all our citizens enjoy full access to justice has been one of many causes she has championed during her tenure here. I will miss her wisdom, insight, and sense of concern and caring for the disadvantaged. She will leave a significant imprint on the jurisprudence of this state.”

Several years ago, Kelly was instrumental in promoting the adoption of a recusal rule for justices on the Supreme Court, toughening ethical standards to ensure judicial impartiality and to avoid the appearance of any impropriety.

“It was a necessary step to guard against the risk of any bias,” Kelly said of the recusal rule.

It “took some convincing” for the court to approve the measure, Kelly said of the 5-2 vote, but persuasiveness has been a strong suit of hers when it comes to the importance of judicial integrity.

During a talk at an Oakland County Bar Association Inn of Court meeting, Kelly told a group of young lawyers that “we are at risk from the mundane and everyday pressures” of the workplace.

“Our ethical dilemmas are less clear-cut and less dramatic than the stuff of films and classroom hypotheticals — in fact, the greater danger is precisely that we may hardly be aware at all that we about to cross an ethical line,” she said. “One unethical decision leads very easily to another; unethical lawyers don’t get that way overnight, but become so gradually, stretching the truth here, padding a timesheet there — even though they started out with every intention of being ethical. As so often is the case in the other parts of our lives, the most insidious ethical dilemmas seldom present themselves as the gun on the desk. Rather, they come at us over time, wrapped in practicality, familiarity, and the stress of trying to do much with little. So being ethical, in addition to being a matter of choice, is also a matter of habit. It is what we do not once or twice in our careers, but every day in hundreds of small, mundane acts.”