Retiring justice reflects on her years at the Supreme Court

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.

Said Justice Kelly 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 story as part of her eulogy at a memorial service last January, would beg to differ, 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 to “learn at least one new thing every day.”

That thirst for learning led Kelly to Cape Cod last summer for a week-long class in writing fiction, an interesting departure from the well crafted and tightly reasoned legal opinions she has written. Not surprisingly, Kelly won an award at the workshop for one of her works, a short essay about 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, University of Paris. One of three siblings, she 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 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.

Justice Kelly began her legal career as an associate with Dykema Gossett in Detroit, later becoming a partner with Dudley, Patterson, Maxwell, Smith & Kelly. 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, Detroit Institute of Technology, Detroit Public Schools, and Wayne and Oakland County Community Colleges.

Kelly and her first husband, Richard Stout, were married 28 years before his death. She remarried in 2000, exchanging wedding vows with Southfield physician Don Newman.
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 Kelly, 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.

In a press conference after her election as chief justice, reporters were not exactly in a congratulatory mood, peppering her with 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 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,” said Justice Kelly, who also was a vocal critic of the court shift in criminal matters.

“The majority’s rulings have permitted many doctors, hospitals, dentists, and others that have committed medical malpractice to escape liability altogether,” she asserted, “...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 the Michigan Judicial Selection Task Force, which recommended “less partisanship” and “more transparency” in the way 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, 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...” which she indicated, was created to make legal information easier to understand and show people who need to handle simple legal matters themselves how to navigate the court system. The website contains articles explaining specific areas of law, toolkits, forms, and instructional checklists. It also helps users look for a lawyer in their area if they need more help.

“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.