By Ed White
Associated Press
DETROIT (AP) — Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state’s top court, much of that time in the minority responding to opinions set by the conservative majority.
“It wasn’t the way I would have scripted it if I had the option. It can be very lonely,” said Kelly, a Democrat. “I still would have done it. It’s such a great opportunity to try to shape the law.”
Kelly, 74, is not hanging up her black robe by choice. The state Constitution bars judicial candidates over the age of 70 from running for office. That rule was part of the 1908 document and was retained in 1963.
“I would have run again because I’m in good health and I love the job,” said Kelly, who was elected in 1996 and re-elected in 2004. “I don’t know what conversations took place at the (1961-62) constitutional convention. There wasn’t the keen awareness then as there is today about age discrimination.”
Kelly was chief justice from 2009 through 2010, a two-year period when election results temporarily put conservative Republicans in the minority. During that stretch, the court opened the door for more lawsuits by people who were injured in car accidents.
She also was in the majority when the court threw out a 2004 decision that had greatly restricted lawsuits in environmental disputes. But that ruling stood for only four months; Republican justices regained control in the 2010 election and restored the earlier ruling. The GOP still maintains a 4-3 edge.
“From my point of view, the court is not in the middle of the road,” Kelly said in an interview last week with The Associated Press. “The court is off to the right, and I’ve often written complaining about that. It should not be so difficult to get a claim to a jury as it has become under this court, simple accidents in everyday life.”
She has dissented in decisions that have limited lawsuits in slip-and-fall accidents and set strict rules for people pursuing personal injury claims. Conservatives on the court, led by Chief Justice Robert Young Jr., say the majority is simply interpreting the law as the Legislature intended.
There have been victories. Kelly said she was pleased to have been part of a landmark 2005 decision that allows people to walk along miles of Michigan’s Great Lakes shore, even if the beach is privately owned. In 2004, she was part of a unanimous ruling that limited the government’s ability to use eminent domain to acquire private land for private purposes.
Kelly said she’ll next turn to teaching at Wayne State University law school. But she also wants to educate the public about ways to change how Supreme Court justices are elected. She led a task force earlier this year that recommended an open primary election for candidates instead of having nominees blessed by political parties.
Candidates for the top court are nominated by parties but don’t carry a political affiliation on the ballot, unlike candidates for other statewide offices. University of Michigan law professor Bridget McCormack, who was endorsed by Democrats, won a seat in the Nov. 6 election and will replace Kelly on Tuesday.
Kelly also believes a commission should be created to recommend people to serve on the Supreme Court when a vacancy arises, an idea that doesn’t need approval by voters.
Gov. Rick Snyder “didn’t promise us he would do something right away, but he said he would continue to look at it,” she said.
And that age limit for judges? Kelly hopes voters someday scrap that, too.
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