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Published: 7/16/2004

Michigan's court of last resort

DETROIT Michigan Supreme Court Justice Marilyn Kelly realizes that most people don t know much about the state s highest court or its judges.

Most people eligible to vote did not vote us in. They simply did not

vote, she says, smiling sadly. Though Michigan elects its seven

Supreme Court justices to eight-year terms, nearly half the

electorate doesn t vote at all, and a many who do simply skip the

judicial races.

Nor do most voters have much of a grasp of what the court really

does. Soon after she was elected in 1996, she met a carpenter on an

elevator who told her that he had taken his 6-year-old son into the

voting booth. First, I voted for the important offices. Then I

turned it over to him, and he voted for you, the carpenter said.

That certainly brought me down a peg, she laughed.

Actually, the case could be made that the high court matters more

than many other offices. What few realize is that it supervises and

sets rules for the entire court system and its judges. It is also the

court of last resort for Michigan. Every year, lawyers ask it to

reconsider something like 2,500 cases that have been decided by

lesser courts, the vast majority of which the justices turn down.

When the high court does decide a case, the decision can be appealed to the U.S. Supreme Court, but few are, and I can only think of one case where they reversed us, a trucking industry case in which she, incidentally, happened to write a dissent that the nation s highest court said was correct.

Justice Kelly has a somewhat unusual background; she was a young French teacher at tiny Albion College when she became interested in education issues and somehow got the Democratic Party to nominate her for the state board of education when she was 26. You know, when you are in your 20s you think you know everything and can do anything.

That was 1964, and Democrats swept the state. It soon became clear to her that a knowledge of the law would be extremely helpful in dealing with the state s education system. So she abandoned plans for a French PhD got a law degree from Wayne State University, and after years on the board and in private practice, was elected first to the Michigan Court of Appeals and then the State Supreme Court.

These days, she is often in a minority. Though the justices are

technically nonpartisan, they are actually nominated by the major

political parties. Republicans now have a 5-2 majority, and that

makes for a lot of 5-2 opinions.

If anything, Michigan s Supreme Court is more ideologically split

than the nation s highest court. Asked what the atmosphere was like

when the justices discuss cases, she said professional.

You can t not be on speaking terms, she said.

Nevertheless, while not every case breaks down along ideological

lines, she spends a lot of time writing both dissenting opinions and

objections to the majority s decision not to hear cases.

She is also spending time campaigning for re-election this fall

though she doesn t know who her opponent will be. Republicans will

nominate a candidate at their August convention, but in practice, it

has proven nearly impossible to defeat sitting Supreme Court

justices, in part because they are listed on the ballot as a justice

of the Michigan Supreme Court.

Still, that means she has to raise money her 1996 race cost about

$550,000 and make a lot of speeches. There are those who say that judicial elections are intellectually meaningless, because the judges are ethically prohibited from saying how they plan to rule.

Justice Kelly disagrees. I think if you look at my web site you can

get a pretty good sense of who I am and where I stand on the issues, she says.

Indeed, in her stump speeches she has been saying that the Michigan Supreme Court in its Republican majority is moving the states jurisprudence in the wrong direction. She has lashed out at the court for weakening women s and workers rights. She also believes the court in recent years has weakened constitutional protections against civil liberties.

Yes, I think we are supposed to interpret the law as it was

intended, but we should admit we do make law by our decisions. That is inevitable. They did that in a recent case where they took away a man s benefits by changing the way they interpret the Workers Disability Compensation Act.

Should she win re-election, this will be her last term. The

Constitution prohibits state court judges from running again after

age 70, and she is 66.

But she would like eight more years to make a difference in not only

the law, but to do more to help educate the public about the court,

she said.

That might be a view that, regardless of philosophy, few would oppose.



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