Michigan Lawyers in History

Michigan Lawyers in History--Frank J. Kelley: The Eternal General

by Elmer E. White

In the last half of the 20th Century, an Irish-American with undergraduate and law degrees from the University of Detroit became the Attorney General of Michigan. During his next 37 years as the chief law enforcement officer of the state, Frank J. Kelley redefined the role of the Department of Attorney General and created a dynamic organization that had a profound influence on the development of Michigan jurisprudence. Kelley set the record as both the state’s youngest (age 36) and oldest (age 74) attorney general. Governor G. Mennen Williams had a trademark polka dot bowtie; Kelley always wore the maroon and navy striped tie of the Coldstream Guards.

The attorney general is legal counsel to the governor and all state agencies; he can intervene in any lawsuit in which the interests of Michigan citizens are involved. He issues advisory opinions that have the effect of law unless overturned by a court. The various divisions of the department advise state officials and go to court on legal matters ranging from agricultural to zoning law.

Every topic of law that is a subject of the law school curriculum is addressed by departmental lawyers, with divisions as diverse as charitable trusts, casino control, civil rights, highway negligence, lottery and worker compensation. The department comprises one of the largest law firms in the United States, with an operating budget of $30 million. Under Kelley’s leadership, the number of assistant attorneys general more than tripled, from 84 in 1962 to 301 when he left office on December 31, 1998, his 74th birthday.

In essence, an attorney general is the leader of a troop of attorneys sworn to uphold the state’s laws. Whether a ‘‘general’’ commands a fighting force or a litigating force, his role is the same: to select, train and command a cadre of troops who will take orders and complete their assigned tasks in an impeccable manner. It is in this role that the genius of Frank Kelley was most evident. He recruited and hired the most talented law school graduates. He had a remarkable talent for selecting the best lawyers; minorities and women were welcomed into the office and promoted to supervisory positions. He appointed Gay S. Hardy as Solicitor General, the first woman to hold this high office.

Not to minimize Kelley’s profound legal intellect, but in reviewing his record, one is struck by the astounding number of times his selection of assistants was precisely what was required for the task. Had he pursued a career as a coach, he probably would have won both the World Series and the Superbowl, such was his superb ability for picking talent and putting it to work on behalf of the state. The training received in his office sent dozens of his assistants to the bench, where his continuing influence on the jurisprudence of Michigan was displayed in their decisions that liberalized Michigan law. James J. Blanchard got his start on the lowest rung of the ladder as Kelley’s assistant and got to know his way around politics and power. It was good training for the future governor.

The public saw the work of his office in the vast river of litigation that flowed from this active attorney general. What the public seldom heard was the daily flow of advice and counsel directed to his client; dozens upon dozens of state officials. Lincoln admonished attorneys to discourage litigation and search for the resolution of legal problems in negotiation. It was in this arena that Kelley fully mastered and applied his skills as an attorney.

Before Ralph Nader was out of law school, Kelley had established the nation’s first Consumer Protection Division and cracked down on charities that pocketed more money than they spent on good works and retailers whose price at the scanner didn’t match the price on the shelf. Among state attorneys general across the nation, Kelley was a leader in establishing new frontiers for his attorneys to push the courts toward justice. He was at the forefront of the consumer movement. Quick-buck pyramid scams were targeted and dispatched by his forces. Unscrupulous automobile transmission shops were brought before the courts and the national press chronicled his dedication to the consumer.

Before the environmental movement of the 1970s, Kelley had already established the country’s first Environmental Protection Division, which was quick to respond to water pollution violations. Chemical companies and corporate polluters were sued and injunctive relief was sought to require clean up of their environmental messes. Kelley brought a new dedication to the role of the people’s advocate before the public utility commission; a journalist observed that ‘‘He went after Michigan utilities in rate-hike cases like a pit bull after sirloin.’’ ‘‘It was never personal,’’ Kelley later stated, ‘‘I liked many of the citizens, companies and their executives on the other side of cases. I was only trying to enforce the law fairly.’’

Before becoming attorney general he practiced law for a decade, first in his native Detroit, then for eight years in Alpena, where, although a Democrat, he was selected as city attorney by the city council in that Republican enclave. In December of 1961, Frank J. Kelley was tapped by Democratic Governor John Swainson to fill a vacancy when the sitting attorney general was promoted to the Supreme Court. Kelley served five governors. Most of his tenure in office was devoted to advising Republican governors as to applicable law.

As the Democratic party nominee, he was elected Attorney General 10 times and vanquished opponents by a plurality, over the years, of nearly six million votes. In more than 200 years of American history, no official in any state served more years in office than Frank Kelley. His only election defeat came in 1972 when he ran for the United States Senate (the photograph on the previous page shows Kelley in that campaign at age 47). Michigan voters knew better than he that his calling was to be the people’s advocate, rather than their federal representative.

As chief law enforcer of the state, Kelley’s assistants briefed thousands upon thousands of criminal cases appealed to the Court of Appeals and Supreme Court. The attorney general advises and can supervise county prosecutors. A case that drew national attention had been closed by a local prosecutor. A recently married woman had died in a fall from a horse. Her husband collected a large life insurance benefit. Re-opening the case and obtaining a court order to exhume the body, Kelley brought in a Nobel Prize winning scientist from Sweden. It was determined that the victim’s death was caused by a powerful muscle relaxant associated with equine medicine. The husband was charged, but he had fled the country. He was apprehended in American Samoa, extradited to Michigan, convicted of murder and sentenced to life in prison.

During his watch, casino gambling was legalized by Michigan voters. Kelley counseled against the scheme. ‘‘I think gambling is the primary corrupter in human affairs,’’ he said. Upon leaving office he predicted that, despite government efforts to regulate casinos with the strictest laws in the country, corruption might not be avoided.

Anti-trust comprises a body of law invented in the early 20th Century. Overlooked for years by state attorneys general, Kelley applied it to class action lawsuits on behalf of Michigan citizens against corporations engaged in anti-trust violations. As president of the National Association of Attorneys General, he played a leadership role in mobilizing attorneys general to use this powerful cause of action. In his last great anti-trust case, Kelley was instrumental in organizing a national effort by the attorneys general of dozens of states to file a class action lawsuit against the tobacco companies. In 1998, a settlement was negotiated that will pay the state treasury more than $12 billion over the next 25 years. This is the largest lawsuit settlement in Michigan history; a stunning achievement to mark the close of one of the most impressive public service careers in the state’s history. When he took office in 1962 his salary was $17,500; when he retired it was $124,900. The people of the state of Michigan got a bargain when they retained the legal services of attorney and counselor Frank J. Kelley.

Kelley is still going strong, having established his own law firm, Kelley Cawthorne, in downtown Lansing. Now, any member of the public can retain his services.

Elmer E. White
Elmer E. White is the author of Michigan Torts 2d (West Publishing, 1996), the definitive treatise on Michigan accident law. He is a life-long student of Michigan government and politics and has met Frank Kelley several times.

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