Tuesday, August 17, 2010

Making Sense of the Michigan Supreme Court Race

Party delegates to the August 28 State Republican Convention will face the formidable tasks of selecting candidates for Secretary of State, Attorney General, and governing boards of Michigan State University, Wayne State University, and one other whose name escapes me (I think it's in the People's Republic of Ann Arbor).

At least as important as these tasks is the responsibility to select two nominees for the Michigan Supreme Court. Justice Robert Young is running for reelection, and he deserves our unanimous, unwavering support. Justice Young is an extraordinary legal talent with a first rate mind, unshakable integrity, and incredible vision.

The other nomination is between Wayne County Circuit Court Judge Mary Beth Kelly and Court of Appeals Judge Jane Markey. Both are well-qualified. So, how does one distinguish them?

Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions. Also, Judge Kelly, as the former Chief Judge of the Wayne County Circuit Court, was often called upon to sit as an appellate judge, either in appeals from a district court or on motions to recuse her fellow judges. The cases are different, but the process and the decision making are similar.

I have appeared before Judge Kelly on numerous occasions, and I know her from our work together on the State Bar Civil Procedure Committee. She has an excellent mind and judicial temperament. She carefully applies the law as she finds it -- there is no legislating going on from her bench. Given the current tidal wave of reversals emanating from our current Supreme Court, understanding the proper role of a judge is crucial. Mary Beth Kelly gets it, and she lives it every day on the bench.

Although Judge Markey has been on the bench a long time, she sits on the west side of the state, and I cannot recall appearing before her, nor do I recall ever meeting her, so she is something of an unknown quantity to me. Absent this personal contact, I decided to look through some of her published decisions, and I ran across one that made me pause.

In Allen v Bloomfield Hills School District, a 2008 decision, the plaintiff was a train operator who was involved in an accident with a school bus. He sued the school district to recover noneconomic and excess damages under the no-fault act. The circuit court judge granted the school district's motion to dismiss the case. Writing for the 2-1 majority, Judge Markey reversed the trial court and reinstated the case.

The fact that Judge Markey reversed the trial court, in and of itself, means nothing, since there are dozens of reasons why the Court of Appeals would reverse a trial court. It is her reasoning, however, that is troubling.

First, some quick background. The school district is a public entity and therefore enjoys immunity from most tort (personal injury) claims. There is an exception to this immunity for motor vehicle accident claims if the plaintiff suffers "bodily injury." That's the nub of this case.

The plaintiff was operating a train and approaching a crossing at about 65 miles an hour. A school bus tried to drive around the lowered gates, and the train collided with it. It took the train a half-mile to stop, and the plaintiff ran back to the scene of the accident. There were no children on the bus, but the bus driver was severely injured.

So, who sued? The train operator! What for? Post-traumatic stress disorder!

The Supreme Court has previously defined "bodily injury" under the governmental immunity law. In a case called Wesche v Mecosta County Road Commission, the Court held, quite sensibly, that " 'bodily injury' simply means a physical or corporeal injury to the body."

Reversing the trial court in Allen, Judge Markey held that PTSD constitutes "bodily injury." Her conclusion was based on a PET scan of the plaintiff's brain that showed he was "clearly different in brain pattern from any of the normal controls." In other words, the plaintiff witnessed the accident and was so upset by it that his PTSD caused his brain to function differently. The plaintiff's expert psychiatrist testified that PTSD "causes significant changes in brain chemistry, brain function, and brain structure."

There was no evidence of any "physical or corporeal injury to the body." The plaintiff's "injury" was purely psychological, indistinguishable from heartache, depression, or that feeling Michigan fans get after Michigan plays Michigan State in basketball. Whatever the plaintiff had, it was not a "bodily injury," and any discernible effect was not caused by the accident.

The dissenting judge made the point perfectly, quoting from a New Jersey federal decision that assessed, in another context, whether PTSD constituted "bodily injury." The New Jersey district court reasoned:
Given that all human thoughts and emotions are in some fashion connected to brain activity, and therefore at some level "physical," to accept Plaintiffs' argument would be to break down entirely the barrier between emotional and physical harms[.]

This case brings the Supreme Court race into sharp focus. Either we will have a court that believes in and applies the rule of law, enforcing the clear meaning of the laws enacted by the people through their elected representatives, or we will continue to have the kind of court we have now, driven purely by ideology and a desire simply to undo all that was accomplished during the ten years in which the conservatives were in the majority.

Conservatives believe in clear rules and standards so that citizens can rely on the law and behave accordingly, and so that trial courts and the intermediate appellate courts will know what the law means and what is expected. The current majority on the Supreme Court is engaged in a reckless, headlong effort to reverse any decision they don't like, regardless of whether it was rightly decided. Put another way, the current majority's test for a decision's "rightness" is whether they agree with it. Justice and predictability have nothing to do with their approach.

Against this backdrop, the Allen decision is extremely troubling. It reflects an unsettling willingness to disregard clear language in the law in favor of an inexplicable intent to reach a desired result. In Allen, the result drives the law, instead of the other way around.

These are precarious times for the Supreme Court, for Michigan law, and for the citizens of our great state. We cannot afford the result-driven approach of the current Supreme Court majority, and, based on the Allen decision, I am very concerned about Judge Markey's decision making.

Accordingly, for me, it will be Justice Young and Judge Kelly. I hope you will join me.


  1. Young does not adhere to the "rule of law." Under the guise of textualism, he "interprets" statutes so insurance companies and prosecutors win every time. He is but a political hack who has no business sitting on the Michigan Supreme Court.

  2. Did Mark Brewer change his name to anonymous?

  3. Your mischaracterization and poor analysis of Judge Markey’s opinion in Allen is offensive to me as a lawyer. I can brush this off, however, as the mission of a man engaged in political hackery to a degree that would be comical if it wasn’t so sad.

    What I can’t brush off, and what both you and Judge Kelly – considering she has endorsed your blog post by linking to it from her Facebook page – should be held accountable for, is the callous treatment of Veterans evident in your post.

    Your joke about PTSD and its effects is offensive to me both as a person and as the son of a Veteran.

    Our soldiers have returned from battlefields changed men and women ever since the very beginning of this great Republic. They have honorably, nobly, and without regard to personal well-being protected our people, our country, and our freedoms. In so doing they have experienced first-hand the horrors of war. To refer to this condition as an “injury” in quotes, and to compare it to something as relatively meaningless as a basketball game between two universities is incomprehensible to me.

    Our soldiers and their families deal with the fallout of PTSD on a daily basis. I defy you to look one of them in the eye and tell them they are suffering an “injury” in quotes. I defy you to look one of them in the eye and tell them what they are experiencing is nothing more than what a Michigan fan feels after a game against Michigan State. You should be ashamed of yourself for making such a comparison and for minimizing the effect of PTSD on those who have done so much to serve our country. I’m ashamed for you, if only because I’m forced to admit that we share the same profession.

    At least in Allen, Judge Markey recognized and respected the long delay by our courts in recognizing closed head-type brain injuries suffered by “thousands of our soldiers.” The medical diagnosis and legal treatment of PTSD has experienced a similar delay. Apparently, you and those you support are content to allow our Veterans and others suffering from this debilitating injury to beg for recognition long after they should have earned your respect and undying gratitude.

  4. Anonymous -- What should offend you as a lawyer is (1) the absurd characterization of my post as offensive to veterans, (2)your conflation of war-related PTSD with the "PTSD" diagnosed in Allen, and (3) the fact that you missed the point entirely. The law at issue refers to bodily injury from a motor vehicle accident. The Supreme Court has defined bodily injury, and Judge Markey has stretched that definition beyond recognition in order to arrive at the desired result. When you and your ilk start to truly care about veterans, rather than just using them to make rhetorical points whenever it suits your purpose, then we'll talk about veterans. Until then, stick to the issue, Mark.

  5. Thanks for the heads up, but I think I’ll go ahead and continue to be offended by your callous treatment of our Veterans and others who suffer from PTSD, and by your inability to properly read a legal opinion.

    (1) I don’t know who Mark is.
    (2) It WAS offensive to Veterans. They told me.
    (3) There was no “conflation” in my earlier post. Are you suggesting there is a difference between PTSD caused by battle versus PTSD caused by a sexual assault, car accident, etc?

    If anyone has missed the point, sir, it is you. In your original post you state as a fact that “…Judge Markey held that PTSD constitutes ‘bodily injury.’” As if that wasn’t bad enough, you continued to obscure the actual outcome of the appeal in your comment when you stated: “The Supreme Court has defined bodily injury, and Judge Markey has stretched that definition beyond recognition in order to arrive at the desired result.”

    It’s actually quite funny, as that last comment could be changed to say “the ‘Wizard’ has stretched the result of the appeal beyond recognition in order to arrive at the desired result.”

    To be continued below...

  6. You and I both know that your analysis of the Allen opinion is, at best, incomplete, and at worst an intentional misrepresentation of the actual result of the appeal. Setting aside the reasoning in the case, which is logical, measured, and fully-explained, you ignore the actual outcome. At no time – AT NO TIME – did Judge Markey’s opinion state that PTSD fits without qualification into the definition of “bodily injury.” The case was before the Court of Appeals on an appeal from the trial court’s granting of summary disposition to the Defendants. In so holding, the trial court essentially noted that there is no genuine issue of material fact regarding the issue of whether PTSD qualifies as a bodily injury. The Plaintiffs’ presented doctors’ depositions and PET scans showing that the Plaintiff’s brain had been physically altered as a result of the accident. Judge Markey’s opinion simply sent the case back to the trial court to allow the triers of fact to determine whether PTSD fit into the definition of bodily injury.

    Let me try to make this easier for you to understand. Judge Markey didn’t hold that PTSD IS a physical injury, only that there were enough questions of fact that the issue should go to a jury to decide.

    In fact, Judge Markey did exactly what she had to do, and she spelled that out quite clearly in the opinion: “The question on appeal then becomes, for purposes of reviewing the trial court’s grant of summary disposition to defendant, whether plaintiff produced sufficient evidence to create a material question of fact that he suffered a ‘bodily injury’ as so defined. In doing so, WE MUST STILL ADHERE TO THE COURT RULES AND FOLLOW THE LAW. We must review any evidence of a claimed ‘bodily injury’ in a light most favorable to the nonmoving party. Also, we must conduct our review with common sense, and with cognizance of modern medical science and the human body. Here, plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain.”

    Quite simply, you either didn’t fully understand the result of the appeal, or you have purposely obfuscated the truth in an attempt to fit Judge Markey’s opinion – and by extension the judge herself – into a trumped-up version of judicial activism of your own imagination.

  7. Couldn't have said it better myself. What a shame that in a Supreme Court race, a candidate contrives phony blogs and dirt, instantly posts it to her FB page and widely disseminates it. So, Wiz, what do you think of the long string of Supreme Court and Court of Appeals scathing reversals of Judge Kelly's decisions? You found 1 opinion of Judge Markey's out of thousands...? Yeah, right. A juvenile court judge with that record is the better choice for the high court than Judge Markey's long outstanding career? Oh, and you must not do any appellate work-- Court of Appeals judges don't just sit in their home districts.

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