Is it impossible these days to have a discussion about an issue or a political race without it becoming personal? Apparently so, at least for one backer of Judge Jane Markey.
Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice. As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge. I have never attacked Judge Markey personally, nor have I attacked her supporters.
But they have attacked me personally.
The latest attack was purportedly authored by one Steven Vander Ark in an email distributed to the delegates to this weekend's Republican convention. He says that I practice "the dark art of magic - turning fiction into fact while hiding behind
the curtain of anonymity. Any lawyer reviewing his 'analysis' of Markey's
decisions would recognize a straight up hatchet job: it is no wonder he wants to
remain anonymous. His blog is a shameful sham set up for the sole purpose of
producing political smears under the guise of legal analysis." He goes on to criticize my discussion of the Wilkie case and my quoting of the Chief Justice in the Progressive Insurance case.
You know, if you're going to lie about me, at least tell the truth while doing it.
Here's where Mr. Vander Ark and the truth part company:
1. This blog was established in 2007; it was not "set up for the sole purpose of producing political smears under the guise of legal analysis."
2. I never discussed the Wilkie case, and I do not consider a reversal as any reason not to vote for a judge. As a judge whom I respect frequently says, "Even when the court of appeals affirms me, I still think I'm right." I have never criticized Judge Markey or any other judge because one of their decisions was reversed. My posts on Judge Markey may be reviewed here, here, and here.
3. Mr. Vander Ark is correct that I quoted the Chief Justice in my discussion of the Progressive Insurance case here, and I did not quote Justice Markman's concurrence. So what? Does that somehow delegitimize the point I was making? Am I under some obligation to quote Justice Markman? If so, am I also obligated to quote Justice Marilyn Kelly, who sided with Markey's opinion? And where is Mr. Vander Ark's defense of Judge Markey? She claimed then -- and claims now -- to be a rule of law judge, but in Progressive Insurance, she cast aside clear statutory language in favor of a result that comported with her "sense of justice and fair play." That is not a rule of law methodology; it is the very definition of an empathy judge. Yet, Mr. Vander Ark says nothing, falling back on the notion that her position is "defensible." That's a pretty low bar for someone who wants to be a Supreme Court justice.
So, you be the judge. Have I turned "fiction into fact," as Mr. Vander Ark suggests? If so, how? What exactly have I written that is incorrect?
Let's make things perfectly clear: for me, this is not a personal issue. I favor the rule of law, and I believe strongly, as Bob Young has written, that the "rule of law requires a judge to be subservient to the law itself, not the law to be subservient to the personal views of a judge."
In the cases I have described, Judge Markey has elevated her personal views over the the law. Whether you agree or disagree with her ultimate decisions, this approach, this decisionmaking process, is not the approach and the process followed by rule of law judges. That the results are "defensible" is irrelevant -- the rule of law does not concern itself with results, only with faithfully applying the law as written by the People through their elected representatives.
As I have written, Judge Markey seems like a very nice person. I have no interest in her political donation history or in any of the rumors being circulated about her. This is not personal; this is about job performance and judicial philosophy, period.
I don't know Mr. Vander Ark. Is it significant that his email was paid for by Markey's campaign? I don't think so. His name is on it, and he will have to defend it, regardless of who wrote it or who paid for it. His email is wrong and contains numerous factual errors, as I have outlined above, but I will not attempt to smear him as he has attempted to smear me. Frankly, I have no interest whatsoever in Mr. Vander Ark -- he is not running for anything. My only interest is in a full and frank discussion of the most important issue in this judicial campaign: who will be a rule of law justice on the Michigan Supreme Court?
Let's just stick to the issue. It's not personal.
Showing posts with label Markey. Show all posts
Showing posts with label Markey. Show all posts
Friday, September 7, 2012
Tuesday, September 4, 2012
Upon Further Review: More Problems for Markey
The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful. Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored. I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework. [Someday, I'd like to meet Kevin and shake his hand.] That doesn't mean I agree with him, however. In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.
In a recent post, Kevin essentially made this argument: We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly. Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.
I will address Kevin's observations about Mary Beth Kelly in a near-future article. At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority. Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.
Still, Kevin raises a valid point, but it doesn't carry the day. He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record. That's not an exchange I'm willing to make, for a number of reasons. First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young. Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge. Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims. Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.
In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless. SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger." Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."
The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness." The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters. This requirement was ignored by the Court of Appeals.
In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]"
As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.
The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.
In a recent post, Kevin essentially made this argument: We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly. Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.
I will address Kevin's observations about Mary Beth Kelly in a near-future article. At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority. Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.
Still, Kevin raises a valid point, but it doesn't carry the day. He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record. That's not an exchange I'm willing to make, for a number of reasons. First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young. Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge. Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims. Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.
In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless. SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger." Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."
The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness." The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters. This requirement was ignored by the Court of Appeals.
In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]"
As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.
The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.
Thursday, August 16, 2012
"Rule of Law" Should Be More Than Just A Slogan
Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey. Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.
As I wrote in 2010, "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." Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person. She describes herself as a "rule of law" judge, and, in a recent email, she stated:
One of the risks of touting your record is that people might actually read it.
The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision. In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it. Smith was supposed to be excluded from coverage under the policy. If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery. If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.
There is a Michigan statute directly on point here, MCL 500.3009(2), which states:
Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists. This was a 2-1 decision. Both judges in the majority are of Republican heritage; Judge Markey dissented.
The majority reasoned:
The case was appealed to the Michigan Supreme Court, but the application ultimately was denied. Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:
When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings. This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.
In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior. For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written. In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us. In other words, we can play the game because we know the rules.
In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels. At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play." A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge." She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision. Her standard for decision-making is no standard at all.
More to come.
As I wrote in 2010, "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." Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person. She describes herself as a "rule of law" judge, and, in a recent email, she stated:
Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law. (Emphasis in original).Sounds good, right? Well, in the words of the immortal Lee Corso, not so fast, my friend. In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision. And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.
One of the risks of touting your record is that people might actually read it.
The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision. In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it. Smith was supposed to be excluded from coverage under the policy. If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery. If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.
There is a Michigan statute directly on point here, MCL 500.3009(2), which states:
If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance: Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable. (Emphasis added).So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance. In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable."
Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists. This was a 2-1 decision. Both judges in the majority are of Republican heritage; Judge Markey dissented.
The majority reasoned:
The Legislature did not merely set forth the substance of the required warning. Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim. Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance. If the required warning notice is not provided, the named person "exclusion shall not be valid." The statute could not be clearer.Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:
I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written. It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper. Legislating belongs to the Legislature.These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share. Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":
Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play? I think not.It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play." Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play."
The case was appealed to the Michigan Supreme Court, but the application ultimately was denied. Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:
The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.] (Emphasis in original).The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:
All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves. In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]." (Emphasis in original).As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:
With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be. As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute." (Emphasis in original; footnotes omitted).It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making. It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.
When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings. This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.
In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior. For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written. In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us. In other words, we can play the game because we know the rules.
In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels. At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play." A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge." She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision. Her standard for decision-making is no standard at all.
More to come.
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:
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.
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.
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