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.