MICHIGAN COURTS:
“OPEN SEASON” ON OUR CHILDREN (FLINT CHILDREN IN THE CROSSHAIRS)
THE KING CAN DO NO WRONG

The longest running, most quoted legal precedent in the history of Anglo Saxon, common law??? “The King can do no wrong.” An enduring precedent straight out of the “Dark Ages” (an impressive epoch of mankind’s history): “The King can do no wrong.” A doctrine unmoved by the Age of Voltaire, the Renaissance, the Age of Reason, the Age of Enlightenment or even the slowly evolving Age of Wisdom: “The King can do no wrong.” Imported from our English common law, colonial roots and, then, held captive in America after we sent King George packing at the end of the Revolutionary War: “The King can do no wrong.” And, “the King can do no wrong” because??? well, because a King rules by “Divine Right” i.e. the will of God. Kings were anointed by God because of God’s “Divine Preference” for Kings. Or, so Kings would tell us mortals. And, not even “Mona Lisas and Mad Hatters, Sons of Bankers, Sons of Lawyers” (Sir Elton John) could change God’s will that Kings must dominate their subjects with??? with what???—benevolence and gentility or, perhaps, maiming and death.

MICHIGAN’S LAST KING

Even though Michigan’s last King, John Engler, headed out of town long ago, Old John (before leaving) had managed to pack the Michigan Courts with his think-alike judicial philosophers and strengthen the old “the King can do no wrong” doctrine under the new label: “Governmental Immunity,”—just to make sure that, when he was no longer on duty, the State of Michigan could continue to injure, maim and kill its children without any accountability. As a result, “the King can do no wrong” relic from the “Dark Ages” stills thrives and flourishes in the ultra conservative “TIME WARP” of the 21st century known as MICHIGAN JURISPRUDENCE.

ELIMINATION OF TRIAL BY JURY
(THROUGH BASTARDIZATION OF “PROXIMATE CAUSATION”)

For many decades, Michigan citizens have lived under the “Dark Ages” relic of law: “the King can do no wrong”—now a statutory law scheme known as “Governmental Immunity” (MCL 691.1401.). That Governmental Immunity statute specifically allows the State of Michigan and all governmental employees in Michigan to escape all “civil liability” for money damages when they injure, maim or kill our children. But, there is an EXCEPTION. Governmental employees are responsible for the payment of money damages to victims ONLY IF: (1) the governmental employees’ conduct is “grossly negligent” and (2) if the employees’ conduct is “the” (one and only) proximate cause of the injury, maiming or death—now articulated by the Supreme Court as “the most immediate, efficient, and direct cause of the injury,” maiming or death.

But, the ultraconservative, John Engler protégés of the Michigan Courts do their concentrated best to eliminate any “exception” to “the King can do no wrong”— Governmental Immunity law. The Engler protégés on the Michigan Courts have found a new way to ensure that governmental employees never have to answer for (or pay for) their dangerous actions that injure, maim and kill our children, and that way is: NEVER LET THE JURY DECIDE if an exception to “Governmental Immunity” applies.

Michigan judges are dismissing (without any trial) virtually any and all civil lawsuits against governmental employees. These dismissals are based on the bastardization of “proximate causation” supported by convoluted, sleight of hand, fallacious, judicial logic known in the field of philosophy as (Alice in Wonderland) “sophistry”. But, whatever the label or the methodology, the bottom line is the same. Governmental employees in the State of Michigan injure, maim and kill our children, and the Michigan Courts allow (I dare say, help) the governmental employees get away with it without any responsibility to pay for what they did—a harsh, sad, but true state of affairs.

BEALS v MICHIGAN

Case in point. Beals v Michigan (497 MICH 363–2015). The State of Michigan “life guard” (“attention deficit disorder” kid hand picked by the State “to pay attention”) lost his attention span and abandoned his life guard post to throw the football around and flirt with the girls—and the “foreseeable” occurred. With no one to pull him out of the water, a learning disabled, autistic teenager drowned in the pool at his State Residential facility. But, via the bastardization of proximate causation, the Supreme Court said the kid’s drowning cannot even get to the jury for a decision under (“the King can do no wrong”) “Governmental Immunity” law because the lifeguard’s der- eliction duty was not “the” (one and only) proximate cause of the autistic kid’s death.

The other proximate cause was???—that “unknown” cause which caused the kid to stay “submerged” under the water too long and drown. Or, as the Michigan Supreme Court so obtusely put it, “the” proximate cause of the kid’s drowning “was that which caused him to remain submerged in the deep end of the pool without resurfacing” (and “We lack the reason for the prolonged submersion”).

Translated, When the Supreme Court was “CHECKMATED” by the lifeguard’s reckless dereliction of duty as “the” (the one and only) cause of the learning dis- abled, autistic teenager’s drowning, the Court resorted to sophistry and INVENTED ANOTHER CAUSE of the drowning i.e. the “UNKNOWN” cause that kept the kid submerged under water. Are you kidding me??? The unknown cause is not unknown. It was known. It was “gravity”—that which plays a role in all drowning and that which defines the act of drowning. That’s not an analysis of causation. That’s not logic and not reasoning. That’s Alice and Wonderland anti-logic, a cruel joke, more like a T.V. “sound bite” from “Kids say the darnedest things.” “Hey kids, what caused the passengers on the Titanic to drown”??? Answer: “Because they stayed “submerged” under water too long”??? No kids!!! “The” proximate cause of their drowning was “human error” aka the Titanic recklessly speeding through a minefield of icebergs to meet an artificial deadline.

To be kind, the Court’s logic is flawed. The act of drowning is not a proximate cause issue. Drowning is a RESULT—not a cause. In the age-old, analytical dynamic of logic, “CAUSE AND EFFECT,” a drowning is an “effect,” not the cause. To say (as the six out of seven Justices of the Michigan Supreme court did) that the cause of the drowning was some “unknown” something that caused the kid to stayed “submerged” under the water too long is: fill in the blank _________ silly, obtuse, cruel, make-weight, political, Machiavellian, etc. And, the irony??? An analysis that would get an “F” in a Law school “causation” 101, now masquerades as legal erudi- tion (and future precedent) in a written Supreme Court opinion just so the Supreme Court can get the “Dark Ages,” legal results it wants now and in the future: “The King can do no wrong.”

One of our most precious, “right to life” assets, a learning disabled, teenager, living at a State Residential facility is dead, and the Michigan Supreme Court threw the teenager’s life, death and lawsuit in the trash bin of “dismissed cases” with a sweeping statement that: “no jury could reasonably find that [the lifeguard’s] failure to intervene… was the proximate cause of death.” Really??? The Michigan Supreme Court has a monopoly on what’s “reasonable” while the rest of us remain in “unrea- sonable ignorance” as to why drowning occurs. Why is the Supreme Court so afraid of “participatory democracy” by a Jury of our citizens??? Maybe, the Supreme Court doesn’t really trust their own statement that “reasonable minds [of Jurors] could not differ.” What is the Supreme Court’s motive for bending over backwards to protect the State of Michigan and their lifeguard employee whose reckless action caused the death of a teenager???

RAY v SWAGER

Next case in point. In Ray v Swager (unpublished, Mich Ct. of App. No. 322766 October 15, 2015), a governmental employee, Cross Country Coach for Chelsea High School (the adult in charge who is to be obeyed), verbally ordered his cross country team to cross over a highway against a “red hand,” pedestrian signal (in the dark) on Old U.S. 12 at 6 o’clock in the morning (“let’s go”) as motor vehicle traffic was bearing down—a recipe for disaster that resulted in a 13-year-old (and another student) from Chelsea High school being struck by a fast moving vehicle and being “severely injured,” the 13-year-old’s “quality of life” compromised for the rest of life (however long that life might now be). But again, under the Michigan Court’s bastardization of proximate causation, the Court ruled that the “severely injured” 13-year-old kid’s case cannot even be considered by a jury because the Coach’s reckless dereliction of duty was not “the” (one and only) proximate cause of the 13-year-old kid’s “severe injuries.” As the Court of Appeals indicated, the kid’s case had to be dismissed without a jury trial because there was another proximate cause at play in the accident i.e. the automobile driver who had the right of way and was proceeding lawfully through the intersection when he struck the 13-year-old kid. As the Court said:

[E]ven supposing that [the 13-year-old] heard [the Coach] say “let’s go” [which the Coach concedes he said], reasonable minds could not con- clude that [the Coach] was the proximate cause of [the 13-year-old’s] injuries. Instead, clearly the most proximate cause of… injuries is the fact that [the 13-year-old] was struck by a moving vehicle.

Yes your Honors, that would be the same “moving vehicle” bearing down on the cross country team as the Coach ordered his team to run through the red hand indicator (“let’s go) and outrun the vehicle. And, in dismissing the 13-year-old kid’s case without a jury trial, the Court of Appeals tells us, no “reasonable mind” (here we go again) could conclude that the Coach was “the” (one and only) proximate cause of a 13-year-old life being destroyed. NONSENSE. The automobile driver’s connection to this (Coach-made) tragedy is tenuous at best. That driver did nothing wrong. The automobile driver is just ANOTHER VICTIM of the Coach’s dereliction of duty—a “victim” who will mentally, emotionally and spiritually suffer a lifetime of “post traumatic stress disorder” even though that driver did nothing wrong, violated no ordinance or law and committed no tort.

A clearer, more objective and disciplined sense of logic shows that the Coach’s reckless dereliction of duty (ordering the 13-year-old, huffing and puffing kid to run against the “red hand” pedestrian signal with traffic bearing down) was, in reality, “THE” ONE AND ONLY PROXIMATE CAUSE OF BOTH VICTIMS HORRIBLE PLIGHT: (1) the crushing impact on the 13-year-old kid’s body AND (2) the mental, emotional and spiritual trauma to the automobile driver’s psyche. Or, if there is a difference of opinion, let the Jury decide the case.

There is no doubt that the automobile driver’s lawful actions as an innocent driver-by qualify only as a remote (not proximate) cause of the 13-year-old “severe injuries.” There is no doubt that under the Court’s enlarged definition of “the” prox- imate cause, that the Coach alone is “the one most immediate, efficient and direct cause of injury…”—not the innocent automobile driver who drove past the “house of cards” that the Coach had already set in place. But, again, that clearer, more objective and more disciplined sense of logic doesn’t get the Court to the “Dark Ages” result it wants: “The King can do no wrong.” And, again, one of our most precious “right to life” assets, a 13-year-old, budding, student athlete, is “severely injured” while the Michigan Court of Appeals engages in Alice in Wonderland sophistry and convoluted logic to throw the “severely injured” 13-year-old’s “quality of life” (what’s left of it) and his lawsuit into the trash bin of “dismissed cases” without any trial—all based on the same-o, same-o statement: “no reasonable minded” juror would find the Coach legally responsible. Why is the Court so afraid of “participatory democracy” by a Jury of our citizens??? Maybe, the Court doesn’t really trust their own statement about what “reasonable minded” jurors would do???

NEXT TRAVESTY ON THE HORIZON

Now, I see in my mind’s eye the next case up on the Michigan horizon in a triumvirate of “the King can do no wrong” injustice. Worn out from writing this comment, my mind drifts and I slip off into a dream-like state. In my dream, I see a governmental employee teaching gun safety to a group of precious, young teenage, high school kids. Suddenly, the employee mishandles his firearm, and it discharges with a sonic boom. I try to escape from my dream, turned nightmare, but it’s too late. I am in shock, witnessing an horrific tragedy as two beautiful, young children lay stunned and terrified on the floor of their classroom bleeding to death with their absent parents just a phone call away from waking up in my nightmare. Later, when the inevitable lawsuit is filed (the lawsuit that will make sure that this tragedy will never occur again), that lawsuit will be dismissed without trial because (as the Michigan Courts will tell us) “the” (one and only) proximate cause of the kids’ deaths was not the reck- less discharge of the firearm by the teacher. “The” proximate cause of the kids’ deaths was??? “the bullet”—of course. More Alice in Wonderland sophistry???—of course.

“LOST GENERATION” OF LEAD-POISONED FLINT CHILDREN

The “lost generation” of Flint’s children, lead poisoned by their own drinking water, is now destined to pay a very heavy physical, mental, emotional, spiritual and educa- tional price for the rest of their lives because of the dereliction of duty of their adult caretakers, including the State of Michigan employees who played a role in the high concentration of lead in Flint’s drinking water. The State of Michigan’s recent (and begrudging) response to the news media’s Freedom of Information request shows evidence of State of Michigan and other governmental employees involvement in a dereliction of duty re: testing procedures, sampling methods, failure to use an anti corrosive to keep lead from leaching into the drinking water and a possible cover up that kept lead contaminated water flowing to Flint children for months after the lead-tainted water supply should have been shut off.

But, not to worry, the Michigan Courts have shown a ready, willing and able spirit to step in and protect governmental employees from any accountability for their dereliction of duty that created the lead poisoned, “lost generation” of Flint children. After all, it was the Flint River and the lead water pipes that were the prox- imate causes of the lead poisoning.

Hey, if the Supreme Court can blame a drowning on “gravity” and absolve gov- ernmental employees, what’s to stop the Court from blaming the lead poisoning of Flint’s “lost generation” on the Flint River or on lead pipes??? Answer: “too much risk politically”. But, until then– as the King’s lady, Marie Antoinette, might say: “Let the ‘lost generation’ of lead-poisoned Flint children eat cake.”

AND, IN THE COURT’S DEFENSE???

In short, the six Supreme Court Justices (with Justice Bernstein dissenting) and the three Court of Appeals Judges who decided the above cases have no defense (repeat, no defense). We citizens of Michigan (characterized as “not reasonable”) can see what’s going on—or, as Bob Dylan says: “don’t need a weatherman to know which way the wind blows.”

Oh, the Court will resort to their old standby, that they are just “good old” textualists who are just interpreting what the legislature wrote.

Nonsense. Just one glance at the Court’s convoluted language and logic on the issue of “the” proximate cause dispels any notion that the Court is engaged in any logical or analytical interpretation of words written by the Legislature. Example 1: the Beals case—the learning disabled, autistic teenager who was swimming in a pool provided by State of Michigan’s residential facility drowned with no one to help him because the State of Michigan’s (“attention deficit disorder”) lifeguard was goofing off. But, as the Supreme Court’s sleight of hand logic tries to tell us, there is no legal responsibility for the State of Michigan’s life guard because “the” proximate cause of the kid’s drowning was that the kid drowned (“remained submerged in the deep end of the pool without resurfacing”) for some “unknown” reason. Example 2: the Ray case where the Court of Appeals tells us that the State of Michigan employee Coach who ordered his cross country team (“Let’s go”) to run directly through the red hand indicator, across U.S. 12 in the dark with traffic bearing down on his team was not “the” proximate cause of the kid’s “severe injuries” because the kid was struck by the automobile lawfully driving with the right of way— while the reality is that the Coach’s overwhelming dereliction of duty was “the” (one and only) proximate cause that VICTIMIZED BOTH the 13-year-old kid and the poor, innocent driver who had the abject misfortune of driving through the Coach’s “house of cards,” severely injuring the kid. And for the Michigan Court system, that’s Defenseless with a capital “D.”

IMPRESSIONS AND JUDGMENT OF HISTORY

The Michigan Supreme Court (although probably not fully aware of it) has, through its interpretation of Michigan’s “Governmental Immunity” statute and its bastardiza- tion of proximate causation, created a distinct “impression” that the Court is elitist, logically disconnected, emotionally detached and a Court that bends over back- wards for the State of Michigan and for governmental employees, as our children are being “picked off ” by the wrong doing of these governmental employees: “The King can do no wrong.”

History should (and I suggest “will”) be as harsh on the present Michigan Supreme Court as the Court is on our children, as, one day, everyone will recognize that the Michigan Courts’ “bastardization of proximate causation” was nothing more than (or less) than a ritualistic formula that was purposely, senselessly and illogically used to trump the evolution of “human rights” and “human dignity” and our shared (“It takes a Village”) culture TO PROTECT ALL OUR CHILDREN.

ALL THE KING’S MEN

And, The repeated (“the King can do no wrong”) theme that is sent out from the Michigan Courts to the State of Michigan and all governmental employees in Michigan: “It’s okay to play Russian Roulette with the lives of children and throw all caution to the wind because we are all the King’s men.”

But, I ask: “who will put our children back together again”???

 

FRED LAUCK

STATE BAR CHAMPION OF JUSTICE COPYRIGHT © 2016 WWW.FREDLAUCK.COM WWW.PROFILES.SUPERLAWYERS.COM

Monday, December 28, 2015