Order Michigan Supreme Court
Lansing, Michigan
April 8, 2011 Robert P. Young, Jr.,
Chief Justice
142041 & (8)(9) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
IN RE CERTIFIED QUESTION FROM Brian K. Zahra,
THE UNITED STATES DISTRICT COURT SC: 142041 Justices
FOR THE DISTRICT OF NEW JERSEY, CA: 03-4558 (GEB)
_________________________________________/ MDL #1687
IN RE FORD MOTOR CO. E-360 VAN
PRODUCTS LIABILITY LITIGATION (NO. II)
_________________________________________/
On order of the Court, the motions for leave to file brief amicus curiae are
GRANTED. The question certified by the United States District Court for the District of
New Jersey is considered, and the Court respectfully declines the request to answer the
certified question.
MARKMAN, J. (dissenting).
I strongly dissent, and would answer the certified question posed by the United
States District Court for the District of New Jersey. I do not yet know in what manner I
would answer its question, but I do know that for this Court to answer such question is in
the best interests of the people of this state, and in the best interests of the form of
constitutional government that the people of this state have chosen for themselves. When
this Court, as it now does, refuses to answer a question certified to it by a federal court,
the following consequences arise: (a) we undermine the interests of the people of this
state in having significant questions of Michigan law resolved by courts which are
accountable to the people of this state; (b) we erode the sovereign interests of this state in
retaining control over the interpretation of its own laws, and transfer such control to a
lower court of a different sovereign; (c) we weaken our system of judicial federalism in
which even in those cases in which a federal court must apply state law, the federal court
is obligated to defer to state court interpretations of that law; (d) we place Michigan on an
unequal footing with the majority of other states of the Union whose highest courts
routinely respond to certified questions and which employ the certification process as one
important means by which to maintain the sovereign institutions of their states; and (e)
we fail to demonstrate comity and cooperation with a federal court, which is acting in
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these circumstances to show respect for the role of a state court in giving authoritative
meaning to the laws of its own state.
The upshot of the majority’s decision will be that an undecided, and significant,
question of Michigan law will be decided, not by a judicial body established under the
Constitution of this state, not by a judicial body accountable to the people of this state,
and not by a judicial body comprised of judges selected by the people of this state, but by
a federal district court in New Jersey. And when the decision of that district court is
finally rendered, it will not be only the litigants in this case who will be affected by our
failure to have exercised our responsibility to maintain the integrity of our state
institutions, but it will be the “general citizenry of Michigan, which in order to avoid
litigation will tend to conform their conduct to what they understand as current law [of
Michigan], the law of the federal court[.]” In re Certified Question, 472 Mich 1225,
1238 (2005) (MARKMAN, J., dissenting). Unlike the great number of federal judicial
decisions over recent decades that have tended to weaken the role of state judiciaries
relative to their federal counterparts, today’s weakening of judicial federalism is the
result, not of a federal court decision, but of a state court decision. It is an entirely self-
inflicted wound.
MARY BETH KELLY and ZAHRA, JJ., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 8, 2011 _________________________________________
y0405 Clerk