Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 2, 2003
ANN E. MASKERY and ROBERT
MASKERY,
Plaintiffs-Appellees,
v No. 121338
BOARD OF REGENTS OF THE
UNIVERSITY OF MICHIGAN,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal to consider whether a
continuously locked residence hall at a public university was
“open for use by members of the public” under the public
building exception to governmental immunity, MCL 691.1406. We
hold that the residence hall was not “open for use by members
of the public.” We thus reverse the judgment of the Court of
Appeals and reinstate the trial court’s order granting summary
disposition for defendant.
I. Underlying facts and procedural posture
Plaintiff’s1 daughter, a college student, resided at the
Betsy Barbour Residence Hall on the University of Michigan’s
Ann Arbor campus. The residence hall was locked twenty-four
hours a day. A courtesy telephone outside the entrance to the
building was available for visitors to call a resident and
request admittance. The phone is located at the top of a
short stairway at the building’s entrance. After using the
courtesy phone, plaintiff lost her balance and fell down the
stairs, injuring herself.
Plaintiff sued the university, claiming that the
placement of the courtesy phone near a narrow step created a
dangerous and defective condition. She attempted to avoid
governmental immunity on the basis of the public-building
exception, MCL 691.1406. Defendant moved for summary
disposition under MCR 2.116(C)(7) (“The claim is barred
because of . . . . immunity granted by law . . . .”).
Defendant argued that the residence hall was not open for use
by members of the public. Defendant presented an affidavit
establishing that the residence hall was locked twenty-four
hours a day. Visitors could gain access only by using the
1
We refer to plaintiff Ann Maskery as “plaintiff.”
Robert Maskery’s claim is derivative of his wife’s claim.
2
courtesy phone to contact a resident, who then could unlock
the door to allow entry. The trial court granted defendant’s
motion.
On its initial review, the Court of Appeals affirmed.2
The Court cited cases holding that public-housing facilities
were not open for use by members of the public. See Griffin
v Detroit, 178 Mich App 302; 443 NW2d 406 (1989); White v
Detroit, 189 Mich App 526; 473 NW2d 702 (1991).
This Court remanded the case to the Court of Appeals for
reconsideration in light of Horace v City of Pontiac, 456 Mich
744; 575 NW2d 762 (1998). 459 Mich 944 (1999). On remand,
the Court of Appeals again affirmed3 because the residence
hall was indistinguishable from the public housing in Griffin
and White. The Court noted that access to the entire building
was limited to residents, guests admitted by the residents,
and maintenance personnel. The Court also held in light of
Horace that the steps on which plaintiff fell were not part of
the residence hall.
This Court then remanded the case to the Court of Appeals
a second time for reconsideration in light of Brown v Genesee
Co Bd of Comm’rs, 464 Mich 430; 628 NW2d 471 (2001), and Fane
2
Unpublished order, entered February 10, 1997 (Docket No.
187738).
3
Unpublished opinion per curiam, issued March 24, 2000
(Docket No. 187738).
3
v Detroit Library Comm, 465 Mich 68; 631 NW2d 678 (2001). 465
Mich 806 (2001). On the second remand, the Court of Appeals
reversed the order granting summary disposition.4 The Court
discussed the statement in Brown that a jail was open for use
by members of the public and concluded that the residence hall
was also open for use by members of the public. Applying
Fane, the Court of Appeals concluded that the steps where
plaintiff fell were part of the residence hall.
Defendant filed an application for leave to appeal. We
granted the application “limited to the question of whether
the university dormitory at which plaintiff was injured is
‘open for use by members of the public’ within the meaning of
MCL 691.1406.”5 467 Mich 887 (2002).
II. Standard of review
We review de novo a trial court’s ruling on a motion for
summary disposition. Hinkle v Wayne Co Clerk, 467 Mich 337,
340; 654 NW2d 315 (2002). “MCR 2.116(C)(7) tests whether a
claim is barred because of immunity granted by law, and
requires consideration of all documentary evidence filed or
4
Unpublished opinion per curiam, issued January 11, 2002
(Docket No. 187738).
5
Defendant did not seek leave to appeal on whether the
steps on which plaintiff fell were part of the public
building. Thus, we do not reach that issue. We also do not
address whether plaintiff has established a dangerous or
defective condition of a public building.
4
submitted by the parties.” Glancy v Roseville, 457 Mich 580,
583; 577 NW2d 897 (1998).
III. Discussion
A. Governmental immunity and the public-building exception
Absent a statutory exception, a governmental agency is
immune from tort liability when it exercises or discharges a
governmental function. MCL 691.1407(1). A governmental
function is “an activity that is expressly or impliedly
mandated or authorized by constitution, statute, local charter
or ordinance, or other law.” MCL 691.1401(f). The term
“governmental function” is to be broadly construed, and the
statutory exceptions are to be narrowly construed. Horace,
supra at 749.
It is not disputed that defendant has authority to
construct dormitories for student housing. MCL 390.16 permits
the Board of Regents of the University of Michigan to “erect
from time to time, such buildings as are necessary for the
uses of the university, on the grounds set apart for the same
. . . .”
The public-building exception to governmental immunity,
MCL 691.1406, provides:
Governmental agencies have the obligation to
repair and maintain public buildings under their
control when open for use by members of the public.
Governmental agencies are liable for bodily injury
and property damage resulting from a dangerous or
defective condition of a public building if the
5
governmental agency had actual or constructive
knowledge of the defect and, for a reasonable time
after acquiring knowledge, failed to remedy the
condition or take action reasonably necessary to
protect the public against the condition. . . .
[Emphasis added.]
Thus, “[t]o come within the narrow confines of this
exception, a plaintiff must prove that (1) a governmental
agency is involved, (2) the public building in question was
open for use by members of the public, (3) a dangerous or
defective condition of the public building itself exists, (4)
the governmental agency had actual or constructive knowledge
of the alleged defect, and (5) the governmental agency failed
to remedy the alleged defective condition after a reasonable
period or failed to take action reasonably necessary to
protect the public against the condition after a reasonable
period.” Kerbersky v Northern Michigan Univ, 458 Mich 525,
529; 528 NW2d 828 (1998) (emphasis omitted), interpreting MCL
691.1406. The second element is at issue here, i.e., whether
the locked residence hall was open for use by members of the
public.
B. Summary of case law
A review of case law in this area offers guidance.6 In
Dudek v Michigan, 152 Mich App 81; 393 NW2d 572 (1986), a
state mental-health facility was being renovated. A
6
A helpful summary of case law may also be found in
Kerbersky, supra.
6
construction worker was injured when a cement block fell from
a building. The Court of Appeals held that the public
building exception did not apply because the entire
construction area was closed off by a fence, and only
authorized personnel could enter.
In Griffin, supra, a resident of a public-housing
facility drowned in her bathtub. The Court of Appeals held
that the public-building exception did not apply because the
dwelling unit “was not open for use by members of the public.
It was open for use by the decedent as her private residence
under the lease agreement.” Id. at 306.
In Taylor v Detroit, 182 Mich App 583; 452 NW2d 826
(1989), a boy was electrocuted after breaking into a locked
electrical substation in an abandoned section of a public
housing project. The Court of Appeals held that the
substation was not open for use by members of the public.
“Here, only authorized personnel were allowed entry into the
substation; the structure was neither designed nor intended to
be accessible to or used by the general public.” Id. at 588.7
In White, supra, a resident of a public-housing facility
was injured on a patio at the facility. The plaintiff
7
In Kerbersky, supra, this Court approved the result in
Taylor but noted that “[t]he word ‘general’ is not in the
statute and therefore should not be read into the statute.”
Id. at 534.
7
attempted to distinguish Griffin on the ground that the
accident in White occurred in an area accessible to the public
rather than in a tenant’s private residence. The Court of
Appeals rejected that distinction:
Because the building in the instant case was a
residential housing facility containing private
housing units, and was not a building used for
public offices or for a public purpose, the public
building exception does not apply. And the area at
issue, being adjacent to a nonpublic building, does
not fall within the exception merely because the
area may be accessible by the public. [Id. at 529.]
In Steele v Dep’t of Corrections, 215 Mich App 710; 546
NW2d 725 (1996), a prison inmate was injured while he was part
of a work crew renovating a state building. The Court of
Appeals concluded that the public-building exception did not
apply because the building was not open to the public during
renovations.
In Kerbersky, supra, a construction worker fell from a
ladder while renovating a university administration building.
This Court held that the building was open for use by members
of the public, even though the specific accident site was
closed for renovations. This Court stated, however, that
where an entire building is closed for renovations, it is not
open for use by members of the public. This Court therefore
endorsed the holdings in Dudek and Steele.
The Kerbersky Court agreed with the result in White
8
because areas adjacent to public buildings are not covered by
the exception. Also agreeing with the holding in Griffin, the
Kerbersky Court stated: “A tenant who is present in a city
owned apartment as the result of an oral or written lease is
not using the building as a member of the public; rather, such
a person has a contractual possessory interest in the
apartment.” Id. at 535 (emphasis added). This Court further
approved the Taylor holding that the locked electrical
substation was not open for use by members of the public.
Next, in Brown v Genesee Co Bd of Comm’rs (After Remand),
464 Mich 430; 628 NW2d 471 (2001), an inmate injured himself
in the shower area of a jail. A majority of this Court
concluded that a jail inmate is not a member of the public for
the purposes of the public-building exception to governmental
immunity as that relates to a jail.
C. Analysis
We reaffirm that mere public ownership of a building is
insufficient to meet the requirements of the public-building
exception. The statute makes plain that governmental agencies
owe a duty to repair and maintain “public buildings under
their control when open for use by members of the public”
(emphasis added). If mere public ownership sufficed, the
phrase “when open for use by members of the public” would be
rendered nugatory. Courts must avoid a construction that
9
renders part of a statute nugatory. Brown, supra at 437,
citing People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d
1 (1999).
To determine whether a building is open for use by
members of the public, the nature of the building and its use
must be evaluated. The government, of course, controls the
use that will be made of its buildings. If the government has
restricted entry to the building to those persons who are
qualified on the basis of some individualized, limiting
criteria8 of the government’s creation, the building is not
open to the public. This test arises from the plain statutory
language. If access to a building is limited in the manner we
have described, members of the public may not freely enter,
and the building is not open for use by members of the
public.9
8
Such limiting criteria would not include universal
requirements such as possession of a ticket, as for an
athletic or theatrical event, or the need to universally bar
entry to those with weapons, such as at courthouses or other
secure, but public, facilities.
9
The test that we have set forth should not be confused
with the following discussion of “limited access” in
Kerbersky:
As noted in Steele, the public building
exception can apply to buildings with limited
access. For example, this Court’s handling of Bush
v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268
(1979), demonstrates that the building in question
does not have to be open to members of the general
public to come within the statute. In Bush, we
10
This test focuses on whether the government intends to
limit the public’s access to the building--a breach of the
-
rules limiting entry would not render the building open to the
public. Where a person who is not qualified for entry
nonetheless gains access, the government remains entitled to
immunity.
held that the public building exception applied to
an injury sustained in a high school chemistry
class. Very few people could legitimately have
been in this classroom. This particular classroom
was not accessible by members of the general
public. [Kerbersky, supra at 534.]
The phrase “limited access” was used in Kerbersky to
explain that where access to part of a building is limited,
the public-building exception may still apply if the building
remains open for use by members of the public. Here, the
concept of limited access is used in a different sense, i.e.,
to describe a building in which access to the entire building,
or the general right of entry, is restricted to persons who
are qualified to enter. Where the government has created
rules that render the building closed except to those who are
qualified to enter, the building is not open for use by
members of the public. The focus of the test is on the
government’s intended use of the building. Thus, the test set
forth in this case should not be confused with the language in
Kerbersky clarifying that a building may be open to the public
even though access to a part of the building is limited.
In other words, the Kerbersky holding and the test we
announce here address distinct questions that may arise in a
court’s analysis under the public-building exception.
Kerbersky clarifies that a building may be “open for use by
members of the public” even where a location within the
building is restricted from public use. The present case,
however, involves a building that is not open for use by the
public because access to the entire building is limited in the
manner we have described. Where, as here, the entire building
is closed to the public, the holding in Kerbersky, concerning
a building that remains open despite containing a location
that is restricted to the public, simply is not implicated.
11
Moreover, the statutory language makes clear that the
public-building exception applies when the building is open
for use by members of the public. A building such as a
courthouse that is open to the public during business hours
may nonetheless be closed to the public at other times, such
as at night or on weekends. Similarly, a university athletic
facility may be open to the public during a sporting event,
but closed to the public at other times. Because the
statutory language limits the exception to periods when the
building is open for use by members of the public, accidents
that occur when the building is closed to the public do not
fall within the confines of the exception, and the government
is entitled to immunity.
The residence hall in this case was not open for use by
members of the public. Members of the public could not enter
the building without using a courtesy phone to contact a
resident and asking the resident to unlock the door. In that
manner, the university restricted entry to the residence hall
to those persons who were qualified on the basis of
individualized, limiting criteria--in this case, permission
-
from a tenant. Accordingly, the building was not open to the
public.10
10
The Court of Appeals determined that the delivery of
supplies, mail, and food by nonresidents rendered the
residence hall open for use by members of the public. In
12
IV. Conclusion
The Betsy Barbour Residence Hall was not open for use by
members of the public. Accordingly, plaintiff has not
satisfied the requirements of the public-building exception,
and defendant is immune from tort liability. We reverse the
judgment of the Court of Appeals and reinstate the trial
court’s order granting summary disposition for defendant.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
reaching this conclusion, the Court of Appeals relied on dicta
in Brown discussing deliveries to a jail. The Brown plurality
opinion should not be read to suggest that mere deliveries are
sufficient to render a building open for use by members of the
public. The Court of Appeals erred in relying primarily on
this dicta from Brown. Instead, as our opinion today
explains, the appropriate test for determining whether a
building is open for use by members of the public is whether
entry to the building has been restricted on the basis of some
individualized, limiting criteria. This analysis requires
consideration of the use of the particular building involved.
Our dissenting colleague also attempts to apply dicta
from the Brown plurality opinion to this case and questions
whether a jail may be open for use by members of the public
while the residence hall here is not. The central holding in
Brown, however, concerned whether an inmate was a member of
the public. We decline to revisit issues that are not before
us. We are confident that the test we have set forth is
derived from the statutory text and supports the result we
have reached.
13
S T A T E O F M I C H I G A N
SUPREME COURT
ANN E. MASKERY and ROBERT
MASKERY,
Plaintiffs-Appellees,
v No. 121338
BOARD OF REGENTS OF THE
UNIVERSITY OF MICHIGAN,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I respectfully dissent. In its decision, the majority
creates a test that can be used to discern whether a building
is open for use by members of the public under MCL 691.1406.
However, I find that the test is unclear.
Moreover, I believe that the Court of Appeals did not
clearly err in its decision on remand, given our explicit
directive to it to apply the holding in Brown. The Court of
Appeals construed Brown in the only way possible. Also, like
the Court of Appeals, I am unable to distinguish the residence
hall in this case from the jail in Brown when applying the
Brown test.
I. THE COURT OF APPEALS DID NOT CLEARLY ERR
A brief examination of the cases interpreting MCL
691.1406 reveals that no adequate method has been established
to determine when a building is open for use by members of the
public. This is underscored by the fact that the Court of
Appeals has decided this case three times and, now, for the
third time, is told it did not correctly interpret § 6.
A. The Brown decision
In Brown v Genesee Co Bd of Comm'rs (After Remand),1 the
Court devoted a few paragraphs to discussing whether a jail is
open for use by members of the public under § 6:
Plaintiff claims to have injured himself near
a shower stall in defendant's jail. Under
Kerbersky, we examine the public's access to the
jail rather than the shower area. [Kerbersky v
Northern Michigan Univ, 458 Mich 525; 582 NW2d 828
(1998).]
Green v Dep't of Corrections, 386 Mich 459;
192 NW2d 491 (1971), held that a jail falls within
the scope of the statutory exception. In other
decisions, this Court has implicitly assumed as
much. See, e.g., Wade v Dep't of Corrections, 439
Mich 158; 483 NW2d 26 (1992).
We would reaffirm that a jail is open for use
by members of the public. Family, friends, and
attorneys may generally visit inmates. Members of
the public may also enter a jail for other reasons,
e.g., to apply for a job or make a delivery.
1
464 Mich 430, 435-436; 628 NW2d 471 (2001).
2
The fact that public access to a jail is
limited does not alter our conclusion. Schools fall
within the exception even though members of the
public may not enter whenever and wherever they
please. See Sewell v Southfield Public Schools,
456 Mich 670; 576 NW2d 153 (1998); Bush v Oscoda
Area Schools, 405 Mich 716; 275 NW2d 268 (1979).
The public building exception applies to buildings
with limited access, including schools and prisons.
Kerbersky, supra at 534; Steele v Dep't of
Corrections, 215 Mich App 710, 715; 546 NW2d 725
(1996). [Emphasis in original.]
Analyzing this discussion, one finds that there are two
discernible approaches to concluding why a jail is open for
use by members of the public. First, the Court could be
following the analysis suggested in Green. However, the
opinion tells us that it does "not approve the reasoning in
that decision." Brown, supra at 436 n 4.
Next, the second paragraph states that a jail might be
open for use by members of the public because "[f]amily,
friends, and attorneys may generally visit inmates. Members
of the public may also enter a jail for other reasons, e.g.,
to apply for a job or make a delivery." The third paragraph
tells the reader that "limited access" to a building like a
jail does not preclude its being open for use by members of
the public.
Therefore, the reader is given two possible reasons that
a jail is open for use by members of the public, then told not
to rely on the first one. The logical conclusion is that the
3
second reason given is the reason the jail is "open."
Notably absent from Brown is any description of the jail
in question. Does it have an open lobby that one can enter
freely? Is there a checkpoint outside? Is there a guarded
gate? How is it like other jails? The answers to these
questions are left to the imagination. The reader is given
the impression that all jails are open for use by members of
the public, regardless of their structure or how they limit
access.
B. The remand after Brown
After Brown, the Court remanded this case to the Court of
Appeals for the second time, for reconsideration in light of
the new decision. The Court of Appeals attempted to apply the
reasoning in Brown.
Here, the building in question is not a jail,
but a residence hall. If a jail is "open for use
by members of the public" by virtue of the family
and friends that may visit inmates, it certainly
follows that a residence hall would also be "open
for use by members of the public." Indeed, we
would suspect that there is more, or at least
equal, ingress and egress in a residence hall than
in a jail. Similarly, a residence hall is likely
to receive deliveries of supplies, mail, and food
by nonresidents. Moreover, if the very limited
access to a jail is not sufficient to preclude its
characterization as a public building, the instant
residence hall's minimal security measures, while
presumably effective, further justify a finding
that the residence hall was a public building.
Thus, we believe that the Brown decision leads only
to a conclusion that the residence hall was “open
for use by members of the public." Therefore, we
conclude that the residence hall was a public
4
building, as necessary to permit plaintiff’s
reliance on the public building exception to
governmental immunity, MCL 691.1406.[2]
It is apparent that the Court of Appeals extracted the
only rationale available from Brown, the statements about
access by friends, family, and attorneys and for job
applications and deliveries. It then applied that rationale
to the facts. It is also apparent that the Court reasonably
concluded that a jail would provide tighter security than a
residence hall, locked or unlocked.
C. The majority decision
Today, the majority reverses the Court of Appeals, even
though, in light of the brief discussion in Brown, it would be
difficult to reach another conclusion. The majority rejects
the lower court's rationale in its footnote 10, ante at 12-13:
The Court of Appeals determined that the
delivery of supplies, mail, and food by non
residents rendered the residence hall open for use
by members of the public. In reaching this
conclusion, the Court of Appeals relied on dicta in
Brown discussing deliveries to a jail. The Brown
plurality opinion should not be read to suggest
that mere deliveries are sufficient to render a
building open for use by members of the public.
The Court of Appeals erred in relying primarily on
this dicta from Brown.
If the Court of Appeals erred in relying on this dicta
from Brown, it had no choice but to err; Brown provides
2
Unpublished opinion per curiam, issued January 11, 2002
(Docket No. 187738).
5
nothing else on which to rely. Because the Court of Appeals
decision was the only reasonable application of Brown, it was
not clearly erroneous.
II. WITHOUT SPECIFIC FACTS, A "JAIL" AND A LOCKED
RESIDENCE HALL MAY BOTH HAVE RESTRICTED ENTRY
Today, the majority proposes a two-part test for
determining whether a government building is open for use by
members of the public under § 6. First, there must not be
"restricted entry to the building of those persons who are
qualified on the basis of some individualized, limiting
criteria of the government's creation." Ante at 10. Second
the building must be open for public use at the time of entry.
The test is derived from the statute and arguably
provides a workable framework for deciding when a building is
"open" under § 6. However, absent more facts, one cannot
discern how the majority's fact-intensive inquiry concludes
that "a" jail is not subject to restricted entry, while this
locked residence hall is.
Initially, I would note that the majority's focus seems
to have shifted from the type of building (a nonspecific
"jail" in Brown) to the exact building at issue (Betsy Barbour
Residence Hall, locked twenty-four hours a day). Brown
implied that all jails would be "open" for purposes of § 6,
without regard to the unique aspects of each.
6
Today, the majority focuses on the specific aspects of
this locked residence hall. Presumably, it should not be
compared to one of the large residence halls at Michigan State
University that are open for classes and other events during
the day. However, the distinction between the generic
analysis in Brown and the specific analysis here leads to
confusion, as the majority does not disavow Brown at all. The
bench and bar would benefit from an explanation of the proper
focus for the § 6 inquiry.3
3
Even in this case, the majority moves between general
and specific focuses. For example, when discussing Kerbersky
v Northern Michigan Univ, 458 Mich 525, 534; 528 NW2d 828
(1998), it notes that the Kerbersky Court reaffirmed that the
public building exception would apply to "an injury sustained
in a high school chemistry class . . . [even though][v]ery few
people could legitimately have been in this classroom." The
majority explains that this example can be distinguished from
a locked residence hall because:
The phrase "limited access" was used in
Kerbersky to explain that where access to part of a
building is limited, the public-building exception
may still apply if the building remains open for
use by members of the public. Here, the concept of
limited access is used in a different sense, i.e.,
to describe a building in which access to the
entire building, or the general right of entry, is
restricted to persons who are qualified to enter.
[Ante at 11 n 9 (emphasis in original.]
Again, the majority generalizes about schools. It is
undisputed that in some public schools today access to the
entire building, not merely to particular classrooms, is
restricted. Some high schools have guards who prevent access
to everyone but employees and students; most do not.
Nevertheless, it is apparent that one cannot conclude that
public schools in general are open for use by members of the
(continued...)
7
Next, without some comparison of the two buildings, I
cannot conclude that the jail in Brown has less restricted
entry than the residence hall in this case. Unless the jail
has an open, walk-in lobby that members of the public can
enter, which is possible, I see no meaningful distinction
between the levels of restriction on entry. It seems unlikely
that a member of the public could enter the interior of the
jail, or this residence hall, unless he had business inside;
neither building would appear to permit one to stroll at will
inside the facility.4
Again, I emphasize that there may be aspects of the jail
in Brown that provide for less restricted entry than the
residence hall in this case. The difficulty is that the
majority does not specify what those aspects are. The reader
is left wondering, as the Court of Appeals obviously was,
whether a nondescript jail is subject to fewer restrictions
than this residence hall.
3
(...continued)
public under the proposed test. Instead, one must consider
the characteristics of a particular school.
4
The majority notes that "[m]embers of the public could
not enter the building without using a courtesy phone to
contact a resident, and then asking the resident to unlock the
door." Ante at 12. I imagine that a visitor to a jail would
have to take at least equivalent steps to gain entry, such as
passing through a guarded checkpoint. Again, this is
conjecture because the jail in Brown is not described.
8
III. THE PROPOSED TEST IS NOT CLEARLY SET OUT
The majority's test is spread out over the two pages of
analysis. The reader is left to derive the relevant
principles and to make sense of them in light of the earlier
cases. Because the test announced in this case should be a
helpful analytic tool, I would prefer that it were more
clearly articulated.
IV. CONCLUSION
I cannot join the majority. The Court of Appeals made
the only conclusion that Brown would support, and I find no
error in it.
Marilyn Kelly
9