Maskery v. University of Michigan Board of Regents

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