Rowland v. Washtenaw County Road Commission

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 2, 2007

JOANNE ROWLAND, also known as
JOAN ROWLAND,

Plaintiff-Appellee,

v No. 130379

WASHTENAW COUNTY ROAD
COMMISSION,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

TAYLOR, C. J.

The issue in this case is whether a notice provision applicable to the

defective highway exception to governmental immunity, MCL 691.1404(1),

should be enforced as written. This statute provides in pertinent part:

As a condition to any recovery for injuries sustained
by reason of any defective highway, the injured person,
within 120 days from the time the injury occurred, . . . shall
serve a notice on the governmental agency of the occurrence
of the injury and the defect. The notice shall specify the exact
location and nature of the defect, the injury sustained and the
names of the witnesses known at the time by the claimant.
 We conclude that the plain language of this statute should be enforced as

written: notice of the injuries sustained and of the highway defect must be served

on the governmental agency within 120 days of the injury. This Court previously

held in Hobbs v Dep’t of State Hwys, 398 Mich 90, 96; 247 NW2d 754 (1976),

and Brown v Manistee Co Rd Comm, 452 Mich 354, 356-357; 550 NW2d 215

(1996), that absent a showing of actual prejudice to the governmental agency,

failure to comply with the notice provision is not a bar to claims filed pursuant to

the defective highway exception. Those cases are overruled.

Accordingly, the order of the trial court denying summary disposition to

defendant on the basis of Hobbs/Brown is reversed, the judgment of the Court of

Appeals affirming the trial court’s order is also reversed, and the case is remanded

to the trial court for the entry of an order granting defendant summary disposition

because plaintiff failed to provide notice within 120 days “[a]s a condition to any

recovery” for injuries she claims she sustained by reason of a defective highway.

I. FACTS AND PROCEDURAL HISTORY

On February 6, 2001, plaintiff Joan Rowland fell and was injured while

crossing Jennings Street at its intersection with Main Street in Northfield

Township in Washtenaw County. Plaintiff alleged that she tripped and fell on

“broken, uneven, dilapidated, depressed and/or potholed areas.”

Plaintiff served her notice on defendant Washtenaw County Road

Commission on the 140th day after the accident and subsequently filed a lawsuit

against defendant asserting the applicability of the defective highway exception to

2

governmental immunity. MCL 691.1402. Defendant road commission filed an

answer and affirmative defenses that raised MCL 691.1404 (failure to serve notice

within 120 days) as a defense. Defendant subsequently moved for summary

disposition pursuant to MCR 2.116(C)(7) (immunity granted by law) and

2.116(C)(10) (no genuine issue of material fact), arguing, among other things, that

plaintiff’s failure to comply with MCL 691.1404(1) entitled it to summary

disposition.

Relying on Hobbs/Brown (defendant must show prejudice before the

statute can be enforced) the trial court determined that there was a genuine issue of

material fact concerning whether defendant had shown prejudice and thus denied

the road commission’s motion for summary disposition.

The Court of Appeals affirmed the order of the trial court.1 Defendant

urged the panel to disregard the Hobbs and Brown construction of MCL 691.1404

on the basis that those cases were wrongly decided. The Court of Appeals,

however, noted that it was duty-bound to follow this Court’s construction of MCL

691.1404 and that the decisions were binding unless the Supreme Court overruled

them.

1
Unpublished opinion per curiam, issued December 13, 2005 (Docket No.
253210).

3

 The road commission filed an application for leave to appeal, which this

Court granted.2

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision to deny a motion for

summary disposition. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich

712, 720; 691 NW2d 1 (2005). Questions of statutory interpretation are also

reviewed de novo. Id. When construing a statute, this Court’s primary goal is to

give effect to the intent of the Legislature. We begin by construing the language

of the statute itself. When the language is unambiguous, we give the words their

plain meaning and apply the statute as written. In re MCI Telecom Complaint, 460

Mich 396, 411; 596 NW2d 164 (1999).

III. ANALYSIS

a. GOVERNMENTAL IMMUNITY AND THE DEFECTIVE HIGHWAY
EXCEPTION

It is well understood, and not challenged here, that governmental agencies,

with a few exceptions, are generally statutorily immune from tort liability. The

governmental tort liability act (GTLA), MCL 691.1401 et seq., broadly shields a

governmental agency from tort liability “if the governmental agency is engaged in

the exercise or discharge of a governmental function.” MCL 691.1407(1). The

act enumerates several exceptions to governmental immunity that permit a

2
474 Mich 1099 (2006).

4

plaintiff to pursue a claim against a governmental agency.3 Our decision in this

case requires us to examine MCL 691.1404. As previously indicated, the statute

provides:

As a condition to any recovery for injuries sustained by
reason of any defective highway, the injured person, within 120 days
from the time the injury occurred, except as otherwise provided in
subsection (3)[4] shall serve a notice on the governmental agency of
the occurrence of the injury and the defect. The notice shall specify

3
The Legislature codified the following six exceptions in the GTLA: the
defective highway exception, MCL 691.1402; the motor vehicle exception, MCL
691.1405; the public building exception, MCL 691.1406; the proprietary function
exception, MCL 691.1413; the governmental hospital exception, MCL
691.1407(4); and the sewage disposal system exception, MCL 691.1417. Further,
as we recognized in Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002),
there are other areas outside the GTLA where the Legislature has allowed specific
actions against a governmental agency notwithstanding governmental immunity,
such as the Civil Rights Act. MCL 37.2103(g) and 37.2202(1)(a).
4
Subsection 3 provides:
If the injured person is under the age of 18 years at the
time the injury occurred, he shall serve the notice required by
subsection (1) not more than 180 days from the time the
injury occurred, which notice may be filed by a parent,
attorney, next friend or legally appointed guardian. If the
injured person is physically or mentally incapable of giving
notice, he shall serve the notice required by subsection (1) not
more than 180 days after the termination of the disability. In
all civil actions in which the physical or mental capability of
the person is in dispute, that issue shall be determined by the
trier of the facts. The provisions of this subsection shall apply
to all charter provisions, statutes and ordinances which
require written notices to counties or municipal corporations.
One amicus curiae argues in its brief that requiring notice after only four
months is unreasonable because injured persons may still be incapacitated. But,
this concern is addressed by subsection 3, which allows someone who is
physically or mentally incapable of giving notice to serve notice not more than
180 days after the termination of the disability.

5

 the exact location and nature of the defect, the injury sustained and
the names of the witnesses known at the time by the claimant.
[MCL 691.1404(1).]

Plaintiff, having served her notice 140 days after her fall, acknowledges

that she did not serve a notice on the road commission within 120 days of her

accident. Given that the plain language of the statute requires such notice as a

condition for recovery for injuries sustained because of a defective highway, one

merely reading the statute might assume that plaintiff’s complaint would have

been dismissed. Because this Court’s decisions in Hobbs and Brown engrafted an

actual prejudice component onto the statute, the trial court could not dismiss the

case.5 It is valuable in considering the defensibility of this interpretation of the

statute to first survey this Court’s cases concerning notice provisions, including

the provision at issue here.

5
Justice Kelly contends in her partial dissent that we should avoid
revisiting Hobbs and Brown by holding that plaintiff’s notice itself was defective
because it did not identify the nature of the defect of the highway, not because it
was not served within 120 days. We disagree because the first question is whether
the Legislature can even enact a notice provision with a hard and fast deadline. If
it can, an issue we examine in this opinion, then there is no need to determine the
second question of whether the late-filed notice in this case would have been
adequate if it had been filed in a timely manner. While Justice Kelly accuses us of
reaching unnecessary constitutional rulings, we believe it is more accurate to say
that we have merely engaged in statutory analysis. But, to be able to apply the
statute to the case at bar we have to dispatch the erroneous constitutional readings
that were erected by the Hobbs/Brown courts to prevent us from engaging in a
statutory analysis. Moreover, defendant specifically argued that plaintiff failed to
comply with the 120-day notice provision of MCL 691.1404(1) in its motion for
summary disposition and the trial court and the Court of Appeals relied on
Hobbs/Brown to not enforce the statute. Under such circumstances, it is entirely
proper for this Court to review whether Hobbs and Brown were properly decided.

6

 b. HISTORY OF THIS COURT’S CASELAW INVOLVING NOTICE
STATUTES

From its earliest years this Court, evidently detecting no constitutional

impediments, if indeed any were even urged, enforced governmental immunity

mandatory notice provisions according to their plain language. See, e.g.,

Davidson v City of Muskegon, 111 Mich 454; 69 NW 670 (1897); Holtham v

Detroit, 136 Mich 17; 98 NW 754 (1904); Wilton v Detroit, 138 Mich 67; 100 NW

1020 (1904); Barribeau v Detroit, 147 Mich 119; 110 NW 512 (1907); McAuliff v

Detroit, 150 Mich 346; 113 NW 1112 (1907); Ridgeway v Escanaba, 154 Mich

68; 117 NW 550 (1908); Moulter v Grand Rapids, 155 Mich 165; 118 NW 919

(1908); Northrup v City of Jackson, 273 Mich 20; 262 NW 641 (1935); Sykes v

Battle Creek, 288 Mich 660; 286 NW 117 (1939); Trbovich v Detroit, 378 Mich

79; 142 NW2d 696 (1966); Morgan v McDermott, 382 Mich 333; 169 NW2d 897

(1969).

The leading cases upholding notice provisions are Moulter, Trbovich, and

Morgan. In Moulter, this Court held that the right to recover for injuries arising

from the lack of repair to sidewalks, streets, highways, and so forth, was purely

statutory and that it was discretionary with the Legislature whether it would confer

upon injured persons a right of action. Moreover, any rights given to sue the

government could be subject to limitations the Legislature chose. The implicit

theory was that such notice provisions were economic or social legislation and

that, because the Legislature had a rational basis for the notice requirements—the

7

most obvious being facilitating meaningful investigations regarding the conditions

at the time of injury and allowing for quick repair so as to preclude other

accidents—the statutes were constitutionally permissible. Further, in Trbovich the

Court indicated that for the Court to not accede to the Legislature’s authority in

this fashion would be to unconstitutionally usurp legislative authority. Finally, in

Morgan the Court reaffirmed that the then 60-day notice requirement in defective

highway cases was simply a condition of liability and that, unless it was fulfilled,

there was no liability.6

As of 1969, therefore, the enforceability of notice requirements and the

particular notice requirements in governmental immunity cases was well settled

and had been enforced for almost a century. In 1970, however, there was an

abrupt departure from these holdings in the Court’s decision in Grubaugh v City of

St Johns, 384 Mich 165; 180 NW2d 778 (1970). In Grubaugh the Court discerned

an unconstitutional due process deprivation if plaintiffs suing governmental

defendants had different rules than plaintiffs suing private litigants. As a result,

Moulter was not followed.7

6
See also Kraus v Kent Co Bd of Rd Comm’rs, 385 F2d 864 (CA 6, 1967),
upholding dismissal of an action in a diversity case because of noncompliance
with the notice statute.
7
Actually, the lead opinion in Grubaugh stated that Moulter was overruled.
But, the lead opinion was only signed by three justices and two other justices only
concurred in the result. Under such circumstances, Grubaugh was not binding
precedent. As this Court explained in Negri v Slotkin, 397 Mich 105, 109; 244
NW2d 98 (1976), decisions in which no majority of the justices participating agree
(continued…)

8

 Two years later, in Reich v State Hwy Dep’t, 386 Mich 617; 194 NW2d

700 (1972), the Court took Grubaugh one step further and held that an earlier

version of MCL 691.1404, which included a 60-day notice provision, was

unconstitutional, but this time because it violated equal protection guarantees. The

analysis again was that the constitution forbids treating those injured by

governmental negligence differently from those injured by a private party’s

negligence. Leaving aside the unusual switch from one section of the constitution

to another to justify an adjudication of unconstitutionality, this claim is simply

incorrect. Private and public tortfeasors can be treated differently in the fashion

they have been treated here by the Legislature. It does not offend the constitution

to do so because with economic or social regulation legislation, such as this

statute, there can be distinctions made between classes of persons if there is a

rational basis to do so. As we explained in Phillips v Mirac, Inc, 470 Mich 415,

431-433; 685 NW2d 174 (2004), legislation invariably involves line drawing and

social legislation involving line drawing does not violate equal protection

guarantees when it has a “rational basis,” i.e., as long as it is rationally related to a

legitimate governmental purpose. The existence of a rational basis here is clear, as

we will discuss more fully, but even the already cited justification, that the road be

repaired promptly to prevent further injury, will suffice.

(…continued)

with regard to the reasoning are not an authoritative interpretation under the

doctrine of stare decisis.

9

 Considering the same point, Justice Brennan in his dissent in Reich pithily

pointed out the problems with the majority’s analysis:

The legislature has declared governmental immunity from tort
liability. The legislature has provided specific exceptions to that
standard. The legislature has imposed specific conditions upon the
exceptional instances of governmental liability. The legislature has
the power to make these laws. This Court far exceeds its proper
function when it declares this enactment unfair and unenforceable.
[386 Mich at 626.]

The next year, in Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973),

the Court retreated from Grubaugh and Reich and, in a novel ruling, held that

application of the six-month notice provision in the Motor Vehicle Accident

Claims Act (MVACA), MCL 257.1118, was constitutional, and that the provision

was thus enforceable, only where the failure to give notice resulted in prejudice to

the party receiving the notice, in that case the Motor Vehicle Accident Claims

Fund (MVACF). The reasoning was that while some notice provisions may be

constitutionally permitted some may not be, depending on the purpose the notice

serves. Thus, if notice served a permissible purpose, such as to prevent prejudice,

it passed constitutional muster. But, if it served some other purpose (the Court

could not even imagine any other) then the notice required by the statute became

an unconstitutional legislative requirement. Thus, the Court concluded that in

order to save the statute from being held unconstitutional, it had to allow notice to

be given after six months and still be effective unless the governmental agency,

there the MVACF, could show prejudice. Whatever a court may do to save a

statute from being held to be unconstitutional, it surely cannot engraft an

10

amendment to the statute, as was done in Carver. See, e.g., North Ottawa

Community Hosp v Kieft, 457 Mich 394, 408 n 14; 578 NW2d 267 (1998).

Notwithstanding these problems, they went unnoticed and the rule now was “only

upon a showing of prejudice by failure to give such notice, may the claim against

the fund be dismissed.” Carver, 390 Mich at 100.

Returning to the Carver approach in 1976, this Court in Hobbs, 398 Mich

at 96, held regarding the notice requirement in the defective highway exception to

governmental immunity:

The rationale of Carver is equally applicable to cases brought
under the governmental liability act. Because actual prejudice to the
state due to lack of notice within 120 days is the only legitimate
purpose we can posit for this notice provision, absent a showing of
such prejudice the notice provision contained in [MCL 691.1404] is
not a bar to claims filed pursuant to [MCL 691.1402].

Finally, in 1996, in Brown, this Court reassessed the propriety of the

Hobbs decision and declined to overrule it on the basis of stare decisis and

legislative acquiescence.8

8
Justices Riley and Boyle dissented from the Court’s holding. Justice
Weaver did not participate, presumably because she had participated in the case as
a Court of Appeals judge.
Justice Kelly and Justice Cavanagh argue that legislative acquiescence
should save Hobbs and Brown’s erroneous construction of the notice statute. But,
it has been the rule in Michigan since at least Donajkowski v Alpena Power Co,
460 Mich 243, 261; 596 NW2d 574 (1999), that the doctrine of legislative
acquiescence is not recognized in this state. As we noted in Nawrocki v Macomb
Co Rd Comm, 463 Mich 143, 177-178 n 33; 615 NW2d 702 (2000), the legislative
acquiescence doctrine “‘is a highly disfavored doctrine of statutory construction;
sound principles of statutory construction require that Michigan courts determine
the Legislature’s intent from its words, not from its silence.’” (Citation omitted;
(continued…)

11

(…continued)
emphasis omitted.) Justice Kelly’s professed fealty to stare decisis apparently
would not prevent her from overruling sub silentio all the cases where we rejected
the legislative acquiescence doctrine. See, e.g., Donajkowski; People v Borchard-
Ruhland, 460 Mich 278, 286; 597 NW2d 1 (1999); Robinson v Detroit, 462 Mich
439, 466; 613 NW2d 307 (2000); Nawrocki, supra; Hanson v Mecosta Co Rd
Comm’rs, 465 Mich 492, 502; 638 NW2d 396 (2002); Robertson v
DaimlerChrysler Corp, 465 Mich 732, 760; 641 NW2d 567 (2002); People v
Hawkins, 468 Mich 488, 506-507; 668 NW2d 602 (2003); Neal v Wilkes, 470
Mich 661, 668 n 11; 685 NW2d 648 (2004); Devillers v Auto Club Ins Ass’n, 473
Mich 562, 592; 702 NW2d 539 (2005); Grimes v Dep’t of Transportation, 475
Mich 72, 84; 715 NW2d 275 (2006); People v Anstey, 476 Mich 436, 445; 719
NW2d 579 (2006); Paige v Sterling Hts, 476 Mich 495, 516; 720 NW2d 219
(2006).

Furthermore, in a circumstance such as here, where the Court has said the
constitution precludes the Legislature from doing as it wishes (thus making the
desired legislative action impossible) a legislative acquiescence argument is
entirely misbegotten. Justice Kelly claims that the Legislature could have simply
reenacted the statute after identifying an additional intent. We disagree. First, the
Hobbs Court said the “only” legitimate reason it could surmise for the notice
statute was to prevent prejudice to the government. Inescapably this must be read
to mean that other reasons would not be found legitimate. Thus, adding another
reason would hardly be seen as a viable option for the Legislature. In any event,
the Legislature is not required to indicate in a statute what its motivations are.
Rather, it is a court’s duty in “rational basis” cases such as this to find
constitutionality if “‘“any state of facts either known or which could reasonably be
assumed affords support”‘“ for the statute. Brown, supra at 362 (citations
omitted). Justice Kelly herself has said this. Harvey v Michigan 469 Mich 1, 13­
14; 664 NW2d 767 (2003).

Justice Kelly also argues that the Legislature could have amended the
statute to include a presumption of prejudice. Revising the statute in such a
manner, however, would not have produced what the Legislature wanted—a
statute with a clearly identified and readily enforceable deadline that does not
require a showing of prejudice or anything else to be enforceable.

12

 c. HOBBS AND BROWN WERE WRONGLY DECIDED AND POORLY
REASONED

The simple fact is that Hobbs and Brown were wrong because they were

built on an argument that governmental immunity notice statutes are

unconstitutional or at least sometimes unconstitutional if the government was not

prejudiced. This reasoning has no claim to being defensible constitutional theory

and is not rescued by musings to the effect that the justices “‘look askance’” at

devices such as notice requirements, Hobbs, 398 Mich at 96, quoting Carver, 390

Mich at 99, or the pronouncement that other reasons that could supply a rational

basis were not to be considered because in the Court’s eyes the “only legitimate

purpose” of the notice provisions was to protect from “actual prejudice.” Hobbs,

398 Mich at 96.

Perceiving the error of the majority, Justice Riley explained in her dissent

in Brown that this notice statute is social legislation that is constitutional because it

has a rational basis. She stated:

I note that “[w]hen scrutinizing economic and social
legislation, this Court applies the rational basis standard of review.”
Downriver Plaza Group v Southgate, 444 Mich 656, 666; 513
NW2d 807 (1994). The only inquiry, then, is whether this social
legislation creating a 120-day notice requirement has a rational
basis.

This particular legislation passes the minimal rational basis
test, and the Court in Hobbs was without authority to require a
showing of prejudice in each and every case. Notice provisions
rationally and reasonably provide the state with the opportunity to
investigate and evaluate a claim. [452 Mich at 370.]

13

 Because the statute was constitutional, no “saving construction” was

necessary or allowed. Thus, the engrafting of the prejudice requirement onto the

statute was entirely indefensible.

Further, in the search for a legitimate purpose for notice provisions, the

holding in Ridgeway v Escanaba, 154 Mich 68, 72-73; 117 NW 550 (1908), is

also instructive. It was there that this Court gave a full-throated statement of the

purpose it discerned:

We must say that the legislature intended to give to
defendants in such cases some protection against unjust raids upon
their treasuries by unscrupulous prosecution of trumped-up,
exaggerated, and stale claims, by requiring a claimant to give
definite information to the city or village against whom it is asserted,
at a time when the matter is fresh, conditions unchanged, and
witnesses thereto and to the accident within reach. It is a just law,
necessary to the protection of the taxpayer, who bears the burden of
unjust judgments. It requires only ordinary knowledge and diligence
on the part of the injured and his counsel, and there is no reason for
relieving them from the requirements of this statute that would not
be applicable to any other statute of limitation.

It is also useful to consider as possible legislative reasons for the notice

statute the purposes discussed in the consolidated cases of Lisee v Secretary of

State and Howell v Lazaruk, 388 Mich 32; 199 NW2d 188 (1972). In those cases,

while the majority suggested that the purpose of the notice statute was to afford an

opportunity to investigate a claim and to determine the possible liability of the

MVACF, Justices Brennan and Black dissented in part, pointing out additional

reasons, beyond those mentioned by the majority, for requiring notice. These

included allowing time for creating reserves for the Fund, reducing the uncertainty

14

of the extent of future demands, or even to force the claimant to an early choice

regarding how to proceed. Because these apply in the context of the MVACF,

they could also have been in the minds of the Legislature at the time MCL

691.1404 was enacted.

These likely or even possible reasons cited above must be considered as

supplying the rational basis that assures constitutionality, because, as Justice

Cavanagh pointed out in Brown, supra at 362, reciting the venerable rule in such

matters, it is our duty in rational basis cases to find constitutionality if “‘any state

of facts either known or which could reasonably be assumed affords support’” for

the statute. (Citation omitted.) It is the case then that there is unquestionably now,

and there was then, a “rational basis” for finding, even as Justice Riley did earlier,

a rational basis for this statute and the distinctions it draws.

Moreover, common sense counsels that inasmuch as the Legislature is not

even required to provide a defective highway exception to governmental

immunity, it surely has the authority to allow such suits only upon compliance

with rational notice limits. As this Court stated in Moulter:

It being optional with the legislature whether it would confer
upon persons injured a right of action therefor or leave them
remediless, it could attach to the right conferred any limitations it
chose. [155 Mich at 168-169.]

In sum, Moulter and the other cases previously cited were decided in

accordance with the constitution. The notice provision passes constitutional

muster. We reject the hybrid constitutionality of the sort Carver, Hobbs, and

15

Brown engrafted onto our law.9 In reading an “actual prejudice” requirement into

the statute, this Court not only usurped the Legislature’s power but simultaneously

made legislative amendment to make what the Legislature wanted—a notice

provision with no prejudice requirement—impossible. Hobbs and Brown are

remarkable in the annals of judicial usurpation of legislative power because they

not only seized the Legislature’s amendment powers,10 but also made any

9
Justice Cavanagh argues that a minority of courts have made similar rulings. We
acknowledge as much, but note that the vast majority of jurisdictions that have
considered such a constitutional challenge has concluded that notice-of-claim and
statute-of-limitations rules placed on persons bringing tort actions against
governmental entities are rationally related to reasonable legislative purposes and
thus do not violate equal protection. See, e.g., Tammen v San Diego Co, 66 Cal 2d
468; 426 P2d 753; 58 Cal Rptr 249 (1967); Fritz v Regents of Univ of Colorado,
196 Colo 335; 586 P2d 23 (1978); McCann v City of Lake Wales, 144 So 2d 505
(Fla, 1962); Newlan v State, 96 Idaho 711; 535 P2d 1348 (1975); King v Johnson,
47 Ill 2d 247; 265 NE2d 874 (1970); Johnson v Maryland State Police, 331 Md
285; 628 A2d 162 (1993); Campbell v City of Lincoln, 195 Neb 703; 240 NW2d
339 (1976); Espanola Housing Auth v Atencio, 90 NM 787; 568 P2d 1233 (1977);
Herman v Magnuson, 277 NW2d 445 (ND 1979); Reirdon v Wilburton Bd of Ed,
611 P2d 239 (Okla, 1980); James v Southeastern Pennsylvania Transp Auth, 505
Pa 137; 477 A2d 1302 (1984); Budahl v Gordon & David Assoc, 287 NW2d 489
(SD, 1980); City of Waco v Landingham, 138 Tex 156; 157 SW2d 631 (1941);
Sears v Southworth, 563 P2d 192 (Utah, 1977). We agree with the majority rule.
10
As United States Supreme Court Justice John Marshall Harlan stated in
his famous dissent in Plessy v Ferguson, 163 US 537, 558; 16 S Ct 1138; 41 L Ed
256 (1896):
[T]he courts best discharge their duty by executing the will of
the law-making power, constitutionally expressed, leaving the results
of legislation to be dealt with by the people through their
representatives.

In a more recent iteration of the rule, we stated in DiBenedetto v West
Shore Hosp, 461 Mich 394; 405; 605 NW2d 300 (2000), that courts may not
“rewrite the plain statutory language and substitute our own policy decisions for
(continued…)

16

reversing amendment by the Legislature impossible. Nothing can be saved from

Hobbs and Brown because the analysis they employ is deeply flawed.11

According, we must next consider if considerations of stare decisis should cause

us to retain this poorly reasoned precedent.

IV. STARE DECISIS

In determining whether to overrule a prior case, this Court first considers

whether the earlier case was wrongly decided. Robinson v Detroit, 462 Mich 439,

463-468; 613 NW2d 307 (2000).12 As we have previously explained, we are

(…continued)

those already made by the Legislature.” Accord Lansing Mayor v Pub Service

Comm, 470 Mich 154, 161; 680 NW2d 840 (2004). In short, this Court had no

authority to add words or conditions to the statute.

11
In her dissent Justice Kelly repeats the error of the Hobbs and Brown
courts in concluding that the only rational basis supporting the statute is that which
the Hobbs and Brown courts fixed upon: prejudice to the government tortfeasor.
One can only ask, why is this the only allowable rational basis? Must we not use,
as the majority has here, the rule that Justice Kelly herself used in Harvey v
Michigan, that a court must find constitutionality if any state of facts either known
or which can reasonably be assumed affords support? Because there are such
reasons, beyond what the Hobbs and Brown courts themselves found, as discussed
in this opinion, why does this rule not apply here? Indeed, if as Justice Kelly
apparently concludes, it does not, what is her test for when the rule is
inapplicable? She gives none. This is not how a court should analyze matters
because it makes future application of the law, should her view prevail, entirely
without predictability. This is a prescription for chaos and injustice.
12
See, also, Halfacre v Paragon Bridge & Steel Co, 368 Mich 366, 377;
118 NW2d 455 (1962) (Courts have the “right and duty to re-examine and re-
examine again, if need be, statutory enactments already judicially construed.”).
(Emphasis added.)

17

persuaded that Hobbs and Brown were wrongly decided.13 Robinson next instructs

that if a case was wrongly decided, the Court should then examine reliance

interests: whether the prior decision defies “practical workability”; whether the

prior decision has become so embedded, so fundamental to everyone’s

expectations that to change it would produce not just readjustments, but practical

real-world dislocations; whether changes in the law or facts no longer justify the

prior decision; and whether the prior decision misread or misconstrued a statute.

Robinson, supra at 464-467.

We are convinced, as previously set forth, that the prior decisions did in

fact misread and misconstrue the statute and left it less workable, assuming that

the goal was to provide notice so as to facilitate investigation, claims resolution,

and rapid road repairs, as well as the creation of reserves and the like for self­

insured governmental entities. When prompt notice is not provided, the entire

legislative scheme is accordingly less workable.

As for reliance, we find insufficient reliance interests to prevent us from

overruling Hobbs and Brown. When one focuses on the practical effect of Hobbs

13
Justice Kelly argues that the principle of stare decisis should prevent this
Court from overruling Hobbs and Brown. We note that Justice Kelly’s fealty to
precedent is quite selective. She shows no concern that Hobbs disregarded 75
years of precedent that had upheld governmental immunity notice provisions.
Indeed, each of the criticisms Justice Kelly sends our way is actually more
applicable to the Hobbs Court. If 30 years of precedent should not be lightly
ignored, what of the Hobbs Court ignoring 75 years of precedent? In any event,
we have applied the Robinson stare decisis factors and concluded that they do not
counsel against overruling Hobbs and Brown.

18

and Brown, it becomes quite evident that injured plaintiffs, otherwise able to file

lawsuits, were highly unlikely to have delayed filing their lawsuits for periods

longer than 120 days in reliance on these cases. After all, what plaintiff would

take the chance that the defendant could actually show prejudice after the 120th

day and thus lose his or her cause of action when before that time it would be

irrelevant whether there was prejudice? Accordingly, we doubt that any plaintiff,

because of the inevitable perils such a delay entails, actually decided to not serve

notice within 120 days in reliance on Hobbs and Brown.

Further, while the rule of Hobbs has been uncontradicted for 30 years, any

lawyer following the decisions of this Court for the last seven years would know

that the “text ignoring” approach manifested in the holdings of Hobbs and Brown

has been repudiated repeatedly in the recent past by this Court. Nowhere was this

more forcefully stated than in Nawrocki, supra, itself a governmental immunity

case involving the defective highway exception, where we said that a court is most

strongly justified in overruling precedent when adherence to the precedent would

perpetuate a plainly incorrect interpretation of language in a statute. Nawrocki,

463 Mich at 181.

Robinson also held that any statutory reliance analysis has to be considered

in light of the plain language of the statute. We stated:

Further, it is well to recall in discussing reliance, when
dealing with an area of the law that is statutory . . . , that it is to the
words of the statute itself that a citizen first looks for guidance in
directing his actions. This is the essence of the rule of law: to know
in advance what the rules of society are. Thus, if the words of the

19

 statute are clear, the actor should be able to expect, that is, rely, that
they will be carried out by all in society, including the courts. In fact,
should a court confound those legitimate citizen expectations by
misreading or misconstruing a statute, it is that court itself that has
disrupted the reliance interest. When that happens, a subsequent
court, rather than holding to the distorted reading because of the
doctrine of stare decisis, should overrule the earlier court’s
misconstruction. The reason for this is that the court in distorting the
statute was engaged in a form of judicial usurpation that runs counter
to the bedrock principle of American constitutionalism, i.e., that the
lawmaking power is reposed in the people as reflected in the work of
the Legislature, and, absent a constitutional violation, the courts
have no legitimacy in overruling or nullifying the people’s
representatives. Moreover, not only does such a compromising by a
court of the citizen’s ability to rely on a statute have no
constitutional warrant, it can gain no higher pedigree as later courts
repeat the error. [Robinson, supra at 467-468.]

This language from Robinson fully supports overruling Hobbs and Brown

because this Court in those cases confounded legitimate citizen expectations by

misreading and misconstruing a statute.14 Accordingly, it was this Court in Hobbs

14
We note that Justice Kelly repeats in her partially dissenting opinion the
canard that this Court has overruled cases at an alarming rate. As we most
recently said in Paige v Sterling Hts, supra at 514, the fallacy of these statistical
false alarms was demonstrated in Sington v Chrysler Corp, 467 Mich 144, 166­
170; 648 NW2d 624 (2002), and Mack v Detroit, 467 Mich 186, 211; 649 NW2d
47 (2002). Moreover, an article by Victor E. Schwartz, A critical look at the
jurisprudence of the Michigan Supreme Court, 85 Mich B J 38, 41 (January,
2006), shows the methodological failures of these various “the sky is falling”
arguments.
Justice Kelly claims that a study by Todd C. Berg in Michigan Lawyer’s
Weekly shows that this Court has overruled cases at a rate four times that of
previous courts (41 cases overruling precedent out of 13,923 dispositions between
2000 and 2005—1/3 of one percent—versus 15 cases overruling precedent out of
16,729 dispositions between 1994-1999—1/21 of one percent). Leaving aside
Justice Kelly’s incorrect math, when the actual figures are cited it seems obvious
that during both periods the number of cases that were overruled was miniscule
when compared with the number of dispositions. The difference between 1/21 of
(continued…)

20

(…continued)
one percent and 1/3 of one percent is an inconsequential statistical difference. It
can only be made to look arresting if one stretches for the most alarming way to
describe it. That is what Justice Kelly has done here. We invite scrutiny of the
study by Mr. Berg because it reinforces, we believe, the point we are making.
In further evaluating Justice Kelly’s claim that this Court has overruled
more cases than is usual, we would call attention to the difficulties in relying on
earlier statistics regarding overruled cases. As explained in Devillers v Auto Club
Ins Ass’n, 473 Mich 562, 567 n 6; 702 NW2d 539 (2005), it was not uncommon
for this Court in earlier years to fail to state that cases it was clearly overruling
were being overruled. A good example of this practice is set forth in Mudel v
Great Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000). In
Mudel this Court expressly overruled Goff v Bil-Mar Foods, Inc (After Remand),
454 Mich 507; 563 NW2d 214 (1997), which was decided five years after Holden
v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992). But, Goff had failed to
acknowledge that it was overruling Holden. As we stated in Mudel: “Therefore,
unlike the unstated but effective overruling of Holden in Goff, we expressly
overrule Goff, insofar as it contradicts the statutory language and departs from our
decision in Holden.” 462 Mich at 708. Indeed, Justice Kelly would apparently
continue with this approach of not clearly identifying overruled cases. She refers
to numerous cases in this Court that rejected the doctrine of legislative
acquiescence as “rogue” decisions. Post at 15 n 17. But, then she asserts that she
would not be overruling such cases if she could persuade three other justices to
approve of the discredited legislative acquiescence doctrine. Again, this illustrates
the fact that Justice Kelly would not include cases she actually overruled in the list
of cases she admitted overruling.
Next, Justice Kelly, to discredit the above analysis, indicates that she would
not count cases where we denied leave to appeal in calculating how frequently
cases were overruled. Why not? Each case presumably relied on earlier
precedent, and when this Court denies leave to appeal, it leaves a precedent intact.
See further Justice Markman’s concurrence, which provides an excellent and even
more thorough response to Justice Kelly’s meritless claim.
Finally, in response to Justice Markman’s challenge to give her standards
for overruling cases, she responds not with an approach, but with a puzzling
indication that she would rely on interpretive tools such as the absurd results rule.
Whatever the merits of those rules, and they have been discussed at length by this
Court in recent years, they have nothing to do with determining when precedent
should be overruled. In short, her response is a response to a question not asked.
The reader need not be without resources in this situation because Justice Kelly
has already tendered an answer. In Sington v Chrysler Corp, 467 Mich 144, 184;
(continued…)

21

and Brown that disrupted the citizens’ reliance interest that statutes mean what

they say. We refuse to perpetuate the error of Hobbs and Brown.15

MCL 691.1404 is straightforward, clear, unambiguous, and not

constitutionally suspect. Accordingly, we conclude that it must be enforced as

written. As this Court stated in Robertson v DaimlerChrysler Corp, 465 Mich

732, 748; 641 NW2d 567 (2002), “The Legislature is presumed to have intended

the meaning it has plainly expressed, and if the expressed language is clear,

judicial construction is not permitted and the statute must be enforced as written.”

Thus, the statute requires notice to be given as directed, and notice is adequate if it

is served within 120 days and otherwise complies with the requirements of the

statute, i.e., it specifies the exact location and nature of the defect, the injury

sustained, and the names of the witnesses known at the time by the claimant, no

matter how much prejudice is actually suffered.16 Conversely, the notice provision

(…continued)

184 n 9; 648 NW2d 624 (2002), she said she would not reexamine precedent

unless the prior decision was “utterly nonsensical,” or reflected a “drastic error.”

We discussed the unworkability of this approach in our response to her in Sington.

15
In dissent Justice Kelly derides our effort to properly construe the statute
after previous judicial deconstructions as “second-guessing.” Does she really
think that we comply with the oaths we took when we do not follow the clear
directions of the Legislature in statutes and when we ignore past cases adhering to
those directions? We do not. We believe the most defensible approach is to
overrule cases when the criteria set forth in Robinson v Detroit are satisfied.
16
Indeed, in Brown the road commission was prejudiced because it,
unaware that there had been an accident, repaved the road where the accident
happened before the 120-day notice period expired. This made no difference in
the ability of the plaintiff to proceed with his lawsuit. 452 Mich at 360 n 11.

22

is not satisfied if notice is served more than 120 days after the accident even if

there is no prejudice.

V. RETROACTIVITY

The final question is whether our decision to overrule Hobbs and Brown

should have retroactive effect. As this Court held in Pohutski v City of Allen Park,

465 Mich 675, 695-696; 641 NW2d 219 (2002):

Although the general rule is that judicial decisions are given
full retroactive effect, Hyde v Univ of Michigan Bd of Regents, 426
Mich 223, 240; 393 NW2d 847 (1986), a more flexible approach is
warranted where injustice might result from full retroactivity.
Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997).
For example, a holding that overrules settled precedent may properly
be limited to prospective application.

The threshold question is whether “the decision clearly established a new

principle of law.” Id. at 696. If so, the factors to be considered in determining

whether the general rule should not be followed are

(1) the purpose to be served by the new rule, (2) the extent of
reliance on the old rule, and (3) the effect of retroactivity on the
administration of justice. [Id.]

In Pohutski, this Court gave prospective effect to its decision overruling

Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988).

The Court expressed its concern that the “trespass-nuisance” exception to

governmental immunity recognized in Hadfield had induced reliance by both

governmental agencies and the public, insofar as “municipalities have been

encouraged to purchase insurance, while homeowners have been discouraged from

doing the same.” Pohutski, 465 Mich at 697. Further, the Court noted that the

23

then-recently enacted MCL 691.1407, which provided for recovery for a “sewage

disposal system event,” was prospective only and, therefore, would leave an entire

class of homeowners without a remedy. Given these unique considerations, the

Court applied Pohutski prospectively.

However, in Wayne Co v Hathcock, 471 Mich 445; 684 NW2d 765 (2004),

this Court overruled Poletown Neighborhood Council v Detroit, 410 Mich 616;

304 NW2d 455 (1981), and applied the decision retroactively. The Court

explained that “[o]ur decision today does not announce a new rule of law, but

rather returns our law to that which existed before Poletown and which has been

mandated by our Constitution since it took effect in 1963.” Hathcock, 471 Mich at

484.

Likewise, a decision overruling Hobbs and Brown will return our law to

that which existed before Hobbs and which was mandated by MCL 691.1404(1).

In Hathcock, supra at 484-485 n 98, this Court further explained its determination

to apply the decision retroactively:

First, this case presents none of the exigent circumstances that
warranted the “extreme measure” of prospective application in
Pohutski . . . . Second, there is a serious question as to whether it is
constitutionally legitimate for this Court to render purely prospective
opinions, as such rulings are, in essence, advisory opinions.

Likewise, in the instant case, there exist no exigent circumstances that

would warrant the “extreme measure” of prospective application. Unlike in

Pohutski, no one was adversely positioned, we believe, in reliance on Hobbs and

Brown.

24

 In Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005),

this Court overruled Lewis v Detroit Automobile Inter-Ins Exch, 426 Mich 93; 393

NW2d 167 (1986), and also applied the decision retroactively. This Court

explained:

As we reaffirmed recently in Hathcock, prospective-only
application of our decisions is generally “‘limited to decisions which
overrule clear and uncontradicted case law.’” Lewis is an anomaly
that, for the first time, engrafted onto the text of [MCL 500.3145(1)]
a tolling clause that has absolutely no basis in the text of the statute.
Lewis itself rests upon case law that consciously and inexplicably
departed from decades of precedent holding that contractual and
statutory terms relating to insurance are to be enforced according to
their plain and unambiguous terms.

Thus, Lewis cannot be deemed a “clear and uncontradicted”
decision that might call for prospective application of our decision in
the present case. Much like Hathcock, our decision here is not a
declaration of a new rule, but a return to an earlier rule and a
vindication of controlling legal authority—here, the “one-year-back”
limitation of MCL 500.3145(1). [Devillers, 473 Mich at 587
(citations and emphasis omitted).]

Likewise, in the instant case, Reich was an anomaly that, for the first time,

held that notice requirements violated the constitution. Carver, decided one year

later, made the contradictory conclusion that such notice requirements did not

violate the constitution, but it still invented an “actual prejudice” requirement out

of whole cloth. Hobbs and Brown adopted the “actual prejudice” requirement

from Carver, despite the clear lack of that requirement in the statute itself. As in

Devillers and Hathcock, “our decision here is not a declaration of a new rule, but a

return to an earlier rule and a vindication of controlling legal authority”—

25

enforcing the language of MCL 691.1404(1).17 Further, overruling precedent that

usurped legislative power restores legitimacy to the law.

Finally, like the Ridgeway Court almost 100 years ago, we are mindful of

the fact that the public fisc is at risk in these cases.18 The decision to expand the

class of those entitled to seek recovery against the government should be in the

hands of the Legislature. This Court does not have the authority to waive the

government’s immunity from suit, and tax dollars should only be at risk when a

plaintiff satisfies all the prerequisites, including a notice provision, set by the

Legislature for one of the exceptions to governmental immunity.

Accordingly, we determine that our decision today to overrule Hobbs and

Brown shall be given full retroactive effect because this decision simply restores

due constitutional deference to the language of the statute.

VI. CONCLUSION

Having overruled Hobbs and Brown with full retroactivity, we reverse the

order of the trial court and the judgment of the Court of Appeals and remand the

17
Thus, we reject Justice Kelly’s claim that our decision today is
tantamount to a new rule of law.
18
As we noted in Mack v Detroit, 467 Mich at 203 n 18, a central purpose
of governmental immunity is to prevent a drain on the state’s resources by
avoiding even the expense of having to contest on the merits any claim barred by
governmental immunity. Accord Ridgeway v Escanaba, 154 Mich at 73.

26

case to the trial court for the entry of an order dismissing plaintiff’s complaint.

Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

27

 STATE OF MICHIGAN

SUPREME COURT

JOANNE ROWLAND, also known as
JOAN ROWLAND,

Plaintiff-Appellee,

v No. 130379

WASHTENAW COUNTY ROAD
COMMISSION,

Defendant-Appellant.

MARKMAN, J. (concurring).

Justice Kelly has asserted once more her view that the majority is

insufficiently respectful of the precedents of this Court.1 I believe it is important

to respond. To assist in this, I have attached a chart that summarizes the 40 cases

during the past seven terms in which a precedent of this Court has been overruled

1
This opinion constitutes my exclusive response to Justice Kelly’s
criticisms concerning this Court’s approach to precedent for I do not join footnotes
8 and 14 of the majority opinion. In her criticisms, Justice Kelly claims that the
majority overturns precedent at an “alarming and unprecedented rate,” the
majority “exhibits disrespect for stare decisis,” the majority is “intent on
overturning precedent,” the majority has declared itself “more capable of
understanding the law . . . than any justice who sat before,” the majority has
“ordained itself master [of a] higher law,” the majority “damages the integrity of
the judicial process,” and the majority is “alarmingly activist.”
and in which the Court majority has been aligned against Justice Kelly.2 From this

chart and from the cases that are referenced therein, I draw the following

observations concerning precedent and the current Court:

(1) The dispute between the Court majority and Justice Kelly in these 40

cases is less about attitudes toward precedent than about the substantive merits of

the opinions being overruled. That is, Justice Kelly agrees with the opinions being

overruled and the justices in the majority do not. There is no evidence in these 40

cases that Justice Kelly, out of regard for stare decisis, has ever sustained a

precedent with which she disagrees, merely that Justice Kelly agrees with these

precedents.3 The majority, on the other hand, for reasons summarized in the

2
In three other cases during this same period, the Court overruled
precedent, but with a different alignment of justices. People v Starks, 473 Mich
227; 701 NW2d 136 (2005); People v Lively, 470 Mich 248; 680 NW2d 878
(2004); People v Moore, 470 Mich 56; 679 NW2d 41 (2004). These 40 cases
occurred against a backdrop of 543 published opinions issued during this same
period and more than 18,500 dispositions of applications for leave to appeal.
3
Justice Kelly asserts that I imply that she would “not have the same
respect for stare decisis if majority control of the Court switched” during her
tenure. Post at 11 n 12. She further asserts that I suggest that she has “refused to
overturn precedent merely because [she agrees with it].” Post at 18 n 20. Neither
of these assertions is accurate. Rather, what I state is that there is simply no
evidence one way or the other that Justice Kelly is any more averse to overruling
precedent than the majority; there is merely evidence that Justice Kelly is more
approving of the precedents that have been overruled by this Court than the
majority. A justice’s perspective on stare decisis is not evidenced by her
willingness to maintain precedents with which she agrees, but by her willingness
to maintain precedents with which she disagrees. As the most recent example of
Justice Kelly’s willingness to reverse precedents with she actually disagrees, see
her opinion in Haynes v Neshawat, 477 Mich 29; 729 NW2d 488 (2007),
(continued…)

2

chart,4 believes that these 40 cases each overrules a precedent of this Court in

which the clear language of the law was misconstrued, or in which the policy

preferences of the justices were substituted for those of the lawmaker. Thus, the

differences among the justices reflected in these cases are focused less on the role

of precedent than on the role of the judge in interpreting the law.

(2) Moreover, it is noteworthy that the present majority, over Justice

Kelly’s dissent, issued the first-ever opinion of this Court that identified a clear

standard for determining when a wrongly decided precedent warrants overruling,

and recognized that a variety of considerations, including individual reliance

interests and the extent to which a past decision has become embedded in the legal

fabric, must be evaluated.5 In anticipation of the day when her own judicial

philosophy once again prevails in this Court and she is confronted with the 40

precedents of the present majority, Justice Kelly would do well to share her own

(…continued)

overruling Kassab v Michigan Basic Prop Ins Assn, 441 Mich 433; 491 NW2d

545 (1992).

4
The summaries obviously cannot do full justice to the issues involved in
these cases. These are designed simply to identify the essential issue in
controversy in these 40 cases.
5
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).

3

standards concerning when she would or would not overrule such obviously

distasteful precedents.6

(3) Perhaps the most significant point of the chart is that no meaningful

discussion of a court’s attitude toward precedent can be based solely on an

arithmetical analysis in which raw numbers of overrulings are simply counted.

Such an analysis obscures that not all precedents are built alike, that some are

better reasoned than others, that some are grounded in the exercise of discretionary

judgments and others in the interpretation of plain language, that some are

thorough in their analyses and others superficial. The chart demonstrates that the

overrulings of precedent occurring during the past seven terms have

overwhelmingly come in cases involving what the justices in the majority view as

the misinterpretation of straightforward words and phrases in statutes and

contracts, in which words that were not there were read into the law or words that

were there were read out of the law.7 Where such misinterpretation occurs, not

6
In response to this inquiry, Justice Kelly now posits a standard that would
assess whether a precedent is “‘free from absurdity, not mischievous in practice,
and consistent with one another.’” Post at 8 n 8 (citation omitted). While at least
this is a standard of sorts, it is hard to imagine a standard more deferential to
judges and less deferential to the law.
7
The instant case illustrates this proposition well for Justice Kelly, unlike
the justices in the majority, would effectively engraft onto MCL 691.1404
language upholding its 120-day notice requirement only if there was “prejudice
caused to the government by the failure to supply notice within such time.” Thus,
the 120-day notice requirement would sometimes mean what it says and would
sometimes not. Whatever the policy merits of Justice Kelly’s amendments from
(continued…)

4

only does this Court disregard its duty to interpret the law, eroding the

constitutional separation of powers in the process, the Court also overturns

compromises made in the legislative process, second-guesses judgments of the

lawmaker, and renders the law increasingly arbitrary and unpredictable.

(4) The chart also makes clear that the present court majority has been

disciplined in stating expressly when a precedent has been overruled. The

majority has never attempted to obscure when a precedent was overruled or to

minimize the number of such precedents by dubious “distinguishings” of prior

caselaw. Rather, it has been forthright in identifying and critiquing precedents that

were viewed as wrongly decided and warranting overruling. As the chart

demonstrates, on a significant number of past occasions, the Court left intact

precedents that were inconsistent with new decisions, essentially allowing future

litigants to choose among inconsistent precedents as in columns A and B of a

Chinese restaurant menu. For this reason in particular, while it may well be that

the present majority has overruled more precedents than its predecessors during

some selected equivalent period, this cannot be stated with confidence by Justice

Kelly or by anyone else for it has not been demonstrated.8

(…continued)

the bench, such language nowhere appears within the actual statute enacted by the

Legislature.

8
Justice Kelly identifies 61 overruled precedents during the years in
question, rather than the 40 (or 43) we identify. This is because, in several
instances, she treats as multiple overrulings an opinion overruling a single
(continued…)

5

 (5) The debate in which Justice Kelly wishes to participate is one in which

an overruling of precedent, any overruling of precedent, is a “bad” thing and is to

be deplored. She is less interested in the far more significant and nuanced debate

of when precedents ought to be sustained and when they ought not to be. How

does a justice thoughtfully apply the standards set forth in Robinson v Detroit, 462

Mich 439; 613 NW2d 307 (2000)? How does a justice balance the need to respect

precedents with his or her oath in support of the United States and Michigan

constitutions? When does a justice weigh his or her obligation to follow the

opinions of his or her predecessors with his or her obligation to get the law

“right”?9 There are no simple or pat answers to these questions. The people of

Michigan, whose law it is that this Court upholds, may read the decisions

(…continued)
proposition of law that has been reiterated by the Court. Thus, for example, a
decision to overrule the standard for granting summary judgment-- a standard
articulated in countless opinions of this Court-- might count as an overruling of
each of these opinions.
9
Justice Kelly makes light of what she describes as this Court’s belief in its
“solemn duty” to “rewrite Michigan case law to ‘get the law right.’” Post at 10 n
10. Although as Robinson, supra at 463-468 makes clear, a variety of factors must
be considered in evaluating whether to overrule a precedent, I do confess to
thinking that “getting the law right” is a rather significant part of this Court’s
constitutional responsibilities. For Justice Kelly, however, a misreading of the law
is apparently acceptable as long as it is “free from absurdity.” A rather tolerant
standard. I would prefer to hold this Court to a higher standard in interpreting the
will of the people and their elected representatives. See also Robertson v
DaimlerChrysler Corp, 465 Mich 732, 756; 641 NW2d 567 (2002), observing that
a legal system in which “the public may read the plain words of its law and have
confidence that such words mean what they say” serves many of the same goals as
stare decisis.

6

contained in this chart and determine for themselves whether Justice Kelly or the

justices in the majority have served better as stewards of the judicial power under

the Michigan Constitution.

Stephen J. Markman

7

 Which
Case Which in Turn Overruled Case Holding
Overruled
1 Paige v City of Sterling Hagerman Hagerman failed to follow Stoll The language “the proximate cause,” MCL
Hts, 476 Mich 495; Group v v Laubengayer, 174 Mich 701; 418.375(2), means “the” proximate cause, not “a”
720 NW2d 219 (2006) Gencorp 140 NW 532 (1913). proximate cause.
Automotive, 457
Mich 720; 579
NW2d 347
(1998)
2 People v Anstey, 476 People v Koval, Dismissal is not the proper remedy for a violation
Mich 436; 719 NW2d 371 Mich 453; of the statutory right to an independent chemical
579 (2006) 124 NW2d 274 test because MCL 257.625a(6) does not specify
(1963) such a remedy.
3 Cameron v Auto Club Geiger v Detroit Lambert overruled Holland v The language “the claimant may not recover
Ins Ass’n, 476 Mich Automobile Eaton, 373 Mich 34; 127 NW2d benefits for any portion of the loss incurred more
55; 718 NW2d 784 Inter-Ins Exch, 892 (1964). than 1 year before the date on which the action
(2006) 114 Mich App commenced,” MCL 500.3145(1), means that a
283; 318 NW2d claimant may only recover for damages suffered
833 (1982); within 1 year of filing suit.
Geiger relied on
Lambert v
Calhoun, 394
Mich 179; 229
NW2d 332
(1979)
4 Grimes v Dep’t of Gregg v State Gregg ignored Scheurman v The language “improved portion of the highway
Transportation, 475 Highway Dep’t, Dep’t of Transportation, 434 designed for vehicular traffic,” MCL 691.1402(1),
Mich 72; 715 NW2d 435 Mich 307; Mich 619; 456 NW2d 66 does not include the shoulder because a shoulder is
 275 (2006) 458 NW2d 619 (1990), and failed to follow Roy not designed for vehicular traffic.
(1990) v Dep’t of Transportation, 428
Mich 330; 408 NW2d 783
(1987), and Goodrich v
Kalamazoo Co, 304 Mich 442;
8 NW2d 130 (1943).
5 Joliet v Pitoniak, 475 Jacobson v Jacobson failed to follow The language “the claim accrues at the time the
Mich 30; 715 NW2d Parda Fed Champion v Nationwide wrong upon which the claim is based was done
60 (2006) Credit Union, Security, Inc, 450 Mich 702; regardless of the time when damage results,” MCL
457 Mich 318; 545 NW2d 596 (1996). 600.5827, means that a claim for a violation of the
577 NW2d 81 Civil Rights Act accrues on the actual date the
(1998) alleged discriminatory acts occur.
6 People v Hawthorne, People v Jones, The language “[n]o judgment or verdict shall be set
474 Mich 174; 713 395 Mich 379; aside or reversed or a new trial be granted by any
NW2d 724 (2006) 236 NW2d 461 court of this state in any criminal case, on the
(1975); People v ground of misdirection of the jury . . . unless . . . it
Lester, 406 shall affirmatively appear that the error complained
Mich 252; 277 of has resulted in a miscarriage of justice,” MCL
NW2d 633 769.26, means that a trial court’s failure to instruct
(1979), and their on the defense of accident does not require
progeny automatic reversal of a defendant’s conviction.

7 Devillers v Auto Club Lewis v Detroit Lewis failed to follow The language “the claimant may not recover
Ins Ass’n, 473 Mich Automobile Dahrooge v Rochester-German benefits for any portion of the loss incurred more
562; 702 NW2d 539 Inter-Ins Exch, Ins Co, 177 Mich 442; 143 NW than 1 year before the date on which the action
(2005) 426 Mich 93; 608 (1913). commenced,” MCL 500.3145(1), means that a
393 NW2d 167 plaintiff may only recover for damages suffered
(1986) within 1 year of filing suit.
8 Rory v Continental Ins Tom Thomas Tom Thomas failed to follow The language “a claim or suit must be brought
Co, 473 Mich 457; 703 Org, Inc v Dahrooge v Rochester-German within 1 year from the date of the accident” means
NW2d 23 (2005) Reliance Ins Co, Ins Co, 177 Mich 442; 143 NW that a claim or suit must be brought within 1 year
396 Mich 588; 608 (1913); McIntyre v from the date of the accident.
242 NW2d 396 Michigan State Ins Co, 52 Mich
(1976); Camelot 188; 17 NW 781 (1883); Law v
Excavating Co v New England Mut Accident
St Paul Fire & Ass’n, 94 Mich 266; 53 NW
Marine, 410 1104 (1892); Turner v Fidelity
Mich 118; 301 & Cas Co, 112 Mich 425; 70
NW2d 275 NW 898 (1897); Harris v
(1981); Phoenix Accident & Sick
Herweyer v Benefit Ass’n, 149 Mich 285;
Clark Hwy 112 NW 935 (1907); Friedberg
Services, Inc, v Ins Co of North America, 257
455 Mich 14; Mich 291; 241 NW 138 (1932);
564 NW2d 857 Hall v Metropolitan Life Ins Co,
(1997) 274 Mich 196; 264 NW 340
(1936); Barza v Metropolitan
Life Ins Co, 281 Mich 532; 275
NW 238 (1937); and Bashans v
Metro Mut Ins Co, 369 Mich
141; 119 NW2d 622 (1963).

Herweyer implicitly overruled
State Farm Mut Automobile Ins
 Co v Ruuska, 412 Mich 335;
314 NW2d 184 (1982).
9 People v Bell, 473 People v Miller, Dismissal is not the proper remedy for a violation
Mich 275; 702 NW2d 411 Mich 321; of the statutory right to a peremptory challenge
128 (2005) 307 NW2d 335 because MCL 768.13 does not specify such a
(1981); People v remedy.
Schmitz, 231
Mich App 521;
586 NW2d 766
(1998)
10 Garg v Macomb Sumner v The language “[t]he claim accrues at the time the
Community Mental Goodyear Tire wrong upon which the claim is based was done
Health, 472 Mich 263; & Rubber Co, regardless of the time when damage results,” MCL
696 NW2d 646 (2005) 427 Mich 505; 600.5827, as applied to the three-year period of
398 NW2d 368 limitations in MCL 600.5805(10), means that a
(1986) plaintiff must commence an action within three
years of a claimed violation of the Civil Rights
Act.
11 Echelon Homes, LLC v People v The ability of a person to collect trebled damages
Carter Lumber Co, 472 Tantenella, 212 from “[a]nother person’s buying, receiving,
Mich 192; 694 NW2d Mich 614; 180 possessing, concealing, or aiding in the
544 (2005) NW 474 (1920) concealment of stolen, embezzled, or converted
property when the person buying, receiving,
possessing, concealing, or aiding in the
concealment of stolen, embezzled, or converted
property knew that the property was stolen,
embezzled, or converted,” MCL 600.2919a, means
that the buyer must have actual knowledge that the
 property in question was “stolen, embezzled, or
converted.”
12 People v Davis, 472 People v Cooper failed to follow Bartkus An “offense” is a violation of the law of a
Mich 156; 695 NW2d Cooper, 398 v Illinois, 359 US 121; 79 S Ct sovereign. Where a defendant by the commission
45 (2005) Mich 450; 676; 3 L Ed 2d 684 (1959). of one act violates the law of two sovereigns, the
NW2d 247
866 language “[n]o person shall be subject for the same
(1976) offense to be twice put in jeopardy,” Const 1963,
art 1, § 15, does not prohibit two separate
sovereigns from prosecuting a defendant for that
act.
13 People v Young, 472 People v The language “[t]he court shall instruct the jury as
Mich 130; 693 NW2d McCoy, 392 to the law applicable to the case . . . as in his
801 (2005) Mich 231; opinion the interests of justice may require,” MCL
NW2d 220
456 768.29, means that the trial court has discretion to
(1974) give a cautionary accomplice instruction, but is not
mandated to do so.
14 Neal v Wilkes, 470 Wymer v The language “a cause of action shall not arise for
Mich 661; 685 NW2d Holmes, 429 injuries to a person who is on the land of another . .
648 (2004) Mich 66; 412 . for the purpose of . . . outdoor recreational use . . .
NW2d 213 against the owner . . . of the land . . . ,” MCL
(1987) 324.73301(1), applies to all land used for outdoor
recreational use, not just “large tracts of
undeveloped land.”

15 People v Hickman, 470 People v The language “[i]n every criminal prosecution, the
Mich 602; 684 NW2d Anderson, 389 accused shall have the right . . . to have the
267 (2004) Mich 155; assistance of counsel for his or her defense,” Const
205
 NW2d 461 1963, art 1, § 20, means that the right to counsel
(1973) attaches only to corporeal identifications conducted
at or after the initiation of adversarial judicial
proceedings.
16 Waltz v Wyse, 469 Omelenchuk v The language “[t]he statutes of limitations or
Mich 642; 677 NW2d City of Warren, repose are tolled,” MCL 600.5856, does not toll the
813 (2004) 461 Mich 567; additional period permitted under MCL 600.5852
609 NW2d 177 for filing wrongful death actions because it is not a
(2000) statute of limitations or repose.

17 People v Nutt, 469 People v White, White expressly overruled The language prohibiting successive prosecutions
Mich 565; 677 NW2d 390 Mich 245; People v Grimmett, 388 Mich of the “same offense,” Const 1963, art 1, § 15,
1 (2004) 212 NW2d 222 590, 607; 202 NW2d 278 means that successive prosecutions are prohibited
(1973) (1972); People v Parrow, 80 only where the charged offenses share identical
Mich 567; 45 NW 514 (1890); elements.
and People v Ochotski, 115
Mich 601; 73 NW 899 (1898).
18 Rakestraw v Gen Carter v Gen The language “personal injury arising out of and in
Dynamics Land Motors Corp, the course of employment,” MCL 418.301(1),
Systems, Inc, 469 Mich 361 Mich 577; means that a claimant must establish both an injury
220; 666 NW2d 199 106 NW2d 105 “arising out of” his or her employment and that any
(2003) (1960) symptom, such as pain, complained of by the
claimant must be causally linked to such injury,
and, thus, where a claimant claims to have suffered
an injury whose symptoms are consistent with a
preexisting condition, he or she must establish the
existence of a work-related injury that extends
 beyond the manifestation of symptoms of the
underlying preexisting condition.
19 Wilkie v Auto-Owners Powers v Powers failed to follow Raska v The language “total limits of all bodily injury
Ins Co, 469 Mich 41; Detroit Farm Bureau Mut Ins Co, 412 liability bonds and policies available to the owner
664 NW2d 776 (2003) Automobile Mich 355; 314 NW2d 440 or operator of the underinsured automobile” means
Inter-Ins Exch, (1982). the total amount available to the owner, not the
427 Mich 602; amount actually received by the claimant.
398 NW2d 411 Vanguard failed to follow
(1986); Powers and Michigan
Vanguard Ins MillersMut Ins Co v Bronson
Co v Clarke, Plating Co, 445 Mich 558; 519
438 Mich 463; NW2d 864 (1994).
475 NW2d 48
(1991)
20 Jones v Dep’t of In re Lane, 377 The relinquishment of the parole board’s authority
Corrections, 468 Mich Mich 695; 387 to revoke parole is not the proper remedy for a
646; 664 NW2d 717 NW2d 912 violation of the statutory right to a hearing within
(2003) (1966); Stewart 45 days after the parolee is “returned or is available
v Dep’t of for return” to prison for a parole violation because
Corrections, MCL 791.240a(1) does not specify such a remedy.
382 Mich 474;
170 NW2d 16
(1969)

21 People v Hawkins, 468 People v An application of the exclusionary rule is not the
Mich 488; 664 NW2d Sherbine, 421 proper remedy for the seizure of evidence based on
717 (2003) Mich 502; 364 either a search warrant issued in violation of MCL
NW2d 658 780.653(b) or a bench warrant issued in violation
 (1984); People v MCR 3.606(A) because neither the statute nor the
Sloan, 450 Mich court rule contemplates such a remedy.
160; 538 NW2d
380 (1995)
22 Haynie v Michigan, Koester v Novi, The language “unwelcome sexual advances,
468 Mich 302; 664 458 Mich 1; 580 requests for favors, and other verbal or physical
NW2d 129 (2003) NW2d 835 conduct of a sexual nature,” MCL 37. 2103(i),
(1998) means that conduct or communication that is
gender-based but not sexual in nature does not
constitute “sexual harassment” under the Civil
Rights Act.
23 Rednour v Hastings Nickerson v Nickerson predated the no-fault The language “in, upon, getting in, on, out or off” a
Mut Ins Co, 468 Mich Citizens Mut Ins act. vehicle does not include mere physical contact with
241; 661 NW2d 562 Co, 393 Mich a vehicle.
(2003) 324; 224 NW2d
896 (1975)
24 Taylor v Smithkline Dearborn MCL 600.2946(5), which states that a drug is not
Beecham Corp, 468 Independent, Inc “defective or unreasonably dangerous” if “the drug
Mich 1; 658 NW2d v Dearborn, 331 was approved for safety and efficacy by the United
127 (2003) Mich 447; 49 States food and drug administration (FDA), and the
NW2d 370 drug and its labeling were in compliance with the
(1951) United States food and drug administration’s
approval at the time the drug left the control of the
manufacturer or seller,” does not improperly
delegate the legislative power to a federal agency
because the FDA’s determination regarding the
safety and efficacy of drugs has independent
significance to, and is made independently of any
 consideration of, the impact of Michigan tort law.

25 Mack v Detroit, McCummings v McCummings overruled Hyde v The language “[e]xcept as otherwise provided in
467 Mich 186; 649 Hurley Med Ctr, Univ of Michigan Bd of [the governmental tort liability] act, a
NW2d 47 (2002) 433 Mich 404; Regents, 426 Mich 223; 393 governmental agency is immune from tort liability
446 NW2d 114 NW2d 847 (1986), and if the governmental agency is engaged in the
(1989) McCann v Dep’t of Mental exercise or discharge of a governmental function,”
Health, 398 Mich 65; 247 MCL 691.1407(1), means that because the
NW2d 52 (1976). governmental tort liability act does not include a
sexual orientation discrimination exception to
governmental immunity, the government is
immune from tort liability for claims of sexual
orientation discrimination.

26 Sington v Chrysler Haske v Haske overruled Rea v Regency The definition of “disability” in MCL 418.301(4)
Corp, 467 Mich 144; Transport Olds/Mazda/Volvo, 450 Mich as “a limitation of an employee’s wage earning
648 NW2d 624 (2002) Leasing Inc, 455 1201 (1995). capacity in work suitable to his or her
Mich 628; 566 qualifications and training resulting from a
NW2d 896 personal injury or work related disease” means that
(1997) a workers’ compensation magistrate must
determine both that the claimant suffered a work­
related injury and that the injury has actually
resulted in a loss of wage-earning capacity in work
suitable to the employee’s training and
qualifications in the ordinary job market.
27 People v Petit, 466 People v Berry, Berry interpreted the former The language “the court must, on the record . . .
Mich 624; 648 NW2d 409 Mich 774; GCR 1963, 785.8, which differs give the defendant . . . an opportunity to advise the
193 (2002) 298 NW2d 434 from the current MCR court of any circumstances they believe the court
(1980) 6.425(D)(2)(c). should consider in imposing sentence,” MCR
6.425(D)(2)(c), means that the court must give the
defendant an “opportunity” to address the court
before sentence is imposed; it does not mean that
the court must specifically ask the defendant
whether he or she has anything to say on his or her
behalf.
28 People v Hardiman, People v Atley, Under MRE 401, evidence is relevant if it has “any
466 Mich 417; 646 392 Mich 298; tendency to make the existence of any fact that is
NW2d 158 (2002) 220 NW2d 465 of consequence to the determination of the action
(1974). more probable or less probable than it would be
without the evidence,” and, thus, so long as
evidence is relevant and admissible, it does not
matter that the evidence gives rise to multiple
inferences or that an inference gives rise to further
inferences.
29 People v Cornell, 466 People v Jones, Jones and its progeny failed to The language “the jury . . . may find the accused . .
Mich 335; 646 NW2d 395 Mich 379; follow Hanna v People, 19 . guilty of a degree of that offense inferior to that
127 (2002) 236 NW2d 461 Mich 316 (1869). charged in the indictment . . . ,” MCL 768.32(1),
(1975); People v means that a requested instruction on a necessarily
Chamblis, 395 included lesser offense is proper if the charged
Mich 408; 236 greater offense requires the jury to find a disputed
NW2d 473 factual element that is not part of the lesser
(1975); People v included offense and a rational view of the
Jenkins, 395
 Mich 440; 236 evidence would support it.
NW2d 503
(1975); People v
Stephens, 416
Mich 252; 330
NW2d 675
(1982)
30 Koontz v Ameritech, White v An employee who had taken a pension benefit in a
466 Mich 304; 645 McLouth Steel lump sum has “received” a retirement benefit as
NW2d 34 (2002) Products, defined by MCL 421.27(f)(1) and, therefore, the
decided sub statute mandates coordination of the employee’s
nom Corbett v unemployment benefits with his or her pension
Plymouth Twp, benefits.
453 Mich 522;
556 NW2d 478
(1996)
31 Robertson v Gardner v Van The language “[m]ental disabilities shall be
DaimlerChrysler Corp, Buren Pub compensable when arising out of actual events of
465 Mich 732; 641 Schools, 445 employment, not unfounded perceptions thereof,”
NW2d 567 (2002) Mich 23; 517 MCL 418.301(2), means that, in order to recover
NW2d 1 (1994) workers’ compensation benefits, a claimant must
demonstrate both that there has been an actual
employment event leading to the disability and that
the claimant’s perception of such actual
employment event was reasonably grounded in fact
or reality.
32 Pohutski v City of Allen Hadfield v The language “this act does not modify or restrict
Park, 465 Mich 675; Oakland Co the immunity of the state from tort liability as it
 641 NW2d 219 (2002)Drain Comm’r, existed before July 1, 1965,” MCL 691.1407,
430 Mich 139; means that the state, not a municipality, may be
422 NW2d 205 subject to liability under a common-law exception
(1988); to governmental immunity.
Li v Feldt, 434
Mich 584; 456
NW2d 55
(1990)
33 Brown v Genesee Co Green v Dep’t The language “members of the public,” MCL
Bd of Comm’rs, 464 of Corrections, 691.1406, does not include jail inmates who are
Mich 430; 628 NW2d 386 Mich 459; legally compelled to be in jail.
471 (2001) 192 NW2d 491
(1971)
34 MacDonald v PKT, Mason v Royal Mason failed to follow Generally, a merchant has no obligation to
Inc, 464 Mich 322; 628 Dequindre, Inc, Williams v Cunningham Drug anticipate and prevent criminal acts against its
NW2d 33 (2001) 455 Mich 391; Stores, Inc, 429 Mich 495; 418 invitees; rather, a merchant’s only duty is to
566 NW2d 199 NW2d 381 (1988), and Scott v respond reasonably to a specific situation occurring
(1997) Harper Recreation, Inc, 444 on the premises that poses a risk of imminent and
Mich 441; 506 NW2d 857 foreseeable harm to identifiable invitees.
(1993).
35 People v Glass, 464 People v The power granted to this Court under Const 1963,
Mich 266; 627 NW2d Duncan, 388 art 6, § 5, to “establish, modify, amend and
261 (2001) Mich 489; 201 simplify the practice and procedure in all courts of
NW2d 629 this state” does not extend to enacting court rules
(1972) that establish, abrogate, or modify the substantive
law.
36 Nawrocki v Macomb Pick v The language “improved portion of the highway
Pick failed to follow Scheurman
Co Rd Comm, 463 Szymczak, 451 designed for vehicular travel,” MCL 691.1402(1),
v Dep’t of Transportation, 434
Mich 143; 615 NW2d Mich 607; 548 Mich 619; 456 NW2d 66 does not include traffic control devices, such as
702 (2000) NW2d 603 (1990). traffic signs, that are not part of the actual roadbed
(1996) itself.
37 Mudel v Great Atlantic Goff v Bil-Mar Goff implicitly overruled The language “the findings of fact made by the
& Pacific Tea Co, 462 Foods, Inc, 454 Holden v Ford Motor Co, 439 commission acting within its power, in the absence
Mich 691; 614 NW2d Mich 507; 563 Mich 257; 484 NW2d 227 of fraud, shall be conclusive,” MCL 418.861a(14),
607 (2000) NW2d 214 (1992). does not require the judiciary to examine the
(1997); Layman magistrate’s decision to determine whether that
v Newkirk decision is supported by substantial evidence.
Electric Ass’n
Inc, 458 Mich
494; 581 NW2d
244 (1998)
38 Stitt v Holland Preston v Under the common law, an invitee’s status is
Abundant Life, 462 Sleziak, 383 dependent on a visit associated with a “commercial
Mich 591; 614 NW2d Mich 442; 175 purpose” and “mutuality of interest” concerning
88 (2000) NW2d 759 the reason for the visit. Where a person is on
(1970) church premises for purposes other than
“commercial purposes,” he or she is a licensee and
not an invitee.
39 Robinson v Detroit, Fiser v Ann Dedes failed to follow Stoll v The language “the proximate cause,” MCL
462 Mich 439; 613 Arbor, 417 Laubengayer, 174 Mich 701; 691.1405, means “the” proximate cause, not “a”
NW2d 307 (2000) Mich 461; 339 140 NW 532 (1913). proximate cause.
NW2d 413
(1983); Rogers v
Detroit, 457
 Mich 125; 579
NW2d 840
(1998); Dedes v
Asch, 446 Mich
99; 521 NW2d
488 (1994)
40 People v Kazmierczak, People v Taylor, Taylor misconstrued Taylor v The smell of marijuana emanating from a motor
461 Mich 411; 605 454 Mich 580; United States, 286 US 1, 6; 52 vehicle detected by an officer qualified to identify
NW2d 667 (2000) 564 NW2d 24 S Ct 466; 76 L Ed 951 (1932), that odor may establish a “substantial basis” for
(1997) and Johnson v United States, inferring a “fair probability” that the vehicle
333 US 10, 13; 68 S Ct 367; 92 contains marijuana and, therefore, the probable
L Ed 436 (1948). cause necessary to justify a search without a
warrant of that motor vehicle, pursuant to the
motor vehicle exception to the warrant
requirement.

KEY: This chart represents cases decided after January 1, 2000, in which Justice Kelly dissented and in which a majority of
the Court voted to overrule a decision. The reasoning of the Court majority is set forth in highly summary form; the reader
should refer to the opinion as a whole for clarifying detail.
 STATE OF MICHIGAN

SUPREME COURT

JOANNE ROWLAND, also known as
JOAN ROWLAND,

Plaintiff-Appellee,

v No. 130379

WASHTENAW COUNTY ROAD
COMMISSION,

Defendant-Appellant.

WEAVER, J. (concurring in part and dissenting in part).

I agree with Justice Kelly’s well-reasoned opinion concurring in part and

dissenting in part and join parts I and II of her opinion, excluding footnotes 8, 10,

12, and 13.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

JOANNE ROWLAND, also known as
JOAN ROWLAND,

Plaintiff-Appellee,

v No. 130379

WASHTENAW COUNTY ROAD
COMMISSION,

Defendant-Appellant.

KELLY, J. (concurring in part and dissenting in part).

I agree with the majority’s conclusion that defendant was entitled to

summary disposition in this case. But my agreement stops there. The majority

unnecessarily reaches the issue whether defendant must show actual prejudice in

order to bar a claim filed more than 120 days after the date of the injury.

Plaintiff failed to supply defendant with the statutorily required notice

specifying “the exact location and nature of the defect, the injuries sustained, and

the names of the witnesses known at the time by the claimant. MCL 691.1404(1).

Therefore, defendant did not need to show actual prejudice arising from

untimeliness of the notice. The lower courts erred in reaching the actual prejudice

issue, as does the majority in this Court. The matter should be decided only on the

basis of the deficiency of the contents of the notice. By stretching to entertain the

timeliness-of-notice issue and, in doing so, by needlessly overturning two more

precedents, the majority invites renewed accusations of judicial activism.
 I. THE SPECIFIC NOTICE IN THIS CASE WAS INSUFFICIENT

MCL 691.1404(1) provides:

As a condition to any recovery for injuries sustained by
reason of any defective highway, the injured person, within 120 days
from the time the injury occurred, except as otherwise provided in
subsection (3) shall serve a notice on the governmental agency of the
occurrence of the injury and the defect. The notice shall specify the
exact location and nature of the defect, the injury sustained and the
names of the witnesses known at the time by the claimant.

Plaintiff sent the following notice to defendant by certified mail:

Re: My Client Joanne Rowland
Date of Accident: February 6, 2001
Location: Intersection of Jennings and Main
Street Northfield Township
My File No. 4803

Dear Sir/Madam:

Please be advised that I have been retained by Mr. [sic]
Joanne Rowland to investigate and evaluate a claim for personal
injuries that arose out of an incident that occurred on February 6,
2001. This incident occurred at the intersection of Jennings and
Main Street in Northfield Township, County of Washtenaw, State of
Michigan. Please be advised that I will continue my investigation
and if the same is warranted, will pursue a claim for money damages
against the responsible agency for jurisdiction [sic] of this roadway.
If I do not hear from you within the near future, I will be forced to
place this matter into litigation.

To support the notice required by MCL 691.1404(1), plaintiff relies also on a

Freedom of Information Act (FOIA)1 request made by plaintiff’s attorney. It

provides:

Re: My Client Joanne Rowland
Date of Accident: February 6, 2001
Location: Intersection of Jennings and Main
Street Northfield Township

1
MCL 15.231 et seq.

2

 My File No. 4803

Dear Sir/Madam:

Please be advised that I represent Joanne Rowland who was
injured at the above location. Please produce or make available for
viewing and copying, any photo logs or video logs maintained by the
Washtenaw County Road Commission showing the intersection of
Jennings and Main Street.

Please be advised that this letter is being sent to you pursuant
to the Freedom of Information Act.

To be sufficient under MCL 691.1404(1), notice must include four

components: (1) the exact location of the defect; (2) the exact nature of the defect;

(3) the injury sustained; and (4) any witnesses known at the time of the notice.

The above quoted letters do not satisfy all four requirements. Glaringly absent is

the second requirement. Nowhere in the material provided to defendant did

plaintiff indicate the nature of the defect.

Reference to the defect appears in her complaint, where plaintiff claims that

she was injured when she tripped and fell on “broken, uneven, dilapidated,

depressed and/or potholed areas”2 in the roadway and crosswalk. But no such

information is included in either the notice or the FOIA request. In fact, the notice

does not even hint at the conditions alleged in the lawsuit. Nothing found there

gives rise to an inference that plaintiff encountered a pothole, and nothing

indicates that plaintiff’s injuries were caused by broken pavement.

MCL 691.1404(1) specifies that the notice contain an “exact” statement of

the defect. Because plaintiff’s notice contains no reference at all to the defect, it

2
Plaintiff’s Complaint and Demand for Trial by Jury, ¶ 8.

3

certainly does not rise to the level of an exact statement. MCL 691.1404(1)

utilizes the mandatory word “shall” in setting forth the four required components

of notice.3 Plaintiff’s failure to meet one of the four statutory requirements cannot

be excused. Consequently, her claim must be dismissed. I would reverse the Court

of Appeals decision and remand the case to the trial court for entry of summary

disposition in favor of defendant.

II. IT IS UNCESSARY TO REACH HOBBS4 AND BROWN5

The Michigan Supreme Court in Hobbs found that the only purpose of the

statutory notice provision is to avoid actual prejudice arising from a lack of notice

within 120 days. Hobbs v Dep’t of State Hwys, 398 Mich 90, 96; 247 NW2d 754

(1976). Hobbs concluded, “[A]bsent a showing of such prejudice the notice

provision contained in MCLA 691.1404; MSA 3.996(104) is not a bar to claims

filed pursuant to MCLA 691.1402; MSA 3.996(102).” Id. In Brown, the Court

specifically addressed whether Hobbs should be overturned. Brown v Manistee

Co Rd Comm, 452 Mich 354, 356; 550 NW2d 215 (1996). After due

consideration, we retained Hobbs’s interpretation of the 120-day requirement:

We are not convinced that Hobbs was wrongly decided.
Further, we believe that more injury would result from overruling it
than from following it. The rule in Hobbs has been an integral part
of this state’s governmental tort liability scheme for almost two
decades. It should not be lightly discarded. Although the law of
governmental tort liability in this state has changed over the years,
3
Use of the word “shall” sets forth a mandatory directive, whereas use of
the term “may” is permissive. See Oakland Co v Michigan, 456 Mich 144, 154 n
10; 566 NW2d 616 (1997) (opinion by Kelly, J.)
4
Hobbs v Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976).
5
Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996).

4

 the continued validity of the Hobbs rule will not result in injustice.
Rather, a reaffirmance of the rule will maintain the uniformity,
certainty, and stability in the law of this state.

Further, we emphasize that the Legislature has not changed
the language of § 4 since Hobbs was decided. [Id. at 366-367.]

In this case, the majority does not direct itself to the contents of the notice.

Rather, it jumps directly to the fact that plaintiff provided the notice more than 120

days after the date of injury. However, given that the notice was deficient, the

date that plaintiff provided it is inconsequential. Even if plaintiff had given notice

within 120 days, under MCL 691.1404(1) defendant would have been entitled to

summary disposition.

It is an exception to the rule of governmental immunity that a government

agency can be liable in tort for its failure to properly maintain a highway under its

jurisdiction. In order to safeguard an agency that might fall within this exception,

the Legislature created the precondition of notice in MCL 691.1404(1). Brown,

452 Mich at 359. The information in the notice assists the agency in determining

what evidence it needs to evaluate the claim. Id. at 362. The 120-day requirement

ensures that the agency has an opportunity to investigate while the evidence it

needs is still available. This is why both Brown and Hobbs concluded that actual

prejudice to the agency because of a lack of timely notice is the only legitimate

purpose of the notice provision. Id. at 366; Hobbs, 398 Mich at 96. Conversely, if

the agency can gather the needed evidence and evaluate the claim even though

notice is late, the agency is not prejudiced, and the purpose of MCL 691.1404(1) is

effectuated.

5

 Therefore, when a court reviews a notice, it must first examine its contents.

If the contents do not provide the agency with the information necessary for an

investigation and evaluation of the claim, the notice is insufficient. This would be

true even if the notice were given on the first day after the claimed damage

occurred. In this case, the lower courts failed to consider this point and proceeded

directly to the final step of the inquiry. There was no need or justification for

doing so, given the fatal flaws in the contents of the notice. The lower courts erred

in even considering the timeliness issue.

The majority here makes the same error. It does not conduct an

individualized review of the contents of the notice. Rather, it focuses on the

timeliness issue, reconsiders Brown and Hobbs, and overturns them.6

In order to set these decisions aside, the majority must discuss the

constitutional implications of MCL 691.1404. It is a well-accepted rule that an

appellate court should not reach a constitutional issue if a case can be decided on

other grounds. J & J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468

Mich 722, 734; 664 NW2d 728 (2003); Booth Newspapers, Inc v Univ of

Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). There would

be no need to reach the constitutional question if the majority properly focused on

plaintiff’s failure to provide adequate notice.

6
Regrettably, this action is consistent with the alarming and unprecedented
rate at which this majority overturns precedent. See Todd C. Berg, Esq.,
Overruling Precedent and the MSC, Michigan Lawyers Weekly
(accessed November 10, 2006).

6

 The result it reaches exhibits disrespect for stare decisis. While we can all

agree that the doctrine of stare decisis is not an inexorable command, we also all

know that it is the backbone of American justice. It “promotes the evenhanded,

predictable, and consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived integrity of the

judicial process.” Payne v Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed

2d 720 (1991).7

The United States Supreme Court has observed that “‘[t]he doctrine carries

such persuasive force that we have always required a departure from precedent to

be supported by some “special justification.”‘“ United States v IBM, 517 US 843,

856; 116 S Ct 1793; 135 L Ed 2d 124 (1996), quoting Payne, 501 US 842 (Souter,

J., concurring), quoting Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L

Ed 2d 164 (1984). Former United States Attorney General Jeremiah S. Black

eloquently stated the justification for adherence to precedent when he sat on the

Supreme Court of Pennsylvania:

It is sometimes said that this adherence to precedent is
slavish; that it fetters the mind of the judge, and compels him to
decide without reference to principle. But let it be remembered that
stare decisis is itself a principle of great magnitude and importance.
It is absolutely necessary to the formation and permanence of any
system of jurisprudence. Without it we may fairly be said to have no
law; for law is a fixed and established rule, not depending in the
slightest degree on the caprice of those who may happen to

7
The majority disagrees with my assessment of which issue should be
reached first in this case. The respect for stare decisis and the avoidance of
unnecessary constitutional issues provide ample reasons to deal with the simple
issue of the sufficiency of the notice first. The majority offers no explanation why
the first question must be the continued validity of Hobbs and Brown.

7

 administer it. I take it that the adjudications of this Court, when they
are free from absurdity, not mischievous in practice, and consistent
with one another, are the law of the land. It is this law which we are
bound to execute, and not any “higher law,” manufactured for
each special occasion out of our own private feelings and opinions.
If it be wrong, the government has a department whose duty it is to
amend it, and the responsibility is not in any wise thrown upon the
judiciary. The inferior tribunals follow our decisions, and the people
conform to them because they take it for granted that what we have
said once we will say again. There being no superior power to
define the law for us as we define it for others, we ought to be a law
unto ourselves. If we are not, we are without a standard altogether.
The uncertainty of the law—an uncertainty inseparable from the
nature of the science—is a great evil at best, and we would aggravate
it terribly if we could be blown about by every wind of doctrine,
holding for true to-day what we repudiate as false to-morrow.
[McDowell v Oyer, 21 Pa 417, 423 (1853) (emphasis in original).][8]

8
Justice Markman challenges me to develop my “own standards”
concerning when I would overturn precedent. But I have no need to create my
own standards when well-reasoned standards have been established in the laws of
this country for over 150 years. As noted in McDowell, when precedents are “free
from absurdity, not mischievous in practice, and consistent with one another,” they
should be retained. McDowell, 21 Pa at 423. I would not lightly adopt new rules
to guide my judicial philosophy when traditional tools used by courts throughout
their history continue to serve well. In this line, I willingly apply interpretive aids
such as the absurd results rule and the legislative acquiescence doctrine to guide
my decisions. I regret that the justices constituting the current majority on this
Court have abandoned these tools.
The majority states that I fail respond to Justice Markman’s challenge to
develop my own standard for overturning cases. In questioning what standard I
would prefer, the majority shifts the discussion’s focus from where it belongs: on
its own lack of respect for the rule of stare decisis.
The majority apparently misses the point of my reference to interpretive
aids. Quite simply, it dismisses traditional tools and interpretative processes and
shows disrespect for the judicial minds that came before it. It then overturns
precedent at an unparalleled rate. One discarded tool, legislative acquiescence, is
especially relevant to this discussion. If one accepts the premise that the
Legislature can and will change the law when it disagrees with a court’s
interpretation, a court is not tempted to act in its place.
The majority claims that the standard I would apply to decide if stare
decisis should be retained is “unworkable.” To justify this conclusion, it
mischaracterizes and misquotes my dissenting opinion in Sington v Chrysler Corp,
(continued…)
8

 No special justification exists in this case to attack the precedent created by

Brown and Hobbs. Rather, the case can be decided on other grounds without

upsetting established law or rejecting precedent. When courts stretch to overturn

precedent, they destroy the very certainty and stability that stare decisis is

designed to protect. Such actions bring disrespect to our Court.

The majority’s decision to reject stare decisis in this case conflicts with

even its own statement about when such action is appropriate. The majority has

indicated that the reasoning of stare decisis should be reexamined only where a

holding is “‘“fairly called into question.”‘“ Sington v Chrysler Corp, 467 Mich

144, 161; 648 NW2d 624 (2002), quoting Robinson v Detroit, 462 Mich 439, 463;

613 NW2d 307 (2000), quoting Mitchell v W T Grant Co, 416 US 600, 627-628;

94 S Ct 1895; 40 L Ed 2d 406 (1974) (Powell, J., concurring). When the Court

need not reach an issue in order to make its decision in a case, then that issue has

not been fairly called into question.

This Court addressed Brown a mere ten years ago. What has changed in

that decade to warrant a complete reversal in this law? There is but one answer,

the makeup of the Court. The law has not changed. Only the individuals wearing

the robes have changed.9 It is amazing how often the members of this majority

(…continued)
467 Mich 144; 648 NW2d 624 (2002). In fact, the majority uses the same
mischaracterization it made in the majority opinion in Sington. I will reiterate my
point: when precedents are “free from absurdity, not mischievous in practice, and
consistent with one another,” they should be retained. McDowell, 21 Pa at 423.
9
Ironically, so little else has changed that the very same attorney who
argued in Brown to overturn Hobbs returned to argue this case.

9

have declared themselves more capable of understanding the law and reaching the

“right” result than any justice who sat before.10 “It is this law which we are bound

to execute, and not any ‘higher law,’ manufactured for each special occasion out

of our own private feelings and opinions.” McDowell, 21 Pa at 423. The majority

has ordained itself master of such “higher law.”11 In doing so, it undermines the

10
This is a theme throughout Justice Markman’s concurring opinion. He
seems to believe that it is the solemn duty of this majority to rewrite Michigan
caselaw to “get the law ‘right.’” Ante at 6. This predisposition to find so much
caselaw wrongly decided contributes to the majority’s seeming wholesale second­
guessing of earlier decisions and renders the law increasingly arbitrary and
unpredictable. Appropriate respect for stare decisis and for those who sat on this
Court before us would greatly contribute to ending such instability.
I do not fault the majority for wanting to get the law “right.” I fault it for
repeatedly deciding matters as if only it can reach a correct interpretation of the
law. This case provides an example. Two prior incarnations of this Court
reviewed the same issue and came to the same decision. The Legislature had
decades to change the statute if it believed that Hobbs and Brown were incorrectly
decided, yet it did nothing. But this majority still concludes that the Court’s
interpretation of the law was “wrong” this entire time. Surely it is not only the
four justices currently making up the majority of this Court who are capable of
correctly discerning what the Legislature meant.
11
A quote from Justice Eugene Black seems apropos for this case:
At one time students and citizens, lay and professional, were
taught that everyone is presumed to know the law, and hence is duty
bound to act in accord therewith. But how may even skilled
lawyers, and correspondingly skilled subordinate court judges,
“know the law” when they are taught that the law in the books is not
law at all, unless upon litigatory test a bare majority of this very
ordinary Supreme Court happens to like it? Former Justice
VOELKER’s latest epigram comes to mind at this point. I quote it
from “Laughing Whitefish”, p 239 (McGraw-Hill 1965):

“Clapping a black nightshirt on a lawyer and packing him off
to the state capital and thenceforth calling him “Mister Justice”
makes him no less fallible and uncertain than he was when he was
back home drawing five-dollar wills.” [Autio v Proksch Constr Co,
377 Mich 517, 542-543; 141 NW2d 81 (1966) (Black, J.,
dissenting).]

10

stability of Michigan’s courts and damages the integrity of the judicial process.

Payne, 501 US at 827.12 I must strenuously dissent from such activity.13

12
Justice Markman implies that I would not have the same respect for stare
decisis if majority control of the Court switched during my tenure. This amounts
to little more than a circumstantial ad hominem logical fallacy. (see
[accessed March 9, 2007]). Nothing
in my decade-long tenure as a judge before the current majority was installed
substantiates the conjecture that I would indulge in wholesale reversal of
precedent if the opportunity arose. In the end, I am willing to put my “fealty” to
stare decisis to the test. I encourage all who read this opinion to compare my
record of adherence to precedent with the majority’s. For assistance in this, I refer
the reader to Todd C. Berg, Esq., Overruling Precedent and the MSC, The
Justices’ Scorecard, Michigan Lawyers Weekly,
(accessed December
22, 2006).
13
The majority characterizes my discussion of their disrespect for stare
decisis as a “canard.” Those familiar with this Court know that the majority’s
unprecedented attack on stare decisis is not a mere groundless rumor. The
numbers do not lie. The present majority has overturned more than three times as
many precedents as did those who immediately preceded it (61 precedents
overturned in five years by this majority compared to 18 by its predecessor). This
is despite the fact that the earlier incarnation of the Court disposed of almost 3,000
more cases (13,923 total dispositions by this majority in five years as compared to
16,729 total dispositions by its predecessor). See Todd C. Berg, Esq., Overruling
Precedent and the MSC, The “Pre-1999 Court” vs. The “Majority Court”,
Michigan Lawyers Weekly, (accessed December 22, 2006).
This disparity is astounding. Also astounding is the majority’s repeated claim that
nothing unusual is happening. If any “canard” exists in this case, it is the
majority’s insistence that it is not overturning the precedent of this Court at an
alarming rate.
The majority denies that it is overturning precedent willy-nilly. And it
takes comfort in comparing the number of precedents the current majority has
overturned to the total number of cases the Court has disposed of. These statistics
should offer the majority no solace. In fact, they should be taken cum grano salis.
It is true that the majority overturned only one-third of one percent of total
dispositions between 2000 and 2005. But this percentage rate is four times greater
than the immediately preceding majority on the Court whose rate of overturning
(continued…)
11

 III. EVEN IF THEY SHOULD BE REACHED, HOBBS AND BROWN

SHOULD NOT BE OVERTURNED

Even if it were proper to reach the 120-day notice requirement in this case,

it would not be appropriate to overturn Hobbs and Brown. Together, these cases

represent 30 years of precedent on the proper meaning and application of MCL

691.1404. Such a considerable history cannot be lightly ignored. And the

Legislature’s failure to amend the statute during this time strongly indicates that

Hobbs and Brown properly effectuated its intent when enacting MCL 691.1404(1).

The primary goal of statutory interpretation is to give effect to legislative

intent. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).

In both Hobbs and Brown, the Court identified the intent behind the notice

provision as being to prevent prejudice to a governmental agency. “[A]ctual

(…continued)
precedent compared to total dispositions was 1/22 of one percent. Berg, supra.
Beyond this, reference to the overall dispositions is a red herring. The bulk of the
Court’s dispositions are simple denial orders. This fact makes the total disposition
percentage irrelevant. The majority should not receive credit for not overturning
precedent when it simply denies leave to appeal. It would have to overturn nearly
every precedent in the history of the Court to make this number appear significant
in any way. The Todd Berg article makes a strong showing that the current
majority on this Court is alarmingly activist.
The majority makes the point that prior incarnations of this Court failed to
make explicit when they were overturning precedent. Ironically, in support, the
majority cites Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614
NW2d 607 (2000). In Mudel, the majority claimed that Goff v Bil-Mar Foods, Inc
(After Remand) 454 Mich 507; 563 NW2d 214 (1997), implicitly overturned
Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992). As I pointed out
in my concurrence/dissent in Mudel, Goff and Holden did not conflict. Mudel, 462
Mich at 734 (Kelly, J., concurring in part and dissenting in part). Of those three
cases, it was only the majority’s decision in Mudel that overturned precedent. Far
from support for the majority’s position, Mudel is just another example of the low
esteem in which the majority holds stare decisis.

12

prejudice to the state due to lack of notice within 120 days is the only legitimate

purpose we can posit for this notice provision . . . .” Hobbs, 398 Mich at 96. For

20 years, the Legislature knew of this interpretation14 but took no action to amend

the statute or to state some other purpose behind MCL 691.1404(1). The Court

then readdressed the statute in Brown and came to the same conclusion regarding

the purpose behind MCL 691.1404(1).

Another ten years have passed, but still the Legislature has taken no action

to alter the Court’s interpretation of the intent behind the statute. This lack of

legislative correction points tellingly to the conclusion that this Court properly

determined and effectuated the intent behind MCL 691.1404(1). If the proper

intent is effectuated, the primary goal of statutory interpretation is achieved. In re

MCI, 460 Mich at 411.15

The majority heavily criticizes Brown for its use of legislative acquiescence

as a tool of statutory construction. But these criticisms are not well founded,

either logically or legally. The United States Supreme Court recently reaffirmed

the use of legislative acquiescence:

14
The Legislature is presumed to be aware of judicial interpretations of
existing law. Ford Motor Co v Woodhaven, 475 Mich 425, 439-440; 716 NW2d
247 (2006).
15
The majority accuses me of creating “chaos and injustice” because it
believes I do not consistently apply a rational basis analysis. Its heated words on
this subject seem designed to distract from the real point: the question is whether
Hobbs and Brown properly effectuated the intent behind the statute. The fact that
the Legislature has not taken action to rewrite the law strongly suggests that these
cases did properly effectuate this intent. Therefore, they properly arrived at the
rational basis behind the notice provision.

13

 [T]he claim to adhere to case law is generally powerful once a
decision has settled statutory meaning, see Patterson v McLean
Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L Ed 2d
132 (1989) (“Considerations of stare decisis have special force in
the area of statutory interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is implicated, and
Congress remains free to alter what we have done”). In this
instance, time has enhanced even the usual precedential force[.]
[Shepard v United States, 544 US 13, 23; 125 S Ct 1254; 161 L Ed
2d 205 (2005).]

This tool of construction has a long history in the law. In 1880, the United States

Supreme Court wrote:

After a statute has been settled by judicial construction, the
construction becomes, so far as contract rights acquired under it are
concerned, as much a part of the statute as the text itself, and a
change of decision is to all intents and purposes the same in its effect
on contracts as an amendment of the law by means of a legislative
enactment. [Douglass v Pike Co, 101 US 677 (11 Otto), 687; 25 L
Ed 968 (1880).]

There also exists a consistent and long history of the use of this tool in Michigan.

See Brown, 452 Mich at 367-368; Gordon Sel-Way Inc, v Spence Brother Inc, 438

Mich 488, 505; 475 NW2d 704 (1991); Craig v Larson, 432 Mich 346, 353; 439

NW2d 899 (1989); Wikman v City of Novi, 413 Mich 617, 638; 322 NW2d 103

(1982); Smith v Detroit, 388 Mich 637, 650; 202 NW2d 300 (1972); Magreta v

Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1968); In re

Clayton Estate, 343 Mich 101, 106-107; 72 NW2d 1 (1955); and Twork v Munsing

Paper Co, 275 Mich 174, 178; 266 NW 311 (1936).

The concept of legislative acquiescence is reasonable and logical. The

Legislature is presumed to know the law, including the decisions of this Court.

Ford Motor Co, 475 Mich at 439-440. Acquiescence in failing to amend a statute

14

is a proper manner by which the Legislature accepts a court’s interpretation of that

statute.

Our goal in interpreting statutes is to give effect to the purpose behind

them. We should not limit ourselves in the use of any tool that gets us to that goal.

“If the purpose of construction is the ascertainment of meaning, nothing that is

logically relevant should be excluded.” Frankfurter, Some reflections on the

reading of statutes, 47 Colum L R 527, 541 (1947), quoted in Shapiro, The Oxford

Dictionary of American Legal Quotations (New York: Oxford University Press,

1993), p 390. Legislative acquiescence is one useful tool in ascertaining the intent

of a statute.16 Adequate reasons do not exist to discard it.17

16
The majority cites constitutional rational basis analysis when assailing
my use of the theory of legislative acquiescence. But the case it cites, Harvey v
Michigan, 469 Mich 1; 664 NW2d 767 (2003), did not deal with a Court
overturning a prior court’s interpretation of a statute. An entirely different
question entirely arises when, as here, the issue presented is whether a settled
statutory interpretation should be overturned.
17
The majority claims that my support for legislative acquiescence
undermines my “fealty” to stare decisis. It supports this by providing a list of
decisions made by this majority that reject legislative acquiescence. I dissented
from all of those decisions, and I have consistently supported legislative
acquiescence as a proper tool for arriving at legislative intent. As I indicated
earlier, I would never reach the constitutional issue in deciding this case. Hence,
if my view prevailed, I would not find it necessary to consider legislative
acquiescence here. But I maintain that this rogue line of cases unnecessarily
hamstrings the Court’s efforts at arriving at the intent of the Legislature. This
position in no way undermines my adherence to stare decisis. There is a
significant difference between precedent interpreting a statute relied on for
decades and tools used to interpret statutes. I know of no authority that stands for
the proposition that stare decisis attaches to analytical tools used in judicial
interpretation. Hence, the rule of stare decisis binds us to follow the holdings of
past caselaw. It does not bind use to use or refrain from using analytical tools
such as the doctrine of legislative acquiescence because an earlier Court chose to
do so.

15

 The majority argues that Brown’s reliance on legislative acquiescence was

inappropriate because Hobbs’s discussion of the 120-day notice requirement was

based, in part, on the requirement’s constitutionality. It claims that the Legislature

was left incapable of revising the statute even if it desired to do so. This is not

accurate. The Legislature was free to amend MCL 691.1404(1).

Hobbs’s analysis centered on the fact that the Court could identify only one

possible reason for the notice requirement: preventing prejudice to a government

agency. Hobbs, 398 Mich at 96. If the Legislature had another intent in mind, it

had only to write it into the statute.18 A revised statute would create an entirely

new question for the Court. If the Legislature made a revision, the

constitutionality of the revision would be an open question. It would not be

controlled by Hobbs. Hobbs merely dealt with a notice provision that had one

known intent, fair notice to prevent actual prejudice.

Moreover, if the Legislature truly desired a hard and fast 120-day limit, it

could have rewritten the statute to contain a presumption of prejudice.19

18
The majority claims that Hobbs’s statement that it could posit only one
legitimate reason for the notice provision necessarily means that no other
legitimate reason could possibly exist. This is not the case. The Court’s statement
that it could think of only one reason for the statute means what it says. It leaves
open the possibility that other reasons might occur to people at a later date. If the
Legislature had a different intent in mind, it could have, and should have, made
that clear to the Court. It has never attempted to do so. This indicates that the
Court’s determination of the Legislature’s intent was correct.
19
If, as the majority claims, the Legislature wanted the 120 days to be an
absolute deadline, it could have added an irrebuttable presumption of prejudice.
This would have satisfied even the most restrictive reading of Hobbs while, at the
same time, making clear the legislative intent. The Legislature knows how to
(continued…)
16

Alternatively, it could have defined actual prejudice in the statute to be more

restrictive than Hobbs found it to be. There was the possibility of change.

Because it did not occur, it is reasonable to deduce that the Legislature’s inaction

has been intentional.

This is especially true in light of Brown, which specifically provided the

Legislature with a road map showing how it could change the law to effectuate

some other intent.

The difficulty we experienced in Hobbs was that we could not
posit another purpose for the notice provision other than to prevent
prejudice to the state. If the Legislature was not happy with our
presumption, it could have responded in some fashion to the Hobbs
decision. It could have further articulated the notice provision’s
purpose and possibly have created a presumption of prejudice to the
governmental agency from the plaintiffs’ failure to give notice
within 120 days. However, not only has the Legislature not
attempted to revise the statute to respond to Hobbs, it also has not
even criticized Hobbs in later legislative enactments or amendments
in the almost twenty years since it was decided. [Brown, 452 Mich
at 367 n 18.]

If the Legislature disagreed with Hobbs but was unsure how to act, Brown not

only provided the impetus for change but the means to reach that goal. Despite

what can fairly be characterized as the Court’s guide for possible legislative

amendments, the Legislature still has not repudiated Brown and Hobbs.20 Given

(…continued)

create irrebuttable presuppositions. See MCL 207.1026(1), MCL 205.94q, and

MCL 399.157(2). It did not write one into this statute.

20
The majority postulates that my argument for adherence to stare decisis
would have been better made to the Hobbs and Brown courts. Of course, I was not
on the Court when either Hobbs or Brown was decided. I can only decide the case
before me. Reviewing the case before me now, I would maintain my strong
predisposition to adhere to precedent. The majority’s “two-wrongs-make-a-right”
argument carries little weight. It is also grossly unfair to assert, as Justice
(continued…)
17

that ten years have passed since Brown, this inaction is particularly meaningful. It

evidences that Brown and Hobbs accurately divined the intent of the Legislature.

IV. THE ROBINSON21 FACTORS

This Court laid out the factors to consider in overturning stare decisis in

Robinson. The first consideration is whether the earlier decision was wrongly

decided. Id. at 464. As discussed above, the Legislature has acquiesced in

Hobbs’s and Brown’s interpretation of MCL 691.1404(1). This certainly suggests

that the Court’s interpretation properly identified the intent of the Legislature as

being to prevent prejudice to a government agency. The central goal of statutory

construction is to effectuate the Legislature’s intent. In re MCI, 460 Mich at 411.

It appears that Hobbs and Brown were correctly decided.

The other Robinson factors are: (1) whether the decision at issue defies

“practical workability”; (2) whether reliance interests would work an undue

hardship if the authority is overturned; and (3) whether changes in the law or facts

make the decision no longer justified. Robinson, 462 Mich at 464.

Hobbs and Brown do not defy practical workability. Rather, they have

been an integral part of the law on governmental immunity for 30 years. The

bench and bar have had no difficulty applying the actual prejudice requirement to

(…continued)
Markman does, that I have repeatedly refused to overturn precedent merely
because I agreed with the precedent. Whether in agreement or not, I have in each
case given heavy weight to the disruption that a reversal would cause to the state’s
jurisprudence. Frequently, the disruptive effect would have been reason enough
for me to refuse to overturn the precedent.
21
Robinson, 462 Mich at 439.

18

the cases before them. Actual prejudice is not a complicated concept to apply. As

such, there is no practical workability problem.

Brown addressed the reliance interests a decade ago. It noted:

[W]e believe that more injury would result from overruling it
than from following it. The rule in Hobbs has been an integral part
of this state’s governmental tort liability scheme for almost two
decades. It should not be lightly discarded. [Brown, 452 Mich at
366.]

Now, another decade has passed. And the rule in Hobbs has become even more

entwined with the law of governmental liability. Many plaintiffs likely shaped the

processing of their cases in reliance on this law. For instance, a plaintiff could

take more than 120 days to carefully assess his or her case and assure that the

notice provided contains everything required by MCL 691.1404. Attorneys surely

have relied on Hobbs and Brown to decide what cases to accept. This necessarily

entails adjusting the attorney’s resources to properly handle the cases.

The majority claims that no one would properly rely on Hobbs or Brown

because they are “text ignoring.” As I discussed in detail earlier, this is not true.

Hobbs and Brown properly effectuated the intent of the Legislature. But also

implicit in this discussion is the majority’s contention that attorneys should not

rely on precedent predating the present Court. At its core, this statement suggests

that one should not rely on anything predating the current majority. The disrespect

it pays to past justices of the Michigan Supreme Court is unfortunate. Rather than

justifying overturning Hobbs and Brown, it demonstrates that the majority fails to

respect the rule of stare decisis as applied to cases that predate this majority.

19

 The final consideration under Robinson is whether changes in the law or

facts make the decision no longer justified. Robinson, 462 Mich at 464. There

have been no changes in the law or facts in question. Although the Hobbs ruling

is 30 years old and the Brown ruling provides a road map for the Legislature to

overturn Hobbs, the Legislature took no action. This favors retention of the

precedents.

Considering all the Robinson factors, Hobbs and Brown should not be

overturned. Rather, they should be retained, thereby respecting stare decisis, a

doctrine that carries such persuasive force that courts have traditionally required a

departure from it to be supported by special justification. IBM, 517 US at 856.

After consideration and application of the Robinson factors, it is apparent that no

special justification exists to overturn Hobbs and Brown, and the majority’s

decision to do so is erroneous.22

V. RETROACTIVITY

Generally, judicial decisions are given full retroactive effect. Pohutski v

City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). But there are well­

established exceptions to this rule. The courts should consider the equities

involved and, if injustice would result from full retroactivity, should adopt a more

22
The majority believes that Robinson presents the most defensible
approach to deciding when to overturn cases. I would note that even the Robinson
factors support retaining Hobbs and Brown.

20

flexible approach. Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861

(1997). Court decisions should have the goal of reaching justice. Tebo v Havlik,

418 Mich 350, 360; 343 NW2d 181 (1984), quoting Williams v Detroit, 364 Mich

231, 265; 111 NW2d 1 (1961) (opinion by Edwards, J., for reversal). Prospective

application is appropriate where the holding overrules settled precedent. Lindsey,

455 Mich at 68.

This Court adopted from Linkletter v Walker, 381 US 618; 85
S Ct 1731, 14 L Ed 2d 601 (1965), three factors to be weighed in
determining when a decision should not have retroactive application.
Those factors are: (1) the purpose to be served by the new rule, (2)
the extent of reliance on the old rule, and (3) the effect of
retroactivity on the administration of justice. In the civil context, a
plurality of this Court noted that Chevron Oil [Co] v Huson, 404 US
97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an
additional threshold question whether the decision clearly
established a new principle of law. [Pohutski, 465 Mich at 696
(citation omitted).]

When the threshold question is applied, it becomes apparent that this case

states a new rule of law. When a court overturns precedent interpreting a statute,

the decision is equivalent to, and is treated as, a new rule of law. Id. at 696-697.

Because this case overturns decades of precedent, it is a newly created rule of law

that warrants prospective application.

The majority characterizes its decision as a return to the correct

interpretation of the statute and, as such, not a new rule. This argument does not

ring true. Hobbs was decided 30 years ago. And, as the majority concedes, Hobbs

was built, in part, on Reich v State Hwy Dep’t, 386 Mich 617; 194 NW2d 700

(1972). Therefore, the majority is treating almost 35 years of precedent as if it

never existed. But decades of reliance on this line of cases have elapsed, and these

21

cases have shaped modern governmental immunity law. Because of it,

prospective application is appropriate. Pohutski, 465 Mich at 696-697; Lindsey,

455 Mich at 68.

The majority also characterizes Hobbs as a rogue decision, a departure from

the proper interpretation of the law. As I have discussed, the Legislature chose not

to amend MCL 691.1404 despite ample opportunity to do so. This indicates that

Hobbs effectuated legislative intent. But, beyond this, Hobbs is not a rogue

decision. Supporting this is the fact that the Court took a second look at Hobbs in

Brown. Decades apart, two incarnations of this Court looked at the same question

and reached the same conclusion. Hobbs cannot fairly be characterized as some

anomaly in the law.

The 30 years of precedent offered by Hobbs and the affirmance of Hobbs in

Brown demonstrate that the majority is overturning a well-established rule of law.

As such, this case creates new law. Pohutski, 465 Mich at 696-697. And

prospective application is appropriate. Id.; Lindsey, 455 Mich at 68.

Given that the threshold has been met, we must address the underlying

factors. Turning to the first Pohutski factor, the Court must decide the purpose

served by the new rule. The majority’s goal is to correct a statutory interpretation

that it believes to be incorrect. Prospective application furthers such a purpose.

Pohutski, 465 Mich at 697.

The second factor is the extent of reliance on the rule. Pohutski, 465 Mich

at 696. Given that the rule has been in existence and applied for over 30 years,

reliance is significant. Hobbs has shaped how attorneys handle cases. Under

22

Hobbs, attorneys understand that they have increased time to investigate and

perfect their knowledge of a case before taking legal action. This is important

given the detail needed to comply with MCL 691.1404(1).

The majority contends that people have not relied on Hobbs given the

recent decisions of this Court. But I question that contention. As Justice Jeremiah

S. Black noted over 150 years ago:

The inferior tribunals follow our decisions, and the people
conform to them because they take it for granted that what we have
said once we will say again. There being no superior power to
define the law for us as we define it for others[.] [McDowell, 21 Pa
at 423.]

To hold otherwise is to disregard the importance of this Court. “‘We should not

indulge in the fiction that the law now announced has always been the law and,

therefore, that those who did not avail themselves of it waived their rights.’”

Chevron Oil Co, 404 US at 107, quoting Griffin v Illinois, 351 US 12, 26; 76 S Ct

585; 100 L Ed 891 (1956) (Frankfurter, J., concurring). The majority engages in

such a legal fiction in this case. It is inappropriate.

The third factor is the effect of retroactivity on the administration of justice.

Pohutski, 465 Mich at 696. In Pohutski, the Court determined that the third factor

weighed in favor of prospective application. The reason for this is that

retroactivity would create a distinct class of litigants being denied relief because of

an unfortunate circumstance of timing. Id. at 698-699. In the instant case, the

majority’s decision to overturn Hobbs and Brown will not have such a devastating

effect on a distinct group of litigants. But the effect will be considerable. There

will be a significant number of plaintiffs who will lose their remedy due to their

23

failure to anticipate this change in the reading of MCL 691.1404(1). And it will

cause attorneys to reevaluate and amend their handling of governmental immunity

cases. Because of this significant impact, I believe this factor favors prospective

application.

The overturning of Hobbs and Brown is a more significant change in the

law than the majority wishes to admit. Application of the Pohutski factors

indicates as much. Consideration of these factors supports only prospective

application of this decision.

VI. CONCLUSION

The majority unnecessarily reaches the issue whether defendant must show

actual prejudice to bar a claim filed more than 120 days from the date the injury

occurred. Plaintiff failed to supply sufficient notice to defendant. She did not

provide an “exact” description of the nature of the defect. Because of that,

defendant did not need to show actual prejudice. It was entitled to summary

disposition no matter when the notice was given. The lower courts erred in

considering the issue of actual prejudice, as does the majority of this Court.

In reaching to overturn Hobbs and Brown, the majority fails to pay proper

respect to the doctrine of stare decisis and to the precedent of this Court. This

continues a disturbing trend that the current majority has initiated and fostered.

Hobbs and Brown properly effectuated the intent of the Legislature. As such, they

should be retained.

Marilyn Kelly

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 STATE OF MICHIGAN

SUPREME COURT

JOANNE ROWLAND, also known as
JOAN ROWLAND,

Plaintiff-Appellee,

v No. 130379

WASHTENAW COUNTY ROAD
COMMISSION,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

Today this Court overrules a portion of our governmental immunity law

that has been in place for over 30 years. Because I am not convinced that Hobbs v

Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976), and Brown v Manistee

Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996), were wrongly decided, I

dissent from the majority’s decision to overrule these cases. I believe that the

principles of stare decisis mandate that we continue to interpret MCL 691.1404(1)

in accordance with Hobbs and Brown.

HOBBS AND BROWN SHOULD BE REAFFIRMED

It is well established that overruling precedent must be undertaken with

caution. This Court does not lightly overrule settled decisions construing any

section of a standing statute. Smith v Lawrence Baking Co, 370 Mich 169, 177;

121 NW2d 684 (1963). Adhering to decided cases is generally “‘the preferred
course because it promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial process.’” Robinson

v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United

States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). Before this

Court overrules a decision deliberately made, it should be convinced not merely

that the case was wrongly decided, but also that overruling it will result in less

injury than in following it. McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW

1006 (1904).

Before overruling established precedent, this Court must decide whether:

“(1) the earlier case was wrongly decided, (2) the earlier case defies practical

workability, (3) reliance interests would work an undue hardship if the earlier case

was overruled, and (4) changes in the law or facts no longer justify the earlier

decision.” Robinson v Detroit, 462 Mich 439, 464-465; 613 NW2d 307 (2000).

Under Robinson, the first conclusion this Court must reach before overruling

precedent is that the earlier case was wrongly decided. A majority of this Court

considered this very issue 11 years ago and concluded that Hobbs was not wrongly

decided. Brown, supra at 366. I continue to agree with the conclusion reached in

Brown. These cases are part of a 30-year-old line of decisions. The line of cases

preceding Hobbs and Brown provide the proper context in which to evaluate them.

The cases leading up to Hobbs and Brown represent thoughtfully made,

deliberate decisions. I disagree with the majority’s implication that before 1970,

2

the constitutionality of notice provisions was firmly established. Ante at 8.

According to the majority, Grubaugh v City of St Johns, 384 Mich 165; 180

NW2d 778 (1970), represented an “abrupt departure” in finding that a 60-day

notice provision violated due process where a plaintiff had been incapacitated

during the notice period because of the allegedly tortious conduct of defendant.

Ante at 8; 384 Mich at 175-176. In fact, Grubaugh afforded us the first

opportunity to consider the constitutionality of the notice provision—this issue had

not been squarely presented in previous cases. Id. at 167. Two cases that closely

preceded Grubaugh, Boike v City of Flint, 374 Mich 462; 132 NW2d 658 (1965),

and Trbovich v Detroit, 378 Mich 79; 142 NW2d 696 (1966), make clear that their

decisions to enforce the notice provisions as written were not constitutionally

based. “The constitutionality of section 8, [which is the provision requiring that

notice of injury be given to city within 60 days,] insofar as it applies to infants or

others under legal disability, has not as yet been put to test.” Boike, supra at 464

n*. Similarly, Justice Black’s supplemental opinion in Trbovich remarked that

the Court was bound to apply plainly written notice statutes as written, given that

no constitutional question had been raised below. Trbovich, supra at 88.

It is disingenuous for the majority to characterize Grubaugh as an

aberration, while implying that the previous decisions of this Court had endorsed

the constitutionality of the notice statutes with an “implicit” rational basis review.

Ante at 8. This Court does not ordinarily rule on the constitutionality of a statute if

the question of its constitutionality was not raised in the lower court or this Court.

3

Ridenour v Bay Co, 366 Mich 225, 243; 114 NW2d 172 (1962). The question

presented in Moulter v Grand Rapids, 155 Mich 165; 118 NW 919 (1908), was

one of statutory construction, not constitutionality; while the appealing party

claimed that the notice provision was unreasonable and void, we disclaimed any

authority to decide the statute’s reasonableness. Id. at 169. If we had actually

engaged in a rational basis review of the notice statute in Moulter, the

reasonableness of the statute would have been a fundamental part of the inquiry.

The test to determine whether legislation enacted pursuant to the police power

comports with due process is whether the legislation bears a reasonable relation to

a permissible legislative objective. Shavers v Attorney General, 402 Mich 554,

612; 267 NW2d 72 (1978).

Unlike Moulter and its successors, Grubaugh undertook a thorough

constitutional analysis of the notice requirements of the general highway statute.1

This Court concluded that the notice provision of the general highway statute

violated due process where it extinguished the claim of a plaintiff who was

mentally or physically incapacitated during the notice period due to the alleged

tortious act of a state or municipal defendant. Grubaugh, supra at 176. Because

the case was disposed of on due process grounds, the equal protection argument

was not examined. Id. at 176-177.

1
Specifically, Grubaugh concerned a predecessor to MCL 691.1401 et
seq.: 1948 CL 242.8, repealed and superseded by 1964 PA 170.

4

 Shortly after Grubaugh, we considered a broader constitutional challenge to

a 60-day notice provision of the general highway statute2 in Reich v State Hwy

Dep’t, 386 Mich 617; 194 NW2d 700 (1972). This Court followed Grubaugh in

holding that the statute violated due process as applied to minors. Reich, supra at

622. As for the remaining plaintiffs, who were presumably competent adults, we

held that the notice provision violated equal protection because it arbitrarily and

unreasonably split victims into two differently treated subclasses: victims of

governmental negligence and victims of private negligence. Id. at 623.

This Court subsequently held that notice requirements are not necessarily

unconstitutional if there is a legitimate purpose and the period is not unreasonably

short. Carver v McKernan, 390 Mich 96, 100; 211 NW2d 24 (1973). The

reasonableness of a period depends in part on the purpose served by the notice

requirement. Id. We noted that failure to give notice may result in prejudice to

the government relating to the purpose served by the notice provision. Id. Thus,

the government is required to show prejudice before a claim can be dismissed on

the basis of failure to meet the notice requirement. Id.

We should be mindful of this history when considering the Hobbs and

Brown decisions. When this Court addressed the 120-day notice requirement of

MCL 691.1404 in Hobbs, we examined the notice provision and the reasons

justifying it in light of the Grubaugh, Reich, and Carver decisions. This Court

2
Reich concerned the notice requirement of 1964 PA 170.

5

deliberately concluded that actual prejudice to the state from lack of notice within

120 days was the only legitimate purpose it could posit for the notice provision of

§ 1404. Hobbs, supra at 96. Accordingly, unless actual prejudice is shown, the

plaintiff’s claim is not barred by failure to give notice within the required period.

Id. In Brown, we invalidated a statute on equal protection grounds because it

imposed a 60-day notice requirement for claims involving county road

commissions when MCL 691.1404, providing a 120-day notice period, also

potentially governed the claim. Brown, supra at 363-364. After deciding that the

120-day period of § 1404 applied, we reaffirmed Hobbs’s interpretation of that

provision. Id. at 368.

The majority contends that the notion that notice provisions are or may be

unconstitutional has “no claim to being defensible constitutional theory.” Ante at

13. But it is this Court’s role to construe statutes to avoid unconstitutionality, if

possible, by a reasonable construction of the statutory language. United States v

Harriss, 347 US 612, 618; 74 S Ct 808; 98 L Ed 989 (1954). The validity of the

Hobbs and Brown decisions must be evaluated in view of our earlier

constitutional rulings in Grubaugh, Reich, and Carver. With due consideration

of this Court’s precedent in the area of government notice provisions, the Hobbs

Court made a reasoned decision that the 120-day notice provision might be

unconstitutional if dismissal did not serve the posited purpose of avoiding

prejudice. Like Hobbs and its predecessors, the primary concern in Brown was

6

the constitutionality of a legislative scheme that draws arbitrary distinctions

between litigants.

Michigan is not the only jurisdiction that has invalidated notice provisions

on constitutional grounds. While it certainly represents a minority position,

decisions in Nevada, Iowa, Minnesota, West Virginia, and Washington have also

held governmental immunity notice provisions constitutionally infirm.3 Still

others have enforced notice provisions after “engrafting” exceptions for minority

or incapacity to avoid unconstitutionality. In Schumer By and Through Schumer v

City of Perryville, 667 SW2d 414, 418 (Mo, 1984), the court noted that it had

previously held the application of the notice provision to incapacitated persons

unconstitutional; in the case at hand, it extended this rationale to people who were

under the legal disability of minority during the notice period. As evidenced by

these decisions, these states, as well as Michigan before the instant case, certainly

considered the idea that notice provisions may be unconstitutional to be a

defensible constitutional theory.

Further, as Justice Kelly discusses at length, the Legislature has acquiesced

with our construction of MCL 691.1404 since the Hobbs decision, including our

presumption of the statute’s sole purpose. Ante at 12-15. If the Legislature did

3
Turner v Staggs, 89 Nev 230, 234-235; 510 P2d 879 (1973); Miller v
Boon Co Hosp, 394 NW2d 776, 781 (Iowa, 1986); Kelly v City of Rochester, 304
Minn 328, 333; 231 NW2d 275 (1975); O’Neil v City of Parkersburg, 160 W Va
694, 701-702; 237 SE2d 504 (1977); Hunter v North Mason High School, 85
Wash 2d 810, 818-819; 539 P2d 845 (1975).

7

not agree with our presumption, in the 31 years since Hobbs was decided, it could

have easily responded by elaborating on the other governmental interests served

by the notice provision. The Hobbs decision did not foreclose the possibility that

the notice provision served other legitimate state interests other than prejudice; it

merely stated that this Court could only posit one purpose. Hobbs, supra at 96. If

the Legislature had responded in any way to our inference, we would have had

reason to reevaluate the constitutionality of MCL 691.1404 in light of the

Legislature’s action.

THE REMAINING ROBINSON FACTORS SUPPORT UPHOLDING HOBBS
AND BROWN

Even if a majority of this Court disagrees with the reasoning of Hobbs and

Brown, a mere belief that these cases were wrongly decided is insufficient to

justify overruling them. Other considerations must be weighed before departing

from precedent. In particular, under Robinson, this Court must also decide

whether Hobbs and Brown defy practical workability, whether reliance interests

would cause an undue hardship, and whether changes in the law or facts no longer

justify Hobbs and Brown. Robinson, supra at 464. A study of these remaining

Robinson factors shows that they weigh in favor of upholding Hobbs and Brown.

The rule that the government must show actual prejudice was suffered from

lack of notice does not defy practical workability. Indeed, this rule has been

followed and enforced for over 30 years. In that span, litigants, attorneys, and

courts have been able to apply Hobbs and Brown to the cases before them.

8

Reliance interests of these parties also support upholding these cases. While a

plaintiff is unlikely to deliberately withhold notice longer than 120 days for the

sheer purpose of using the Hobbs rule, these plaintiffs should not be our only

concern. We must also consider the effect of our decision on injured parties who

have sought legal counsel to determine whether they have a valid claim. For

example, reliance interests are involved when a plaintiff consults with an attorney

and initiates a claim more than 120 days after an injury, having been informed by

his attorney that the claim may survive if the government has suffered no

prejudice from the delay. Similarly, attorneys who have counseled clients that

their claims may still be valid have relied on Hobbs and Brown in accepting cases

and dispensing advice.

Finally, there have been no changes in the law or factual circumstances that

render Hobbs and Brown unjustifiable. The Legislature has not amended § 1404

since 1972. The Hobbs rule has been an established part of the governmental tort

liability scheme for over three decades. Brown examined Hobbs and upheld its

rule just over ten years ago. Any relevant changes are entirely internal to this

Court.

Applying the Robinson factors here shows that the principles of stare

decisis outweigh the arguments for overruling Hobbs. “Under the doctrine of stare

decisis, principles of law deliberately examined and decided by a court of

competent jurisdiction become precedent and should not be lightly departed.”

People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990). Absent the rarest

9

circumstances, we should remain faithful to established precedent. Brown, supra

at 365. Reaffirming Hobbs and Brown would promote uniformity, certainty, and

stability in the law.

TODAY’S DECISION SHOULD APPLY PROSPECTIVELY

Given that Hobbs and Brown have become ingrained in our governmental

tort liability scheme, the majority’s decision to overrule these cases should be

applied prospectively. While the general rule is that judicial decisions are given

complete retroactive effect, decisions that overrule clear and uncontradicted

caselaw have been given prospective application. Michigan Ed Employees Mut

Ins Co v Morris, 460 Mich 180, 189; 596 NW2d 142 (1999). A more flexible

approach is warranted where injustice might result from full retroactivity.

Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003).

To determine whether to depart from the general rule of retroactivity, this Court

has recognized a threshold question of whether the decision clearly established a

new principle of law, in addition to considering several other factors. Pohutski v

City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). These factors

include: (1) the purpose to be served by the new rule, (2) the extent of reliance on

the old rule, and (3) the effect of retroactivity on the administration of justice. Id.

Since Hobbs was decided, the law in Michigan has been that claimants may

maintain claims against governmental agencies, despite failure to give notice

within 120 days, if the agency cannot show that it was prejudiced by the lack of

notice. Today’s decision represents a departure from an established rule of law.

10

We have not foreshadowed any change of this particular rule—on the contrary, it

was specifically reaffirmed by Brown ten years ago. Further, parties who have

relied on Hobbs in pursuing claims against governmental agencies will now find

their claims dismissed. Attorneys who have taken clients and developed cases

with Hobbs in mind will have lost the time and effort expended, as well as the

confidence of their clients. Under these circumstances, prospective application of

today’s decision is appropriate.

CONCLUSION

In conclusion, I dissent from the majority’s decision to overrule Hobbs and

Brown. I would not disturb these decisions in light of the principles of stare

decisis. Further, overruling these cases presents a new rule of law, thus I would

apply the majority’s decision prospectively.

Michael F. Cavanagh

11