On April 24, 2020, the Michigan Supreme Court announced it will address an issue of great importance concerning retroactive application of the decision in Streng v Bd of Mackinac County Road Commissioners, 315 Mich App 449; 890 NW2d 680, lv denied 500 Mich 919 (2016). Streng held, inter alia, that the 60-day notice provision in Michigan Compiled Laws (MCL) 224.21, applied to claims against County Road Commissions (and other certain counties that had elected treatment as County Road commissions per MCL 224.5). A subsequent case, Brugger v Midland County Bd of Road Comm’rs, abeyed 920 NW2d 131 (2018), held that the decision in Streng was to be applied prospectively, only, to claims lodged under the highway exception. However, another court of appeals case held that judicial decisions interpreting statutory text apply retroactively to all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule. Harston v County of Eaton, 324 Mich App 549, 558-559; 922 NW2d 391 (2018).
The Court of Appeals in the companion case to Harston, Estate of Brendon Pearce v Eaton County Road Comm’n, Supreme Court Docket No. 158069, came to the opposite conclusion, finding that Streng should not be applied retroactively.
Interestingly, the Court’s grant order in Brugger v Bd of Comm’rs of Midland County Rd Comm’rs, Supreme Court Case No. 158304 (April 24, 2020) requests the parties to brief whether Streng itself was correctly decided. Leave was denied by the Supreme Court in Streng, but now it appears the Court will address its overall viability.
The Jurisdictional Nature of these Cases Put them in a Very Different Category when Considering “Retroactivity” Because a Claimant Must Satisfy the Legislature’s Preconditions to Suit to Even Access the Courts and the Supreme Court has Repeatedly Noted that Notice Provisions are Preconditions to Suit and Strict Compliance with the Notice Provisions Are Required to Bring the Suit in the First Place
I have written extensively about Streng on many occasions both in the blog and in cases that have come before the Court of Appeals and Supreme Court. Streng represented a significant shift in the law of governmental immunity. From 1964 to the date of that decision in 2016 parties had 120 days to provide notice of claims to governmental entities under the highway exception per MCL 691.1404(1). As Streng noted however, County Road Commissions are (and always have been) subject to MCL 224.21(3), which has a 60-day provision. While the application of the 60-day provision was the major holding in Streng, the court also held, of necessity, that the broader description of “time and place” of the incident in the notice provision would also apply when analyzing notices. Thus, if a party does satisfy the 60-day provision, ostensibly their notice does not have to comply with the stricter standards that have been applied to the notice provision in the GTLA, MCL 691.1404. See Rowland v Washtenaw Co Rd Comm’n, 477 Mich 197, 202-203; 731 NW2d 41 (2007) (it is well established that statutory notice requirements must be interpreted and enforced as plainly written and that no judicially created saving construction is permitted to avoid a clear statutory mandate).
In any event, the primary issue of retroactive application of MCL 224.21 (assuming that the Court ultimately upholds Streng), should be resolved by a return to the foundational, jurisdictional principle of governmental immunity. The only reason that a court of law can ever address the merits of a claim against the government (that is actually take in the case and litigate it) is if the claimant has satisfied the Legislature’s requirements for him or her to access the court in the first place. Immunity is freedom from both litigation and liability. This is because, as most states recognize, the Legislature, as the representative of the citizens who control the parameters of their own funded liability for claims, can install whatever limits it wants upon those seeking a remedy against the government for the latter’s alleged wrongdoing.
I submitted an amicus curiae brief in Pollard v SMART in 2011 that explored the origins of this legal rule. A later case I would present and successfully argue in the Supreme Court, Atkins v SMART, 492 Mich 707; 822 NW2d 522 (2012) made some headway in this regard. There, the Court quoted Moulter v Grand Rapids, 155 Mich 165, 168-169; 118 NW 919 (1908), which states: “[i]t 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 limitation it chose.” (emphasis added). The Court then cited Rowland, which like Atkins and many other cases from the Michigan Supreme Court established that the utmost strict compliance must be observed with respect to every aspect of the limitations and preconditions to suit placed by the Legislature upon claimants for accessing the courts of the state to actually litigate whether or not and to what extent the government should be held liable for their injuries.
As it has been stated in Michigan, the state created the courts and so is not subject to them or to their jurisdiction without explicit legislative consent, which is in fact, the consent of the citizenry. The judiciary (as opposed to the Legislature) cannot create jurisdiction where none exists. It cannot use conventions such as judicial or equitable estoppel; “substantial” compliance with the statute, or “absence of prejudice” to the party raising the defense. And these are only a few examples. The judiciary is also prohibited from shifting the burden to the government to prove that it is immune rather than impose the burden to both plead and prove the case on the claimant, as Mack instructed. If it were otherwise the judiciary could employ any number of these functions to usurp the will of the people as expressed through the legislative branch.
If the 60-day notice provision applies and the party failed to satisfy it then that is the end of the matter – whether or not the actual failure occurred before or after the Streng decision and no matter what level the appeal is at. This is also supported by Michigan law in the case of Fox v Bd of Regents of the University of Michigan, 375 Mich 238, 242-243; 134 NW2d 146 (1965), which held, inter alia, that immunity (and any failure to plead around immunity) can be raised at any time, even on appeal, even after the appeal is over.
These may seem harsh rules as written, but their application is necessary in the context of public defendants precisely because the entire risk of litigation and liability is placed on the public fisc and the insurers of that risk are the taxpayers themselves.
Given the volume of public services rendered by public defendants, the strict adherence to the notice provisions (as well as to the elements within the statutes allowing suits) must be observed and the jurisdictional bar imposed for a failure thereof must be recognized.
It is well established in Michigan that jurisdictional defects cannot be waived. Travelers v Detroit Edison, 465 Mich 185, 203-204; 631
NW2d 733 (2001). Second, governmental immunity is not a defense but an inherent characteristic of government and cannot be waived by the entity’s failure to plead it. Mack v City of Detroit, 467 Mich 186, 203, 226 n 18; 649 NW2d 47 (2002). Third, because the question of immunity is jurisdictional, the court must, like all courts, consider it, even sua sponte, if necessary. Fox, 375 Mich at 242-243. Fourth, the question of retroactive application should not pose a problem because the law always was that MCL 224.21 applied to County Road Commissions. See Harston v Eaton County Rd Comm’n, 324 Mich App 549, 558 and n 7; 922 NW2d 391 (2018) (published and not appealed and the companion case to Estate of Pearce v Eaton County Rd Comm’n, appeal of which is being addressed by the Court’s grant order).
The outcome of this case will be very important in the heretofore (relatively) solid tapestry of law in Michigan protecting governmental entities; a tapestry that has maintained its integrity by a careful attention by the Supreme Court to the fundamentals of governmental immunity and the Legislature’s limited waiver in the 1964 GTLA.
Attorney Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade. Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, inter alia:
- Menard v Imig, et al., (Michigan Court of Appeals 2018), briefed and argued by Carson J. Tucker (2018), application pending in Michigan Supreme Court.
- Richko v Wayne County (6th Cir. 2016), United States Supreme Court (2017), petition for certiorari settled before disposition, briefed by Carson J. Tucker for Wayne County
- Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
- Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker for SMART in the Supreme Court
- Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals
- Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals and Supreme Court
- Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker for Wayne County in the Supreme Court
In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases, inter alia:
- Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
- State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
- Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
- Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker
Mr. Tucker regularly writes amicus curiae briefs for governmental entities, non-profit organizations, and private entities and individuals in the United States Supreme Court, and all lower state and federal courts. One of the four major areas of his consulting and legal practice firm is providing the full suite of amicus curiae brief services.
Supreme Court’s April 24, 2020 Grant Order in Brugger: