*1 v Co Rd Comm Rowland Washtenaw ROWLAND v WASHTENAW COUNTY ROAD COMMISSION (Calendar 13). 4, Argued Decided Docket No. 130379. October No. 2,May 2007. brought an action in the Circuit Court Joanne Rowland Washtenaw against County Commission, seeking the Road dam- Washtenaw ages injuries plaintiff crossing for sustained the fell when while jurisdiction. street under the defendant’s The notice of the claimed injuries highway and on the defendant on the defect was served day subsequently 140th after the accident and the suit was filed. summary disposition The defendant moved for on the basis that plaintiff give injury alleged failed to it notice of her and the highway injury occurred, days defect from the time the within 691.1404(1). required by court, Swartz, as MCL The trial David S. J., Dep’t Hwys, denied the motion on the State basis Hobbs (1976), Comm, 398 Mich 90 and Brown v Manistee Co Rd (1996), that, showing prejudice which held absent a of actual governmental agency, provision to the the notice of MCL 691.1404(1) pursuant highway is not a bar to claims filed to the exception governmental immunity, MCL 691.1402. The Court of Appeals, EJ., J., concurring), and J. (Kelly, Donofrio, Zahra, unpublished curiam, opinion per affirmed in an issued December (Docket 253210), No. on the that basis it was bound to Supreme granted follow Hobbs and Brown. The Court the defen- (2006). application appeal. dant’s for leave to 474 Mich 1099 opinion joined by In an Chief Justice Justices Taylor, Supreme Court held: Corrigan, Young, Markman, 691.1404(1) plain language The of MCL must be enforced as requires injuries written. statute notice of sustained and highway given governmental agency defects to be to the within 120 days injury. Brown, Hobbs and which were built on an argument governmental immunity notice statutes are uncon- govern- stitutional or at least sometimes unconstitutional if the agency wrongly prejudiced, mental was not were decided. The provision notice has a rational basis and is constitutional. There prevent overruling are insufficient reliance interests to Hobbs and Brown. The decision to Hobbs and Brown must overrule given judgments be full retroactive effect. The of the trial court 477 Mich 197 Appeals Court of must be reversed and the matter must be entry dismissing of an order remanded to the trial court plaintiffs complaint. concurring, joined majority’s opinion Justice Markman, *2 except disputed 8 and 14. Justice Markman this case for footnotes by majority regard the criticisms Justice of the Court’s with Kelly precedent. to their attitudes toward He attached a chart summa- rizing precedents by the Court’s the that have been reversed majority since and drew a number of conclusions therefrom disagreement in with Justice Kelly. Reversed and remanded to the trial court. concurring dissenting in in Justice and Weaver, part part, I II Kelly’s agreed with and of Justice for parts opinion except and 13. footnotes 8, 10, 12, n concurring part dissenting part, in in Justice con- Kelly, by majority curred the the defendant with determination the entry granting summary was entitled to the of an order it and, therefore, disposition judgment Appeals the of the Court of and the order of the trial court must be reversed and the matter entry be trial must remanded to the court for the of an order granting summary However, disposition for the defendant. the majority considering in errs the issue whether the defendant must prejudice, plaintiff supply show actual because the failed to 691.1404(1). defendant with sufficient notice under MCL The granted summary disposition defendant should have been on this and, therefore, unnecessary basis it is for the to overturn Dep’t Hwys Hobbs v State v Brown Manistee Co Rd Comm. of justification special disregard prece- No exists in this case by dent created Brown and Hobbs. Even if Brown and Hobbs considered, they they should be should not overturned be because accurately Legislature enacting divined the intent of the in 691.1404(1). provision Application notice in MCL of the factors to decisis, overturning in be considered stare which are stated in Detroit, (2000), Robinson v 462 Mich 439 mandates that Brown Application and Hobbs should not be overturned. of the factors Park, City (2002), in stated Pohutski v Mien 465 Mich 675 for judicial determining given whether decisions should be retroactive applied prospectively. effect mandates that this decision should be Cavanagh, dissenting, Supreme Justice stated that the Court Hobbs, years ago correctly more than 30 decided and reaffirmed years ago Brown, government more than ten that the must prejudice show actual from a lack resulted of notice within the 691.1404(2) 120-day period highway of MCL before a defective untimely highway claim can be barred for notice of a defect and Co Rd Comm Rowland Washtenaw resulting injury. None of the factors that must be considered for overruling overruling precedent supports established an of Hobbs By inaction, Legislature acquiesced in the and Brown. its has 1404(2). repre- interpretation majority’s § The decision Hobbs departure sents a from an established rule of law that was not given prospective, The decision therefore should be foreshadowed. retroactive, application. rather than Highways Injury. — — Immunity Governmental Notice of 691.1404(1) plain language requires of MCL as a condition to any recovery injuries sustained as a result of a defective highway, injuries highway that notice of sustained and defects be given governmental agency days appropriate to the within 120 injury; adequate if notice is under the statute it is served days, prejudice actually no matter much suffered within how governmental agency; provision the notice is not satisfied if days injury, notice is served more than 120 after the even where prejudice governmental agency. there is no suffered

Thomas, Sciotti, & Garvey, Garvey (by PC. James McKenna), plaintiff. for the *3 P.C.) Prine,

Fordney, Coffey (by Prine & Andrew W. and & D. Haughey Roegge (by Smith Rice Jon Vander Henn) and L. the defendant. Ploeg William for Amici Curiae: Cox, Attorney General,

Michael A. Thomas L. Casey, General, Isom, Solicitor and Patrick F. Assistant Attor- General, ney for the state of Michigan.

Hicks, Mullett & R. Gregg, (byLiisa Speaker), PLLC Michigan Lawyers for Trial Association. Ross), Cooney, (by Mary

Plunkett & PC. Massaron for Michigan Municipal League, Michigan Municipal Pool, League Liability Property Michigan & Town- ships Association. Mich 197 Opinion of the Court

Johnson, Rosati, Field, (by & EC. LaBarge, Aseltyne Marcelyn Stepanski), Michigan Municipal A. for Risk Management Authority.

Taylor, C. J. The in this case is whether a notice issue to the defective provision applicable highway exception 691.1404(1), governmental immunity, MCL should be provides pertinent enforced as written. This statute part: any recovery injuries

As a condition to sustained any injured highway, person, reason of defective within days injury occurred,... from the time the shall a serve governmental agency notice on the of the occurrence of the injury specify and the defect. The notice shall the exact defect, injury location and nature of the sustained and the names of the witnesses known at the time the claimant. conclude that the of plain language We this statute should be enforced as injuries written: notice highway sustained and of the defect must be served on governmental agency days within 120 of the injury. previously This Court held Hobbs v Dep’t State 90, 96; (1976), 398 Mich Hwys, 247 NW2d 754 Comm, 354, 356-357; Brown v Manistee Co Rd (1996), 550 NW2d 215 showing absent actual prejudice governmental agency, failure to comply with the provision notice is not a bar to claims filed pursuant highway exception. to the defective Those cases are overruled.

Accordingly, the order of the trial court denying summary disposition to defendant on basis of reversed, judgment is of the Court of Hobbs/Brown Appeals affirming the trial court’s order also re- versed, and the case is remanded to the trial court for *4 entry of an order granting summary defendant disposition plaintiff provide because failed to notice Rd Comm Co Rowland v Washtenaw op Opinion the Court any recovery” to days a condition “[a]s within reason of a defective claims she sustained injuries she highway. history procedural

i. facts and fell and 6, 2001, Rowland February plaintiff On Joan Street at its inter- injured crossing Jennings while was Township Main Street Northfield section with alleged tripped Plaintiff that she County. Washtenaw “broken, uneven, dilapidated, depressed fell on and areas.” potholed and/or her on defendant Washtenaw

Plaintiff served notice day 140th after the County Road Commission on the against filed a defen- subsequently accident and lawsuit highway of the defective asserting applicability dant De- governmental immunity. MCL 691.1402. exception an and affirmative fendant road commission filed answer (failure to serve notice defenses that raised MCL 691.1404 subsequently a Defendant days) within 120 as defense. summary to MCR disposition pursuant moved for law) 2.116(0(10) 2.116(C)(7) (immunity granted (no fact), arguing, among of material other genuine issue with MCL things, plaintiffs comply failure to 691.1404(1) summary disposition. entitled it to (defendant must show

Relying on Hobbs/Brown enforced) trial the statute can be prejudice before genuine determined that there was issue court had shown concerning material fact whether defendant mo- denied the road commission’s thus prejudice summary disposition. tion for affirmed the order of the trial Appeals The Court of disregard urged panel court.1 Defendant (Docket curiam, Unpublished opinion per issued December 253210). No.

202 477 Mich 197

Opinion of the Court Hobbs and Brown construction of MCL 691.1404 on the basis that those cases wrongly were decided. The Court however, Appeals, noted that it duty-bound was to follow this Court’s construction of MCL 691.1404 and that binding decisions were unless the Supreme Court overruled them.

The road an commission filed for leave to application which this Court appeal, granted.2

II. STANDARD OF REVIEW This Court de reviews novo a trial court’s decision to deny a for summary motion disposition. Nastal v Hend & Inc, erson Assoc Investigations, 712, 720; 471 Mich (2005). Questions 691 1 NW2d of statutory interpreta tion are also de reviewed novo. Id. When construing a statute, primary this Court’s goal give is to effect to the Legislature. intent of the begin by We construing the language of the statute itself. When the language is unambiguous, we give plain the words their meaning apply statute as written. In re MCI Telecom (1999). 396, 411; Complaint, NW2d

III. ANALYSIS a. GOVERNMENTAL IMMUNITY AND THE DEFECTIVE HIGHWAY EXCEPTION It understood, is well challenged here, not that governmental agencies, with a exceptions, gen- few are erally statutorily immune from tort liability. gov- liability (GTLA), ernmental tort act MCL 691.1401 et broadly seq., governmental shields a agency from tort liability governmental “if the agency engaged in the exercise or of a discharge governmental function.” MCL (2006). 474 Mich Comm Co Rd Rowland v Washtenaw Opinion the Court 691.1407(1). exceptions to several The act enumerates pur- plaintiff a immunity permit governmental 4Ourdeci- agency.3 governmental against a claim sue examine MCL 691.1404. us to requires in this case sion indicated, provides: the statute previously As injuries any recovery for sustained As a condition injured highway, person, within any reason of defective occurred, injury except as days from the time the (3)[4] a notice shall serve provided in subsection otherwise injury agency of the occurrence governmental on *6 3 following exceptions the Legislature six in the GTLA: codified the 691.1402; exception, highway exception, the motor vehicle MCL defective 691.1406; propri 691.1405; public building exception, the MCL MCL the 691.1413; hospital governmental etary exception, the MCL function 691.1407(4); sewage system exception, disposal exception, the MCL Detroit, Further, recognized as in Mack v MCL 691.1417. we (2002), 186, 195; other areas outside the GTLA there are 649 NW2d against governmen Legislature specific actions a has allowed where notwithstanding governmental immunity, agency such as the Civil tal 37.2202(l)(a). Rights 37.2103(g) and Act. MCL provides: Subsection years injured age person of 18 at the time the If the is under the required by occurred,

injury the notice subsection he shall serve (1) injury occurred, days more than 180 from the time not attorney, may by parent, or next friend notice be filed which injured person physically legally appointed guardian. or If the notice, mentally incapable giving the notice he shall serve (1) days required by after the subsection not more than disability. In all civil actions which termination of the dispute, capability person physical of the is in that issue or mental provisions by of this the trier of the facts. The shall be determined provisions, apply charter statutes shall to all subsection municipal require or notices to counties ordinances which written corporations. only argues requiring notice after curiae in its brief that One amicus may injured persons still be is unreasonable because four months But, incapacitated. subsection which this concern is addressed giving physically mentally incapable notice to or allows someone who is days after the termination notice not more than 180 serve disability. 477 Mich 197 Opinion op the Court specify and the defect. The notice shall the exact location defect, injury and nature of the sustained and the names of the witnesses known at the time the claimant. 691.1404(1).] [MCL Plaintiff, having days served her notice 140 after her fall, acknowledges that she did not serve a notice on the road commission within 120 days of her accident. Given plain that language of the requires statute such notice as a recovery condition for for injuries sustained because of a highway, defective one merely reading the statute might assume that plaintiffs complaint would have been dismissed. Because this Court’s decisions in Hobbs and Brown engrafted an actual prejudice compo- statute, nent onto the the trial court could not dismiss the case.5 It is valuable in considering the defensibility interpretation of this of the statute to survey first Court’s concerning cases provisions, notice including provision at issue here. partial Justice contends in her dissent that we should avoid Kelly revisiting by holding plaintiffs Hobbs and Brown notice itself was identify defective did because it not the nature of the defect highway, not days. disagree because it was not served within 120 We question Legislature because the first is whether the can even enact a provision can, notice with a hard and fast deadline. If it an issue we opinion, examine in this then there is no need to determine the second question of whether the late-filed notice in this case would have been *7 adequate timely if it had been filed in a manner. While Justice Kelly reaching unnecessary rulings, accuses us of constitutional we believe it is say merely engaged statutory more accurate to analysis. that we have But, apply to be able to dispatch statute to the case at bar we have to readings the erroneous constitutional that were erected prevent engaging statutory analysis. courts to us from in a Hobbs/Brown Moreover, specifically argued plaintiff defendant comply failed to 691.1404(1) 120-day provision with the notice of MCL in its motion for summary disposition and Appeals the trial court and the Court of relied on circumstances, to not enforce the statute. Under such Hobbs/Brown it entirely proper for this Court to review whether Hobbs and Brown were properly decided. 205 Rd Comm Co v Washtenaw Rowland Opinion the Court THIS COURT’S CASELAW HISTORY of

b. STATUTES NOTICE INVOLVING Court, evidently detecting years earliest From its were even any if indeed impediments, no constitutional mandatory immunity governmental enforced urged, See, language. their according plain provisions notice 454; 69 111 Mich NW Muskegon, City Davidson v e.g., 17; 754 Detroit, 136 Mich 98 NW (1897); v Holtham 670 67; Mich 100 NW (1904); Detroit, 138 vWilton 119; Mich 110 NW 512 Detroit, 147 (1904); Barribeau v 346; 113 NW 1112 Detroit, 150 Mich (1907); McAuliff v (1907) Escanaba, 68; 117 154 Mich NW ; v Ridgeway (1908) 165; 118 155 Mich NW ; Rapids, v Grand Moulter 20; Jackson, 273 Mich (1908); v Northrup City Creek, 660; Battle (1935); v Sykes 262 NW 641 Detroit, Mich v (1939); Trbovich 286 NW 117 McDermott, Mich (1966); Morgan 142 NW2d 696 (1969). 333; 169 NW2d are provisions notice leading upholding cases Moulter, Trbovich, In this Court Moulter, Morgan. arising from injuries to recover for right held that the sidewalks, streets, and so highways, repair lack of that it was discretion- forth, statutory and purely was upon it would confer Legislature whether ary with Moreover, any rights right a of action. injured persons to limita- subject could be the government to sue given theory was implicit chose. The Legislature tions the or economic social were provisions that such notice had that, Legislature because legislation most requirements for the notice rational basis —the re- meaningful investigations facilitating being obvious and allow- injury time of conditions at the garding other accidents— preclude as to repair so ing quick Further, constitutionally permissible. the statutes were Court to that for the indicated in Trbovich the Court *8 477 Mich 197 Opinion of the Court not Legislature’s accede to the authority in this fashion would be to unconstitutionally usurp legislative author- ity. Finally, in the Court Morgan reaffirmed that then 60-day notice requirement in defective highway simply cases was that, condition of liability and unless fulfilled, it was there was no liability.6 1969, therefore, As of of enforceability notice requirements and the particular notice requirements in governmental immunity cases was well settled and had been enforced for almost a century. 1970, In however, there was an abrupt departure from holdings these in the Court’s decision in Grubaugh Johns, v City St of (1970). Mich 180 NW2d 778 In Grubaugh the Court discerned an unconstitutional process due depri- vation plaintiffs if suing governmental defendants had different rules than plaintiffs suing private litigants. As a result, Moulter was not followed.7 years later,

Two in Reich v State Hwy Dep’t, 386 Mich 617; 194 (1972), NW2d 700 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. analysis again was that the constitution forbids treating injured those by govern- mental negligence differently from those injured by a (CA See also Comm’rs, Kraus v Kent Co Bd Rd 385 F2d 864 1967), upholding diversity dismissal of an action in a case because of noncompliance with the notice statute. 7 Actually, opinion Grubaugh the lead stated that Moulter was But, opinion only overruled. signed by justices the lead was three and two justices only other concurred in the circumstances, result. Under such Grubaugh binding precedent. was not explained As Negri this Court v Slotkin, 105, 109; (1976), 244 NW2d 98 decisions in which no justices participating agree regard reasoning with to the interpretation are not an authoritative under the doctrine of stare decisis. Co Rd Comm Rowland Washtenaw Opinion the Court unusual Leaving aside the negligence. private party’s the constitution to another from one section of switch this claim adjudication unconstitutionality, justify an *9 can public and tortfeasors incorrect. Private simply is fashion have been differently they in the he treated the the It not offend Legislature. here does treated or social to do so with economic constitution because statute, there can be legislation, such as this regulation is persons if there made classes distinctions between v explained Phillips to basis do so. As we rational 431-433; Mirac, Inc, NW2d 470 Mich drawing (2004), invariably involves line legislation line not violate involving drawing does legislation social guarantees it a “rational equal when has protection to a basis,” i.e., rationally as it is related long as of a legitimate governmental purpose. The existence fully, clear, here as we will discuss more rational basis the road be already justification, the that but even cited injury, to further will suffice. repaired promptly prevent the BRENNAN in his Considering point, same Justice in Reich out the with pithily pointed problems dissent analysis: majority’s the immunity legislature governmental

The declared has liability. legislature provided specific has from tort The legislature imposed The exceptions to that standard. has gov- exceptional specific upon conditions instances liability. legislature power has the to make ernmental The proper its when laws. This Court far exceeds function these [386 unfair and unenforceable. it declares this enactment 626.] Mich at McKernan, 390 Mich year,

The next Carver from (1973), the Court retreated 211 NW2d that and, ruling, in a novel held and Reich Grubaugh in the notice provision six-month application (MVACA), MCL Act Motor Accident Claims Vehicle Opinion of the Court 257.1118, constitutional, that the provision was enforceable, was the failure only give thus where to notice prejudice resulted in to the party receiving notice, in that Accident case Motor Vehicle Claims (MVACF). Fund reasoning was while some notice provisions may constitutionally be permitted be, may some not on depending purpose the notice Thus, if notice serves. served a permissible purpose, such prevent prejudice, as to it passed constitutional (the But, muster. if it served some purpose other Court other) could not imagine any even then the notice required by the statute became an unconstitutional legislative Thus, requirement. the Court concluded that in order being to save statute from held unconsti- tutional, it had allow notice be given after six months and still be governmental effective unless MVACF, agency, there the prejudice. could show What- *10 ever a court do to save may being a statute from held to unconstitutional, be surely engraft it cannot an amend- statute, ment to the as was in See, e.g., done Carver. North Community Ottawa v Hosp Kieft, 394, 457 Mich (1998). 14; 408 n 578 267 Notwithstanding NW2d these problems, they went unnoticed the and rule now was “only upon a of showing prejudice by failure give to notice, such the may claim the fund against be dis- Carver, missed.” 390 Mich at 100.

Returning 1976, to the Carver in approach this Court Hobbs, in 96, Mich at regarding 398 held the notice requirement in the highway defective exception to governmental immunity: equally applicable

The rationale of Carver is to cases brought governmental liability the under act. Because prejudice actual the state to due to lack of notice within 120 days only legitimate purpose posit is the canwe for this provision, prejudice notice absent a showing of such 209 Co Rd Comm v Washtenaw Rowland Opinion of the Court 691.1404] in not a bar provision [MCL contained is notice [MCL 691.1402]. pursuant to claims filed 1996, Brown, in in this Court reassessed Finally, and declined to overrule of the Hobbs decision propriety legislative acquies- and it on the basis of stare decisis cence.8 8 holding. the Court’s Justice Justices dissented from Riley Boyle participated in participate, presumably did not because she had

Weaver judge. Appeals as a of the case Court Cavanagh legislative argue acquies and Justice that Kelly Justice erroneous of should Hobbs Brown’s construction cence save Michigan But, at least has been the rule since notice statute. it Co, 261; 243, Donajkowski 574 Alpena v Mich 596 NW2d Power 460 recognized (1999), legislative acquiescence that the of not doctrine Comm, Mich As in Nawrocki Co Rd 463 this state. we noted v Macomb (2000), 143, 33; legislative acquiescence 177-178 n 615 NW2d 702 “ construction; statutory highly ‘is a disfavored doctrine doctrine statutory require Michigan principles courts construction sound ” words, Legislature’s intent from not from its silence.’ determine its omitted.) (Citation professed fealty omitted; emphasis Kelly’s Justice overruling apparently prevent her from sub stare decisis would not legislative acquiescence rejected all the we silentio cases where Borchard-Ruhland, See, Donajkowski; People e.g., 460 Mich doctrine. v Detroit, 286; (1999); 439,466; 278, 613 1 v 462 597 NW2d Robinson Mich Nawrocki, Comm’rs, (2000); supra; 307 Hanson v Mecosta Co Rd NW2d 492, (2002); DaimlerChrysler 502; v Mich 638 NW2d 396 Robertson 465 760; (2002); People Hawkins, 732, 468 Corp, Mich 641 567 v 465 NW2d 661, 488, 506-507; (2003); Wilkes, v Mich 668 NW2d 602 Neal 470 Mich (2004); Ass’n, 11; Club n 685 648 Devillers v Auto Ins 668 NW2d 592; (2005); Dep’t 562, Transportation, 475 Grimes v 702 NW2d 436, 445; (2006); Anstey, People v Mich Mich 715 NW2d 275 Hts, 495, 516; (2006); Paige Sterling Mich 719 NW2d (2006). NW2d here, Furthermore, has circumstance such as where the Court in a doing precludes Legislature from as it wishes said the constitution (thus legislative impossible) legislative making action the desired *11 argument entirely misbegotten. acquiescence Justice claims that Kelly is identifying simply Legislature the statute have reenacted after could “only” First, disagree. Hobbs Court said the additional intent. We an prevent legitimate surmise for the notice statute was to reason it could Inescapably prejudice government. must be to mean that to read 477 Mich Opinion of the Court c. HOBBSANDBROWNWERE DECIDED WRONGLY ANDPOORLYREASONED The simple fact is that Hobbs and Brown were wrong they because built on argument govern- were an that mental immunity notice statutes are unconstitutional or at least sometimes if the govern- unconstitutional ment prejudiced. reasoning was not This has no claim to being theory defensible constitutional and is not res- “ cued to the musings justices effect that ‘look ” askance’ at such requirements, devices as notice Hobbs, 96, Carver, 398 Mich at quoting 390 Mich at or the pronouncement that other reasons that could a supply rational basis were not be considered because in eyes “only the Court’s legitimate pur- pose” of provisions the notice to protect was from prejudice.” Hobbs, “actual 398 Mich at 96. error

Perceiving the of the majority, Justice RILEY explained in her dissent in Brown that this notice statute legislation is social that is constitutional be- cause it has a rational basis. She stated:

I note scrutinizing “[w]hen economic and social legislation, applies this Court the rational basis standard of Group Southgate, review.” Downriver Plaza v 444 Mich legitimate. Thus, other adding reasons would not be found another hardly option Legislature. reason would be seen as a viable any for the In event, Legislature required not in a indicate statute what its Rather, duty motivations are. it is a court’s in “rational basis” cases such “ ‘ constitutionality as “any this to find if facts state of either known or ’ ” reasonably which could support” be assumed affords for the statute. (citations Brown, omitted). supra at 362 Justice herself has said Kelly (2003). Harvey Michigan 1, 13-14; this. 664 NW2d 767 argues Legislature Justice also that the could have amended Kelly presumption prejudice. Revising statute to include a the statute in manner, however, such a produced Legislature would not have what the clearly readily wanted—a statute with a identified and enforceable require showing deadline prejudice anything that does not or else to be enforceable. *12 211 Comm Co Rd Rowland v Washtenaw Opinion of the Court (1994). then, is only inquiry, 656, 666; 513 NW2d 120-day notice creating a legislation this social whether a rational basis. has requirement minimal rational passes the legislation particular This authority to test, in Hobbs was without the Court and basis every case. each and prejudice in showing of require a reasonably provide the rationally and provisions Notice a investigate evaluate to opportunity with state 370.] atMich [452 claim. constitutional, “saving no the statute was

Because Thus, the en- allowed. necessary or was construction” the statute onto requirement prejudice of the grafting entirely indefensible. was purpose legitimate for a

Further, in the search Escanaba, v Ridgeway holding provisions, notice instruc- (1908), is also 72-73; 117 NW 154 Mich a full-throated gave Court that It was there tive. it discerned: purpose of the statement give to legislature intended to say must that We unjust against protection some in such cases defendants of prosecution unscrupulous treasuries upon raids their claims, by requiring a exaggerated, and stale trumped-up, city village or information to the give definite claimant to asserted, the matter is a time when at against whom it is and to fresh, unchanged, thereto and witnesses conditions law, necessary to the just reach. It is a within the accident unjust taxpayer, bears the burden of the who protection ordinary knowledge and dili- only requires judgments. It counsel, and there injured and his part of the gence on the requirements from the relieving them no reason for any other applicable to not be that would this statute of limitation. statute legislative possible consider as

It is also useful discussed purposes notice statute for the reasons State Secretary of Lisee cases the consolidated (1972). Lazaruk, Mich 199 NW2d Howell v [May- Opinion of the Court In cases, suggested those while purpose of the statute afford an opportu- notice was to nity investigate claim and to the possible determine liability MVACF, of the Justices BRENNAN and BLACK dissented in part, pointing reasons, out additional be- yond majority, those mentioned for requiring notice. These included time for allowing creating re- Fund, reducing serves for the the uncertainty demands, extent of future or even to force the claimant *13 to an early regarding proceed. choice how to Because MVACF, these context apply they the could also have been in minds of Legislature at the time MCL 691.1404 enacted. was

These likely possible or even reasons cited above must be considered as rational supplying the basis that constitutionality, assures because, Justice as CAVANAGH Brown, supra pointed out in reciting at the vener- able matters, duty rule in such it is our rational basis “ cases to constitutionality find if 'any state of facts either known which reasonably or could be assumed ” (Citation omitted.) affords for support’ the statute. It is the case then that there is unquestionably now, and then, there was a “rational finding, basis” for even as earlier, Justice RILEY did a rational basis this statute and the it draws. distinctions

Moreover, common sense counsels inasmuch as the Legislature not required provide even a defec- tive highway exception to governmental immunity, it surely authority has the only allow such suits upon compliance with rational notice limits. As this Court stated in Moulter: being optional legislature

It with the whether it would upon injured confer persons right of action therefor or remediless, leave them it right could attach to the con- any ferred it [155 limitations chose. Mich at 168-169.] 213 Co Rd Comm v Washtenaw Rowland Opinion of the Court cited previously other cases and the sum, Moulter In constitution. in accordance with decided were reject muster. We constitutional passes provision notice Hobbs, Carver, constitutionality of the sort hybrid an reading In law.9 onto our engrafted and Brown statute, into the requirement prejudice” “actual but power Legislature’s usurped only not Court to make amendment legislative simultaneously made with provision notice wanted —a Legislature what Hobbs and requirement impossible. prejudice no — judicial usurpa- of in the annals remarkable Brown are they only not seized power because legislative tion of made also but powers,10 amendment Legislature’s 9 Cavanagh minority made similar argues of courts have that a Justice much, of acknowledge note that the vast rulings. as but We challenge has a constitutional jurisdictions considered such that have placed on rules statute-of-limitations notice-of-claim and concluded that rationally against governmental are bringing entities persons actions tort equal purposes legislative and thus do not violate to reasonable related 468; Co, P2d See, Diego 2d 426 e.g., 66 Cal protection. Tammen v San Colorado, (1967); Regents 196 Colo 753; Rptr Fritz v Cal 249 of Univ (Fla, Wales, (1978); City 144 So 2d 505 335; Lake McCann v 586 P2d 23 (1975); King State, 711; v 1962); 535 P2d v 96 Idaho Newlan (1970); Maryland State Johnson, 247; v Johnson 47 Ill 2d 265 NE2d Lincoln, City (1993); Campbell Police, Md 628 A2d *14 Atencio, Housing (1976); Espanola 90 703; Auth v 240 NW2d 339 Neb (ND, (1977); Magnuson, 445 787; 277 NW2d Herman v 568 P2d 1233 NM 1980); (Okla, Ed, James v 1979); 611 P2d 239 Bd Reirdon v Wilburton 137; Auth, Transp 477 A2d 1302 Pennsylvania 505 Pa Southeastern (SD, 1980); City Assoc, 489 (1984); 287 NW2d & David Budahl v Gordon (1941); Sears v Landingham, 631 138 Tex SW2d vWaco of Southworth, 1977). majority agree rule. (Utah, the with 563 P2d 192 We Supreme John Marshall Harlan Court Justice As United States 537, 558; Ferguson, Plessy 16 S 163 US dissent in v in his famous stated (1896): 1138; 41 L Ed 256 Ct duty by executing discharge the will their [T]he courts best leaving constitutionally expressed, law-making power, through people their legislation with to be dealt results of representatives. 477 Mich 197 Opinion op the Court any reversing amendment by Legislature impos sible. Nothing can be saved from Hobbs and Brown because the analysis they employ is deeply flawed. Accordingly, we must next consider if considerations of stare decisis should cause us to retain this poorly reasoned precedent.

IV STAREDECISIS In determining whether to overrule a prior case, this Court first considers whether the earlier case was wrongly decided. Robinson v Detroit, 462 Mich (2000).12 463-468; 613 NW2d 307 As we have previously explained, we are persuaded that Hobbs and Brown rule, In a more recent iteration of the we stated in DiBenedetto v West Hosp, 394, 405; Shore (2000), 461 Mich may NW2d 300 that courts plain not statutory language “rewrite the policy and substitute our own already decisions Legislature.” for those made Lansing Accord Mayor Comm, (2004). 154, 161; v Pub Service 470 Mich 680 NW2d 840 In short, authority this Court had no to add words or conditions to the statute. In her repeats dissent Justice the error of the Hobbs and Kelly concluding Brown only courts in that the supporting rational basis statute is that which the upon: prejudice Hobbs and Brown courts fixed government to the only ask, why tortfeasor. One can only is this the use, allowable rational basis? Must here, we not as the has rule that Harvey Justice Michigan, herself used in v Kelly that a court constitutionality any must find if state of facts either known or which can reasonably support? be assumed affords reasons, Because there are such beyond what found, the Hobbs and Brown courts themselves as discussed opinion, why apply Indeed, does this rule not here? if as Justice Kelly apparently concludes, not, it does what is her test for when the rule inapplicable? gives She none. analyze This is not how a court should application matters because it law, makes future should her view prevail, entirely predictability. without prescription This is a for chaos injustice. 12See, also, Paragon Bridge Co, 366, 377; & Steel Halfacre (1962) (Courts 118NW2d455 “right duty have the to re-examine and again, be, statutory re-examine construed.”). need already judicially enactments if added.) (Emphasis *15 Comm Co Rd v Washtenaw Rowland Opinion Court of the if instructs that next Robinson wrongly decided.13 were then decided, the Court should wrongly was a case prior decision whether the interests: reliance examine deci- prior the workability”; whether “practical defies every- to embedded, fundamental so so sion has become not produce it change that to would expectations one’s disloca- real-world practical but readjustments, just longer or facts no in the law tions; changes whether the deci- decision; prior and whether prior justify Robinson, su- a statute. misread or misconstrued sion at 464-467. pra forth, that convinced, set previously are as

We and misconstrue did in fact misread decisions prior goal workable, assuming that and left it less statute investigation, as to facilitate to notice so provide was as well as resolution, rapid repairs, road claims govern- and the like self-insured creation of reserves provided, notice is not prompt entities. When mental accordingly less work- is legislative the entire scheme able. reliance interests reliance, find insufficient

As for we and Brown. When overruling from Hobbs us prevent Brown, of Hobbs and effect practical one focuses on other- injured plaintiffs, evident that quite it becomes to have lawsuits, highly unlikely were able to file wise than 120 longer for periods their lawsuits delayed filing argues principle decisis should of stare Justice that Kelly overruling note that and Brown. We prevent Court from Hobbs quite fealty precedent selective. She shows no is Justice Kelly’s precedent upheld disregarded years that had that Hobbs concern Indeed, immunity provisions. of the criticisms governmental each notice actually applicable way to the Hobbs more sends our Kelly Justice ignored, lightly years precedent be what If should not Court. any event, years precedent? ignoring In we have Court Hobbs they do not applied decisis factors and concluded the Robinson stare overruling against and Brown. Hobbs counsel 477 Mich 197 Opinion of the Court

days in reliance on all, these cases. After what plaintiff *16 would take the chance that the defendant could actually show prejudice after the 120th day thus lose his or her cause action when before that time it would be irrelevant whether there was prejudice? Accordingly, we any plaintiff, doubt that because of the perils inevitable such a delay entails, actually decided to not serve notice days within 120 in reliance on Hobbs and Brown. Further, while the rule of Hobbs has been uncontra- dicted for years, any lawyer following the decisions of this Court for the last years seven would know that the “text ignoring” approach in manifested the holdings of Hobbs and Brown repudiated has been repeatedly in the past by recent this Court. Nowhere was this more forcefully Nawrocki, stated than in itself a supra, gov- ernmental immunity case involving the high- defective way exception, where we said that a court is most strongly justified in overruling precedent when adher- ence to the precedent would perpetuate a plainly incor- rect interpretation of language Nawrocki, in a statute. 463 Mich at 181.

Robinson also held that any statutory analy- reliance sis has to be in light considered of the plain language of the statute. We stated: Further, it is discussing reliance, well recall in when

dealing with an area of the statutory..., law that is that it is to the words of the statute itself that a citizen first guidance looks for in directing his actions. This is the essence of the rule of law: to know in advance what the society Thus, rules of are. if the words of the statute are clear, the actor expect, is, rely, should be able to that that they will be society, carried out all including in fact, courts. In should a court legitimate confound those expectations by citizen misreading or misconstruing a statute, it is that court itself that disrupted has the reliance happens, court, interest. When that subsequent rather Co Rd Comm Rowland Washtenaw Opinion of the Court reading because of the doc- holding than to the distorted decisis, the earlier court’s should overrule trine of stare in The reason for this is that the court misconstruction. judicial engaged in a form of distorting the statute was principle counter to the bedrock usurpation that runs constitutionalism, i.e., lawmaking American reposed people in the as reflected the work power is violation, and, Legislature, a constitutional absent nullifying legitimacy overruling or courts have no Moreover, only not such a people’s representatives. does ability rely on a compromising a court of the citizen’s warrant, gain have no constitutional it can no statute [Robinson, higher pedigree repeat as later courts the error. supra 467-468.] at fully from Robinson overrul- language supports

This Hobbs and Brown this Court in those cases ing because legitimate expectations by confounded citizen misread- *17 it ing misconstruing Accordingly, and a statute.14 was disrupted this Court in Hobbs and Brown that 14 Kelly repeats partially dissenting opinion in her We note that Justice alarming the canard that this Court has overruled cases at an rate. As we Hts, 514, fallacy recently Paige Sterling supra in v at of most said Sington Chrysler in these statistical false alarms was demonstrated 144, 166-170; (2002), Detroit, Corp, 467 Mich 648 NW2d 624 and Mack v (2002). 186, 211; Moreover, 467 Mich 649 47 an article Victor E. NW2d Schwartz, jurisprudence Michigan Supreme A critical look at the of Court, 38, (January, 2006), methodological Mich B J 41 shows the falling” arguments. sky failures of these various “the is study by Berg Michigan that a Todd C. in Kelly Justice claims Lawyer’s Weekly at a rate four shows that this Court has overruled cases (41 13,923 previous overruling precedent out of times that of courts cases dispositions percent one 15 cases between 2000 and 2005—V3 —versus 16,729 overruling dispositions precedent out of between 1994-1999 V21 — math, Leaving percent). when the of one aside Justice incorrect Kelly’s periods figures during cited it obvious that both actual are seems compared was miniscule when with number of cases that were overruled percent dispositions. The difference between of one the number V21 only inconsequential percent difference. It can of one is an statistical V3 alarming way arresting he made to look if one stretches for most 477 Mich 197 Opinion of the Court to describe it. That is what Justice has done here. We invite Kelly reinforces, believe, scrutiny study by Berg Mr. it because we point making. arewe evaluating In further Justice claim that this Court has Kelly’s usual, more than overruled cases we would call attention to the relying regarding in on difficulties earlier statistics overruled cases. As explained Ass’n, 6; in Devillers v Auto Club Ins 473 Mich 567 n (2005), years NW2d 539 it was not uncommon this Court in earlier to clearly overruling being fail to state that cases it A was were overruled. good practice example of this is set forth in Mudel v Great Atlantic & (2000). Co, 691, 708; Tea 462 Mich 614 NW2d 607 In Mudel Pacific Foods, Remand), expressly (After Court overruled Bil-Mar Inc Goffv 507; (1997), years Mich which was decided NW2d five after (1992). Co, But, Holden v Ford Motor 484 NW2d 227 Goff acknowledge overruling had failed to it that was Holden. As stated in we “Therefore, overruling Mudel-. unlike the unstated but effective Goff, expressly Goff, Holden in we overrule insofar as it contradicts the statutory language departs from our decision in Holden.” 462 Mich Indeed, apparently at 708. Justice would continue with this Kelly approach clearly identifying of not overruled cases. She refers to numer- rejected legislative acquies- ous cases in this Court that the doctrine of “rogue” But, cence as decisions. Post at 261-262 n 17. then she asserts overruling persuade that she would not be such cases if she could three justices approve legislative acquiescence other of the discredited Again, doctrine. this illustrates the fact that Justice would not Kelly actually include cases she overruled in the list of she cases admitted overruling. Next, analysis, Justice to discredit the above indicates that she Kelly, appeal calculating would not count cases where we denied leave to how frequently Why presumably cases were overruled. not? Each case relied precedent, appeal, on earlier and when this Court denies leave to it leaves precedent concurrence, intact. See further Justice Markman’s which provides thorough response an excellent and even more to Justice Kelly’s claim. meritless Finally, response challenge give to Justice Markman’s her cases, overruling responds approach, standards for she not an with but puzzling rely interpretive awith indication that she on *18 would tools such rules, they as the absurd results rule. Whatever the merits of those length by years, they have been discussed at in Court recent have nothing determining precedent to do with when should be In overruled. short, response response question her ais to a not asked. The reader need not be without resources in this situation because Justice has Kelly already Sington Chrysler Corp, tendered an In answer. v Rd Comm v Washtenaw Co Rowland Opinion of the Court they mean what reliance interest that statutes citizens’ of Hobbs and to the error say. perpetuate We refuse Brown15 clear, straightforward, unambigu-

MCL 691.1404 is Accordingly, we ous, constitutionally suspect. and not written. As this conclude that it must be enforced as DaimlerChrysler Corp, Court stated Robertson v 732, 748; (2002), Legislature “The Mich 641 NW2d 567 meaning plainly intended the it has presumed is to have clear, expressed language judi- and if the is expressed, and the statute must permitted cial construction is not Thus, requires enforced the statute he as written.” directed, and is if given adequate notice to be notice as days complies it is served within and otherwise with statute, i.e., it requirements specifies defect, exact location and nature of the the injury sustained, of the at and the names witnesses known claimant, prejudice time no matter how much is actually Conversely, provision the notice is suffered.16 not satisfied if notice served more than 120 after days the accident even there is no prejudice. if (2002), n 648 NW2d 624 she said she not reexamine would nonsensical,” precedent prior “utterly unless the decision was or re- unworkability approach flected a “drastic error.” We discussed the of this response Sington. in our her in properly Kelly In dissent Justice derides our effort to construe previous judicial “second-guessing.” statute after deconstructions as really comply Does she think that we with the oaths we took when we do Legislature in not follow the clear directions of the statutes and when we ignore past adhering cases to those directions? We do not. We believe the approach most defensible is to overrule cases when the criteria set forth are Robinson Detroit satisfied. 16Indeed, it, prejudiced in Brown the road commission was because accident, repaved that there had been an the road unaware where 120-day period expired. happened accident before the notice This made ability plaintiff proceed difference in the with his no lawsuit. Mich 360 n 11. at *19 220 477 Mich 197 Opinion of the Court V RETROACTIVITY question The final is whether our decision to overrule Hobbs and Brown should have retroactive effect. As this Park, City Court held in Pohutski v Allen 465 Mich (2002): 675, 695-696; 641 NW2d 219 judicial Although general rule is that decisions are effect, given Hyde Michigan full retroactive v Bd Univ of 223, 240; (1986), Regents, 426 Mich 393 NW2d 847 a more injustice approach might flexible warranted result where retroactivity. Lindsey Harper Hosp, from full v 455 Mich (1997). 56, 68; example, holding 564 861 For a NW2d that precedent may properly overrules settled be limited to prospective application.

The threshold “the question is whether decision clearly principle established new of law.” Id. at 696. If so, the factors to be considered in determining whether general rule should not be followed are

(1) (2) rule, purpose to be served the new the extent (3) rule, retroactivity on of reliance the old the effect of justice. on the [Id.] administration of Pohutski, In gave this Court effect to prospective its overruling decision v Oakland Co Drain Hadfield (1988). Comm’r, 139; 422 Mich NW2d 205 expressed Court its concern that “trespass- exception governmental immunity nuisance” recog- nized in had induced reliance both govern- Hadfield agencies mental public, insofar as “municipalities encouraged have been in- purchase surance, while discouraged homeowners have been Pohutski, from doing the same.” 465 Mich at 697. Further, the then-recently Court noted that the enacted 691.1407, MCL which provided recovery for a “sew- event,” age disposal system and, prospective only was therefore, would leave an entire class of homeowners Rowland v Washtenaw Co Rd Comm Opinion of the Court without a remedy. considerations, Given these unique the Court applied prospectively. Pohutski

However, Hathcock, v Wayne 445; Co 471 Mich (2004), NW2d this Court overruled Poletown Neigh Detroit, borhood Council NW2d (1981), and applied the decision retroactively. The Court explained today decision does not “[o]ur law, announce a new rule of rather but returns our law to that which existed before Poletown and which has *20 been mandated our Constitution since it took effect Hathcock, in 1963.” 471 Mich at 484.

Likewise, a overruling decision Hobbs sendBrown will return our law to that which existed before Hobbs and 691.1404(1). Hathcock, which was mandated MCL In at n supra 484-485 this Court explained further its determination to apply the decision retroactively:

First, presents exigent this case none of the circum- stances that prospec- warranted “extreme measure” of application Second, tive in Pohutski.... there is a serious question constitutionally as to whether it legitimate purely this Court to render prospective opinions, such as are, essence, rulings advisory in opinions. Likewise, case, in the instant there exist no exigent circumstances that would warrant the “extreme mea- sure” of prospective application. Pohutski, Unlike in no one adversely positioned, believe, was in we reliance on Hobbs and Brown.

In Ins Ass’n, 562; Devillers v Auto Club 473 Mich (2005), NW2d 539 this Court overruled Lewis v Detroit Exch, Automobile Inter-Ins 393 NW2d 167 (1986), and also applied retroactively. decision This Court explained: recently Hathcock, As we reaffirmed in prospective-only “

application generally of our decisions is ‘limited to deci- ” sions which overrule clear and uncontradicted case law.’ 477 Mich 197 Opinion of the Court time, that, engrafted onto anomaly for the first Lewis is an 500.3145(1)] tolling clause that has a [MCL the text of absolutely Lewis itself in the text of the statute. no basis consciously inexplicably and upon case law that rests holding precedent that contrac- departed from decades of statutory relating terms to insurance are be tual and according plain unambiguous terms. enforced to their Thus, and uncontra- Lewis cannot be deemed a “clear application might prospective that call for dicted” decision Hathcock, Much like our present in the case. our decision rule, not a declaration of a new but a return decision here is legal controlling to an earlier rule and vindication authority here, “one-year-back” limitation of MCL — (citations 500.3145(1). [Devillers, 473 Mich at 587 omitted).] emphasis case,

Likewise, anomaly in the instant Reich was an time, that, requirements for the first held that notice later, Carver, year decided one violated the constitution. contradictory made the conclusion such notice constitution, but it requirements did not violate still prejudice” requirement invented an “actual out of “actual adopted whole cloth. Hobbs and Brown Carver, clear prejudice” requirement despite from requirement lack of that the statute itself. As *21 Hathcock, here not a Devillers and “our decision is rule, declaration of a a return to an earlier rule new but controlling legal authority”— and a vindication of 691.1404(1).17Further, the of MCL enforcing language overruling precedent usurped legislative power legitimacy restores to the law.

Finally, years like the Court almost 100 Ridgeway ago, public we are mindful of the fact that the fisc is at Kelly’s Thus, reject today we Justice claim that our decision tantamount to a new rule of law. Rowland v Co Rd Washtenaw Comm Concurring Opinion by Markman, J. risk in these cases.18The to expand decision the class of those entitled to recovery against government seek should be in the of Legislature. hands This Court does not have the authority government’s to waive the immunity suit, from only and tax dollars should be at risk when a all plaintiff satisfies the prerequisites, including provision, notice set the Legislature for exceptions governmental one immunity. Accordingly, we determine that our decision today to overrule Hobbs and given Brown shall be full retroac- tive effect because this decision simply restores due constitutional deference to the language statute.

VI. CONCLUSION Having overruled Hobbs and Brown with full retro- activity, we reverse order of the trial court and the judgment of the Court of Appeals and remand the case to the trial court for entry of an order dismissing plaintiffs complaint. JJ., concurred with

Corrigan, Young, Markman, Taylor, C.J. J. oconcurring). Justice KELLY has asserted MARKMAN,

once more her view that the majority is insufficiently respectful of the precedents of this Court.1I believe it is Detroit, As we noted in Mack v 467 Mich at 203 n a central purpose governmental immunity prevent is to a drain on the state’s by avoiding expense having resources even the to contest on merits any by governmental immunity. Ridgeway claim barred Accord v Es cariaba, 154 Mich at 73. opinion my response This constitutes exclusive to Justice Kelly’s concerning approach precedent join criticisms this Court’s I for do not majority opinion. criticisms, footnotes 8 and 14 of the In her Justice majority precedent “alarming Kelly claims that the overturns at an unprecedented rate,” decisis,” disrespect “exhibits for stare *22 Mich 197 [May- 224 477 Opinion Concurring Markman, J. this, in I have attached To assist respond. important during past the 40 the cases a chart that summarizes of this Court has been precedent in which a seven terms majority in the Court has been which overruled 2 KELLY. From this chart and against Justice aligned therein, I the draw cases that are referenced from the and the concerning precedent following observations current Court:

(1) majority the Court dispute The between KELLY in these 40 cases is less about attitudes Justice the merits of than about substantive precedent toward Justice KELLY is, That being the overruled. opinions being jus- and the agrees opinions with the overruled There no evidence majority in the do not. is tices KELLY, these 40 cases that Justice regard out of for stare decisis, a with which she precedent has ever sustained that Justice KELLY agrees with these disagrees, merely hand, rea- majority, on the other precedents.3 majority overturning precedent,” majority has is “intent on the any capable understanding than declared itself “more law... before,” justice majority [of a] has “ordained itself master who sat law,” majority “damages integrity judicial process,” higher of the majority “alarmingly activist.” and the is 2 during period, In this same the Court overruled three other cases Starks, alignment justices. People precedent, with a different v 473 but 248; 227; (2005); Lively, People Mich 136 v 470 Mich 680 NW2d (2004). Moore, (2004); People v 679 NW2d NW2d opinions against backdrop published of 543 These 40 cases occurred 18,500 dispositions during period and more than issued same applications appeal. for leave to imply Kelly Justice asserts that that she would “not have same I during respect if control of the Court switched” for stare decisis suggest n I that she her tenure. Post at 257 12. She further asserts that merely agrees precedent it].” [she “refused to overturn because with has Rather, I at 264 n 20. Neither of these assertions is accurate. what Post simply way one other that Justice state is that there is no evidence or the overruling precedent majority; any Kelly is more averse to than the there precedents merely approving Kelly is more evidence Justice majority. justice’s A that have been overruled this Court than the Rowland Washtenaw Co Rd Comm Concurring Opinion by Markman, J. chart, sons summarized believes that these 40 *23 precedent cases each overrules a of this Court in which the clear of the language misconstrued, law was or in policy which the of preferences justices were sub Thus, stituted for of the those lawmaker. the differences among justices in reflected these cases are focused on the precedent less role of than on the role of the in judge interpreting the law.

(2) Moreover, it noteworthy is that the ma- present Kelly’s jority, dissent, over Justice issued first-ever opinion of this Court that identified a clear standard for determining a wrongly when decided precedent war- rants overruling, recognized that a variety of con- siderations, including individual reliance interests and the extent to which a past decision has become embed- fabric, ded in the legal In anticipa- must be evaluated.5 tion the day of when her judicial own once philosophy again in prevails this Court and she is confronted with the 40 precedents of the present majority, Justice KELLY would do well to share her own standards concerning when she would or would not overrule obviously such precedents.6 distasteful perspective by willingness on stare decisis is not evidenced her to precedents agrees, maintain willingness with which she but her precedents disagrees. maintain with which she theAs most recent example willingness precedents of Justice to reverse Kelly’s with which actually disagrees, opinion Neshawat, Haynes she see her in 477 Mich 29; (2007), overruling 729 Michigan Prop NW2d 488 Kassab v Basic Ins (1992).

Assn, 433; 441 Mich 491 NW2d 545 4 obviously justice The summaries cannot do full to the issues involved designed in simply identify these are cases. These in the essential issue controversy in these 40 cases. (2000). Detroit, Robinson v 613 NW2d 307 response inquiry, posits In to this Justice Kelly now a standard that “ precedent absurdity, would assess whether a ‘free from not mischie ” practice, p vous in and consistent with one another.’ n Post at Mich 197 Opinion Concurring Markman, J.

(3) chart is significant point the most Perhaps attitude of a court’s meaningful no discussion solely on an arithmetical can be based precedent toward overrulings of are in numbers analysis which raw not all analysis an obscures that counted. Such simply alike, rea are that some are better precedents built are in the others, grounded that some soned than in and others judgments discretionary exercise of that some are thor language, interpretation plain superficial. The chart analyses in their and others ough occur overrulings precedent that the demonstrates overwhelmingly seven terms have ring during past in justices major in what the involving come cases misinterpretation straightforward ity view as the contracts, which phrases words and statutes read into the law or that were not there were words *24 that were there were read out of the law. Where words occurs, only not does this Court misinterpretation such law, eroding the the disregard duty interpret its to in powers process, of separation constitutional legisla in the compromises Court overturns made also of the process, second-guesses judgments tive law arbitrary and maker, increasingly and renders the law unpredictable.

(4) that the court present The chart also makes clear in majority stating expressly has been when disciplined The has never precedent a has been overruled. (citation omitted). sorts, of it is hard to While at least this is a standard imagine judges to and less deferential to the a standard more deferential law. proposition for Justice The instant case illustrates this well Kelly, majority, effectively engraft justices unlike the in the would onto MCL only language upholding 120-day requirement if notice there 691.1404 its government by supply “prejudice notice was caused to the the failure Thus, 120-day requirement such time.” notice would some within says policy not. times mean what it and would sometimes Whatever bench, language amendments from the such Kelly’s merits of Justice by Legislature. appears statute enacted nowhere within the actual Rd Rowland Washtenaw Co Comm by Concurring Opinion Markman, J. attempted precedent obscure when a was overruled precedents by or to minimize the number of such Rather, “distinguishings” prior dubious caselaw. it in forthright identifying critiquing prece- has been wrongly dents that were viewed as decided and war- demonstrates, ranting overruling. As the chart on a significant occasions, number of left past Court intact precedents that were inconsistent with new deci- sions, essentially allowing future litigants to choose among inconsistent in A B precedents as columns a Chinese restaurant menu. For this reason in particu- lar, while it may well be that the present majority has overruled precedents more than its predecessors during some equivalent period, selected this cannot be stated with confidence Justice KELLY or anyone else for it has not been demonstrated.8

(5) in debate which Justice wishes to par KELLY ticipate is one in which an overruling precedent, any overruling of is a precedent, thing “bad” and is to be She is in deplored. less interested the far more significant and nuanced precedents debate of when ought to be sustained and they ought when not to be. How does justice thoughtfully standards set forth Rob apply (2000)? Detroit, inson v 613 NW2d 307 justice How does a balance the respect need to precedents with his or her oath support United States and Michigan constitutions? When does a justice weigh his or her obligation to follow the her opinions prede- of his or *25 8 Kelly precedents during years Justice identifies 61 overruled in (or 43) question, identify. because, rather than the we This is in instances, multiple overrulings opinion several she treats as an overrul ing single proposition a of law that has been reiterated the Court. Thus, example, granting a decision to overrule the standard for summary judgment— opinions a standard in articulated countless of this might overruling opinions. Court— count as an of each of these Concurring Opinion Markman, J. “right”?9 obligation get to the law

cessors with his or her to these pat questions. or answers simple There are no it is that this Court Michigan, whose law people in this chart read the decisions contained may upholds, KELLY or whether Justice and determine for themselves in the have served better as stewards justices Michigan under the Constitution. judicial power of the Kelly light in Justice makes of what she describes as Court’s belief ’ ” ‘get “right.” duty” Michigan to the law its “solemn “rewrite caselaw Robinson, clear, p Although supra n . at 463-468 makes a Post at 256 10 as variety evaluating in of factors must be considered whether to overrule a thinking “getting right” precedent, I do confess to the law is a rather significant part responsibilities. Justice of this Corut’s constitutional For Kelly, however, misreading apparently acceptable long a of the as as it law is absurdity.” prefer from A rather tolerant standard. I would to hold “free higher interpreting people this Court standard will DaimlerChrysler Corp, representatives. their elected See also Robertson v 732, 756; (2002), system observing legal Mich that a NW2d 567 public may plain which “the read the words its law and have confidence they say” many goals that such words mean serves of the same as stare what decisis. *26 Rowland v Washtenaw Co Rd Comm Concurring Opinion by Markman, J. [May- Mich 197 Opinion Concurring Markman, J. *27 Rd Rowland Washtenaw Co Comm Concurring Opinion Markman, J. *28 Mich 197 Concurring Opinion Markman, J. *29 Rowland v Washtenaw Co Rd Comm Concurring Opinion Markman, J. [May- Mich 197 Concurring Opinion Markman, J. *30 ROWLAND CO RD COMM V WASHTENAW Concurring Opinion Markman, J. *31 [May- Concurring Opinion Markman, J. *32 Co Rd Comm Rowland Washtenaw Opinion Concurring Markman, J. *33 Mich Concurring Opinion by J. Markman, Rd Comm Rowland v Washtenaw Co Concurring Opinion Markman, J. *34 477 Mich 197 [May- Concurring Opinion by Markman, J. *35 Rd Comm v Washtenaw Co Rowland Concurring Opinion Markman, J. *36 477 Mich 197 Concurring Opinion by Markman, J. *37 Rd Comm v Washtenaw Co Rowland Opinion Concurring Markman, J. 477 Mich 197 Concurring Opinion by Markman, J. *38 Rd Comm Co v Washtenaw Rowland Opinion Concurring Markman, J. *39 Concurring Opinion Markman, J. *40 Comm Co Rd Rowland v Washtenaw Opinion Weaver, J. January 1,2000, represents cases decided after in which KEY:This chart Kelly in a of the Court voted to Justice dissented and which reasoning majority is set forth in overrule a decision. The of the Court form; opinion highly summary as whole the reader should refer to the clarifying detail. in and in (concurring dissenting J. part WEAVER, opin- with Justice well-reasoned part). agree Kelly’s I join in and dissenting part in concurring part ion 8, 10, excluding II footnotes opinion, I and of her parts 12, and 13. 477 Mich 197 Opinion by Kelly, J. (concurring part dissenting part).

KELLY, J. I agree majority’s with the conclusion that defendant entitled to summary disposition was in this case. But my agreement stops majority unnecessarily there. The reaches the issue whether defendant must show actual *41 prejudice in order to bar a claim filed more than 120 days after the the injury. date of

Plaintiff failed to supply defendant with the statuto- rily required notice “the specifying exact location and defect, nature of the injuries sustained, and the names of the witnesses known at by time 691.1404(1). Therefore, claimant.” MCL defendant did not need to prejudice show actual arising from untime- liness of the notice. The lower courts erred in reaching issue, the actual prejudice as does the majority in this Court. The matter should only be decided 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 691.1404(1) MCL provides: any As a recovery injuries condition to by for sustained any reason of highway, injured defective person, within days from injury occurred, the time the except as (3) provided otherwise in subsection shall serve notice on governmental agency injury of the occurrence of the and the defect. The notice specify shall the exact location defect, injury nature of the sustained and the names of the by witnesses at the known time the claimant. Plaintiff sent the following notice to defendant by certified mail: Co Rd Comm Rowland Washtenaw by Opinion J. Kelly, My Joanne Rowland

Re: Client 6, February Accident:

Date of Jennings Intersection Location: and Main Street Northfield Township My File No.

Dear Sir/Madam: [sic] that I have been retained Mr.

Please be advised investigate a claim for Joanne Rowland to and evaluate injuries out of an incident that oc- personal that arose February 2001. This incident occurred at the curred on Jennings and Main Street Northfield intersection Washtenaw, County Michigan. Township, State of Please my investigation I and if the be advised that will continue warranted, money damages pursue a claim for same will jurisdiction of this against responsible agency [sic] future, you roadway. If I do not hear from within the near litigation. place I be forced to this matter into will 691.1404(1), To the notice MCL support required Information Act plaintiff relies also on a Freedom of *42 (FOIA)1 attorney. pro- It request by plaintiffs made vides: My

Re: Client Joanne Rowland February 2001

Date of Accident: Jennings Intersection of Location: and Main Street Northfield Township My File No. 4803 Dear Sir/Madam: I who represent be advised that Joanne Rowland

Please injured produce or make at the above location. Please was any logs viewing copying, photo and or video available for County logs by the Washtenaw Road Commis- maintained Jennings and Main Street. showing sion the intersection of MCL 15.231 et seq. Mich Opinion by Kelly, J. you being Please be advised that this letter is sent to pursuant to the Freedom of Information Act. 691.1404(1), To be sufficient under MCL notice must (1) include four components: the exact location of the (2) (3) defect; defect; the exact nature of the injury (4) sustained; any and at witnesses known the time of quoted the notice. The above do not satisfy letters all four requirements. Glaringly absent second re- quirement. Nowhere the material provided to defen- dant did plaintiff indicate the nature of the defect. appears

Reference to the defect in her complaint, where plaintiff claims that she injured was when she tripped “broken, uneven, fell on dilapidated, depressed and/or potholed areas”2 in the roadway and crosswalk. But no such information is included in either the notice or the request. fact, FOIA In the notice does not even hint at alleged conditions the lawsuit. Nothing found there gives rise to an inference plaintiff that encoun tered a pothole, nothing plaintiffs indicates that injuries were caused broken pavement. 691.1404(1)

MCL specifies the notice contain an “exact” statement of the defect. Because plaintiffs notice contains no at defect, reference all to the it certainly does not rise to the level of an exact statement. 691.1404(1) MCL utilizes the mandatory word “shall” in setting forth the four required components of notice.3 Plaintiffs failure to meet one of the four statutory requirements cannot be excused. Consequently, her claim must be I dismissed. would reverse the Court of Appeals decision and remand the case to the trial court entry of summary disposition in favor of defendant. ¶ Complaint by Jury, Plaintiffs and Demand for Trial 8. directive, mandatory Use of the word “shall” sets forth a whereas use *43 “may” permissive. of the term Michigan, is See Oakland Co v 456 Mich (1997) 10; J.). (opinion hy Kelly, n 154 566 NW2d 616 251 v Washtenaw Co Rd Comm Rowland Opinion Kelly, J. IT TO REACH HOBBS4 AND BROWN5

II. IS UNNCESSARY Court in Hobbs found that Michigan Supreme notice is to only purpose statutory provision of a lack of notice prejudice arising avoid actual from Mich days. Dep’t Hwys, within 120 Hobbs v State 398 of (1976). concluded, 90, 96; Hobbs “[Ab- 247 NW2d showing prejudice provision sent a of such the notice 3.996(104) 691.1404; in not a contained MCLA MSA 691.1402; pursuant bar to claims filed to MCLA MSA 3.996(102).” Brown, In ad- specifically Id. the Court Hobbs be Brown v dressed whether should overturned. Comm, 354, 356; 452 Mich Manistee Co Rd NW2d (1996). consideration, due After we retained 120-day requirement: Hobbs’s interpretation wrongly We are not convinced Hobbs was decided. that Further, injury we believe that more would result from overruling following in it than from it. The rule Hobbs has integral governmental liability part been an of this state’s tort lightly scheme for almost two decades. It should not be governmental liability Although discarded. the law of tort changed years, validity this state has over the the continued injustice. Rather, of the Hobbs rule will not result uniformity, reaffirmance of the rule maintain the cer- will tainty, stability in the of law this state.

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

In does not direct itself to the Rather, directly contents of the notice. it to the jumps fact that plaintiff provided the notice more than 120 However, days injury. given after the date that the deficient, provided notice was the date that it is plaintiff if inconsequential. plaintiff given Even had notice (1976). Hwys, 90; Dep’t Hobbs v State 247 NW2d 754 (1996). Comm, Brown v Manistee Co Rd Mich 550 NW2d 215 *44 252 Mich 197 477 Opinion J. Kelly, 691.1404(1) under MCL defendant days, within summary disposition. would have been entitled to governmental It an to the rule immu- exception is of agency that a can liable in tort for nity government be properly highway its failure to maintain a under its In jurisdiction. safeguard agency might order to an that fall exception, Legislature within this the created the 691.1404(1). Brown, in precondition of notice MCL Mich at 359. The information in the notice the assists agency determining what evidence it needs to evalu- ate the claim. Id. at The 120-day requirement 362. agency ensures the has an to investi- opportunity gate the it while evidence needs is still available. This is why both Brown and Hobbs concluded that actual prejudice to the agency timely because a lack of notice only legitimate purpose provision. is of the notice 366; Hobbs, Id. at Conversely, 398 Mich at 96. if the agency gather can the needed evidence and evaluate the though late, claim even notice is agency is not 691.1404(1) prejudiced, purpose and the of MCL effectuated.

Therefore, notice, when a court reviews a it must first examine its If contents. the contents do not provide agency with the necessary information for an inves- tigation claim, and evaluation of the the notice is insufficient. This would be true even if the notice were given on the day damage first after the claimed oc- case, curred. In this lower courts failed to consider point directly proceeded step final inquiry. justification so, There was no need or for doing given the fatal flaws in the contents the notice. The lower considering courts erred even the timeliness issue. majority here makes same error. It does not

conduct an individualized review of the contents of the Rd Rowland v Washtenaw Co Comm Opinion Kelly, J. Rather, issue, notice. it focuses on the timeliness recon- Hobbs, and overturns them.6 siders Brown and aside, In order to set these decisions implications must discuss the constitutional of MCL It well-accepted appellate 691.1404. is a rule that an if court should not reach a constitutional issue a case grounds. can be decided on other J & J Constr Co v 722, & Allied Local 468 Mich Bricklayers Craftsmen, (2003); 734; 664 Booth Inc v Newspapers, NW2d 211, 234; Bd Michigan Regents, Univ of (1993). NW2d There would be no need reach the *45 question majority constitutional if the properly focused on failure to plaintiffs provide adequate notice.

The result it reaches for stare disrespect exhibits agree decisis. While we can all that the doctrine of stare command, decisis is not an inexorable we also all know that it It justice. “promotes is backbone of American evenhanded, and predictable, develop- consistent legal principles, judicial ment of fosters reliance on decisions, and contributes to the actual and perceived Tennessee, of the integrity judicial process.” Payne v 501 (1991).7 808, 827; 2597; 111 L US S Ct 115 Ed 2d 720 The Supreme United States Court has observed that “ persuasive doctrine carries such force that we ‘[t]he 6 Regrettably, alarming unprec this action is consistent with the and majority precedent. edented rate at which this overturns See C. Todd Berg, Esq., MSC, Lawyers Overruling Michigan Precedent and the Weekly <http://www.michiganlawyersweekly.com/subscriber/archives. (accessed cfm?page=MI/06/B060691.htm&recID=389963> November 2006). 10, majority disagrees my with assessment of which issue should be respect reached first in this case. The for stare decisis and the avoidance unnecessary provide ample to deal of constitutional issues reasons with sufficiency simple issue of the of the notice first. The offers explanation why question validity first of no must be continued Hobbs and Broum. 477 Mich

Opinion by J. Kelly, to always departure precedent a from required have ’ ” “special justification.” some supported be 1793; IBM, 856; v US 116 S Ct United States (1996), L Payne, Ed 2d 124 501 US 842 quoting (Souter, J., concurring), quoting Rumsey, Arizona L 203, 212; 467 US 104 Ct Ed 2d 164 S (1984). Attorney Former United States General Jer- eloquently justification emiah S. Black stated the for precedent Supreme adherence to when he sat on the Pennsylvania: Court of precedent to

It is sometimes said that this adherence slavish; judge, compels that it the mind fetters and him principle. to decide without reference to But let it be principle great that stare decisis is remembered itself magnitude importance. absolutely necessary and It is to permanence any system jurispru- the formation may fairly law; dence. Without it we be said to have no rule, depending law is a fixed and established not in the slightest degree may caprice happen on the of those who adjudications Court, administer it. I take it that the of this they absurdity, when are free from not mischievous in another, practice, and consistent with one are the law of the execute, land. It is this law which are bound we and not any law,” “higher special manufactured for each occasion private feelings opinions. wrong, out of our own If it be government duty department has a whose it is to it, responsibility any amend and the is not wise thrown judiciary. upon the The inferior tribunals follow our deci- *46 sions, people they and the conform to them because take it granted say for again. that what we have said once we will being superior power There no to define the law for us as others, ought we define it for we to abe law unto ourselves. not, altogether. If we are are we without a standard The uncertainty uncertainty inseparable of the law—an from great best, the nature of the science—is a at and evil we aggravate terribly by would it if we could be blown about doctrine, every holding to-day wind for true what we Rowland v Washtenaw Co Rd Comm Opinion by Kelly, J. repudiate Oyer, [McDowell as false to-morrow. v 21 Pa (1853) (emphasis original).][8] in justification in special No exists this case to attack Rather, created Brown and the precedent Hobbs. case can be decided on other grounds upsetting without established law or rejecting precedent. When courts to precedent, they destroy very stretch overturn certainty stability designed that stare decisis is to protect. bring disrespect Such actions to our Court. challenges develop my Justice Maekman me to “own standards” concern ing precedent. my Iwhen would overturn But I have no need to create own standards when well-reasoned standards have been in established the laws country years. McDowell, precedents of this in over 150 As noted when absurdity practice, are “free from not mischievous in and consistent with another,” they McDowell, one should be retained. 21 Pa at 423.1 would not lightly adopt guide my judicial philosophy new rules to when traditional throughout history tools used courts their to In continue serve well. this line, willingly apply interpretive I aids such as the absurd results rule and legislative acquiescence guide my regret doctrine to decisions. I that the justices constituting majority the current on this Court have abandoned these tools. majority respond The states that I fail to to Justice Markman’s challenge develop my overturning question- own standard for In cases. ing prefer, majority what standard I would shifts the discussion’s belongs: respect focus from where it on its own lack for the rule of stare decisis. majority apparently point my interpretive The misses the reference to simply, interpretative aids. processes it dismisses traditional Quite tools and disrespect judicial and shows for the minds that came before it. It then precedent -unparalleled tool, legislative at overturns an rate. One discarded acquiescence, especially accepts relevant If to this discussion. one premise Legislature change disagrees that the can and will the law when it interpretation, tempted place. awith court’s a court is not in to act its majority apply claims that the standard I would if decide stare conclusion, justify decisis should be retained is “unworkable.” To it misquotes my dissenting opinion Sington mischaracterizes in (2002). Chrysler Corp, fact, 648 NW2d 624 In majority opinion uses the same mischaracterization it made in Sington. my point: precedents I will reiterate when are “free from absurdity, practice, another,” not mischievous and consistent with one they McDowell, should be retained. Pa at 423. *47 Mich 197 256 477 Opinion J. Kelly, in reject to stare decisis this majority’s The decision about when with even its own statement case conflicts majority The has indicated action is appropriate. such should be reexamined reasoning that the of stare decisis ’ ” “ ‘ “fairly question.” called into only holding where 144, 161; Chrysler Corp, v 467 Mich 648 NW2d Sington Detroit, quoting Robinson v (2002), 439, Mitchell v W T Grant (2000), 463; quoting NW2d 307 Co, 627-628; L Ed 2d 406 416 US 94 S Ct (1974) J., (Powell, concurring). When the Court need not case, in a then reach an issue in order to make its decision into fairly question. that issue has not been called This Court addressed Brown years ago. a mere ten changed complete that decade to warrant a What has answer, There reversal this law? is but one changed. Only the Court. The law has not makeup of the robes have It is wearing changed.9 individuals amazing majority how often the members of this have declared themselves more capable understanding reaching “right” any justice law and result than who sat “It is this law which we are bound to before.10 execute, law,’ any ‘higher and not manufactured for each- 9 Ironically, changed very attorney so little else has that the same who argued argue in Brown to overturn Hobbs returned to this case. throughout concurring opinion. This is a theme Justice Markman’s majority duty He seems to believe that it is the solemn of this to rewrite ” “get Michigan ‘right.’ predisposi caselaw to the law Ante at 228. This majori wrongly tion to find so much caselaw decided contributes to the ty’s seeming second-guessing wholesale of earlier decisions and renders increasingly arbitrary unpredictable. Appropriate respect for the law greatly stare decisis and for those who sat on this Court before us would ending instability. such contribute majority wanting get “right.” I not fault the law I fault do repeatedly deciding only it for as if it can reach a correct matters interpretation provides example. prior of the law. This case an Two incarnations of this Court reviewed the same issue and came to the same Legislature change had the statute if it believed decision. The decades to decided, incorrectly yet nothing. that Hobbs and Brown were it did But majority interpretation still concludes that the Court’s of the law was Rowland Washtenaw Co Rd Comm Opinion Kelly, J. special occasion out of our private feelings own McDowell, opinions.” 21 Pa at 423. has “higher so, ordained itself master of such In doing law.” it undermines stability Michigan’s courts and *48 damages integrity judicial process. Payne, 501 US at 827.12 I must strenuously dissent from such activity.13 “wrong” Surely only justices currently this entire time. it is not the four

making up majority correctly capable of this Court who are discerning Legislature what the meant. Eugene quote apropos A from Justice Black seems for this case: citizens, lay professional, At one time students and and were taught everyone presumed law, that to know the and hence is duty may bound in to act accord therewith. But how even skilled lawyers, correspondingly judges, and skilled subordinate court they taught “know the law” when are that the in the law hooks is all, upon litigatory majority not law at unless test a bare of this

very ordinary Supreme happens Court to like it? Former Justice epigram point. quote latest comes to mind at this I it Voelker’s (McGraw-Hill 1965): Whitefish”, “Laughing p from “Clapping nightshirt lawyer packing a black on a him off to capital calling the state and thenceforth him “Mister Justice” makes him no less fallible and uncertain than he was when he was hack drawing Co, home [Autio five-dollar wills.” v Proksch Constr (1966) 517, 542-543; (Black, J., dissenting).] Mich 141 NW2d 81 implies Justice respect that I would not have the same Markman majority if during my stare decisis control theof Court switched tenure. This (see logical fallacy, amounts to little more than a circumstantial ad hominem 2007]). 9, <http://en.wikipedia.org/wiki/Ad_honmiem> [accessed March Nothing my decade-long judge majority in tenure as a before the current was conjecture indulge installed substantiates the I that would in wholesale precedent opportunity end, if willing put reversal of In I arose. am to my “fealty” encourage opinion to stare decisis to the I test. all who read this compare my precedent majority’s. to record of adherence to with For this, Berg, Esq., Overruling in assistance I refer the reader to Todd C. MSC, Scorecard, Michigan Lawyers Precedent and the The Justices’ Weekly,<http://www.michiganlawyersweekly.com/subscriber/archives_FTS. cfm?page=M3/06/B060691.htm&recID=389963&QueryText=overruling% (accessed 2006). 20and%20precedent%20and%20msc> December majority my disrespect The characterizes discussion their for stare decisis as a “canard.” Those familiar with this Court that know 477 Mich 197 [May- Opinion Kelly, J. REACHED, BE in. EVEN IF THEY SHOULD BE SHOULD NOT OVERTURNED

HOBBS AND BROWN 120-day notice proper if it to reach the Even were case, appropriate in it would not be this requirement and Brown. repre- these cases overturn Hobbs Together, proper meaning on the years precedent sent 30 history a considerable of MCL 691.1404. Such application failure to Legislature’s And the lightly ignored. cannot be strongly this time indicates during amend the statute Hobbs and Brown intent when properly effectuated its 691.1404(1). enacting MCL groundless majority’s unprecedented is not a mere attack on stare decisis present majority more rumor. The numbers do not he. The has overturned immediately preceded many precedents as did those who than three times as (61 years by majority compared precedents to 18 it five this overturned despite predecessor). earlier incarnation of the This is the fact that the its 3,000 (13,923 dispositions by disposed of almost more cases total Court 16,729 dispositions by years compared total its five as MSC, Esq., Overruling predecessor). Berg, See Todd C. Precedent and Court”, Michigan Lawyers “Majority Week- *49 The “Pre-1999 Court” vs. ly, <http://www.michiganlawyersweekly.com/subscriber/archives_FTS.cfin? page=MI/06/B060691.htm&recID=389963&QueryText=overru]ing%20and (accessed 22,2006). dispar- %20precedent%20and%20msc> December This ity astounding. astounding majority’s repeated the claim that is Also is any case, nothing happening. in it If “canard” exists this is the unusual is majority’s overturning precedent of this at insistence that it is not the Court alarming an rate. majority overturning precedent willy-nilly.And it The denies that it is precedents majority comparing takes comfort in the number of the current disposed to of cases the Court has of. These has overturned the total number fact, majority they In taken statistics should offer the no solace. should be majority only grano of one cum. salis. It is true that the overturned one-third percentage percent dispositions of between 2000 and 2005. But this total majority greater immediately preceding the on the rate is four times than overturning precedent compared dispositions total Court whose rate of to this, Beyond percent. Berg, supra. of one reference to the overall was V22 herring. dispositions simple dispositions of the Court’s are is a red The bulk disposition percentage makes the total irrelevant. denial orders. This fact overturning precedent majority credit for not when The should not receive every nearly simply appeal. to it leave to It would have overturn denies appear significant precedent history in of the Court to make this number the strong showing way. Berg any that the current in The Todd article makes alarmingly majority on this Court is activist. 259 Rowland v Co Rd Comm Washtenaw Opinion by Kelly, J. primary goal statutory The of interpretation give is to legislative effect to intent. In re MCI Telecom Complaint, (1999). 396, 411; 460 Mich 596 NW2d 164 In Hobbs both Brown, and the Court identified the intent behind the notice provision being prevent govern- as to a prejudice mental agency. prejudice to the state due to “[A]ctual lack of days only notice within 120 is the legitimate purpose we posit Hobbs, can for this notice provision____” 398 Mich at years, Legislature 96. For 20 the interpre- knew of this tation14 but took no action to amend the statute or to 691.1404(1). state some other purpose behind MCL The Court then readdressed the statute in Brown and came regarding same conclusion the purpose behind 691.1404(1). MCL years

Another ten passed, have but still the Legislature has taken no action to alter the interpretation Court’s the intent behind the statute. legislative This lack of points tellingly correction to the conclusion that Court properly determined and effectuated intent 691.1404(1). behind MCL If proper intent is effectu- ated, primary goal statutory interpretation is MCI, achieved. In re 460 Mich at 411.15 majority point prior The makes the incarnations of this Court failed explicit they overturning precedent. Ironically, to make when were in support, majority Co, cites Mudel v Great Atlantic & Tea Pacific (2000). 691; Mudel, majority Mich In NW2d 607 claimed that Goff Foods, Remand), (After 507; (1997), v Bil-Mar Inc 454 Mich NW2d implicitly Co, overturned Holden v Ford Motor 484 NW2d (1992). pointed my Mudel, As I in out in concurrence/dissent Goff Mudel, concurring Holden did not conflict. 462 Mich at 734 (Kelly, J., part dissenting part). cases, only majority’s Of those three it was precedent. support decision in Mudel that overturned Far from for the majority’s position, just example Mudel is another esteem in low which the holds stare decisis. Legislature presumed judicial interpretations to be aware of *50 existing Woodhaven, 425, 439-440; law. Ford Motor Co v Mich 475 716 (2006). NW2d 247 15 majority creating injustice” The me of accuses “chaos and because it consistently apply analysis. believes I do not a rational basis Its heated 260 Mich 197 Opinion by Kelly, J. Brown for its use heavily criticizes construc- statutory as a tool of

legislative acquiescence founded, well either But these criticisms are not tion. Supreme Court legally. The United States logically or legislative acquiescence: the use of recently reaffirmed generally powerful claim to adhere to case law is [T]he Patter statutory meaning, has settled see once a decision Union, 164, 172-173, 109 S. son v McLean Credit 491 U.S. (“Considerations (1989) of stare 2363, Ct. 105 L Ed 2d 132 statutory interpre decisis have special in the area of force tation, here, unlike in the context of constitutional power implicated, interpretation, legislative done”). In this Congress remains free to alter what we have instance, precedential time has enhanced even the usual States, [Shepard 13, 23; v United 125 S Ct force!.] 544 US (2005).] 1254; L161 Ed 2d 205 in In long history This tool of construction a the law. has 1880, Supreme the United States Court wrote: judicial construction,

After a statute has been settled becomes, rights acquired the construction so far as contract concerned, part it are as much a of the statute as the under itself, change all intents and text and a of decision is to purposes the same its effect on contracts as an amendment [Douglass v legislative of the law means enactment. (11 Otto) (1880).] Co, 677, 687; Pike L Ed 968 101 US long history There also exists a consistent and of the use Brown, 367-368; Mich at Michigan. of this tool See Bros, 488, Inc, Inc v Mich Sel-Way, Spence Gordon 505; (1991); Larson, v Craig NW2d 704 Novi, (1989); City 439 NW2d 899 Wikman subject designed point: words on this seem to distract from the real question properly the intent is whether Hobbs and Brown effectuated Legislature behind the statute. The fact that the has not taken action strongly suggests properly that these cases did effectuate rewrite law Therefore, they properly at the rational basis behind this intent. arrived provision. the notice *51 261 Rd Comm Rowland v Washtenaw Co by Opinion J. Kelly, Detroit, v Smith 617, 638; (1982); Mich 322 103 388 NW2d v Ambas Magreta 637, 650; (1972); 202 300 Mich NW2d Co, sador Steel 513, 519-520; Mich 380 158 NW2d 473 Estate, In Clayton re (1968); 101, 106-107; 343 Mich 72 Co, and Twork v (1955); Munsing Paper 1 275 NW2d (1936). 174, 178; 266 311 Mich NW legislative acquiescence The of is reasonable concept law, logical. Legislature presumed The is to know the Co, including the decisions of this Court. Ford Motor Mich at in a Acquiescence failing 439-440. to amend Legislature statute is a manner proper which accepts interpretation a court’s of that statute. goal

Our in interpreting give statutes is to effect to behind them. limit purpose We should not ourselves any in the use of that “If gets goal. tool us to that purpose of construction is the ascertainment of mean- ing, nothing logically that is relevant should be ex- Some on reading Frankfurter, cluded.” reflections of statutes, L (1947), 47 Colum R quoted Shapiro, The Dictionary American Legal Oxford (New Quotations Press, 1993), York: Oxford University p Legislative acquiescence 390. one is useful tool in ascertaining the intent of a statute.16 Adequate reasons do not exist to it.17 discard majority analysis The cites constitutional rational basis when assailing my theory legislative acquiescence. use But the case it cites, Harvey Michigan, (2003), 664 NW2d 767 did not deal overturning prior interpretation awith court a court’s of a statute. An entirely when, here, question entirely different arises as the issue presented statutory interpretation is a settled whether should be over turned. majority my support legislative acquiescence The claims that my “fealty” supports by providing undermines to stare decisis. It this reject legislative acquiescence. list of decisions made decisions, consistently supported I dissented from all of those and I have legislative acquiescence proper arriving legislative as a tool for at intent. earlier, IAs indicated I would never reach the constitutional issue in 477 Mich Opinion by Kelly, J. legis- that Brown’s reliance on majority argues

The inappropriate lative was because Hobbs’s acquiescence based, 120-day requirement notice was discussion of the It constitutionality. claims part, requirement’s on left Legislature incapable revising that the was if accurate. statute even it desired do so. This not 691.1404(1). free amend Legislature was MCL analysis Hobbs’s centered on the fact that Court identify for the only possible could one reason notice preventing prejudice government to a requirement: *52 Hobbs, Mich at 96. If the had agency. Legislature in mind, only another intent it had to write it into the A entirely statute.18 revised statute would create an new question Legislature for the Court. If the made a revision, constitutionality the of the revision would be an It open question. would not be controlled Hobbs. merely provision Hobbs dealt with a notice that had one intent, fair prevent prejudice. known notice to actual Hence, deciding my prevailed, this case. if I find view would not it necessary legislative acquiescence to consider here. But I maintain that rogue unnecessarily hamstrings line of cases the Court’s efforts at arriving Legislature. position way at the intent of the This in no my significant undermines adherence to stare a decisis. There is differ- precedent interpreting ence between a statute relied on for decades and interpret authority used to statutes. I know no tools of that stands for the proposition analytical judicial that stare decisis attaches to tools used in Hence, interpretation. the rule of stare decisis binds us to follow the holdings past using of caselaw.It does not bind us to use or refrain from analytical legislative acquiescence tools such as the doctrine of because an earlier do Court chose to so. 18 majority posit only The claims that Hobbs’s statement that it could legitimate provision necessarily one reason for the notice means that no legitimate possibly other reason could exist. This is not the case. The only Court’s statement that it could think of one reason for the statute says. open possibility means it It leaves the that other what reasons might people Legislature at a later date. If the had a occur to different mind, have, have, in intent it could should made that clear to the attempted Court. It has never to do so. This indicates that the Court’s Legislature’s determination of intent was correct. Co Rd Comm Rowland Washtenaw Opinion by Kelly, J. Moreover, if a hard and Legislature truly desired limit, it to 120-day fast could have rewritten statute Alternatively, it presumption prejudice.19 contain of prejudice could have defined actual in the statute to be more than Hobbs found it to be. There was restrictive occur, it did not it is possibility change. Because Legislature’s inaction has reasonable deduce that intentional. been Brown, in especially light

This is true which specifically provided Legislature map with a road showing change how it could the law to effectuate some other intent. difficulty experienced in Hobbs we was we posit purpose provision

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

If the Legislature disagreed with Hobbs but was unsure act, only provided impetus how to Brown not the for change goal. Despite but the means to reach that what fairly guide can characterized as the Court’s for be 19 If, majority claims, Legislature days as the the wanted the 120 to he deadline, presumption an it could have added an absolute irrebuttable prejudice. reading This would have satisfied even the most restrictive while, time, making legislative Hobbs at the same clear the intent. The Legislature presuppositions. knows how to create irrebuttable See MCL 399.157(2). 207.1026(1), 205.94q, MCL and MCL It did not write one into this statute. Mich 197 Opinion by Kelly, J. amendments, still legislative Legislature

possible that ten has not Brown and Hobbs.20 Given repudiated Brown, inaction particu- have since is years passed It that Brown and Hobbs larly meaningful. evidences the intent of the accurately Legislature. divined THE IV ROBINSON21 FACTORS in This Court laid out the factors to consider over- in Robinson. The turning stare decisis first consider- wrongly ation is whether the earlier decision was de- above, Legislature cided. Id. at 464. As discussed has and Brown’s acquiesced interpretation Hobbs’s 691.1404(1). of MCL This that certainly suggests interpretation properly Court’s identified the intent of Legislature being prevent prejudice as to a The government agency. goal statutory central con- Legislature’s struction is to effectuate the intent. In re MCI, appears 460 Mich at 411. It that Hobbs and Brown correctly were decided. (1)

The other Robinson factors are: whether (2) “practical workability”; decision at issue defies reliance an whether interests would work undue hard- (3) authority overturned; if the ship whether majority postulates my argument The 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. only now, Reviewing I can decide the case before me. the case before me my strong predisposition precedent. I maintain would to adhere to majority’s “two-wrongs-make-a-right” argument weight. carries It little assert, grossly does, is also unfair to as Justice Markman that I have repeatedly precedent merely agreed refused to overturn because I with not, precedent. agreement given Whether in or I have each case heavy weight disruption to the that a reversal would cause to the state’s disruptive jurisprudence. Frequently, the effect would have been reason enough precedent. me to refuse to overturn 21Robinson, 462 Mich at 439. *54 Rd Co Comm Rowland v Washtenaw Opinion Kelly, J. longer make the decision no in the law or facts changes Robinson, at 464. justified. workability. defy practical do not

Hobbs and Brown on integral an law Rather, they part have been The bench and immunity years. for 30 governmental difficulty prejudice no the actual applying bar have had prejudice them. Actual to the cases before requirement such, there is concept apply. a to As complicated is not workability problem. practical no ago. the reliance interests a decade Brown addressed It noted: injury over-

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

Now, decade has And the rule Hobbs passed. another gov- even more entwined with the law of has become likely liability. Many plaintiffs shaped ernmental on For of their cases reliance this law. processing instance, days than 120 plaintiff could take more that carefully assess his or her case and assure by MCL provided everything required notice contains have relied on Hobbs and Attorneys surely 691.1404. necessarily accept. to decide what cases to This Brown attorney’s properly resources to adjusting entails handle the cases. rely properly claims that no one would As they ignoring.” Brown because are “text

on Hobbs or earlier, not true. Hobbs and I discussed in detail this is Legisla- intent of the effectuated the properly Brown majori- implicit But also in this discussion is ture. attorneys rely prece- should not on ty’s contention core, Court. At its present dent predating any- not on suggests rely that one should statement 477 Mich Opinion by Kelly, J. thing predating majority. the current The disrespect it pays past justices of the Michigan Supreme Court is unfortunate. justifying Rather than overturning Hobbs *55 Brown, and it demonstrates that the majority fails to respect the rule of stare decisis as applied to cases that predate majority.

The final consideration under Robinson is whether changes in the law or make longer facts the decision no justified. Robinson, 462 Mich at 464. There have been no changes the law or facts in question. Although the ruling Hobbs is 30 years old and the Brown ruling provides a road map Legislature the to overturn Hobbs, the Legislature took no action. This favors precedents. retention of the Considering all the factors, Robinson Hobbs and Brown Rather, should not be overturned. they should be retained, thereby respecting decisis, stare a doctrine that carries such persuasive force that courts have traditionally a required departure from it sup- to be ported by special justification. IBM, 517 atUS 856. After consideration and application of the Robinson factors, it is apparent special justification no exists to overturn Brown, Hobbs and majority’s deci- sion to do so is erroneous.22

V RETROACTIVITY Generally, judicial decisions given are full retroactive effect. Pohutski v City Park, Allen 465 675, 696; Mich of (2002). 641 219 NW2d But there are well-established exceptions to this rule. The courts should consider the equities and, involved if injustice would result from full 22 presents believes that Robinson the most defensible approach deciding to when to overturn I cases. would note that even support retaining Robinson factors Hobbs and Brown. 267 Rd Comm v Co Rowland Washtenaw by Opinion Kelly, J. approach. flexible adopt a more retroactivity, should 68; 56, Mich 564 NW2d 861 v Lindsey Harper Hosp, (1997). reaching goal should have Court decisions 350, 360; Havlik, 418 Mich 343 NW2d Tebo v justice. 231, Detroit, 364 Mich v (1984), quoting Williams (1961) EDWARDS, J., for 265; (opinion 111 NW2d reversal). where appropriate Prospective application Lindsey, precedent. settled holding overrules at 68. Mich Walker, v 381 US adopted from Linkletter

This Court (1965), 618; 1731, 2d three factors 14 L Ed 85 S Ct determining a should not have weighed in when decision be (1) purpose are: application. Those factors retroactive (2) rule, on the extent of reliance served the new be (3) rule, retroactivity the effect of on old context, plurality justice. In the civil administration Huson, US [Co] Oil this Court noted that Chevron (1971), 106-107; recognized an 92 S Ct 30 L Ed 2d 296 *56 clearly the decision question threshold whether additional [Pohutski, 465 Mich at principle a of law. established new (citation omitted).] it becomes question applied, the threshold is When a rule of law. When a that this case states new apparent statute, a precedent interpreting court overturns of to, as, and is treated a new rule equivalent decision is decades Id. at Because this case overturns law. 696-697. that it a created rule of law newly is precedent, application. prospective warrants as a return to characterizes its decision majority such, and, as of the statute interpretation the correct ring not true. Hobbs argument This does not a new rule. And, con- ago. majority as the years decided 30 was built, Hwy on Reich State cedes, part, Hobbs was (1972). Therefore, 386 Mich 194 NW2d Dep’t, years precedent as treating almost 35 is line of reliance on this But decades of if it never existed. 477 Mich 197 [May- Opinion J. Kelly, elapsed, cases have shaped these cases have modern governmental immunity it, law. Because of prospective appropriate. Pohutski, application 465 Mich at 696- 697; Lindsey, 455 Mich at 68.

The majority also characterizes Hobbs as a rogue decision, departure from the proper interpretation discussed, the law. As I Legislature have chose not to amend MCL 691.1404 despite ample opportunity to do so. This indicates that Hobbs effectuated legislative But, intent. Hobbs is not a beyond this, rogue decision. Supporting this is the fact that the Court took a second look at Hobbs in Brown. apart, Decades two incarna- tions of this Court looked at the same question and reached the same conclusion. Hobbs fairly cannot be characterized as some anomaly in the law. years

The 30 of precedent offered by Hobbs and the affirmance of Hobbs in Brown demonstrate that majority is overturning a well-established rule of law. such, As Pohutski, this case creates new law. at 696-697. And prospective application is appropriate. Id.-, Lindsey, 455 Mich at 68.

Given that met, threshold has been we must address the underlying Turning factors. to the first Pohutski factor, the Court must decide the purpose served the new rule. The majority’s goal is to correct a statutory interpretation it believes to be incor- rect. 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 years, over 30 reliance is *57 significant. Hobbs has shaped how attorneys handle Hobbs, cases. Under attorneys understand that they have increased time to investigate and perfect their Co Rd Comm Rowland v Washtenaw Opinion Kelly, J. action. This is taking legal before of a case knowledge with MCL comply detail needed given important 691.1404(1). not relied on have people that contends majority

The IBut of this Court. recent decisions given Hobbs As Justice JEREMIAH that contention. question BLACK S. ago: years over 150 noted decisions, and the our follow

The inferior tribunals they granted take it for because conform to them people say being There again. once we will what we have said that define it for for us as we to define the law superior power no [McDowell, 423.] 21 Pa at others[.] of this importance disregard is to To hold otherwise “ that the in the fiction indulge not We should Court. and, the law always has been now announced law of it not themselves therefore, who did avail that those ” Co, at Oil 404 US Chevron rights.’ their waived 12, 26; Ct Illinois, US 76 S quoting Griffin (1956) (Frankfurter, J., concurring). L Ed 891 It is fiction in this case. legal in such a engages inappropriate. retroactivity of on the is the effect

The third factor at In Pohutski, 465 Mich 696. justice. of administration third factor Pohutski, the Court determined The reason application. prospective in favor of weighed a distinct class retroactivity would create is that for this of an unfortu- denied relief because litigants being of In the at 698-699. timing. Id. nate circumstance Hobbs decision to overturn case, majority’s instant a effect on devastating not have such and Brown will be consid- But the effect will litigants. group distinct plaintiffs number significant be a There will erable. their failure remedy due to their who will lose of MCL reading in the change anticipate 691.1404(1). to reevaluate attorneys And it will cause *58 477 Mich 197 Dissenting Opinion by Cavanagh, J. and amend their handling governmental of immunity cases. significant Because 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 supports factors only prospective application of this decision.

VI. CONCLUSION The majority unnecessarily reaches issue whether defendant must show actual prejudice to bar a claim filed more than 120 days from the date the injury occurred. Plaintiff failed supply sufficient notice to defendant. She did not provide an “exact” description of the nature of the defect. that, Because of 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 Brown, overturn Hobbs and the ma- jority fails to pay proper respect to the doctrine of stare decisis and to the precedent of this Court. This contin- a disturbing ues trend that the current majority has initiated and fostered. Hobbs and Brown properly effec- tuated the intent of Legislature. such, As they should be retained.

CAVANAGH, J. (dissenting). Today this Court overrules a portion of our governmental immunity law that has been in place for years. over 30 Because I am not convinced that Hobbs v Dep’t State Hwys, 398 Mich 90; 247 (1976), NW2d 754 and Brown v Manistee Co Rd Comm, 452 Mich (1996), NW2d 215 were wrongly decided, I dissent from the majority’s decision Comm Co Rd v Washtenaw Rowland Dissenting Cavanagh, Opinion J. principles that the I believe these cases. to overrule interpret continue that we mandate decisis stare 691.1404(1) and Brown. Hobbs in accordance with MCL BE REAFFIRMED

HOBBS AND BROWN SHOULD must overruling precedent It is well established lightly not This Court does caution. undertaken with be of a any section construing decisions overrule settled Co, 370 Baking v Lawrence Smith standing statute. *59 (1963). Adhering to 177; 121 684 169, NW2d Mich “ course be ‘the preferred generally cases is decided evenhanded, and predictable, the promotes it cause fosters reli legal principles, development consistent the actual decisions, and contributes judicial on ance ” Rob process.’ judicial integrity perceived and 307 439, 463; 613 NW2d Detroit, 462 Mich inson v 251; 236, States, 524 US Hohn v United (2000), quoting (1998). 242 Before this 1969; 141 L Ed 2d Ct 118 S made, it should deliberately a overrules decision Court wrongly case was that merely not he convinced in less it will result overruling decided, but also Marie, v Sault Ste McEvoy it. following than in injury (1904). 178; 1006 172, 98 NW 136 Mich Court this overruling precedent, established Before “(1) wrongly earlier case was must decide whether: (2) workability, practical defies decided, the earlier case (3) if hardship an undue interests would work reliance (4) in the overruled, changes and earlier case was decision.” the earlier longer justify no law or facts 464-465; Detroit, 439, 613 NW2d 462 Mich v Robinson (2000). Robinson, first conclusion this Under is that overruling precedent must reach before Court A of this decided. wrongly was the earlier case years ago very issue considered Court Brown, decided. wrongly not that Hobbs was concluded 477 Mich 197 Dissenting Cavanagh, Opinion by J.

supra at 366. I continue to with the agree conclusion reached in Brown. of a part 30-year-old These cases are line of The line of preceding decisions. cases Hobbs and Brown provide proper context in which to evaluate them. leading up cases to Hobbs and Brown represent made,

thoughtfully I disagree deliberate decisions. with majority’s implication that before the consti- tutionality provisions of notice firmly was established. Ante at According 206. to the majority, Grubaugh City v Johns, St Mich 165; (1970), 180 NW2d 778 represented “abrupt an a departure” finding that 60-day notice provision process violated due where plaintiff had incapacitated during been the notice pe- riod because of the allegedly tortious conduct of the 206; defendant. fact, Ante at 384 Mich at 175-176. In us Grubaugh afforded the first opportunity to consider the constitutionality of the provision notice issue —this had not been squarely presented previous cases. Id. at 167. Two that closely cases preceded Grubaugh, Flint, 462; Boike v City 132 NW2d 658 (1965), Detroit, Trbovich Mich 142 NW2d (1966), clear make that their decisions to enforce provisions notice as written were not constitution- *60 ally based. “The constitutionality of section [which the provision that requiring injury notice of be given to city a days,] within 60 applies insofar as it to infants or others legal disability, under yet has not as been put to Boike, test.” at 464 supra Similarly, n*. Justice Black’s supplemental opinion in Trbovich remarked that the Court was bound to apply plainly notice written stat- written, utes as given that no constitutional question had been Trbovich, raised below. at 88. supra

It is disingenuous for the to characterize Grubaugh aberration, as an implying while the Rd Comm Co v Washtenaw Rowland Opinion Dissenting Cavanagh, J. the endorsed had of this Court decisions previous “im- an with the notice statutes constitutionality of This Court Ante at 205. review. basis rational plicit” of a constitutionality on the ordinarily rule not does not constitutionality was of its question if the statute v Ridenour Court. court or this in the lower raised (1962). 225, 243; 114 NW2d Co, Mich Bay Rapids, in Moulter v Grand presented The question (1908), was one 165; 118 NW Mich constitutionality; while construction, not statutory provision notice that the claimed party appealing any au- void, we disclaimed unreasonable was Id. at statute’s reasonableness. to decide the thority basis in a rational actually engaged If we had 169. Moulter, reason- of the notice statute review a fundamen- have been the statute would ableness of whether The test to determine inquiry. tal part power police to the pursuant enacted legislation legislation is whether process with due comports legisla- a permissible relation to a reasonable bears General, Attorney objective. Shavers tive (1978). 554, 612; 267 NW2d 72 successors, under- Grubaugh and its Unlike Moulter of the notice analysis thorough a constitutional took This statute.1 general highway requirements general provision notice that the Court concluded it extin- due where process violated highway statute mentally or who was plaintiff the claim of a guished due to period the notice during incapacitated physically defen- municipal a or act of state alleged tortious case was Because the at 176. Grubaugh, supra dant. equal protec- grounds, process of on due disposed at examined. Id. 176-177. was not argument tion predecessor et Grubaugh to MCL 691.1401 Specifically, concerned superseded by 170. 242.8, repealed 1964 PA seq.: 1948 CL *61 477 MICH197 Dissenting Opinion by Cavanagh, J.

Shortly Grubaugh, after we considered a broader of challenge 60-day provision constitutional to a notice general highway Hwy the statute2 in Reich v State (1972). Dep’t, 386 Mich 194 NW2d 700 This Court in followed the Grubaugh holding that statute violated Reich, process due as to minors. at applied supra 622. remaining plaintiffs, As for the were presumably who competent adults, we held provision the notice equal violated it protection arbitrarily because unreasonably split differently victims into two treated governmental subclasses: victims of negligence and of private negligence. victims Id. at 623.

This subsequently Court held require that notice necessarily ments are not if unconstitutional there is legitimate and the not purpose period unreasonably is McKernan, 96, 100; short. Carver v 211 NW2d (1973). period The reasonableness of a depends in on the served part purpose by the notice requirement. Id. We noted that failure to give may notice result prejudice government relating the to the purpose by provision. Thus, served govern notice Id. required ment is to show prejudice before a claim can be dismissed on the basis of failure to meet the notice requirement. Id. history

We should be mindful of this when consider- ing the Hobbs and Brown When decisions. this Court 120-day addressed the notice requirement MCL Hobbs, 691.1404 we examined notice provision justifying reasons it in light Grubaugh, Reich, and Carver decisions. Court deliberately This concluded prejudice that actual to the state from lack days notice within 120 the only legitimate was purpose posit Hobbs, § it could notice provision 1404. supra Accordingly, at 96. prejudice unless actual Reich concerned the notice requirement of 1964 PA 170. RD COMM CO ROWLAND V WASHTENAW Dissenting Opinion Cavanagh, J. give failure to not barred shown, claim is plaintiffs Brown, Id. In we period. required notice within *62 grounds because protection on equal a statute invalidated for claims involv- 60-day requirement a notice imposed it 691.1404, pro- MCL commissions when county road ing governed also 120-day period, potentially notice viding a that deciding After Brown, at 363-364. supra claim. the we reaffirmed applied, §of 1404 120-day period the Id. at 368. provision. of that interpretation Hobbs’s that notice that the notion contends The “no claim to has may are or be unconstitutional provisions 210. But it theory.” Ante at constitutional being defensible to avoid unconsti- role to construe statutes is this Court’s a reasonable construction tutionality, if possible, 612, Harriss, 347 US States v statutory language. United (1954). the validity of L Ed 989 618; 74 Ct 98 S of in view must be evaluated and Brown decisions Hobbs Reich, in and rulings Grubaugh, earlier constitutional our precedent Court’s of this Carver. With due consideration the Hobbs provisions, notice government in the area of 120-day that the notice a decision Court made reasoned if did not dismissal might be unconstitutional provision Like avoiding prejudice. of purpose the posited serve in Brown concern primary and predecessors, Hobbs its that legislative of a scheme constitutionality was litigants. distinctions between arbitrary draws that has invali- only jurisdiction Michigan is not it grounds. While on constitutional provisions dated notice decisions Ne- minority position, a certainly represents Washington Minnesota, vada, Iowa, Virginia, West immunity provisions notice governmental held have also notice others have enforced constitutionally infirm.3 Still Miller v 234-235; (1973); Staggs, 230, P2d 879 Turner v 89 Nev Rochester, 1986); Kelly City v 776, (Iowa, Hosp, Boon Co 394 NW2d of Parkersburg, City v (1975); O’Neil 328, 333; 231 NW2d 275 304 Minn of [May- Dissenting Opinion by Cavanagh, J.

provisions “engrafting” exceptions minority after or Schumer By unconstitutionality. In incapacity to avoid Through City Perryville, Schumer 667 SW2d of (Mo, 1984), the it previ- court noted had ously application provision held the of the notice unconstitutional; incapacitated persons the case at hand, it people extended rationale who were under legal disability minority during the notice decisions, period. states, As these these evidenced as Michigan case, well as before certainly instant considered the idea that notice provisions may be un- constitutional to be defensible constitutional theory. Further, as Justice KELLY discusses at length, Legislature acquiesced has with our construction MCL 691.1404 since the Hobbs decision, including our Ante at presumption purpose. statute’s sole *63 258-261. If Legislature agree did not with our since Hobbs was years in the 31 presumption, decided, it responded could have easily by elaborating on the other governmental interests served by the notice provision. The Hobbs decision did not the possibility foreclose that the notice provision served other legitimate state inter- prejudice; merely ests other than it stated that this Hobbs, Court only could one supra posit purpose. at 96. If the had Legislature responded in any way to our inference, we would have had reason reevaluate of MCL constitutionality light 691.1404 in of Leg- islature’s action.

THE REMAINING ROBINSON FACTORS SUPPORT UPHOLDING HOBBS AND BROWN Even if a of disagrees this Court with the Broum, Hobbs reasoning and a mere belief that these 694, 701-702; (1977); 160 W Va 237 SE2d 504 Hunter v North Mason (1975). High School, 810, 818-819; 2d Wash 539 P2d 845 Rü COMM CO ROWLAND V WASHTENAW Dissenting Cavanagh, Opinion J. justify insufficient decided is wrongly were cases weighed must be considerations Other overruling them. under In particular, precedent. from departing before Hobbs decide whether must also Robinson, Court this reliance workability, whether defy practical Brown hardship, whether an undue cause would interests Hobbs and justify longer facts no in the law or changes these re- study A Robinson, at 464. supra Brown. weigh they that factors shows Robinson maining and Brown. Hobbs upholding favor of actual must show government rule that defy does not lack of notice from was suffered prejudice fol- Indeed, rule has been workability. practical span, In that years. over and enforced for lowed apply able to and courts have been attorneys, litigants, them. Reliance before Brown to cases Hobbs and these support upholding also parties of these interests deliberately with- unlikely to plaintiff cases. While purpose for the sheer days than longer hold notice should not be rule, plaintiffs these using the Hobbs effect of also consider the concern. We must only our sought legal who have injured parties on our decision a valid claim. they whether have to determine counsel when a interests are involved example, reliance For a claim attorney an and initiates with consults plaintiff in- having an been days injury, than 120 after more if the may that the claim survive attorney his formed delay. no from prejudice suffered has government clients have counseled Similarly, attorneys who Hobbs and have relied on may still be valid their claims advice. and dispensing cases accepting Brown *64 in the law or changes no there have been Finally, and Brown circumstances render Hobbs factual § has not amended The Legislature unjustifiable. part an has been established The Hobbs rule since 1972. 477 Mich 197 Dissenting Opinion by Cavanagh, J. 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 Robinson factors here shows that principles of stare decisis outweigh arguments overruling Hobbs. “Under the doctrine of decisis, stare principles of law examined deliberately decided court of competent jurisdiction become precedent and should not lightly be departed.” People Jamieson, 436 (1990). 61, 79; Mich 461 NW2d 884 Absent the rarest circumstances, we should remain faithful to established precedent. Brown, supra at 365. Reaffirming Hobbs and Brown promote would uniformity, certainty, and stabil- ity in the law.

TODAY’S DECISION SHOULD APPLY PROSPECTIVELY Given that Hobbs and Brown have become ingrained in our governmental tort liability scheme, majori- ty’s decision to overrule these cases should be applied prospectively. While the general rule is that judicial given decisions are complete effect, retroactive deci- sions that overrule clear and uncontradicted caselaw given have been prospective application. Michigan Ed Mut Employees Ins Co v Morris, 460 180, Mich 189; 596 (1999). NW2d 142 A more flexible approach is war- ranted injustice where might result from full retroac- tivity. Gladych Homes, v New Family Inc, 468 594, Mich (2003). 606; 664 NW2d 705 To determine whether to depart from general rule of retroactivity, this Court recognized has a threshold question of whether decision clearly established a new principle law, addition to considering several other factors. Pohutski v City Park, Allen 696; 641 NW2d 219 (2002). (1) These factors include: the purpose to be *65 Co Rd Comm Rowland v Washtenaw Dissenting by Cavanagh, Opinion J. (2) on the rule, the extent of reliance by the new served (3) on the retroactivity effect of rule, and old administration Id. justice. has decided, Michigan the law in Hobbs

Since was against gov- maintain claims may that claimants been give failure to notice within despite agencies, ernmental preju- that it was agency if the cannot show days, represents decision Today’s the lack of notice. diced law. have not an established rule of We departure from rule —on change particular of this any foreshadowed Brown ten reaffirmed contrary, specifically it was on Hobbs in Further, who have relied ago. parties years governmental agencies will against claims pursuing have Attorneys who now find their claims dismissed. in mind cases with Hobbs developed taken clients as well as expended, the time and effort will have lost Under these circum- the confidence of their clients. today’s decision is stances, application prospective appropriate.

CONCLUSION conclusion, majority’s from the decision In I dissent these and Brown. I would not to overrule Hobbs disturb of stare decisis. light principles decisions in a new rule Further, overruling presents these cases prospec- law, majority’s I decision apply thus would tively.