Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 2, 2007 

JOANNE ROWLAND, also known as 

JOAN ROWLAND, 

Plaintiff-Appellee, 

v No. 130379 

WASHTENAW COUNTY ROAD 

COMMISSION, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

TAYLOR, C. J. 

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

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

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

As a condition to any recovery for injuries sustained 

by reason of any defective highway, the injured person, 

within 120 days from the time the injury occurred, . . . shall 

serve a notice on the governmental agency of the occurrence 

of the injury and the defect. The notice shall specify the exact 

location and nature of the defect, the injury sustained and the 

names of the witnesses known at the time by the claimant. 
 

We conclude that the plain language of this statute should be enforced as 

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

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

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

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

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

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

the defective highway exception. Those cases are overruled. 

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

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

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

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

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

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

I. FACTS AND PROCEDURAL HISTORY 

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

crossing Jennings Street at its intersection with Main Street in Northfield 

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

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

Plaintiff served her notice on defendant Washtenaw County Road 

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

against defendant asserting the applicability of the defective highway exception to 

2
 
 

 

governmental immunity. MCL 691.1402. Defendant road commission filed an 

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

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

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

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

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

disposition. 

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

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

material fact concerning whether defendant had shown prejudice and thus denied 

the road commission’s motion for summary disposition. 

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

 Defendant 

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

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

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

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

them. 

1

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

253210). 

3
 
 

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

Court granted.2 

II. STANDARD OF REVIEW 

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

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

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

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

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

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

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

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

III. ANALYSIS 

a. GOVERNMENTAL IMMUNITY AND THE DEFECTIVE HIGHWAY 

EXCEPTION 

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

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

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

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

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

act enumerates several exceptions to governmental immunity that permit a 

2

 474 Mich 1099 (2006). 

4
 
 

 

 

plaintiff to pursue a claim against a governmental agency.3

 Our decision in this 

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

provides: 

As a condition to any recovery for injuries sustained by 

reason of any defective highway, the injured person, within 120 days 

from the time the injury occurred, except as otherwise provided in 

subsection (3)[4] shall serve a notice on the governmental agency of 

the occurrence of the injury and the defect. The notice shall specify 

3 The Legislature codified the following six exceptions in the GTLA: the 

defective highway exception, MCL 691.1402; the motor vehicle exception, MCL 

691.1405; the public building exception, MCL 691.1406; the proprietary function 

exception, MCL 691.1413; the governmental hospital exception, MCL 

691.1407(4); and the sewage disposal system exception, MCL 691.1417. Further, 

as we recognized in Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002), 

there are other areas outside the GTLA where the Legislature has allowed specific 

actions against a governmental agency notwithstanding governmental immunity, 

such as the Civil Rights Act. MCL 37.2103(g) and 37.2202(1)(a). 

4

 Subsection 3 provides: 

If the injured person is under the age of 18 years at the 

time the injury occurred, he shall serve the notice required by 

subsection (1) not more than 180 days from the time the 

injury occurred, which notice may be filed by a parent, 

attorney, next friend or legally appointed guardian. If the 

injured person is physically or mentally incapable of giving 

notice, he shall serve the notice required by subsection (1) not 

more than 180 days after the termination of the disability. In 

all civil actions in which the physical or mental capability of 

the person is in dispute, that issue shall be determined by the 

trier of the facts. The provisions of this subsection shall apply 

to all charter provisions, statutes and ordinances which 

require written notices to counties or municipal corporations. 

One amicus curiae argues in its brief that requiring notice after only four 

months is unreasonable because injured persons may still be incapacitated. But, 

this concern is addressed by subsection 3, which allows someone who is 

physically or mentally incapable of giving notice to serve notice not more than 

180 days after the termination of the disability. 

5
 
 

the exact location and nature of the defect, the injury sustained and 

the names of the witnesses known at the time by the claimant. 

[MCL 691.1404(1).] 

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

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

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

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

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

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

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

case.5

 It is valuable in considering the defensibility of this interpretation of the 

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

the provision at issue here. 

5

 Justice Kelly contends in her partial dissent that we should avoid 

revisiting Hobbs and Brown by holding that plaintiff’s notice itself was defective 

because it did not identify the nature of the defect of the highway, not because it 

was not served within 120 days. We disagree because the first question is whether 

the Legislature can even enact a notice provision with a hard and fast deadline. If 

it can, an issue we examine in this opinion, then there is no need to determine the 

second question of whether the late-filed notice in this case would have been 

adequate if it had been filed in a timely manner. While Justice Kelly accuses us of 

reaching unnecessary constitutional rulings, we believe it is more accurate to say 

that we have merely engaged in statutory analysis. But, to be able to apply the 

statute to the case at bar we have to dispatch the erroneous constitutional readings 

that were erected by the Hobbs/Brown courts to prevent us from engaging in a 

statutory analysis. Moreover, defendant specifically argued that plaintiff failed to 

comply with the 120-day notice provision of MCL 691.1404(1) in its motion for 

summary disposition and the trial court and the Court of Appeals relied on 

Hobbs/Brown to not enforce the statute. Under such circumstances, it is entirely 

proper for this Court to review whether Hobbs and Brown were properly decided. 

6
 
b. HISTORY OF THIS COURT’S CASELAW INVOLVING NOTICE 

STATUTES 

From its earliest years this Court, evidently detecting no constitutional 

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

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

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

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

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

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

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

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

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

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

(1969). 

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

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

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

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

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

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

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

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

7
 
 

 

 

 

most obvious being facilitating meaningful investigations regarding the conditions 

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

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

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

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

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

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

there was no liability.6 

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

particular notice requirements in governmental immunity cases was well settled 

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

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

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

an unconstitutional due process deprivation if plaintiffs suing governmental 

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

Moulter was not followed.7 

6

 See also Kraus v Kent Co Bd of Rd Comm’rs, 385 F2d 864 (CA 6, 1967), 

upholding dismissal of an action in a diversity case because of noncompliance 

with the notice statute. 

7 Actually, the lead opinion in Grubaugh stated that Moulter was overruled. 

But, the lead opinion was only signed by three justices and two other justices only 

concurred in the result. Under such circumstances, Grubaugh was not binding 

precedent. As this Court explained in Negri v Slotkin, 397 Mich 105, 109; 244 

NW2d 98 (1976), decisions in which no majority of the justices participating agree 

(continued...) 

8
 
 

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

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

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

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

analysis again was that the constitution forbids treating those injured by 

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

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

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

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

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

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

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

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

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

social legislation involving line drawing does not violate equal protection 

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

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

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

repaired promptly to prevent further injury, will suffice. 

(...continued) 

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

doctrine of stare decisis. 

9
 
Considering the same point, Justice Brennan in his dissent in Reich pithily 

pointed out the problems with the majority’s analysis: 

The legislature has declared governmental immunity from tort 

liability. The legislature has provided specific exceptions to that 

standard. The legislature has imposed specific conditions upon the 

exceptional instances of governmental liability. The legislature has 

the power to make these laws. This Court far exceeds its proper 

function when it declares this enactment unfair and unenforceable. 

[386 Mich at 626.] 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10
 
 

 

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

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

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

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

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

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

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

governmental immunity: 

The rationale of Carver is equally applicable to cases brought 

under the governmental liability act. Because actual prejudice to the 

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

purpose we can posit for this notice provision, absent a showing of 

such prejudice the notice provision contained in [MCL 691.1404] is 

not a bar to claims filed pursuant to [MCL 691.1402]. 

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

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

legislative acquiescence.8 

8

 Justices Riley and Boyle dissented from the Court’s holding. Justice 

Weaver did not participate, presumably because she had participated in the case as 

a Court of Appeals judge. 

Justice Kelly and Justice Cavanagh argue that legislative acquiescence 

should save Hobbs and Brown’s erroneous construction of the notice statute. But, 

it has been the rule in Michigan since at least Donajkowski v Alpena Power Co, 

460 Mich 243, 261; 596 NW2d 574 (1999), that the doctrine of legislative 

acquiescence is not recognized in this state. As we noted in Nawrocki v Macomb 

Co Rd Comm, 463 Mich 143, 177-178 n 33; 615 NW2d 702 (2000), the legislative 

acquiescence doctrine “‘is a highly disfavored doctrine of statutory construction; 

sound principles of statutory construction require that Michigan courts determine 

the Legislature’s intent from its words, not from its silence.’” (Citation omitted; 

(continued...) 

11
 
 

(...continued) 

emphasis omitted.) Justice Kelly’s professed fealty to stare decisis apparently 

would not prevent her from overruling sub silentio all the cases where we rejected 

the legislative acquiescence doctrine. See, e.g., Donajkowski; People v BorchardRuhland, 460 Mich 278, 286; 597 NW2d 1 (1999); Robinson v Detroit, 462 Mich 

439, 466; 613 NW2d 307 (2000); Nawrocki, supra; Hanson v Mecosta Co Rd 

Comm’rs, 465 Mich 492, 502; 638 NW2d 396 (2002); Robertson v 

DaimlerChrysler Corp, 465 Mich 732, 760; 641 NW2d 567 (2002); People v 

Hawkins, 468 Mich 488, 506-507; 668 NW2d 602 (2003); Neal v Wilkes, 470 

Mich 661, 668 n 11; 685 NW2d 648 (2004); Devillers v Auto Club Ins Ass’n, 473 

Mich 562, 592; 702 NW2d 539 (2005); Grimes v Dep’t of Transportation, 475 

Mich 72, 84; 715 NW2d 275 (2006); People v Anstey, 476 Mich 436, 445; 719 

NW2d 579 (2006); Paige v Sterling Hts, 476 Mich 495, 516; 720 NW2d 219 

(2006). 

Furthermore, in a circumstance such as here, where the Court has said the 

constitution precludes the Legislature from doing as it wishes (thus making the 

desired legislative action impossible) a legislative acquiescence argument is 

entirely misbegotten. Justice Kelly claims that the Legislature could have simply 

reenacted the statute after identifying an additional intent. We disagree. First, the 

Hobbs Court said the “only” legitimate reason it could surmise for the notice 

statute was to prevent prejudice to the government. Inescapably this must be read 

to mean that other reasons would not be found legitimate. Thus, adding another 

reason would hardly be seen as a viable option for the Legislature. In any event, 

the Legislature is not required to indicate in a statute what its motivations are. 

Rather, it is a court’s duty in “rational basis” cases such as this to find 

constitutionality if “‘“any state of facts either known or which could reasonably be 

assumed affords support”‘“ for the statute. Brown, supra at 362 (citations 

omitted). Justice Kelly herself has said this. Harvey v Michigan 469 Mich 1, 13­

14; 664 NW2d 767 (2003). 

Justice Kelly also argues that the Legislature could have amended the 

statute to include a presumption of prejudice. Revising the statute in such a 

manner, however, would not have produced what the Legislature wanted—a 

statute with a clearly identified and readily enforceable deadline that does not 

require a showing of prejudice or anything else to be enforceable. 

12
 
c. HOBBS AND BROWN WERE WRONGLY DECIDED AND POORLY 

REASONED 

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

built on an argument that governmental immunity notice statutes are 

unconstitutional or at least sometimes unconstitutional if the government was not 

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

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

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

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

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

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

398 Mich at 96. 

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

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

has a rational basis. She stated: 

I note that “[w]hen scrutinizing economic and social 

legislation, this Court applies the rational basis standard of review.” 

Downriver Plaza Group v Southgate, 444 Mich 656, 666; 513 

NW2d 807 (1994). The only inquiry, then, is whether this social 

legislation creating a 120-day notice requirement has a rational 

basis. 

This particular legislation passes the minimal rational basis 

test, and the Court in Hobbs was without authority to require a 

showing of prejudice in each and every case. Notice provisions 

rationally and reasonably provide the state with the opportunity to 

investigate and evaluate a claim. [452 Mich at 370.] 

13
 
Because the statute was constitutional, no “saving construction” was 

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

statute was entirely indefensible. 

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

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

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

purpose it discerned: 

We must say that the legislature intended to give to 

defendants in such cases some protection against unjust raids upon 

their treasuries by unscrupulous prosecution of trumped-up, 

exaggerated, and stale claims, by requiring a claimant to give 

definite information to the city or village against whom it is asserted, 

at a time when the matter is fresh, conditions unchanged, and 

witnesses thereto and to the accident within reach. It is a just law, 

necessary to the protection of the taxpayer, who bears the burden of 

unjust judgments. It requires only ordinary knowledge and diligence 

on the part of the injured and his counsel, and there is no reason for 

relieving them from the requirements of this statute that would not 

be applicable to any other statute of limitation. 

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

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

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

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

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

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

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

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

14
 
of the extent of future demands, or even to force the claimant to an early choice 

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

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

691.1404 was enacted. 

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

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

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

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

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

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

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

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

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

even required to provide a defective highway exception to governmental 

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

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

It being optional with the legislature whether it would confer 

upon persons injured a right of action therefor or leave them 

remediless, it could attach to the right conferred any limitations it 

chose. [155 Mich at 168-169.] 

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

accordance with the constitution. The notice provision passes constitutional 

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

15
 
 

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

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

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

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

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

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

9 Justice Cavanagh argues that a minority of courts have made similar rulings. We 

acknowledge as much, but note that the vast majority of jurisdictions that have 

considered such a constitutional challenge has concluded that notice-of-claim and 

statute-of-limitations rules placed on persons bringing tort actions against 

governmental entities are rationally related to reasonable legislative purposes and 

thus do not violate equal protection. See, e.g., Tammen v San Diego Co, 66 Cal 2d 

468; 426 P2d 753; 58 Cal Rptr 249 (1967); Fritz v Regents of Univ of Colorado, 

196 Colo 335; 586 P2d 23 (1978); McCann v City of Lake Wales, 144 So 2d 505 

(Fla, 1962); Newlan v State, 96 Idaho 711; 535 P2d 1348 (1975); King v Johnson, 

47 Ill 2d 247; 265 NE2d 874 (1970); Johnson v Maryland State Police, 331 Md 

285; 628 A2d 162 (1993); Campbell v City of Lincoln, 195 Neb 703; 240 NW2d 

339 (1976); Espanola Housing Auth v Atencio, 90 NM 787; 568 P2d 1233 (1977); 

Herman v Magnuson, 277 NW2d 445 (ND 1979); Reirdon v Wilburton Bd of Ed, 

611 P2d 239 (Okla, 1980); James v Southeastern Pennsylvania Transp Auth, 505 

Pa 137; 477 A2d 1302 (1984); Budahl v Gordon & David Assoc, 287 NW2d 489 

(SD, 1980); City of Waco v Landingham, 138 Tex 156; 157 SW2d 631 (1941); 

Sears v Southworth, 563 P2d 192 (Utah, 1977). We agree with the majority rule. 

10 As United States Supreme Court Justice John Marshall Harlan stated in 

his famous dissent in Plessy v Ferguson, 163 US 537, 558; 16 S Ct 1138; 41 L Ed 

256 (1896): 

[T]he courts best discharge their duty by executing the will of 

the law-making power, constitutionally expressed, leaving the results 

of legislation to be dealt with by the people through their 

representatives. 

In a more recent iteration of the rule, we stated in DiBenedetto v West 

Shore Hosp, 461 Mich 394; 405; 605 NW2d 300 (2000), that courts may not 

“rewrite the plain statutory language and substitute our own policy decisions for 

(continued...) 

16
 
 

 

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

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

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

us to retain this poorly reasoned precedent. 

IV. STARE DECISIS 

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

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

463-468; 613 NW2d 307 (2000). 

12 As we have previously explained, we are 

(...continued) 

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

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

authority to add words or conditions to the statute. 

11 In her dissent Justice Kelly repeats the error of the Hobbs and Brown 

courts in concluding that the only rational basis supporting the statute is that which 

the Hobbs and Brown courts fixed upon: prejudice to the government tortfeasor. 

One can only ask, why is this the only allowable rational basis? Must we not use, 

as the majority has here, the rule that Justice Kelly herself used in Harvey v 

Michigan, that a court must find constitutionality if any state of facts either known 

or which can reasonably be assumed affords support? Because there are such 

reasons, beyond what the Hobbs and Brown courts themselves found, as discussed 

in this opinion, why does this rule not apply here? Indeed, if as Justice Kelly 

apparently concludes, it does not, what is her test for when the rule is 

inapplicable? She gives none. This is not how a court should analyze matters 

because it makes future application of the law, should her view prevail, entirely 

without predictability. This is a prescription for chaos and injustice. 

12 See, also, Halfacre v Paragon Bridge & Steel Co, 368 Mich 366, 377; 

118 NW2d 455 (1962) (Courts have the “right and duty to re-examine and reexamine again, if need be, statutory enactments already judicially construed.”). 

(Emphasis added.) 

17
 
 

 

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

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

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

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

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

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

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

Robinson, supra at 464-467. 

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

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

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

and rapid road repairs, as well as the creation of reserves and the like for selfinsured governmental entities. When prompt notice is not provided, the entire 

legislative scheme is accordingly less workable. 

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

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

13 Justice Kelly argues that the principle of stare decisis should prevent this 

Court from overruling Hobbs and Brown. We note that Justice Kelly’s fealty to 

precedent is quite selective. She shows no concern that Hobbs disregarded 75 

years of precedent that had upheld governmental immunity notice provisions. 

Indeed, each of the criticisms Justice Kelly sends our way is actually more 

applicable to the Hobbs Court. If 30 years of precedent should not be lightly 

ignored, what of the Hobbs Court ignoring 75 years of precedent? In any event, 

we have applied the Robinson stare decisis factors and concluded that they do not 

counsel against overruling Hobbs and Brown. 

18
 
and Brown, it becomes quite evident that injured plaintiffs, otherwise able to file 

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

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

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

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

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

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

notice within 120 days in reliance on Hobbs and Brown. 

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

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

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

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

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

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

strongly justified in overruling precedent when adherence to the precedent would 

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

463 Mich at 181. 

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

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

Further, it is well to recall in discussing reliance, when 

dealing with an area of the law that is statutory . . . , that it is to the 

words of the statute itself that a citizen first looks for guidance in 

directing his actions. This is the essence of the rule of law: to know 

in advance what the rules of society are. Thus, if the words of the 

19
 
 

statute are clear, the actor should be able to expect, that is, rely, that 

they will be carried out by all in society, including the courts. In fact, 

should a court confound those legitimate citizen expectations by 

misreading or misconstruing a statute, it is that court itself that has 

disrupted the reliance interest. When that happens, a subsequent 

court, rather than holding to the distorted reading because of the 

doctrine of stare decisis, should overrule the earlier court’s 

misconstruction. The reason for this is that the court in distorting the 

statute was engaged in a form of judicial usurpation that runs counter 

to the bedrock principle of American constitutionalism, i.e., that the 

lawmaking power is reposed in the people as reflected in the work of 

the Legislature, and, absent a constitutional violation, the courts 

have no legitimacy in overruling or nullifying the people’s 

representatives. Moreover, not only does such a compromising by a 

court of the citizen’s ability to rely on a statute have no 

constitutional warrant, it can gain no higher pedigree as later courts 

repeat the error. [Robinson, supra at 467-468.] 

This language from Robinson fully supports overruling Hobbs and Brown 

because this Court in those cases confounded legitimate citizen expectations by 

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

14 We note that Justice Kelly repeats in her partially dissenting opinion the 

canard that this Court has overruled cases at an alarming rate. As we most 

recently said in Paige v Sterling Hts, supra at 514, the fallacy of these statistical 

false alarms was demonstrated in Sington v Chrysler Corp, 467 Mich 144, 166­

170; 648 NW2d 624 (2002), and Mack v Detroit, 467 Mich 186, 211; 649 NW2d 

47 (2002). Moreover, an article by Victor E. Schwartz, A critical look at the 

jurisprudence of the Michigan Supreme Court, 85 Mich B J 38, 41 (January, 

2006), shows the methodological failures of these various “the sky is falling” 

arguments. 

Justice Kelly claims that a study by Todd C. Berg in Michigan Lawyer’s 

Weekly shows that this Court has overruled cases at a rate four times that of 

previous courts (41 cases overruling precedent out of 13,923 dispositions between 

2000 and 2005—1/3 of one percent—versus 15 cases overruling precedent out of 

16,729 dispositions between 1994-1999—1/21 of one percent). Leaving aside 

Justice Kelly’s incorrect math, when the actual figures are cited it seems obvious 

that during both periods the number of cases that were overruled was miniscule 

when compared with the number of dispositions. The difference between 1/21 of 

(continued...) 

20
 
 

 

(...continued) 

one percent and 1/3 of one percent is an inconsequential statistical difference. It 

can only be made to look arresting if one stretches for the most alarming way to 

describe it. That is what Justice Kelly has done here. We invite scrutiny of the 

study by Mr. Berg because it reinforces, we believe, the point we are making. 

In further evaluating Justice Kelly’s claim that this Court has overruled 

more cases than is usual, we would call attention to the difficulties in relying on 

earlier statistics regarding overruled cases. As explained in Devillers v Auto Club 

Ins Ass’n, 473 Mich 562, 567 n 6; 702 NW2d 539 (2005), it was not uncommon 

for this Court in earlier years to fail to state that cases it was clearly overruling 

were being overruled. A good example of this practice is set forth in Mudel v 

Great Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000). In 

Mudel this Court expressly overruled Goff v Bil-Mar Foods, Inc (After Remand), 

454 Mich 507; 563 NW2d 214 (1997), which was decided five years after Holden 

v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992). But, Goff had failed to 

acknowledge that it was overruling Holden. As we stated in Mudel: “Therefore, 

unlike the unstated but effective overruling of Holden in Goff, we expressly 

overrule Goff, insofar as it contradicts the statutory language and departs from our 

decision in Holden.” 462 Mich at 708. Indeed, Justice Kelly would apparently 

continue with this approach of not clearly identifying overruled cases. She refers 

to numerous cases in this Court that rejected the doctrine of legislative 

acquiescence as “rogue” decisions. Post at 15 n 17. But, then she asserts that she 

would not be overruling such cases if she could persuade three other justices to 

approve of the discredited legislative acquiescence doctrine. Again, this illustrates 

the fact that Justice Kelly would not include cases she actually overruled in the list 

of cases she admitted overruling. 

Next, Justice Kelly, to discredit the above analysis, indicates that she would 

not count cases where we denied leave to appeal in calculating how frequently 

cases were overruled. Why not? Each case presumably relied on earlier 

precedent, and when this Court denies leave to appeal, it leaves a precedent intact. 

See further Justice Markman’s concurrence, which provides an excellent and even 

more thorough response to Justice Kelly’s meritless claim. 

Finally, in response to Justice Markman’s challenge to give her standards 

for overruling cases, she responds not with an approach, but with a puzzling 

indication that she would rely on interpretive tools such as the absurd results rule. 

Whatever the merits of those rules, and they have been discussed at length by this 

Court in recent years, they have nothing to do with determining when precedent 

should be overruled. In short, her response is a response to a question not asked. 

The reader need not be without resources in this situation because Justice Kelly 

has already tendered an answer. In Sington v Chrysler Corp, 467 Mich 144, 184; 

(continued...) 

21
 
 

 

 

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

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

15 

MCL 691.1404 is straightforward, clear, unambiguous, and not 

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

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

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

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

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

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

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

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

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

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

(...continued) 

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

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

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

15 In dissent Justice Kelly derides our effort to properly construe the statute 

after previous judicial deconstructions as “second-guessing.” Does she really 

think that we comply with the oaths we took when we do not follow the clear 

directions of the Legislature in statutes and when we ignore past cases adhering to 

those directions? We do not. We believe the most defensible approach is to 

overrule cases when the criteria set forth in Robinson v Detroit are satisfied. 

16 Indeed, in Brown the road commission was prejudiced because it, 

unaware that there had been an accident, repaved the road where the accident 

happened before the 120-day notice period expired. This made no difference in 

the ability of the plaintiff to proceed with his lawsuit. 452 Mich at 360 n 11. 

22
 
 

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

there is no prejudice. 

V. RETROACTIVITY 

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

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

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

Although the general rule is that judicial decisions are given 

full retroactive effect, Hyde v Univ of Michigan Bd of Regents, 426 

Mich 223, 240; 393 NW2d 847 (1986), a more flexible approach is 

warranted where injustice might result from full retroactivity. 

Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997). 

For example, a holding that overrules settled precedent may properly 

be limited to prospective application. 

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

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

whether the general rule should not be followed are 

(1) the purpose to be served by the new rule, (2) the extent of 

reliance on the old rule, and (3) the effect of retroactivity on the 

administration of justice. [Id.] 

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

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

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

governmental immunity recognized in Hadfield had induced reliance by both 

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

encouraged to purchase insurance, while homeowners have been discouraged from 

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

23
 
 

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

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

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

Court applied Pohutski prospectively. 

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

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

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

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

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

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

484. 

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

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

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

to apply the decision retroactively: 

First, this case presents none of the exigent circumstances that 

warranted the “extreme measure” of prospective application in 

Pohutski . . . . Second, there is a serious question as to whether it is 

constitutionally legitimate for this Court to render purely prospective 

opinions, as such rulings are, in essence, advisory opinions. 

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

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

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

Brown. 

24
 
In Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005), 

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

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

explained: 

As we reaffirmed recently in Hathcock, prospective-only 

application of our decisions is generally “‘limited to decisions which 

overrule clear and uncontradicted case law.’” Lewis is an anomaly 

that, for the first time, engrafted onto the text of [MCL 500.3145(1)] 

a tolling clause that has absolutely no basis in the text of the statute. 

Lewis itself rests upon case law that consciously and inexplicably 

departed from decades of precedent holding that contractual and 

statutory terms relating to insurance are to be enforced according to 

their plain and unambiguous terms. 

Thus, Lewis cannot be deemed a “clear and uncontradicted” 

decision that might call for prospective application of our decision in 

the present case. Much like Hathcock, our decision here is not a 

declaration of a new rule, but a return to an earlier rule and a 

vindication of controlling legal authority—here, the “one-year-back” 

limitation of MCL 500.3145(1). [Devillers, 473 Mich at 587 

(citations and emphasis omitted).] 

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

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

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

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

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

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

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

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

25
 
 

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

usurped legislative power restores legitimacy to the law. 

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

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

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

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

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

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

Legislature for one of the exceptions to governmental immunity. 

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

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

due constitutional deference to the language of the statute. 

VI. CONCLUSION 

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

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

17 Thus, we reject Justice Kelly’s claim that our decision today is 

tantamount to a new rule of law. 

18 As we noted in Mack v Detroit, 467 Mich at 203 n 18, a central purpose 

of governmental immunity is to prevent a drain on the state’s resources by 

avoiding even the expense of having to contest on the merits any claim barred by 

governmental immunity. Accord Ridgeway v Escanaba, 154 Mich at 73. 

26
 
case to the trial court for the entry of an order dismissing plaintiff’s complaint. 

Clifford W. Taylor 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

27
 
 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

JOANNE ROWLAND, also known as 

JOAN ROWLAND, 

Plaintiff-Appellee, 

No. 130379 

WASHTENAW COUNTY ROAD 

COMMISSION, 

 Defendant-Appellant. 

MARKMAN, J. (concurring). 

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

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

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

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

1

 This opinion constitutes my exclusive response to Justice Kelly’s 

criticisms concerning this Court’s approach to precedent for I do not join footnotes 

8 and 14 of the majority opinion. In her criticisms, Justice Kelly claims that the 

majority overturns precedent at an “alarming and unprecedented rate,” the 

majority “exhibits disrespect for stare decisis,” the majority is “intent on 

overturning precedent,” the majority has declared itself “more capable of 

understanding the law . . . than any justice who sat before,” the majority has 

“ordained itself master [of a] higher law,” the majority “damages the integrity of 

the judicial process,” and the majority is “alarmingly activist.” 
 

and in which the Court majority has been aligned against Justice Kelly.2

 From this 

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

observations concerning precedent and the current Court: 

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

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

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

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

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

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

precedents.3

 The majority, on the other hand, for reasons summarized in the 

2

 In three other cases during this same period, the Court overruled 

precedent, but with a different alignment of justices. People v Starks, 473 Mich 

227; 701 NW2d 136 (2005); People v Lively, 470 Mich 248; 680 NW2d 878 

(2004); People v Moore, 470 Mich 56; 679 NW2d 41 (2004). These 40 cases 

occurred against a backdrop of 543 published opinions issued during this same 

period and more than 18,500 dispositions of applications for leave to appeal. 

3

 Justice Kelly asserts that I imply that she would “not have the same 

respect for stare decisis if majority control of the Court switched” during her 

tenure. Post at 11 n 12. She further asserts that I suggest that she has “refused to 

overturn precedent merely because [she agrees with it].” Post at 18 n 20. Neither 

of these assertions is accurate. Rather, what I state is that there is simply no 

evidence one way or the other that Justice Kelly is any more averse to overruling 

precedent than the majority; there is merely evidence that Justice Kelly is more 

approving of the precedents that have been overruled by this Court than the 

majority. A justice’s perspective on stare decisis is not evidenced by her 

willingness to maintain precedents with which she agrees, but by her willingness 

to maintain precedents with which she disagrees. As the most recent example of 

Justice Kelly’s willingness to reverse precedents with she actually disagrees, see 

her opinion in Haynes v Neshawat, 477 Mich 29; 729 NW2d 488 (2007), 

(continued...) 

2
 
 

 

 

chart,4

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

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

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

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

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

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

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

standard for determining when a wrongly decided precedent warrants overruling, 

and recognized that a variety of considerations, including individual reliance 

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

fabric, must be evaluated.5

 In anticipation of the day when her own judicial 

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

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

(...continued) 

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

545 (1992).
 

4

 The summaries obviously cannot do full justice to the issues involved in 

these cases. These are designed simply to identify the essential issue in 

controversy in these 40 cases. 

5 Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). 

3
 
 

 

 

standards concerning when she would or would not overrule such obviously 

distasteful precedents.6 

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

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

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

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

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

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

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

overrulings of precedent occurring during the past seven terms have 

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

the misinterpretation of straightforward words and phrases in statutes and 

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

were there were read out of the law.7

 Where such misinterpretation occurs, not 

6

 In response to this inquiry, Justice Kelly now posits a standard that would 

assess whether a precedent is “‘free from absurdity, not mischievous in practice, 

and consistent with one another.’” Post at 8 n 8 (citation omitted). While at least 

this is a standard of sorts, it is hard to imagine a standard more deferential to 

judges and less deferential to the law. 

7

 The instant case illustrates this proposition well for Justice Kelly, unlike 

the justices in the majority, would effectively engraft onto MCL 691.1404 

language upholding its 120-day notice requirement only if there was “prejudice 

caused to the government by the failure to supply notice within such time.” Thus, 

the 120-day notice requirement would sometimes mean what it says and would 

sometimes not. Whatever the policy merits of Justice Kelly’s amendments from 

(continued...) 

4
 
 

 

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

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

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

lawmaker, and renders the law increasingly arbitrary and unpredictable. 

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

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

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

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

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

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

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

precedents that were inconsistent with new decisions, essentially allowing future 

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

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

the present majority has overruled more precedents than its predecessors during 

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

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

(...continued) 

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

Legislature. 

8

 Justice Kelly identifies 61 overruled precedents during the years in 

question, rather than the 40 (or 43) we identify. This is because, in several 

instances, she treats as multiple overrulings an opinion overruling a single 

(continued...) 

5
 
 

 

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

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

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

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

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

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

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

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

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

“right”?9

 There are no simple or pat answers to these questions. The people of 

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

(...continued) 

proposition of law that has been reiterated by the Court. Thus, for example, a 

decision to overrule the standard for granting summary judgment-- a standard 

articulated in countless opinions of this Court-- might count as an overruling of 

each of these opinions. 

9

 Justice Kelly makes light of what she describes as this Court’s belief in its 

“solemn duty” to “rewrite Michigan case law to ‘get the law right.’” Post at 10 n 

10. Although as Robinson, supra at 463-468 makes clear, a variety of factors must 

be considered in evaluating whether to overrule a precedent, I do confess to 

thinking that “getting the law right” is a rather significant part of this Court’s 

constitutional responsibilities. For Justice Kelly, however, a misreading of the law 

is apparently acceptable as long as it is “free from absurdity.” A rather tolerant 

standard. I would prefer to hold this Court to a higher standard in interpreting the 

will of the people and their elected representatives. See also Robertson v 

DaimlerChrysler Corp, 465 Mich 732, 756; 641 NW2d 567 (2002), observing that 

a legal system in which “the public may read the plain words of its law and have 

confidence that such words mean what they say” serves many of the same goals as 

stare decisis. 

6
 
contained in this chart and determine for themselves whether Justice Kelly or the 

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

the Michigan Constitution. 

Stephen J. Markman 

7
 
Case Which Overruled Which in Turn Overruled Case Holding 

1 Paige v City of Sterling 

Hts, 476 Mich 495; 720 NW2d 219 (2006) 

Hagerman Group v Gencorp Automotive, 457 Mich 720; 579 NW2d 347 (1998) 

Hagerman failed to follow Stoll v Laubengayer, 174 Mich 701; 140 NW 532 (1913). 

The language “the p418.375(2), means “the” proximate cause. 

2 People v Anstey, 476 

Mich 436; 719 NW2d 579 (2006) 

People v Koval, 371 Mich 453; 124 NW2d 274 (1963) 

Dismissal is not the propof the statutory right to 

test because MCL 257.such a remedy. 

3 Cameron v Auto Club 

Ins Ass’n, 476 Mich 55; 718 NW2d 784 (2006) 

Geiger v Detroit Automobile Inter-Ins Exch, 114 Mich App 283; 318 NW2d 833 (1982); Geiger relied on Lambert v Calhoun, 394 Mich 179; 229 NW2d 332 (1979) 

Lambert overruled Holland v Eaton, 373 Mich 34; 127 NW2d 892 (1964). 

The language “the clabenefits for any portion than 1 year before the commenced,” MCL 50claimant may only recowithin 1 year of filing sui

4 Grimes v Dep’t of 

Transportation, 475 Mich 72; 715 NW2d 

Gregg v State Highway Dep’t, 435 Mich 307; 

Gregg ignored Scheurman v 

Dep’t of Transportation, 434 

Mich 619; 456 NW2d 66 

The language “improved designed for vehicular trdoes not include the shou
275 (2006) 458 NW2d 619 

(1990) 

(1990), and failed to follow Roy v Dep’t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), and Goodrich v Kalamazoo Co, 304 Mich 442; 8 NW2d 130 (1943). 

not designed for vehicula

5 Joliet v Pitoniak, 475 

Mich 30; 715 NW2d 60 (2006) 

Jacobson v Parda Fed Credit Union, 457 Mich 318; 577 NW2d 81 (1998) 

Jacobson failed to follow Champion v Nationwide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). 

The language “the claim wrong upon which the 

regardless of the time wh600.5827, means that a c

Civil Rights Act accruealleged discriminatory ac

6 People v Hawthorne, 

474 Mich 174; 713 NW2d 724 (2006) 

People v Jones, 

395 Mich 379; 236 NW2d 461 (1975); People v Lester, 406 Mich 252; 277 NW2d 633 (1979), and their progeny 

The language “[n]o judgmaside or reversed or a necourt of this state in aground of misdirection oshall affirmatively appeaof has resulted in a mis769.26, means that a triaon the defense of acautomatic reversal of a de

7 Devillers v Auto Club 

Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005) 

Lewis v Detroit Automobile Inter-Ins Exch, 426 Mich 93; 393 NW2d 167 (1986) 

Lewis failed to follow Dahrooge v Rochester-German Ins Co, 177 Mich 442; 143 NW 608 (1913). 

The language “the clabenefits for any portion than 1 year before the commenced,” MCL 50plaintiff may only recowithin 1 year of filing sui
8 Rory v Continental Ins 

Co, 473 Mich 457; 703 NW2d 23 (2005) 

Tom Thomas Org, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976); Camelot Excavating Co v St Paul Fire & Marine, 410 Mich 118; 301 NW2d 275 (1981); Herweyer v Clark Hwy Services, Inc, 455 Mich 14; 564 NW2d 857 (1997) 

Tom Thomas failed to follow Dahrooge v Rochester-German Ins Co, 177 Mich 442; 143 NW 608 (1913); McIntyre v Michigan State Ins Co, 52 Mich 188; 17 NW 781 (1883); Law v New England Mut Accident Ass’n, 94 Mich 266; 53 NW 1104 (1892); Turner v Fidelity & Cas Co, 112 Mich 425; 70 NW 898 (1897); Harris v Phoenix Accident & Sick Benefit Ass’n, 149 Mich 285; 112 NW 935 (1907); Friedberg v Ins Co of North America, 257 Mich 291; 241 NW 138 (1932); Hall v Metropolitan Life Ins Co, 274 Mich 196; 264 NW 340 (1936); Barza v Metropolitan Life Ins Co, 281 Mich 532; 275 NW 238 (1937); and Bashans v Metro Mut Ins Co, 369 Mich 141; 119 NW2d 622 (1963). Herweyer implicitly overruled State Farm Mut Automobile Ins 

The language “a claim within 1 year from the dthat a claim or suit must from the date of the accid
Co v Ruuska, 412 Mich 335; 

314 NW2d 184 (1982). 

9 People v Bell, 473 

Mich 275; 702 NW2d 128 (2005) 

People v Miller, 411 Mich 321; 307 NW2d 335 (1981); People v Schmitz, 231 Mich App 521; 586 NW2d 766 (1998) 

Dismissal is not the propof the statutory right to because MCL 768.13 remedy. 

10 Garg v Macomb 

Community Mental Health, 472 Mich 263; 696 NW2d 646 (2005) 

Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986) 

The language “[t]he claiwrong upon which the 

regardless of the time wh600.5827, as applied to limitations in MCL 600plaintiff must commencyears of a claimed violAct. 

11 Echelon Homes, LLC v 

Carter Lumber Co, 472 Mich 192; 694 NW2d 544 (2005) 

People v Tantenella, 212 Mich 614; 180 NW 474 (1920) 

The ability of a person tfrom “[a]nother perspossessing, concealingconcealment of stolen, property when the pepossessing, concealingconcealment of stolen, property knew that thembezzled, or convertedthat the buyer must have 
property in question wa

converted.” 

12 People v Davis, 472 

Mich 156; 695 NW2d 45 (2005) 

People Cooper, Mich 450;NW2d (1976) 

v 

398 

247 866 

Cooper failed to follow Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959). 

An “offense” is a viosovereign. Where a defof one act violates the llanguage “[n]o person shoffense to be twice put art 1, § 15, does nosovereigns from prosecuact. 

13 People v Young, 472 

Mich 130; 693 NW2d 801 (2005) 

People McCoy, Mich 231;NW2d (1974) 

v 

392 

220 456 

The language “[t]he courto the law applicable to opinion the interests of j768.29, means that the trgive a cautionary accompmandated to do so. 

14 Neal v Wilkes, 470 

Mich 661; 685 NW2d 648 (2004) 

Wymer Holmes, Mich 66; NW2d (1987) 

v 

429 412 

213 

The language “a cause oinjuries to a person who . for the purpose of . . . oagainst the owner . . . 324.73301(1), applies to recreational use, not undeveloped land.” 

15 People v Hickman, 470 

Mich 602; 684 NW2d 267 (2004) 

People Anderson, Mich 155;

v 

389 

205 

The language “[i]n every accused shall have the assistance of counsel for 
NW2d 461 1963, art 1, § 20, mean

(1973) attaches only to corporea

at or after the initiatioproceedings. 

16 Waltz v Wyse, 469 

Mich 642; 677 NW2d 813 (2004) 

Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000) 

The language “[t]he srepose are tolled,” MCL additional period permit

for filing wrongful death statute of limitations or re

17 People v Nutt, 469 

Mich 565; 677 NW2d 1 (2004) 

People v White, 390 Mich 245; 212 NW2d 222 (1973) 

White expressly overruled People v Grimmett, 388 Mich 590, 607; 202 NW2d 278 (1972); People v Parrow, 80 

Mich 567; 45 NW 514 (1890); and People v Ochotski, 115 

Mich 601; 73 NW 899 (1898). 

The language prohibitinof the “same offense,” means that successive ponly where the charged elements. 

18 Rakestraw v Gen 

Dynamics Land Systems, Inc, 469 Mich 220; 666 NW2d 199 (2003) 

Carter v Gen Motors Corp, 361 Mich 577; 106 NW2d 105 (1960) 

The language “personal ithe course of employmmeans that a claimant mu“arising out of” his or hesymptom, such as painclaimant must be causaand, thus, where a claimaan injury whose symptopreexisting condition, he existence of a work-re
beyond the manifestati

underlying preexisting co

19 Wilkie v Auto-Owners 

Ins Co, 469 Mich 41; 664 NW2d 776 (2003) 

Powers v Detroit Automobile Inter-Ins Exch, 427 Mich 602; 398 NW2d 411 (1986); Vanguard Ins Co v Clarke, 438 Mich 463; 475 NW2d 48 (1991) 

Powers failed to follow Raska v Farm Bureau Mut Ins Co, 412 Mich 355; 314 NW2d 440 (1982). Vanguard failed to follow Powers and Michigan MillersMut Ins Co v Bronson Plating Co, 445 Mich 558; 519 NW2d 864 (1994). 

The language “total limliability bonds and policor operator of the underithe total amount availabamount actually received 

20 Jones v Dep’t of 

Corrections, 468 Mich 646; 664 NW2d 717 (2003) 

In re Lane, 377 Mich 695; 387 NW2d 912 (1966); Stewart v Dep’t of Corrections, 382 Mich 474; 170 NW2d 16 (1969) 

The relinquishment of thto revoke parole is not violation of the statutory 45 days after the parolee for return” to prison for MCL 791.240a(1) does n

21 People v Hawkins, 468 

Mich 488; 664 NW2d 717 (2003) 

People v Sherbine, 421 Mich 502; 364 NW2d 658 

An application of the exproper remedy for the seeither a search warrant is780.653(b) or a bench w
(1984); People v 

Sloan, 450 Mich 160; 538 NW2d 380 (1995) 

MCR 3.606(A) because court rule contemplates s

22 Haynie v Michigan, 

468 Mich 302; 664 NW2d 129 (2003) 

Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998) 

The language “unwelrequests for favors, and conduct of a sexual nameans that conduct or gender-based but not sconstitute “sexual haraRights Act. 

23 Rednour v Hastings 

Mut Ins Co, 468 Mich 241; 661 NW2d 562 (2003) 

Nickerson v Citizens Mut Ins Co, 393 Mich 324; 224 NW2d 896 (1975) 

Nickerson predated the no-fault act. 

The language “in, upon, vehicle does not include 

a vehicle. 

24 Taylor v Smithkline 

Beecham Corp, 468 Mich 1; 658 NW2d 127 (2003) 

Dearborn Independent, Inc v Dearborn, 331 Mich 447; 49 NW2d 370 (1951) 

MCL 600.2946(5), whic“defective or unreasonabwas approved for safety States food and drug admdrug and its labeling weUnited States food anapproval at the time the manufacturer or sellerdelegate the legislative pbecause the FDA’s detsafety and efficacy of significance to, and is m
consideration of, the imp

25 Mack v Detroit, 

467 Mich 186; 649 NW2d 47 (2002) 

McCummings v Hurley Med Ctr, 433 Mich 404; 446 NW2d 114 (1989) 

McCummings overruled Hyde v Univ of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), and McCann v Dep’t of Mental Health, 398 Mich 65; 247 NW2d 52 (1976). 

The language “[e]xcept [the governmental tgovernmental agency is if the governmental agexercise or discharge of MCL 691.1407(1), mgovernmental tort liabilisexual orientation discgovernmental immunitimmune from tort liabiorientation discrimination

26 Sington v Chrysler 

Corp, 467 Mich 144; 648 NW2d 624 (2002) 

Haske v Transport Leasing Inc, 455 Mich 628; 566 NW2d 896 (1997) 

Haske overruled Rea v Regency 

Olds/Mazda/Volvo, 450 Mich 1201 (1995). 

The definition of “disab

as “a limitation of an capacity in work suqualifications and traipersonal injury or work ra workers’ compensdetermine both that the related injury and that resulted in a loss of wagesuitable to the emqualifications in the ordin
27 People v Petit, 466 

Mich 624; 648 NW2d 193 (2002) 

People v Berry, 409 Mich 774; 298 NW2d 434 (1980) 

Berry interpreted the former GCR 1963, 785.8, which differs from the current MCR 6.425(D)(2)(c). 

The language “the court give the defendant . . . an court of any circumstanshould consider in im6.425(D)(2)(c), means thdefendant an “opportunbefore sentence is imposthe court must specifwhether he or she has anbehalf. 

28 People v Hardiman, 

466 Mich 417; 646 NW2d 158 (2002) 

People v Atley, 

392 Mich 298; 220 NW2d 465 (1974). 

Under MRE 401, evidenctendency to make the exof consequence to the dmore probable or less pwithout the evidence,” evidence is relevant anmatter that the evidencinferences or that an infeinferences. 

29 People v Cornell, 466 

Mich 335; 646 NW2d 127 (2002) 

People v Jones, 395 Mich 379; 236 NW2d 461 (1975); People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975); People v Jenkins, 395 

Jones and its progeny failed to follow Hanna v People, 19 Mich 316 (1869). 

The language “the jury . . guilty of a degree of thcharged in the indictmenmeans that a requested inincluded lesser offense greater offense requires factual element that is included offense and 
Mich 440; 236 

NW2d 503 (1975); People v Stephens, 416 Mich 252; 330 NW2d 675 (1982) 

evidence would support i

30 Koontz v Ameritech, 

466 Mich 304; 645 NW2d 34 (2002) 

White v McLouth Steel Products, decided sub nom Corbett v Plymouth Twp, 453 Mich 522; 556 NW2d 478 (1996) 

An employee who had talump sum has “receiveddefined by MCL 421.27statute mandates coordiunemployment benefits benefits. 

31 Robertson v 

DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002) 

Gardner v Van Buren Pub Schools, 445 Mich 23; 517 NW2d 1 (1994) 

The language “[m]entcompensable when arisinemployment, not unfounMCL 418.301(2), means workers’ compensation demonstrate both that temployment event leadinthe claimant’s perceemployment event was reor reality. 

32 Pohutski v City of Allen 

Park, 465 Mich 675; 

Hadfield v Oakland Co 

The language “this act dthe immunity of the sta
641 NW2d 219 (2002) Drain Comm’r, 

430 Mich 139; 422 NW2d 205 (1988); Li v Feldt, 434 Mich 584; 456 NW2d 55 (1990) 

existed before July 1, means that the state, nosubject to liability under to governmental immunit

33 Brown v Genesee Co 

Bd of Comm’rs, 464 Mich 430; 628 NW2d 471 (2001) 

Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491 (1971) 

The language “member691.1406, does not incllegally compelled to be in 

34 MacDonald v PKT, 

Inc, 464 Mich 322; 628 NW2d 33 (2001) 

Mason v Royal Dequindre, Inc, 

455 Mich 391; 566 NW2d 199 (1997) 

Mason failed to follow Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), and Scott v Harper Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993). 

Generally, a merchant anticipate and prevent invitees; rather, a merrespond reasonably to a son the premises that pos

foreseeable harm to ident

35 People v Glass, 464 

Mich 266; 627 NW2d 261 (2001) 

People v Duncan, 388 Mich 489; 201 NW2d 629 (1972) 

The power granted to thiart 6, § 5, to “establsimplify the practice and this state” does not extethat establish, abrogate, law. 
36 Nawrocki v Macomb 

Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000) 

Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996) 

Pick failed to follow Scheurman 

v Dep’t of Transportation, 434 Mich 619; 456 NW2d 66 (1990). 

The language “improved designed for vehicular trdoes not include traffic traffic signs, that are not itself. 

37 Mudel v Great Atlantic 

& Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000) 

Goff v Bil-Mar Foods, Inc, 454 Mich 507; 563 NW2d 214 (1997); Layman v Newkirk Electric Ass’n Inc, 458 Mich 494; 581 NW2d 244 (1998) 

Goff implicitly overruled Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992). 

The language “the findicommission acting within of fraud, shall be concludoes not require the jmagistrate’s decision to decision is supported by 

38 Stitt v Holland 

Abundant Life, 462 Mich 591; 614 NW2d 88 (2000) 

Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970) 

Under the common lawdependent on a visit assopurpose” and “mutuality the reason for the visitchurch premises for “commercial purposes,” not an invitee. 

39 Robinson v Detroit, 

462 Mich 439; 613 NW2d 307 (2000) 

Fiser v Ann Arbor, 417 

Mich 461; 339 NW2d 413 (1983); Rogers v Detroit, 457 

Dedes failed to follow Stoll v 

Laubengayer, 174 Mich 701; 140 NW 532 (1913). 

The language “the p691.1405, means “the” proximate cause. 
Mich 125; 579 

NW2d 840 (1998); Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994) 

40 People v Kazmierczak, 

461 Mich 411; 605 NW2d 667 (2000) 

People v Taylor, 454 Mich 580; 564 NW2d 24 (1997) 

Taylor misconstrued Taylor v 

United States, 286 US 1, 6; 52 S Ct 466; 76 L Ed 951 (1932), and Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948). 

The smell of marijuana vehicle detected by an othat odor may establish inferring a “fair probacontains marijuana andcause necessary to juswarrant of that motor motor vehicle exceprequirement. 

KEY: This chart represents cases decided after January 1, 2000, in which Justice Kelly dissented and in the Court voted to overrule a decision. The reasoning of the Court majority is set forth in highly summ

should refer to the opinion as a whole for clarifying detail. 
 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

JOANNE ROWLAND, also known as 

JOAN ROWLAND, 

Plaintiff-Appellee, 

No. 130379 

WASHTENAW COUNTY ROAD 

COMMISSION, 

 Defendant-Appellant. 

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

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

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

12, and 13. 

Elizabeth A. Weaver 
v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

JOANNE ROWLAND, also known as 

JOAN ROWLAND, 

Plaintiff-Appellee, 

No. 130379 

WASHTENAW COUNTY ROAD 

COMMISSION, 

 Defendant-Appellant. 

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

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

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

unnecessarily reaches the issue whether defendant must show actual prejudice in 

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

Plaintiff failed to supply defendant with the statutorily required notice 

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

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

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

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

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

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

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

precedents, the majority invites renewed accusations of judicial activism. 
 

 

 

 

I. THE SPECIFIC NOTICE IN THIS CASE WAS INSUFFICIENT 

MCL 691.1404(1) provides: 

As a condition to any recovery for injuries sustained by 

reason of any defective highway, the injured person, within 120 days 

from the time the injury occurred, except as otherwise provided in 

subsection (3) shall serve a notice on the governmental agency of the 

occurrence of the injury and the defect. The notice shall specify the 

exact location and nature of the defect, the injury sustained and the 

names of the witnesses known at the time by the claimant. 

Plaintiff sent the following notice to defendant by certified mail: 

Re: My Client Joanne Rowland 

Date of Accident: February 6, 2001 

Location: Intersection of Jennings and Main 

 Street Northfield Township 

My File No. 4803 

Dear Sir/Madam: 

Please be advised that I have been retained by Mr. [sic] 

Joanne Rowland to investigate and evaluate a claim for personal 

injuries that arose out of an incident that occurred on February 6, 

2001. This incident occurred at the intersection of Jennings and 

Main Street in Northfield Township, County of Washtenaw, State of 

Michigan. Please be advised that I will continue my investigation 

and if the same is warranted, will pursue a claim for money damages 

against the responsible agency for jurisdiction [sic] of this roadway. 

If I do not hear from you within the near future, I will be forced to 

place this matter into litigation. 

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

Freedom of Information Act (FOIA)1

 request made by plaintiff’s attorney. It 

provides: 

Re: My Client Joanne Rowland 

Date of Accident: February 6, 2001 

Location: Intersection of Jennings and Main 

 Street Northfield Township 

1

 MCL 15.231 et seq. 

2
 
 

My File No. 4803 

Dear Sir/Madam: 

Please be advised that I represent Joanne Rowland who was 

injured at the above location. Please produce or make available for 

viewing and copying, any photo logs or video logs maintained by the 

Washtenaw County Road Commission showing the intersection of 

Jennings and Main Street. 

Please be advised that this letter is being sent to you pursuant 

to the Freedom of Information Act. 

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

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

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

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

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

plaintiff indicate the nature of the defect. 

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

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

depressed and/or potholed areas”2

 in the roadway and crosswalk. But no such 

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

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

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

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

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

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

2

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

3
 
 

 

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

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

of notice.3

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

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

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

disposition in favor of defendant. 

II. IT IS UNCESSARY TO REACH HOBBS4

 AND BROWN5 

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

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

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

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

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

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

specifically addressed whether Hobbs should be overturned. Brown v Manistee 

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

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

We are not convinced that Hobbs was wrongly decided. 

Further, we believe that more injury would result from overruling it 

than from following it. The rule in Hobbs has been an integral part 

of this state’s governmental tort liability scheme for almost two 

decades. It should not be lightly discarded. Although the law of 

governmental tort liability in this state has changed over the years, 

3

 Use of the word “shall” sets forth a mandatory directive, whereas use of 

the term “may” is permissive. See Oakland Co v Michigan, 456 Mich 144, 154 n 

10; 566 NW2d 616 (1997) (opinion by Kelly, J.) 

4 Hobbs v Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976). 

5 Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996). 

4
 
the continued validity of the Hobbs rule will not result in injustice. 

Rather, a reaffirmance of the rule will maintain the uniformity, 

certainty, and stability in the law of this state. 

Further, we emphasize that the Legislature has not changed 

the language of § 4 since Hobbs was decided. [Id. at 366-367.] 

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

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

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

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

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

summary disposition. 

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

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

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

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

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

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

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

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

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

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

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

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

effectuated. 

5
 
 

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

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

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

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

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

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

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

in even considering the timeliness issue. 

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

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

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

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

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

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

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

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

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

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

plaintiff’s failure to provide adequate notice. 

6

 Regrettably, this action is consistent with the alarming and unprecedented 

rate at which this majority overturns precedent. See Todd C. Berg, Esq., 

Overruling Precedent and the MSC, Michigan Lawyers Weekly 

<http://www.michiganlawyersweekly.com/subscriber/archives.cfm?page=MI/06/B 

060691.htm&recID=389963> (accessed November 10, 2006). 

6
 
 

 

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

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

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

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

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

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

2d 720 (1991).7 

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

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

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

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

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

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

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

Supreme Court of Pennsylvania: 

It is sometimes said that this adherence to precedent is 

slavish; that it fetters the mind of the judge, and compels him to 

decide without reference to principle. But let it be remembered that 

stare decisis is itself a principle of great magnitude and importance. 

It is absolutely necessary to the formation and permanence of any 

system of jurisprudence. Without it we may fairly be said to have no 

law; for law is a fixed and established rule, not depending in the 

slightest degree on the caprice of those who may happen to 

7

 The majority disagrees with my assessment of which issue should be 

reached first in this case. The respect for stare decisis and the avoidance of 

unnecessary constitutional issues provide ample reasons to deal with the simple 

issue of the sufficiency of the notice first. The majority offers no explanation why 

the first question must be the continued validity of Hobbs and Brown. 

7
 
 

administer it. I take it that the adjudications of this Court, when they 

are free from absurdity, not mischievous in practice, and consistent 

with one another, are the law of the land. It is this law which we are 

bound to execute, and not any “higher law,” manufactured for 

each special occasion out of our own private feelings and opinions. 

If it be wrong, the government has a department whose duty it is to 

amend it, and the responsibility is not in any wise thrown upon the 

judiciary. The inferior tribunals follow our decisions, and the people 

conform to them because they take it for granted that what we have 

said once we will say again. There being no superior power to 

define the law for us as we define it for others, we ought to be a law 

unto ourselves. If we are not, we are without a standard altogether. 

The uncertainty of the law—an uncertainty inseparable from the 

nature of the science—is a great evil at best, and we would aggravate 

it terribly if we could be blown about by every wind of doctrine, 

holding for true to-day what we repudiate as false to-morrow. 

[McDowell v Oyer, 21 Pa 417, 423 (1853) (emphasis in original).][8] 

8

 Justice Markman challenges me to develop my “own standards” 

concerning when I would overturn precedent. But I have no need to create my 

own standards when well-reasoned standards have been established in the laws of 

this country for over 150 years. As noted in McDowell, when precedents are “free 

from absurdity, not mischievous in practice, and consistent with one another,” they 

should be retained. McDowell, 21 Pa at 423. I would not lightly adopt new rules 

to guide my judicial philosophy when traditional tools used by courts throughout 

their history continue to serve well. In this line, I willingly apply interpretive aids 

such as the absurd results rule and the legislative acquiescence doctrine to guide 

my decisions. I regret that the justices constituting the current majority on this 

Court have abandoned these tools. 

The majority states that I fail respond to Justice Markman’s challenge to 

develop my own standard for overturning cases. In questioning what standard I 

would prefer, the majority shifts the discussion’s focus from where it belongs: on 

its own lack of respect for the rule of stare decisis. 

The majority apparently misses the point of my reference to interpretive 

aids. Quite simply, it dismisses traditional tools and interpretative processes and 

shows disrespect for the judicial minds that came before it. It then overturns 

precedent at an unparalleled rate. One discarded tool, legislative acquiescence, is 

especially relevant to this discussion. If one accepts the premise that the 

Legislature can and will change the law when it disagrees with a court’s 

interpretation, a court is not tempted to act in its place. 

The majority claims that the standard I would apply to decide if stare 

decisis should be retained is “unworkable.” To justify this conclusion, it 

mischaracterizes and misquotes my dissenting opinion in Sington v Chrysler Corp, 

(continued...) 

8
 
 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

not been fairly called into question. 

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

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

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

the robes have changed.9

 It is amazing how often the members of this majority 

(...continued) 

467 Mich 144; 648 NW2d 624 (2002). In fact, the majority uses the same 

mischaracterization it made in the majority opinion in Sington. I will reiterate my 

point: when precedents are “free from absurdity, not mischievous in practice, and 

consistent with one another,” they should be retained. McDowell, 21 Pa at 423. 

9

 Ironically, so little else has changed that the very same attorney who 

argued in Brown to overturn Hobbs returned to argue this case. 

9
 
 

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

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

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

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

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

10 This is a theme throughout Justice Markman’s concurring opinion. He 

seems to believe that it is the solemn duty of this majority to rewrite Michigan 

caselaw to “get the law ‘right.’” Ante at 6. This predisposition to find so much 

caselaw wrongly decided contributes to the majority’s seeming wholesale secondguessing of earlier decisions and renders the law increasingly arbitrary and 

unpredictable. Appropriate respect for stare decisis and for those who sat on this 

Court before us would greatly contribute to ending such instability. 

I do not fault the majority for wanting to get the law “right.” I fault it for 

repeatedly deciding matters as if only it can reach a correct interpretation of the 

law. This case provides an example. Two prior incarnations of this Court 

reviewed the same issue and came to the same decision. The Legislature had 

decades to change the statute if it believed that Hobbs and Brown were incorrectly 

decided, yet it did nothing. But this majority still concludes that the Court’s 

interpretation of the law was “wrong” this entire time. Surely it is not only the 

four justices currently making up the majority of this Court who are capable of 

correctly discerning what the Legislature meant. 

11 A quote from Justice Eugene Black seems apropos for this case: 

At one time students and citizens, lay and professional, were 

taught that everyone is presumed to know the law, and hence is duty 

bound to act in accord therewith. But how may even skilled 

lawyers, and correspondingly skilled subordinate court judges, 

“know the law” when they are taught that the law in the books is not 

law at all, unless upon litigatory test a bare majority of this very 

ordinary Supreme Court happens to like it? Former Justice 

VOELKER’s latest epigram comes to mind at this point. I quote it 

from “Laughing Whitefish”, p 239 (McGraw-Hill 1965): 

“Clapping a black nightshirt on a lawyer and packing him off 

to the state capital and thenceforth calling him “Mister Justice” 

makes him no less fallible and uncertain than he was when he was 

back home drawing five-dollar wills.” [Autio v Proksch Constr Co, 

377 Mich 517, 542-543; 141 NW2d 81 (1966) (Black, J., 

dissenting).] 

10
 
 

 

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

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

12 Justice Markman implies that I would not have the same respect for stare 

decisis if majority control of the Court switched during my tenure. This amounts 

to little more than a circumstantial ad hominem logical fallacy. (see 

<http://en.wikipedia.org/wiki/Ad_hominem> [accessed March 9, 2007]). Nothing 

in my decade-long tenure as a judge before the current majority was installed 

substantiates the conjecture that I would indulge in wholesale reversal of 

precedent if the opportunity arose. In the end, I am willing to put my “fealty” to 

stare decisis to the test. I encourage all who read this opinion to compare my 

record of adherence to precedent with the majority’s. For assistance in this, I refer 

the reader to Todd C. Berg, Esq., Overruling Precedent and the MSC, The 

Justices’ Scorecard, Michigan Lawyers Weekly, 

<http://www.michiganlawyersweekly. 

com/subscriber/archivesFTS.cfm?page=MI/06/B060691.htm&recID=389963&Qu 

eryText=overruling%20and%20precedent%20and%20msc> (accessed December 

22, 2006). 

13 The majority characterizes my discussion of their disrespect for stare 

decisis as a “canard.” Those familiar with this Court know that the majority’s 

unprecedented attack on stare decisis is not a mere groundless rumor. The 

numbers do not lie. The present majority has overturned more than three times as 

many precedents as did those who immediately preceded it (61 precedents 

overturned in five years by this majority compared to 18 by its predecessor). This 

is despite the fact that the earlier incarnation of the Court disposed of almost 3,000 

more cases (13,923 total dispositions by this majority in five years as compared to 

16,729 total dispositions by its predecessor). See Todd C. Berg, Esq., Overruling 

Precedent and the MSC, The “Pre-1999 Court” vs. The “Majority Court”, 

Michigan Lawyers Weekly, <http://www.michiganlawyersweekly.com/subscriber/ 

archives_FTS.cfm?page=MI/06/B060691.htm&recID=389963&QueryText=overr 

uling%20and%20precedent%20and%20msc> (accessed December 22, 2006). 

This disparity is astounding. Also astounding is the majority’s repeated claim that 

nothing unusual is happening. If any “canard” exists in this case, it is the 

majority’s insistence that it is not overturning the precedent of this Court at an 

alarming rate. 

The majority denies that it is overturning precedent willy-nilly. And it 

takes comfort in comparing the number of precedents the current majority has 

overturned to the total number of cases the Court has disposed of. These statistics 

should offer the majority no solace. In fact, they should be taken cum grano salis. 

It is true that the majority overturned only one-third of one percent of total 

dispositions between 2000 and 2005. But this percentage rate is four times greater 

than the immediately preceding majority on the Court whose rate of overturning 

(continued...) 

11
 
 

 

 

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

SHOULD NOT BE OVERTURNED
 

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

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

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

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

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

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

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

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

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

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

(...continued) 

precedent compared to total dispositions was 1/22 of one percent. Berg, supra. 

Beyond this, reference to the overall dispositions is a red herring. The bulk of the 

Court’s dispositions are simple denial orders. This fact makes the total disposition 

percentage irrelevant. The majority should not receive credit for not overturning 

precedent when it simply denies leave to appeal. It would have to overturn nearly 

every precedent in the history of the Court to make this number appear significant 

in any way. The Todd Berg article makes a strong showing that the current 

majority on this Court is alarmingly activist. 

The majority makes the point that prior incarnations of this Court failed to 

make explicit when they were overturning precedent. Ironically, in support, the 

majority cites Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614 

NW2d 607 (2000). In Mudel, the majority claimed that Goff v Bil-Mar Foods, Inc 

(After Remand) 454 Mich 507; 563 NW2d 214 (1997), implicitly overturned 

Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992). As I pointed out 

in my concurrence/dissent in Mudel, Goff and Holden did not conflict. Mudel, 462 

Mich at 734 (Kelly, J., concurring in part and dissenting in part). Of those three 

cases, it was only the majority’s decision in Mudel that overturned precedent. Far 

from support for the majority’s position, Mudel is just another example of the low 

esteem in which the majority holds stare decisis. 

12
 
 

 

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

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

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

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

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

the purpose behind MCL 691.1404(1). 

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

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

legislative correction points tellingly to the conclusion that this Court properly 

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

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

MCI, 460 Mich at 411.15 

The majority heavily criticizes Brown for its use of legislative acquiescence 

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

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

the use of legislative acquiescence: 

14 The Legislature is presumed to be aware of judicial interpretations of 

existing law. Ford Motor Co v Woodhaven, 475 Mich 425, 439-440; 716 NW2d 

247 (2006). 

15 The majority accuses me of creating “chaos and injustice” because it 

believes I do not consistently apply a rational basis analysis. Its heated words on 

this subject seem designed to distract from the real point: the question is whether 

Hobbs and Brown properly effectuated the intent behind the statute. The fact that 

the Legislature has not taken action to rewrite the law strongly suggests that these 

cases did properly effectuate this intent. Therefore, they properly arrived at the 

rational basis behind the notice provision. 

13
 
 

[T]he claim to adhere to case law is generally powerful once a 

decision has settled statutory meaning, see Patterson v McLean 

Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L Ed 2d 

132 (1989) (“Considerations of stare decisis have special force in 

the area of statutory interpretation, for here, unlike in the context of 

constitutional interpretation, the legislative power is implicated, and 

Congress remains free to alter what we have done”). In this 

instance, time has enhanced even the usual precedential force[.] 

[Shepard v United States, 544 US 13, 23; 125 S Ct 1254; 161 L Ed 

2d 205 (2005).] 

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

Supreme Court wrote: 

After a statute has been settled by judicial construction, the 

construction becomes, so far as contract rights acquired under it are 

concerned, as much a part of the statute as the text itself, and a 

change of decision is to all intents and purposes the same in its effect 

on contracts as an amendment of the law by means of a legislative 

enactment. [Douglass v Pike Co, 101 US 677 (11 Otto), 687; 25 L 

Ed 968 (1880).] 

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

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

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

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

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

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

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

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

The concept of legislative acquiescence is reasonable and logical. The 

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

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

14
 
 

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

statute. 

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

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

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

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

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

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

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

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

16 The majority cites constitutional rational basis analysis when assailing 

my use of the theory of legislative acquiescence. But the case it cites, Harvey v 

Michigan, 469 Mich 1; 664 NW2d 767 (2003), did not deal with a Court 

overturning a prior court’s interpretation of a statute. An entirely different 

question entirely arises when, as here, the issue presented is whether a settled 

statutory interpretation should be overturned. 

17 The majority claims that my support for legislative acquiescence 

undermines my “fealty” to stare decisis. It supports this by providing a list of 

decisions made by this majority that reject legislative acquiescence. I dissented 

from all of those decisions, and I have consistently supported legislative 

acquiescence as a proper tool for arriving at legislative intent. As I indicated 

earlier, I would never reach the constitutional issue in deciding this case. Hence, 

if my view prevailed, I would not find it necessary to consider legislative 

acquiescence here. But I maintain that this rogue line of cases unnecessarily 

hamstrings the Court’s efforts at arriving at the intent of the Legislature. This 

position in no way undermines my adherence to stare decisis. There is a 

significant difference between precedent interpreting a statute relied on for 

decades and tools used to interpret statutes. I know of no authority that stands for 

the proposition that stare decisis attaches to analytical tools used in judicial 

interpretation. Hence, the rule of stare decisis binds us to follow the holdings of 

past caselaw. It does not bind use to use or refrain from using analytical tools 

such as the doctrine of legislative acquiescence because an earlier Court chose to 

do so. 

15
 
 

 

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

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

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

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

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

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

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

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

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

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

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

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

known intent, fair notice to prevent actual prejudice. 

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

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

18 The majority claims that Hobbs’s statement that it could posit only one 

legitimate reason for the notice provision necessarily means that no other 

legitimate reason could possibly exist. This is not the case. The Court’s statement 

that it could think of only one reason for the statute means what it says. It leaves 

open the possibility that other reasons might occur to people at a later date. If the 

Legislature had a different intent in mind, it could have, and should have, made 

that clear to the Court. It has never attempted to do so. This indicates that the 

Court’s determination of the Legislature’s intent was correct. 

19 If, as the majority claims, the Legislature wanted the 120 days to be an 

absolute deadline, it could have added an irrebuttable presumption of prejudice. 

This would have satisfied even the most restrictive reading of Hobbs while, at the 

same time, making clear the legislative intent. The Legislature knows how to 

(continued...) 

16
 
 

 

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

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

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

has been intentional. 

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

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

some other intent. 

The difficulty we experienced in Hobbs was that we could not 

posit another purpose for the notice provision other than to prevent 

prejudice to the state. If the Legislature was not happy with our 

presumption, it could have responded in some fashion to the Hobbs 

decision. It could have further articulated the notice provision’s 

purpose and possibly have created a presumption of prejudice to the 

governmental agency from the plaintiffs’ failure to give notice 

within 120 days. However, not only has the Legislature not 

attempted to revise the statute to respond to Hobbs, it also has not 

even criticized Hobbs in later legislative enactments or amendments 

in the almost twenty years since it was decided. [Brown, 452 Mich 

at 367 n 18.] 

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

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

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

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

20 Given 

(...continued) 

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

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

20 The majority postulates that my argument for adherence to stare decisis 

would have been better made to the Hobbs and Brown courts. Of course, I was not 

on the Court when either Hobbs or Brown was decided. I can only decide the case 

before me. Reviewing the case before me now, I would maintain my strong 

predisposition to adhere to precedent. The majority’s “two-wrongs-make-a-right” 

argument carries little weight. It is also grossly unfair to assert, as Justice 

(continued...) 

17
 
 

 

 

 

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

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

IV. THE ROBINSON21 FACTORS 

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

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

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

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

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

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

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

It appears that Hobbs and Brown were correctly decided. 

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

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

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

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

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

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

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

(...continued) 

Markman does, that I have repeatedly refused to overturn precedent merely 

because I agreed with the precedent. Whether in agreement or not, I have in each 

case given heavy weight to the disruption that a reversal would cause to the state’s 

jurisprudence. Frequently, the disruptive effect would have been reason enough 

for me to refuse to overturn the precedent. 

21 Robinson, 462 Mich at 439. 

18
 
the cases before them. Actual prejudice is not a complicated concept to apply. As 

such, there is no practical workability problem. 

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

[W]e believe that more injury would result from overruling it 

than from following it. The rule in Hobbs has been an integral part 

of this state’s governmental tort liability scheme for almost two 

decades. It should not be lightly discarded. [Brown, 452 Mich at 

366.] 

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

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

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

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

notice provided contains everything required by MCL 691.1404. Attorneys surely 

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

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

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

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

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

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

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

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

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

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

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

19
 
 

 

 

 

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

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

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

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

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

precedents. 

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

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

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

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

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

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

decision to do so is erroneous.22 

V. RETROACTIVITY 

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

City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). But there are wellestablished exceptions to this rule. The courts should consider the equities 

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

22 The majority believes that Robinson presents the most defensible 

approach to deciding when to overturn cases. I would note that even the Robinson 

factors support retaining Hobbs and Brown. 

20
 
flexible approach. Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 

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

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

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

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

455 Mich at 68. 

This Court adopted from Linkletter v Walker, 381 US 618; 85 

S Ct 1731, 14 L Ed 2d 601 (1965), three factors to be weighed in 

determining when a decision should not have retroactive application. 

Those factors are: (1) the purpose to be served by the new rule, (2) 

the extent of reliance on the old rule, and (3) the effect of 

retroactivity on the administration of justice. In the civil context, a 

plurality of this Court noted that Chevron Oil [Co] v Huson, 404 US 

97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an 

additional threshold question whether the decision clearly 

established a new principle of law. [Pohutski, 465 Mich at 696 

(citation omitted).] 

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

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

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

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

that warrants prospective application. 

The majority characterizes its decision as a return to the correct 

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

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

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

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

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

21
 
cases have shaped modern governmental immunity law. Because of it, 

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

455 Mich at 68. 

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

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

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

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

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

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

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

anomaly in the law. 

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

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

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

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

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

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

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

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

Pohutski, 465 Mich at 697. 

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

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

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

22
 
Hobbs, attorneys understand that they have increased time to investigate and 

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

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

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

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

S. Black noted over 150 years ago: 

The inferior tribunals follow our decisions, and the people 

conform to them because they take it for granted that what we have 

said once we will say again. There being no superior power to 

define the law for us as we define it for others[.] [McDowell, 21 Pa 

at 423.] 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23
 
 

 

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

cause attorneys to reevaluate and amend their handling of governmental immunity 

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

application. 

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

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

indicates as much. Consideration of these factors supports only prospective 

application of this decision. 

VI. CONCLUSION 

The majority unnecessarily reaches the issue whether defendant must show 

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

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

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

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

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

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

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

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

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

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

should be retained. 

Marilyn Kelly 

24
 
 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

JOANNE ROWLAND, also known as 

JOAN ROWLAND, 

Plaintiff-Appellee, 

No. 130379 

WASHTENAW COUNTY ROAD 

COMMISSION, 

 Defendant-Appellant. 

CAVANAGH, J. (dissenting). 

Today this Court overrules a portion of our governmental immunity law 

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

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

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

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

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

in accordance with Hobbs and Brown. 

HOBBS AND BROWN SHOULD BE REAFFIRMED 

It is well established that overruling precedent must be undertaken with 

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

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

121 NW2d 684 (1963). Adhering to decided cases is generally “‘the preferred 
 

 

course because it promotes the evenhanded, predictable, and consistent 

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

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

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

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

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

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

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

1006 (1904). 

Before overruling established precedent, this Court must decide whether: 

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

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

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

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

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

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

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

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

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

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

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

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

2
 
the constitutionality of notice provisions was firmly established. Ante at 8. 

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

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

notice provision violated due process where a plaintiff had been incapacitated 

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

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

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

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

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

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

decisions to enforce the notice provisions as written were not constitutionally 

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

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

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

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

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

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

It is disingenuous for the majority to characterize Grubaugh as an 

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

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

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

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

3
 
 

 

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

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

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

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

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

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

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

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

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

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

612; 267 NW2d 72 (1978). 

Unlike Moulter and its successors, Grubaugh undertook a thorough 

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

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

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

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

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

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

was not examined. Id. at 176-177. 

1

 Specifically, Grubaugh concerned a predecessor to MCL 691.1401 et 

seq.: 1948 CL 242.8, repealed and superseded by 1964 PA 170. 

4
 
 

 Shortly after Grubaugh, we considered a broader constitutional challenge to 

a 60-day notice provision of the general highway statute2

 in Reich v State Hwy 

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

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

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

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

unreasonably split victims into two differently treated subclasses: victims of 

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

This Court subsequently held that notice requirements are not necessarily 

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

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

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

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

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

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

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

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

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

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

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

2 Reich concerned the notice requirement of 1964 PA 170. 

5
deliberately concluded that actual prejudice to the state from lack of notice within 

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

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

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

Id. In Brown, we invalidated a statute on equal protection grounds because it 

imposed a 60-day notice requirement for claims involving county road 

commissions when MCL 691.1404, providing a 120-day notice period, also 

potentially governed the claim. Brown, supra at 363-364. After deciding that the 

120-day period of § 1404 applied, we reaffirmed Hobbs’s interpretation of that 

provision. Id. at 368. 

The majority contends that the notion that notice provisions are or may be 

unconstitutional has “no claim to being defensible constitutional theory.” Ante at 

13. But it is this Court’s role to construe statutes to avoid unconstitutionality, if 

possible, by a reasonable construction of the statutory language. United States v 

Harriss, 347 US 612, 618; 74 S Ct 808; 98 L Ed 989 (1954). The validity of the 

Hobbs and Brown decisions must be evaluated in view of our earlier 

constitutional rulings in Grubaugh, Reich, and Carver. With due consideration 

of this Court’s precedent in the area of government notice provisions, the Hobbs 

Court made a reasoned decision that the 120-day notice provision might be 

unconstitutional if dismissal did not serve the posited purpose of avoiding 

prejudice. Like Hobbs and its predecessors, the primary concern in Brown was 

6
 
 

the constitutionality of a legislative scheme that draws arbitrary distinctions 

between litigants. 

Michigan is not the only jurisdiction that has invalidated notice provisions 

on constitutional grounds. While it certainly represents a minority position, 

decisions in Nevada, Iowa, Minnesota, West Virginia, and Washington have also 

held governmental immunity notice provisions constitutionally infirm.3 Still 

others have enforced notice provisions after “engrafting” exceptions for minority 

or incapacity to avoid unconstitutionality. In Schumer By and Through Schumer v 

City of Perryville, 667 SW2d 414, 418 (Mo, 1984), the court noted that it had 

previously held the application of the notice provision to incapacitated persons 

unconstitutional; in the case at hand, it extended this rationale to people who were 

under the legal disability of minority during the notice period. As evidenced by 

these decisions, these states, as well as Michigan before the instant case, certainly 

considered the idea that notice provisions may be unconstitutional to be a 

defensible constitutional theory. 

Further, as Justice Kelly discusses at length, the Legislature has acquiesced 

with our construction of MCL 691.1404 since the Hobbs decision, including our 

presumption of the statute’s sole purpose. Ante at 12-15. If the Legislature did 

3 Turner v Staggs, 89 Nev 230, 234-235; 510 P2d 879 (1973); Miller v 

Boon Co Hosp, 394 NW2d 776, 781 (Iowa, 1986); Kelly v City of Rochester, 304 

Minn 328, 333; 231 NW2d 275 (1975); O’Neil v City of Parkersburg, 160 W Va 

694, 701-702; 237 SE2d 504 (1977); Hunter v North Mason High School, 85 

Wash 2d 810, 818-819; 539 P2d 845 (1975). 

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not agree with our presumption, in the 31 years since Hobbs was decided, it could 

have easily responded by elaborating on the other governmental interests served 

by the notice provision. The Hobbs decision did not foreclose the possibility that 

the notice provision served other legitimate state interests other than prejudice; it 

merely stated that this Court could only posit one purpose. Hobbs, supra at 96. If 

the Legislature had responded in any way to our inference, we would have had 

reason to reevaluate the constitutionality of MCL 691.1404 in light of the 

Legislature’s action. 

THE REMAINING ROBINSON FACTORS SUPPORT UPHOLDING HOBBS 

AND BROWN 

Even if a majority of this Court disagrees with the reasoning of Hobbs and 

Brown, a mere belief that these cases were wrongly decided is insufficient to 

justify overruling them. Other considerations must be weighed before departing 

from precedent. In particular, under Robinson, this Court must also decide 

whether Hobbs and Brown defy practical workability, whether reliance interests 

would cause an undue hardship, and whether changes in the law or facts no longer 

justify Hobbs and Brown. Robinson, supra at 464. A study of these remaining 

Robinson factors shows that they weigh in favor of upholding Hobbs and Brown. 

The rule that the government must show actual prejudice was suffered from 

lack of notice does not defy practical workability. Indeed, this rule has been 

followed and enforced for over 30 years. In that span, litigants, attorneys, and 

courts have been able to apply Hobbs and Brown to the cases before them. 

8
 
Reliance interests of these parties also support upholding these cases. While a 

plaintiff is unlikely to deliberately withhold notice longer than 120 days for the 

sheer purpose of using the Hobbs rule, these plaintiffs should not be our only 

concern. We must also consider the effect of our decision on injured parties who 

have sought legal counsel to determine whether they have a valid claim. For 

example, reliance interests are involved when a plaintiff consults with an attorney 

and initiates a claim more than 120 days after an injury, having been informed by 

his attorney that the claim may survive if the government has suffered no 

prejudice from the delay. Similarly, attorneys who have counseled clients that 

their claims may still be valid have relied on Hobbs and Brown in accepting cases 

and dispensing advice. 

Finally, there have been no changes in the law or factual circumstances that 

render Hobbs and Brown unjustifiable. The Legislature has not amended § 1404 

since 1972. The Hobbs rule has been an established part of the governmental tort 

liability scheme for over three decades. Brown examined Hobbs and upheld its 

rule just over ten years ago. Any relevant changes are entirely internal to this 

Court. 

 Applying the Robinson factors here shows that the principles of stare 

decisis outweigh the arguments for overruling Hobbs. “Under the doctrine of stare 

decisis, principles of law deliberately examined and decided by a court of 

competent jurisdiction become precedent and should not be lightly departed.” 

People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990). Absent the rarest 

9
 
 

 

circumstances, we should remain faithful to established precedent. Brown, supra 

at 365. Reaffirming Hobbs and Brown would promote uniformity, certainty, and 

stability in the law. 

TODAY’S DECISION SHOULD APPLY PROSPECTIVELY 

 Given that Hobbs and Brown have become ingrained in our governmental 

tort liability scheme, the majority’s decision to overrule these cases should be 

applied prospectively. While the general rule is that judicial decisions are given 

complete retroactive effect, decisions that overrule clear and uncontradicted 

caselaw have been given prospective application. Michigan Ed Employees Mut 

Ins Co v Morris, 460 Mich 180, 189; 596 NW2d 142 (1999). A more flexible 

approach is warranted where injustice might result from full retroactivity. 

Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003). 

To determine whether to depart from the general rule of retroactivity, this Court 

has recognized a threshold question of whether the decision clearly established a 

new principle of law, in addition to considering several other factors. Pohutski v 

City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). These factors 

include: (1) the purpose to be served by the new rule, (2) the extent of reliance on 

the old rule, and (3) the effect of retroactivity on the administration of justice. Id. 

Since Hobbs was decided, the law in Michigan has been that claimants may 

maintain claims against governmental agencies, despite failure to give notice 

within 120 days, if the agency cannot show that it was prejudiced by the lack of 

notice. Today’s decision represents a departure from an established rule of law. 

10
 
We have not foreshadowed any change of this particular rule—on the contrary, it 

was specifically reaffirmed by Brown ten years ago. Further, parties who have 

relied on Hobbs in pursuing claims against governmental agencies will now find 

their claims dismissed. Attorneys who have taken clients and developed cases 

with Hobbs in mind will have lost the time and effort expended, as well as the 

confidence of their clients. Under these circumstances, prospective application of 

today’s decision is appropriate. 

CONCLUSION 

In conclusion, I dissent from the majority’s decision to overrule Hobbs and 

Brown. I would not disturb these decisions in light of the principles of stare 

decisis. Further, overruling these cases presents a new rule of law, thus I would 

apply the majority’s decision prospectively. 

Michael F. Cavanagh 

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