Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 CO UNTY ROAD COMMISSION, Defendant-Appellant.

BEFORE THE ENTIRE BENCH TAYLOR, C. J.

The issue in this case is whether a notice provis ion applicable to the defective highway exceptio n to governmental imm unity, MCL 691.1404(1),

should be enforced as written. This statute provides in pertinent part: As a condition to any recov ery for injuries sustained by reason of any defective hi ghway, the injured person, within 120 days from the time th e injury occurred , . . . shall serve a notice on the governmental agency of the occurrence of the injury and the defect. Th e notice shall sp ecify the exact location and nature of the defect, the injury sust ained 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 an d of the highway defect must be served on the governmental ag ency within 120 days of the in jury. 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 b ar to claims filed pursuant to the defective highway exception. Those cases are overruled. Accordingly, the order of the tria l 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 with in 120 days “[a]s a condition to any recovery” for injuries she cl aims she sustained by reas on 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 Coun ty. Plaintiff alleged that she tripped and fell on “broken, uneven, dilapidated, de pressed and/or pot holed areas.” Plaintiff served her notice on defendant Washtenaw County Road Commission on the 140th day after the accident and subs equently filed a lawsuit against defendant asserting the applicab ility of the defective highway exception to

2governmental immunity. MCL 691.1402. Defendant road commission filed an

answer and affirmative defense s that raised MCL 691.1404 (failure to serve notice within 120 days) as a d efense. Defendant subseque ntly 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 comp ly 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 det ermined that there was a genuine issue of material fact concerning whether defendant had shown prejudi ce 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 wro ngly 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 bi nding unless the Sup reme Court overruled

them.

1 Unpublished opinion per curiam, i ssued December 13, 2005 (Docket No. 253210).

3The road commission filed an applicatio n 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, th is 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 Tel ecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).

III. ANALYSIS

a. GOVERNMENTAL IMMUNITY AND THE DEFECTIVE HIGHWAY EXCEPTION It is well understood, a nd not challenged here, that governmental agencies, with a few exceptions, are generally statut orily immune from to rt liability. The governmental tort liability act (GTLA), MCL 691.1401 et seq., broadly shields a governmental agency from to rt liability “if the governmental agency is engaged in the exercise or discharge of a government al function.” MCL 691.1407(1). The act enumerates several exceptions to governmental immunity that permit a

2 474 Mich 1099 (2006).

4plaintiff to pursue a claim ag ainst 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 high way, the injured pers on, within 120 days from the time the injury occurred, except as ot herwise provided in subsection (3) [4] shall serve a notice on the governmental agency of the occurrence of the in jury and the defect. Th e notice shall specify

3 The Legislature codified the followi ng six exceptions in the GTLA: the defective highway exception, MCL 691.140 2; the motor vehicle exception, MCL 691.1405; the public building exception, MCL 691.1406; the proprietary function exception, MCL 691.1413 ; the governmental ho spital exception, MCL 691.1407(4); and the sewage disposal sy stem exception, MCL 6 91.1417. Further, as we recognized in Mack v Detroit , 467 Mich 186, 195; 649 NW2d 47 (2002), there are other areas outside th e GTLA where the Legislat ure has allowed specific actions against a governmental agency notwithstanding govern mental 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 serv e the notice required by subsection (1) not more than 180 days from the time the injury occurred, wh ich notice may be filed by a parent, attorney, next friend or lega lly appointed guardian. If the injured person is physically or mentally incapable of giving notice, he shall serve the noti ce required by subsection (1) not more than 180 days after the term ination of the disability. In all civil actions in which the phy sical 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, st atutes 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 becau se injured persons may still be incapacitated. But, this concern is addresse d by subsection 3, which allows someone who is physically or mentally incap able of giving notice to serve notice not more than 180 days after the termination of the disability.

5the exact location and nature of th e 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 no tice on the road commission within 120 days of her accident. Given that the pl ain language of the statut e 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 co mplaint would have

been dismissed. Because this Court’s decisions in Hobbs and Brown engrafted an actual prejudice component onto the statute, the trial c ourt could not dismiss the

case. 5 It is valuable in c onsidering the defensibility of this interpretation of the statute to first survey this Court’s cas es concerning notice pr ovisions, including the provision at issue here.

5 Justice Kelly contends in her p artial dissent that we should avoid revisiting Hobbs and Brown by holding that plaintiff’s notice itself was defective because it did not identify th e nature of the defect of th e highway, not because it was not served within 120 da ys. We disagree because the first question is whether the Legislature can even enact a notice provision with a h ard 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-file d 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 e ngaged in statutory analysis. Bu t, 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 sp ecifically argued that plaintiff failed to comply with the 120-day no tice 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.

6b. 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 gov ernmental immunity mandatory notice provisions according to their plain langua ge. 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; 11 0 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; 2 86 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 si dewalks, streets, highways, and so forth, was purely statutory and that it was di scretionary with the Legisl ature 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 economi c or social legislation and that, because the Legislature had a rati onal basis for the notice requirements—the

7most obvious being facilitati ng meaningful inve stigations regarding the conditions at the time of injury and allowing fo r quick repair so as to preclude other

accidents—the statutes were constitutiona lly 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 th at, unless it was fulfilled, there was no liability. 6 As of 1969, therefore, the enforceability of noti ce requirements and the particular notice requirements in govern mental immunity cases was well settled

and had been enforced for al most a century. In 1970, however, there was an abrupt departure from these holdings in th e 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 th an plaintiffs suing privat e 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 th ree 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 majo rity of the justices participating agree (continued...)

8Two 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 vi olated equal protec tion guarantees. The analysis again was that the constitu tion forbids treating those injured by governmental negligence di fferently from those injure d by a private party’s negligence. Leaving aside the unusual switch from one section of the constitution to another to justif y an adjudication of unconstitutio nality, this claim is simply incorrect. Private and public tortfeasors can be treated differen tly in the fashion they have been treated here by the Legislature. It do es not offend the constitution

to do so because with econom ic 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 (200 4), legislation invariably involves line drawing and social legislation involving line draw ing 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 rationa l 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 in jury, will suffice.

(...continued) with regard to the reasoning are not an authoritative interp retation under the doctrine of stare decisis.

9Considering the same point, Jus tice Brennan in his dissent in Reich pithily pointed out the problems with the majority’s analysis: The legislature has declared gove rnmental immunity from tort liability. The legislature has provide d specific exceptions to that standard. The legislature has impos ed specific conditions upon the exceptional instances of government al liability. The legislature has the power to make these laws. Th is Court far exceeds its proper function when it declares this en actment unfair a nd unenforceable. [386 Mich at 626.] The next year, in Carver v McKernan , 390 Mich 96; 2 11 NW2d 24 (1973),

the Court retreated from Grubaugh and Reich and, in a novel ruling, held that application of the six-month notice pr ovision in the Motor Vehicle Accident Claims Act (MVACA), MCL 257.1118, was constitutional, and that the provision was thus enforceable, only wher e 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 so me may not be, depending on the purpose the notice serves. Thus, if notice serv ed 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 no tice required by the statute became an unconstitutional legisla tive 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

10amendment 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 not ice, 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 no tice requirement in the defec tive 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 noti ce provision, absent a showing of such prejudice the notice provision contained in [MCL 691.1404] is not a bar to claims filed pu rsuant 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 ho lding. Justice Weaver did not participate, p resumably because she had p articipated 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; 6 15 NW2d 702 (2000), the legislative acquiescence doctrine “‘is a highly disfavored doctrine of statutory construction; sound principles of statutory constructi on require that Michigan courts determine the Legislature’s intent fro m its words, not from its silence.’” (Citation omitted; (continued...)

11(...continued) emphasis omitted.) Justice Kelly’s profe ssed fealty to stare decisis apparently would not prevent her from ov erruling 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; 7 02 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 circums tance 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. Justi ce Kelly claims that the Legi slature could have simply reenacted the statute after identif ying an additional intent. We disagree. First, the Hobbs Court said the “only” legitimate reason it could surmise for the notice statute was to prevent prejud ice to the government. Ines capably 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 opt ion for the Legislatu re. 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 eith er known or which c ould 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 presum ption of prejudice. Revising the statute in such a manner, however, would not have produ ced what the Legislature wanted—a statute with a clearly identified and read ily enforceable deadline that does not require a showing of prejudice or anything else to be enforceable.

12c. 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 pronoun cement that other reasons that could supply a rational

basis were not to be consid ered 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 ma jority, Justice Riley explained in her dissent

in Brown that this notice statute is social le gislation that is c onstitutional because it

has a rational basis. She stated: I note that “[w]hen scrutin izing economic and social legislation, this Court applies the rational basis standard of review.” Downriver Plaza Gr oup v Southgate , 444 Mich 656, 666; 513 NW2d 807 (1994). The only inquiry, then, is whether this social legislation creating a 120-day no tice requirement has a rational basis. This particular legislation pa sses 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 th e state with the opportunity to investigate and evaluate a clai m. [452 Mich at 370.]

13Because the statute was constitutiona l, no “saving construction” was necessary or allowed. T hus, the engrafting of the prejudice requirement onto the statute was entirely indefensible. Further, in the search for a legitimat e purpose for notice provisions, the holding in Ridgeway v Escanaba , 154 Mich 68, 72-73; 117 NW 550 (1908), is

also instructive. It was th ere that this Court gave a fu ll-throated statement of the purpose it discerned: We must say that the legisl ature intended to give to defendants in such cases some pr otection 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 f resh, conditions unchanged, and witnesses thereto and to the accident within reach. It is a just law, necessary to the protec tion of the taxpayer, wh o bears the burden of unjust judgments. It requires only ordinary knowledg e and diligence on the part of the injured and hi s counsel, and there is no reason for relieving them from the requirements of this statute that would not be applicable to any ot her statute of limitation.

It is also useful to consider as po ssible 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 1 88 (1972). In those cases, while the majority suggested that the purpose of the noti ce statute was to afford an opportunity to investigate a claim and to determine th e possible liability of the MVACF, Justices Brennan and Black dissented in p art, pointing out additional reasons, beyond those mentioned by the ma jority, for requiring notice. These included allowing time for creating reserves for the Fund, reducing the uncertainty

14of the extent of future de mands, or even to force the claimant to an early choice regarding how to proceed. Because these apply in th e context of the MVACF, they could also have been in the mi nds 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 assu res constitutionality, because, as Justice Cavanagh pointed out in Brown, supra at 362, reciting the ven erable rule in such matters, it is our duty in rational basis cases to find constitutionality if “‘any state

of facts either known or wh ich could reasona bly be assumed affords support’” for the statute. (Citation omitted.) It is the case then that there is unques tionably now, and there was then, a “rational basis” for fi nding, even as Justice Riley did earlier,

a rational basis for this statute and the distinctions it draws. Moreover, common sense couns els 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 legi slature whether it would confer upon persons injured a right of action th erefor or leave them remediless, it could attach to the right conferred an y limitations it chose. [155 Mich at 168-169.]

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

accordance with the cons titution. The notice provision passes constitutional muster. We reject the hybrid constitutionality of the sort Carver , Hobbs, and

15Brown engrafted onto our law. 9 In reading an “actual prejudice” requirement into the statute, this Court not only usurped the Legislatu re’s power but simultaneously made legislative amendment to make what the Legislature wanted—a notice provision with no prejudi ce requirement—impossible. Hobbs and Brown are remarkable in the annals of judicial usur pation of legislativ e power because they not only seized the Legisl ature’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 p ersons bringing tort actions against governmental entities are rationally related to reasonable legisl ative 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 Pe nnsylvania 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 Jus tice 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 thei r duty by execu ting 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 an d substitute our own policy decisions for (continued...)

16reversing amendment by the Legislature im possible. 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 po orly reasoned precedent.

IV. STARE DECISIS In determining whet her 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 previous ly 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 co nditions to the statute.

11 In her dissent Justice Kelly repeats the error of the Hobbs and Brown courts in concluding that th e only rational basis supportin g the statute is that which the Hobbs and Brown courts fixed upon: prejudice to the government tortfeasor. One can only ask, why is th is 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 affo rds support? B ecause there are such reasons, beyond what the Hobbs and Brown courts themselves found, as discussed in this opinion, why does th is rule not apply here? I ndeed, if as Justice Kelly apparently concludes, it does not, what is her test for wh en the rule is inapplicable? She gives n one. This is not how a co urt should an alyze matters because it makes future appli cation of the law, should h er view prevail, entirely without predictability. Th is is a prescription for chaos and injustice. 12 See, also, Halfacre v Paragon Bridge & Steel Co , 368 Mich 366, 377; 118 NW2d 455 (1962) (Courts have the “right and duty to re-examine and re

examine again, if need be , statutory enactments already judicially construed.”). (Emphasis added.)

17persuaded 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 prio r decision defies “practical workability”; whether the prior decision has become so embedd ed, so fundamental to everyone’s expectations that to change it would produ ce not just readjustments, but practical real-world dislocations; whet her changes in the law or facts no longer justify the prior decision; and whether the prior deci sion misread or misconstrued a statute. Robinson, supra at 464-467. We are convinced, as previously set fort h, that the prior decisions did in

fact misread and misconstrue the statute a nd left it less workable, assuming that the goal was to prov ide notice so as to facilitate inve stigation, claims resolution,and rapid road repairs, as well as the creation of reserves and the like for selfinsured governmental entities. When prompt noti ce is not provided, the entire legislative scheme is a ccordingly 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 principl e of stare decisis should prevent this Court from overruling Hobbs and Brown . We note that Jus tice Kelly’s fealty to precedent is quite selective. She shows no concern that Hobbs disregarded 75 years of precedent that had upheld gove rnmental immunity notice provisions. Indeed, each of the criticis ms Justice Kelly sends our way is actually more applicable to the Hobbs Court. If 30 years of p recedent should not be lightly ignored, what of the Hobbs Court ignoring 75 years of p recedent? In any event, we have applied the Robinson stare decisis factors and c oncluded that they do not counsel against overruling Hobbs and Brown

.

18and Brown, it becomes quite evident th at injured plaintiffs, ot herwise able to file lawsuits, were highly unlikely to have delayed filing th eir lawsuits for periods longer than 120 days in re liance on these cases. After all, what plaintiff would

take the chance that the d efendant could actually show prejudice after the 120th day and thus lose his or her cause of ac tion when before that time it would be irrelevant whether there was prejudice? Accord ingly, we doubt th at any plaintiff, because of the inevitable perils such a de lay entails, actually d ecided to not serve notice within 120 days in reliance on Hobbs and Brown

. Further, while the rule of Hobbs has been uncontradict ed 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 excepti on, where we said that a court is most strongly justified in overruling precedent when adherence to the precedent would perpetuate a plainly inco rrect interpretation of language in a statute. Nawrocki,

463 Mich at 181.

Robinson also held that any statutory relia nce 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 esse nce of the rule of law: to know in advance what the rules of soci ety are. Thus, if the words of the

19statute are clear, the actor should be ab le to expect, that is, rely, that they will be carried out by all in society, includi ng the courts. In fact, should a court confou nd those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. Wh en that happens, a subsequent court, rather than holding to th e distorted reading because of the doctrine of stare decisis, shou ld overrule the earlier court’s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of j udicial usurpation that runs counter to the bedrock principle of Ameri can constitutionalism, i.e., that the lawmaking power is reposed in the pe ople as reflected in the work of the Legislature, and, absent a c onstitutional violati on, the courts have no legitimacy in overruling or nullif ying the people’s representatives. Moreov er, not only does su ch 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 confou nded 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 di ssenting opinion the canard that this Court has overruled cases at an alar ming 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 artic le 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 methodolog ical failures of these vari ous “the sky is falling” arguments. Justice Kelly claims that a study by Todd C. Berg in Michigan Lawyer’s Weekly shows that this Co urt 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 th e actual figures are cited it seems obvious that during both periods th e number of cases that w ere 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 p ercent 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 in vite scrutiny of the study by Mr. Berg because it reinforces, we believe, the point we are making. In further evaluating Jus tice Kelly’s claim that this Court has overruled more cases than is usual, we would call a ttention to the difficu lties in relying on earlier statistics regarding overrul ed cases. As explained in Devillers v Auto Club Ins Ass’n , 473 Mich 562, 567 n 6; 702 NW 2d 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 go od example of this p ractice is set forth in Mudel v Great Atlantic & Pacific Tea Co , 462 Mich 691, 708; 61 4 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 NW 2d 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 statut ory language and departs from our decision in Holden .” 462 Mich at 708. Indeed, Justice Kelly would apparently continue with this appro ach 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, th en she asserts that she would not be overruling such cases if she could persuade three other justices to approve of the discredited le gislative acquiescence doctrine . Again, this illustrates the fact that Justice Kelly wo uld not include cases she act ually overruled in the list of cases she admitted overruling. Next, Justice Kelly, to discredit the abov e 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 Cour t denies leave to appeal, it leaves a precedent intact. See further Justice Markman’ s concurrence, which provide s an excellent and even more thorough response to Justice Kelly’s meritless claim. Finally, in response to Jus tice Markman’s challenge to give her standards for overruling cases, she res ponds not with an approach, bu t 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 discusse d 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 withou t resources in this situa tion because Justice Kelly has already tendered an answer. In Sington v Chrysler Corp , 467 Mich 144, 184; (continued...)

21and 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. A ccordingly, we conclude that it mu st be enforced as

written. As this Court stated in Robertson v DaimlerChrysler Corp , 465 Mich 732, 748; 641 NW2d 567 (2 002), “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 th e 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 witnesse s 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 nons ensical,” or reflected a “drastic error.” We discussed the unworkab ility 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 a nd when we ignore past cases adhering to those directions? We do not. We believe the most defensibl e 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-da y notice period expi red. This made no difference in the ability of the plaintiff to proceed with his lawsuit. 452 Mich at 360 n 11.

22is 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 d ecision 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 ru le is that judicial decisions are given full retroactive effect, Hyde v Univ of Mich igan Bd of Regents , 426 Mich 223, 240; 393 NW 2d 847 (1986), a more flexible approach is warranted where injustice might res ult from full retroactivity. Lindsey v Harper Hosp , 455 Mich 56, 68; 564 NW2d 861 (1997). For example, a holding that overru les settled precedent may properly be limited to prospective application.

The threshold question is whether “t he 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 retro activity on the administration of justice. [ Id. ]

In Pohutski , this Court gave pr ospective effect to its decision overruling Hadfield v Oakla nd Co Drain Comm’r , 430 Mich 139; 422 NW2d 205 (1988). The Court expressed its concern that the “trespass-nuisance” exception to governmental immun ity recognized in Hadfield had induced reliance by both governmental agencies an d the public, insofar as “municipalities have been encouraged to purchase in surance, while homeowners ha ve been discouraged from doing the same.” Pohutski, 465 Mich at 697. Further, the Court noted that the

23then-recently enacted MCL 691. 1407, which prov ided for recovery for a “sewage disposal system event,” was prospective on ly and, therefore, wo uld 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 th e 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 ex isted before Poletown and which has been mandated by our Constitution si nce 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 mandate d by MCL 691.1404(1).

In Hathcock , supra at 484-485 n 98, this Court fu rther 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 pu rely prospective opinions, as such rulings are, in essence, advisory opinions.

Likewise, in the instant case, there exist no exigent ci rcumstances that

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

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

Brown

.

24In Devillers v Auto Club Ins Ass’n , 473 Mich 562; 70 2 NW2d 539 (2005),

this Court overruled Lewis v Detroit Automo bile Inter-Ins Exch, 426 Mich 93; 393 NW2d 167 (1986), and also applied th e decision retroactively. This Court explained: As we reaffirmed recently in Hathcock , prospective-only application of our decisions is ge nerally “‘limited to decisions which overrule clear and uncont radicted 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 ab solutely no basis in the text of the statute. Lewis itself rests upon case law that consciously and inexplicably departed from decades of precede nt 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 prospec tive 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 contro lling legal authority—h ere, 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 inve nted an “actual prejudice” requirement out

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

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

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

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

25enforcing the language of MCL 691.1404(1). 17 Further, overru ling 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 do es not have the authority to waive the government’s immunity from su it, 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 exceptio ns to governmental immunity. Accordingly, we determine that our decision today to overrule Hobbs and

Brown shall be given full retroactive effect b ecause this decisi on simply restores

due constitutional deference to the language of the statute.

VI. CONCLUSION Having overruled Hobbs and Brown with full retroactiv ity, 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 cl aim 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 imm unity. Accord Ridgeway v Escanaba , 154 Mich at 73.

26case 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

27v 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 CO UNTY ROAD COMMISSION, Defendant-Appellant.

MARKMAN, J. ( concurring ). Justice Kelly has assert ed once more her view th at 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 preceden t of this Court has been overruled

1 This opinion constitutes my excl usive response to Justice Kelly’s criticisms concerning this Co urt’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,” th e majority has declared itself “more capable of understanding the law . . . than any jus tice 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 therei n, I draw the following observations concerning preced ent and the current Court: (1) The dispute between the Court majority and Justice Ke lly in these 40

cases is less about attitude s toward preceden t than about the subs tantive merits of the opinions being overruled. That is, Justice Kelly ag rees with the op inions being overruled and the justices in the majority do not. There is no evidence in these 40 cases that Justice Kelly, ou t of regard for stare decisi s, has ever sustained a precedent with which she disagrees, merely that Jus tice Kelly agrees with these precedents. 3 The majority, on th e 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 co ntrol of the Court switched” during her tenure. Post at 11 n 12. She furth er 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 ma jority; there is merely evidence that Justice Kelly is more approving of the pre cedents that have been overru led by this Court than the majority. A justice’s perspective on stare decisis is not evidenced by her willingness to main tain precedents with which she agrees , but by her willingness to maintain preceden ts 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...)

2chart, 4 believes that these 40 cases each ov errules a precedent of this Court in which the clear language of the law was misconstrued, or in which the policy preferences of the justices w ere substituted for those of the lawmaker. Thus, the differences among the justices ref lected in these cases a re 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 major ity, over Justice Kelly’s dissent, issued the first-ever opinion of this C ourt that identified a clear standard for determining when a wrongly decided p recedent warrants overruling, and recognized that a variety of consid erations, including individual reliance

interests and the extent to which a past decision has be come embedded in the legal fabric, must be evaluated. 5 In anticipation of the day when her own judicial philosophy once again prevails in this C ourt and she is confronted with the 40 precedents of the presen t majority, Justice Kelly would do well to share her own

(...continued) overruling Kassab v Michigan Ba sic Prop Ins Assn , 441 Mich 433; 491 NW2d 545 (1992).

4 The summaries obviously cannot do full justice to the issu es 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).

3standards concerning when she would or would not overrule such obviously distasteful precedents. 6 (3) Perhaps the most signi ficant point of th e chart is that no meaningful

discussion of a court’s attitude toward precedent can be ba sed solely on an arithmetical analysis in wh ich raw numbers of overruli ngs are simply counted. Such an analysis obscures that not all preced ents are built alike, that some are better reasoned than others, that some are gr ounded in the exercise of discretionary judgments and others in the interpret ation 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 th e majority view as the misinterpretation of straightforward words and phrases in statutes and contracts, in which words that were not there were read into th e law or words that

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

6 In response to this inquiry, Justice Ke lly now posits a standard that would assess whether a precedent is “‘free from ab surdity, not mischiev ous in practice, and consistent with one another.’” Post at 8 n 8 (citation omitted). While at least this is a standard of sort s, it is hard to imagine a standard more deferential to judges and less defere ntial to the law. 7 The instant case illustrates this proposition well for Justice Kelly, unlike the justices in the ma jority, would effectively en graft onto MCL 691.1404 language upholding its 12 0-day notice requirement only if there was “prejudice caused to the government by the failure to supply notice within su ch time.” Thus, the 120-day notice requiremen t would sometimes mean what it says and would sometimes not. Whatever the policy merits of Justice Kelly’s amendments from (continued...)

4only does this Court disregard its dut y to interpret the law, eroding the constitutional separation of powers in th e process, the Court also overturns compromises made in the legislative pr ocess, second-guesses judgments of the lawmaker, and renders the law increas ingly arbitrary and unpredictable. (4) The chart also makes clear that the present court majority has been disciplined in stating e xpressly when a precedent ha s been overruled. The majority has never attempted to obscure when a precedent wa s overruled or to

minimize the number of such precedents by dubious “dis tinguishings” of prior caselaw. Rather, it has been forthright in identifying and criti quing precedents that were viewed as wrongly decided and warranting overru ling. As the chart demonstrates, on a significant number of past occasions, the Court left intact precedents that were inconsis tent with new decisions, e ssentially 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 can not 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 with in the actual statute enacted by the Legislature. 8 Justice Kelly identifies 61 overrule d precedents duri ng the years in question, rather than the 40 (or 43) we identify. This is because, in several instances, she treats as multiple overrulings an op inion overruling a single (continued...)

5(5) The debate in which Justice Kelly wishes to participate is one in which an overruling of preced ent, 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 ough t not to be. How does a justice thoughtfully appl y 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 Un ited States and Michigan constitutions? When does a justice wei gh 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 judg ment-- a standard articulated in countless opin ions 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 evaluati ng whether to overrule a p recedent, 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 l ong as it is “free from absur dity.” A rather tolerant standard. I would prefer to hol d this Court to a higher st andard in interpreting the will of the people and their elected representatives. See also Robertson v DaimlerChrysler Corp , 465 Mich 732, 756; 641 NW 2d 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.

6contained in this chart and determine for themselves wh ether Justice Kelly or the justices in the majority ha ve served better as steward s of the judicial power under the Michigan Constitution.

Stephen J. Markman

7CaseWhichOverruledWhich in Turn OverruledCase Holding1Paige v City of SterlingHts, 476 Mich 495;720 NW2d 219 (2006)HagermanGroup vGencorpAutomotive, 457Mich 720; 579NW2d 347(1998)Hagermanfailed to followStollv Laubengayer, 174 Mich 701;140 NW 532 (1913).The language “the proximate cause,” MCL418.375(2), means “the” proximate cause, not “a”proximate cause.2People v Anstey,476Mich 436; 719 NW2d579 (2006)People v Koval,371 Mich 453;124 NW2d 274(1963)Dismissal is not the proper remedy for a violationof the statutory right toan independent chemicaltest because MCL 257.625a(6) does not specifysuch a remedy.3Cameron v Auto ClubIns Ass’n, 476 Mich55; 718 NW2d 784(2006)Geiger v DetroitAutomobileInter-Ins Exch,114 Mich App283; 318 NW2d833 (1982);Geigerrelied onLambert vCalhoun, 394Mich 179; 229NW2d 332(1979)LambertoverruledHolland vEaton, 373 Mich 34; 127 NW2d892 (1964).The language “the claimant may not recoverbenefits for any portion of the loss incurred morethan 1 year before thedate on which the actioncommenced,” MCL 500.3145(1), means that aclaimant may only recover for damages sufferedwithin 1 year of filing suit.4Grimes v Dep’t ofTransportation, 475Mich 72; 715 NW2dGregg v StateHighway Dep’t,435 Mich 307;GreggignoredScheurman vDep’t of Transportation, 434Mich 619; 456 NW2d 66The language “improvedportion of the highwaydesigned for vehicular traffic,” MCL 691.1402(1),does not include the shoulder because a shoulder is275 (2006)458 NW2d 619(1990)(1990), and failed to followRoyv Dep’t of Transportation, 428Mich 330; 408 NW2d 783(1987), andGoodrich vKalamazoo Co, 304 Mich 442;8 NW2d 130 (1943).not designed for vehicular traffic.5Joliet v Pitoniak, 475Mich 30; 715 NW2d60 (2006)Jacobson vParda FedCredit Union,457 Mich 318;577 NW2d 81(1998)Jacobsonfailed to followChampion v NationwideSecurity, Inc, 450 Mich 702;545 NW2d 596 (1996).The language “the claim accrues at the time thewrong upon which the claim is based was doneregardless of the time when damage results,” MCL600.5827, means that a claim for a violation of theCivil Rights Act accrues on the actual date thealleged discriminatory acts occur.6People v Hawthorne,474 Mich 174; 713NW2d 724 (2006)People v Jones,395 Mich 379;236 NW2d 461(1975);People vLester, 406Mich 252; 277NW2d 633(1979), and theirprogenyThe language “[n]o judgment or verdict shall be setaside or reversed or a new trial be granted by anycourt of this state in any criminal case, on theground of misdirection of the jury . . . unless . . . itshall affirmatively appearthat the error complainedof has resulted in a miscarriage of justice,” MCL769.26, means that a trial court’s failure to instructon the defense of accident does not requireautomatic reversal of a defendant’s conviction.7Devillers v Auto ClubIns Ass’n, 473 Mich562; 702 NW2d 539(2005)Lewis v DetroitAutomobileInter-Ins Exch,426 Mich 93;393 NW2d 167(1986)Lewisfailed to followDahrooge v Rochester-GermanIns Co, 177 Mich 442; 143 NW608 (1913).The language “the claimant may not recoverbenefits for any portion of the loss incurred morethan 1 year before thedate on which the actioncommenced,” MCL 500.3145(1), means that aplaintiff may only recover for damages sufferedwithin 1 year of filing suit.8Rory v Continental InsCo,473 Mich 457; 703NW2d 23 (2005)Tom ThomasOrg, Inc vReliance Ins Co,396 Mich 588;242 NW2d 396(1976);CamelotExcavating Co vSt Paul Fire &Marine, 410Mich 118; 301NW2d 275(1981);Herweyer vClark HwyServices, Inc,455 Mich 14;564 NW2d 857(1997)Tom Thomasfailed to followDahrooge v Rochester-GermanIns Co, 177 Mich 442; 143 NW608 (1913);McIntyre vMichigan State Ins Co, 52 Mich188; 17 NW 781 (1883);Law vNew England Mut AccidentAss’n, 94 Mich 266; 53 NW1104 (1892);Turner v Fidelity& Cas Co, 112 Mich 425; 70NW 898 (1897);Harris vPhoenix Accident & SickBenefit Ass’n, 149 Mich 285;112 NW 935 (1907);Friedbergv Ins Co of North America, 257Mich 291; 241 NW 138 (1932);Hall v Metropolitan Life Ins Co,274 Mich 196; 264 NW 340(1936);Barza v MetropolitanLife Ins Co, 281 Mich 532; 275NW 238 (1937); andBashans vMetro Mut Ins Co, 369 Mich141; 119 NW2d 622 (1963).Herweyerimplicitly overruledState Farm Mut Automobile InsThe language “a claim or suit must be broughtwithin 1 year from the date of the accident” meansthat a claim or suit mustbe brought within 1 yearfrom the date of the accident.Co v Ruuska,412 Mich 335;314 NW2d 184 (1982).9People v Bell, 473Mich 275; 702 NW2d128 (2005)People v Miller,411 Mich 321;307 NW2d 335(1981);People vSchmitz, 231Mich App 521;586 NW2d 766(1998)Dismissal is not the proper remedy for a violationof the statutory right to a peremptory challengebecause MCL 768.13 doesnot specify such aremedy.10Garg v MacombCommunity MentalHealth, 472 Mich 263;696 NW2d 646 (2005)Sumner vGoodyear Tire& Rubber Co,427 Mich 505;398 NW2d 368(1986)The language “[t]he claim accrues at the time thewrong upon which the claim is based was doneregardless of the time when damage results,” MCL600.5827, as applied tothe three-year period oflimitations in MCL 600.5805(10), means that aplaintiff must commencean action within threeyears of a claimed violation of the Civil RightsAct.11Echelon Homes, LLC vCarter Lumber Co,472Mich 192; 694 NW2d544 (2005)People vTantenella, 212Mich 614; 180NW 474 (1920)The ability of a person to collect trebled damagesfrom “[a]nother person’s buying, receiving,possessing, concealing, or aiding in theconcealment of stolen, embezzled, or convertedproperty when the person buying, receiving,possessing, concealing, or aiding in theconcealment of stolen, embezzled, or convertedproperty knew that the property was stolen,embezzled, or converted,” MCL 600.2919a, meansthat the buyer must haveactual knowledge that theproperty in question was“stolen, embezzled, orconverted.”12People v Davis, 472Mich 156; 695 NW2d45 (2005)PeopleCooper,Mich 450;NW2d(1976)v398247866Cooperfailed to followBartkusv Illinois,359 US 121; 79 S Ct676; 3 L Ed 2d 684 (1959).An “offense” is a violation of the law of asovereign. Where a defendant by the commissionof one act violates the law of two sovereigns, thelanguage “[n]o person shall be subject for the sameoffense to be twice put in jeopardy,” Const 1963,art 1, § 15, does notprohibit two separatesovereigns from prosecuting a defendant for thatact.13People v Young, 472Mich 130; 693 NW2d801 (2005)PeopleMcCoy,Mich 231;NW2d(1974)v392220456The language “[t]he court shall instruct the jury asto the law applicable tothe case . . . as in hisopinion the interests of justice may require,” MCL768.29, means that the trial court has discretion togive a cautionary accompliceinstruction, but is notmandated to do so.14Neal v Wilkes, 470Mich 661; 685 NW2d648 (2004)WymerHolmes,Mich 66;NW2d(1987)v429412213The language “a cause of action shall not arise forinjuries to a person who ison the land of another . .. for the purpose of . . . outdoor recreational use . . .against the owner . . . of the land . . . ,” MCL324.73301(1), applies to all land used for outdoorrecreational use, not just “large tracts ofundeveloped land.”15People v Hickman, 470Mich 602; 684 NW2d267 (2004)PeopleAnderson,Mich 155;v389205The language “[i]n every criminal prosecution, theaccused shall have the right . . . to have theassistance of counsel for his or her defense,” ConstNW2d 4611963, art 1, § 20, means that the right to counsel(1973)attaches only to corporealidentifications conductedat or after the initiationof adversarial judicialproceedings.16Waltz v Wyse, 469Mich 642; 677 NW2d813 (2004)Omelenchuk vCity of Warren,461 Mich 567;609 NW2d 177(2000)The language “[t]he statutes of limitations orrepose are tolled,” MCL 600.5856, does not toll theadditional period permitted under MCL 600.5852for filing wrongful death actions because it is not astatute of limitations or repose.17People v Nutt, 469Mich 565; 677 NW2d1 (2004)People v White,390 Mich 245;212 NW2d 222(1973)Whiteexpressly overruledPeople v Grimmett, 388 Mich590, 607; 202 NW2d 278(1972);People v Parrow, 80Mich 567; 45 NW 514 (1890);andPeople v Ochotski, 115Mich 601; 73 NW 899 (1898).The language prohibiting successive prosecutionsof the “same offense,” Const 1963, art 1, § 15,means that successive prosecutions are prohibitedonly where the charged offenses share identicalelements.18Rakestraw v GenDynamics LandSystems, Inc,469 Mich220; 666 NW2d 199(2003)Carter v GenMotors Corp,361 Mich 577;106 NW2d 105(1960)The language “personal injuryarising out of and inthe course of employment,” MCL 418.301(1),means that a claimant mustestablish both an injury“arising out of” his or her employment and that anysymptom, such as pain, complained of by theclaimant must be causallylinked to such injury,and, thus, where a claimantclaims to have sufferedan injury whosesymptoms are consistent with apreexisting condition, he orshe must establish theexistence of a work-related injury that extendsbeyond the manifestation of symptoms of theunderlying preexisting condition.19Wilkie v Auto-OwnersIns Co,469 Mich 41;664 NW2d 776 (2003)Powers vDetroitAutomobileInter-Ins Exch,427 Mich 602;398 NW2d 411(1986);Vanguard InsCo v Clarke,438 Mich 463;475 NW2d 48(1991)Powersfailed to followRaska vFarm Bureau Mut Ins Co,412Mich 355; 314 NW2d 440(1982).Vanguardfailed to followPowersandMichiganMillersMut Ins Co v BronsonPlating Co,445 Mich 558; 519NW2d 864 (1994).The language “total limitsof all bodily injuryliability bonds and policiesavailable to the owneror operator of the underinsured automobile” meansthe total amount available to the owner, not theamount actually received by the claimant.20Jones v Dep’t ofCorrections,468 Mich646; 664 NW2d 717(2003)In re Lane, 377Mich 695; 387NW2d 912(1966);Stewartv Dep’t ofCorrections,382 Mich 474;170 NW2d 16(1969)The relinquishment of the parole board’s authorityto revoke parole is not the proper remedy for aviolation of the statutoryright to a hearing within45 days after the parolee is“returned or is availablefor return” to prison fora parole violation becauseMCL 791.240a(1) does not specify such a remedy.21People v Hawkins, 468Mich 488; 664 NW2d717 (2003)People vSherbine, 421Mich 502; 364NW2d 658An application of the exclusionary rule is not theproper remedy for the seizure of evidence based oneither a search warrant issued in violation of MCL780.653(b) or a bench warrant issued in violation(1984);People vSloan, 450 Mich160; 538 NW2d380 (1995)MCR 3.606(A) because neither the statute nor thecourt rule contemplates such a remedy.22Haynie v Michigan,468 Mich 302; 664NW2d 129 (2003)Koester v Novi,458 Mich 1; 580NW2d 835(1998)The language “unwelcome sexual advances,requests for favors, and other verbal or physicalconduct of a sexual nature,” MCL 37. 2103(i),means that conduct or communication that isgender-based but not sexual in nature does notconstitute “sexual harassment” under the CivilRights Act.23Rednour v HastingsMut Ins Co, 468 Mich241; 661 NW2d 562(2003)Nickerson vCitizens Mut InsCo, 393 Mich324; 224 NW2d896 (1975)Nickersonpredated the no-faultact.The language “in, upon, getting in, on, out or off” avehicle does not include merephysical contact witha vehicle.24Taylor vSmithklineBeecham Corp,468Mich 1; 658 NW2d127 (2003)DearbornIndependent, Incv Dearborn, 331Mich 447; 49NW2d 370(1951)MCL 600.2946(5), which states that a drug is not“defective or unreasonablydangerous” if “the drugwas approved for safety and efficacy by the UnitedStates food and drug administration (FDA), and thedrug and its labeling were in compliance with theUnited States food and drug administration’sapproval at the time the drugleft the control of themanufacturer or seller,” does not improperlydelegate the legislative power to a federal agencybecause the FDA’s determination regarding thesafety and efficacy ofdrugs has independentsignificance to, and is made independently of anyconsideration of, the impactof Michigan tort law.25Mack v Detroit,467 Mich 186; 649NW2d 47 (2002)McCummings vHurley Med Ctr,433 Mich 404;446 NW2d 114(1989)McCummingsoverruledHyde vUniv of Michigan Bd ofRegents,426 Mich 223; 393NW2d 847 (1986), andMcCann v Dep’t of MentalHealth,398 Mich 65; 247NW2d 52 (1976).The language “[e]xcept as otherwise provided in[the governmental tort liability] act, agovernmental agency isimmune from tort liabilityif the governmental agency is engaged in theexercise or discharge ofa governmental function,”MCL 691.1407(1), means that because thegovernmental tort liabilityact does not include asexual orientation discrimination exception togovernmental immunity, the government isimmune from tort liability for claims of sexualorientation discrimination.26Sington v ChryslerCorp, 467 Mich 144;648 NW2d 624 (2002)Haske vTransportLeasing Inc, 455Mich 628; 566NW2d 896(1997)HaskeoverruledRea v RegencyOlds/Mazda/Volvo,450 Mich1201 (1995).The definition of “disability” in MCL418.301(4)as “a limitation of an employee’s wage earningcapacity in work suitable to his or herqualifications and training resulting from apersonal injury or work related disease” means thata workers’ compensation magistrate mustdetermine both that the claimant suffered a workrelated injury and thatthe injury has actuallyresulted in a loss of wage-earning capacity in worksuitable to the employee’s training andqualifications in the ordinary job market.27People v Petit, 466Mich 624; 648 NW2d193 (2002)People v Berry,409 Mich 774;298 NW2d 434(1980)Berryinterpreted the formerGCR 1963, 785.8, which differsfrom the current MCR6.425(D)(2)(c).The language “the court must, on the record . . .give the defendant . . . an opportunity to advise thecourt of any circumstances they believe the courtshould consider inimposing sentence,” MCR6.425(D)(2)(c), means that the court must give thedefendant an “opportunity” to address the courtbefore sentence is imposed; it does not mean thatthe court must specifically ask the defendantwhether he or she has anything to say on his or herbehalf.28People v Hardiman,466 Mich 417; 646NW2d 158 (2002)People v Atley,392 Mich 298;220 NW2d 465(1974).Under MRE 401, evidence is relevant if it has “anytendency to make the existence of any fact that isof consequence to the determination of the actionmore probable or less probable than it would bewithout the evidence,” and, thus, so long asevidence is relevant and admissible, it does notmatter that the evidencegives rise to multipleinferences or that an inference gives rise to furtherinferences.29People v Cornell, 466Mich 335; 646 NW2d127 (2002)People v Jones,395 Mich 379;236 NW2d 461(1975);People vChamblis, 395Mich 408; 236NW2d 473(1975);People vJenkins, 395Jonesand its progeny failed tofollowHanna v People, 19Mich 316 (1869).The language “the jury . . . may find the accused . .. guilty of a degree of thatoffense inferior to thatcharged in the indictment . . . ,” MCL 768.32(1),means that a requested instruction on a necessarilyincluded lesser offense is proper if the chargedgreater offense requires the jury to find a disputedfactual element that is not part of the lesserincluded offense and a rational view of theMich 440; 236NW2d 503(1975);People vStephens, 416Mich 252; 330NW2d 675(1982)evidence would support it.30Koontz v Ameritech,466 Mich 304; 645NW2d 34 (2002)White vMcLouth SteelProducts,decided subnomCorbett vPlymouth Twp,453 Mich 522;556 NW2d 478(1996)An employee who had taken a pension benefit in alump sum has “received” a retirement benefit asdefined by MCL 421.27(f)(1) and, therefore, thestatute mandates coordination of the employee’sunemployment benefits with his or her pensionbenefits.31Robertson vDaimlerChrysler Corp,465 Mich 732; 641NW2d 567 (2002)Gardner v VanBuren PubSchools, 445Mich 23; 517NW2d 1 (1994)The language “[m]ental disabilities shall becompensable when arisingout of actual events ofemployment, not unfounded perceptions thereof,”MCL 418.301(2), means that, in order to recoverworkers’ compensation benefits, a claimant mustdemonstrate both that there has been an actualemployment event leading tothe disability and thatthe claimant’s perception of such actualemployment event was reasonably grounded in factor reality.32Pohutski v City of AllenPark, 465 Mich 675;Hadfield vOakland CoThe language “this act doesnot modify or restrictthe immunity of the state from tort liability as it641 NW2d 219 (2002)Drain Comm’r,430 Mich 139;422 NW2d 205(1988);Li v Feldt, 434Mich 584; 456NW2d 55(1990)existed before July 1,1965,” MCL 691.1407,means that the state, not a municipality, may besubject to liability under a common-law exceptionto governmental immunity.33Brown v Genesee CoBd of Comm’rs, 464Mich 430; 628 NW2d471 (2001)Green v Dep’tof Corrections,386 Mich 459;192 NW2d 491(1971)The language “members of the public,” MCL691.1406, does not include jail inmates who arelegally compelled to be in jail.34MacDonald v PKT,Inc, 464 Mich 322; 628NW2d 33 (2001)Mason v RoyalDequindre,Inc,455 Mich 391;566 NW2d 199(1997)Masonfailed to followWilliams v Cunningham DrugStores, Inc,429 Mich 495; 418NW2d 381 (1988), andScott vHarper Recreation, Inc,444Mich 441; 506 NW2d 857(1993).Generally, a merchant has no obligation toanticipate and prevent criminal acts against itsinvitees; rather, a merchant’s only duty is torespond reasonably to a specific situation occurringon the premises that posesa risk of imminent andforeseeable harm to identifiable invitees.35People v Glass, 464Mich 266; 627 NW2d261 (2001)People vDuncan, 388Mich 489; 201NW2d 629(1972)The power granted to thisCourt under Const 1963,art 6, § 5, to “establish, modify, amend andsimplify the practice and procedure in all courts ofthis state” does not extendto enacting court rulesthat establish, abrogate, or modify the substantivelaw.36Nawrocki v MacombCo Rd Comm, 463Mich 143; 615 NW2d702 (2000)Pick vSzymczak, 451Mich 607; 548NW2d 603(1996)Pickfailed to followScheurmanv Dep’t of Transportation, 434Mich 619; 456 NW2d 66(1990).The language “improvedportion of the highwaydesigned for vehicular travel,” MCL 691.1402(1),does not include traffic control devices, such astraffic signs, that are not part of the actual roadbeditself.37Mudel v Great Atlantic& Pacific Tea Co, 462Mich 691; 614 NW2d607 (2000)Goff v Bil-MarFoods, Inc, 454Mich 507; 563NW2d 214(1997);Laymanv NewkirkElectric Ass’nInc, 458 Mich494; 581 NW2d244 (1998)Goffimplicitly overruledHolden v Ford Motor Co, 439Mich 257; 484 NW2d 227(1992).The language “the findings of fact made by thecommission acting within its power, in the absenceof fraud, shall be conclusive,” MCL 418.861a(14),does not require the judiciary to examine themagistrate’s decision to determine whether thatdecision is supported bysubstantial evidence.38Stitt v HollandAbundant Life,462Mich 591; 614 NW2d88 (2000)Preston vSleziak, 383Mich 442; 175NW2d 759(1970)Under the common law, aninvitee’s status isdependent on a visit associated with a “commercialpurpose” and “mutuality ofinterest” concerningthe reason for the visit. Where a person is onchurch premises for purposes other than“commercial purposes,” he or she is a licensee andnot an invitee.39Robinson v Detroit,462 Mich 439; 613NW2d 307 (2000)Fiser v AnnArbor, 417Mich 461; 339NW2d 413(1983);Rogers vDetroit, 457Dedesfailed to followStoll vLaubengayer, 174 Mich 701;140 NW 532 (1913).The language “the proximate cause,” MCL691.1405, means “the” proximate cause, not “a”proximate cause.Mich 125; 579NW2d 840(1998);Dedes vAsch, 446 Mich99; 521 NW2d488 (1994)40People v Kazmierczak,461 Mich 411; 605NW2d 667 (2000)People v Taylor,454 Mich 580;564 NW2d 24(1997)TaylormisconstruedTaylor vUnited States,286 US 1, 6; 52S Ct 466; 76 L Ed 951 (1932),andJohnson v United States,333 US 10, 13; 68 S Ct 367; 92L Ed 436 (1948).The smell of marijuanaemanating from a motorvehicle detected by an officer qualified to identifythat odor may establish a “substantial basis” forinferring a “fair probability” that the vehiclecontains marijuana and,therefore, the probablecause necessary to justify a search without awarrant of that motor vehicle, pursuant to themotor vehicle exception to the warrantrequirement.KEY: This chart represents cases decidedafter January 1, 2000, in which Justice Kelly dissented and in which a majority ofthe Court voted to overrule a decision. The reasoning of the Court majority is setforth in highly summary form; the readershould refer to the opinion asa 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 CO UNTY ROAD COMMISSION, Defendant-Appellant.

WEAVER, J. ( concurring in part an d dissenting in part ). I agree with Justice Kelly’s well-reasone d opinion concurri ng in part and dissenting in part and join parts I and II of her opinion, excluding footnotes 8, 10, 12, and 13.

Elizabeth A. Weaverv 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 CO UNTY 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 th ere. The majority unnecessarily reaches the issu e 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, th e 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 c ourts erred in reaching the actual prejudice issue, as does the majority in this Court. The matter s hould be decided only on the basis of the deficiency of the contents of the notice. By stretch ing to entertain the

timeliness-of-notice issue and, in doing so, by needlessly overturning two more precedents, the majori ty invites renewed accusations of judicial activism.I. T HE S PECIFIC N OTICE IN THIS C ASE WAS I NSUFFICIENT MCL 691.1404(1) provides: As a condition to any recovery for injuries sustained by reason of any defective high way, the injured pers on, within 120 days from the time the injury occurred, except as ot herwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the in jury and the defect. The notice shall specify the exact location and nature of the d efect, the injury sustained and the names of the witnesses known at the time by the claimant. Plaintiff sent the following noti ce 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 o ccurred on February 6, 2001. This incident occurred at the inters ection 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, w ill pursue a claim for money damages against the responsible agen cy 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 requi red by MCL 691.1404(1), pl aintiff relies also on a Freedom of Information Act (FOIA) 1 request made by plain tiff’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.

2My 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, a ny photo logs or video logs maintained by the Washtenaw County Ro ad Commission showing the intersection of Jennings and Main Street. Please be advised that this lett er is being sent to you pursuant to the Freedom of Information Act. To be sufficient under MCL 691.1 404(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 witn esses known at the time of the notice. The above quoted letters do not satisfy al l 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 comp laint, where plain tiff claims that she was injured when she tripped and fell on “broken, uneven, dilapidated, depressed and/or potholed areas” 2 in the roadway and cro sswalk. But no such

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

does not even hint at the conditions alleged in the la wsuit. Nothing found there gives rise to an inference that plai ntiff encountered a pot hole, and nothing indicates that plaintiff’s injuri es were caused by broken pavement. MCL 691.1404(1) specifies that the notice contain an “exact” statement of the defect. Because plaintiff’s notice cont ains no reference at a ll to the defect, it

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

3certainly does not rise to the level of an exact statement. MCL 69 1.1404(1) utilizes the mandatory word “shall” in se tting 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 w ould reverse the Court of Appeals decision and remand the case to the trial court for entry of summary disposition in favor of defendant.

II. I T IS UNCESSARY TO R EACH H OBBS 4 AND B ROWN 5 The Michigan Supreme Court in Hobbs found that the only purpose of the statutory notice provision is to avoid act ual 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 showin g of such prej udice 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 in jury 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 no t be lightly discarded. Although the law of governmental tort liab ility 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; 24 7 NW2d 754 (1976). 5 Brown v Manistee Co Rd Comm , 452 Mich 354; 550 NW2d 215 (1996).

4the continued validity of the Hobbs rule will not resu lt 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 th e 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 pl aintiff 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 woul d have been entitled to summary disposition. It is an exception to the rule of g overnmental immunity that a government agency can be liable in tort for its failure to properly maintain a highway under its jurisdiction. In order to s afeguard an agency that might fall within this exception, the Legislature created th e precondition of notice in MCL 691.1404(1). Brown , 452 Mich at 359. The information in th e notice assists the ag ency in determining

what evidence it needs to evaluate the claim. Id . at 362. The 120-day requirement ensures that the agen cy 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 becau se of a lack of timely noti ce 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 ev idence and evaluate th e claim even though notice is late, the agency is not prejudiced , and the purpose of MCL 691.1404(1) is

effectuated.

5Therefore, when a cour t reviews a notice, it must fi rst examine its contents. If the contents do not prov ide the agency with the informati on necessary for an investigation and evaluation of the claim, th e notice is insufficien t. This would be true even if the notice were given on th e first day after the claimed damage

occurred. In this cas e, the lower courts failed to co nsider this point and proceeded directly to the final step of the inquiry. Th ere was no need or justification for doing so, given the fatal flaws in the conten ts of the notice. The lower courts erred in even considering th e 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 d ecisions aside, the majo rity must discuss the constitutional implications of MCL 691.1404. It is a well-accepted rule that an appellate court should not reach a constitutiona l issue if a case can be decided on other grounds. J & J Constr Co v Bricklaye rs & 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, 23 4; 507 NW2d 422 (1 993). There would

be no need to reach the cons titutional question if the majo rity properly focused on plaintiff’s failure to provide adequate notice.

6 Regrettably, this action is consis tent with the alarming and unprecedented rate at which this majority overturns precedent. See Todd C. Berg, Esq., Overruling Preceden t and the MSC , Michigan La wyers Weekly <http://www.michiganlawyers weekly.com/subscriber/arch ives.cfm?page=MI/06/B 060691.htm&recID=3 89963> (accessed Nove mber 10, 2006).

6The result it reaches exhibits disrespect for stare decisis. While we can all agree that the doctrine of stare decisis is not an inexorable co mmand, we also all

know that it is the backbon e of American justice. It “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to th e actual and perceive d 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 departu re 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 justif ication for adherence to prec edent when he sat on the Supreme Court of Pennsylvania:

It is sometimes said that th is 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 nece ssary 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 a ssessment of which issue should be reached first in this case. The respect for stare deci sis and the avoidance of unnecessary constitutional issu es provide ample reasons to deal with the simple issue of the sufficiency of the notice firs t. The majority o ffers no explanation why the first question must be the continued validity of Hobbs and Brown

.

7administer it. I take it th at 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,” ma nufactured for each special occasion out of our ow n private feelings and opinions. If it be wrong, the govern ment 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 fo llow our decisions, and the people conform to them because they take it for granted that what we have said once we will say again. Th ere 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 insep arable from the nature of the science—is a great ev il 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 ov erturn precedent. But I ha ve no need to create my own standards when well-reasoned standards ha ve been establishe d in the laws of this country for over 15 0 years. As noted in McDowell , when preced ents are “free from absurdity, not mischievous in practice, and cons istent 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 t raditional tools used by courts throughout their history continue to s erve well. In this line, I willingly apply interpretive aids such as the absu rd results rule and the legisla tive acquiescence doct rine 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 questioni ng what standard I would prefer, the majority shifts the discussion’s focu s 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 traditiona l 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 la w 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...) 8No special justification exists in this case to attack th e precedent created by

Brown and Hobbs . Rather, the case can be deci ded on other grounds without upsetting established law or rejecting precedent. When c ourts stretch to overturn precedent, they destroy th e very certainty and stability that stare decisis is designed to protect. Such actions br ing 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 approp riate. The majority has indicated that the reasoning of stare d ecisis should be reex amined only where a holding is “‘“fairly calle d 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., conc urring). Wh en the Court

need not reach an issue in or der 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 la w? There is but one answer, the makeup of the Court. The law has not changed. Only th e 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, th e majority uses the same mischaracterization it made in the majority opinion in Sington . I will reiterate my point: when preceden ts 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 sa me attorney who argued in Brown to overturn Hobbs returned to argue this case.

9have declared themselves more capable of understand ing 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,’ ma nufactured for each sp ecial 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 throug hout Justice Markman’s concurring opinion. He seems to believe that it is the solemn duty of this ma jority to rewrite Michigan caselaw to “get the law ‘right.’” Ante at 6. This predispos ition to find so much caselaw wrongly decided contributes to th e majority’s seemi ng wholesale secondguessing of earlier decisions and rend ers the law increasingly arbitrary and unpredictable. Appropriate respect for st are decisis and for those who sat on this Court before us would greatly cont ribute to ending such instability. I do not fault the majority for wanting to get the la w “right.” I fault it for repeatedly deciding matters as if only it can reach a co rrect interpretation of the law. This case provides an example. Two prior incarnations of this Court reviewed the same issue a nd came to the same decisi on. The Legislature had decades to change the st atute if it believed that Hobbs and Brown were incorrectly decided, yet it did nothing. But this ma jority still concludes that the Court’s interpretation of the law wa s “wrong” this en tire time. Surely it is not only the four justices currently making up the ma jority of this Cour t who are capable of correctly discerning what th e Legislature meant. 11 A quote from Justice Eugene Black seems apropos for this case: At one time students and citizen s, lay and professional, were taught that everyone is presumed to know the law, and hence is duty bound to act in acco rd therewith. But ho w may even skilled lawyers, and correspondingly skille d subordinate court judges, “know the law” when they are taught that the la w 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 V OELKER ’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 thencefor th calling him “Mister Justice” makes him no less fallible and uncert ain than he was when he was back home drawing fiv e-dollar wills.” [ Autio v Proksch Constr Co , 377 Mich 517, 542-543; 141 NW2d 81 (1966) (Black, J., dissenting).]

10stability 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/wik i/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 w ould indulge in whol esale 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 preceden t 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.michiga nlawyersweekly. com/subscriber/archivesFTS.cfm?page= MI/06/B060691.htm&recID=389963&Qu eryText=overruling%20and% 20precedent%20and%20ms c> (accessed December 22, 2006). 13 The majority characterizes my discu ssion of their disrespect for stare decisis as a “canard.” Those familiar with this Court know th at the majority’s unprecedented attack on stare decisis is not a mere ground less rumor. The numbers do not lie. The p resent majority has overturne d more than three times as many precedents as did those who i mmediately preceded it (61 precedents overturned in five y ears 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 dispos itions by this majority in five years as compared to 16,729 total dispos itions by its predecessor). See Todd C. Berg, Esq., Overruling Precedent and the MSC , The “Pre-1999 Court” vs . The “Majority Court” , Michigan Lawyers W eekly, <http://www.michiganlaw yersweekly.com/subscriber/ archives_FTS.cfm?page=MI/06/B060 691.htm&recID=389963& QueryText=overr uling%20and%20precedent% 20and%20msc> (accessed December 22, 2006). This disparity is astounding. Also astounding is the ma jority’s repeated claim that nothing unusual is happening. If any “c anard” exists in th is case, it is the majority’s insistence that it is not overturning the preced ent of this Court at an alarming rate. The majority denies that it is overt urning precedent w illy-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 dis posed of. These statistics should offer the majority no solace. In fa ct, they should be taken cum grano salis

. It is true that the majority overturne d only one-third of one percent of total dispositions between 2000 an d 2005. But this percentage rate is four times greater than the immediately precedin g majority on the Court whose rate of overturning (continued...) 11III. E VEN IF THEY S HOULD BE R EACHED , H OBBS AND B ROWN S HOULD NOT BE O VERTURNED Even if it were proper to reach the 120-day notice req uirement in this case, it would not be appropriate to overturn Hobbs and Brown . Together, these cases represent 30 years of precedent on the pr oper 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 MC L 691.1404(1). The primary goal of statut ory 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 ord ers. This fact makes the total disposition percentage irrelevant. The majority should not receive credit for not overturning precedent when it si mply 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 Atlan tic & 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 Fo rd 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 ma jority’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 major ity holds stare decisis.

12prejudice 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 kne w of this interpretation 14 but took no action to amend the statute or to state some other purpo se 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 s till the Legislature has taken no action to alter the Court’s interpretation of the in tent behind the statute. This lack of legislative correction points te llingly to the conclusion that this Court properly

determined and effectuated the intent be hind 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 c onstruction. But these cr iticisms are not well founded, either logically or legally. The Unite d States Supreme Court recently reaffirmed the use of legislative acquiescence:

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

13[T]he claim to adhere to case la w is generally powerful once a decision has settled statutory meaning, see Patterson v McLean Credit Union , 491 U.S. 164, 172-173, 1 09 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 le gislative 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 ha s 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 c ontract 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 sa me in its effect on contracts as an amendment of th e 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 acquiescen ce is reasonable and logical. The Legislature is presumed to k now the law, includ ing the decisions of this Court.

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

14is a proper manner by which the Legislature accepts a cour t’s interpretation of that

statute. Our goal in interp reting statutes is to give effect to the purpose behind them. We should not limit ourselves in the use of any tool th at gets us to that goal. “If the purpose of construction is the ascerta inment 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), quot ed in Shapiro, The Oxford Dictionary of American Legal Quotations (New York: Oxford Univers ity Press, 1993), p 390. Legislative acq uiescence 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 ra tional 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 interpretati on of a statute. An entirely different question entirely arises when, as here, th e issue presented is whether a settled statutory interpretation sh ould be overturned. 17 The majority claims that my support for legislative acquiescence undermines my “fealty” to st are decisis. It supports this by providing a list of decisions made by this majority that rej ect 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 th e constitutional issue in deci ding this case. Hence, if my view prevailed, I would not fi nd 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 underm ines my adherence to st are decisis. There is a significant difference between precedent interpre ting a statute relied on for decades and tools used to inte rpret statutes. I know of no authority that stands for the proposition that stare deci sis attaches to analytical tools used in judicial interpretation. Hence, the rule of stare decisis binds us to follow th e 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.

15The 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 constituti onality. It claims that the Legislature was left incapable of revising the statute ev en 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 Legislat ure 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 noti ce provision that had one known intent, fair notice to prevent actual prejudice. Moreover, if the Legislatu re 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 no tice provision necessarily means that no other legitimate reason could possibly exist. This is not th e 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 o ccur to people at a later date. If the Legislature had a different in tent in mind, it could ha ve, and should have, made that clear to the Court. It has never atte mpted to do so. This indicates that the Court’s determination of the Legi slature’s intent was correct. 19 If, as the majority claims, the Legisl ature 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 Legisl ature knows how to (continued...) 16Alternatively, it could have defined act ual 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 ch ange 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 respo nded in some fashion to the Hobbs decision. It could have further articulated the notice provision’s purpose and possibl y have created a presump tion of prejudice to the governmental agency from the pl aintiffs’ 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 provide d the impetus for change but the m eans to reach that goal. Despite what can fairly be characterized as the Court’s guide for possible legislative amendments, the Legislatu re still has not repudiated Brown and Hobbs

. 20 Given

(...continued) create irrebuttable presuppositions. S ee 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 adheren ce 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 major ity’s “two-wrongs-make-a-right” argument carries little weight. It is also grossly unfai r to assert, as Justice (continued...) 17that 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. T HE R OBINSON 21 F ACTORS This Court laid out the factors to consider in ov erturning stare decisis in

Robinson . The first consideration is whet her 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 interpretati on 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 th e decision at issue defies “practical workability”; (2) whether reliance interests would work an undue hardship if the author ity is overturned; and (3) wheth er changes in the law or facts make the decision no longer justified. Robinson , 462 Mich at 464.

Hobbs and Brown do not defy practical work ability. Rather, they have been an integral part of the law on governmental im munity for 30 years. The bench and bar have had no difficulty appl ying 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 ag reement or not, I have in each case given heavy weight to the disruption th at a reversal would cause to the state’s jurisprudence. Frequently, the disrup tive effect would have been reason enough for me to refuse to overturn the precedent. 21 Robinson , 462 Mich at 439.

18the 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 pa ssed. And the rule in Hobbs has become even more

entwined with the la w of governmental liability. Many plaintiffs lik ely 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 6 91.1404. Atto rneys surely

have relied on Hobbs and Brown to decide what cases to accept. This necessarily entails adjusting the attorney’s resou rces to properly hand le the cases. The majority claims that no one would properly rely on Hobbs or Brown because they are “tex t 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 major ity’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 predat e this majority.

19The 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 ret ained, thereby respecting stare decisis, a doctrine that carries such persuasive force th at 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. R ETROACTIVITY 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 injusti ce would result from full retroac tivity, should adopt a more

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

. 20flexible approach. Lindsey v Harper Hosp , 455 Mich 56, 68; 564 NW2d 861 (1997). Court decision s 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 ju stice. In the civil context, a plurality of this Court noted that Chevron Oil [ Co ] v Huson , 404 US 97, 106-107; 92 S Ct 3 49; 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 cour t overturns precedent in terpreting 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 p recedent, 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. Th is argument does not ring true. Hobbs was decided 30 years ago. An d, 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 y ears of precedent as if it

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

21cases 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 decisi on, a departure from the proper interpretation of the law. As I have discussed, the Legislature chose not to amend MCL 691.1404 despite ample opport unity 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 incarna tions 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 p recedent offered by Hobbs and the affirmance of Hobbs in

Brown demonstrate that the majori ty is overturning a well-es tablished 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 me t, 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 inco rrect. 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 attorn eys handle cases. Under

22Hobbs, attorneys understand th at they have increased time to investigate and perfect their knowledge of a case before ta king legal action. This is important given the detail needed to co mply with MCL 691.1404(1). The majority contends that people have not relied on Hobbs given the recent decisions of this Court. But I questio n that contention. As Justice Jeremiah

S. Black noted over 150 years ago:

The inferior tribunals follow ou r decisions, and the people conform to them because they take it for granted that what we have said once we will say again. Th ere 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 di sregard the importance of this Court. “‘We should not indulge in the ficti on that the law now an nounced 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 (1 956) (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 applic ation. 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. Bu t the effect will be considerable. There will be a significant number of plaintiffs who will lose their remedy due to their

23failure to anticipate this ch ange in the reading of MCL 691.1404(1). And it will cause attorneys to reevaluat e 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 significan t change in the law than the majority wishes to admit. Application of the Pohutski factors

indicates as much. Cons ideration of these factors su pports only prospective application of this decision.

VI. C ONCLUSION The majority unnecessarily reaches the issue wheth er defendant must show actual prejudice to bar a claim filed more th an 120 days from th e date the injury

occurred. Plaintiff failed to supply sufficient notice to defendant. She did not provide an “exact” descripti on of the nature of the d efect. 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 a nd to the precedent of this Court. This continues a disturbing trend that the cu rrent majority has in itiated and fostered.

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

should be retained.

Marilyn Kelly

24v 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 CO UNTY ROAD COMMISSION, Defendant-Appellant. CAVANAGH, J. ( dissenting ). Today this Court overru les a portion of our gove rnmental immunity law that has been in place fo r 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 (1 996), were wrongly decided, I dissent from the majority’s decision to ove rrule these cases. I believe that the principles of stare decisis mandate that we continue to interp ret MCL 69 1.1404(1)

in accordance with Hobbs and Brown

. HOBBS AND BROWN SHOULD BE REAFFIRMED

It is well established that overrulin g precedent must be undertaken with caution. This Court does not lightly overrule settled decisi ons construing any section of a standing statute. Smith v Lawrence Baking Co , 370 Mich 169, 177; 121 NW2d 684 (1963). Adhering to d ecided cases is gen erally “‘the preferredcourse because it promotes the evenha nded, predictable, and consistent development of legal principles, fost ers 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 ma de, it should be convinced not merely that the case was wrongly decided, but al so 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 establishe d precedent, this Court must decide whether: “(1) the earlier case was wrongly decided, (2) the earlier case defies practical workability, (3) reliance interes ts would work an undue h ardship 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, 4 64-465; 613 NW2d 307 (2000).

Under Robinson , the first conclusion this Court must reach before overruling precedent is that the earli er 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 though tfully made, deliberate decisions. I disag ree with the majority’s imp lication that before 1970,

2the constitutionality of notice provis ions 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 th e constitutionality of the noti ce provision—this issue had not been squarely presente d in previous cases. Id. at 167. Two cases that closely preceded Grubaugh , Boike v City of Flint , 374 Mich 462; 13 2 NW2d 658 (1965),

and Trbovich v Detroit , 378 Mich 79; 142 NW2d 696 (1966), ma ke 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 app lies to infants or others under legal disability, has not as yet been put to test.” Boike , supra at 464 n*. Similarly, Justice Bl ack’s supplemental opinion in Trbovich remarked that the Court was bound to appl y plainly written notice statut es as written, given that no constitutional question ha d been raised below. Trbovich , supra at 88. It is disingenuous for th e majority to characterize Grubaugh as an aberration, while implying th at the previous decisions of this Court had endorsed the constitutionality of the notice statutes wi th 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 constitutiona lity was not raised in the lower court or this Court.

3Ridenour v Bay Co , 366 Mich 225, 243; 114 NW 2d 172 (1962). The question presented in Moulter v Grand Rapids , 155 Mich 165; 118 NW 919 (1908), was one of statutory construc tion, not constitutionality; wh ile 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 revi ew of the notice statute in Moulter , the

reasonableness of the statute would have b een 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 requi rements of the gen eral highway statute. 1 This Court concluded that the notice pr ovision of the gen eral highway statute violated due process where it extinguished the claim of a plaintiff who was mentally or physically incapacitated du ring 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 proce ss grounds, the equal protection argument

was not examined. Id. at 176-177.

1 Specifically, Grubaugh concerned a predece ssor to MCL 691.1401 et seq. : 1948 CL 242.8, repealed and su perseded by 1964 PA 170.

4Shortly after Grubaugh , we considered a broader constitutional challenge to a 60-day notice provision of the general highway statute 2 in Reich v State Hwy Dep’t , 386 Mich 617; 194 NW2d 700 ( 1972). This Court followed Grubaugh in holding that the statute violated du e process as applied to minors. Reich , supra at 622. As for the remaining plaintiffs, who were presumably co mpetent adults, we held that the notice provision violated equal protection because it arbitrarily and unreasonably split victims in to two differently treated subclasses: victims of governmental negligence and vic tims 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 p art 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 prej udice 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 addre ssed the 120-day notice requirement of

MCL 691.1404 in Hobbs , we examined th e notice provision and the reasons justifying it in light of the Grubaugh , Reich , and Carver decisions. This Court

2 Reich concerned the notice requi rement of 1964 PA 170.

5deliberately concluded that actual prejudice to the state from lack of notice within 120 days was the only legitim ate purpose it could posit for the notice provision of § 1404. Hobbs , supra at 96. Accordingly, unless act ual prejudice is shown, the plaintiff’s claim is not barred by failure to give notice w ithin the required period.

Id. In Brown , we invalidated a statute on equa l protection grounds because it imposed a 60-day notice req uirement for claims involving coun ty road commissions when MCL 691.1404, provi ding a 120-day notice period, also potentially governed the claim. Brown , supra at 363-364. Aft er 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 noti on that notice provisi ons are or may be

unconstitutional has “no clai m to being defensible constitutional theory.” Ante at 13. But it is this Court’s role to constr ue statutes to avoi d unconstitutionality, if possible, by a reasonable construc tion 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 evalua ted 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 pr ovision might be

unconstitutional if dismis sal did not serve the pos ited purpose of avoiding prejudice. Like Hobbs and its predecessors, th e primary concern in Brown was

6the constitutionality of a legislative scheme that draws arbitrary distinctions between litigants. Michigan is not the only jurisdiction that has i nvalidated notice provisions on constitutional grou nds. While it certainly repres ents a minority position, decisions in Nevada, Iowa, Minnesota, We st Virginia, and Washington have also held governmental immunity notice provisions constitutionally infirm. 3 Still

others have enforced noti ce 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 appli cation of the notice provisio n to incapacitated persons unconstitutional; in the case at hand, it extended this ra tionale to people who were under the legal disability of minority du ring the notice period . As evidenced by these decisions, these states, as well as Mi chigan before the instant cas e, certainly

considered the idea that notice provisions may be unconstitutional to be a

defensible constitu tional 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 stat ute’s sole purpose. Ante at 12-15. If th e 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).

7not agree with our presumpti on, in the 31 years since Hobbs was decided, it could have easily responded by ela borating on the other govern mental interests served by the notice provision. The Hobbs decision did not forecl ose the possibility that the notice provision served ot her legitimate state interest s other than prejudice; it merely stated that this Court could only pos it one purpose. Hobbs , supra at 96. If the Legislature had respo nded in any way to our in ference, 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 C ourt disagrees with the reasoning of Hobbs and

Brown , a mere belief that thes e cases were wrongly decided is insufficient to justify overruling them. Other considerati ons must be weighe d 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 hardsh ip, and whether changes in the law or facts no longer justify Hobbs and Brown

. Robinson , supra at 464. A stud y of these remaining

Robinson factors shows that they we igh 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. Inde ed, this rule has been

followed and enforced for ov er 30 years. In that span , litigants, attorneys, and courts have been able to apply Hobbs and Brown to the cases before them.

8Reliance interests of these parties also support upholding these cases. While a plaintiff is unlikely to deliberately with hold 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 c onsider the effect of our decisi on 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 cl aim may survive if the government has suffered no prejudice from the delay. Similarly, attorneys who ha ve 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 Legislat ure 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 relev ant 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 deliberatel y examined and decided by a court of competent jurisdictio n become precedent and should not be lightly departed.” People v Jamieson , 436 Mich 61, 79; 461 NW2d 88 4 (1990). Absent the rarest

9circumstances, we should remain faith ful to establis hed 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 ingraine d in our governmental tort liability scheme, the majority’s d ecision to overrule these cases should be applied prospectively. While the general rule is that judicial decisions are given complete retroactive effect, decisions th at overrule clear and uncontradicted caselaw have been given pr ospective application. Michigan Ed Employees Mut

Ins Co v Morris , 460 Mich 180, 189; 596 NW2d 142 (1999). A more flexible approach is warranted wh ere injustice might result from full retroactivity. Gladych v New Family Homes, Inc , 468 Mich 594, 606; 664 NW2d 705 (2003). To determine whether to dep art from the general rule of retroactivity, this Court has recognized a threshold que stion of whether the deci sion clearly established a new principle of la w, in addition to consider ing 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 Michig an has been that claimants may maintain claims against governmental agencies, despite fa ilure to give notice within 120 days, if the agency cannot show that it was prejudi ced by the lack of notice. Today’s decision rep resents a departure from an es tablished rule of law.

10We have not foreshadowed an y change of this particul ar rule—on the contrary, it was specifically reaffirmed by Brown ten years ago. Furt her, parties who have

relied on Hobbs in pursuing claims against go vernmental agenci es will now find

their claims dismissed. Attorneys who have taken clients and developed cases

with Hobbs in mind will have lost the time a nd 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 pr inciples 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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