Court of Appeals Rejects Newest Efforts to Evade the Notice Requirement for Claims Against the State of Michigan

In a unanimous opinion, the Michigan Court of Appeals affirmed the retroactive application of strict notice requirements under Michigan's Court of Claims Act, rejecting multiple arguments that sought to avoid these mandatory procedural requirements. Stephens v. Department of Corrections, ___Mich. App.___; ___N.W.3d___; 2025 MI App 368097-59.

Key Legal Developments

The court reconfirmed that the Michigan Supreme Court’s decision in Christie v. Wayne State University, 511 Mich. 39; 993 NW2d 2023 (2023), holding that the notice provision under MCL 600.6431 applies to claims against the state or its arms filed in circuit court, applies retroactively. The court rejected several arguments advanced by the plaintiffs to avoid the retroactive effect of Christie.

1. The federal waiver-in-litigation doctrine does not apply. There is no statutory time period within which the state or its arm must assert the plaintiff’s lack of compliance as a basis for dismissal of the action. Sovereign immunity is not an affirmative defense, and it is not among the defenses that are permanently waived under MCR 2.116(D)(1) if not timely presented.  To the contrary, MCR 2.116(D)(3) allows governmental immunity to be raised at any time.
2. Federal law does not preempt the notice requirement. Stephens involved claims arising under the federal Prison Rape Elimination Act (PREA). The PREA does not contain an express preemption clause. Nor did the implementing regulation, 28 U.S.C. § 52(b)(1), which forbids state agencies from imposing time limits on when inmates may submit a grievance regarding an allegation of sexual abuse, give rise to implied conflict preemption.
3. Equitable doctrines do not apply because a statute governs. Before addressing the plaintiff’s equitable arguments, the court observed that principles of equity do not apply when a statute governs the issue: “[I]f a court is free to cast aside, under the guise of equity, a plain statute, simply because the court views the statute as unfair, then our system of government ceases to function as a representative democracy.”
   • The court viewed laches as an attempt to sneak in the waiver-in-litigation doctrine through a side door.  Because the court rules and caselaw allow for the issue of sovereign immunity to be raised at any time, laches cannot be applied to bar the government from delayed invocation of sovereign immunity.
   • Unclean hands. The assertion by the state or its arms of a lack of notice is not the assertion of an equitable defense.  Therefore, the doctrine of unclean hands—that he who seeks equity must not have acted in bad faith—did not apply.

Practical Recommendations

Based on this decision, we recommend that governmental entities:

1. Review Current Cases. Examine all pending litigation to identify cases where plaintiffs may not have complied with MCL 600.6431 notice requirements.
2. Update Litigation Policies. Ensure that legal counsel routinely checks for compliance with notice requirements early in case evaluation, while recognizing that this defense can be raised at any time.
3. Training and Awareness. Educate relevant staff about the strict nature of these requirements and the court's rejection of equitable exceptions.
4. Documentation Protocols. Maintain clear procedures for tracking whether proper notice has been provided in cases involving claims against your entity.
5. Early Case Assessment. While immunity defenses can be raised at any time, early identification and assertion may help avoid unnecessary litigation costs.

Please feel free to contact the author of this Client Alert or your Butzel attorney for more information. 

Joseph E. Richotte
248.258.1407
richotte@butzel.com