In an amicus curiae brief I wrote for the Michigan Defense Trial Counsel in an application pending before the Michigan Supreme Court, http://www.jdsupra.com/post/documentViewer.aspx?fid=3e660282-742e-43fa-accb-7855db258fd2,
I raised the argument that a lawsuit against a governmental entity (in this case a transportation authority) should be dismissed because the plaintiff failed to strictly comply with the predicate 60-day notice provision required to give notice of a claim and bring a cause of action against the government. As the argument goes, the state legislature (in this case Michigan) is the only branch of government with the constitutional authority to “waive” the government’s, i.e., the “sovereign’s” immunity from suit and to allow a party to hail the governmental entity into the state’s courts of law. If this is sound, a proposition for which there appears to be ample supporting authority, both in Michigan and elsewhere, then a failure to comply with the statutory provisions that are necessary predicates to devolve upon courts of law the jurisdiction to consider the merits of the claim is a fatal jurisdictional defect.
Since a lack of subject-matter jurisdiction can be raised at any time by the parties or by the court (even the appellate courts) sua sponte, the proper course of action is to dismiss the lawsuit for a failure of subject-matter jurisdiction. At this stage of the proceedings, it seems provocative, but it is an applied concept that is neither novel nor indigenous to Michigan.
I cite some other state and federal cases in my amicus brief that applies this principle. However, some state courts still try to find a way around this jurisdictional defect by interpreting the “notice” to have been substantial or sufficient because the defendant knew about the incident or because there were internal reporting procedures that had been put into place regarding the incident. Other courts hold that the plaintiff “substantially complied” with the provision.
The real heart of the debate that arose from the Pollard case
is whether the transportation authority had to show prejudice by a failure of the plaintiff to provide the proper notice. There are a host of other underlying issues being tossed about in this case because the 60-day notice provision at issue is the subject of several other applications for leave to appeal and because of dissatisfaction with the interpretation of another statutory notice provision in a statute allowing suits against the government for defective highways, but the case is more or less centered around whether the notice should be “strict” or merely “substantial” and whether or not and to what extent the defendant has to show “prejudice” by a lack of strict compliance with the notice provision.
However, in my judgment, based on the argument regarding jurisdiction, if a trial court never had subject-matter jurisdiction to consider the merits of the claim because the plaintiff failed to do what was necessary according to the Legislature (the representative of the sovereign) to hail the governmental entity into the trial court in the first place, i.e., the Legislature never “waived” the defendant’s immunity and therefore the Judiciary did not have the right or authority to consider the “merits” of the claim, then the “prejudice” analysis is irrelevant. A court either does, or does not have subject-matter jurisdiction, period. It is an interesting issue. We will see what the Court decides.