Amicus Curiae Brief in Support of 60-Day Statutory Notice Provision for Tort Claims Against Governmental Entities | Pollard v SMART | Carson Tucker – JDSupra

Attached is a link to a recent amicus curiae brief I wrote and filed in the Michigan Supreme Court for the Michigan Defense Trial Counsel regarding the validity and propriety of shortened notice provisions in statutes allowing suits against governmental entities.  In this case, a statutory provision requires written service of notice of a claim against a transportation authority within 60 days of the accident or occurrence.  If the notice is not provided, then the statute bars the cause of action.  No other party raised the issue regarding subject-matter jurisdiction or the lack thereof.

The argument is that since the legislature, as the representative of the “sovereign”, is the only branch of government that can “waive” the sovereign’s immunity from suit, strict compliance with the legislature’s provision actually allowing suit against the governmental entity is required.  Absent such compliance, the trial court in which the claim is asserted simply does not have subject-matter jurisdiction to determine the merits of the claim.  Since this issue may be raised at any time during the proceedings, even on appeal, i.e., sua sponte, I proposed it as an alternative theory for the Court to affirm the Court of Appeals decision reversing the trial court.  Since the plaintiff in the underlying case did not strictly comply with the notice provision, the trial court never had subject-matter jurisdiction over the lawsuit.  Interesting; we’ll see if the Court pays this argument any attention when it issues its order.  My brief is linked below.  Tell me what you think.

(FINAL) MDTC Amicus Brief (Pollard) 1-10-11 (date stamped 1-11-11)

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