Authored By: David Mollicone and Nicholas North
On December 21, 2022, the Michigan Supreme Court issued its Order concerning proposed amendments to MCR 7.202 and MCR 7.209. The proposed amendments would remove “an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity,” from the definition of a “final judgment” or “final order” in MCR 7.202. If adopted, the amendments would have the effect of eliminating a governmental party’s appeal by right of an interlocutory order denying governmental immunity, as well as the corresponding stay provision in MCR 7.209(E)(7).
As stated by Justice Cavanagh in her concurrence to the Order, “[s]tated broadly, the issue the Court needs to consider is whether, in practical application, these rules have struck the proper balance between protecting taxpayers from the expense of unnecessary litigation and ensuring prompt and efficient resolution of claims against governmental entities that are not barred by governmental immunity.” To aid it in determining whether the amendments should be adopted, the Michigan Supreme Court has requested comments on the proposal on or before April 1, 2023, including those in response to questions raised in Justice Cavanagh’s concurrence.