Opinion
361451
07-21-2022
Michigan Immigrant Rights Center v. Governor
LC No. 21-000208-MZ
Stephen L. Borrello Presiding Judge Michael J. Kelly Amy Ronayne Krause Judges
ORDER
The motion for leave to file a reply to the answer to the motion to dismiss is GRANTED.
The motion to dismiss the appeal for lack of jurisdiction is also GRANTED because the April 28, 2022 order appealed from is not a final order appealable of right. MCR 7.202(6)(a); MCR 7.203(A). That order is not a final order under MCR 7.202(6)(a)(v) because it does not deny governmental immunity to appellant. Particularly, the assertion in the relevant motion for summary disposition that appellee failed to comply with the notice requirement of MCL 600.6431(1) does not implicate governmental immunity because it is not predicated on the existence of any statutory provision making compliance with that notice provision a condition for the state consenting to being subject to such a suit or waiving any applicable governmental immunity. Tyrrell v University of Michigan, 335 Mich.App. 254, 257; 966 N.W.2d 219 (2020). Consistent with Tyrrell, this distinguishes the present case from Fairley v Dep't of Corrections, 497 Mich. 290; 871 N.W.2d 129 (2015), which involved claims as to which the Legislature consented to suit under the government tort liability act only if there is compliance with MCL 600.6431. Tyrrell, 335 Mich.App. 263. Further, the grounds asserted in the summary disposition motion based on the alleged failure of the complaint to present an actual controversy, appellee's alleged lack of standing to file this suit, and appellee's alleged failure to exhaust administrative remedies plainly do not involve any assertion of governmental immunity. Dismissal is without prejudice to the filing of a delayed application for leave to appeal under MCR 7.205(A)(4), provided such a filing meets all requirements under the court rules and is not time-barred.