Retroactive application of Christie v Wayne State Univ to require compliance with MCL 600.6431 in circuit-court actions; Hudson v Department of Corrs; Flamont v Department of Corrs; Whether the Michigan Department of Corrections (MDOC) waived the Court of Claims Act’s (COCA) notice defense through litigation delay; MCR 2.116(D)(3); Fairley v Department of Corrs; Whether the federal Prison Rape Elimination Act (PREA) preempts MCL 600.6431; Ter Beek v City of Wyoming; Availability of equitable doctrines of laches & unclean hands to excuse noncompliance; Senters v Ottawa Sav Bank, FSB; Elliott-Larsen Civil Rights Act (ELCRA)

Holding that plaintiffs-prisoners’ ELCRA claim against defendant-MDOC was barred because they undisputedly failed to file the notice required by MCL 600.6431, the court affirmed summary disposition for the MDOC. Plaintiffs sued MDOC and a corrections officer in circuit court alleging sex discrimination. Nearly three years later Christie held that COCA notice applies in circuit court, and the MDOC successfully moved to dismiss. On appeal, the court first rejected plaintiffs’ retroactivity argument, explaining that Hudson and Flamont control and “held that Christie applies retroactively to all pending cases[,]” foreclosing relief on this argument. The court next rejected their waiver argument, emphasizing that “‘governmental immunity is not an affirmative defense, but is instead a characteristic of government,’” and that MCL 600.6431 is a “‘precondition to suing the state[.]’” As such, MCR 2.116(D)(3) permits raising immunity “at any time,” and federal waiver-in-litigation cases are inapposite. The court then rejected plaintiffs’ PREA preemption argument, noting the Act contains no express preemption clause, aims to improve corrections practices through funding incentives, and its regulations expressly preserve statute-of-limitations defenses. Under Ter Beek there is no “‘direct and positive conflict[.]’” Turning to their equity arguments, the court explained that where “‘a statute is applicable to the circumstances and dictates the requirements for relief, equity will not interfere,[]’” and plaintiffs showed neither the “proper time” element for laches nor bad faith for unclean hands. As the Supreme Court noted in Christie, MCL 600.6431 “sets forth a general rule that a party must follow, regardless of forum, if that party is to overcome immunity and bring the state before a court,” and plaintiffs did not comply. Affirmed.