Bolt v. City of Lansing, Docket No. 192944.

• Decision Date: 25 January 2000
• Docket Number: Docket No. 192944.
• Citation: 238 Mich App 37,604 N.W.2d 745
• Parties: Alexander BOLT, Plaintiff, v. CITY OF LANSING, Defendant.
• Court: Court of Appeal of Michigan — District of US

604 N.W.2d 745

238 Mich App 37

Alexander BOLT, Plaintiff, v. CITY OF LANSING, Defendant.

Docket No. 192944.

Court of Appeals of Michigan.

Submitted March 2, 1999, at Lansing.

Decided October 12, 1999, at 9:00 a.m.

Released for Publication January 25, 2000.

Honigman Miller Schwartz and Cohn (by Frederick M. Baker, Jr., Lansing) and Witzel & Zoeller (by Jeffrey Zoeller), East Lansing, for the plaintiff.

James D. Smiertka, City Attorney, Jack C. Jordan, Chief Deputy City Attorney, and Margaret E. Vroman, Assistant City Attorney, Lansing, for the defendant.

Before: SAAD, P.J., and HOOD and MARKMAN, JJ.

ON REMAND

SAAD, P.J.

We decide this case on remand from our Supreme Court. Previously, we held that a storm water service charge the city of Lansing imposed on certain property owners was not a tax subject to the requirements of the Headlee Amendment,¹ but rather a user fee. Bolt v. Lansing, 221 Mich.App. 79, 561 N.W.2d 423 (1997). Our Supreme Court reversed and held that the service charge was, in fact, a tax, and that Lansing Ordinance No. 925 was therefore unconstitutional under the Headlee Amendment. 459 Mich. 152, 587 N.W.2d 264 (1998). We now consider further issues as required by the Supreme Court's remand.

I. NATURE OF THE CASE

When plaintiff filed this Headlee suit on March 4, 1996, he did not seek monetary relief or ask this Court to order a refund of all taxes already paid by other taxpayers. Nor did plaintiff ask to represent other parties. After plaintiff lost his suit in this Court, and while appealing his case to the Michigan Supreme Court, he did not seek to amend his complaint to request damages or to represent others. Only after plaintiff prevailed in the Supreme Court, on December 28, 1998, did he first ask for damages on behalf of other taxpayers. Accordingly, we must respond to his belated request for refunds for others.

If plaintiff desired his lawsuit to achieve not only declarative relief invalidating the Lansing storm water service charge, but also monetary relief for those taxpayers who, unlike plaintiff, had already paid the tax, he could have easily structured his lawsuit to attain these ends. Plaintiff could have requested the court, under our joinder rules, to add as party plaintiff a taxpayer who had paid the charge. MCR 2.206. This taxpayer could have sought to act as a class representative to seek refunds or damages for the class of taxpayers who had paid the charge. MCR 3.501. Plaintiff failed to take any of these fundamental measures, though they are nothing more than standard procedures for obtaining relief for a large class of allegedly injured parties. Plaintiff claims, and the dissent agrees, that requiring plaintiff to follow normal rules of court that everyone else must follow in every other type of action would be onerous and would undermine Headlee.² We not only disagree with the dissent, we believe adopting this view would set dangerous precedent.

Instead of utilizing available procedures for obtaining relief for a class of persons, plaintiff waited more than two and a half years, after two appellate courts acted on this litigation, to assert for the first time that he wishes to represent others and seek damages, not merely injunctive relief. Were we to accept plaintiff's argument, any litigant who sought neither damages nor representative status could wait until after he prevailed in his action to ask for additional relief for additional parties. This is not how our system works. If a plaintiff wants to represent others, he must ask the court permission to do so; if a plaintiff wants a certain type of relief, he must say so in his pleadings.

Having failed to pursue this action as he should have, plaintiff now says, and the dissent agrees, that if we refuse his postvictory request for damages for others then we gut Headlee. This argument is akin to a complaint that a court is "unsympathetic" if it rejects an action brought after the expiration of the statute of limitations. It is plaintiff's failure to prosecute his case effectively that leads to the result here, nothing more. It is not our decision here that precludes damages for others, but plaintiff's failure to follow the requirement of the Michigan Court Rules to ask for damages and to sue on behalf of others.

II. FACTS AND PROCEEDINGS

The Supreme Court's decision sets forth the facts of this case in detail. 459 Mich. at 155-158, 587 N.W.2d 264. Briefly stated, a portion of the city of Lansing's wastewater disposal system consists of combined sanitary and storm sewers. During periods of heavy rainfall the system often overflows and discharges storm water and untreated or partially treated sewage into the Grand River and the Red Cedar River. Federal law requires that the overflow be controlled. The city estimated that the cost of separating the combined sewers would be $176 million over approximately thirty years. In 1995, the Lansing City Council adopted Ordinance 925, which provided for the creation of a storm water enterprise fund to defray the costs of improvements to the system. The ordinance provided that the improvement program would be financed by the imposition of an annual storm water service charge on each parcel of real property in the city. The storm water service charge, popularly known as the "rain tax," was to be calculated pursuant to a formula that attempted to estimate the rain runoff from each parcel of property.

The city began billing property owners in 1995 and established March 15, 1996, as the due date for payment of the fee. Plaintiff was billed $59.83 for his parcel of property. On March 4, 1996, plaintiff filed an original action in this Court pursuant to Const. 1963, art. 9, § 32, which provides in pertinent part that "[a]ny taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article...." Plaintiff sought a declaratory judgment that the storm water service charge was a tax subject to the limitations of the Headlee Amendment, in particular the requirements for voter approval of a new tax set forth in Const. 1963, art. 9, §§ 25 and 31. Significantly for purposes of our analysis, plaintiff sought neither class action certification on behalf of all affected taxpayers nor monetary relief in the form of tax refunds. Indeed, plaintiff did not seek to represent anyone other than himself, nor did he ask for any relief other than declaratory or injunctive relief.

In a two-to-one decision, this Court held that the storm water service charge did not violate the Headlee Amendment because it constituted a fee rather than a tax. 221 Mich.App. 79, 561 N.W.2d 423. Our Supreme Court reversed in a four-to-three decision, holding that the storm water service charge was a tax, and not a user fee, because it lacked the necessary characteristics of a user fee. 459 Mich. at 161-169, 587 N.W.2d 264.

Our Supreme Court remanded the matter "for further proceedings consistent with this opinion." Id., at 170, 587 N.W.2d 264. On remand, we directed the parties to brief the following issues:

(a) the retroactivity, if any, of the application of the Supreme Court's opinion and order of December 28, 1998;

(b) the scope of available relief, including the entitlement of any persons, whether or not party to this suit, to the refund of previously paid "rain taxes"; and

(c) the amount of attorney's fees to be awarded plaintiff in connection with this litigation pursuant to M.C.L. § 600.308a; MSA 27A.308a [sic—MSA 27A.308(1)].

Plaintiff and defendant filed briefs, and oral argument was heard. Amici curiae briefs were invited; no such briefs were filed.

III. ANALYSIS

A. Retroactivity of Supreme Court's Opinion and Order

Plaintiff contends that the Supreme Court's decision should be given retroactive effect. We disagree.

Generally, a judicial decision is to be given complete retroactive effect. Syntex Laboratories v. Dep't of Treasury, 233 Mich.App. 286, 292, 590 N.W.2d 612 (1998). However, as our Supreme Court recognized in Lindsey v. Harper Hosp., 455 Mich. 56, 68, 564 N.W.2d 861 (1997), particular circumstances may warrant only prospective application:

[W]here injustice might result from full retroactivity, this Court has adopted a more flexible approach, giving holdings limited retroactive or prospective effect. This flexibility is intended to accomplish the "maximum of justice" under varied circumstances. Tebo v. Havlik, 418 Mich. 350, 360, 343 N.W.2d 181 (1984), citing Williams v. Detroit, 364 Mich. 231, 265-266, 111 N.W.2d 1 (1961).

A key consideration under Lindsey in deciding if a decision should be given prospective or retrospective application is: Did the judicial decision announce a new and unexpected rule of law, or did it merely clarify, extend, or interpret existing law? A decision should be applied prospectively if the decision overrules settled precedent or decides an issue of first impression "`"whose resolution was not clearly foreshadowed."'" Lindsey, supra, at 68, 564 N.W.2d 861 quoting People v. Phillips, 416 Mich. 63, 68, 330 N.W.2d 366 (1982), which quoted Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Of course, a decision regarding an issue of first impression does not necessarily require prospective application. If the decision merely provides a clarified legal interpretation without announcing a new rule of law or a change in existing law, the decision should be retroactively applied. Lindsey, supra, at 68-69, 564 N.W.2d 861 citing Jahner v. Dep't of Corrections, 197 Mich.App. 111, 114, 495 N.W.2d 168 (1992).

Here, the Supreme Court's decision announced a new and unanticipated rule of law concerning a significant public issue of first impression, i.e., whether a charge assessed to property owners to fund a federally mandated project is a user fee, or a tax subject to the Headlee Amendment requirements.³ The Supreme Court's...