Burdette v. State

• Decision Date: 07 April 1988
• Docket Number: Docket No. 97150
• Citation: 421 N.W.2d 185,166 Mich.App. 406
• Parties: Nathaniel BURDETTE and John C. Smith, Plaintiffs-Appellees, v. STATE of Michigan, Defendant-Appellant. 166 Mich.App. 406, 421 N.W.2d 185
• Court: Court of Appeal of Michigan — District of US

Page 185

421 N.W.2d 185

Nathaniel BURDETTE and John C. Smith, Plaintiffs-Appellees, v. STATE of Michigan, Defendant-Appellant.

Docket No. 97150.

166 Mich.App. 406, 421 N.W.2d 185

Court of Appeals of Michigan.

Submitted Nov. 18, 1987.

Decided Feb. 16, 1988.

Released for Publication April 7, 1988.

[166 MICHAPP 407] Geoffrey A.D. Smereck, Detroit, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas J. Emery and Sheldon A. Silver, Asst. Attys. Gen., Lansing, for defendant-appellant.

Before KELLY, P.J., and McDONALD and PAYANT, ^* JJ.

KELLY, Presiding Judge.

Plaintiffs appeal the November 18, 1986, order of the Court of Claims which granted the State of Michigan's motion for summary disposition. We reverse and remand.

Plaintiffs were the owners of real property located in the City of Detroit. Defendant seized the property pursuant to the General Property Tax Act, M.C.L. Sec. 211.1 et seq.; M.S.A. Sec. 7.1 et seq., for nonpayment of property taxes. The property was then sold to the City of Detroit at a tax sale for one dollar.

Subsequently, plaintiffs brought a multiple count claim against defendant in the Court of Claims. This action included a claim of a due process violation. Plaintiffs alleged that defendant seized their property under color of law without first notifying plaintiffs of the proceedings against them, that this constituted a violation of plaintiffs' constitutional right to due process and that as a result plaintiffs incurred substantial damages.

Defendant moved for summary disposition on the basis that governmental immunity barred plaintiffs' claim. It was undisputed for purposes of [166 MICHAPP 408] the motion that plaintiffs had not received any notice of any tax jeopary or proceedings initiated by defendant. Defendant argued that failure to notify plaintiffs of the closing and tax sale was mere negligence in the performance of a governmental function and that, on the basis of the holding in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), defendant was immune from liability. The Court of Claims agreed with defendant and granted defendant's motion.

Article I, Sec. 17 of the 1963 Michigan Constitution provides that the state may not deprive a person of property without due process of law. Constitutional due process guarantees prohibit the state from taking property for nonpayment of taxes without proper notice and opportunity for a hearing. Dow v. Michigan, 396 Mich. 192, 210, 240 N.W.2d 450 (1976). In a tax sale or foreclosure, due process requires that the state must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and to afford them an opportunity to present their objections. Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Dow, supra, 396 Mich. p. 206, 240 N.W.2d 450.

Governmental immunity is not available in a state court action where it is alleged that the state has violated a right conferred by the Michigan...