Sidun v. Wayne County Treasurer

• Decision Date: 02 July 2008
• Docket Number: Calendar No. 1.,Docket No. 131905.
• Citation: 751 N.W.2d 453,481 Mich. 503
• Parties: Stella SIDUN, Plaintiff-Appellant, v. WAYNE COUNTY TREASURER, Defendant-Appellee.
• Court: Michigan Supreme Court

751 N.W.2d 453

481 Mich. 503

Stella SIDUN, Plaintiff-Appellant, v. WAYNE COUNTY TREASURER, Defendant-Appellee.

Docket No. 131905.

Calendar No. 1.

Supreme Court of Michigan.

Argued March 5, 2008.

Decided July 2, 2008.

John T. Hermann, Berkley and Public Citizen Litigation Group (by Deepak Gupta and Michael Kirkpatrick), Washington, DC, for the plaintiff.

Plunkett Cooney (by Mary Massaron Ross), Edward M. Thomas, Wayne County Corporation Counsel, and Jacob S. Ghannam, Detroit, for the defendant.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Kevin T. Smith, Assistant Attorney General, for the Department of Treasury, amicus curiae.

OPINION

MICHAEL F. CAVANAGH, J.

We granted leave to appeal in this case to determine whether defendant Wayne County Treasurer's efforts to provide notice of foreclosure proceedings to plaintiff Stella Sidun satisfied due process in light of Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Because the county treasurer failed to employ reasonable follow-up methods to notify plaintiff of the proceedings involving her property, we hold that plaintiff's due-process rights were violated. The Court of Appeals erred by concluding that the county treasurer's efforts met the requirements described by Jones. Therefore, we reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings.

I. STATEMENT OF FACTS AND PROCEEDINGS

Plaintiff's mother, Helen Krist, owned a two-family dwelling at 2691 Commor Street in Hamtramck for several decades. In 1979, Krist executed a quitclaim deed conveying the Hamtramck property to herself and to plaintiff as joint tenants. The deed stated that "HELEN KRIST . . . the address of which is 3233 Stolzenfeld-Warren, MI 48091" quitclaims the property "to HELEN KRIST and STELLA SIDUN, as joint tenants with right of survivorship and not as tenants in common, whose street number and postoffice address is 3233 Stolzenfeld-Warren, MI 48091 and 2681 Dorchester-Birmingham, MI 48008. . . ." The deed was properly recorded with the Wayne County Register of Deeds.

Krist used the Hamtramck residence as rental property, taking primary responsibility for maintaining the property and collecting rent from its tenants. Plaintiff assisted Krist by driving her to the property to collect the rent and writing receipts. The utility bills for the property were sent to Krist's residence in Warren, and plaintiff assisted Krist in paying them as well. Krist developed Alzheimer's disease in the late 1990s. In 1998, Krist moved from her Warren residence to live with plaintiff and her husband in their Birmingham residence. Plaintiff's husband arranged to have the utility bills from the Hamtramck property sent to the Birmingham address. However, the Hamtramck city assessor and the county treasurer were not informed of Krist's new address. The Warren house was sold several months after Krist moved to Birmingham.

Wayne County tax bills are mailed to the address of the taxpayer, as recorded by the local assessor. During the tax years of 1999 to 2003, the county treasurer mailed all tax bills for the Hamtramck property to Krist at the Warren residence, which was consistent with the Hamtramck city assessor's records from that period. Plaintiff was not mentioned in the city assessor's records. Krist and plaintiff failed to pay the county property taxes on the Hamtramck property for the tax years 2000 and 2001, resulting in a tax delinquency of $2,066.45.

In accordance with the General Property Tax Act (GPTA), MCL 211.1 et seq., the county treasurer sent two notices of tax delinquency by first-class mail, address correction requested, to Krist at the Warren address. Notice of tax delinquency was also sent by certified mail, return receipt requested, to Krist at the Warren address; it was returned as undeliverable. After the property was forfeited to the county treasurer, a petition for foreclosure was filed on June 14, 2002. The county treasurer took several additional steps required by MCL 211.78i as part of the foreclosure proceedings. On the basis of the information located on the property's deed, the county treasurer sent notice of the show-cause and foreclosure hearings by certified mail addressed to both Krist and plaintiff at the Warren address on December 18, 2002. The letter was returned as undeliverable. A representative of the county treasurer visited the property and posted notice of the foreclosure petition on the property, as the representative was unable to personally meet with the occupant. The county treasurer also published notification three times in the public-notice section of the Michigan Citizen, a community newspaper. However, notice was never sent to plaintiff's Birmingham residence, which was on the recorded deed.

Krist died on January 1, 2003. A show-cause hearing regarding why the property should not be foreclosed was held on January 14, 2003. The foreclosure hearing was held on February 26, 2003. On March 10, 2003, a judgment of foreclosure was entered against the property and absolute title vested in the county treasurer. The county treasurer sold the property at auction for $52,000 to the owner of Krist's former Warren residence. At the time of the purchase, the property had an appraised value of $85,000. Plaintiff and her husband learned of the sale from a tenant of the property, who contacted them after the new owner attempted to collect rent.

Plaintiff filed suit, alleging that she had been wrongfully deprived of her property without proper notice in violation of the GPTA and the Due Process Clause of the Michigan Constitution. The trial court denied plaintiff's motion for summary disposition and granted summary disposition for the county treasurer, ruling that the attempts to notify plaintiff satisfied due process and the requirements of the GPTA. Plaintiff appealed to the Court of Appeals, which, in a split decision, affirmed the trial court's order.¹ Plaintiff appealed to this Court; we vacated the judgment of the Court of Appeals and remanded for reconsideration in light of Jones. 475 Mich. 882, 715 N.W.2d 819 (2006). On remand, the Court of Appeals, again in a split decision, reached the same result, holding that Jones did not compel a different conclusion because the county treasurer's efforts to provide notice were sufficient to satisfy due process, particularly in light of the county's follow-up measure of posting notice on the property.² This Court granted plaintiff's application for leave to appeal. 480 Mich. 864, 737 N.W.2d 757 (2007).

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision regarding a motion for summary disposition. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). This Court also reviews constitutional issues de novo. Harvey v. Michigan, 469 Mich. 1, 6, 664 N.W.2d 767 (2003).

III. CONSTITUTIONAL NOTICE REQUIREMENTS

The Due Process Clause of the Michigan Constitution states: "No person shall be . . . deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. The corresponding provision of the United States Constitution is applicable to Michigan through the Fourteenth Amendment, and provides in part, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law." U.S. Const., Am. V. It is undisputed that plaintiff holds a property interest in the subject property; accordingly, she has a constitutional right to due process of law before the government takes title to the property.

Proceedings that seek to take property from its owner must comport with due process.³ A fundamental requirement of due process in such proceedings is "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Interested parties are "entitled to have the [government] employ such means `as one desirous of actually informing [them] might reasonably adopt' to notify [them] of the pendency of the proceedings." Dow v. Michigan, 396 Mich. 192, 240 N.W.2d 450 (1976), quoting Mullane, supra at 315, 70 S.Ct. 652. That is, the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice. Mullane, supra at 315, 70 S.Ct. 652. However, "[d]ue process does not require that a property owner receive actual notice before the government may take his property." Jones, supra at 226, 126 S.Ct. at 1713. In this case, the county treasurer attempted to notify plaintiff of the foreclosure proceedings, but actual notice was not achieved. Thus, the issue is whether the methods employed by the county treasurer were sufficient to satisfy due-process requirements.⁴

A notification method may be reasonable and constitutional if employing the method is "reasonably certain to inform those affected," or, when circumstances do not reasonably permit such notice, if the method employed is not substantially less likely to provide notice than other customary alternative methods. Mullane, supra at 315, 70 S.Ct. 652. Notably, Mullane recognized that the reasonableness of a particular method could vary, depending on what information the government had. That case concerned a New York law that merely required notice by publication to inform beneficiaries of a common trust fund that the fund was subject to judicial settlement. Id. at 309-310, 70 S.Ct. 652. The Court held that while notice by publication was constitutionally sufficient with regard to beneficiaries whose interests or addresses were unknown, notice by publication was insufficient for beneficiaries whose names and addresses were known by the government. "Where the names and...