Proctor v. Saginaw Cnty. Bd. of Commissioners

340 Mich.App. 1

985 N.W.2d 193

Delores PROCTOR, and all others similarly situated, Plaintiff-Appellant,

v.SAGINAW COUNTY BOARD OF COMMISSIONERS, Timothy M. Novak, Bay County Board of Commissioners, Richard F. Brzezinski, Gratiot County Board of Commissioners, Michelle Thomas, Midland County Board of Commissioners, Cathy Lunsford, Isabella County Board of Commissioners, Steven W. Pickens, Tuscola County Board of Commissioners, Patricia Donovan-Gray, and Shawna S. Walraven, Defendants-Appellees.

Ronald Maynard, and all others similarly situated, Plaintiff-Appellant,

v.County of Benzie, Michelle L. Thompson, County of Manistee, Russell Pomeroy, County of Wexford, Jayne E. Stanton, County of Missaukee, Lori Cox, County of Mason, Elisabeth Frazier, County of Lake, Brenda Kutchinski, County of Osceola, Lori Leudeman, County of Oceana, Mary Lou Phillips, County of Newaygo, Holly Moon, and Andrew Kmetz, Defendants-Appellees.

Stephen Morris and Robin Morris, and all others similarly situated, Plaintiffs-Appellants,

v.County of Montmorency, Jean M. Klein, County of Alpena, Kimberly Ludlow, County of Oscoda, William Kendall, County of Roscommon, Rebecca Ragan, County of Arenac, Dennis Stawowy, County of Clare, Jenny Beemer-Fritzinger, County of Gladwin, Christy Van Tiem, County of Alcona, Cheryl Franks, County of Ogemaw, and Dwight McIntyre, Defendants-Appellees.

Larry Carlson and Mary Jo Carlson, and all others similarly situated, Plaintiffs-Appellants,

v.Bret E. Witkowski, County of Berrien, County of Cass, Hope Anderson, County of Kalamazoo, Mary Balkema, County of St. Joseph, Judith Ratering, County of Van Buren, Trisha Nesbitt, and Karen Makay, Defendants-Appellees.

Joanne Smith, and all others similarly situated, Plaintiff-Appellant,

v.County of Washtenaw, Catherine McClary, County of Hillsdale, Stephenie Kyser, County of Lenawee, Marilyn J. Woods, County of Monroe, and Kay Sisung, Defendants-Appellees.

No. 349557

No. 349633

No. 349636

No. 350394

No. 350406

Court of Appeals of Michigan.

Submitted November 10, 2021, at Detroit.

Decided January 6, 2022, at 9:00 a.m.

Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) and Matthew E. Gronda, Saginaw, for plaintiffs.

Cummings, McClorey, Davis & Acho, PLC (by Allan C. Vander Laan, Grand Rapids, Douglas Curlew, Livonia, and Timothy S. Ferand) for defendants in Docket Nos. 349557, 349633, 349636 (except for Alcona County and Cheryl Franks), 350394 (except for Van Buren County, Trisha Nesbitt, and Karen Makay), and Docket No. 350406 (except for Washtenaw County and Catherine McClary).

Dykema Gossett PLLC, Lansing (by Theodore W. Seitz and Kyle M. Asher ) for defendants Van Buren County, Trisha Nesbitt, Karen Makay, Washtenaw County, and Catherine McClary.

Warner Norcross + Judd LLP, Grand Rapids (by Matthew T. Nelson and Conor B. Dugan ) for defendants Alcona County and Cheryl Franks.

Before: Stephens, P.J., and Letica and Redford, JJ.

Redford, J.

In these consolidated appeals involving the General Property Tax Act (GPTA), MCL 211.1 et seq. , the named plaintiffs¹ appeal as of right from orders in each case granting summary disposition to the respective defendants under MCR 2.116(C)(7) and (8). For each case, we affirm in part, reverse in part, and remand for further proceedings.

I. FACTUAL BACKGROUND

The underlying operative facts in each of these cases are not in dispute. Each named plaintiff failed to pay property taxes on his or her real property and forfeited their properties to their respective county treasurer for the total amount of those unpaid delinquent taxes, interest, penalties, and fees. Their defaults resulted in the county treasurers in the county where their properties were located to initiate tax foreclosures pursuant to MCL 211.78 et seq. The county treasurers foreclosed upon the properties and circuit court judgments of foreclosure were entered. Each plaintiff failed to redeem his or her respective property by the statutory deadline, resulting in the vesting of title to the properties in the respective county treasurers. The county treasurers thereafter sold the properties at auction. In accordance with the GPTA, each county retained the proceeds beyond those needed to satisfy outstanding taxes and associated fees or penalties.² In each case, the named plaintiff or plaintiffs sued the involved county and the involved county's treasurer³ for the deprivation of such monies but also filed a putative class action against several additional counties and their respective treasurers⁴ in an attempt to obtain relief for purported similarly situated persons. In each case, the lower court granted summary disposition to the respective defendants under MCR 2.116(C)(7)⁵ and (8). Later, but before the filing of the briefs in these appeals, our Supreme Court decided Rafaeli, LLC v. Oakland Co. , 505 Mich. 429, 952 N.W.2d 434 (2020), wherein it concluded that a government unit's retention of surplus proceeds after a tax-foreclosure sale amounts to an unconstitutional taking. Later still, in response to Rafaeli , the Michigan Legislature amended the GPTA to provide a limited mechanism for persons to obtain surplus proceeds after a tax-foreclosure sale. These appeals involve, among other issues, a consideration of whether Rafaeli or the amendments of the GPTA apply to plaintiffs’ cases.⁶

II. ANALYSIS

A. QUALIFIED IMMUNITY

Plaintiffs contend that the lower courts erred by concluding that the individual officials sued in their personal capacities were entitled to qualified immunity. We disagree and affirm on this issue.

We review de novo a trial court's decision regarding a motion for summary disposition. Spohn v. Van Dyke Pub. Sch. , 296 Mich.App. 470, 479, 822 N.W.2d 239 (2012). "We review de novo the applicability of government immunity." Plunkett v. Dep't of Transp. , 286 Mich.App. 168, 180, 779 N.W.2d 263 (2009). As stated in Dextrom v. Wexford Co. , 287 Mich.App. 406, 428-429, 789 N.W.2d 211 (2010) :

MCR 2.116(C)(7) provides that a motion for summary disposition may be raised on the ground that a claim is barred because of immunity granted by law. When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate. [Citations omitted.]

The identical complaints in these cases contained claims against the counties and individual government officials for inverse condemnation, taking in violation of the Fifth Amendment of the United States Constitution, unjust enrichment, excessive-fine in violation of the Eighth Amendment of the United States Constitution, and excessive-fine in violation of the state Constitution. Plaintiffs sued the county treasurers in their individual capacities related to their federal constitutional claims. Plaintiffs asserted their state-law claims for unjust enrichment and excessive-fine under the state Constitution against the county treasurers in their "official capacity." The counties alone were sued under the inverse-condemnation claim.⁷

As stated in Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L..Ed.2d 114 (1985) :

As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. [Citation omitted; emphasis added.]

In Mays v. Governor , 323 Mich.App. 1, 89, 916 N.W.2d 227 (2018), aff'd 506 Mich. 157, 954 N.W.2d 139 (2020), this Court similarly explained that official-capacity lawsuits are "nominal only[.]" Plaintiffs admit on appeal that in an official-capacity claim, "the claim is actually against the official's office and thus the government entity itself despite being in the name of an individual."

The question on which plaintiffs focus is whether the claims under the Fifth and Eighth Amendments could be maintained against the individual officials or whether the lower courts could dismiss those claims on qualified-immunity grounds. In relation to those claims, plaintiffs invoked 42 USC 1983. In Harlow v. Fitzgerald , 457 U.S. 800, 817-819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the United Sates Supreme Court stated:

[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an

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