Burdette v. Michigan
421 N.W.2d 185
Mich. Ct. App.
1988
Check Treatment
M. J. Kelly, P.J.

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, MCL 211.1 et seq.; MSA 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 *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 NW2d 641 (1984), defendant was immune from liability. The Court of Claims agreed with defendant and granted defendant’s motion.

Article I, § 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 NW2d 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 Bd of Missions v Adams, 462 US 791, 795; 103 S Ct 2706; 77 L Ed 2d 180 (1983); Dow, supra, p 206.

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 Constitution. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987). Plaintiffs’ claim alleged that defendant violated plaintiffs’ due process rights under Const 1963, art 1, § 17. Plaintiffs have stated a prima facie claim. Under Smith, defendant cannot claim immunity where the plaintiff alleges that defendant has violated its own constitution. Constitutional rights serve to restrict government conduct. These rights would never *409 serve this purpose if the state could use governmental immunity to avoid constitutional restrictions. It was therefore error for the Court of Claims to grant defendant’s motion on the basis of governmental immunity.

Reversed and remanded.