ELBA TOWNSHIP v GRATIOT COUNTY DRAIN COMMISSIONER
Docket No. 144166
Supreme Court of Michigan
Argued January 9, 2013. Decided April 9, 2013.
493 MICH 265
The remedy for a failure to comply with the requirements of the Drain Code is certiorari review. Courts may exercise equitable jurisdiction over disputes involving a failure to follow the requirements of the Drain Code only if the failure is so egregious that it implicates constitutional concerns.
- A party aggrieved by any part of the proceedings in establishing any drain and levying taxes for the drain may seek certiorari review under
MCL 280.161 . A writ of certiorari (which under MCR 3.302(c) has been replaced by the superintending control order) for any error occurring before or in the final order of determination must be issued within 10 days after a copy of the final order is filed in the office of the drain commissioner, and for any error occurring after the final order of determination, within 10 days after the day of review, or if an appeal has been taken, within 10 days after the filing of the report of the board of review. UnderMCL 280.161 , if no certiorari is brought within the time prescribed by statute, the drain will be deemed to have been legally established, and the taxes for the drain legally levied, and the legality of the drain and the taxes may not thereafter be questioned in any suit at law or equity. Nevertheless, Michigan courts have historically been permitted to exercise equitable jurisdiction when a plaintiff alleges a constitutional infirmity in the proceedings surrounding a drainage project. A failure to follow the requirements of the Drain Code will not warrant the exercise of equitable jurisdiction unless the failure is so egregious that it implicates constitutional concerns, which will almost always involve the deprivation of property without due process of law. The remedy for failure to comply with the technical requirements of the Drain Code is certiorari review, and any error in this case concerning the signature requirements for the petition was amenable to correction on certiorari review. Accordingly, certiorari was the exclusive avenue of review for that claim, and both lower courts erred by reaching the merits of the signature-requirement issue. - True questions of due process may be heard in equity because they implicate the constitutional exception to
MCL 280.161 . To comport with due process, notice, when required, must be 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. In this case, while it was within the lower courts’ equitable jurisdiction to address thenotice issue, due process did not require that any notice be given regarding the meeting of the board of determination because the meeting did not pertain to deprivation of life, liberty, or property. Rather, it pertained to the propriety of the drainage project under the Drain Code, which requires that the project be necessary and conducive to public health, convenience, or welfare. Property owners who might be assessed for a drainage project are not constitutionally entitled to notice regarding proceedings to determine the necessity and conduciveness of a drainage project; they are constitutionally entitled, however, to notice regarding assessment proceedings for the drainage project. Plaintiffs thus were entitled to notice that the subsequent day of review concerning apportionment of benefits of the project would be held, and they received that notice.
Court of Appeals’ judgment reversed; trial court order granting summary disposition in favor of defendant reinstated.
Justice VIVIANO took no part in the decision of this case.
1. DRAINS -- DRAIN CODE -- VIOLATIONS -- CERTIORARI REVIEW -- EQUITABLE REMEDIES.
The remedy for failure to comply with the technical requirements of the Drain Code is certiorari review; a failure to follow the requirements of the Drain Code will not warrant the exercise of equitable jurisdiction unless the failure is so egregious that it implicates constitutional concerns (
2. DRAINS -- DRAINAGE PROJECTS -- DUE PROCESS.
After a petition for maintenance or improvement of a drain or the consolidation of drainage districts is submitted, the county drain commissioner may appoint a board of determination to determine whether the maintenance or improvement or the consolidation is necessary and conducive to public health, convenience, or welfare; property owners who might be assessed for a drainage project are not constitutionally entitled to notice regarding a hearing on the necessity and conduciveness of the drainage project; they are constitutionally entitled, however, to notice regarding assessment proceedings for the drainage project (
Smith Bovill, P.C. (by David B. Meyer and Elian E. H. Fichtner), for Elba Township, David L. Osborn, Mark Crumbaugh, Cloyd Cordray, and Rita Cordray.
Amici Curiae:
The Hubbard Law Firm, P.C. (by Michael G. Woodworth, Andria M. Ditschman, and N. Banu Colak), for the Michigan Association of County Drain Commissioners.
Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C. (by John K. Lohrstorfer), for the Michigan Townships Association.
MARKMAN, J. The issues presented here are (1) whether the lower courts properly exercised equitable jurisdiction with regard to this case and, if so, (2) whether the Drain Code requires 5 or 50 signatures for a drainage-district consolidation petition, and (3) whether the notice given regarding a drainage “board of determination” hearing satisfied the constitutional requirements of due process. We conclude that the lower courts improperly exercised equitable jurisdiction over the signature-requirement question but properly exercised such jurisdiction over the question of notice. The former question is purely statutory and, as such, there were no grounds on which the lower courts could properly exercise equitable jurisdiction. Though the exercise of equitable jurisdiction over the latter question was proper, we conclude that constitutional due process did not entitle plaintiffs to receive notice of the “board of determination” hearing. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court‘s order granting summary disposition for defendant.
The first drain laws were enacted before Michigan became a state. See 2 Territorial Laws, Act of March 30, 1827, § 19, p 325. Amended frequently during the nineteenth and early twentieth centuries, our drain laws have historically served the public purposes of promoting the productive use of the state‘s land resources and combatting the spread of water- and mosquito-borne diseases, such as cholera and malaria. See 1846 RS, ch 131, § 1 (stating that before a ditch may be constructed through an individual‘s land against his will, the township board must inquire whether the “marsh, swamp or other lands [to be drained by the ditch] are a source of disease to the inhabitants, and whether the public health will be promoted by draining the same“); Kaplowitz & Popp, Occupying the same wetland: Michigan‘s Drain Code and the federal Clean Water Act, 77 U Det Mercy L R 779, 781-785 (2000). In light of the importance of these functions, those governmental officials charged at various stages of our state‘s history with overseeing the construction and maintenance of drains have been accorded fairly sweeping powers subject only to limited judicial review. The present Drain Code (the Code), based in large part on these early statutes, retains these characteristics.
Under the Code, a “drain” is essentially any watercourse (whether natural or artificial, above or below ground) and the structures or mechanical equipment used to control the flow of that watercourse (excluding certain power-generating dams and the flowage rights used in connection therewith).
When an existing drain needs maintenance or improvement, property owners “whose lands shall be liable to an assessment for benefits of such work” may petition for the work to be done.
If the “board of determination” (the Board) makes the requisite findings of necessity and conduciveness, then, in the case of a consolidation of drainage districts, an order of consolidation is given to the county drain commissioner, who files the order and gives the new consolidated district a name or number.
Once this apportionment process is complete, each person who owns property within the district to be
[a] writ of certiorari for any error occurring before or in the final order of determination shall be issued within 10 days after a copy of such final order is filed in the office of the drain commissioner..., and for any error occurring after such final order of determination, within 10 days after the day of review, or if an appeal has been taken within 10 days after the filing of the report of the board of review. [
MCL 280.161 .]
No other avenue of review is contemplated by the statute. “If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and the taxes therefor legally levied, and the legality of said drain and the taxes therefor shall not thereafter be questioned in any suit at law or equity[.]” Id. But by long-established precedent, discussed more thoroughly later in this opinion, aggrieved parties nevertheless have been permitted to
II. FACTS AND HISTORY
The No. 181-0 drain is a major, established drain located in Gratiot County. It is fed by dozens of established tributary drains, each of which lies within its own separately established drainage district. Each of these tributary-drain drainage districts in turn lies within the boundaries of the separately established No. 181-0 drain drainage district. This appeal involves a challenge to maintenance and improvements on the No. 181-0 drain and several of its tributaries, along with the consolidation of all the tributary-drain drainage districts and the No. 181-0 drain drainage district into a single new drainage district.
In March 2009, Dennis Kellogg filed with defendant, the Gratiot County Drain Commissioner (the Commissioner), a petition signed by five property owners from North Star Township. The Kellogg petition sought the consolidation, maintenance, or improvement of the “#181-0 Drain and all established tributary drains located and established in the Townships of Northstar, Washington & Elba, in the County of Gratiot, State of Michigan.” Prior to receiving the Kellogg petition, the Commissioner had received two petitions for consolidation, maintenance, or improvement of two drains that are tributaries to the No. 181-0 drain. A petition for consolidation, maintenance, or improvement of yet another tributary drain to the No. 181-0 drain was received after the Kellogg petition. In response to these petitions, and with the advice of a consultant hired to study the situation, the Commissioner determined that the best course of action was to undertake a major maintenance and improvement project involving
All municipalities located within the No. 181-0 drain drainage district -- including plaintiff Elba Township -- were notified of the date, time, and place of the hearing. Additionally, a notice was sent to all the individual property owners and published in the Gratiot County Herald. It stated:
Notice Is Hereby Given to you as a person liable for an assessment that the Board of Determination... will meet on Tuesday, May 4, 2010 at 10:00 A.M., o‘clock in the forenoon, North Star Township Hall located at 2840 E. Buchanan Road, North Star Township, Michigan to hear all interested persons and evidence and to determine whether the drain in Drainage District No. 181-106 Wolf & Bear known as the #181-10 Wolf & Bear Drain, as prayed for in the Petition for consolidating, cleaning out, relocating, widening, deepening, straightening, tiling, extending or relocating along a highway, and all established
tributary drains, located and established in the Township(s) of Elba, Sections 18 & 19, North Star Sections 25, 26, 27, 28, 29, 32 and 36, Washington, Sections 1, 12, 23 and 24, County of Gratiot, State of Michigan.7 Petition further shows that... said consolidating, cleaning out, relocating, widening, deepening, straightening, tiling, extending or relocating along a highway of the drains is necessary and conducive to the public health and welfare of Elba, North Star and Washington Township(s). Dated March 23, 2009... and for the protection of the public health of the following: Elba, North Star and Washington Township(s).
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You Are Further Notified, that persons aggrieved by the decisions of the Board of Determination may seek judicial review in the Circuit Court for the County of Gratiot within ten (10) days of the determination. [Emphasis altered.]
At the meeting, the Board voted 2-1 to approve the project as necessary and conducive to public health, convenience, or welfare. Following the meeting, the Board prepared and filed an “ORDER OF NECESSITY” with the Commissioner‘s office. The order listed the “#181-10 drain and all established tributary drains, located and established in the township(s) of Elba, sections 18 & 19, North Star sections 25, 26, 27, 28, 29, 32 and 36, Washington, sections 1, 12, 23 and 24, County of Gratiot, State of Michigan....”
The Commissioner filed a final order of determination for the project on December 22, 2010.8 On Janu-
The present lawsuit was commenced after the initial Board proceedings but before the Commissioner filed the final order of determination. On November 8, 2010, Elba Township (Elba) filed a complaint against the Commissioner in the Gratiot Circuit Court. Elba alleged that the consolidation violated the Drain Code because the petition for the action had been signed by only 5 property owners, rather than the 50 that Elba contended the Code required. Elba also asserted that the notice of the May 4, 2010 Board hearing was defective and therefore did not comport with due process. The Commissioner moved for summary disposition. Then, David Osborn, Mark Crumbaugh, Cloyd Cordray, and Rita Cordray (collectively, the Osborn plaintiffs) moved to intervene as of right.9 These individual property owners filed a complaint alleging that the notice
The Court of Appeals affirmed the trial court‘s exercise of jurisdiction but reversed on the merits. It held that a proper reading of the Drain Code required 50 signatures for a consolidation petition and that the information contained in the notice of the May 4, 2010 hearing was misleading and thus violative of due process. Though the Drain Code severely circumscribes the avenues of relief available to plaintiffs, the Court of Appeals held that the signature deficiency allowed it to exercise equitable jurisdiction because the failure to secure the needed signatures meant that there was an “entire lack of jurisdiction” on the part of the Commissioner to undertake the project. Elba Twp v Gratiot Co Drain Comm‘r, 294 Mich App 310, 341; 812 NW2d 771 (2011). The Commissioner applied for leave to appeal here. We granted leave and heard oral argument. Elba Twp v Gratiot Co Drain Comm‘r, 491 Mich 924 (2012).
III. STANDARD OF REVIEW
We review de novo a trial court‘s decision to grant or deny summary disposition. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). Whether due process has been afforded is a constitutional issue that is reviewed de novo. People v Wilder, 485 Mich 35, 40;
IV. ANALYSIS
A. PETITION SIGNATURES
Plaintiffs first contend that they are entitled to relief because the Kellogg petition, which served as the basis for the “board of determination” meeting at which the maintenance, improvement, and consolidation project was authorized, was signed by only 5 property owners, not the 50 that plaintiffs say are mandated by the Drain Code. There are three sections of the Drain Code directly relevant to this issue. The first,
When a drain or portion thereof... needs cleaning out, relocating, widening, deepening, straightening, tiling, extending, or relocating along a highway, or requires structures or mechanical devices that will properly purify or improve the flow of the drain or pumping equipment necessary to assist or relieve the flow of the drain, or needs supplementing by the construction of 1 or more relief drains which may consist of new drains or extensions, enlargements, or connections to existing drains, or needs 1 or more branches added thereto, any 5 or at least 50% of the
freeholders if there are less than 5 freeholders whose lands shall be liable to an assessment for benefits of such work, may make petition in writing to the commissioner setting forth the necessity of the proposed work.... [
MCL 280.191 (emphasis added).]
Absent from
Two or more drainage districts located... in the same drainage basin or in adjoining basins, may consolidate and organize as a single drainage district upon the filing of a petition for consolidation with the drain commissioner of the county setting forth the reason for the proposed consolidation.... The petition shall be signed by at least 50 property owners within the proposed consolidated drainage district. If in the proposed consolidated drainage district there are less than 100 property owners, the petition shall be signed by at least 50% of the property owners in the proposed consolidated drainage district. [
MCL 280.441(1) (emphasis added).]
The Code thus provides distinct signature requirements for drain maintenance and improvement on one hand and drainage-district consolidation on the other. But
In any petition filed under this chapter it shall not be necessary for the petitioners to describe said drain other than by its name or to describe its commencement, general route and terminus. For any work necessary to be done in cleaning out, widening, deepening, straightening, consolidating, extending, relocating, tiling or relocating along a highway, or for providing structures or mechanical devices that will properly purify or improve the flow of the drain or pumping equipment necessary to assist or relieve the flow of the drain or needs supplementing by the construction of
1 or more relief drains which may consist of new drains or extensions, enlargements or connections to existing drains, or needs 1 or more branches added thereto, and for any and all such proceedings, only 1 petition and proceeding shall be necessary. [Emphasis added.]
The trial court concluded that
Both lower courts, in our judgment, erred by reaching the merits of this issue. As previously stated,
The Constitution does not require the petition to be signed by five property owners liable to assessments for benefits. That requirement is purely statutory. The legislature might have dispensed with it altogether. It therefore possessed ample constitutional authority to declare how objections to its non-observance should be made. It had authority to declare that objections not so raised should be disregarded. It exercised that authority by the statute under consideration. That statute is therefore constitutional in its application to this case and it prevents complainants maintaining this suit. [Id. at 273.]
We relied heavily on Clarence Twp in Stellwagen v Dingman, 229 Mich 159, 161-162; 200 NW 983 (1924), in which we held that the alleged failure of a petition to “correctly stat[e] the purpose for which the cleaning out
The slightly earlier case of Strack v Miller, 134 Mich 311; 96 NW 452 (1903), is to the same effect. In Strack, the plaintiff sought to enjoin the construction of a new drain on the grounds of insufficient petition signatures. The relevant statute, it was contended, required that 5 of the 10 signatories to the petition requesting the work own land that would be liable for an assessment of benefits, but only 4 of the 10 signatories to the petition at issue fit that description. We held that such a claim was insufficient “to call for the interposition of a court of equity.” Id. at 313. Rather, the plaintiffs’ proper course would have been to seek certiorari review under the statute. The certiorari statute, we said, offers
an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity. If the complainant had shown to the probate court that the application [to construct the drain] was fatally defective, the proceeding could have then been ended. The same result could have been reached before a board of review. This could have been accomplished without so much delay and expense as is involved in a chancery proceeding. [Id.]
We are presented here with a situation virtually identical to Clarence Twp and Strack. Per Strack, plaintiffs could easily have brought their signature complaint by way of certiorari review, at which time, had they been able to show the court that the petition “was fatally defective, the proceeding could have then been ended” and their grievance would have been satisfactorily addressed. Id. Their claim may not now be reviewed in equity because whether a consolidation petition must be signed by 5 property owners under
Upon concluding that
It simply cannot be that every failure by the Commissioner or others to comply with the detailed requirements of the Drain Code deprives the Commissioner of jurisdiction in such a way as to permit invocation of the equitable jurisdiction of the judiciary. If this were the case, the exclusivity of certiorari review as set forth in
At this point, the objection might be raised that, as long as property rights are imperiled by the action, every failure to follow the letter of the Drain Code amounts to a constitutional violation because it constitutes a denial of due process of law. But it must be remembered that the Drain Code, in fact, provides a remedy for failure to comply with its technical requirements -- certiorari review. The availability of this remedy precludes a finding in circumstances such as a failure to meet a statutory signature requirement that deprivation of due process has occurred. Cf. Patrick v Shiawassee Co Drain Comm‘r, 342 Mich 257, 263; 69 NW2d 727 (1955) (concluding that when the drain commissioner extended a project beyond the scope
In this case, the Court of Appeals reasoned that the exercise of equitable jurisdiction was appropriate in part because the signature error alleged here was not amenable to correction on certiorari review. We disagree. If there was an error, it was in fact easily correctable through certiorari review.
B. NOTICE
Plaintiffs also contend that the notice issued regarding the May 4, 2010 Board meeting was defective and
Unlike the signature issue, true questions of due process may be heard in equity because they implicate the constitutional exception to
To comport with due process, notice, when required, must be “reasonably calculated, under all the circum-
Under Michigan‘s Constitution, “[n]o person shall... be deprived of life, liberty or property, without due process of law.”
Chicago, M, St P, & P R Co v Risty, 276 US 567; 48 S Ct 396; 72 L Ed 703 (1928), bears a striking resemblance to the present case. In Risty, the plaintiffs, receivers of a
Due process of law does not require notice of a proceeding to determine merely whether an improvement shall be constructed without at the same time establishing the boundaries of the assessment district. It is enough if land owners who may be assessed are later afforded a hearing upon the assessment itself. [Id. at 574.]17
This understanding of Risty is supported by prior precedent of both this Court and the United States Supreme Court. In Voigt v Detroit, 184 US 115; 22 S Ct 337; 46 L Ed 459 (1902), the plaintiff, a Michigander challenging an assessment of taxes against his property to pay for the construction of a road, contended that the Fourteenth Amendment had been violated because he was not given notice of, or an opportunity to contest, the setting of the boundaries of the district within which property owners would be assessed to pay for the road because of the benefit they received from the project. He was, however, given the opportunity to contest the individual assessment ultimately levied against his property. This Court affirmed the trial court‘s dismissal of the complaint. The United States Supreme Court in turn affirmed our decision, holding, with regard to the Michigan statute that created this system of assessment, that “[i]t would be difficult to find any provision fairer than this in purpose and which so essentially satisfies every requirement of due process of law.” Id. at 122.
Therefore, plaintiffs were not constitutionally entitled to notice regarding the hearing on the necessity and conduciveness of the drainage project.19 They were
It might be argued upon the same lines [as those advanced by the plaintiffs] that, whenever the city contemplated a public improvement of any description, personal notice should be given to the taxpayers, since all such are interested in such improvements and are liable to have their taxes increased thereby. It might easily happen that a whole district or ward of a particular city would be incidentally benefited by a proposed improvement, as, for instance, a public school, yet to require personal notice to be given to all the taxpayers of such ward would be an intolerable burden. Hence it has been held by this court that it is only those whose property is proposed to be taken for a public improvement that due process of law requires shall have prior notice. [Id. at 438.]
V. CONCLUSION
The lower courts improperly exercised equitable jurisdiction over the signature-requirement issue given that the matter did not arise from a violation of the Constitution. The lack of jurisdiction that will warrant relief in equity must arise from a violation of the Constitution. Because the exercise of equitable jurisdiction over the signature-requirement issue was improper, we do not reach the issue whether the Drain Code requires 5 or 50 signatures for a drainage-district consolidation petition. Finally, though it was within the lower courts’ equitable jurisdiction to address the notice issue, we conclude that constitutional due process did not entitle plaintiffs to receive notice of the “board of determination” hearing. Though constitutional due process entitles affected property owners to notice of
YOUNG, C.J., and CAVANAGH, MARY BETH KELLY, ZAHRA, and MCCORMACK, JJ., concurred with MARKMAN, J.
VIVIANO, J., took no part in the decision of this case.