RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0150p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
DEBORAH HOWARD, FLOSSIE BYRD, BILLIE HICKEY, JEFFREY
│
STEVENSON, and WILLIAM HICKEY, individually and on behalf
│
of all others similarly situated,
│
Plaintiffs-Appellants, │
> No. 21-1261
│
v. │
│
CITY OF DETROIT, MICHIGAN, CITY OF DETROIT, MICHIGAN │
OFFICE OF THE CHIEF FINANCIAL OFFICER, CITY OF DETROIT, │
MICHIGAN OFFICE OF THE ASSESSOR, MICHAEL DUGGAN, in his │
official capacity as Mayor of the City of Detroit, Michigan, │
ALVIN HORHN, in his official capacity as City of Detroit │
Assessor, Wayne County, Michigan, W. HOWARD MORRIS, in │
his official capacity as Commissioner of the State Tax │
Commission, LEONARD D. KUTSCHMAN, in his official │
capacity as Commissioner of the State Tax Commission, and │
DAVID A. BUICK, in his official capacity as Executive Director │
of the State Tax Commission, │
Defendants-Appellees. │
│
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-10382—Nancy G. Edmunds, District Judge.
Argued: December 9, 2021
Decided and Filed: July 11, 2022
Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Samuel E. Schoenburg, GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM
LLP, Chicago, Illinois, for Appellants. James D. Noseda, CITY OF DETROIT CITY LAW
DEPARTMENT, Detroit, Michigan, for City of Detroit Appellees. Theodore W. Seitz,
No. 21-1261 Howard v. City of Detroit, Mich. Page 2
DYKEMA GOSSETT PLLC, Lansing, Michigan, for Appellee Wayne County. Michael S. Hill,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees
Buick, Morris, and Kutschman. ON BRIEF: Samuel E. Schoenburg, Rami N. Fakhouri,
Elizabeth B. Farrington, GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM LLP,
Chicago, Illinois, for Appellants. James D. Noseda, CITY OF DETROIT CITY LAW
DEPARTMENT, Detroit, Michigan, for City of Detroit Appellees. Theodore W. Seitz, Jill M.
Wheaton, Nasseem S. Ramin, DYKEMA GOSSETT PLLC, Lansing, Michigan, for Appellee
Wayne County. Michael S. Hill, Matthew B. Hodges, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees Buick, Morris, and Kutschman.
Sarah Tremont, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Curiae.
GIBBONS, J., delivered the opinion of the court in which NALBANDIAN, J., joined.
BOGGS, J. (pp. 13–16), delivered a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Several Detroit homeowners, on behalf of
themselves and all others similarly situated, sued the City of Detroit, Wayne County, and several
city, county, and state individuals in their official capacities alleging a denial of due process and
other state law violations as a result of the untimely mailing of property tax assessment notices in
2017. The district court granted defendants’ motions to dismiss for lack of subject matter
jurisdiction, finding the Tax Injunction Act (“TIA”) and the principle of comity barred plaintiffs’
action. Because we find the state remedy is uncertain, federal jurisdiction is permitted. We
reverse and remand for further proceedings.
I
To dispute a property tax assessment, Detroit ordinances and Michigan state law outline a
three-step process. First, taxpayers may “make complaint on or before February 15th, either
orally or in writing . . . before the Board of Assessors.” Detroit, Mich., Code of Ordinances
§ 44-4-3(a). Second, “[a]ny person who has previously complained to the Board of Assessors
. . . may appeal to the Board of Review.” Detroit, Mich., Code of Ordinances § 44-4-6(b).
Finally, in order for the Michigan Tax Tribunal to have jurisdiction over an assessment dispute,
“the assessment must be protested before the board of review.” M.C.L. § 205.735a(3). The Tax
No. 21-1261 Howard v. City of Detroit, Mich. Page 3
Tribunal “has exclusive and original jurisdiction” over proceedings related to assessment,
refunds, and redeterminations of property taxes. M.C.L. § 205.731.
On February 14, 2017, Detroit mailed over 260,000 tax assessment notices to Detroit
homeowners. The notices informed homeowners of an “EXTENDED ASSESSORS REVIEW
SCHEDULE” that would conclude on February 18, 2017, just four days later. DE 1-1, Tax
Assessment Notice, Page ID 44. Reflecting local ordinances and state law, the notices stated:
“Protest during the February Assessors Review Period is required to protect your right to appear
before the March Board of Review. Protest at the March Board of Review is necessary to protect
your right to further appeal to the Michigan Tax Tribunal.” Id. The notice reiterated that
homeowners who “believe the Taxable Value, the Assessed Value, the State Equalized Value,
the Property Classification, or the Transfer of Ownership information is incorrect . . . must
appeal during the ASSESSORS REVIEW PERIOD.” Id.
At a City Council meeting on February 14, the same day notices were mailed, a city
official announced: “The Assessors Review process will end this year February the 28th.
Normally it ends on the 15th, but because the review took so long to verify the errors that were
discovered . . . the decision was made to extend it.” DE 1, Compl., Page ID 20.1 Various news
outlets reported the extension and that Detroit had waived the requirement of appearance before
the Board of Assessors so residents could appeal directly to the Board of Review.2 Detroit did
not distribute individualized mailings to homeowners to inform them of the extended review
period or the waiver of the Board of Assessors protest requirement.
1
See also Detroit City Council Evening Community Meeting (Feb. 14, 2017), http://video.detroitmi.gov/
CablecastPublicSite/show/4706?channel=1.
2
See, e.g., CBS Detroit, 10 More Days: Detroit Extends Deadline To Appeal Property Tax
Assessments (Feb. 18, 2017), https://detroit.cbslocal.com/2017/02/18/10-more-days-detroit-extends-deadline-to-
appeal-property-tax-assessments/; Tyler Scott, Detroit Extends Deadline for Property Tax Assessment Appeals,
Michigan Radio NPR (Feb. 17, 2017), https://www.michiganradio.org/post/detroit-extends-deadline-property-tax-
assessment-appeals; Joe Guillen, Detroit Extends Time to Appeal Property Valuation, Detroit Free Press (Feb. 13,
2017), https://www freep.com/story/news/local/michigan/detroit/2017/02/13/detroit-extends-time-appeal-property-
valuation/97850946/. The Detroit Free Press reported, on February 13, 2017, that “the first batch of notices were
mailed Feb. 8.” Guillen, infra. The Detroit appellees state that “the bulk of tax assessment notices” were not mailed
until February 14 and do not base their arguments on whether any notices were mailed earlier. CA6 R. 33, Appellee
Br. (Detroit), at 19. The Michigan appellees and Wayne County also do not base their arguments on earlier-mailed
assessments.
No. 21-1261 Howard v. City of Detroit, Mich. Page 4
Deborah Howard, Flossie Byrd, William and Billie Hickey, and Jeffrey Stevenson, on
behalf of themselves and all others similarly situated (collectively, “plaintiffs” or “appellants”),
filed a class action complaint in the Eastern District of Michigan. They allege the City of
Detroit, the Detroit Offices of the Chief Financial Officer and Assessor, Mayor Michael Duggan,
and Assessor Alvin Horhn (collectively, “Detroit appellees”) violated their due process rights
with the untimely mailings and failure to communicate the extension and waiver. Plaintiffs
assert that because “Michigan’s government, under the auspices of the State Tax Commission
(“STC”), assumed control of Detroit’s flawed property tax assessment process from 2014
through 2017,” State Tax Commissioners W. Howard Morris and Leonard D. Kutschman, and
STC Executive Director David A. Buick (collectively, “Michigan appellees”) are equally
responsible for the violations of plaintiffs’ due process rights. Id. at 2–3. Finally, plaintiffs
argue Wayne County, Michigan, is “complicit in the denial of due process by foreclosing on
delinquent homes where their owners had no opportunity to appeal their assessments” and has
been unjustly enriched. Id. at 7. Plaintiffs seek injunctive, declaratory, and monetary relief
under 42 U.S.C. § 1983 for the alleged denial of due process.
The district court granted defendants’ motions to dismiss under Federal Rule of Civil
Procedure 12(b)(1). The court found it lacked jurisdiction because plaintiffs’ due process claim
was within the scope of the TIA and the state remedy was “plain, speedy and efficient.” DE 33,
Op., Page ID 587. Because the court dismissed plaintiffs’ federal claim, it declined to exercise
supplemental jurisdiction over the remaining state law claims. Plaintiffs timely appealed.
II
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come
in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-
Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack occurs when a party “questions
merely the sufficiency of the pleading.” Id. The district court “takes the allegations in the
complaint as true.” Id. When a party raises “a factual attack on the subject-matter jurisdiction
alleged in the complaint, no presumptive truthfulness applies to the allegations” and “the district
court has wide discretion” to review evidence outside the complaint. Id. Since here the district
court reviewed defendants’ motion to dismiss as a facial attack and made no factual findings, we
No. 21-1261 Howard v. City of Detroit, Mich. Page 5
review the decision de novo. Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.
2012).
III
The TIA prohibits district courts from “enjoin[ing], suspend[ing] or restrain[ing] the
assessment, levy or collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.” 28 U.S.C. § 1341. The TIA “has its roots in
equity practice, in principles of federalism, and in recognition of the imperative need of a State to
administer its own fiscal operations.” Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976). The
principle of comity does not bar jurisdiction where, as here, petitioners do not challenge the
validity of a state tax system. See Fair Assessment in Real Est. Ass’n, Inc. v. McNary, 454 U.S.
100, 116 (1981) (“[T]axpayers are barred by the principles of comity from asserting § 1983
actions against the validity of state tax systems in federal courts.”).
We assume, without deciding, that appellants seek remedies that would enjoin, suspend,
or restrain the collection of taxes. The TIA does not bar federal jurisdiction, however, because
there is no plain, speedy and efficient remedy available in state court. We reverse and remand
for further proceedings.
A
The “‘plain, speedy and efficient’ exception to the [Tax Injunction] Act’s prohibition was
only designed to require that the state remedy satisfy certain procedural criteria.” Rosewell
v. LaSalle Nat’l Bank, 450 U.S. 503, 522 (1981); see also Hedgepeth v. Tennessee, 215 F.3d 608,
615 (6th Cir. 2000) (The “TIA merely requires that the state provide certain minimal procedural
protections against illegal tax collection.”). The state must ensure a “full hearing and judicial
determination of the controversy” during which a petitioner “may raise any and all constitutional
objections to the tax.” Rosewell, 450 U.S. at 513–14 (quoting 81 Cong. Rec. 1416 (1937)). In
order to “be faithful to the congressional intent ‘to limit drastically’ federal-court interference
with state tax systems, [courts] must construe narrowly the ‘plain, speedy and efficient’
exception.” California v. Grace Brethren Church, 457 U.S. 393, 413 (1982); see also Chippewa
Trading Co. v. Cox, 365 F.3d 538, 544 (6th Cir. 2004). “The federal courts will not entertain
No. 21-1261 Howard v. City of Detroit, Mich. Page 6
actions for relief from State or local taxes unless federal rights are protected in no other way.”
King v. Sloane, 545 F.2d 7, 7 (6th Cir. 1976) (per curiam).
At issue is whether the state remedy is “plain.” A state remedy may be “less than ‘plain’”
if the remedy is uncertain. Rosewell, 450 U.S. at 516–17. The Supreme Court has held that
“‘uncertainty’ surrounding a state-court remedy lifts the bar to federal-court jurisdiction.” Id. at
517 (quoting Hillsborough Twp., Somerset Cnty. v. Cromwell, 326 U.S. 620, 625–26 (1946)). If
it is “speculative . . . whether the State affords full protection to the federal rights,” federal
jurisdiction is permitted. Hillsborough, 326 U.S. at 625 (citation omitted); see also Nw. Airlines,
Inc. v. Tenn. State Bd. of Equalization, 11 F.3d 70, 73 (6th Cir. 1993) (“[T]he root inquiry that
we must conduct is ‘whether the State affords full protection to the federal rights.’” (citation
omitted)). Conversely, when “[t]here is no question” that a state court “will hear and decide any
federal claim,” the state remedy is plain and not uncertain. Rosewell, 450 U.S. at 517; see also
Franchise Tax Bd. of Cal. v. Alcan Aluminum, Ltd., 493 U.S. 331, 340–41 (1990) (holding the
state remedy was not uncertain where California state law allowed the claim and the parties
“cited no case in which the California courts refused to hear a claim similar to the claims
respondents want made”); Tully, 429 U.S. at 76 (holding the state remedy was not uncertain
where the “New York precedents convincingly demonstrate that [petitioner’s] fears about the
availability of such preliminary relief are unfounded”).
Here, individualized tax assessment notices mailed merely four days before the Board of
Assessors protest deadline informed homeowners they “must appeal” to the Board of Assessors
if they wished to dispute their tax assessment. DE 1-1, Tax Assessment Notice, Page ID 44
(emphasis added). The notices unambiguously stated that “[p]rotest during the February
Assessors Review Period is required to protect your right to appear before the March Board of
Review. Protest at the March Board of Review is necessary to protect your right to further
appeal to the Michigan Tax Tribunal.” Id. (emphases added). The notices reflect the three-step
appeal process outlined by local ordinances and state law. First, Detroit requires taxpayers to
“make complaint on or before February 15th,3 either orally or in writing . . . before the Board of
3
The tax assessment notices announced an “EXTENDED ASSESSORS REVIEW SCHEDULE” with a
deadline of February 18, 2017. DE 1-1, Tax Assessment Notice, Page ID 44.
No. 21-1261 Howard v. City of Detroit, Mich. Page 7
Assessors.” Detroit, Mich., Code of Ordinances § 44-4-3(a). Second, “[a]ny person who has
previously complained to the Board of Assessors . . . may appeal to the Board of Review.”
Detroit, Mich., Code of Ordinances § 44-4-6(b). Third, for the Michigan Tax Tribunal to
exercise its exclusive jurisdiction over an assessment dispute, “the assessment must be protested
before the board of review.” M.C.L. § 205.735a(3). Each step depends on the fulfillment of the
previous step. To appeal to the Michigan Tax Tribunal, one must appeal to the Board of Review.
To appeal to the Board of Review, one must appeal to the Board of Assessors.
By mailing the notices on February 14 with a printed deadline of February 18 (and an
ordinance deadline of February 15), Detroit gave appellants no more than four days’ notice of the
appeal deadline and explicitly told them failure to meet that deadline would forfeit their right to
appeal to the Board of Review and the Michigan Tax Tribunal. We have held notice was
adequate when it was “extremely likely” to reach the taxpayer. Chippewa Trading, 365 F.3d at
543. Notice that is insufficient to protect a petitioner’s right to appeal, however, can make the
state remedy uncertain. See Berne Corp. v. Gov’t of The Virgin Islands, 570 F.3d 130, 138–39
(3d Cir. 2009) (finding the state remedy uncertain because it was unclear whether taxpayers were
notified of their appeal dates).
Detroit appellees argue that by extending the Board of Assessors review period by
fourteen days and waiving the prerequisite of appearance before the Board of Assessors for
appeal to the Board of Review, “the City eliminated, if not at least alleviated, any claimed denial
of due process.” CA6 R. 33, Appellee Br. (Detroit), at 29. Appellants argue the extension and
waiver did not alleviate the due process violations because they were insufficiently
communicated to Detroit homeowners.4 On February 14, the date the notices were mailed, a city
official “made a two-minute announcement at a sparsely attended, public City Council meeting”
about the extension but did not mention the waiver of the Board of Assessors protest
requirement. DE 1, Compl., Page ID 19. The dissent suggests that the city’s modified system
was adequate because some homeowners took advantage of the extension and waiver. Dissent,
4
Appellants also argue the Detroit appellees had no authority to institute the extension and waiver because
both were “contrary to statute.” CA6 R. 24, Appellant Br., at 32. For purposes of our analysis, we do not decide
this question of state law and assume the Detroit appellees had authority to extend the Board of Assessors deadline
and waive the Board of Assessors protest requirement.
No. 21-1261 Howard v. City of Detroit, Mich. Page 8
at 3. The fact that around one percent of homeowners navigated the murky modified appeal
process does not demonstrate the adequacy of the process or cure the uncertainty of the remedy.
See Rosewell, 450 U.S. at 517 (“‘[U]ncertainty’ surrounding a state-court remedy lifts the bar to
federal-court jurisdiction.” (citation omitted)). Moreover, while some news outlets reported on
the extension and waiver, it is not “extremely likely” the news reached each homeowner who
received an assessment notice with unambiguous contrary information. Chippewa Trading, 365
F.3d at 543. Because Detroit did not provide “certain minimal procedural protections” of
appellants’ due process rights, Hedgepeth, 215 F.3d at 615, the extension and waiver do not
make the state remedy certain.
This does not end our inquiry. If precedent demonstrates that state courts “will hear and
decide” the federal claim at issue, the state remedy is adequate and federal jurisdiction is barred.
Rosewell, 450 U.S. at 517; see also Alcan Aluminum, 493 U.S. at 340–41; Tully, 429 U.S. at 76.
However, when “entry to the State court system is not assured,” the state remedy is uncertain and
federal jurisdiction is permitted. Aluminum Co. of Am. v. Dep’t of Treasury, 522 F.2d 1120,
1125 (6th Cir. 1975); Hillsborough, 326 U.S. at 626. The Detroit and Michigan appellees
contend appellants could have appealed directly to the Michigan Tax Tribunal because the
Tribunal must hear cases involving a denial of due process.5 In the cases cited by Detroit
appellees, however, the petitioners timely protested to the Board of Review before appealing to
the Michigan Tax Tribunal and therefore satisfied the statutory prerequisite for Tax Tribunal
jurisdiction. See Spranger v. City of Warren, 865 N.W.2d 52, 54 (Mich. Ct. App. 2014)
(“Petitioner submitted a City of Warren Poverty Exemption Application to respondent’s March
board of review.”); Wise v. City of Holland, No. 327450, 2016 WL 2772163, at *1 (Mich. Ct.
App. May 12, 2016) (“Petitioner submitted a written protest to the March Board of Review . . .
within the statutory timeframe.”). Here, appellants argue the untimely mailing of the assessment
notices and the unequivocal appeal information contained within precluded their ability to fulfill
5
The Detroit appellees also briefly argue that appellants do not have standing to seek declaratory relief
because they allege only past injuries. “In the context of a declaratory judgment action, allegations of past injury
alone are not sufficient to confer standing. The plaintiff must allege and/or ‘demonstrate actual present harm or a
significant possibility of future harm.’” Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006) (quoting Peoples Rights
Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998)). Appellants pled ongoing injury from the
untimely tax assessment notices, including current tax delinquencies and foreclosure proceedings stemming from the
2017 property tax assessments, and therefore have standing to pursue their claim.
No. 21-1261 Howard v. City of Detroit, Mich. Page 9
the statutory requirements for Tax Tribunal jurisdiction. It is speculative whether the Tax
Tribunal could exercise jurisdiction over appellants’ suit where they could not fulfill the
statutory prerequisite. See Jehovah Shalom Church of God v. City of Detroit, No. 348320, 2020
WL 1963987, at *3 (Mich. Ct. App. Apr. 23, 2020) (“[T]he tribunal is without jurisdiction to
consider appeals filed outside the deadlines imposed by statute.”).
The Michigan appellees rely on numerous cases that are inapplicable to the facts at issue
here. In Turner v. Lansing Township, 310 N.W.2d 287, 288 (Mich. Ct. App. 1981), the
petitioners did not protest to the Board of Review, despite the fact that one of the partners in the
partnership had received timely notice. The Court of Appeals held “proper notice was given”
and upheld the Tax Tribunal’s dismissal of petitioners’ claims. Id. at 290–92. Unlike Turner,
appellants here allege they did not receive proper notice. In Nomads, Inc. v. City of Romulus,
397 N.W.2d 210, 212–13 (Mich. Ct. App. 1986), the Michigan Court of Appeals agreed with the
petitioner that “it could not be expected to protest the 1980 tax assessment before June 30, 1980,
since notice was not received until August 18, 1980.” However, the court ultimately upheld the
Tax Tribunal’s decision that it was without jurisdiction because the petitioner did not file within
“the alternative thirty-day period set forth in the [applicable] statute.” Id. at 213; see also Skybolt
P’ship v. City of Flint, 517 N.W.2d 838, 841 (Mich. Ct. App. 1994) (affirming the Tax
Tribunal’s denial of petitioners’ motion to amend where petitioners did not file their motion
within the applicable statutory deadline or 30-day tolling period after being put on notice of the
Board of Review’s adverse decision “[r]egardless of whether the Board of Review sent . . . a
notification of its decision”). In each of these cases, the Michigan Court of Appeals affirmed the
Tax Tribunal lacked jurisdiction because petitioners did not file within the statutory deadline
after being put on notice. The court did not hold that a petitioner could bypass the statutory
requirement to appear before the Board of Review and have its claim heard by the Tax Tribunal.
Further, there is no “alternate” statutory filing period for residential personal property owners in
M.C.L. § 205.735a(6).
The district court relied on Parkview Memorial Association v. City of Livonia, 454
N.W.2d 169 (Mich. Ct. App. 1990), and Pacific Properties, LLC v. Township of Shelby, No.
249945, 2005 WL 473899 (Mich. Ct. App. Mar. 1, 2005), to indicate that “some Michigan courts
No. 21-1261 Howard v. City of Detroit, Mich. Page 10
have even held that the Michigan Tax Tribunal . . . may retain jurisdiction over an appeal absent
a prior protest before the Board of Review where the taxpayer did not receive adequate notice.”
DE 33, Op., Page ID 586. In Pacific Properties, the Court of Appeals noted that “Pacific could
not protest the valuations at issue before the board of review because it received no notice of the
board’s intent to amend the valuation.” 2005 WL 473899, at *4. However, the court decided
there was “simply no ‘dispute’” as the parties stipulated that the overassessment was due to
clerical error. Id. at *4–5. The court then held the Tax Tribunal had jurisdiction to grant relief
based on the parties’ stipulation. Id. at *5–6. The lack of notice to Pacific had no bearing on the
court’s holding. See id. at *5.
In Parkview, the City of Livonia mailed assessment notices two days after the Board of
Review’s last meeting. 454 N.W.2d at 169. Because the Michigan Supreme Court previously
held that petitioners could not challenge “assessments in circuit court despite respondents’
improper notice,” the Michigan Court of Appeals “conclude[d] that petitioners’ claims should be
heard by the Tax Tribunal” even though they had not appeared before the Board of Review. Id.
at 171. Because Parkview was decided before November 1, 1990, the Michigan Court of
Appeals has often declined to follow it pursuant to Michigan Court Rules 7.215(J)(1), including
in Pacific Properties. See, e.g., Pac. Props., 2005 WL 473899, at *4 (“Parkview was decided
before November 1990, and therefore it is not binding precedent.”); see also Jehovah Shalom
Church of God, 2020 WL 1963987, at *5 (“Decided before November 1990, Parkview is not
binding on this Court.”). While Parkview held that M.C.L. § 205.735 listed “procedural
requirements” for assessment appeals to the Michigan Tax Tribunal, 454 N.W.2d at 171, the
Michigan Court of Appeals “and [the Michigan] Supreme Court have held that MCL 205.735(2)
is not merely a notice statute; it is a jurisdictional statute governing when and how a petitioner
may invoke the [Michigan Tax Tribunal]’s jurisdiction.” Pac. Props., 2005 WL 473899, at *4
(citing Szymanski v. City of Westland, 362 N.W.2d 224 (Mich. 1984)) (emphasis added). For
example, in Jehovah Shalom Church of God, the church claimed it received “no notice of the
removal of the property’s tax exemption or the return of the property to the tax rolls” in 2016 and
2017 until it received a forfeiture notice for failure to pay in 2018. 2020 WL 1963987, at *1.
The Michigan Court of Appeals upheld the Tax Tribunal’s decision that it lacked jurisdiction
because “the tribunal is without jurisdiction to consider appeals filed outside the deadlines
No. 21-1261 Howard v. City of Detroit, Mich. Page 11
imposed by statute.” Id. at *3 (emphasis added). The Michigan Court of Appeals has even
stated that “where a claim’s gravamen lies in a factual issue that falls under the exclusive
jurisdiction of the [Michigan Tax Tribunal], the claim will not survive in a circuit court by
‘[m]erely couching a challenge to an assessment in constitutional terms.’” MorningSide Cmty.
Org. v. Wayne Cnty. Treasurer, No. 336430, 2017 WL 4182985, at *2 (Mich. Ct. App. Sept. 21,
2017) (quoting Forest Hills Coop. v. Ann Arbor, 305 Mich. App. 572, 618 (2014)).
Adding to the uncertainty of the state remedy, the Michigan Court of Appeals has
sometimes followed Parkview despite M.C.R. 7.215(J)(1). In Morehouse v. Township of
Mackinaw, No. 281483, 2009 WL 691816, at *3 (Mich. Ct. App. Mar. 17, 2009), petitioners did
not receive notice until after the Board of Review meeting occurred. The court, following
Parkview, affirmed the Tax Tribunal’s decision to adjudicate the case even though petitioners did
not first appeal to the Board of Review. Id. at *4. Similarly, in Michigan State University v. City
of Lansing, No. 250813, 2005 WL 356639, at *2 (Mich. Ct. App. Feb. 15, 2005), the court found
“no evidence to contradict MSU’s position that the notice” of assessment “was actually
received” after the statutory deadline to file a petition for the Board of Review. The court
affirmed the Tribunal’s decision to exercise jurisdiction and adhered to Parkview, noting that
“[i]f a taxing authority can avoid board and tribunal review of assessments by mailing untimely
notices, a property owner’s due process rights are unquestionably impaired.” Id. at *4. Since
both of these cases are unpublished, they are not binding on Michigan state courts. M.C.R.
7.215(C)(1). There is simply no clear, direct, published holding from the Michigan Court of
Appeals or the Michigan Supreme Court that statutory jurisdictional requirements for the
Michigan Tax Tribunal will be waived to remedy denials of due process.
Our review of the conflicting Michigan state court precedents in cases where notice and
due process rights were at issue reveals it is “speculative . . . whether the State affords full
protection” to appellants’ federal rights. Hillsborough, 326 U.S. at 626; Nw. Airlines, 11 F.3d at
73. Appellants were unequivocally informed they would lose their right to appeal to the
Michigan Tax Tribunal—the only state forum available for tax assessment disputes—if they did
not first appeal to the Board of Assessors and the Board of Review by the printed deadlines.
While Detroit extended the Board of Assessors deadline and waived the Board of Assessors
No. 21-1261 Howard v. City of Detroit, Mich. Page 12
requirement and some homeowners took advantage of the extension and waiver, Detroit did not
take reasonable steps to ensure this information would reach individual taxpayers. The
inconsistent Michigan state court precedents do not “convincingly demonstrate” that the relief
appellants seek is available in state court. Tully, 429 U.S. at 76. Nor do they leave “no question”
that Michigan state courts would hear appellants’ federal claim. Rosewell, 450 U.S. at 517. The
TIA only bars jurisdiction where a “plain, speedy and efficient” state remedy exists. We hold
such a remedy does not exist here, reverse the district court’s dismissal of appellants’ federal due
process claim under § 1983, and remand the case for further proceedings.
B
After dismissing appellants’ federal claim, the district court declined to exercise
supplemental jurisdiction over appellants’ remaining state law claims. Since we reinstate
appellants’ federal claim, we reverse and remand for the district court to consider whether to
exercise supplemental jurisdiction over the state claims. See Cornist v. B.J.T. Auto Sales, Inc.,
272 F.3d 322, 332 (6th Cir. 2001).
IV
We reverse the district court’s dismissal of appellants’ claims and remand for further
proceedings.
No. 21-1261 Howard v. City of Detroit, Mich. Page 13
_________________
DISSENT
_________________
BOGGS, Circuit Judge, dissenting. The City of Detroit made a mistake: it mailed out
property-tax assessments for the 2016 tax year 13 days late. To remedy this, the day the
assessments were mailed, the City Council extended the period to protest before the Board of
Assessors by 13 days. The Council also allowed taxpayers to appeal directly to the Board of
Review, even if they never appeared before the Board of Assessors—essentially extending the
timeline to file an initial grievance by a further 13 days.1 All taxpayers who appeared before the
Board of Review were then, as in previous tax years, given four months from that body’s
decision to appeal to the Michigan Tax Tribunal. Detroit, Mich., Code of Ordinances § 44-4-
7(b) (Board of Review must render a decision by the first Monday in April); Mich. Comp. Laws
§ 205.735(a)(3), (6) (taxes must be appealed to the Tax Tribunal by July 31). An appeal as of right
lies from the Tax Tribunal to the Michigan Court of Appeals, and from there a party could file an
application for leave to appeal to the Michigan Supreme Court. In the event that the state’s
Supreme Court issued an adverse decision, a petition for a writ of certiorari could be filed in the
United States Supreme Court.
Yet the Detroit homeowners in this case never availed themselves of that framework.
Instead, they filed suit in federal district court alleging deprivations of their due-process rights
under the federal and state Constitutions, as well as unjust enrichment. The homeowners did this
despite the fact that Congress has expressed its preference that state-tax-collection disputes be
settled in state, not federal, courts. 28 U.S.C. § 1341 (“The district courts shall not enjoin,
suspend or restrain the assessment, levy or collection of any tax under State law where a plain,
speedy and efficient remedy may be had in the courts of such State.”). Assuming, as the
1
The minimum period given in which to contest a property-tax assessment before the Board of Assessors is
normally the 14 days between February 1 and February 15. Detroit, Mich., Code of Ordinances §§ 44-4-1 to -2.
Because assessments for tax year 2016 were mailed on February 14, 2017, however, the City Council extended the
deadline from February 15 to February 28. The date by which taxpayers were required to file an appeal with the
Board of Review—the second Monday in March, in this case March 13—remained unchanged. Id. § 44-4-6(c). But
because taxpayers could skip the Board of Assessors entirely, they had between February 14 and March 13, or 27
days, to file an initial grievance.
No. 21-1261 Howard v. City of Detroit, Mich. Page 14
majority does, that the appellants’ requested remedies fall within the ambit of § 1341, this appeal
turns on whether the framework described above is “plain, speedy and efficient.”2 If it is, the
district court was correct that jurisdiction did not lie to hear the case.
When this court examined a similar question in Chippewa Trading Co. v. Cox, 365 F.3d
538 (6th Cir. 2004) (Boggs, C.J.), we noted that the § 1341 state remedy requires “a full hearing
and judicial determination at which the taxpayer may raise any federal constitutional objections
to the tax.” Id. at 542 (quoting In re Gillis, 836 F.2d 1001, 1010 (6th Cir. 1988)). This could be
satisfied either by an administrative appeals process leading eventually into the state courts (as
here), or by filing in the first instance in state trial court. Id. at 542–43. But while it is true that
the notice given in the administrative process must be sufficiently timely to give a litigant time to
file a direct action in state trial court, the majority misreads Chippewa Trading to impose a much
more exacting standard. Compare Maj. Op. 7 (“We have held notice was adequate when it was
‘extremely likely’ to reach the taxpayer.”), with Chippewa Trading, 365 F.3d at 543 (holding that
for the state-court remedy of a direct constitutional challenge—as distinct from the state-court
remedy of an administrative appeal—notice was adequate when the employee subject to
administrative action was “extremely likely to notify his superiors” timely and when his
superiors “admitted to the district court that [they] received actual notice” (emphasis added)).
Although Chippewa Trading contains no requirement that notice be “extremely likely” to
reach a taxpayer in order to preserve an administrative appeal, my colleagues read that case and
others to require individualized notice of the extended tax-review period in this case. Maj. Op. 8
(“[I]t is not ‘extremely likely’ the news reached each homeowner who received an assessment
notice with unambiguous contrary information.”). That would mean notice mailed to each of the
263,316 taxpayers whose property was assessed in the 2016 tax year. But there is no evidence
that taxpayers lacked notice, and plenty of evidence to the contrary. The City Council took
extensive steps to ensure that property owners had nearly double the time to file a grievance
2
This is even assuming that no avenue exists for the litigants to file a direct constitutional appeal with the
Tax Tribunal. While this is far from certain, because I believe an adequate state remedy exists through the
administrative process, I assume it to be the case.
No. 21-1261 Howard v. City of Detroit, Mich. Page 15
compared with normal years.3 And the effectiveness of the City Council’s attempts to remedy
notice here is not merely hypothetical: as the record shows, more than 2,500 property owners
appeared before the Board of Assessors for the 2016 tax year, the vast majority of whom were
homeowners. Br. of City Appellees 20. Not only that, but close to 1,100 property owners
availed themselves of the right to skip directly to the Board of Review—the very process the
majority describes as woefully insufficient to provide taxpayers with adequate notice. Ibid.; see
also Maj. Op. 8.
The system devised by the City Council was effective in practical terms to secure
homeowners’ rights to file administrative grievances. Taxpayers could skip directly to the Board
of Review process, after which the timeline was identical to previous years. The path to the
Michigan courts was then straight and clear, and from there to the United States Supreme Court.
Nothing more is required for a “plain, speedy and efficient remedy” that deprives the federal
courts of jurisdiction. Colonial Pipeline Co. v. Morgan, 474 F.3d 211, 218 (6th Cir. 2007)
(“A state remedy is plain, speedy and efficient if it provides the aggrieved party with a full
hearing and judicial determination at which a taxpayer may raise any and all constitutional
objections to the tax, with ultimate review available in the United States Supreme Court.”
(cleaned up)). Appellants here were free to avail themselves of that system, but chose not to.
Certainly, they raise a number of problems with the way in which the City Council implemented its
solution to Detroit’s mistake. But those complaints are for Michigan’s courts to entertain, and
nothing in the record shows that they would not have done so. The Michigan courts stood ready
to “hear and decide” appellants’ grievances regarding their 2016 property-tax valuations, at least
if appellants had chosen the administrative path readily available to them—as thousands of their
fellow taxpayers did. See Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 517 (1981).
It could be that the City of Detroit deprived these litigants of due process by merely
extending the period to file an initial tax grievance—but failing to mail individualized notice of
the extension to all 263,316 property owners. But the power of federal courts to address that
3
As noted above, rather than the usual 14 days to file their initial property-tax-assessment grievances,
Detroit homeowners had 27 days—the time between February 14, when the assessments were mailed, and March
13, the deadline to file an appeal or original complaint before the Board of Assessors.
No. 21-1261 Howard v. City of Detroit, Mich. Page 16
issue is limited by § 1341. As shown above, Michigan has provided a “plain, speedy and
efficient remedy” for appellants’ claims. Thus, the federal courts cannot decide them, while the
Michigan courts can and should. The district court correctly recognized that it lacked
jurisdiction under 28 U.S.C. § 1341, and I respectfully dissent.