STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6079

June 21, 1982

CIVIL RIGHTS:

Liability of assessing officer for violation of taxpayer's civil rights

TAXATION:

Assessing officer's duly to provide notice of increased assessment upon personal property

An assessor making an assessment upon personal property in an amount greater than the assessment for the previous year must notify the owner or person or persons listed on the assessment roll of such assessment increase.

An assessing officer who uses his or her best judgment and does not intentionally discriminate against a taxpayer or act with wilful disregard of the taxpayer's rights has a qualified immunity as a defense to an action for an alleged violation of civil rights under 42 US 1983.

Honorable Paul B. Henry

State Representative

State Capitol

Lansing, Michigan 48909

You have requested my opinion on two questions involving 1893 PA 206, Sec. 22; MCLA 211.22; MSA 7.22. Your first question asks: 'What notice is required when an assessor places an assessment upon personal property in accordance with 1893 PA 206, Sec. 22, supra?'

1893 PA 206, Sec. 22, supra, in pertinent part, states:

1893 PA 206, Sec. 18; MCLA 211.18; MSA 7.18, mandates the filing of the personal property statement by the taxpayer. 1893 PA 206, Sec. 19; MCLA 211.19; MSA 7.19, requires that these statements be filed with the supervisor or assessor on or before February 20th of each year. In the normal course of events, where a personal property statement is received by the local assessor and where there is no reasonable question as to the authenticity or accuracy, the assessor relies upon it in establishing the assessed value of the personal property and enters it on the assessment roll which must be completed on or before the first Monday in March. 1893 PA 206, Sec. 24; MCLA 211.24; MSA 7.24. If the then current assessment is greater than that of the previous year, the assessor is required to notify the owner or person or persons listed on the assessment roll of the property of the increased assessment by first class mail not less than ten days before the meeting of the board of review. However, as mandated by the Legislature, the failure to send or failure to receive such notice does not invalidate either the increased assessment or the assessment roll. 1893 PA 206, Sec. 24c, as last amended by 1981 PA 210; MCLA 211.24c; MSA 7.24(3).

The notice procedure is required not only where the personal property statement is not submitted by the taxpayer but also where the statement submitted is insufficient or inaccurate. If a personal property statement is either not received by February 20th of any given year or if the assessing officer is satisfied that the personal property statement so filed is incorrect, then that assessing officer is charged with making an investigation to determine the value of the subject property. 1893 PA 206, Sec. 22, supra. The assessor is then mandated to place upon the assessment roll, by the first Monday in March, the amount the assessing officer determines to be reasonable and just.

Again, if the assessment so made is greater than the previous year, the assessor must notify the owner or person or persons listed on the assessment roll of such assessment increase. 1893 PA 206, Sec. 24c, supra. This is the only notice that is required. If the owner ignores the assessment notice and does not appeal the assessment to the local board of review, then for that year the assessment is final and the owner has no appeal remedy. See OAG, 1981-1982, No 6007, p 450 (November 18, 1981).

It should be noted that while the failure to send the required notice does not invalidate the assessment, such failure may result in sanctions against an assessor. These include the criminal prosecution of the assessor under the provisions of 1893 PA 206, Sec. 119; MCLA 211.119; MSA 7.173, and decertification of the assessor under rule 47 of the General Rules of the State Assessors Board, 1979 AACS, R 211.447, or, as discussed infra, a possible loss of the assessor's qualified immunity in federal civil rights actions pursuant to 42 USC 1983.

It is my opinion, therefore, that if an assessor makes an assessment upon personal property pursuant to 1893 PA 206, Sec. 22, supra, which assessment is greater than the assessment for the previous year, the assessor must notify the owner or person or persons listed on the assessment roll of such assessment increase and no further notice is required.

Your second question deals with respect to the potential liability of an assessor, under 17 Stat 13 (1871); 42 USC 1983, who places an assessment on personal property pursuant to 1893 PA 206, Sec. 22, supra. 42 USC 1983 provides, in pertinent part:

Assessing officers have been found liable under this section where a systematic discrimination in tax assessments was established. North American Cold Storage Co v Cook County, 468 F Supp 424 (ND Ill 1979).

Assessors and assessing officers are public officers whose activities are executive in nature. As such, assessors and assessing officers are entitled to a qualified immunity from suit under this section. This immunity is applicable if the public official demonstrates that he or she acted in good faith and without malice. Armstrong v Ross Township, 82 Mich App 77; 266 NW2d 674 (1978).

As stated in Fulton Market Cold Storage Co v Cullerton, 582 F2d 1071, 1080 (CA 7, 1978), cert den, 439 MS 1121; 99 S Ct 1033; 59 LEd2d 82 (1979):

In order to defeat the assessor's qualified immunity defense, a taxpayer must make a clear showing of either purposeful and methodical violation of the taxpayer's constitutional rights, or must demonstrate a reckless disregard of those rights by the assessor.

If an assessor does use his or her best judgment and refrains from an intentional and reckless disregard of the taxpayer's constitutional rights so that the assessor's actions may be reasonably characterized as being in good faith, a compensatory award under 42 USC 1983 would not be appropriate.

It is my opinion, therefore, that if an assessor uses his or her best judgment and refrains from intentionally discriminating against a taxpayer or acting with wilful disregard of the taxpayer's rights, a compensatory award under 42 USC 1983 would not lie.

Frank J. Kelley