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
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. MCL 280.1 et seq. That the Code is based on these early statutes is likely also one of the reasons why the Code constitutes one of the more arcane portions of Michigan statutory law. See Eyde v. Lansing Twp., 109 Mich.App. 641, 645, 311 N.W.2d 438 (1981) ("[T]he Drain Code of 1956 [is] an exceedingly complex statute, the provisions of which apparently are known by few in the profession and understood by far fewer.") (citations and quotation marks omitted) (emphasis omitted). Thus, before proceeding to the facts and procedural history of this case, we first discuss applicable portions of the Code.
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). MCL 280.3. A "drainage district" is the area in which the drain operates. It is "a body corporate with power to contract, to sue and to be sued, and to hold, manage and dispose of real and personal property, in addition to any other powers conferred upon it by law." MCL 280.5. But the distinction between a drain and a drainage district is not as clear as this definitional scheme might suggest. In fact, the two terms are often used interchangeably. Both the Court of Appeals and litigants at times use the terms interchangeably, and even the Drain Code itself sometimes fails to distinguish between the two concepts. See, e.g., MCL 280.446 (discussing consolidation of a "drain" with a "consolidated drain" in chapter 19 of the Drain Code, entitled "Consolidated Districts").
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. MCL 280.191. If consolidation of drainage districts is sought, property owners whose lands lie within the districts that would be consolidated may also petition for consolidation. MCL 280.441(1). In either situation, after the petition is submitted, the county drain commissioner "may appoint a board of determination composed of 3 disinterested property owners," MCL 280.72(1) and MCL 280.441(1), to determine, in the case of proposed maintenance
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. MCL 280.441(3). In the case of drain maintenance or improvement, once the Board has made its findings, the county drain commissioner then files a final order of determination specifying the precise work to be done. MCL 280.151. The drain commissioner also then apportions the benefit created by the maintenance and improvement among the benefitted properties on a percentage basis.
Once this apportionment process is complete, each person who owns property within the district to be assessed is given notice that a public meeting (i.e., a day of review) will be held to review the apportionment of benefits.
No other avenue of review is contemplated by the statute. "If no certiorari be brought within the time herein prescribed,
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 No. 181-0 and several of its tributaries and to consolidate all the separate drainage districts into a new No. 181 consolidated drainage district. The Commissioner appointed a Board to hear evidence and determine the propriety of the proposed actions, and the Board held a hearing on May 4, 2010.
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:
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.
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 N.W.2d 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, 812 N.W.2d 768 (2012).
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 N.W.2d 634 (2013). Whether due process has been afforded is a constitutional issue that is reviewed de novo. People v. Wilder, 485 Mich. 35, 40, 780 N.W.2d 265 (2010). Likewise, whether a court has subject-matter jurisdiction is a question of law reviewed de novo. Lapeer Co. Clerk v. Lapeer Circuit Judges, 465 Mich. 559, 566, 640 N.W.2d 567 (2002). Questions of statutory interpretation are also reviewed de novo. Detroit v. Ambassador Bridge Co., 481 Mich. 29, 35, 748 N.W.2d 221 (2008). Though our review of the issues presented is thus de novo, we are also mindful of our previous declaration that, in general, "[w]e ... are not inclined to reverse [drain] proceedings... absent [a] showing of very substantial faults." In re Fitch Drain No. 129, 346 Mich. 639, 647, 78 N.W.2d 600 (1956).
Plaintiffs first contend that they are entitled to relief because the Kellogg petition,
Absent from MCL 280.191 is any reference to "consolidation." The second section, MCL 280.441, addresses consolidation of drainage districts. It states, again in part:
The Code thus provides distinct signature requirements for drain maintenance and improvement on one hand and drainage-district consolidation on the other. But MCL 280.194 muddles this apparent dichotomy a bit:
The trial court concluded that MCL 280.194 and MCL 280.441 were irreconcilable, that the former provision prevailed, and that therefore only five signatures are required when a petition, like the one at issue, deals with consolidation as well as some other maintenance or improvement delineated in MCL 280.194. The Court of Appeals disagreed. It determined that, when a combined consolidation and maintenance-or-improvement
Both lower courts, in our judgment, erred by reaching the merits of this issue. As previously stated, MCL 280.161, governing the certiorari process, stipulates that "[i]f no certiorari be brought within the [prescribed time frame], 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[.]" It is undisputed that plaintiffs did not seek certiorari and that the time for doing so has expired. The statute contemplates that, once the period during which certiorari may be sought has passed, no other avenue of relief is available to challenge drain proceedings. But this Court has consistently refused "to accept the proposition that certiorari is an exclusive remedy under the drain law...." Pere Marquette R. Co. v. Auditor General, 226 Mich. 491, 494, 198 N.W. 199 (1924). Indeed, a review of our prior jurisprudence demonstrates that we have historically exercised equitable jurisdiction, in spite of the prohibition in MCL 280.161, when a plaintiff alleges a constitutional infirmity
In Clarence Twp. v. Dickenson, 151 Mich. 270, 115 N.W. 57 (1908), the township in which a drain was to be extended and several property owners whose lands
We relied heavily on Clarence Twp. in Stellwagen v. Dingman, 229 Mich. 159, 161-162, 200 N.W. 983 (1924), in which we held that the alleged failure of a petition to "correctly stat[e] the purpose for which the cleaning out of the drain was needed" did not rise to the level of a constitutional violation allowing the exercise of equitable jurisdiction.
The slightly earlier case of Strack v. Miller, 134 Mich. 311, 96 N.W. 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, 96 N.W. 452. Rather, the plaintiffs' proper course would have been to seek certiorari review under the statute. The certiorari statute, we said, offers
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 MCL 280.191 and MCL 280.194 or by 50 pursuant to MCL 280.441 is, in the words of Clarence Twp., a "purely statutory" question
Upon concluding that MCL 280.441 was applicable here and thus that 50 signatures were required for the consolidation petition, the Court of Appeals, apparently overlooking our decisions in Clarence Twp., Strack, and Stellwagen, went on to determine whether the exercise of equitable jurisdiction was appropriate. "Without the requisite number of signatures attached to the ... petition," the Court of Appeals stated, "the Drain Commissioner had no authority or jurisdiction to act, and the proceedings establishing the No. 181 Consolidated Drainage District were void." Elba Twp., 294 Mich.App. at 341, 812 N.W.2d 771. Thus, the Court of Appeals concluded the trial court had properly exercised equitable jurisdiction over the matter. Id. In so concluding, the Court of Appeals neglected our holding in Clarence Twp., reaffirmed in Fuller, that "[t]he lack of jurisdiction which will warrant relief in equity must arise from a violation of the Constitution." Fuller, 257 Mich. at 39, 239 N.W. 293 (citation and quotation marks omitted). Even if there was a signature error, such error did not result in a lack of jurisdiction arising out of a violation of the Constitution.
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 MCL 280.161 would not only be restricted by our caselaw, but it would be of little general force. Clarence Twp., Strack, and Stellwagen make clear that an error regarding the number of petition signatures does not implicate the Constitution. Though in some sense a public official lacks jurisdiction every time he acts in a way contrary to statutes prescribing the procedures he must follow in carrying out his authority, "[t]here is a difference between a want of jurisdiction and a mistake in jurisdiction, or an error in the exercise of jurisdiction." Altermatt v. Dillman, 269 Mich. 177, 182, 256 N.W. 846 (1934). A failure to follow each and every requirement of the Drain Code does 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.
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.
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. MCL 280.161 provides that if "material defect be found in the proceedings for establishing the drain, such proceedings shall be set aside." Surely this would have been an appropriate and adequate remedy here. Indeed, this is the very relief sought by plaintiffs. As we stated in Strack, certiorari is the exclusive avenue of review for such a claim.
Plaintiffs also contend that the notice issued regarding the May 4, 2010 Board meeting was defective and amounted to a violation of their constitutional right to due process. Their primary complaint regarding the notice is that some of the property that would be affected by the proposed project lay outside the townships listed in the notice.
Unlike the signature issue, true questions of due process may be heard in equity because they implicate the constitutional exception to MCL 280.161. See Blades, 375 Mich. at 693-694, 135 N.W.2d 420 (concluding that an argument that an assessment was arbitrarily and wrongly imposed was a due-process claim that could be heard in equity); Altermatt, 269 Mich. at 186, 256 N.W. 846 (summarizing relevant caselaw and concluding that drain proceedings that amount to "taking of property without due process of law" confer jurisdiction on courts of equity); Fuller, 257 Mich. at 38-39, 239 N.W. 293
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.'" Sidun v. Wayne Co. Treasurer, 481 Mich. 503, 509, 751 N.W.2d 453 (2008), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). To be sure, the notice sent to plaintiffs in this case was no model of clarity. But before analyzing the reasonableness of the notice, we must ask the threshold question whether plaintiffs were constitutionally entitled to any notice of the May 4, 2010 Board meeting. We conclude that they were not.
Under Michigan's Constitution, "[n]o person shall ... be deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. The United States Constitution similarly provides that no state shall "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const, Am. XIV. The May 4, 2010 Board meeting was held to determine the "necessity" of the proposed drainage project. See MCL 280.72(3) and MCL 280.441(1). Simply put, the meeting did not pertain to deprivation of life, liberty, or property, and thus the due process right to notice was not implicated.
Chicago, M., St. P., & P. R. Co. v. Risty, 276 U.S. 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 railway company, sought to enjoin the apportionment and assessment of benefits against their land for the maintenance of a drain constructed under South Dakota's agricultural drainage statutes. South Dakota law at the time, like our own Code, prescribed a bifurcated system under which an initial determination as to whether the drainage project would be "conducive to the public health, convenience, or welfare, or necessary or practical for draining agricultural lands" was followed by separate proceedings regarding the apportionment of benefits and assessment of costs against property owners. Id. at 574, 48 S.Ct. 396 (citation and quotation marks omitted). The plaintiffs challenged the constitutionality of the proceedings "on the ground that the notice of the hearing on the petition for the establishment of the drainage project fell short of constitutional requirements," asserting that, because the notice of the hearing on necessity described only the route to be taken by the proposed drain "and the tract of country likely to be affected thereby in general terms," it was insufficient "notice to any land owner other than those through whose land the drainage ditch is to be constructed." Id. at 573, 48 S.Ct. 396 (quotation marks omitted). The United
Citing Risty, the United States Supreme Court held in Utley v. St. Petersburg, 292 U.S. 106, 109, 54 S.Ct. 593, 78 L.Ed. 1155 (1934), that "[t]here is no constitutional privilege to be heard in opposition at the launching of a project which may end in an assessment. It is enough that a hearing is permitted before the imposition of the assessment as a charge upon the land, or in proceedings for collection afterwards."
Therefore, plaintiffs were not constitutionally entitled to notice regarding the hearing on the necessity and conduciveness of the drainage project.
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 proceedings concerning assessments for the costs of a drainage project, there is no parallel right to notice of proceedings to determine whether the project will be undertaken in the first place. For these reasons, we reverse the judgment of the Court of Appeals and reinstate the trial court's order granting summary disposition in favor of the Commissioner.
VIVIANO, J., took no part in the decision of this case.
This understanding of Risty is supported by prior precedent of both this Court and the United States Supreme Court. In Voigt v. Detroit, 184 U.S. 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, 22 S.Ct. 337.
