A Report on Recent Court Decisions Identifying Statutes for Legislative Action and Recommendations to the Legislature
As part of its statutory charge to examine current judicial decisions for the purpose of discovering defects in the law and to recommend needed reforms, the Michigan Law Revision Commission undertook a review of three Michigan Supreme Court opinions and two Michigan Court of Appeals= decisions released in 2002. These opinions identify state statutes as potential candidates for legislative reform. The five opinions are:
State Farm Fire & Casualty Co. v. Old Republic Ins. Co., 466 Mich. 142, 644 N.W.2d 715 (2002)(holding that the "household exclusion" provision of M.C.L. ' 500.3123 applies where a person owning damaged property is insured under a no-fault property protection policy that does not cover the vehicle that person was operating at the time of the accident).
Koontz v. Ameritech Services, Inc., 466 Mich. 304, 645 N.W.2d 34 (2002)(coordination of unemployment benefits with pension benefits).
Paulitch v. Detroit Edison Co., 208 Mich. App. 656, 528 N.W.2d 200 (1995); and Buzzitta v. Larizza Industries, Inc., 466 Mich. ___, 641 N.W.2d 593 (2002)(issue of Michigan's statutory provision on prejudgment interest).
Equivest Limited Partnership v. Brooms, 253 Mich. App. 450 (2002)(adequacy of notice in order to trigger running of statutory redemption period).
In the Matter of Wentworth, 251 Mich. App. 560, 651 N.W.2d 773 (2002)(public disclosure of juvenile sex offender=s record once he/she reaches majority)
II. The Scope of the AHousehold Exclusion@ Provision of M.C.L. ' 500.3123.
A no-fault insurer's liability to pay property protection benefits to its insured is subject to exceptions, including the "household exclusion," M.C.L. ' 500.3123(1)(b), which provides:
(1) Damage to the following kinds of property is excluded from property protection insurance benefits:
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(b) Property owned by a person named in a property protection insurance policy, the person's spouse or a relative of either domiciled in the same household, if the person named, the person's spouse, or the relative was the owner, registrant, or operator of a vehicle involved in the motor vehicle accident out of which the property damage arose. [Emphasis added.]
In State Farm Fire & Casualty Co. v. Old Republic Ins. Co., Ibrahim Mroue was the insured under a real property casualty policy issued by State Farm. Mroue drove a rented Ryder truck into a bakery that he owned, causing damage to real and personal property. The Ryder truck was insured under a no-fault policy issued by defendant Old Republic Insurance Company. Plaintiff State Farm Fire and Casualty Company, the insurer of the real property, paid Mroue for the damages.
As Mroue's subrogee, State Farm filed an action seeking indemnification from Old Republic for the amount that State Farm had paid to Mroue. The circuit court granted summary disposition for Old Republic on the ground that Mroue, the owner of the real property, was a named insured in the Old Republic policy. Thus, since Mroue could not recover, State Farm could not recover as his subrogee.
The Court of Appeals reversed, holding that the exclusion in M.C.L. ' 500.3123(1)(b) did not apply because Mroue was not a named insured in the Old Republic policy. Old Republic appealed, and the Supreme Court remanded to the Court of Appeals for reconsideration. The Supreme Court=s order directed the Court of Appeals to consider whether M.C.L. ' 500.3123(1)(b) excluded coverage only if a property protection insurance policy covered a "vehicle involved in the motor vehicle accident out of which the property damage arose," or if the statute precluded coverage regardless of whether the vehicle insured under a property protection insurance policy was involved in the accident.
On remand, the Court of Appeals again reversed. It concluded that the phrase "by a person named in a property protection insurance policy" refers to the policy on the vehicle or vehicles involved in the accident.
B. The State Farm Fire & Casualty Co. v. Old Republic Ins. Co. Decision.
The Supreme Court reversed the Court of Appeals, stating that the use of the article "a" was not significant and that the grammatical construction of the sentence dictated the use of the article "a." In reversing, the Supreme Court began with the observation that M.C.L. ' 500.3123(1)(b) excludes property damage from no-fault property protection coverage if the property owner, the person's spouse, or a relative of either residing in the same household, is "named in a property protection insurance policy" and was "the owner, registrant, or operator of a vehicle involved" in the accident. The statute does not require that the individual be named in a property protection insurance policy covering a vehicle involved in the motor vehicle accident out of which the property damage arose. Rather, the Court continued, the plain meaning of M.C.L. ' 500.3123(1)(b) indicates that if Mroue was named in a property protection insurance policy and was the "operator of a vehicle involved" in the accident, coverage for damage to his property would be excluded. 466 Mich. at 147. Whether the no-fault policy covered a vehicle involved in the accident is not relevant under the plain language of the statute. Therefore, if Mroue was named in a no-fault policy covering, for example, a personal vehicle, the statute would exclude property protection coverage. AStated another way,@ the Court concluded, AM.C.L. ' 500.3123(1)(b) allows a party in Mroue's circumstances to recover from the rental vehicle's insurer only if he was not named in a no-fault policy.@ 466 Mich. at 147.
In rejecting the Court of Appeals= and dissent=s construction of the statute, the majority stated Athat a difference exists between the indefinite article >a= and the definite article >the.= We presume that the Legislature understood the distinct meanings of these terms. We are not free to conflate their meanings.@ 466 Mich. at 148. The majority summarized:
It is not the role of the judiciary to second-guess the wisdom of a legislative policy choice; our constitutional obligation is to interpret -- not to rewrite -- the law. The Legislature apparently determined that where the household exclusion applies, damaged property should be covered, if at all, by a form of insurance other than a mandatory no-fault policy. Not only does our interpretation of the statute comport with the plain language of the text, but it is also consistent with the legislative intent that may reasonably be inferred from the text, i.e., to preclude a person who damages his own property from collecting property protection insurance benefits under that person's no-fault policy. In this case, the property damage clearly would have been excluded if Mroue had been driving his own vehicle. The result should not be different merely because he was driving a rented one.
466 Mich. at 149-50.
Should the Ahousehold exclusion@ provision of M.C.L. ' 500.3123(1)(b)
be revisited by the Legislature for the purpose of clarifying legislative intent?
The Commission recommends that the Legislature review the result in State Farm Fire & Casualty Co. v. Old Republic Ins. Co., to ensure that its result accurately reflects the Legislature=s intent when it enacted the Ahousehold exclusion@ provision of M.C.L. ' 500.3123(1)(b)
III. Whether M.C.L. ' 421.27(f)(1) mandates coordination
of unemployment benefits with pension benefits.
M.C.L. ' 421.27(f)(1), which mandates coordination of unemployment benefits with pension benefits, has existed in essentially the same form since 1954 PA 197. It states:
[N]otwithstanding any inconsistent provisions of this act, the weekly benefit rate of each individual who is receiving or will receive a "retirement benefit," as defined in [M.C.L. ' 421.27(f)(4) ], shall be adjusted as provided in subparagraphs (a) . . . . However, an individual's extended benefit account and an individual's weekly extended benefit rate under [M.C.L. ' 421.64] shall be established without reduction under this subsection unless [M.C.L. ' 421.27(f)(5) ] is in effect . . . .
(a) If and to the extent that unemployment benefits payable under this act would be chargeable to an employer who has contributed to the financing of a retirement plan under which the claimant is receiving or will receive a retirement benefit yielding a pro rata weekly amount equal to or larger than the claimant's weekly benefit rate as otherwise established under this act, the claimant shall not receive unemployment benefits that would be chargeable to the employer under this act.
M.C.L. ' 421.27(f)(1) thus requires an offset in unemployment compensation for retirement benefits if the employer charged with unemployment benefits funded the retirement plan. This type of reduction is known as "narrow coordination."
Before 1980, federal law did not address coordination of unemployment and retirement benefits. In March 1980, Congress amended 26 U.S.C. ' 3304(a)(15) of the FUTA to require the coordination of unemployment benefits with employer-funded retirement benefits, regardless of whether the employer who had funded the retirement benefits was the same employer whose account would be charged for the unemployment benefits. This type of coordination is known as "broad coordination." Section 3304, particularly subsection (a)(15), of the FUTA requires the states to conform to federal policy regarding coordination of unemployment benefits to insure eligibility for federal funds or tax credits. In response to the federal amendment, the Michigan Legislature promptly adopted broad coordination to the extent required by federal law. M.C.L. ' 421.27(f)(5) states:
Notwithstanding any other provision of this subsection, for any week that begins after March 31, 1980, and with respect to which an individual is receiving a governmental or other pension and claiming unemployment compensation, the weekly benefit amount payable to the individual for those weeks shall be reduced, but not below zero, by the entire prorated weekly amount of any governmental or other pension, retirement or retired pay, annuity, or any other similar payment that is based on any previous work of the individual. This reduction shall be made only if it is required as a condition for full tax credit against the tax imposed by the federal unemployment tax act, chapter 23 of subtitle C of the internal revenue code of 1986, 26 USC 3301 to 3311.
The federal mandate for broad coordination was short-lived. In September 1980, Congress amended 26 U.S.C. ' 3304(a)(15) to its present form, which requires only narrow coordination, i.e., that coordination specified in M.C.L. ' 421.27(f)(1). Despite the federal amendment, the Michigan Legislature has never amended M.C.L. ' 421.27(f)(5). M.C.L. ' 421.27 thus retains both broad and narrow coordination provisions. The interplay of those provisions was addressed in Koontz v. Ameritech Services, Inc.
Plaintiff Koontz began working for Ameritech in its Traverse City office in 1965. Thirty years later, Ameritech closed its Traverse City office and offered to continue plaintiff's employment in another office. She declined, electing instead to retire. Ameritech's retirement incentive program entitled plaintiff to a $1,052.95 monthly pension allowance, which Ameritech fully funded. In lieu of monthly payments, however, plaintiff elected to receive her pension in a lump-sum in the amount of $185,711.55. Plaintiff also chose to transfer the lump-sum directly into her individual retirement account (IRA).
Plaintiff then applied for unemployment compensation. Ameritech argued that M.C.L. ' 421.27(f) of the Michigan Employment Security Act allowed coordination of plaintiff's unemployment benefits with the amount of pension payments plaintiff would have received if she had elected the monthly payment option. The Unemployment Agency agreed and directed coordination under M.C.L. ' 421.27(f). This coordination resulted in a reduction in plaintiff's unemployment benefits in the amount of $243 weekly, rendering her ineligible to receive any unemployment benefits. (Because plaintiff's pro-rata retirement benefits would have been equal to or greater than her weekly unemployment benefits, she was not eligible to receive unemployment benefits chargeable to Ameritech.)
Plaintiff thereafter appealed the redetermination. A referee reversed the decision of the Unemployment Agency on the ground that neither M.C.L. ' 421.27(f)(1) nor (5) required coordination since plaintiff had transferred the pension funds directly into her IRA and thus had not "received" the funds within the meaning of the act. The referee relied on the Unemployment Agency's Revised Benefit Interpretation No. 20.641, which indicates that an employee who rolls a pension amount over into an IRA does not incur immediate income tax liability because the Internal Revenue Service does not consider the payment "received" for income tax purposes.
Ameritech in turn appealed the referee's decision to the Michigan Employment Security Board of Review, which reinstated the Unemployment Agency's determination in a split decision. The Board of Review ruled that the taxability of plaintiff's pension benefit did not affect the operation of M.C.L. ' 421.27(f) and that the lump-sum distribution was a "retirement benefit" under the plain language of the act. Accordingly, the board concluded that coordination was required under M.C.L. ' 421.27(f)(1)(a).
The circuit court affirmed the Board of Review's decision. The Court of Appeals reversed the circuit court. It held that another subsection, M.C.L. ' 421.27(f)(5), governed and did not require coordination of benefits. The Court of Appeals determined that
M.C.L. ' 421.27(f)(5) is controlling over M.C.L. ' 421.27(f)(1). Alternatively, the Court of Appeals stated in dictum that even if M.C.L. ' 421.27(f)(1) applied, coordination was not required because (1) plaintiff had not received a "retirement benefit" within the meaning of M.C.L. ' 421.27(f)(4), and (2) the phrase "receive or will receive" in M.C.L. ' 421.27(f)(1) does not include the direct rollover of a pension fund to an IRA. Accordingly, the Court of Appeals held that M.C.L. ' 421.27(f)(5) exempted plaintiff's benefits from coordination.
B. The Koontz v. Ameritech Services, Inc. Decision.
In reversing the Court of Appeals, the Supreme Court criticized the Court of Appeals for having acknowledged the phrase, "Notwithstanding any other provision of this subsection" in M.C.L. ' 421.27(f)(5), but then having failed to give effect to similar language in M.C.L. ' 421.27(f)(1) that states, "notwithstanding any inconsistent provisions of this act." In addition, in finding that M.C.L. ' 421.27(f)(5) controls over M.C.L. ' 421.27(f)(1), the Court of Appeals rendered nugatory M.C.L. ' 421.27(f)(1), contrary to established rules of interpretation, according to the Supreme Court. The text of M.C.L. ' 421.27(f)(1) requires coordination where the claimant's unemployment benefits are chargeable to the employer who contributed to the financing of the claimant's retirement benefits. Thus, the Court concluded, "narrow coordination" is required "notwithstanding any inconsistent provisions of this act . . . ."
M.C.L. ' 421.27(f)(5), on the other hand, broadens the coordination required in M.C.L. ' 421.27(f)(1) by compelling a reduction not only with regard to pension funds that the chargeable employer contributes, but also with regard to pension funds "based on any previous work," regardless of whether the chargeable employer contributed the funds. M.C.L. ' 421.27(f)(5) requires such "broad coordination" only when necessary to conform to federal law.
Because M.C.L. ' 421.27(f)(5) does not apply here, the Court stated, the question remains whether M.C.L. ' 421.27(f)(1) required coordination of plaintiff's benefits. The Court of Appeals stated in dictum that even if M.C.L. ' 421.27(f)(1) governed, it did not require an offset because plaintiff did not receive a "retirement benefit" within the meaning of M.C.L. ' 421.27(f)(4)(a). That subdivision provides:
(4)(a) As used in this subdivision, "retirement benefit" mean a benefit, annuity, or pension of any type . . . that is:
(i) Provided as an incident of employment under an established retirement plan, policy, or agreement, including federal social security if subdivision (5) is in effect.
(ii) Payable to an individual because the individual has qualified on the basis of attained age, length of service, or disability, whether or not the individual retired or was retired from employment. Amounts paid to individuals in the course of liquidation of a private pension or retirement fund because of termination of the business or of a plant or department of the business of the employer involved shall not be considered to be retirement benefits. [Emphasis added.]
The Court of Appeals determined that plaintiff's pension was not a retirement benefit within the meaning of M.C.L. ' 421.27(f)(4)(a) because the fund was liquidated upon plaintiff's termination when Ameritech closed its Traverse City office.
The Supreme Court rejected the Court of Appeals= conclusion, observing that A[a]lthough the Ameritech Traverse City office was closed, the record does not reflect that the pension fund was liquidated.@ 466 Mich. at 316. The Court added:
In the context of the statute, the term "liquidation" pertains to multiple accounts rather than to an individual account. The statute exempts from the category of "retirement benefits" those amounts "paid to individuals in the course of liquidation of a private pension or retirement fund." Therefore, the text contemplates that liquidation pertains to multiple accounts and not merely the single account of an individual pensioner.
466 Mich. at 318.
In sum, the Court concluded that M.C.L. ' 421.27(f)(1) required coordination of plaintiff's unemployment benefits with her pension benefits. Plaintiff received a "retirement benefit" within the meaning of M.C.L. ' 421.27(f)(1). That subsection required coordination, whether or not the funds were subject to taxation at the time of their receipt.
Because the underlying federal statute that required broad coordination of pension benefits and unemployment benefits has been repealed, should the Legislature revisit M.C.L. ' 421.27(f)(5) which was enacted in response to this repealed federal law?
The Commission recommends that the Legislature examine M.C.L. ' 421.27(f)(1) and M.C.L. ' 421.27(f)(5) to determine what state policy should be regarding the scope of coordination of pension benefits and unemployment benefits.
IV. Michigan's statutory provision on prejudgment interest.
M.C.L. ' 600.6013(1) states:
Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section. However, for complaints filed on or after October 1, 1986, interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, "future damages" means that term as defined in section 6301.
M.C.L. ' 600.6301 on definitions in turn provides:
(a) "Future damages" means damages arising from personal injury which the trier of fact finds will accrue after the damage findings are made and includes damages for medical treatment, care and custody, loss of earnings, loss of earning capacity, loss of bodily function, and pain and suffering.
(b) "Personal injury" means bodily harm, sickness, disease, death, or emotional harm resulting from bodily harm.
The plain text of ' 6013(1) requires an award of prejudgment interest on a civil judgment except for "future damages." The statutory definition of "future damages," however, is limited to damages arising from personal injury. The statutory scheme thus appears to require courts to award prejudgment interest on future damages in any case that does not involve a personal injury.
B. The Paulitch v. Detroit Edison Co. and Buzzitta v. Larizza Industries, Inc. Decisions.
The Court of Appeals addressed this scheme in Paulitch v. Detroit Edison Co., 208 Mich. App. 656, 528 N.W.2d 200 (1995). It applied the plain statutory text: "We find there can be no interpretation of this plain language other than that a plaintiff is entitled to prejudgment interest when the suit does not result from a personal bodily injury." Id. at 662-663, 528 N.W.2d 200. The panel nonetheless observed that the statutory scheme is troubling:
We are sympathetic to defendant's position for the following reasons. First, this Court has repeatedly held that the purpose of prejudgment interest is to compensate the prevailing party for the delay in recovering money damages. There is no delay in paying plaintiff money to which he became entitled only as a result of the jury verdict. Second, although the amended Revised Judicature Act did define future damages as only applying to personal bodily injury, the Legislature distinguished between prejudgment interest on future damages and other damages. However, we believe that any modifications of this system should originate with the Legislature, not the courts.
Id. at 663, n. 2, 528 N.W.2d 200 (citations omitted; emphasis supplied).
In Buzzitta v. Larizza Industries, Inc., the Supreme Court denied leave to appeal from the Court of Appeals. In a concurring opinion, Justice Corrigan agreed with the analysis of the Court of Appeals in the earlier case of Paulitch:
The analysis of the statutory text in Paulitch appears to be sound. A policy basis is not apparent for the legislative choice to require an award of interest on damages that have not yet accrued. Nonetheless, courts are bound to apply the statute as written. This Court lacks authority to rewrite statutes to conform to our view of sound public policy. Indeed, we must apply statutory text even where we view the result as "absurd" or "unjust." People v. McIntire, 461 Mich. 147, 156, n. 2, 599 N.W.2d 102 (1999). In short, the proper role of the judiciary is to interpret and not rewrite the law.
641 N.W.2d at 594. Justice Corrigan urged the Legislature to examine the provisions regarding prejudgment interest on future damages, adding that A[t[he Legislature may wish to consider the concerns expressed in Paulitch in determining whether the statutory scheme implements a sound public policy.@ Id.
Should the Legislature revisit the provision on prejudgment interest contained in M.C.L. ' 600.6013(1)?
The Commission recommends that the Legislature review M.C.L. ' 600.6013(1) which allows an award of prejudgment interest on future damages in all non-personal injury cases, with a view to possible amendment so that prejudgment interest in not available on an award of any type of future damages.
V. Adequacy of notice in order to trigger
the running of the statutory redemption period.
M.C.L. ' 211.72 provides that "tax deeds convey an absolute title to the land sold, and constitute conclusive evidence of title, in fee, in the grantee, subject, however, to all taxes assessed and levied on the land subsequent to the taxes for which the land was bid off." M.C.L. ' 211.72 further authorizes a person holding a state tax deed to bring an action to quiet title against all parties who have a recorded interest in the property. However, under M.C.L. ' 211.141, interested parties are given a final redemption period that lasts for six months after the tax deed holder complies with the notice requirements of M.C.L. ' 211.140. M.C.L. ' 211.140 provides in pertinent part:
(1) A writ of assistance or other process for the possession of property the title to which was obtained by or through a tax sale . . . shall not be issued until 6 months after the sheriff of the county where the property is located files a return of service with the county treasurer of that county showing service of the notice prescribed in subsection (2). The return shall indicate that the sheriff made personal or substituted service of the notice on [the interested parties as specified] . . . .
(2) The notice served shall be in substantially the following form:
(3) If the grantee or grantees, or the person or persons holding the interest in the land as described in subsection (1) are residents of a county of this state other than the county in which the land is situated, the notice shall be served on that person by the sheriff of the county in which that person or persons reside or may be found . . . .
* * * *
(5) If the sheriff of the county where the property is located is unable, after careful inquiry, to ascertain the whereabouts or the post office address of the persons on whom notice may be served as prescribed in this section, service of the notice shall be made by publication. The notice shall be published for 4 successive weeks, once each week, in a newspaper published and circulated in the county where the property is located. . . . This publication shall be instead of personal service upon the person or persons whose whereabouts or post office address cannot be ascertained as set forth in subsection (3).
(6) Service may be made on a resident of this state by leaving the notice at that person's usual place of residence with a member of that person's family of mature age. . . .
If the proper statutory notice is not served, the six-month redemption period never begins to run and the right to redemption continues to exist. Moreover, "strict compliance with the tax sale notice provisions is required," and even "[a]ctual notice is not enough to satisfy the statute's notice requirements." Brandon Twp v. Tomkow, 211 Mich. App. 275, 284; 535 NW2d 268 (1995).
B. The Equivest Limited Partnership v. Brooms Decision.
This case involves a parcel of land located in Oakland County. When an earlier owner of the property defaulted on her taxes, a tax sale was held, and defendants received tax deeds from the state with regard to the 1991 and 1992 taxes. Later, plaintiff's predecessor in interest, Equifunding, Inc., obtained a tax deed with regard to the 1993 taxes. Equifunding sought to quiet title to the property and prepared a notice for service upon defendants. According to a letter from the Wayne County Sheriff's Office, the office attempted service nine times at defendants' Detroit residence but was unable to serve defendants because they refused to answer their door. Equifunding filed the Wayne County Sheriff's Office letter with the Oakland County Treasurer's Office. Thereafter, Equifunding's notice to defendants was published four times in the Lake Orion Review, an Oakland County newspaper. Equifunding later conveyed its interest in the property to plaintiff.
After defendants failed to respond to the published notice, plaintiff filed a complaint to quiet title and a request for writ of assistance to take possession. Defendants answered and as an affirmative defense claimed that they were not properly notified of their six-month redemption rights under M.C.L. ' 211.140. Plaintiff then moved for summary disposition, and the trial court granted the motion, concluding that the Wayne County Sheriff's Office letter was sufficient to constitute a return of service for purposes of complying with subsection M.C.L. ' 211.140(1).
On appeal, defendants claimed that under M.C.L. ' 211.140(5), the Oakland County Sheriff was required to file an affidavit or return of service disclosing that he could not ascertain defendants' whereabouts before service by publication was warranted. Defendants contended that because the Oakland County Sheriff did not do so, the statutory redemption period never began running. Defendants further made the general contention that because plaintiff did not strictly comply with the notice provisions of M.C.L. ' 211.140, the redemption period never began to run and the trial court erred in granting summary disposition to plaintiff.
The Court of Appeals agreed that the notice given was insufficient under the prescribed statutory scheme. First, giving M.C.L. ' 211.140(5) its plain meaning, that subsection does not apply to the facts of this case. It provides that if the sheriff of the county in which the property is located is unable to ascertain the whereabouts of an interested party, then service by publication in the county where the property is located is valid. In the instant case, there is no dispute that the whereabouts of defendants were in fact known. Moreover, subsection five provides for the alternative of notice by publication in the county where the property is located; it seems counterintuitive to commence publication in this specified county when it is known that the interested parties reside in a different county. Subsection five is simply not applicable to this case.
Subsection three does apply, the Court observed. Defendants had a known Wayne County address and were subject to service by the Wayne County Sheriff. Subsection three, however, includes no alternative means of providing notice if the interested party deliberately evades service. Although the subsection does allow for service by certified mail, that applies only to nonresidents of the state. Subsection six, in turn, allows service by leaving the notice at the interested party's residence, but then only with a member of the person's family.
The expedient of resorting to publication notice in Oakland County in response to frustrated attempts to effect personal service in Wayne County, upon the filing of Wayne County's notice of failure of personal service in Oakland County, cannot be reconciled with the statutory requirements, the Court noted. The statutory notice provisions at issue simply do not provide for this alternative. The choice confronting the Court of Appeals, then, was whether to read the statute in its most literal sense, in which case the publication notice that occurred here was insufficient, or whether to interpret the statute as allowing for the publication notice that occurred here as a reasonable response to a willful refusal to cooperate with efforts at personal service. The Court of Appeals felt constrained by case law to read the statute in its most literal sense. As the Court noted, within the realm of tax sales of real property, strict compliance with statutory requirements is an overriding policy.
In its concluding observations, the Court made the following appeal to the Legislature:
M.C.L. ' 211.140 must be strictly construed, even if doing so produces anomalous results. We thus feel constrained to hold that the notice attempts that occurred in this case did not serve to commence the six-month redemption period. The statute simply does not allow for publication notice in the county where the property is located in response to frustrated attempts at personal service upon residents of another county. We invite our Legislature to revisit the provisions of M.C.L. ' 211.140 in order to provide alternatives for situations in which a party whose whereabouts are known obstinately refuses service.
Should the provisions of M.C.L. ' 211.140 be amended to provide alternatives for service of process in situations where a party whose whereabouts are known refuses service?
The Commission recommends that the Legislature amend M.C.L. ' 211.140 to provide for alternative methods of service in situations where a party whose whereabouts are known refuses or otherwise avoids service of process.
VI. Public disclosure of juvenile sex offender=s
record once he/she reaches the age of majority.
Pursuant to the Sex Offenders Registration Act (SORA), M.C.L. ' 28.721 et seq., a juvenile for whom an order of disposition is entered for commission of one of several sex offenses is required to register with the local law enforcement agency. M.C.L. '' 28.722(a)(iii) and 28.723(1)(a); In re Ayres, 239 Mich. App. 8, 15, 608 N.W.2d 132 (1999). When the Legislature first enacted the SORA in 1994, the act simply required that offenders register with local law enforcement agencies. People v. Pennington, 240 Mich. App. 188, 191, 610 N.W.2d 608 (2000). In 1999, in response to a federal mandate, the Legislature amended the SORA adding public notification provisions. Under that amendment, the Department of State Police is charged with maintaining a computer database that allows persons living within the same zip code as an offender to access information that includes the offender's name, address, physical description, and the offense. Id.; M.C.L. ' 28.728(2). A juvenile offender is initially exempt from inclusion within the public database; however, for CSC II violations, that exemption ends when the individual becomes eighteen years old. M.C.L. ' 28.728(2).
B. The In the Matter of Wentworth Decision.
In In the Matter of Wentworth, the respondent appealed as of right an order of disposition entered following delinquency proceedings in which the family court determined that respondent, a minor, committed second-degree criminal sexual conduct (CSC II) with a six-year-old minor, M.C.L. ' 750.520c(1)(a). Respondent raised several issues, including a constitutional challenge to the registration and public notification requirements of the SORA, M.C.L. ' 28.721 et seq.
The Court addressed the constitutional challenges to the SORA, holding that the SORA is not an unconstitutional deprivation of respondent's liberty or privacy interests. Nevertheless, the Court expressed concern over the Adraconian nature of this act.@ Under the requirements of the SORA, respondent's registration would remain confidential while she remains a juvenile; however, once she reaches the age of majority, that information would be added to the public database and would remain there for the rest of her life. Although conceding the seriousness of the circumstances surrounding the offense in this particular case, the Court questioned the propriety of publicly and permanently labeling juveniles as convicted sex offenders:
Traditionally, our justice system has distinguished between juvenile delinquency and adult criminal conduct. M.C.L. ' 712A.1(2), which confers jurisdiction over juveniles on the family division of the circuit courts, specifically states that "proceedings under this chapter are not criminal proceedings." M.C.L. ' 712A.23 also limits the admissibility of juvenile records in both criminal and civil proceedings in an attempt to "hide youthful errors from the full glare of the public...." People v. Poindexter, 138 Mich. App. 322, 326, 361 N.W.2d 346 (1984). The public notification provisions of the SORA appear to conflict with our traditional reluctance to criminalize juvenile offenses and our commitment to keep juvenile records confidential.
In the Ayres case, the Court of Appeals held that the juvenile registration requirements of the SORA did not constitute cruel or unusual punishment in part because juveniles were exempt from the public notifications requirements of the act. Ayres, supra at 20-21, 608 N.W.2d 132. The Court of Appeals also concluded that "[i]n light of the existence of strict statutory safeguards that protect the confidentiality of registration data concerning juvenile sex offenders," the act did not offend the premise of our juvenile justice system that "a reformed adult should not have to carry the burden of a continuing stigma for youthful offenses." Id. at 21, 608 N.W.2d 132. However, in the Court=s view, Athe recent amendment of the statute removing those confidentiality safeguards raises questions about the continuing validity of our holding in Ayres. Because respondent did not raise this issue on appeal, we will not address it in this opinion.@ However, the Court stated in conclusion:
[W]e invite the Legislature to reconsider whether the implied purpose of the act, public safety, is served by requiring an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile transgression.
Should the provisions of the SORA that require public disclosure of a juvenile sex offender=s record upon reaching the age of majority be amended?
The issue in this case raises an important public policy question. It is for this reason that the Commission draws the matter to the Legislature=s attention. However, the Commission makes no recommendation to the Legislature.