MICHELE SILVERNA IL and SARAH L. PAQUIN-DODGE v. Count Yof Kent

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0322P (6th Cir.)
File Name: 04a0322p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHELE SILVERNA IL and
SARAH L. PAQUIN-DODGE,
Plaintiffs-Appellants,
v.
COUNT Y OF KENT; KENT
COUNTY SHERIFF’S OFFICE;
KENT COUNTY SHERIFF’S
DEPARTMENT; LAWRENCE A.
STELMA; JAMES R. DOUGAN;
CHECK ENFORCEMENT UNIT,
INC.; TERRY HEISS; and
DIANE CAYO,
Defendants-Appellees.
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No. 03-1413
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00559—Gordon J. Quist, District Judge.
Argued: June 18, 2004
Decided and Filed: September 22, 2004
Before: NORRIS, COLE, and ROGERS, Circuit Judges.
2 Silvernail, et al. v. County of Kent, et al. No. 03-1413
1The complaint alleges that “Kent County and/or various townships
located therein” have enacted ordinances assessing a twenty-five dollar
fee for dishonored checks. It does not appear that Kent County itself has
such an ordinance, but townships within Kent County do have such
_________________
COUNSEL
ARGUED: O. Randolph Bragg, HORWITZ, HORWITZ &
ASSOC., Chicago, Illinois, for Appellants. Timothy E.
Eagle, VARNUM, RIDDERING, SCHMIDT & HOWLETT,
Grand Rapids, Michigan, for Appellees. ON BRIEF: O.
Randolph Bragg, HORWITZ, HORWITZ & ASSOC.,
Chicago, Illinois, for Appellants. Timothy E. Eagle,
VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand
Rapids, Michigan, for Appellees.
ROGERS, J., delivered the opinion of the court, in which
NORRIS, J., joined. COLE, J. (pp. 8-14), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Michele Silvernail and Sarah
Paquin-Dodge appeal the district court’s dismissal of their
complaint alleging that the bad check collection scheme
utilized by Kent County (“the County”) violated their due
process rights under the United States and Michigan
Constitutions. Because the challenged process was
constitutionally sufficient, we affirm the judgment of the
district court.
Plaintiffs wrote bad checks to merchants in Kent County.
Under municipal ordinances, a $25 fee is assessed for the
passing of bad checks.1 The County contracts with Check

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 3
ordinances. See Grand Rapids Charter Township, Michigan, Ordinance
No. 348 (M ay 6, 1997) (prohibiting the drawing of checks without
sufficient funds or on closed accounts and specifying penalties); Grand
Rapids Charter Township, Michigan, Ordinance No. 349 (May 6, 1997)
(providing for the collection of expenses relating to the handling and
enforcement of dishonored checks); Grand Rapids Charter Township,
Michigan, A Resolution to Set the Cost Recovery Fees for Enforcement
of Dishonored Checks Ordinance (May 6, 1997) (authorizing County of
Kent to collect as its agent $3.50 per dishonored check for costs and
setting contractual fee of $21.50 per dishonored check for any check
enforcement unit).
Enforcement Unit, Inc. (“CEU”) to process dishonored checks
and collect the fee. As the district court explained:
CEU’s sole business activity is the collection through its
Check Operational Procedure of dishonored checks
received by area merchants. CEU provides its services
through contractual arrangements with various
municipalities throughout the state of Michigan.
Although CEU provides its services to merchants, it does
so in collaboration with the municipalities’ law
enforcement agencies. Merchants enroll in CEU’s Check
Operational Procedure by paying CEU an $85
registration fee. When a check received by a
participating merchant is dishonored, the check is
forwarded to CEU by the merchant’s bank or financial
institution. After CEU receives the dishonored check, it
sends out a series of notices and letters to the check
writer printed on the letterhead of the municipality’s law
enforcement agency. These notices and letters demand
payment of the check amount, bank fees, and a fee
payable to the municipality. The County and CEU
entered into a contract, pursuant to which CEU agreed to
provide services to the County for the processing and
recovery of bad checks and the investigation of bad
check violations under local township bad check
ordinances that were based on Michigan statutes making
4 Silvernail, et al. v. County of Kent, et al. No. 03-1413
2Plaintiffs filed a motion for class certification, but the district court
dismissed the action without ruling on the motion.
it unlawful to intentionally write checks drawn on
accounts with insufficient funds.
Silvernail v. County of Kent, No. 1:02-CV-559, 2003 WL
1869206, at *1 (W.D. Mich. Feb. 24, 2003). After receiving
a dishonored check, CEU issues a “Due Process Notice” to
the check writer, which demands separate payments by
cashier’s check or money order for the amount of the
dishonored check and bank fees (payable to the merchant) and
for the $25 government assessment fee (payable to the
County). The notice states that:
Violations of the check laws are administered for the
Police/Sheriff Department by the Check Enforcement
Unit, Inc. Repayment of the check(s) plus the bank fee
and government assessment fee is required. Should you
have any questions regarding this letter or the amount
due, please feel free to call [phone number] . . . .
The notice also cautions that “FAILURE TO MAKE
PAYMENT CAN RESULT IN A WARRANT FOR YOUR
ARREST.”
Plaintiffs received this notice from CEU and each paid the
government assessment fee of $25. They subsequently filed
the instant action in the Western District of Michigan,
alleging that the County and CEU violated their due process
rights under the Fourteenth Amendment to the United States
Constitution and the Due Process Clause of the Michigan
Constitution, because the County’s bad check collection
scheme deprived them of their property —the $25 assessment
fee— without adequate notice or an opportunity to be heard.2
The defendants filed motions to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). The
district court concluded that plaintiffs had failed to allege a

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 5
3This court reviews de no vo the district co urt’s grant of a mo tion to
dismiss pursuant to R ule 12 (b)(6 ). Powell v. Jacor Communications
Corp ., 320 F.3d 599 , 601 (6th Cir. 200 3). In conducting its review, the
court “must construe the complaint in the light most favorable to the
plaintiff, accept all of the complaint’s factual allegations as true, and
determine whethe r the plaintiff undoubted ly can prove no set o f facts in
support of his claim that would entitle him to relief.” Id. at 601-02
(quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 50 9, 512 (6th Cir.
200 1)).
due process violation, because they had failed to show a
deprivation of property and alternatively because the process
supplied was adequate. Accordingly, the district court
granted the motion and dismissed the case. Plaintiffs appeal.
The district court properly dismissed plaintiffs’ complaint
because the complaint failed to state a claim upon which
relief could be granted.3 To state a claim for a violation of
procedural due process under 42 U.S.C. § 1983, plaintiffs
must show that they were deprived of a liberty or property
interest, see Bd. of Regents v. Roth, 408 U.S. 564 (1972),
and that the procedures afforded to protect that interest were
insufficient under the balancing test of Mathews v. Eldridge,
424 U.S. 319 (1976). The district court ruled that plaintiffs
lacked a protected interest because they voluntarily paid the
$25 fee. Silvernail, 2003 WL 1869206 at *4-*5. We need
not decide whether the district court was correct on that point,
because plaintiffs received sufficient process even if we
assume that they were deprived of their property.
The essential elements of due process are notice and an
opportunity to be heard. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985). Due process is a
flexible concept, and the process required is context specific.
Zinermon v. Burch, 494 U.S. 113, 127 (1990). In
determining what process is due under Eldridge, supra, the
court must consider the nature of the private interest, the risk
of an erroneous deprivation under the procedures in place and
the value of any additional procedural safeguards, and the
6 Silvernail, et al. v. County of Kent, et al. No. 03-1413
government’s interest—including the administrative burdens
additional safeguards would impose.
Although the due process notices issued by CEU did not
inform the check writers of the availability of a hearing or the
procedure for requesting one, the district court nevertheless
concluded that the notices satisfied the requirements of due
process because they “were reasonably calculated to inform
the Plaintiffs of the allegations against them and provided a
means for responding to the allegations.” Silvernail, 2003
WL 1869206 at *5. The district court noted that the private
interest at stake—the $25 assessment fee—was minimal.
With respect to the value of additional procedures, the district
court stated:
[T]here is no indication that additional procedural
safeguards would reduce the risk of an erroneous
deprivation of Plaintiffs[’] money. As indicated in the
Due Process Notice, the proof of a bad check violation is
the returned check itself. Plaintiffs had notice of the
returned check and were provided with a telephone
number to call if their checks were stolen, if their
accounts had been garnished, or if there was any other
reason why they should not be required to pay the
Government Assessment Fee. Plaintiffs did not attempt
to call the telephone number, and they have not
suggested that additional safeguards would reduce the
likelihood of an erroneous deprivation. Moreover, as the
County Defendants note, if Plaintiffs had failed to pay
the Government Assessment Fee, the County Defendants
could not have deprived Plaintiffs of their property
unless they made a determination to file a criminal
complaint, in which case Plaintiffs would have been
entitled to a full trial.
Silvernail, 2003 WL 1869206 at *6. Finally, the district court
recognized that the County had a significant interest “in
resolving bad check complaints outside of the criminal
system, thereby reducing administrative costs associated with

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 7
4The court’s holding also disposes of plaintiffs’ due process claim
under the Michigan Constitution, as the Michigan Constitution affords no
greater protection than does the United States Constitution. See Williams
v. Hofley M fg. Co ., 424 N.W.2d 278 (Mich. 1988) (applying federal cases
to, and analyzing together, claims made under the Michigan and federal
due process clauses).
such violations and avoid unnecessary criminal or civil
proceedings.” Requiring the County to implement additional
procedures, such as a full hearing for each bad check passed
in the county, would impose significant costs and
administrative burdens without any accompanying benefit. Id.
We concur in the reasoning of the district court. Rather
than institute burdensome criminal procedures for each bad
check passed, the County has implemented a system which
permits check writers to take corrective actions without
criminal sanctions. Plaintiffs have not alleged that erroneous
assessments of the $25 fee were not correctable by the
procedures provided—a telephone call to CEU. In any event,
had plaintiffs failed to pay the assessment fee, they would
have been entitled to the full panoply of due process
protections when and if the County instituted a criminal
action to collect the fee. Accordingly, under the balancing of
the interests required by Eldridge, the process provided by the
County’s bad check collection scheme is constitutionally
sufficient.4 The judgment of the district court is AFFIRMED.
8 Silvernail, et al. v. County of Kent, et al. No. 03-1413
______________
DISSENT
______________
R. GUY COLE, JR., Circuit Judge, dissenting. I disagree
with the majority’s conclusion that this case should be
dismissed pursuant to Rule 12(b)(6). The majority’s opinion
misreads the statutory scheme – which, if read correctly,
illustrates that the letter sent to the plaintiffs was misleading,
and that paying the fee was in no way an alternative to
criminal prosecution.
The majority asserts both that the plaintiffs could have been
heard through the criminal justice system if they had refused
to pay the fee, Maj. Op. at 7 (stating that “had plaintiffs
failed to pay the assessment fee, they would have been
entitled to the full panoply of due process protections when
and if the County instituted a criminal action to collect the
fee”), and that, as a corollary, “the County has implemented
a system which permits check writers to take corrective action
without criminal sanctions.” Maj. Op. at 7. The majority is
wrong to view the collection process as an alternative to the
criminal process. Although CEU’s letter suggests that this is
the case, the relevant Michigan statute and the Grand Rapids
Ordinances mentioned by the majority say otherwise.
The Michigan Penal Code criminalizes uttering bad checks
with the intent to defraud. M.C.L.A. § 750.131. Bad checks
uttered for less than $100 are punishable by up to 93 days in
jail and a fine not to exceed $500. M.C.L.A.
§ 750.131(3)(a)(i). The punishment for larger checks and
subsequent offense ranges considerably higher. M.C.L.A.
§ 750.131(3)(a)(ii)-(c).
Aside from this criminal scheme, Michigan law provides a
specific civil cause of action to payees who have received bad
checks. M.C.L.A. § 600.2952. This cause of action is “[i]n
addition to applicable penal sanctions.” M.C.L.A.

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 9
§ 600.2952(1). It makes a bad check writer liable for the
amount of the check, plus a $25 processing fee, civil
damages, and costs. Id. Unlike the criminal statute, this civil
statute does not have an intent requirement. The statute
further authorizes the payee or an agent of the payee to send
a demand for payment of the check and the processing fee.
M.C.L.A. § 600.2952(2).
Indeed, M.C.L.A. § 600.2952 provides the “text of the
written demand,” and this text differs significantly from the
letter sent by CEU. The text in the statute makes it crystal
clear that repaying the check and paying the processing fee
will settle civil liability:
‘A check, draft, or order for payment of money drawn by
you for $__________ was returned to me/us/our client
(client's name) dishonored for:
[ ] Insufficient funds
[ ] No account
This notice is a formal demand for payment of the full
amount of the dishonored check, draft, or order plus a
processing fee of $25.00 for a total amount of
$__________. [I]f you pay this total amount within 7
days, excluding weekends and holidays, after the date
this notice was mailed, no further civil action will be
taken against you.
If you do not pay the $__________ as requested above,
but within 30 days after the date this notice was mailed
you pay the amount of the dishonored check, draft, or
order plus a $35.00 processing fee, for a total amount of
$__________, no further civil action will be taken
against you.
If you fail to pay either amount indicated above, I/we/our
client will be authorized by state law to bring a civil
action against you to determine your legal responsibility
10 Silvernail, et al. v. County of Kent, et al. No. 03-1413
for payment of the check, draft, or order and civil
damages and costs allowed by law.
If you dispute the dishonoring of this check, draft, or
order, you should also contact your bank or financial
institution immediately.’
M.C.L.A. 600.2952(2). Of course, in the typical context, a
sender of this letter is a private payee, not constrained by due
process requirements. But, even if sent by a government
entity, this letter indicates that the failure to pay will result in
a hearing – a civil action – before a deprivation occurs.
The Grand Rapids Ordinances cited by the majority track
the structure of the Michigan statute. Ordinance No. 348
criminalizes uttering bad checks and provides criminal
penalties, akin to M.C.L.A. § 750.131. And, like M.C.L.A.
§ 600.2952, Ordinance No. 349 provides for non-criminal
check collection. According to Ordinance No. 349(c), the
“expense of a dishonored check response” constitutes “a debt
of that person and is collectable by the Charter Township of
Grand Rapids and the County of Kent in the same manner as
in the case of an obligation under a contract, expressed or
implied.” In the event of a failure to pay the expenses of a
dishonored check response, “the Charter Township of Grand
Rapids or the County of Kent may commence civil suit to
recover the expenses and any costs allowed by law.”
Ordinance No. 349(e) (emphasis added). The Grand Rapids
Board set the “expense of a dishonored check response” at
$25 in a May 6, 1997, Resolution.
Had CEU sent the letter provided in the Michigan statute or
something similar to it, I would be inclined to think that no
due process violation occurred. I would agree that the check
writer voluntarily paid the processing fee and waived his or
her right to a civil hearing by choosing to resolve the dispute
prior to a civil action. Yet, the letter provided by CEU
nowhere indicates that payment is settles civil liability
authorized by state law or contract liability created by city

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 11
ordinance, or that – more importantly – paying the fee in no
way precludes a criminal prosecution. CEU’s letter, which
appears on the letterhead of the Kent County Sheriff
Department, states that:
Violations of the check law are administered for the
Police/Sheriff’s Department by [CEU]. Repayment of
the check(s) plus the bank fee and government
assessment fee is required. Should you have any
questions regarding this letter or the amount due, please
feel free to call: [phone number].
In fact, under neither the state statute nor the city ordinance
are the fines being administered for the “Police/Sherriff’s
Department.” Under the Michigan statute, the violations are
being administered for the payees – not the police – by CEU,
albeit with County facilitation and County collection of the
processing fee. Under the city ordinance, the fines are being
administered on behalf of the “Township Supervisor.”
Ordinance No. 349(e). Repayment of the processing fee is
not “required”; it is a civil liability and/or contract obligation
that, if not voluntarily paid, must be grounded in a civil
action. Finally, the notice states: “FAILURE TO MAKE
PAYMENT CAN RESULT IN A WARRANT FOR YOUR
ARREST.” Such a notice can easily mislead a reader into
believing that the notice and fee are an alternative to criminal
proceedings rather than civil proceedings.
With this background in mind, I turn to the alleged due
process violation. Our first question is: Were the plaintiffs
deprived of property when they paid the $25 fee to the
County? I conclude that they were, because, although they
voluntarily paid the money, they were misled about the nature
and consequences of their payment. In Herrada v. City of
Detroit, 275 F.3d 553, 557 (6th Cir. 2001), we held that such
a payment could be a deprivation for due process purposes:
Herrada contends that the City interfered with her
property interest by making false and misleading
12 Silvernail, et al. v. County of Kent, et al. No. 03-1413
statements in the citation and overdue notice she
received. If these notices failed to comport with the
requirements of procedural due process, the City
arguably violated Herrada’s rights, because she paid her
fines only after receiving the notices. We must therefore
determine whether the notices that she received were
constitutionally sufficient.
Here, the letter from CEU informed the plaintiffs that
payment “was required,” and the letterhead and portions of
the letter imply that paying the fee would stave off
prosecution, which is not the case. The letter certainly did not
inform the check writers that the fee was a civil liability and
that paying it forfeited the right to challenge the fee in a civil
proceeding, as the state mandated letter does. In sum, CEU
and the County sent out letters that misinform the recipients
of the nature and consequences of payment of the $25 fee, and
the plaintiffs who paid the fee on that basis were deprived of
their property.
Having concluded that plaintiffs have alleged a deprivation,
I turn to whether the procedures accompanying that
deprivation were insufficient. As the majority notes, the
essential elements of due process are notice and an
opportunity to be heard. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985). The majority
concludes the letter provided adequate notice even though it
concedes that the letter “did not inform the check writers of
the availability of a hearing or the procedure for requesting
one,” Maj. Op. at 6, because the notice provided a phone
number for “any questions regarding this letter or the amount
due.” The majority cites no authority for the proposition that
a notice that does not indicate that the recipient has any right
to dispute the fee, and in fact states that payment “is
required,” is sufficient. In our most analogous case, Herrada
v. City of Detroit, this Court concluded that notice was
sufficient because “the citation clearly states that a hearing is
available to contest the City’s allegation,” adding that “the
citation and overdue notice also provide telephone numbers

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No. 03-1413 Silvernail, et al. v. County of Kent, et al. 13
to call for more information.” Herrada, 275 F.3d at 557
(emphasis added). The case cannot be read to indicate that
providing a phone number alone is enough. Indeed, in
considering the impact of potentially misleading statements,
the Herrada Court explicitly noted that the statements did not
render notice insufficient because they “do not raise doubts
about an owner’s ability to contest the allegations in a
hearing, or about the result of paying the fine and thereby
waiving a hearing.” Id. at 558. In this case, the check writers
were never informed of their right to a hearing, the results of
paying the fee, or the resulting waiver of a hearing. Further,
in addition to not giving notice, the statements which suggest
that the fee was related to criminal proceedings affirmatively
lead a reader away from the conclusion that check writers
may challenge their liability for the processing fee in civil
court.
Even if the letter gave proper notice, it cannot be said at
this stage of the litigation that plaintiffs had an opportunity to
be heard. There are three potential opportunities to be heard
in this case: the phone number provided by CEU, a criminal
proceeding, or a civil proceeding. There is no indication that
a check writer could challenge the fee in a criminal
proceeding – at a criminal proceeding, the burden of proof is
different and there is an intent element required for criminal
conviction that is not required under M.C.L.A. 600.2952 for
collection of the fee. The defendants likewise cannot claim
that these plaintiffs could have contested the fee in a civil
proceeding, because the letter certainly did not give notice
that such a thing existed. That leaves the phone number. We
simply do not know whether it is true that a check writer who
calls this phone number can dispute the fee. This case comes
to us on Rule 12(b)(6) motion. All that is in the record is the
complaint and the letter sent by CEU, attached to the
complaint. Thus, we know that the plaintiffs allege in their
complaint that the County does not provide an opportunity to
be heard and that the letter sent by CEU includes a phone
number. We do not know what happens when a check writer
calls this phone number. We do not know whether the other
14 Silvernail, et al. v. County of Kent, et al. No. 03-1413
side of the line provides a procedure for challenging the bad
check determination, a computerized menu, or a perpetual
busy signal.
Due process is a flexible context. Zinermon v. Burch, 494
U.S. 113, 127 (1990). Procedure may not have to be
elaborate in a case like this where the property interest is
small, but there has to be some kind of notice and some kind
of hearing. For purposes of Rule 12(b)(6), the plaintiffs have
sufficiently alleged a due process violation.
I am not unmindful of the majority’s concerns for the added
administrative costs of “[r]equiring the County to implement
additional procedures.” Maj. Op. at 7. Yet, I believe that the
due process concerns could be alleviated by using the text of
the letter in the Michigan statute. Using a clear and
informative letter instead of a misleading and/or false one
would be of little cost to the County. Payments made in
response to a proper letter would not be deprivations. Check
writers who choose not to voluntarily pay would have notice
and a right to be heard in civil court. The County has no
legitimate interest in maintaining the text of a misleading
letter.
I cannot say that plaintiffs have failed to state a claim, and
I therefore respectfully dissent.

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