1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0322P (6th C ir.) File Name: 04a03 22p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
M ICHEL E S ILVE RNA IL and S ARAH L. P AQ UIN -D ODGE , Plaintiffs- Appellant s,

v.

C OUNT Y OF K ENT ; K ENT C OUNTY S HERIFF ’ S O FFICE ; K ENT C OUNTY S HERIFF ’ S D EPARTMENT ; L AWRENCE A. S TELMA ; J AMES R. D OUGAN ; C HECK E NFOR CEME NT U NIT , I NC .; T ERRY H EISS ; and D IANE C AYO , Defenda nts-Appe llees. X - - - -
> , - - - - - - - - - - - - N No. 03-1413

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 02-00559—Gordon J. Quist, District Judge.

Argued: June 18, 2004 Decided and Filed: September 22, 2004
Before: NORRIS, COL

E, and ROGERS, Circuit Judges. 2 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

1 The compla int

all eges tha t “ Kent Coun ty and/ or vari ous t ownsh ips locatedthere in” hav e enacted or dinances asses sing a twent y-f ive doll ar fee for dishonored checks. It does not appear that Kent County i tsel f has such a n ordinanc e, but townships wit hin Kent Count

y do have suc h _________________ COUNSEL

ARGUED: O. Randolph Bragg, HO RWITZ, H ORWITZ & ASSOC., Chicago, Illinois, for Ap pell ants. Timothy E. Eagle, VARNUM, RIDDERI NG, SCHMIDT & HOWLETT, Grand Rap i ds, Michigan, for Appellees. ON BRI EF: O. Randolph Bra gg, HORWITZ, HORWI TZ & ASSOC., Chicago, Illinois, for Appellants. Timothy E. Eagle, VARNUM, RIDDERI

NG, SCHMIDT & HOWL ETT, Grand Rapids, Mic

higan, for Appe llees.
ROGERS, J., deliver

ed the opi n i on of the court, in which NORRI S, J., join ed. COLE, J. (pp. 8-14), delivered a separate dissenting opinion.

_________________ OPINION

_________________ ROGERS, Circuit Judg e . Michele Silvernail and Sarah Paqui n-Dod ge appeal t

he distric t court’s dismissal of their
com pla intallegi

ng that t he bad check co llection s cheme utilized by K en t C ou nt y ( “th e County”) violated their due process rights under the United States and Mich igan Constitution s. Because the challen ged process was constituti onally

sufficient, we a ffirm the judgment of the district c ourt.
Plaintiffs wr ot e b ad ch ec ks to me rc ha nt s i n K en t C ou nt y. Under municipal ordinances, a $25 fee is assessed for the passing of bad checks. 1 The County contracts wit

h CheckNo. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 3

ordinanc es. S ee Grand Rapids Charte r Township, Michigan, Ordinance No. 348 (M ay 6, 1997) (prohibiting the drawing of checks without

su ffi cient funds or on closed accounts and specifyi ng penalties); Grand Rapids Chart er Towns hip, Michig an, Ordina nce No. 349 (May 6, 1997) (providing for the c oll ection of expenses relati ng to the handling and enforcement of di shonor ed chec ks); Grand R a pids Chart er Towns hip, Michigan, A Resol uti on to Se t t he Cost Recover y Fe es for Enforcement of D ish onored Che cks Ordi nance (May 6, 1997) (a uth oriz ing County of Kent to collect as its agent $3.50 per dishonored check for costs and setti ng cont ract

ual fee of $21. 50 per dish onored check f or any che ck enforcement unit). Enforcement

Unit, Inc. (“CEU”) to pro cess dishonored check s and collect the fee. As the district court explained:

CEU’s sole business activity is the collecti on throug

h its Check Operati onal Proc edure of dishonored checks received by a rea merc hants. CEU provides its services throu gh cont ractua l arran ge ments with variou s municipalities throughout the state of Michigan. Alth ough CEU provid

es its ser vices tomerchants, it does
so in collaboration with the municipalities’ la w enforcement

agencies. Merchants enrol l in CEU’s C heck Operational P ro cedure by paying CEU an $85 registration

fee. When a check rece iv ed by a participating mercha

nt is dishonored, the

check is forwar dedt o CEU by the mercha nt’s bank or financial institution. After CEUreceives the dishonored check, it sends out a series of notices and letters to the c hec k writer printed on the letterhead of the municipality ’s law enforcement

agency . These notices and l etter s demand payment of the check amount, b ank fe es, and a fee pa ya bl e to the municipality. The County and CEU entered into a contract, pursuant

to whichCEU agr

eed to provide services to the Co unty for the proc essing and recovery of bad checks and the investigation of bad check v iol ations under local township bad check ordinances that were based on Michigan statutes making 4 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

2 Plain tiffs filed a motion for class certi fica tion, but the dist rict court dismissed the acti on without ruli ng on the motion. it unla wful to intentionally write checks dr awn on accoun ts with insufficien

t funds.

Sil vernai l v. County of Kent , No. 1:02- CV-5 59, 20 03 WL 1869206, at *1 (W.D. Mich. Feb. 24, 2003). After receiving
a dishonore d check , CEU iss ues a “D ue Proce ss Notice ” to the check writer , w hich demands separate pay ments by cashier’s che ck or

money order

for the amount of the dishonored

check and bank fees (payable

to the merchant) and for the $ 25 gove rnment assessment fee (pay able to the County ). The no tice stat

es that:

Violations of the check law s are ad mi nist ered for the Police/Sheriff

Department by the

Check Enforcement Unit, Inc . Re payment of the c heck(s) plus the bank fee and government

assessment fee is required. Should you have any questions

regar ding this letter or th e amou nt due, please feel free to ca ll [phone number] . . . .

The notice also cautions that “FAILURE TO MAKE PA YME NT C AN R ES ULT IN A WARRANTFOR YOUR ARREST.”

Plaintiffs received this notice from CEU and each paid the government assessment fee of $25. They

subsequently filed the instant act ion in the Western District of Michigan, alleging that the County

and CEU vi olated th eir due process rightsunder the Fourteenth Amendment to the United States Constitution and the Due Process Clause of the Michigan Constitution, because the County ’s b ad check collection scheme deprived them of their property

—the $25 assessment fee— withoutadequate notice or an opportunity to be hear d. 2 The defendants filed motions to dismiss for failure to state a claim under F ederal

Rule of Civil Pr oce dure 12(b)(6). The districtcourt concluded that plai ntiff s had failed to allege aNo. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 5

3 Th is court r eviews de no vo the district co urt’s gran t of a mo tion to dis mi ss pursu ant to R ule 12 (b)(6 ). Powell v. J acor Communicat ions Corp ., 320 F.3d 599 , 601 (6th C ir. 200 3). In conduct ing i ts r eview, the court “must construe t he complaint i n the li ght most favorable to t he pl aintiff, acce pt all of the com plaint’s fac tual allega tions as tru e, an d de t ermine whethe r the pla intiff undo ubted ly can p rove no set o f facts in support of hi s cl aim that would ent itl e him t o reli ef.” Id . at 601-02 (quoting Zi egler

v. IBP H og Market, Inc. , 249 F.3d 50 9, 512 (6th Cir. 200 1)). due process violation, because they had f a iled to show a deprivation

of prope rty and alte rnative ly b ecause

the proc ess supplied was ade quate. A ccordin gly , the dis tri ct court granted the motion and dismissed the case. Plaintiffs appeal.

The district

court pr operly dismissed plaintiffs’ complaint because the compl aint fai led to state a claim upon which relief could be granted. 3 To state a claim for a vio latio n of procedural due proc es s under 42 U.S.C. § 1983, plaintiffs must show that t

hey were de prived of a liberty or prope rty interest , see Bd. o

f Regents v. Roth , 408 U.S. 564 (1972), and that the procedures afforded to protect that interest were insufficient

under the balanci ng test of Mathews

v. Eldridge , 424 U.S. 319 (1976). The district cour t ruledthat plaintiffs lacked a protected interest because they voluntarily paid t he $25 fee. Silverna il , 2003 WL 186 9206 at *4 -*5. We need notdecide whether

the district court was correct on that point, because plaintif fs received sufficient process even if we as su me th at th ey w er e d ep ri ve d o f t he ir pr op er ty.
The essential elements of due process are notice and an op portun ity

to be heard. Cleveland Bd. of Educ. v. Loudermil

l, 470 U.S. 532, 546 (1985)

. Due process is a flexible concept, and

the p roce ss re quire d is context specific. Zin ermon v. Burch , 494 U.S. 113, 127 (1990 ). I n determini ng wh at process is due under Eldridge, supra , the court must consider

the nature of the pr

ivate inte rest, the risk of an erroneous deprivation under the procedures in placeand the value of any

additional procedural safeguar ds, and the 6 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

government’s interest—including the administrative burdens additional safeguards would impose.

Alt hou gh the due process notices issued by CEU did not informthe check writers of the availability of a he aringor the procedure for req

uesting one, the d

istrict c ourt neve

rtheless concluded

that the notices satisfied the requirements of due process because they “were reasona bly calcula ted to inform the Pla intiff

s of the allegations against them and provided a
means for responding to the allegations.” Sil vernail , 2003 W L1869206 at *5. The district court noted that the pri vat e i nterest at stake—the $25 assessment fee—was minimal

. Withrespect to the value of additional procedures, the district court stated: [T]here is no indication that additional pro cedur al safeguards wou ld reduce the risk of an erroneous deprivation

of Plaintif

fs[’] mo ney . As indicated in the Due Process Notice, the proof of a bad c heck viol ation is the retur ned che ck itself. Plaintiffs had notice of the returned check and were provided with a tele phone number to call if

their ch ecks we

re stolen , if their
acco unts had been garnished, or if there was any other

r eason why they

should not be required to pay the Government

Assessment Fee. Plaintiffs did not attempt to call the t

e l ephone number, and they have not suggested that additional safeguards would reduce the likelihoodof

an erroneous deprivation. Moreover, as the County Defendants note, if Plaintiffs had fa ile d to pay the Government Assessment Fee, the County

Defend ants could not have deprived P laintiff s of their

propert y unless they made

a det ermination to file a criminal complain t, in w h ich case Plaintiffs would have been entitled t o a full tr ial.

Silverna il , 2003 WL 1869206 at *6. Finally, the district court recognized

th at th e C ou nt y had a signific ant inter est “in resolving bad ch eck complaints outside of the criminal sys tem, thereby

reducin g admini strative

costs ass ociated

withNo. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 7

4 The court’ s holdi ng als o disposes of plain tiffs’ due pr oce ss claim under the Michigan Constituti on, as t he Michi gan Cons ti tut ion a ff ords no greate r protect ion th an does the United State s Co nstitution. See Wi llia ms
v. Ho fley M fg. Co

., 424 N.W.2d 278 (Mich. 1988) (apply ing f ederal cas es to, and analyzing togethe r, cl aim s made under th e Michigan and f ederal due process clauses). suchviolations

and avoid

unnece ssary

criminal or civil proceedings.”Requiring the County to implement additional procedures, such as a full hearing for each bad check

passed inthe county, would impose signific ant costs and
a dministrative burdens without any ac companying benefit. Id

. We concur in the reasoning of the district co urt. Rather t han institute burdensome criminal procedures for each ba d check passed, t he County

has imple

mente d a system which permits check writers to take corrective a c tio ns without criminal sanctions. Plaintiffs have not alleged that erroneous
assessme nts of the $25 fee were not correc table by the procedures provided—a telephone call to CEU. In a ny e vent, had plaintiff s failed t o pay the asse ssme nt fee, the

y would have been en

titled to th e full pa

noply of due pr

ocess protections when and if the Count y i nstituted a criminal actionto collect

the fee. Accordingly

, under the balancing of the in te re st s r eq ui re d b y Eldridge , the process provided by the Coun ty’s bad che ck colle ction sch eme is constitutiona lly sufficie nt. 4 The judgment of the district court is AFFI RMED. 8 Silverna il, 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 dismissedpursuant to Rule 12(b)(6). The majority ’s opinion misreads th e s ta tu to ry s cheme – w hi ch , i f r ea d c or re ct ly, illustrates that the letter

sent to the plaintiffs was misl eadin g, and that pay ing the f ee was in

no way an alter native to criminal prosecution.

The majority asserts both that the plaintiffs could ha ve been heard through the criminal justice system if they had refused to pay the fe e, Maj. Op. at 7 (stating that “had plaintiffs failed to pay the as sessme nt fee, they w ould have been entitled to the full

panoply of due pr ocess pro tections when and if the Coun

ty in stituted a

criminal a c tion to collect the fee”) , and that, as a corollary , “the County has implemented
a system which pe rmits check writers to take corrective a ction without criminal sanctions.” Maj. Op. at 7 . The majority

is wrongto view the c ollection process as an alternative to the criminal process . Althoug h CEU’s le

tter 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 t han $100 a

re punishable by

up to 93 da ys in jail and a fine n ot to exceed $500. M.C.L.A. § 750.131(3)(a)(i). The punishment for larg er checks and sub sequent

offense ranges considera bly higher . M.C.L.A. § 750.131(3)(a)(ii)-(c).

Aside from this criminal scheme, Michigan law provides a specific civilcause of action

to payees who ha

ve received bad checks. M.C.L.A. § 600.2952. This c ause of action i s “[i]n addition to applicable penal sanctions.” M.C.L.A.No. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 9

§ 600 .2952(1) . It ma

kes a bad check w riter lia ble for the amount of the check, plus a $25 processing fe e , civ il damage s, and costs. Id . Unlike the crimi nal statut e, this civ il statute does not ha

ve an inte

nt requir ement. The statu

te further authorizes the pay ee or an agent of the pay

ee to send
a demand for

payment of the check and the processing f ee. M.C.L.A. § 600.2952(2).

In deed, M.C.L.A. § 600.2952 provides the “text of the writtendemand,”

and this text differs

si gnif icantly from the letter sent by CEU. The text i n the statute makes it crysta l clear that repay

ing the check and pay

ing the processing fee wi ll se tt le ci vi l l ia bi li ty:

‘A check, draft, or

order for pay

ment of money dra

wn by you for $__________ was returned to me/us/our cl ient (client's name) dishonored for: [ ] Insufficient funds [ ] No account

This noti ce is a f

ormal de mand for pay ment of the

full amount of the dishonored

check, draft, or order

plus a proces si ng fee of $25.00 for a total amount of $__________. [I]f y

ou pay this total a

mount within 7 day s, excluding

weeken ds a n d holiday

s, after the date this notice wa s mailed, n o furthe r civ il action will be taken against y

ou.
If you do no t p ay the $_

_________ as requested above, butwithin 30 days after the date this notice was mailed you pay the amount of the dishonore d c he ck, draft, or order plus a $35.00 processing fee, for a total amount of $__________, no further civil action wi l l be taken against y ou.
If you fail to pay

either amount

indicated above, I/we/our client will be authorized by

s tate law

to bring a civil actionagainst y

outo determine your leg al responsibility 10 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

for pay ment of th e che ck, draf t, or orde

r and civ

il damages and costs allowed by law.

If you dispute the disho norin g of this check, draft, or order, you should also contact your ba nk or financial institution immediately.’

M.C.L.A. 60 0.29 52(2). Of course, in the ty pical context, a sender of this letter is a private pay ee, not constrained by due process requirements. But, e ven if s ent by a g overnment
en ti ty, this letter indicates that the failure to pay will resu lt in a heari ng – a c ivil action – befor e a depr ivation oc curs.
The Grand Rapids Ordina nc es cited by the major

ity track the struc ture o f the M ichiga n statute. Ordinance No. 348 crimin alize s uttering bad checks and provides criminal penaltie s, akin t o M.C.L.A. § 750.131. And, like M.C.L.A. § 600.2952, Ordinance No. 349 provides for no n-criminal check collection. According to O rd inance No. 349(c), the “expense of a dishonored check

response” constitutes “a debt of that person

and is col lectable

by the Charter T ownship of Grand Rapids and the County of Kent in the same manner as inthe case of an obligation under a con tra ct, expressed or implied.” In the event of a fa ilure to pay the expenses of a dishonored

check response, “the Charter Township of Grand Rapids or the County of K en t may commence civil suit to
recover the expens es a

nd a ny costs allowed by law.” Ordinance No. 349(e) (emphasis added). The Grand Rapids Board set the “ex pe nse of a dishonored check response” a t $25 in a May 6, 1997, Resolution.

Had CEU sent the le

tter prov ided in the Michigan statute or something similar to it, I wo uld be inclined to think that no due process violation occurred. I would agree that

the check writer voluntarily paid the proce ssing fee and wa i ved his or her right to a civil he aring by choosing to resolv e the disp

ute prior to a civil actio n. Yet, the letter provided by CEU nowh e re indicate s that pay ment is set

tles civil liability authorized

by s ta te l aw or contract li ability create d by

cityNo. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 11

ordinance, or tha t – m ore importantly – pay ing the fee in no way precludes a criminal prosecution. CEU ’ s letter, which appears on the l etterhead of the Kent County Sheriff Department, state s that:

Violations of the check law are administered fo r t he Police/Sheriff’ s Dep artment by [CEU]. Repay ment of the check(s) plus the b ank f ee and government assessment

fee is required. Should y ou have an y questions regarding this letter or the amount due , please feel free to ca ll: [phone n

umber].

Infact, under neither the state statute nor the city ordinance
are the fines being administere d fo r the “Police/Sherriff’s Department.” Under

the Michigan statute, the violations are being administe

red for the pay ees – notthe police – by CEU, albeit with County facilitation and County collection of the processingfee. Under

the city ordinance , the fines are being administered

on behalf of the “Township Supervisor.” Ordinance No. 349(e). Repay ment of the process ing fee is not“required”; it is a civil liability and/or c ontract obligation that, if no t volunt arily

paid, must

be gro unded in a

civil action. Finally

, the n otice states: “FAIL URE TO MAKE PAYMENT CAN RESULT IN A WARRANT FOR YOUR ARREST.” Su ch a n ot ic e c an ea si ly m is lead a r eader i nto believing that

the notice and fee are an alter native to criminal proceedings rather than civil proce edings.

W iththis background in mind, I turn to the alleg ed d u e process violation. Our first question is: Were the plaintiffs dep riv ed of property w

hen they paid the $25 f ee to the Co un ty? I conclude that

th ey were, because, although they voluntar ily paid the money, they

were misled

about the nature and consequence s of th eir payment. I n Herrada v. City of Detroit , 275 F.3d 553, 557 (6th Cir. 2001), we held that such a pay ment coul d be a de

privation for due process p

urposes:
Herrada cont ends that the City interfere d with her propert y intere st by

making false and misleading 12 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

s t atements

in the citation and overdue notice she received. If thes e notices failed to comport with the require me nts of proce dural due process , the City argua bly violated Herrada’s rights, because she paid her fines only after

rece iving the n otice s. Wemust therefore determine whethe r the notices that she received were constituti onally

sufficie nt. Here, the lette

r from CEU in formed the plaintiffs that payment “was required ,” an d the letterhead and portions of the letter imply that pay ing the fee would stave off prosecution, which is not the case. The letter certainly did not inform the

check w riters th at the fe e was a c ivil liability and that paying it forfeited the right to challenge the fee in acivil procee ding, as the s t ate mandated letter does. I n sum, CEU and the County sent out letters that misinform the rec ipients of the nature and consequences of pay ment of the $25 fee, and the plaintiffs who paid the fee on that basis were deprived of their property. Havingconcluded that plaintiffs hav e alleged a deprivation, Iturn to whether

the procedures accompany ing that deprivation

we re in su ff

ic ie nt . A s t he ma

jo ri ty n otes, the essential elements of due process are no tice and an opportuni ty to be heard. Cleveland Bd. o f Educ. v. Loudermil

l, 470 U.S. 532, 546 (198 5). Th e majorit y conclude s the lette

r provide d adequa

te notice even thou

gh it concedes that the letter “d id not inform the check writers of the av ailability of a hear

ing or the procedure for re questing one,” Maj. Op. at

6 , because the notice provided a phone number for “any questions regarding this letter or the amount due.” The major

ity c ites no au

thority for the proposition that
a notice that does not indicate that the recipient has any

right to dispute th e fee, a

nd in fact states that pay ment “is required,” is suf

fic ien t. Inour most analogous case, Herrada

v. City of Det

roit , thi s Court concluded that notice was sufficient because “the citation clearly

states that a he aring i s a vailable to contest the City’s alleg ation,” adding that “t h e citationand overdue notice also provide tele phone numbersNo. 03-1413 Silverna il, et al. v . County of

Kent, et al

. 13

to call for more information.” Herrada , 275 F .3d at 557 (emphas is added). T he case cannot be read to indicate that providing a phone number alone is enough. Ind eed, in considering the impact

of potent ially misleadin

g state ments, the Herrada Court explicitly noted that the statements did not render notice insufficient because they “d o no t raise do

ubts about an owner’s ability to c on test the allegations in a hearin g, or about the result of pay ing the fine and thereby waiving a hearing.” Id . at 558. In this case, the chec k writers
were never

informed of

their right to a hearing, the re sults of paying the fee, or the resulting

waive r of a he aring. Further, inaddition to not giving notice, the statemen ts which sug

gest that the fee was rela

ted to criminal

procee dings af

firmativ ely lead a reader away

fro m t he conclusion that check writers may chal le nge the ir liabilit

y f or the pr ocessing fee in c ivil court.

Even if the letter gave proper notice, it ca nnot be said at this stage of the litigation

that plain tiffs had an oppor tunity to be heard. There are three potentia l opportun

ities to be heard inthis case: the phone number provided by CEU, a criminal procee ding, 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 differe nt and the re is an intent element

required for criminal conviction that is notrequired under M.C.L.A. 600.2952for collectionof the fee. The defendants likewise ca nn ot c laim that these plaintiffs could h ave conteste d the fee in a civil procee ding, be ca use the letter certainly did not give notice that such a thing existed. That leaves the p hone numbe r. We simply do not know whether it is true that a check writer who calls this phone number

can dispu te the fe e. This ca se comes to us on Rule 1 2(b)(6)

motion. All

that is in the record is the complaint an d t he le tt er se nt by C E U, attached to the comp l aint. Thus, we k

now that the plaintif

fs alleg e in their complaint that the Co

unty does not provide an

opportuni

ty to be heard and that the letter sent by CEU includes a phone number. We do notknow what happens when a check writer calls this phone number. We do not know whether the other 14 Silverna il, et al. v . County of

Kent, et al

. No. 03-1413

side of the line provides a procedure for challenging thebad check determination, a com

put erized menu, or a perpetual busy signal.

Due process is a flexible context. Zinermon v. Burch , 494 U.S. 113, 127 (199 0). Procedure may not have to be elabora te ina cas e like this

where the proper

ty in terest 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 alleg ed a due process violation.

Iam not unmindful of the majority’s conce rns 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 Michi gan statute. Using a clear a nd informative letter in stead of a mis leadin g and/or false one would be of little cost to the County. Pay ments made i n response to a proper letter

would notbe deprivations. Check writers who choos e not to vol untarily pay would have notice and a right to be he ard in ci v il court. The County has no legitimat e interest in maintaining the text of a misleading letter.

Icannot say that plaintiffshave failed to state a claim, and I the refore respectfully

dissent.