1

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 SILVERNAIL and

SARAH L. PAQUIN-DODGE,

Plaintiffs-Appellants,

v.

COUNTY 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

1

The 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
No. 03-1413 Silvernail, et al. v. County of Kent, et al. 3

ordinances. See Grand Rapids Charter Township, Michigan, Ordinance

No. 348 (May 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 processdishonored 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 inCEU’sCheck

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

2

Plaintiffs 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
No. 03-1413 Silvernail, et al. v. County of Kent, et al. 5

3

This court reviews de novo the district court’s grant of a motion to

dismiss pursuant to Rule 12(b)(6). Powell v. Jacor Communications

Corp., 320 F.3d 599, 601 (6th Cir. 2003). 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 whether the plaintiff undoubtedly can prove no set of 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 509, 512 (6th Cir.

2001)). 

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
No. 03-1413 Silvernail, et al. v. County of Kent, et al. 7

4

The 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 Mfg. 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.
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
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
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.