Lee v. MacOmb County Board of Commissioners

597 N.W.2d 545 (1999) 235 Mich. App. 323

Michael LEE, Bryan Duncil, Mary Duncil, on behalf of herself and Joseph Duncil, Bryan Duncil, Kenneth Duncil, and Jon Duncil, as their Next Friend, and the class of all others similarly situated, Plaintiffs-Appellants,
v.
The MACOMB COUNTY BOARD OF COMMISSIONERS and the County of Macomb, Defendants-Appellees.
Dennis D. Walker, on behalf of himself and Dawnell J. Walker and Melanie Walker, their Next Friend, and Dwayne Steagall, Ernest Groce, Jerry Gray, Paul Eckley, Duane Gore, Kenneth Jones, Morris Bartolotta, and the class of all others similarly situated, Plaintiffs-Appellees,
v.
The Wayne County Board Of Commissioners and the County of Wayne, Defendants-Appellants.

Docket Nos. 183567, 188155.

Court of Appeals of Michigan.

Submitted March 3, 1998, at Detroit. Decided April 23, 1999, at 9:05 a.m. Released for Publication July 27, 1999.

Charfoos & Christensen, P.C. (by David R. Parker and J. Douglas Peters) and Marc W. Schumacher, Detroit, for Michael Lee, Dennis D. Walker, and others.

Ted J. Cwiek, Assistant Corporation Counsel, for Macomb County Board of Commissioners and Macomb County.

Jennifer M. Granholm, Corporation Counsel, and Eric L. Daniel, Assistant Corporation Counsel, for Wayne County Board of Commissioners and Wayne County.

Before: HOLBROOK, JR., P.J., and WHITE and J.W. FITZGERALD^[*], JJ.

WHITE, J.

In these separate putative class actions, plaintiffs sought to compel defendants' implementation and compliance with the mandates of the veterans' relief fund act, M.C.L. § 35.21 et seq.; M.S.A. § 4.1051 et seq., and sought damages for those years during which defendants had either not implemented or not been in compliance with the act. In Docket No. 183567, the circuit court granted summary disposition in favor of the Macomb County defendants on the basis that the Lee plaintiffs lacked standing to challenge Macomb County's alleged failure to comply with the act's requirements, and that, in any event, the Lee plaintiffs had failed to exhaust their statutory remedies. In Docket No. 188155, the circuit court denied the Wayne County defendants' motion for summary disposition, concluding that the Walker plaintiffs had standing to challenge defendants' failure to comply with the statute, and that the statute did not require plaintiffs to exhaust their statutory remedies. This Court ordered the appeals consolidated and issued a stay in the Wayne County proceedings pending the outcome of this appeal. We affirm the denial of summary disposition to the Wayne County defendants of plaintiffs' claim of violation of the act, but reverse with respect to plaintiffs' allegations of negligence or gross negligence, which should have been dismissed on governmental immunity grounds. We reverse in part the grant of summary disposition to the Macomb County defendants without prejudice, but affirm the dismissal of plaintiffs' allegations of negligence or gross negligence for the same reason.

I

In 1899, the Michigan Legislature enacted 1899 P.A. 214, which created the Soldiers' Relief Fund. Section 1 of the act provides:

The county board of commissioners of each county shall annually levy, a tax not exceeding 1/10 of a mill on each dollar, to be levied and collected as provided by law, upon the taxable property of each township and city, for their respective counties, for the purpose of creating a fund for the relief of honorably discharged indigent members of the army, navy, air force, marine corps, coast guard, and women's auxiliaries of all wars or military expeditions in which the United States of America has been, is, or may hereafter be, a participant as prescribed in section 1 of Act No. 190 of the Public Acts of 1965, being section 35.61 of the Michigan Compiled Laws, and the indigent spouses, minor children, and parents of each such indigent or deceased member. Funds raised in accordance with the provisions of this section may be expended for the relief of indigent wives and children of active duty soldiers, sailors, marines, airmen, coast guardsmen, nurses, and members of the women's auxiliaries during the continuance of present hostilities and prior to their discharge. However, in any year which, in the opinion of the board, an emergency justifying the same exists, the board may appropriate a sum not to exceed 2/10 of a mill on each dollar for said purpose. The sums, when collected, shall be paid to the county treasurer of the county where such tax is levied in each of the counties in this state, to be paid out by the treasurer upon the order of the soldiers' relief commission duly signed by the chairperson and secretary of the commission. If any money in the fund is not necessary for the purpose for which it was raised, the money shall remain in the treasury of the county as a soldiers' relief fund, and shall be considered in raising future sums therefor. [M.C.L. § 35.21; M.S.A. § 4.1051 (emphasis added).]

Section 2 of the act mandates that a soldiers' relief commission be created and provides for the membership, term, appointment, compensation, and removal of individuals serving on the commission. M.C.L. § 35.22; M.S.A. § 4.1052. Subsequently, the Legislature enacted 1953 P.A. 192, which allows county boards of commissioners to create a county department of veterans' affairs that would supplant the soldiers' relief commission. M.C.L. §§ 35.621, 35.622; M.S.A. §§ 4.1153(1), 4.1153(2).

Section 3 of the act governs the disbursement of funds from the Soldiers' Relief Fund:

The supervisor of each township and ward in each of the counties of this state, and where there is no ward supervisor the aldermen of the several wards of every incorporated city in this state, shall, on or before the last Monday in September in each year, make and place in the hands of the soldiers' relief commission of the county, a list of all the persons entitled to relief under the provisions of this act, and the soldiers' relief commission, on the first Monday in October in each year, shall proceed to determine the amount necessary for aid and relief to be granted such persons under this act, which shall be then and there recorded in the books to be kept by the secretary of said soldiers' relief commission. The commission may determine not only the sum to be paid, but the manner of paying the same, and may discontinue the payment of such relief in their discretion. Appeal may be taken therefrom to the circuit court of such county, by certiorari by filing application therefor with the clerk within fifteen days following the making of such decision. The court shall hear the case de novo and its decision shall be final. [M.C.L. § 35.23; M.S.A. § 4.1053.]

II

In April 1994, the Lee and Walker plaintiffs filed identical complaints against the Macomb County and Wayne County defendants, respectively, alleging that plaintiffs were members of a class of indigent, honorably discharged veterans and indigent spouses or dependents of veterans and that defendants had failed to implement and comply with the mandates of the act. Plaintiffs' complaints alleged a single count, of violation of the act, sought to compel defendants to levy and collect the tax required by the act, and sought compensatory and consequential damages. Plaintiffs filed amended complaints that added a second count, of negligence or gross negligence, and sought "compensatory, consequential, and/or special, and/or exemplary, and/or punitive damages...." Plaintiffs later stipulated to drop the request for exemplary and punitive damages.

Docket No. 183567

In their answer, the Macomb County defendants denied that they had breached their statutory duty and asserted that they were in substantial compliance with the act. The Macomb County defendants filed a motion for summary disposition arguing that (1) plaintiffs' claims were not ripe for adjudication because plaintiffs had not applied for benefits under the statute, (2) plaintiffs did not have a private right of action under the statute; (3) plaintiffs lacked standing, and (4) governmental immunity barred plaintiffs' claims. The Macomb County defendants asserted that they had maintained a fund to pay the properly filed claims of indigent veterans, but that since no claims had been filed, the county currently levied no tax pursuant to the act. In support of their motion, the Macomb County defendants submitted the affidavit of Douglas Casamer, Director of the Department of Veterans' Affairs for Macomb County, who averred that $1,000 had been appropriated from the county budget for the "last several years" and that it was rolled over from year to year. Casamer further averred that no claims had been filed for benefits with the Macomb County Veterans' Affairs Department pursuant to the Soldiers' Relief Fund act for the past ten years.

In response, the Lee plaintiffs continued to seek the court's intervention to compel Macomb County's compliance with its unmet statutory obligations under the act. The Lee plaintiffs argued that, because they were seeking to compel Macomb County to levy the tax and create the fund as required by the act, as opposed to appealing a denial of benefits from the fund, defendants' arguments that plaintiffs had failed to exhaust statutory remedies and lacked standing were without merit. The Lee plaintiffs also argued that the doctrine of governmental immunity did not apply because their claims did not sound in tort.

The circuit court granted the Macomb County defendants' motion on the basis that the Lee plaintiffs lacked standing and had failed to exhaust statutory remedies.

Docket No. 188155

The Wayne County defendants filed a motion for summary disposition, similarly arguing that the Walker plaintiffs lacked standing, had no private cause of action under the act, and their claims were barred by governmental immunity. Defendants argued in a supplemental brief that the Walker plaintiffs' claims were moot because Wayne County had recently established and begun operation of a soldiers' relief program. In support of this claim, defendants submitted the affidavits of Elliott Ware, Jr., Director of the Wayne County Soldiers' Relief program; Lester W. Robinson, Chief Financial Officer for Wayne County; and Alfred N. Montgomery, Clerk of the County Commission. Ware averred that the Wayne County Soldiers' Relief program had been operational since February 1995. Robinson averred that the Wayne County Board of Commissioners had approved a levy for the fiscal year ending November 30, 1995, for the creation of a fund for the Wayne County Soldiers' Relief program. Montgomery averred that a resolution had been adopted appropriating $1,146,042 from the general fund for veterans' affairs expenditures for fiscal year 1994-95.

The Walker plaintiffs responded with the same arguments as the Lee plaintiffs regarding standing, availability of a private cause of action under the act, and governmental immunity. The Walker plaintiffs further argued that their claims were not moot because, although Wayne County had made a recent effort to establish a soldiers' relief program, the program was not in compliance with the act and, further, did not account for past damages suffered by the class.

The circuit court denied the Wayne County defendants' motion without prejudice, concluding that the Walker plaintiffs had standing to seek Wayne County's full compliance with the act and that defendants' claim that plaintiffs must exhaust statutory remedies, i.e., that plaintiffs must have been denied benefits under the act, was without merit given that plaintiffs claimed a total failure by defendants to comply with the act's mandates of levying and collecting taxes and creating a fund from which benefits can be paid. The circuit court further noted that the act was silent and prescribed no administrative proceeding by which the Wayne County defendants could be made to comply with the act.

III

In both the Wayne and Macomb County cases, the plaintiffs seek to compel full compliance by the counties with the mandates of the Soldiers' Relief Fund act. Because both sets of plaintiffs seek to enforce a right and duty created by statute, we treat their complaints as ones for mandamus. See M.C.L. § 600.4411; M.S.A. § 27A.4411; MCR 3.301, 3.305. Mandamus is a writ issued by a court of superior jurisdiction to compel a public body or public officer to perform a clear legal duty. Kosiba v. Wayne Co. Bd. of Auditors, 320 Mich. 322, 326, 31 N.W.2d 68 (1948). Mandamus is an extraordinary remedy, and its issuance is discretionary with the court. Herp v. Lansing City Clerk, 164 Mich.App. 150, 161, 416 N.W.2d 367 (1987).

A

Of the many we first address whether the Lee and Walker plaintiffs have standing to obtain mandamus against the Macomb and Wayne County defendants, respectively. We review a circuit court's grant or denial of summary disposition de novo. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993), aff'd. 446 Mich. 482, 521 N.W.2d 266 (1994). In viewing defendants' claim that plaintiffs lacked standing, MCR 2.116(C)(5), we must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence to determine whether defendants are entitled to judgment as a matter of law. Wortelboer v. Benzie Co., 212 Mich.App. 208, 213, 537 N.W.2d 603 (1995).

"Standing is a legal term used to denote the existence of a party's interest in the outcome of litigation that will ensure sincere and vigorous advocacy." House Speaker v. State Administrative Bd., 441 Mich. 547, 554, 495 N.W.2d 539 (1993). Traditionally, a private citizen has no standing to vindicate a public wrong or enforce a public right where he is not hurt in any manner differently than the citizenry at large. Detroit Fire Fighters Ass'n v. Detroit, 449 Mich. 629, 633-634, 643-644, 662-663, 669, 537 N.W.2d 436 (1995) (a majority of the Court agreeing, in separate opinions, that the plaintiffs had standing and on this proposition).

Plaintiffs in the instant cases seek to enforce a mandatory legislative program, i.e., to compel defendants to implement and comply with the Soldiers' Relief Fund act. Plaintiffs are honorably discharged indigent veterans and are members of the class for whose benefit the act was enacted. Further, they are detrimentally affected in a manner different from the public generally. They therefore have standing. Id. at 633, 643, 662, 669, 537 N.W.2d 436.

B

Having concluded that plaintiffs have standing, we turn to the question whether mandamus is appropriate in the instant case. In Teasel v. Dep't of Mental Health, 419 Mich. 390, 409-411, 355 N.W.2d 75 (1984), the Supreme Court noted:

Mandamus is an extraordinary remedy and will not lie to control the exercise or direction of the discretion to be exercised. Moreover, it will not lie for the purpose of reviewing, revising, or controlling the exercise of discretion reposed in administrative bodies. However, the writ will lie to require a body or an officer charged with a duty to take action in the matter, notwithstanding the fact that the execution of that duty may involve some measure of discretion. See Bischoff v. Wayne County, 320 Mich. 376, 385-387, 31 N.W.2d 798 (1948); Michigan State Dental Society v. Secretary of State, 294 Mich. 503, 514-519, 293 N.W. 865 (1940). Stated otherwise, mandamus will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner.

This Court has held that it has the power to compel a county board of supervisors to act in their executive capacity and to pay an obligation imposed by law, People ex rel Bristow v. Macomb County Supervisors, 3 Mich. 475 (1855). We have issued a writ of mandamus compelling the expenditure of withheld funds that by law could only be used for the completion of a jail, Attorney General ex rel. Greenfield v. Alcona County Board of Supervisors, 167 Mich. 666, 133 N.W. 825 (1911). We have ordered that boards of supervisors render unto public employees their salaries that were owing them, Sturgis v. Allegan County, 343 Mich. 209, 72 N.W.2d 56 (1955), and we have stated that a court has the power to compel commissioners responsible for the upkeep and repair of a jail to comply with the Legislature's directive upon a showing that they have failed or refused to meet their responsibility under the statute, Wayne County Jail Inmates v. Wayne County Sheriff, 391 Mich. 359, 216 N.W.2d 910 (1974). When agencies of government fail to perform duties imposed by the Legislature or the constitution, the courts will not hesitate to order performance. Jail Inmates, supra; King v. Director of Midland County Dep't of Social Services, 73 Mich.App. 253, 251 N.W.2d 270 (1977); Wayne County Prosecutor v. Wayne County Bd. of Comm'rs, 93 Mich.App. 114, 121, 286 N.W.2d 62 (1979); Kosa v. Treasury Dep't, 78 Mich.App. 316, 259 N.W.2d 463 (1977), aff'd in part and modified on other grounds 408 Mich. 356, 383, 292 N.W.2d 452 (1980). See generally, 4 Davis, Administrative Law, ch 23.

Here, the duty, the performance of which plaintiffs sought to compel, is the counties' establishment of funds as mandated by the Legislature in the Soldiers' Relief Fund act, and compliance with the act once a fund is established, not the levy of a particular amount or the grant of particular benefits, i.e., not the performance of acts within the defendants' discretion. Under these circumstances and on the basis of the above-cited authorities, we conclude that mandamus is appropriately sought.

IV

In Docket No. 183567, the Lee plaintiffs argue that factual issues remain regarding whether Macomb County has created a fund in compliance with § 35.21 of the act. The Lee plaintiffs argue, and we agree, that Casamer's affidavit does not address that the $1,000 Macomb County appropriated came from the county's general fund, rather than from a tax on property as required by § 35.21, and does not address that there was no mechanism for intake and evaluation of claims in place, as contemplated by the act. Under these circumstances and given that discovery had not yet begun, we conclude that summary disposition should have been denied without prejudice pending discovery.

In Docket No. 188155, the Walker plaintiffs argue that Wayne County failed to comply with the act before February 1995, at which time it established the Wayne County Soldiers' Relief Program, and further argue that the current program is not in compliance with the act. It is undisputed that Wayne County had no program as required by the act before plaintiffs filed their class action. Wayne County later created a program, but, in their second supplemental response in opposition to defendants' motion, plaintiffs argued, and presented evidence to support, that the program is not in compliance with the act. Thus, summary disposition properly was denied because genuine issues of fact remained regarding that issue.^[1]

Regarding both sets of defendants' claims that plaintiffs were required to exhaust statutory remedies, MCR 2.116(C)(7), we accept as true all plaintiffs' well-pleaded allegations and construe them most favorably to plaintiffs. Mollett v. City of Taylor, 197 Mich.App. 328, 332-333, 494 N.W.2d 832 (1992). Summary disposition is appropriate only if no factual development could provide a basis for recovery. Id. The circuit court in the Wayne County case properly concluded that the Lee plaintiffs' case could not be dismissed on the basis of failure to exhaust statutory remedies, given plaintiffs' claim that there was a wholesale failure to implement and comply with the act, the absence of a mechanism for intake and evaluation of claims, and the lack of a statutory procedure by which defendants could be made to comply with the act. For these same reasons, the circuit court in the Macomb County case improperly concluded that summary disposition was proper on the basis of failure to exhaust statutory remedies.

Both sets of defendants raised the issue of governmental immunity below, but neither circuit court addressed it at the hearings regarding defendants' motions. The Wayne County defendants argue on appeal that because plaintiffs failed to plead an exception to governmental immunity, to the extent that plaintiffs' complaint pleads negligence and gross negligence, defendants are entitled to its dismissal as a matter of law. The Macomb County defendants argue on appeal that plaintiffs' case is not a tort case and that plaintiffs have not "put forth a cognizable theory to support the exorbitant damages sought in the Complaint." They also argue that if plaintiffs' claim sounds in tort, they are immune. Plaintiffs respond that they do not seek to maintain a separate tort action, but only to compel compliance with the Soldiers' Relief Fund act.

To the extent the Macomb County complaint alleged a tort claim, the claim was properly dismissed.^[2] These claims shall also be dismissed from the Wayne County case on remand.

We affirm the denial of summary disposition to the Wayne County defendants of plaintiffs' claim of violation of the act, but reverse with respect to the allegations of negligence or gross negligence. We reverse the grant of summary disposition to the Macomb County defendants without prejudice, except with respect to the allegations of negligence or gross negligence, the dismissal of which we affirm.^[3]

HOLBROOK, JR., P.J. concurs.

J.W. FITZGERALD, J. (dissenting).

I respectfully dissent.

Standing to obtain mandamus against a public body or public official requires the plaintiff to establish the violation of a positive legal right, or breach of a legal duty, resulting in damage or a specific injury to the plaintiff that is distinct from that suffered by the general public. Inglis v. Public School Employees Retirement Bd., 374 Mich. 10, 12-13, 131 N.W.2d 54 (1964); Univ. Medical Affiliates, P.C. v. Wayne Co. Executive, 142 Mich.App. 135, 143, n. 1, 369 N.W.2d 277 (1985). In these cases, I conclude that plaintiffs lack standing to obtain mandamus against Macomb County and Wayne County because plaintiffs have not alleged any specific injury as a result of defendants' failure to establish a mechanism for evaluation of a claim for benefits or of defendants' underfunding of their respective veterans' relief funds.^[1] That is, at this stage, plaintiffs have not alleged a distinct and palpable injury resulting from defendants' failure to fully comply with the statute, and consequently their claims cannot be differentiated from those of any other citizen. Inglis, supra; Killeen v. Wayne Co. Civil Service Comm., 108 Mich.App. 14, 310 N.W.2d 257 (1981). See also Wilson v. Cleveland, 157 Mich. 510, 511, 122 N.W. 284 (1909). As a prudential matter, courts must exercise their jurisdiction to address tangible, personal, threatened interests, not generalized grievances. I am not persuaded that plaintiffs, as private citizens whose individual rights under the statute have not been abridged, have standing to obtain a writ of mandamus to compel their respective counties to levy an annual tax on property where there has been no showing that noncompliance with the statute has resulted in the needs of the statute's intended beneficiaries being unmet. Thus, I would conclude that plaintiffs' complaints for mandamus must be dismissed for lack of standing. MCR 2.116(C)(5).

Even assuming, however, that plaintiffs, as indigent, honorably discharged veterans, have standing to seek mandamus because of their unique status as intended beneficiaries under the act, I would nonetheless exercise judicial self-restraint and deny mandamus on the merits. To obtain mandamus a party must establish a clear legal right to compel the performance of a specific ministerial duty by a public body or public officer. Kosiba v. Wayne Co. Bd. of Auditors, 320 Mich. 322, 326, 31 N.W.2d 68 (1948). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v. Ottawa Circuit Judge, 343 Mich. 440, 444, 72 N.W.2d 146 (1955).

Here, the Lee and Walker plaintiffs seek to compel defendants' performance of a duty that is not purely ministerial, but rather involves some measure of discretion. Although § 1 of the act begins by directing that each county board of commissioners "shall annually levy, a tax not exceeding 1/10 of a mill on each dollar ... upon the taxable property of each township and city, for their respective counties...," the last sentence of the section provides: "If any money in the fund is not necessary for the purpose for which it was raised, the money shall remain in the treasury of the county as a soldiers' relief fund, and shall be considered in raising future sums therefor." M.C.L. § 35.21; M.S.A. § 4.1051 (emphasis added). Viewing the act as a whole, I am of the opinion that the Legislature intended to vest limited discretion in county boards of commissioners to determine the amount of tax to be levied to effect substantial compliance with the act's underlying purpose of creating a fund for the benefit of indigent, honorably discharged veterans. This view was expressed as early as 1939 by this state's Attorney General, whose opinion had been requested regarding whether county boards of commissioners were under a mandatory duty to levy the full amount of tax as provided by the Soldiers' Relief Fund act:

In an opinion rendered by Attorney General Patrick H. O'Brien on this question on February 17, 1933 (See [OAG, 1933-1934, p. 205]), it was held that it is mandatory upon the several boards of county supervisors to levy a tax, not to exceed one-tenth of a mill, for the relief of indigent soldiers, sailors, widows, etc. This opinion further holds that it is not necessary to levy the full one-tenth mill. The amount to be levied rests within the discretion of the board of supervisors as long as the statute has been reasonably and substantially complied with. We concur with this opinion. [OAG, 1939-1940, p. 242, 245 (September 28, 1939).]

Given the foregoing, I would conclude that mandamus is inappropriate because plaintiffs are seeking to compel defendants' exercise of discretion in a particular manner. Teasel v. Dep't of Mental Health, 419 Mich. 390, 410, 355 N.W.2d 75 (1984).

Lastly, I would note that plaintiffs' complaints sought "compensatory, consequential, and/or special, and/or exemplary, and/or punitive damages, plus interest, for defendants' failure to comply with the requirements of M.C.L. § 35.21 for each and every year defendants have failed to so levy and collect as required by M.C.L. § 35.21, plus all attorney fees and costs." While the plaintiffs have since abandoned their claim for punitive or exemplary damages, they contend on appeal that they are entitled to compensatory damages. Plaintiffs expressly disavow that such damages arise out of tort, but rather argue that they arise from the failure of Macomb County and Wayne County to abide by the statutory mandate. As framed by plaintiffs, their request for damages arises from their claim for mandamus. See Wayne Co. Sheriff v. Wayne Co. Bd. of Comm'rs, 196 Mich.App. 498, 510, 494 N.W.2d 14 (1992). Given that context, I would note that the Revised Judicature Act provides:

Damages and costs may be awarded in an action for mandamus. No damages may be allowed in mandamus against a public officer who, in good faith, acted erroneously. [M.C.L. § 600.4431; M.S.A. § 27A.4431.]

Even assuming that the Lee and Walker plaintiffs have standing to obtain mandamus, they have not presented any evidence whatsoever to support an allegation that Macomb or Wayne County officials acted in bad faith in failing to comply fully with the statute. See Rodney Lockwood & Co. v. Southfield, 93 Mich.App. 206, 215, 286 N.W.2d 87 (1979). Thus, plaintiffs' damages claims must likewise fail as a matter of law.

NOTES

[*] Former Supreme Court justice, sitting on the Court of Appeals by assignment.

[1] The Walker plaintiffs' appellate brief states that their case has never been the subject of any discovery.

[2] The second count of plaintiffs' first amended complaints alleged negligence or gross negligence:

Count II—Negligence, Gross Negligence

17. Defendants [sic] failure to levy and tax as required by M.C.L. § 35.21 was a negligent, or grossly negligent act and caused, and continues to cause, plaintiffs great harm and damage.

[3] The question whether, and to what extent, money damages are appropriate as class relief is a separate question, which may be addressed by the circuit courts. The statute discussed by the dissent, M.C.L. § 600.4431; M.S.A. § 27A.4431, was not raised below or on appeal, and was not addressed by the circuit courts. We therefore do not address it here because we do not have the benefit of adversarial briefing.

[1] The Walker plaintiffs submitted below the affidavit of class member Paul Eckley, an honorably discharged indigent veteran of the Vietnam War. Eckley averred that he had applied for benefits from the Wayne County Soldiers' Relief Office in February 1995 and been informed that he was ineligible for relief. Eckley was not denied benefits because of underfunding of the relief fund, and the merits of his denial are not the subject of this appeal.