Opinion
No. 34 January Term 1971, Docket No. 52,560.
Decided April 5, 1971.
Appeal from Court of Appeals, Division 3, T.M. Burns, P.J., and Fitzgerald and R.B. Burns, JJ., denying application for leave to appeal from Wayne, Edward S. Piggins, J. Submitted March 2, 1971. (No. 34 January Term 1971, Docket No. 52,560.) Decided April 5, 1971.
Complaint by Xerox Corporation against the City of Detroit and Wayne County to recover personal property taxes paid under protest. Motion for discovery of assessment records in possession of Detroit Board of Assessors granted. Defendants' application for leave to appeal to the Court of Appeals denied. Defendants appeal. Affirmed.
Butzel, Eaman, Long, Gust Kennedy (by Philip P. Van Zile II, Lawrence R. Van Til, and John H. Dudley, Jr.), for plaintiff.
Michael M. Glusac, Corporation Counsel, and Julius C. Pliskow and Lawrence W. Morgan, Assistants Corporation Counsel, for the City of Detroit.
William L. Cahalan, Prosecuting Attorney, and Aloysius J. Suchy and William F. Koney, Assistant Prosecuting Attorneys, for Wayne County.
These consolidated actions were filed to recover personal property taxes paid under protest. Plaintiff Xerox moved for discovery of assessment records in possession of Detroit's Board of Assessors. The circuit judge granted discovery and ordered that Detroit produce such specific portions of those records as are identified in his order. The order declares and finds:
"Plaintiff's motion to require the production of certain designated documents in defendant City of Detroit's possession pursuant to Rule 310 having been heard, the Court finds that plaintiff is entitled to such production and that such documents are not privileged and are relevant to the subject matter involved in the pending actions."
An assigned panel of the Court of Appeals denied defendants' application for leave to review the mentioned order "for lack of merit in the grounds presented."
Application by the defendants for leave to review such order of denial was denied here April 23, 1970. Motion for reconsideration was denied May 21, 1970. Then, upon motion of the Court, an order entered June 11, 1970, recalling our previous orders of denial and providing grant of the original application.
The controlling question posed for review is properly counterstated:
"Whether a personal property taxpayer, claiming discrimination and lack of uniformity in the assessment of its property, is barred from discovery and production, under GCR 310, of working papers in the possession of Appellants' Board of Assessors which will tend to prove or disprove Appellants' affirmative allegations that the taxpayer's property and comparable property were assessed on a uniform basis?"
In the course of their various briefs defendants have continued to insist that § 23 of the general property tax law (MCLA § 211.23 [Stat Ann 1970 Cum Supp § 7.23]) creates a statutory privilege from discovery of all of the assessment records that were ordered in for inspection and copying by the trial judge. They stress that portion of § 23 which, referring to the statutory tax statement which the supervisor or assessor has received and filed, provides that such statements shall not be used "for any other purpose except the making of an assessment for taxes as herein provided," and that "any officer or person who shall make or allow to be made wilfully or knowingly, any other or unlawful use of any such statement" shall be liable, etc.
We are unable to agree with counsel for defendants. In the first place none of the records ordered up for discovery below are statutory statements within said § 23. In the second place GCR 1963, 310.1, declaring the "Power of court" to provide discovery of documents, papers, books, etc., found not privileged and relevant to the subject matter of the pending action, automatically overrides any such interpretation as Detroit has placed on said § 23. The rule does no more nor less than redeclare equity's historic power to "probe the conscience of the defendant" by ordering discovery and inspection of books, records, documents, physical things and the like that are in the possession or within the defendants' control, as to which see Pomeroy's extended discussion headed "Discovery" (1 Pomeroy's Equity Jurisprudence [4th ed], § 191 et seq., p 261 et seq.).
The circuit judge found that the records ordered in by him are not privileged and that they are relevant to the subject matter of these actions. On review we are provided no reason for holding that such records are not relevant within the rule, and no reason for holding that a municipality may withhold from judicial surveillance and employment as evidence any municipal assessment record that might bear admissibly upon the issue of valid or invalid payment under protest.
Our ruling is that the counterstated question is controlled by the reasoning and principle laid down in C.A. Roberts Company v. City of Detroit (1956), 346 Mich. 384. We repeat and apply what was said in that case (pp 386, 387):
"We are cited to no authority for the proposition that the records and papers which defendants call nonpublic or limited-public are privileged as such either because of the long-standing practice and custom of the office of the board of assessors in treating them thus or because they are not public records required by law to be kept by defendant city or its officers. In litigation between private parties papers may be possessed which are not public, but their private status does not necessarily render them privileged from examination by the opposite party under proper court order. The rule of evidence is the same whether defendant be a person or a municipal corporation. 81 CJS, States, § 215. Obviously, the public or private character of the papers is not, of itself, controlling of the question of privilege."
Affirmed. Costs to plaintiff.
T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.