LAWRENCE P. ZATKOFF, District Judge.
This matter is before the Court on the parties' cross Motions for Summary Judgment [dkts. 25, 26]. The Motions have been fully briefed. For the following reasons, Plaintiff's Motion is GRANTED and Defendant's Motion is DENIED.
The City of Howell, Michigan ("the City") enacted a version of City Ordinance § 622.02 ("the Ordinance") over 50 years ago. The Ordinance currently requires the City's owners or occupants of land to maintain the grassy area between the sidewalk and the street curb so that grass, weeds, and other vegetation do not grow in excess of eight inches. The Ordinance states:
Ordinance § 622.02(a).
If the homeowner fails to mow this area, the Ordinance provides:
Ordinance § 622.02(d).
The instant case centers on whether the Ordinance is constitutionally valid.
David Shoemaker ("Plaintiff") owned his home at 121 S. Elm, at the corner of S. Elm and E. Sibley in the City of Howell, Michigan ("the City") for some nine years. For most of this time, he was under the impression that he owned the property right to the street. Based on this impression, Plaintiff had customarily mown the grass between the sidewalk and the street; he and his daughter even planted a five-foot high red maple tree in that area.
In or around 2009, the City was repaving and upgrading E. Sibley Street as part of a citywide road refurbishment program. On Sibley, the City reworked the road by pulling up the gutters, expanding the width of the area between the sidewalk and the street, adding a new lower curb, and paving the crosswalk with brickwork. While performing this work, the City removed the red maple tree Plaintiff and his daughter had planted between the sidewalk and the street on Sibley, in order to replace it with nine saplings (along with their supporting wiring that Plaintiff compares to "guide wires").
The City sent Plaintiff a notice on August 9, 2011, demanding that he mow the City's property between the sidewalk and the curb by August 16, 2011. The notice does not state how to request a hearing on the matter. The City's Code Enforcement Officer, Jack Donahue ("Donahue"), testified in his deposition that this is a standard form he uses for all such notifications; while he has made other adjustments to the form, no one has involved Donahue in any discussions of adding to the form any language about opportunities for hearings.
According to Donahue, because Plaintiff refused to comply with the notice by August 17, 2011, he ordered the City's contractor to mow it. On August 18, Donahue stopped by Plaintiff's home to discover the area between the sidewalk and curb was still unmaintained. Donahue left a door hanger with a final warning to cut the area. While the lower right-hand corner of the hanger had a phone number on it, nothing on it advised Plaintiff of any hearing or appeal rights.
Plaintiff later spoke with Donahue by telephone, at which time both agree that Plaintiff objected to his mowing of the City's land and that Donahue told Plaintiff the Ordinance required him to do so. Although
On November 21, 2011, Plaintiff filed his Complaint in this Court, alleging violations of the Substantive Due Process Clause (Count I); the Procedural Due Process Clause (Count II); the Equal Protection Clause (Count III); and the Fourth Amendment (Count IV). The parties stipulated to dismiss Counts III and IV, and have filed the instant cross Motions for Summary Judgment on Counts I and II.
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, and all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party discharges its burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Horton v. Potter, 369 F.3d 906, 909 (6th Cir.2004) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).
Once the moving party has met its burden of production, the burden then shifts to the nonmoving party, who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party must "go beyond the pleadings and by ... affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (citing Fed.R.Civ.P. 56(e)). "[T]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Plaintiff asserts a procedural Due Process claim under 42 U.S.C. § 1983 ("§ 1983"). Specifically, Plaintiff claims that the City's Ordinance failed to provide the required process by:
The Court addresses each argument in turn.
In determining whether a violation of procedural Due Process has occurred, a court must first determine whether the "right" at stake is within the protection of the 14th Amendment. Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir.2002). A court must look at independent sources of law — rather than the Constitution — to determine whether the alleged right in property is actually recognized. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ("Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules.").
Once a property right is established, an analysis of the governmental and private interests at stake is in order. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). There is no one set procedure required under the 14th Amendment; rather, the concept of due process is a flexible one designed to be analyzed under the specific situation in which an issue arises. Id. The Supreme Court has illuminated three broad areas of analysis a court's review must contain in testing the validity of the process at issue: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335, 96 S.Ct. 893.
Finally, § 1983 is not itself a source of substantive rights, but rather provides a right of action for the vindication of independent constitutional guarantees. See Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir.1990). "A § 1983 plaintiff may prevail on a procedural due process claim by either (1) demonstrating that he is deprived of property as a result of established state procedure that itself violates due process rights; or (2) by proving that the defendants deprived him of property pursuant to a `random and unauthorized act' and that available state remedies would not adequately compensate for the loss." Macene v. MJW, Inc. 951 F.2d 700, 706 (6th Cir. 1991).
In this case, Plaintiff must first establish that he has a property interest at stake protected by the 14th Amendment.
The Court must next determine whether the procedure provided to the Plaintiff by the City survives the three-part test set out by the Supreme Court in Mathews, supra. Plaintiff claims that the private interest at stake — the $600 the City placed on his tax roll — warrants procedural Due Process protections. The City does not dispute Plaintiff's interest, asserting only that such an interest is minimal and thus warrants only minimal procedural Due Process protections. The City maintains that there is an appeal or hearing process concerning the Ordinance, and that the protections created through its practices provide Plaintiff with adequate procedural protections.
The Court finds, however, that the City's alleged "process" fails to provide any legitimate protection of Plaintiff's property interest. The Ordinance clearly states that if a citizen fails to maintain the City's property as ordered, the City can simply have a contractor do it and charge the citizen both the contractor's charge and an administrative fee. The Ordinance is devoid of any mechanism by which a citizen may invoke to seek a hearing before a court or a quasijudicial board on any issue. While the City maintains that the Plaintiff may "challenge" the City's determination of vegetation height or whether the Ordinance applies to a particular type of vegetation, it cannot point to any valid means by which Plaintiff may challenge whether he must maintain the City's property at all.
Further, the "process" through which the City maintains Plaintiff may "challenge" the Ordinance is a vague and completely disorganized system. The City readily admits the process is not written down. Instead, the City asserts that the phone calls placed by the Plaintiff to Donahue serve as the "hearing" Plaintiff is entitled to. The City also claims that City Manager Shea Charles ("Charles") — Donahue's direct supervisor — would have "heard" Plaintiff's complaints, along with Interim Community Development Director Erin Perdu ("Perdu") or the City Council. There is nothing in the record to indicate that Plaintiff was ever made aware that his phone call to Donahue constituted a hearing, or that Donahue informed Plaintiff of his ability to call Charles or Perdu. In fact, it appears that Charles and Perdu have never spoken with the Plaintiff. It also appears that, even with knowledge of this "telephone appeals" system, such process would have been futile: Charles stated at his deposition that the City would never waive the requirement that a citizen mow the City's property between the sidewalk and the street.
The Court finds that this "process" creates a great risk of improper deprivation of Plaintiff's property interest at stake. Plaintiff's right to appeal his deprivation has a dangerously high chance of being ignored or lost in the shuffle and confusion that clearly exist with the City's current
The City asserts that it has an interest in keeping administrative costs low while quickly dealing with perceived nuisances. The City further advances that requiring it to create and maintain additional procedural safeguards would unduly burden the City's limited resources while creating unnecessary administrative duties.
The Court is not convinced. While it is undoubtedly more cost-effective to have the completely inadequate "telephone appeals process" the City now maintains, 14th Amendment requires more. The City cannot simply shirk its constitutional responsibilities because of an unwillingness to pay for them.
Additionally, the Court agrees with the Plaintiff's assertion that the City may be able to provide adequate procedural Due Process protections at no cost by simply issuing an alleged offender of the Ordinance a ticket. With this ticket in hand, both parties admit that such an offender could challenge the ticket in a local district court. The printing and writing of such tickets do not "unduly burden" the City's administrative function, and may be able to provide the constitutional procedural Due Process protections the City's current "process" now lacks.
Finally, it is clear to the Court that the City's interest is broader than the administrative costs associated with any meaningful predeprivation hearing. The City also has a clear interest in maintaining a system of mandated free maintenance of its property. The current system requires private citizens to maintain the City's property, necessitating private citizens purchase resources — like the City's water — which also benefit the City.
The Court finds that such an interest cannot in this instance stand superior to the Plaintiff's right to procedural Due Process. The Plaintiff has demonstrated that he has been deprived of a protected property interest as a result of established City procedure. Plaintiff has further proven — and Defendant has failed to rebuke — that the City's procedure itself violates his due process rights. As such, Plaintiff need not address whether his deprivation was the result of "random and unauthorized" state action.
The 14th Amendment's procedural Due Process protections provide that, prior to the deprivation of an interest, notice must be given to any individual that stands to have their interest deprived. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("An elementary and fundamental requirement of due process in
Plaintiff claims that the City never provided him with notice — written or otherwise — of any predeprivation or postdeprivation hearing. Indeed, there is no description of any hearing process in the Ordinance. There is no notice of any type of contestation or appeal procedure in the letters or door hangers the City gave Plaintiff. The only evidence in the record of any type of "notice" is the City's claim that various City officials may have told Plaintiff of an "informal hearing" process by which Plaintiff could have brought his complaints to Donahue, Charles, Perdu or the City Council. The City asserts that Plaintiff — by receiving notice of his alleged violations of the Ordinance — was given all the notice he deserved. The City also advances that Plaintiff should be presumed to know the requirements of the law, and thus should be presumed to have notice of the Ordinance.
Mere notice of an impending deprivation alone, however, does not satisfy the notice requirements of procedural Due Process. Such notice must also provide the way this deprivation will occur and the means by which the deprivation may be contested. Even if the Court assumes Plaintiff was told by various City officials of an "informal hearing" process, the Supreme Court has already rejected this sort of "word of mouth" referral system as an invalid means of providing notice under procedural Due Process. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14-16, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978).
The Court thus finds that the City failed to satisfy the notice requirements of procedural Due Process.
The Supreme Court has long warned that a "hearing" before a person who is actually or likely to be biased is not constitutionally permissible. Thus, a meaningful hearing cannot be offered by having the person who made the initial decision "review" his or her own decision. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ("Prior involvement in some aspects of a case will not necessarily bar [someone] from acting as a decision maker. He should not, however, have participated in making the determination under the review."); Morrissey v. Brewer, 408 U.S. 471, 485-486, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). More fundamentally, however, a meaningful hearing cannot be held before a person who has both adjudicative and executive functions. Hammond v. Baldwin, 866 F.2d 172, 177 (6th Cir.1989)
The City claims Plaintiff was provided with a meaningful hearing by having the chance to bring his complaints about the Ordinance to Donahue, Charles, Perdu, or the City Council. The Court fails to see how this provides Plaintiff with a meaningful hearing before an unbiased panel. In speaking with Donahue, Plaintiff is forced
The City states that "the essential requirements of due process ... are notice and an opportunity to respond." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The Court finds that, despite this correct assertion, the City has failed to afford Plaintiff either. The City's "process" of random and confused phone call "hearings" — which could never result in a finding in Plaintiff's favor — does not begin to reach the level of process required under the 14th Amendment. Additionally, the City failed to give the Plaintiff adequate notice that this deficient appeals process even existed. Finally, the City failed to divest from the appeals process those in charge of enforcing and creating the Ordinance. As such, the Court finds that the deprivation of Plaintiff's property rights by the City under the Ordinance violated Plaintiff's procedural Due Process rights.
In addition, Plaintiff argues that, by requiring citizens to maintain City property over which they have no control, without conferring any particularized benefit on the citizens, the Ordinance violates substantive Due Process. For the reasons stated below, the Court finds Plaintiff's argument compelling.
While a claim arising under procedural Due Process rests on the governmental process available before and after an alleged deprivation, the constitutionality of the actual deprivation via governmental action is not addressed. See Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) ("The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process."). Procedural Due Process analysis, then, does not strike at the substantive heart of the deprivation to which the Court now turns. See Zinermon v. Burch 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ("The Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions `regardless of the fairness of the procedures used to implement them.'") (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).
Substantive due process is defined generally as "[t]he doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed[.]" Pearson, 961 F.2d at 1216. When government action is challenged on substantive due process grounds, a court must first determine whether a fundamental right is implicated. Should the interest presented be found "fundamental," deprivation of such an interest will be analyzed under strict scrutiny. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). If the right is not fundamental,
An interest is fundamental for the purposes of substantive due process analysis if it is "objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A long line of cases exist indicating liberties outside those specifically enumerated in the Bill of Rights that are protected under the concept of substantive due process. Id. Determining a particular right is "fundamental" for purposes of substantive due process relief, however, is a decision not easily made. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ("The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field."). Indeed, "the [Supreme] Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision[-]making in this unchartered area are scarce and open-ended." Id. (internal citations omitted). A court must make certain to provide a "careful description" of the right claimed within its substantive due process analytical framework, so as to properly determine whether such a right is truly fundamental. See, e.g., Doe v. City of Lafayette, Ind., 377 F.3d 757, 769 (7th Cir. 2004) ("Our careful description of the asserted right must be one that is specific and concrete, one that avoids sweeping abstractions and generalities.") (internal quotations and citations omitted).
In carefully reviewing the information presented to the Court, Plaintiff's right upon which the Ordinance allegedly infringes cannot be adequately distilled to simply whether or not Plaintiff must mow the grass between the sidewalk and the curb. Instead, the Ordinance infringes a much more fundamental right: the right not to be forced by a municipal government to maintain municipal property. As established by both parties, whether such right is fundamental is a matter of first impression before the Court.
The United States is a nation built upon the foundations of personal liberty and freedom from government intrusions. As Justice Holmes opined over a century ago, "Indeed, in a free government, almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every cit[i]zen." Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 41 L.Ed. 979 (1897). American people have over the course of history molded and shaped a set of laws that allow the people of this country the freedom to live their lives as they see fit, safe in the knowledge that the government may act only in limited circumstances to infringe upon these freedoms.
Imposition by government body — be it municipal, state, or federal — of mandated private maintenance of public property directly contradicts the goal of limited government intervention. To be sure, such action strikes at the very heart of the freedoms and liberties the United States
The Court therefore finds that such an interest — the interest to be free from mandated private maintenance of municipal property — is exactly the sort of right that is "deeply rooted in this Nation's history and traditions." The Ordinance thus may survive substantive due process review only if it is narrowly tailored to serve a compelling state interest. In determining whether the Ordinance is narrowly tailored, the Court must determine whether the Ordinance is the least restrictive means of accomplishing the City's goal. See Johnson v. City of Cincinnati, 310 F.3d 484, 503 (6th Cir.2002). Further, the Court must decide whether the City's interest in enacting the Ordinance represents a compelling government interest. Id. As discussed below, the Court finds that the Ordinance satisfies neither prong.
The actions of the City have made it clear to the Court that requiring Plaintiff to maintain the area between the sidewalk and the curb is not the least restrictive means by which the City could accomplish its goal. By conducting the maintenance on its own — as the City admittedly did four times and tried to charge Plaintiff for — the City evidences the ease by which Plaintiff's fundamental rights could be protected. Further, the City's interest in the matter — keeping the vegetation in the public berm under eight inches — is far from compelling. Indeed, the City points to no emergency or dire straits that would require the infringement of Plaintiff's fundamental rights. Instead, the City asserts that Plaintiff must maintain City property simply because of his proximately to the area and some amorphous "benefit" this City property provides Plaintiff with. The Court finds these explanations completely lacking the compelling justifications required to warrant stripping Plaintiff of a fundamental right.
"[T]he Due Process Clause of the Fourteenth Amendment was intended to prevent [the] government `from abusing [its] power, or employing it as an instrument of oppression.'" Collins v. City of Harker Heights, Tex. 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). The people of this Nation specifically designed a governmental system void of the ability to require the sort of action the City seeks to impose on Plaintiff. Plaintiff's request for judicial action is based on a simple premise: he asks the Court to protect his right not to be forced by a municipal government to maintain municipal property. The Ordinance requires that Plaintiff do just that. As such, the Court cannot allow the City's Ordinance to stand, and finds that the Ordinance is an unconstitutional violation of Plaintiff's fundamental substantive due process rights.
The City contends that the right Plaintiff claims the Ordinance infringes is not fundamental, and thus the Ordinance must stand unless Plaintiff proves the Ordinance is not rationally related to a legitimate government purpose. Although the Court firmly believes that the right in question is fundamental for the purpose of substantive due process review, the Court will also address Plaintiff's substantive due process claim under rational basis review. As explained below, the Court finds that Plaintiff provided sufficient evidence that the Ordinance is not rationally related to a
It is the plaintiff's burden to establish that the defendant's action is not rationally related to a legitimate government interest. Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, at 1228 (6th Cir.1997). Rational basis review is a deferential standard under which government action is afforded a strong presumption of validity. Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758, 770 (6th Cir.2005). The Sixth Circuit has held that "under rational basis review, ... a purported rational basis may be based on `rational speculation unsupported by evidence or empirical data' and need not have a foundation in the record." Id. at 770 (internal citation omitted) (upholding the district court's dismissal because the defendant water district had asserted legitimate interests behind its policy); see also 37712, Inc. v. Ohio Dep't of Liquor Control, 113 F.3d 614, 620 (6th Cir.1997) ("[I]f any conceivable legitimate governmental interest supports the contested ordinance, that measure is not `arbitrary and capricious' and hence cannot offend substantive due process norms.").
In this case, the City asserts that it had a nuisance-abatement interest in ensuring that the City property adjacent to Plaintiff's property was sufficiently maintained. Specifically, the City asserts that it may enact ordinances — under the Home Rule Cities Act and the Michigan Constitution — that seek to promote public health and otherwise advance the interests of the City. The City further provides a list
Plaintiff correctly points out, however, that the City's argument completely misses the issue. The issue is not whether requiring grass to be mown to eight inches or less is rationally related to a legitimate government purpose. Rather, the issue is whether it is within the power of a municipal government to force a citizen to abate a nuisance created on City property. The City merely provides the Court with the legal premise behind requiring private citizens to abate nuisances on private property. In fact, all of the authority Defendant relies upon
Although nuisance abatement on private property may be a valid goal of municipal police power, that is not the issue before the Court. In this case, rather, the City has imposed costs upon the Plaintiff for Plaintiff's alleged failure to abate a nuisance on public, City-owned property. The Court cannot simply fit the square
The Court can perceive of no rational relationship between the interest the City has in abating nuisances on public property and the Ordinance currently in place. Although the City may wish to maintain the vegetation on plots of public property throughout the City, expecting private citizens to perform such maintenance is decidedly irrational. The same logic could lead the City to require that private citizens must water the grass on public property — using water City residents must purchase from the City — in order to avoid imposition of a fee. If the City wishes to maintain its property in accordance with its own ordinances, it must do so in the same manner in which a private citizen maintains their own property: through the volition of their own actions.
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment [dkt. 25] is GRANTED and Defendant's Motion for Summary Judgment [dkt. 26] is DENIED.
IT IS SO ORDERED.
This picture depicts the area between the sidewalk and the curb after renovations that the City required Plaintiff to maintain. The Court finds that the manner in which the City rearranged the area — with nine trees and supporting guide wires — makes it nearly impossible to maintain the grass.
