We've had this one in our queue for a bit, but it seems now is a good time to lay out the U.S. Court of Appeals for the Sixth Circuit's opinion in McIntosh v. Madisonville, No. 24-5383 (Jan. 21, 2025). After all, the Due Process Clause seems to be in the news a lot lately, and this case explains what process is due property owners before they are deprived of that property.
Here's the story. The city, after a code enforcement officer's inspection (responding to a tenant complaint) declared that one of McIntosh's mobile homes had mold and deemed it unsafe and unsalvageable. Letter followed notifying the owner of the city's condemnation of the property, advising him that he had 30 days to submit plans for getting things in order, or else the city was going to tear it down. The city also put notice on the property itself. Both sides agree that the owner got these notices, and that he wrote back.
But that's about all they agreed on. What followed seems like a pretty typical scenario, where the owner claims to have made efforts, all of which were fruitless. McIntosh says he tried to contact city officials, but got no responses except for if he "didn't like [the decision], sue them." Slip op. at 3. Another call got a similar response: "When Mr. McIntosh again called Wallace’s office about his letter, Phillips told him: 'We do not care what your letter said . . . I’m going to tear that house down.'" Slip op. at 4. Apparently, the owner checked the city's code which said that if you disagreed with a decision like this you must administratively appeal to the City Board of Adjustment. Problem is, the city's doesn't have a Board of Adjustment. The owner also asserted that no inspector ever came back to see whether his repairs were satisfactory.
The city said otherwise: no, the owner didn't contact us; we offered to work with this fellow; we did reinspect the property but found only minor, cosmetic repairs. Pretty wide gap in those stories. But a "month after the initial condemnation, the time for demolition arrived." Id.
Next up, a state court § 1983 due process claim and a state law claim for trespass. The city removed and sought summary judgment: we provided enough notice and an opportunity to be heard. The district court granted the motion, concluding that the city had done enough.
The Sixth Circuit reversed. First, it agreed with the district court that McIntosh got enough predeprivation notice to tell him that something was up, and that he better respond. Slip op. at 5. Notice doesn't need to be all that specific, and here it wasn't. And there doesn't need to be some kind of roadmap to what to do next if the next stop is a courtroom. [Barista's note: this analysis is consistent with those cases where the courts hold that if a property owner is going to be required to chase administrative procedures, the government should provide a roadmap.]
But what about a predeprivation hearing of some kind? Here, the court agreed with the owner. There wasn't an emergency, so a hearing was required. Yes, what form that hearing took may not be fixed but "some kind of hearing" is an "imperative." Slip op. at 6. Here, the "key problem is that the City Code says that property owners have a right to a hearing before the Local Appeals board over a grievance against 'any decision of the Building Inspector[.]'" Slip op. at 7. And as we noted above, the city doesn't have an Appeals Board. Yeah, we meant to get around to it, but ultimately decided that our informal process was enough:
While Wallace agreed that § 150.13 “does call for an appeals council or appeals board for appealing any” of his decisions, he insisted that the City did not have one. R.24-6 at 10. When pressed about this deviation from the municipal code, Wallace explained that city officials have considered setting one up but concluded it “didn’t feel . . . necessary” given other, more informal means of disputing a condemnation. R.24-6 at 10. This could be why, when Mr. McIntosh asked an employee of Wallace’s office how to appeal (albeit, to what he called the “Board of Adjustment”), she told Mr. McIntosh that no such board existed. R.24-5 at 10. Wallace’s certainty that no board existed and his employee’s response to the McIntoshes’ inquiry along the same lines would permit a reasonable juror to characterize the City’s statutory promise of a hearing as illusory.
Id.
But who needs compliance with the law, the city argued. Everyone knows that's not the way we do things around here. We have "less formal opportunities for a pre-deprivation hearing[.]" Id. Shame on McIntosh for not knowing about this and for not "sitting down" with us for a "conversation." Id.
The court was as incredulous at this as you might expect.
Let us assume for the sake of argument that this option—not mentioned in the City’s generally applicable laws—constitutes an adequate chance to be heard. Problems remain even still. The only evidence of such a policy arises from Wallace’s testimony, not a provision in the City’s Code. Unlike appeals processes engrained in statutes, this “procedure, if it existed at all, depended on the vagaries of word of mouth referral,” creating the imperative that the City tell the McIntoshes about this opportunity. Memphis Light, 436 U.S. at 14 n.14 (quotation omitted); see Palmer, 479 F.2d at 168 (rejecting the claim that “the mere theoretical possibility of informal resolution” with company figures—a possibility unknown to customers—meets due process standards). Yet neither the condemnation flyer nor its related letter nor the statements of any official conveyed to the McIntoshes the opportunity to speak with Wallace and the City Attorney about the proposed demolition. Making matters worse, none of those sources ever informed the McIntoshes precisely what provisions of the municipal code their unit violated—and had to be repaired. A reasonable juror could find that no such policy existed or that, even if it did, the City never told the property owners about it.
Slip op. at 7-8.
At bottom, there was a factual dispute about what the owner knew about this, so the court held it was wrong to enter summary judgment while those facts remained in dispute.
By the way, the owner's due process claim was not limited to procedural due process. He also challenged the city's condemnation as arbitrary and capricious. You can guess how well that went. This is a "routine" exercise of police power and the city "condemned the home due to its mold, moisture, and structural weaknessess[.]" Slip op. at 9. District court's summary judgment on substantive due process affirmed.
McIntosh v. City of Madisonville, No. 24-5383 (6th Cir. Jan. 21, 2025)
