160 Conn.App. 677
Conn. App. Ct.2015Background
- On May 22, 2009 Hartford building inspectors (Gompper and Jones) found rear porches and a stairway on two contiguous plaintiff-owned buildings to be rotted and unsafe; the city demolished those appurtenant structures without a predeprivation hearing.
- Plaintiff Dermoth H. Brown sued under state law and 42 U.S.C. § 1983, alleging procedural and substantive due process violations, nuisance, negligence, equal protection (class-of-one), and seeking a declaratory judgment that Hartford Mun. Code § 9-54 (and State Building Code § 116.4) are unconstitutional.
- Trial court bifurcated and first held § 9-54 constitutional; after a bench trial the court found the city acted in good faith in an emergency, plaintiff had postdeprivation remedies (the present action), and awarded judgment for the city, finding no proven pecuniary damages.
- Plaintiff appealed, raising challenges to ordinance constitutionality, counsel disqualification, denial of jury trial, due process (need for predeprivation hearing under Mathews), deference to witness testimony, and damages.
- The appellate court affirmed, concluding emergency demolition procedures can satisfy due process when postdeprivation review is available, the corporation counsel was not disqualified by imputation, the plaintiff waived a jury, testimonial credibility findings were proper, and damages were not proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 9-54 (emergency demolition without prehearing) | § 9-54 is unconstitutional because it lacks a predeprivation hearing or an administrative appeal | Emergency authority is constitutional where predeprivation process is impractical and postdeprivation judicial review exists | § 9-54 constitutional as applied; postdeprivation plenary action suffices given emergency and available remedies |
| Denial of motion to disqualify city counsel (imputed conflict) | Prior private counsel (Borges) represented Brown; her later role as corporation counsel should disqualify entire office under Rule 1.9/1.10 | Government conflicts governed by Rule 1.11 which does not impute a public lawyer’s conflicts to the whole office; Borges avowed nonparticipation | Denial affirmed; Rule 1.11 controls and no evidence Borges participated or disclosed confidences |
| Denial of jury trial | Second amended complaint expanded factual issues, so Brown timely claimed a jury | Case was on court-trial docket; plaintiff acquiesced and proceeded to present evidence to the court | Waiver: plaintiff’s counsel implicitly waived the jury right by agreeing to proceed and calling witnesses |
| Procedural due process (need for Mathews balancing / prehearing) | Mathews v. Eldridge balancing required; predeprivation hearing was necessary | Emergencies allow summary administrative action; Mathews/Parratt/Hodel precedent supports postdeprivation review where prehearing is impractical | Court declined to apply Mathews here; followed Parratt/Hodel/Gorra — emergency demolition without prehearing did not violate due process given postdeprivation remedy |
| Deference to witness testimony / judicial factfinding | Mayor Perez’s testimony should be treated as a judicial admission; expert testimony was improperly discounted; city witnesses were undisclosed experts | Perez lacked personal knowledge of structure condition; Gompper/Jones testified to factual observations based on inspection; credibility for trier of fact | Court properly weighed credibility; Perez’s statements were not dispositive; building inspectors’ factual testimony admissible; findings not clearly erroneous |
| Damages (pecuniary loss) | Lost business/rental income and cost to rebuild porches/stairway | Plaintiff failed to prove value before/after demolition or causation for claimed losses | Affirmed: plaintiff failed to meet burden of proof on pecuniary damages |
Key Cases Cited
- Gilbert v. Homar, 520 U.S. 924 (1997) (predeprivation hearing not always required where prompt action is necessary and postdeprivation remedies suffice)
- Parratt v. Taylor, 451 U.S. 527 (1981) (state action in emergencies may satisfy due process via postdeprivation process)
- Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981) (emergency administrative orders with discretion are constitutional absent pattern of abuse; review should avoid hindsight second-guessing)
- Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978) (municipal liability under § 1983 requires an official policy or custom causing the deprivation)
- Gorra Realty, Inc. v. Jetmore, 200 Conn. 151 (1986) (Connecticut recognizes summary administrative action in emergencies; judicial relief postdeprivation protects due process)
- Danziger v. Demolition Board, 18 Conn. App. 40 (1988) (plaintiff harmed by municipal demolition orders may seek plenary action in court as postdeprivation review)
- Catanzaro v. Weiden, 188 F.3d 56 (2d Cir. 1999) (Second Circuit analysis upholding emergency demolition where Parratt exception applies and adequate postdeprivation remedies exist)