County of Adams v. Hibbard

Colorado; ADAMS, State COUNTY OF Darrel L.

Robert Loew and J. Petitioners, Matteson, Garrison, Dean HIBBARD and H.D. Respondents.

No. 94SC757. Colorado, Supreme Court of En Banc. June may

officials be held accountable under § designed 1983 for conduct that is to cause outright proper- destruction of a citizen’s ty. us, On the record before we conclude county that the intentional misconduct of offi- causing cials private prop- the destruction'of erty species ais of tort within the reach of § 1983 and we hold that officials personally be held accountable for their unauthorized and deliberate misbehavior un- Congressional der that enactment. granted We certiorari to review Hibbard v. Adams, County 900 P.2d 1254 (Colo.App.1 994).1 (Coun County Petitioners of Adams Loew, ty), Robert J. L. and Darrel Matteson (individual defendants)2 seek reversal of the appeals’ judgment court of affirming the trial entry judgment imposing liability court’s (1988) under 42 damage U.S.C. for respondents (plain Hibbard’s and Garrison’s tiffs) personal property. real and affirm part, part, reverse in and remand to the appeals court of with directions that it return pro case to the trial court for further ceedings opinion. consistent with this I Facts Evans, L.L.C., Epstein, Hall & Alan David Marks, Denver, Brougham, R. Josh A. adopted Ordinance Petitioners. “blighted No. 3 to eliminate areas” Goldstein, Denver, County. Gilbert Darrel L. III pro- Section of Ordinance No. 3 Campbell, Englewood, Respondents. vides that exteriors of all “[t]he commercial multifamily buildings establishments or ... Opinion Justice SCOTT delivered the shall be maintained so as to a neat the Court. orderly appearance.” Section V states that a commercial establishment or multifam- Supreme Pape, Court in Monroe v. ily trash, “kept junk, must be free of 167, 187, 473, 484, rubbish, any debris or refuse of kind.” If the (1961), L.Ed.2d held that 42 U.S.C. any property comply owner of fails to against must be “read requirements, these property is declared background [person] ... that makes a re- sponsible blight,” subject a “cause of and the owner consequences for the natural of his hence, Today, thirty years proceedings [or her] actions.” to enforcement under the ordi- county county we must decide whether nance. granting property

1. Our order certiorari set forth two struction of under 42 U.S.C. issues on review: § 1983. appeals I. Whether the court of erred in holding liable for collectively destruction of 2. Petitioners are referred to as "de- property under 42 U.S.C. 1983. fendants.” II. Whether the court of erred in holding County attorneys liable for de- violated, described, given charge If ordinance is notice is remove the items subject property property. to the owner that the must costs as a lien brought compliance. offending If the into comply Plaintiffs faded to with the ALJ’s compliance, property brought is not into County proceeded against and the held, hearing is and an Administrative Law plaintiffs’ property. clearing prop- While (ALJ) Judge findings make as to must erty, County damaged razed the fire blight If whether causes of exist. the ALJ and, budding although set forth in the order blight finds that exist and should causes be they knew Garrison’s residence was not cov- corrected, an administrative order is issued order, ered the ALJ’s defendants Loew commanding the owner to remove the causes intentionady deliberately and Matteson and blight. directed the destruction of Garrison’s resi- property Plaintiff Hibbard owned real property dence and the Garrison in stored County. buildings within the Two were lo- budding.3 property, a cated on the one of which was building damaged by commercial in fire action, asserting Plaintiffs filed this several (fire repaired damaged and had not been They sought claims defendants. building). Plaintiff Garrison worked and declaratory judgment No. Ordinance (Garrison’s in lived the other resi- by any was not authorized Colorado statute dence), per- which contained various items of unconstitutionally vague. and was Plaintiffs property belonging sonal to In Garrison. sought joint judgment also and several for County, alleging property that the damages against all defendants based on the 3, gave violated Ordinance No. notice residence, destruction of Garrison’s the items plaintiffs hearing and a was held before an personalty budding, stored within that and decision, ALJ. a written found ALJ tank, damage underground pump, to an following “blight factors” existed on and wed. property: upheld validity The trial court of Ordi- bufiding A. which [A] is vacant and was nance No. but determined that the ALJ’s subject pursuant of a fire in 1983which order did authorize the destruction of III County Section of Ordinance No. personalty Garrison’s residence and the Adams, budding being is not a that is stored within it. The trial court also found present maintained so as to a neat and the individual defendants knew the orderly appearance.... apply ALJ’s order did not to Garrison’s resi- V, B. Pursuant to Section this Court willfully dence but its ordered destruction junk, trash, semi-trader, finds that loose plaintiffs’ rights. violation of constitutional barricades, tires, wood, bricks, posts, fence cones, junk, pdes asphalt, acety- metal trial judgment court entered a for tank, containers, blocks, lene rusted cinder damages plaintiff in favor of Hibbard for trash, traders, inoperable rusted an $10,000, $3,500, plaintiff Garrison for van, truck, unsightly inoperable pickup jointly severally against all defendants. unsightly out-buddings, old and an old and However, any damages refused award blighting rusted motor cart ad are factors razing damaged building of the fire particular on property. tank, pump, the harm caused to the and well. damage The trial court required plaintiffs The ALJ’s order determined to cor- objects “blight necessary rect to these was a specified factors” date incident to damaged budding damaged building and directed that the fire the destruction of the fire order, disposed days was to of a few later. If described the ALJ’s which court comply did not properly with the concluded was authorized to be re- premises, authorized enter the moved. 30-28-114, recognized by appeals, zoning (1986); § As the court of court. See 12A C.R.S. 30-28-124(1), (1986); properly violations are more enforced 12A C.R.S. 30-28- 124(2), Hibbard, (1986); withholding building permits, prose- criminal 12A C.R.S. P.2d cution, appropriate or an civil action in district appeals part, idity. Finally, The court of affirmed re Id. because concluded that part, invahd, the ease for versed remanded partially Ordinance No. 3 was Hibbard, proceedings. further 900 P.2d at appeals court of remanded the case to the “that, appeals 1258. The court of stated to trial court for further consideration of dam- purports the extent that Ordinance No. 3 to ages. destroy

authorize the and remove buildings that do not a ‘neat and II orderly1 appearance, the same was unautho Threshold Matters Therefore, rized and invalid.” Id. at 1260.4 the court of reasoned that the Coun addressing liability Before under 42 U.S.C. ty rely upon could not the ordinance as au we first examine two threshold mat- thority building. for destruction of either ters: whether the two individual defen- only capac- dants were sued in their appeals The court of “official” found Ordinance (2) ities; and the trial express County No. whether court lacked “policy” 3 was of the subject thus, jurisdiction County plain- matter to address was hable for destruc- § ripeness tiffs’ claim buildings. 1983 because of consid- tion of the two Id. at 1261. Al- erations. The though plaintiffs sought damages individual defendants maintain no they damaged building, were not sued their individual ap- the fire the court of capacities. agree. do not peals County Defendants held the hable for harm done to pre- also contend that the claim property, underground such 1983 was tank, mature because failed to pump, damage and weh “if such seek com- result- pensation county through from the County’s ed from the state unauthorized action.” remedies, condemnation, residence, such as inverse Regarding Id. Garrison’s taking direct appeals claim under the Colorado County court of held that was Con- stitution, trespass or a damages resulting action. This we ad- hable for to it because the briefly dress below. unauthorized acts of defendants Loew and

Matteson, county attorney and his assis- tant, interpretation arose out of their of the A which, effect, ALJ’s order “constituted the rely para- The individual defendants on adoption county policy.” of an official Id. at graph plaintiffs’ five of second amended com- 1262. plaint allegations they for their were The individual defendants maintained that only capacities: sued their official by entering judgment the trial court erred [sic] Defendant Robert J. Lowe is the against damages them for sustained due to Adams, County Attorney for the of the destruction of Garrison’s residence of Darrel L. State Colorado. Defendant disagreed. appeals its contents. The court of County Attorney Matteson is an Assistant rejected It the individual defendants’ employed by County Attorney. the Adams they contentions that were sued in their Each and all acts Lowe [sic] Defendants capacities quali- official and were entitled to forth herein Matteson set were done However, immunity. fied Id. at 1262-64. individuals, them, not as but under the appeals the court held the individual pretense the ordinances color damage defendants could not be hable for Adams, State Colorado. damaged building done to the fire “because added.) (Emphasis The individual defen- was, at the time the ALJ his order issued personally dants also note were not it, interpreted individuals no served. ‘clearly means established’ that Ordinance However, partially No. 3 invalid.” Id. at their second amended com Therefore, plaint, plaintiffs specifically sought damages the individual defendants were qualified immunity damages joint entitled to all defendants on a and several Also, stemming partial emphasized portion from the ordinance’s inval- basis. unconstitutionally Because court of found the ordi- tention that the ordinance was invalid, plaintiff’s vague. nance it did not address con- Therefore, required ripe.” § 1983 claim was we only to make the complaint serves decline a third invitation to address defen- 1983 claim that the defen allegation for plaintiffs’ § acting under color of law. See dants’ contention that dants were States, 91, 108, ripe. 65 claims are not v. 325 U.S. Screws United 1031, 1038, L.Ed. 1495 Ill clearly complaint does not When specify personally, sued whether officials are County Liability “ both, capacity, or ‘[t]he in their official part, In relevant U.S.C. proceedings’” usually course of establishes (1988)provides: liability sought imposed. to be Ken who, any Every person under color of Graham, tucky v. 167 n. ordinance, custom, statute, regulation, 3099, 3106, 105 S.Ct. 87 L.Ed.2d any subjects, usage, of State ... or causes Holt, 464, 469, (quoting Brandon subjected, any to be citizen of The United (1985)). 83 L.Ed.2d 878 person jurisdic- States or other within Throughout proceedings, the individual any deprivation tion thereof acknowledged the suit affir defendants rights, privileges, or immunities secured See, e.g., matively denying personal liability. laws, by the Constitution and shall be lia- Compl. Affir Answer to Am. Sixth Second law, party injured in an ble to the action at (“Defendants mative Defense Loew and equity, proper proceeding or suit capacities individual are Matteson their for redress. immunity qualified to official entitled good immunity.”); Support faith Brief In begin proposition with the that “Con- Pleadings, Mot. for Summ. J. and J. On the gress municipalities lo- did intend and other (“Loew 1, pub Vol. at 237 and Matteson are among government cal units to be included officials, County Attorney lic the and Assis applies.” § persons those to whom 1983 Mo- County Attorney who tant are named as Servs., City Dep’t nell v. New York Social case.”). Signifi individual defendants this 690, 2018, 2035, 658, 436 U.S. 98 S.Ct. 56 cantly, the individual defendants did 1983, § L.Ed.2d 611 Under a munici- plaintiffs’ seek dismissal because of failure to pality directly can action be sued where “the Rather, allege liability. individual imple- alleged that is to be unconstitutional immunity sought personal dismissal based on statement, policy ments or executes a ordi- Also, by attacking from suit. the substan nance, regulation, officially or decision by plaintiffs, claims the indi tive raised by body’s adopted promulgated offi- objection vidual defendants waived their Id.; City cers.” see also St. Louis v. personal subjected service and themselves to 112, 128, 915, Praprotnik, 485 U.S. 108 S.Ct. jurisdiction. court’s See Brown (1988) 926, (plurality opinion) 99 L.Ed.2d 107

Amen, 468, 472, 735, 147 Colo. 364 P.2d 737 (“The city § cannot be held liable under 1983 (1961).5 respondent proved unless the existence of an

municipal policy.”).

unconstitutional

B A plaintiffs’ Defendants maintain that However, defendants, ripe. acknowledged by claim “[i]n 1983 was we As case, County ripeness certiorari on the issue. the Board of denied Commission- Then, and, such, policy plaintiffs after filed a motion for clari- ers is the maker presented policy through fication of issues for certiorari re- created the enactment view, specifically Opening No. 3.” Brief “[t]he we stated that court Ordinance Petitioners’ 13; grant Reply Brief at 4 did not certiorari review on whether at see also Petitioners’ "[tjhere Kentucky, government directly ... local can be sued 5. the Court stated that is no units bring longer official-capacity a need to actions damages injunctive declaratory re officials, local for under Mo 14, Kentucky, at 167 lief.” 473 U.S. n. Servs., City Dep't Social [v. nell New York at 3106 n. 14. (1978)], L.Ed.2d 611 98 S.Ct. (“[T]he right by Appeals properly vation of a secured the Constitution Court [Colorado] ‘policy’ or laws of the United States.” Id. No. 3 concluded Ordinance municipal liability purposes of under ease, In the there is no evidence 1983....”). U.S.C. any incurred harm as a direct County policy. sought result of Plaintiffs no appeals concluded that Ordi- The court of damages for the destruction of the fire dam- County invalid because the nance No. 3 was Hibbard, aged building itself. 900 P.2d at adopt regula- such a was not authorized Regarding utility Hibbard, value of the at tion.6 1259. Because tank, well, underground pump, and the trial the ordinance was unauthorized under state (like plaintiffs’ testimony court found much of law,7 the court of did not address testimony) totally plaintiffs’ “to have been plaintiffs’ contention that the ordinance was credibility.”9 upon devoid of Based the rec- However, unconstitutionally vague. Id. us, County any ord before did not cause held the liable “to the extent that still damage giving deprivation rise of a County’s agents destroy- the actions of the right. federal buildings by ing the two were authorized 3_” No. Ordinance Ordinance No. 3 did not articulate a build- subject ing policy destruction to the discre- 1983, plaintiff prove must Under county attorney tion of the and his assistant. “(1) (2) person acting color of under Therefore, is not liable for dam- (3) subjected plaintiff state law or caused age done Garrison’s residence and its con- (4) subjected depri plaintiff to be Damage tents. to Garrison’s residence re- right

vation of a secured the Constitution sulted from the unilateral acts taken City or the laws of the United States.” defendants, particular individual not a action Tuttle, City v. Oklahoma County. County policy taken See id. 2427, 2439, L.Ed.2d any damage in or custom did not cause Monell, (Brennan, J., concurring). Under present case. “person” purposes of is a for Also, 3, by adopting § 1983. Ordinance No. B acting was “under color of law.” site, represents County 3 See id. At the destruction the two While Ordinance No. appeals premised policy, individual also acted “under color the court of also defendants County liability by taking pursuant law” action to Ordi on the two individual defen- of 3, at site. Con- though nance No. even the individual de dants’ behavior the destruction cluding defendants were actions were unauthorized.8 Plain the two individual fendants’ satisfy part policymakers, appeals of stated tiffs the first of the causation the court meaning by establishing respect “[w]ith element the existence of municipal policy, No. breadth of the ALJ’s we are convinced embodied Ordinance upon by interpretation placed plaintiffs 3. id. But must also establish that the See County’s county attorney his two depri- [the actions caused “the assistant Tuttle, ing municipal employee. grant See 471 U.S. at 6. We did not certiorari to review the validi- J., 3, 829, (Brennan, appeals’ concurring). ty of Ordinance No. so the court 105 S.Ct. at 2439 plaintiff by establishing The court of conclusion is not before us. A meets this burden upon was amend- municipal policy. noted that the statute it relied existence of a Id. In Hibbard, case, P.2d at 1260. County liability ed in 1990. See 900 does not attach upon the actions of the individual defen- based policymakers. See dants because were not pursu invalidity 7. We note that the ordinance's part IIIB. by ant to state law does not itself establish mu infra liability § nicipal under See 1983. Chesterfield 1102, found, Chesterfield, Corp. City Dev. v. 963 F.2d any damage to the 9.The trial court also 1992). (8th 1104 Cir. tank, underground pump, well have been See, Northglenn e.g., City "incidental.” 175, (“In (Colo.1993) however, Grynberg, no alone, 179 Acting law” 8. "under color of depreciation mere in value been liability § case has municipal under does not create 1983. grounds just compensation illegal award for a dam- must show that the action The nonpolicymak- aging property.”). by County, caused not a 218 adop- “policy” requirement defendants]

individual constituted the was “intended to Hibbard, county policy.” distinguish tion of an official municipality acts of the from disagree. employees 900 P.2d at 1262. We The two municipality, acts policymakers thereby municipal liability individual defendants were make clear that is purposes municipal liability under limited to action for which municipality is § actually responsible.” 1983. City Pembaur v. Cincinnati, 469, 479-80, municipal Congress liability intended 1292, 1298,89 L.Ed.2d 452 To recov “pursuant when actions taken to official municipality, plaintiff er from a must estab municipal policy of some nature caused a municipality “officially lish that the has sanc Monell, 691, constitutional tort.” 436 at 480, tioned or ordered” an act. Id. at particular, gov at S.Ct. a local rationale, S.Ct. at 1298. Under this munici § ernment cannot be under liable 1983 “sole pal liability may single attach for a ” decision ly employs because a tortfeasor.... Id. by policy makers under certain circumstances. 1983, liability municipal Under cannot at Id. respondeat superior theory. tach on a The Court stated: However, municipality is liable conclude, therefore, gov- that a local “only possesses where the decisionmaker fi ernment not be sued under 1983 for authority municipal nal policy establish injury solely by employees inflicted its respect to the action ordered.” Id. at agents. Instead, or it is when execution of 481, (plurality opinion). 106 S.Ct. at 1299 custom, government’s policy or whether The mere existence of an official’s discretion made its lawmakers those whose “give does municipal liability rise to may fairly repre- edicts or acts be said based on an exercise of that discretion.” Id. policy, injury sent official inflicts the at (plurality opinion); 106 S.Ct. at 1299 entity responsible as an Praprotnik, see also 485 U.S. at under (“If (plurality opinion) at S.Ct. the mere Id. at 98 S.Ct. at 2037. exercise of discretion an employee could Monell, municipalities may only Under give violation, rise to a constitutional held pursuant liable for actions taken indistinguishable to a result would be from re- Tuttle, “policy.” “custom” or spondeat superior liability.”). 471 U.S. at Before munic (plurality attaches, opinion) ipal liability a state official “must (“[T]he only depriva- Monell Court held that responsible also be establishing gov final pursuant municipal Pembaur, tions visited policy_” ‘custom’ ernment 475 U.S. at ‘policy’ 483, or municipal liability.”). could lead to at (plurality opinion).11 S.Ct. 10. Policy may necessarily acts or edicts plurality following not in- 11. The offered the illustrative hypothetical: applied volve written rules intended to be consis- 480-81, tently Thus, over time. See id. at example, County 106 S.Ct. at may the Sheriff government "frequently 1298-99. A local employees choos- have discretion to hire and fire being particular county responsi- es a course without also of action tailored to a official establishing county employment policy. ble for situation and not intended to control decisions in case, 481, If this were the the Sheriff's later decisions situations.” Id. at 106 S.Ct. at 1299. respecting employment Pembaur, give would not rise to explained: In the Court municipal liability, although similar decisions adopt particular If the decision to that course respect practices, with to law enforcement properly by govern- of action is made policy- over which the Sheriff is the official decisionmakers, surely ment’s authorized maker, give municipal liability. would rise to represents an act "poli- of official Instead, county employment policy if was set cy” commonly as that term is understood. Commissioners, by County only the Board of importantly, by More where action is directed body's provide decisions would a basis for governmental policy, those who establish counly liability. This would be true even if the municipality equally responsible whether Board left the Sheriff discretion to hire and only that action is to be taken once or to be employees fire and the Sheriff exercised that repeatedly. deny compensation taken manner; To discretion in an unconstitutional contrary the victim would therefore be unlawfully to the decision to act would not be a deci- purpose However, fundamental sion of the Board. if the Board (footnote omitted). delegated power employ- its to establish final county in advisor of the commissioners an official con of whether A determination ap- reposes power whose discretion matter of state policymaker is a stitutes pointment. In certain matters he advises 124, at 108 S.Ct. Praprotnik, 485 U.S. law. officers, county ap- other administrative Pembaur, 475 (plurality opinion); at 924-25 pears county involving in cases for the (plurality opin at 1300 at neglected delinquent dependent, chil- ion). Pembaur, “that plurality noted In dren, and, lunacy inquests in when direct- attaches liability under municipal commissioners, county by the civil ed choice only where —a deliberate where —and litigation county party to which the is a or made from a course of action is to follow it is interested. which or among the official various alternatives (citation omitted). at Id. at establishing pol final responsible for officials However, county attorney’s duty gener- subject icy respect to the matter with ally county administrative offi- “advise Pembaur, 483-84, 106 475 U.S. at question.” policymaking itself create cers” does (plurality opinion); see also at 1300 S.Ct. authority specific zoning. To in the area of Tuttle, at 2436 S.Ct. governmental official policymaker, be a C“[P]olicy’ im opinion) generally (plurality “responsible officials must be for estab- consciously chosen plies a course of action lishing policy respect subject final alternatives-”). among various Pembaur, question.” 475 U.S. at matter in County artic The Board of Commissioners 483-84, (plurality opinion) 106 S.Ct. at 1300 See, county. policy each zoning ulates added). (emphasis 30-28-113(1), 12A e.g., C.R.S. Pembaur, county attorney Unlike (“[B]oard may county ... commissioners policy final “with his assistant do not make bulk, location, height, ... regulate subject respect question.” matter in structures, buildings size of and other Pembaur, entry to physician refused his occupied, percentage of lot which Deputy Hamilton clinic Sheriffs courts, yards, open spaces, and other size of attempting police, who were Cincinnati ”). county buildings.... The at the uses capiases for the arrest and detention to issue county torney only policy. enforces 472-73, employees. Id. at of two of his interpret attorney’s exercise of discretion denied, at 1294-95. After access was S.Ct. more, reflects, without ing the ALJ’s order Deputy supervisor called their Sheriffs policy. Praprot- departure from See supervisor for further instructions. Id. The nik, 127, 108 (plurali at 926 485 U.S. at the Assis Deputy told the Sheriffs contact (“When discretionary ty opinion) an official’s Id. at 106 S.Ct. at tant Prosecutor. by policies constrained decisions are did, Prosecu They and the Assistant making, policies, those rather that official’s Prosecutor, tor conferred with them, departures from than the subordinate’s “go get in and gave [the who instructions to municipality.”). Because are the act of the Id. The Court concluded witnesses].” authority to possesses the make the Board ordering Deputy Sheriffs to enter “[i]n matters, zoning policy regarding re final County Prosecutor was petitioner’s clinic the authority municipal policy tains the to make for the acting as the final decisionmaker id. in that area. See county may county, therefore be held Medberry v. relied on The court 485, 106 at 1983.” Id. at S.Ct. under liable (1940), 15, P.2d 243 People, 107 Colo. 108 Pembaur, In the Court found under 1301. county attorney and its conclusion the Prosecutor “could establish Ohio law that In policymakers. Medber his assistant were circum- county policy appropriate under stances_” responsibili ry, we described the duties 484, Id. at 106 S.Ct. at county attorney in Colorado: ties of a merely ren Prosecutor did County Prose county “legal Id. The of Colorado a der advice.” Under the statutes authority possessed final to instruct attorney employed primarily legal as the cutor is Pembaur, 12, Sheriff, S.Ct. at 1300 475 U.S. at 483 n. 106 policy deci- ment sions would give Sheriff's county policy represent and could (plurality opinion). n. 12 liability. municipal rise to 220 low, premises. 819, pres-

officers to enter the In the 457 U.S. at 102 S.Ct. at 2738. An case, county attorney objective ent qualified was not imbued immunity test bal- ordinance, any authority under the rath- competing ances the interests of citizen er, imple- his authorized acts were rights limited to independent exercise of official menting policy of Ordinance No. 3 as authority. set Higgs, 713 P.2d at 852. In Har- by low, the Board of Commissioners. As the Court observed: law, possessed a matter of state the Board By defining qualified the limits of immu policymaking authority final in the area of terms, nity essentially objective pro we zoning.12 vide no license to lawless conduct. The Because the two individual defendants public interest in deterrence of unlawful policymakers, County liability were does compensation conduct and in of victims not attach for destruction of the contents protected by remains a test that focuses on county Garrison’s residence due to the attor- objective legal reasonableness of an ney’s his assistant’s actions at the de- official’s acts. Where official could be struction site. expected to know that certain conduct statutory would violate or constitutional

IV rights, he [or she] should be made to hesi tate; person injury and a who suffers Liability Individual may caused such conduct have a cause public officials, As individ two of action. But where an official’s duties ual defendants claim are entitled to legitimately require clearly action in which qualified immunity. agree part rights implicated, established are not disagree part. immunity Two kinds of public interest be better served defenses exist. Fitzgerald, Harlow v. 457 independence action taken “with and with 800, 807, 2727, 2732, U.S. 102 S.Ct. 73 consequences.” out fear of Pierson (1982). L.Ed.2d 396 immunity Absolute 554, Ray, 547, 1213, 1218, 87 S.Ct. available special “[f]or officials whose 18 L.Ed.2d 288 functions or requires constitutional status Id.; complete protection from suit....” see Harlow, 819, 102 457 U.S. at S.Ct. at 2738-39 Court, Higgs 840, also v. District (footnotes 713 P.2d omitted); Higgs, 713 P.2d at 852 (Colo.1985). Qualified immunity, on the Harlow, (quoting 819, 457 U.S. at hand, represents the norm 2738-39). for execu at Harlow, 807, tive officials. 457 U.S. at The individual defendants are not en 2732; Higgs, S.Ct. at 713 P.2d at 852. qualified immunity titled to for the destruc “Qualified ‘good immunity faith’ is an af tion of Garrison’s personal residence or his firmative defense that pleaded by must be property. Regarding and its Harlow, 815, defendant official.” at contents, the trial court found that “the ac Harlow, at In the Court tions of Defendants deprivation were a willful stated “that performing officials rights Plaintiffs’ civil in contravention of discretionary functions, generally are shield [§] U.S.C. 1983.” See also City Crouse v. liability ed from damages for civil insofar as (Colo. Springs, Colo. clearly their conduct does not violate estab 1988) (“The process due clause the four statutory lished rights or constitutional protects teenth amendment individuals from person which a reasonable would have deprivation liberty by deliberate abusive 2738; known.” Id. at 102 S.Ct. at see officials.”). or harsh conduct state Higgs, also qualified P.2d 852. The immunity defense should fail if the law was Judgment April its Order and dated clearly reasonably established because “a the trial court found “Defendant competent public official should know the Matteson garage/shop building knew the governing law his [or her] conduct.” [Garrison’s Har- residence] was not covered and subjective The two objectively by individual defendants’ determined reference to state law. Policymaker views are irrelevant. status must be V Loewe [sic]....” so advised Defendant added.) (Emphasis public A reasonable offi sum, is not liable for dam- razing expected to know that cial would be ages done to residence as conse- Garrison’s per building its contents out of private and quence of the acts of the unilateral individual pro constitutional sonal violated convenience defendants, policymakers who were not of (“[O]utrageous of id. abuse tections. See defendants, County. The individual who authority directed citi government qualified immunity, are not entitled to must type of misconduct precisely zens is stand accountable for their deliberate and by Congress in which remedies created when, although they acts knew willful Garri- deter”). Clearly to designed 1983 were son’s residence was not covered the ALJ’s have indi law should made the established they intentionally for the de- called destroying before vidual hesitate defendants because, struction of Garrison’s residence in by the ALJ’s A property not covered order. view, clearly proce- avoiding their established would public reasonable official have hesitat However, cheaper. we dures would be re- destroying private property. The ed before judgment appeals of verse of court as improperly individual defendants razed building. the fire Plaintiffs damaged did that a would building under the belief lawsuit destruction, and damages not seek for its on according plaintiffs “cheaper” than us, express opinion no the record before we process contemplated benefit of the under damages as to claims for related the fire No. 3. Ordinance damaged building. stated: The trial court Accordingly, affirm court of we that, finding as to [I]t is the Court’s part, in part, reverse in and remand garage/shop [Garrison’s Plaintiffs’ court with directions that return ease contents, the actions of De- residence] and trial proceedings to the court for further deprivation a willful of fendants were opinion. consistent with this rights civil in contravention of Plaintiffs’ 1983.... Plaintiffs have [§] U.S.C. MULLARKEY, J., part concurs in and proved preponderance by a of the evi- in part. dissents deprived dence that were of their process civil due rights without of law KOURLIS, J., joins partial in the acting willfully Defendants who were and concurrence and dissent. authority under color of their official forth the limited extent set above. concurring part MULLARKEY Justice agree. public of Conduct officials dissenting part: knowing results in the de- intentional majority’s partial I concur reversal property repu- private struction of should be respect- I appeals’ judgment. the court subjected reproach diated same dissent, however, majority’s fully from the by any apply we would to similar conduct defendants, holding that the individual Rob- person. public knowing- A official who Matteson, Loew L. violated ert J. and Darrel ly authority outside capriciously acts process procedural due and substantive government deprive proper- a citizen rights plaintiffs, Dean Hibbard and ty rightfully citizen that of the should not be H.D. Garrison. liability by escape donning able to the cloak plaintiffs brought this action action as an aid to his or her The alleging taking court an unlawful the individual district defense. Because defendants property deprivation of intentionally their and the their knowingly acted outside process takings claim authority rights. The has their under the ALJ order and due majori- in this court and deliberately deprived plaintiffs proce- been abandoned their rightly that claim. process rights by ty does not address dural due and substantive claim, complaint, process pled in the arbitrary their due causing the destruction of individually specify were private hold them did whether property, we claim asserting procedural process due or a hable conduct. for them unwarranted 222 process they claim process pur-

substantive due claim or both. The due because failed to 106(a)(4). court, relying plaintiffs’ trial on the written sue their remedies under C.R.C.P. process argument, interpreted final the due Second, process a substantive due claim My plain- procedural. claim review of the appeal. cannot be raised for the first time on argument plaintiffs final shows ar- tiffs’ the any appellate axiomatic pro “It is that gued only proper had not had that ceeding may only this court consider issues opportunity notice and an to be heard. actually that have been determined anoth Thus, only agree I with the trial court that agency properly er or been court and have procedural process claim was asserted.1 due presented our for consideration.” Commit tee Better Health All merits, Care Colo. Citi trial On the court found 884, (Colo.1992) Meyer, zens v. 830 P.2d 888 plaintiffs any procedural had waived due Romer, 44, Dempsey 825 (citing v. P.2d 57 n. process by failing timely perfect claim (Colo.1992); State, Colgan Dept. 13 v. Rev of appeal their Law Administrative enue, Div., 871, Vehicle 623 P.2d Motor 874 (ALJ’s) Judge’s plaintiffs’ at- decision. The (Colo.1981)). tempt pursuant to appeal to C.R.C.P. 106(a)(4) untimely was dismissed as and that Third, assuming properly the claim is be appealed. decision was not us, plaintiff prevail fore cannot on sub process due stantive because the trial court’s Despite majori- trial ruling, court’s findings support factual do not that claim. ty concludes that the individual defendants appellant’s § “If 1983 claim construed to “deliberately deprived plaintiffs pro- of their on alleged be based violation substan process rights.” cedural and substantive due process, tive due then the claim must be view, Maj. op. disagree. I my at 221. explicit either on a of an based violation properly disposed procedur- trial court guarantee (e.g., constitutional a fourth process al claim due when it found that there violation) illegal amendment or on seizure Having was no violation. failed to behavior a state actor shocks the trial, process substantive due claim at Pontiac, Braley City conscience.” v. 906 plaintiffs asserting are foreclosed from such 220, (6th Cir.1990)(emphasis supp F.2d 225 claim appeal. Assuming, arguendo, on lied).2 Haag Cuyahoga County, See also v. process properly due substantive claim is (N.D.Ohio 1985) 262, (a F.Supp. 619 278 sub us, findings before the trial court’s factual do process may due pursued stantive claim be support majority’s not that the conclusion only under section 1983 if the conduct rises plaintiffs’ individual defendants violated the tort, i.e., level of a constitutional process rights. substantive due conscience), op., shocks without aff'd Turning procedural process (6th Cir.1986). first due F.2d 1414 The trial court’s claim, procedural the law is clear that a due do findings support not the conclusion that process pursuant claim brought the individual defendants’ conduct shocks the to 42 U.S.C. section 1983 if is an It conscience. found that the individual there de Burch, adequate remedy. v. state Zinermon egre fendants’ conduct was willful but not 975, 100 gious. findings equate L.Ed.2d Such do to a correctly the trial con- Here court showing their conduct shocks the con cluded that the procedural had no science. bring process The court did not address the nature a substantive due claim under two process of the due claim and stated requires theories. first the demonstration of conclusory that the terms action of the individual deprivation liberty property of an identified or taking property defendants "a without protected by interest the Fourteenth Amendment. compensation process and without due of law.” require proof Id. at 531. The second does not Adams, Hibbard v. deprivation specific property liberty of a (Colo.App.1994). interest; plaintiff prove rather the must Hot, Productions, state’s conduct “shocks the conscience.” Sexy In Brown v. and Safer Inc., (1st Cir.1995), (quoting California, Rochin 68 F.3d Circuit First 205, 209-10, (1952)). Appeals explained plaintiff may Court of that a 96 L.Ed. building. the of the windows was the behind Some pivotal issue at trial whether

The up. Photographs as of a had been boarded used the destruction ALJ’s order authorized shop by garage Hibbard used as a at trial show that the shop owned and exhibits garage by appearance In addition to the to the Garrison. was similar fire-dam- residence out-buildings. the ALJ identi- Ac- fire-damaged building, aged order and other following blight blight court, or factors: garage shop as was not cording fied the the easily distinguishable property from other semi-trailer, trash, a fence junk, loose words, bricks, In the court’s tires, wood, slated destruction. barricades, posts, eyesore question it a in the was not of “one cones, junk, asphalt, acety- piles metal garden can be containers, blocks, midst of manicured tank, [that] rusted cinder lene' easily singled surgical out for excision.” trash, trailers, inoperable an and rusted truck, van, pickup unsightly inoperable blight process the had be- After clearance out-buildings, and unsightly an old old and restraining gun, by temporary halted it was cart, machinery parts of motor rusted county plaintiffs. The order obtained the appliances. complied individual the defendants ruling, trial court found the In its oral the garage shop was not court order the unsightly outbuildings” to be phrase “old and until order been demolished after the had meaning de- ambiguous and could not be its file dissolved due the failure from four corners of the ALJ’s termined the complaint. garage To determine whether the order. plain- trial court noted that The also the phrase, court shop was covered razing oc- tiffs were not when evidence, including the to extrinsic

resorted It found: curred. hearing. In transcript of the administrative guidance, and ob- lack assistance [T]his order, court the trial reached its written apparent in jection makes much less following conclusion: mind in an Court’s that Defendants acted question of whether the administrative The Apparently overly egregious manner. De- judge’s order authorized the destruc- law prior to Garrison did arrive [sic] fendant garage shop building was de- tion of this shop’ budding which ‘garage time the batable, ambiguities in the because of as hoc was occupied he an ad residence order; however, the Court finds and since razed, belong- but refused to remove his knew concludes that Defendant Matteson force the ings, expressing preference his building was covered garage shop not lawsuit) pay county (presumably via Loew, Defen- and so advised Defendant belongings. his him for conduct was willful. dants’ Thus, finding that the trial court’s Although found the individual defen- egre- not defendants’ conduct was individual willful, the trial also conduct court dants’ gious of the was based on its assessment egregious not found that their conduct was so disrepair general of the ALJ’s punitive damages. support an award of as to garage shop, and property including the conclusions, reaching trial court its plaintiffs’ actions. extenuating circum- found a number of ALJ, that the indi- not trial court’s conclusion initially It found that the stances. was willful was defendants’ conduct county, had the order and that vidual drafted the administrative empha- on its review of ambiguous. was The court based the order transcript. pages It cites to hearing defendants’ conduct sized individual “it is uncontrover- transcript showing light of the fact that should be evaluated garage shop was that removal of the property very condi- overall was bad tible” Since authorized the ALJ’s order. property as: “clut- tion and described the unattractive, [sic], in the before transcript record tered, messy, ill-kempt court, it. Testimony we cannot review Whatever trial indi- deteriorated.” [and] basis hearing at that cannot be a shop, plaintiff occurred garage where cated that the actions of this court evaluate living, running had no water Garrison sewer, dumped defendants. sewage raw had individual been support finding damages against

To its a section them. The latter conclu- however, violation, majority appears rejection by implicit states that sion to be an improperly testimony the trial of the “individual defendants razed court Blasko’s on the buildings that under the belief a lawsuit lawsuit statement. [sic] ‘cheaper’ according plaintiffs would than be Despite findings the lack of trial court on process contemplated un- benefit of fact, majority issue of contested Maj. op. der Ordinance No. 3.” at 221. This allegation credits Blasko’s and it the makes testimony statement is based on the at trial key finding liability. to its of section 1983 of of Lieutenant Ronald Blasko the Adams my view, improper it is this court Department. Blasko Sheriff’s testi- disputed by crediting resolve a issue of fact following fied that had he overheard con- testimony of one witness over that versation between the two individual defen- credibility Making another. determination regarding shop garage building: dants in a trial not the of an appellate function Well, I overheard Mr. Loew—in fact he witnesses, credibility court. “The suf- pointed a budding asked Mr. and Matte- ficiency, effect, probative weight and of evi- order; son if that was on the and dence, and the inferences and conclusions replied it Mr. Matteson that wasn’t. therefrom, be drawn all are matters within Mr. had him Loew instructed province tear of the trial and court will not be down, stating “It cheaper would be if he clearly disturbed on review unless errone- sued me.” Rolfes, ous.” O’Connor (Colo.App.1994). Both Matteson and Loew testified at trial and Loew denied that had made the lawsuit fact, findings Based on the trial court’s statement attributed to him Blasko. the individual defendants’ conduct cannot testified, Matteson “That statement was nev- fairly be said to shock the conscience. As gave er testimony. made.” Loew similar the trial finding court stated in that egregious,

Both conduct willful but acknowledged Matteson and Loew was not “all of contested, being proceedings had discussed sued here had been over this flared, tempers matter pro- was had and the decision to discussion within Matteson, hearing. Blasko’s ceed was made who had while the demolition crew had previous acting.” several with was encounters in on-site individual Hibbard de- regard fendants acted properties, to this under the heat of the mo- testified ment, that he Loew and while their frequently wrongful, told that Hibbard conduct was threatened to sue “and does not shock the every- Matteson have conscience. thing I owned.” Loew testified Blasko I am aware that section 1983 violations he, Blasko, asked him if would be sued. sometimes have been when found local offi explained Loew said he to Blasko that the See, cials e.g., have defied a court order. already litigation

matter had in been City Seattle, Robinson v. 119 Wash.2d respect temporary restraining order. denied, 830 P.2d 318 cert. Loew also stated: 121 L.Ed.2d 598 But as allay I tried to [Blasko’s] his fears indicates, finding Robinson case said, being personally about I sued. “We liability under section such circum likely you are more than be sued will stances occurs in the most extreme be.” case, example, cases. For the Robinson The trial court did not city resolve the factual Seattle officials continued to enforce dispute alleged about Loew’s housing lawsuit state- though demolition license fee even above, although ment. As noted requirement the trial held had been unlawful in court found lengthy that Matteson told Loew that the two series of in which cases Seattle garage shop scope within the I party. the was a have no case in found which ALJ’s it also city found that the individual officials have been liable held under sec defendants’ conduct sufficiently was not tion 1983 for violation of an administrative egregious support punitive award order. P.C., Daily, Phillips, Powers Richard W. Thus, that the I conclude would Eason, Denver, Berenbaum, Weinshienk & tort. It proven constitutional

have Denver, Eason, Respondents. David R. pursue common law plaintiffs can trespass against conversion such torts General, Norton, Attorney Stephen A. Gale but, view, defendants, my individual ErkenBrack, Deputy Attorney K. Chief Gen- claim these defendants they have no eral, Timothy Tymkovich, M. Solicitor Gener- 42 U.S.C. section under Knaizer, al, Deputy Attorney Maurice G. reasons, part I concur For these General, Denver, Section, State Services opinion. majority’s from the part dissent Setting Title Board. J., KOURLIS, joins partial in the deWinter, Schenk, P.C., R. & John Kerst and dissent. concurrence Schenk, Springs, for Amicus Curi- Glenwood Jeffrey

ae Carlson. PER CURIAM. TITLE, BALLOT the Matter of the This heard and reviewed ease has been CLAUSE, TITLE, AND SUBMISSION Vollack, court. Justice Justice Chief CON FOR the PROPOSED SUMMARY Mullarkey, approval Hobbs favor and Justice AMENDMENT CON STITUTIONAL Setting the Title Board. action of “1996-15”. CERNING Kirshbaum, Lohr, and Justice Justice Justice disapproving are in the action Scott favor L. Buford F. and James RICE Setting Board. Justice Kourlis Title Petitioners, Brandon, participate. did not jus- equally divided one The court is Wisor, Dee WRIGHT and Ruth Accordingly, ac- participating. tice not Respondents, Setting approved Board is tion Title 35(e). operation of law. C.A.R. Buckley, Board; and Rebec Title Victoria Lennahan, Westfall, as

ca and Richard J., KOURLIS, participate. does not board, Setting Title of said members Board.

No. 96SA180. Colorado, Supreme Court En Banc. June Paddock, L.L.C., Carlson, & Hammond Denver, Backes, Berry Kopperud & Melanie Denver, for Singer, Berry, Petitioners. John

Case Details

Case Name: County of Adams v. Hibbard

Court Name: Supreme Court of Colorado

Date Published: Jun 17, 1996

Citation: 918 P.2d 212

Docket Number: 94SC757

Court Abbreviation: Colo.