*1 SHOEMAKER, Plaintiff David - Appellee, HOWELL, Defendant- OF
CITY
Appellant.
No. 13-2535. Appeals, Court States
United
Sixth Circuit. 3, 2015.
Argued: March July and Filed:
Decided Denied
Rehearing En Banc
Sept. 2015.* * his dissent. stated in rehearing the rea- sons Judge Clay grant would
mow strip Shoemaker’s curb on two sepa- charged rate occasions and him a total of $600. subsequently filed suit court, in federal asserting
violations of procedural both his and sub- process rights. stantive due The district granted summary court judgment for Marcelyn Stepanski, ARGUED: A. Shoemaker on both claims. For the rea- Johnson, Rosati, P.C., Joppich, Schultz & below, sons set forth we REVERSE the Hills, Farmington Michigan, Appellant. judgment of the district court and RE- Downey, A. Elizabeth Elizabeth A. Dow- MAND the case with instructions to dis- *4 P.C., Hills, ney, Farmington Michigan, for complaint. miss Shoemaker’s Appellee. BRIEF: Marcelyn Step- ON A. anski, Johnson, Rosati, Schultz Joppich, & I. BACKGROUND
P.C., Hills, Farmington Michigan, Ap- for pellant. A. Downey, Elizabeth Elizabeth background A. Factual P.C., Hills, A. Downey, Farmington Michi- 2003, purchased a house gan, Appellee. for Julie McCann O’Con- located on the corner of South Elm and nor, O’Connor, Degrazia, Tamm & O’Con- Sibley East City. Streets in the He lived in nor, P.C., Hills, Michigan, Bloomfield that house with his minor daughter until Amici Curiae. property he sold the in 2012. During this time, CLAY, GILMAN, SUTTON, citywide project Before undertook a and Judges. Circuit to refurbish landscape its streets. project This gutter involved replacement, GILMAN, J., opinion delivered the repairs, road widening and a of the curb SUTTON, J., joined. the court which strips. portion Sibley of East Street CLAY, 568-78), (pp. J. delivered a adjacent to the Shoemaker residence was separate dissenting opinion. among impacted by the areas City’s efforts. As part project, of the the .City OPINION planted removed a tree in the strip curb GILMAN, RONALD LEE Circuit replaced Shoemaker and it with nine Judge. saplings. Shoemaker claims when he cities, many Like American removal, protested the tree’s workers Howell, Michigan requires its property him your told “that’s not property, you owners to keep their lawns mowed below a say have no on what goes in or out of height. certain Violators of the ordinance Upset by there.” City’s unilateral re- charged are a fine as well as a fee for the modeling strip, of the curb costs hiring associated with a private con- protest chose to actions via civil tractor to mow or otherwise maintain the disobedience: he stopped mowing the curb property. Shoemaker, David then a home- strip. owner in City, refused to mow the area 17, 2010, August On (the received a between the sidewalk and the street complaint about strip) curb Shoemaker’s lawn. The front of his house after the complaint, relandscaped had which was emailed to En- strip the curb' Code Donahue, multiple wishes. After warn- forcement Officer John claimed ings, the City hired a local “My contractor to that neighbors have not mowed their following for several months 4 times the Ordinance happened has in weeks—this lawn August violation. On May 2011 to be a going There year. this already however, veg- again Donahue noticed nothing there is shortly if problem rodent inches on eight taller than complaint, etation that was on this Based this.” about done in front of Shoemaker’s strip and left the curb residence visited the Donahue before, a door- Donahue left informing Shoemaker house. As door-hanger notice informing Code hanger violation notice lawn was in (the Ordinance), forth which sets mailed another Notice of Or- violation and § 622.02 occupants Donahue August on owners Violation duty property dinance their land. 10 to August on on vegetation returned maintain been that, although to the residence the lawn had returned find Donahue When later, strip mowed, strip curb curb grass the lawn and on the days freshly several compli- into limi- brought in excess of the Ordinance’s mowed and remained been had again to Donahue returned the Ordinance. tation. When ance August both inspect Ordinance, adopted in first vegetation re- strip’s curb any lot occupant of owner or prohibits mained uncut. “maintain[ing] on City from weeds, grass or Shaner’s Cut- any growth ... then contacted lot Donahue such contractor, height greater landscaping to a local vegetation ting Edge, rank other *5 622.02(a). § contrac- City Code 2011 and the eight August inches.” on asked than the “along strip land in front of applies to the curb explicitly tor to mow It De- sidewalk, alley adjacent day. later that the house street Shoemaker’s order, line and the work the contractor Donahue’s spite between same Donahue of the Ordinance consti- the area A violation had not mowed when curb.” infraction, which civil time Dona- municipal August a on 18. This returned tutes civil party strip subjects responsible of the curb pictures hue took See § violation, Code 202.99. with spoke set forth and he fines document Anyone accused of § City Code 622.99. the issue. daughter about Shoemaker’s a by conversation, infraction is notified either gave an Donahue During such 208.02(e), “vio- “citation,” § or a City Code door-han- daughter another Shoemaker’s 208.02(f). notice,” § City Code notice, lation “FINAL NO- this one marked ger TICE!” veg- aware of tall next Donahue became property the the Shoemaker on
etation Donahue’s learned When Shoemaker mailed Shoemaker spring. He following daughter, Shoemak- with his conversation letter of Ordinance Violation” “Notice complain about City Hall er contacted (a) 17, 2011, advising Shoemaker May de- interaction, daughter his which (b) Ordinance, alleged violation [wjracking.” Donahue “nerve scribed as (c) Ordinance, substance of if he “apologize later Shoemaker called (five remedy the violation allowed to time daughter,” and [Shoemaker’s] intimidated (d) various fees associated days), and overgrown discussed the the two men day, Don- That same noncompliance. call, insist- During Shoemaker grass. at door-hanger notice left a also ahue strip the curb not mow would ed he him of the advising residence City employ- had been told he because later returned week Donahue violation. City’s property area was ees trimmed. adequately grass find the According to Shoemak- own. and did er, insisted Donahue kept his and apparently lawn Shoemaker The call belong to Shoemaker. in fact compliance with adjacent strip in curb indicating ended with Shoemaker that he court in asserting November viola- ticketed for the wanted to be violation tions of procedural process, due sub- challenge order to the Ordinance in court. process, equal protection, stantive due only This was the conversation that ever Fourth rights. Amendment The parties place took between Shoemaker and Dona- (a) stipulated later to the dismissal of hue. (b) Cutting Edge, Shaner’s the claims Cutting Edge finally equal protection
Shaner’s based on mowed and the Fourth strip the curb sometime between August Amendment. Shoemaker and the charged 23 and 2011. The later then filed cross-motions for summary for the contractor’s ser- $150 judgment on the remaining procedural and with mowing vices associated the curb substantive claims. After a strip. motions, hearing on those the district court granted later, summary judgment 11, 2011, in favor of Six weeks on October again Shoemaker on both timely Donahue found Shoemaker’s curb counts. This strip in violation of the Ordinance. appeal As followed.
before, door-hanger he left a in- notice
forming Shoemaker of the violation II. DISCUSSION mailed a Notice of Ordinance Violation the A. Standard of review following day. This was the fourth door- We review de novo district court’s hanger notice and the third notification grant of summary judgment. Keith v. letter Donahue had addressed to Oakland, Cnty. regarding vegetation issue. Cir.2013). Summary judgment proper again failed to bring the curb genuine when no dispute of material fact strip compliance, into and Donahue once exists and the moving party is entitled to Cutting Edge more hired Shaner’s to mow judgment area, as a which the matter of law. company did Fed. sometime *6 56(a). 4, R.Civ.P. between November 1 and In considering 2011. The a motion City charged summary judgment, Shoemaker another for for all $150 reasonable in the contractor’s services. arising ferences from undisputed the facts must be drawn in favor of the nonmoving
Both parties agree that Shoemaker was
party. Matsushita Elec. Indus. Co. v. Ze
charged a total of
for his
$600
violations of
nith
Corp.,
574,
Radio
587-88,
475 U.S.
He paid
Ordinance.
that amount as
1348,
(1986).
106 S.Ct.
those considered him to inbe violation At argument, oral conceded of the Ordinance. The mailed notices of the Notices of Ordinance Violation violation door-hanger and the notices in fully issued to Shoemaker do not comport formed him of the nature of the alleged with the requirements laid out in the violation and the relevant section of the 208.07(e) Code. Section of the Code City Code. These notices also included the mandates that phone hours may be the methods tor must Municipal [1] following the time during number of the made, appear Civil Infraction] details: by which the Bureau [3] which the alleged violation notice include phone number of City at which an address and tele- Bureau, [City Bureau, appearance of Howell [4] viola- open, [2] would have answered tions, but he made no such effort. He ferred-to Ordinances or a call City him. A simple investigation of the re for objecting Infraction could have learned notices refer Ordinance, to the about the allegations where Shoemaker Hall. Municipal Civil Finally, procedures ques Hall
time.
quences for failure to appear
[5]
alleged
required
amount of the fine scheduled for
violation,
required
fine within the and [6] the conse-
pay
tion
tion against
“should not be able to now use
Cir.2011) (holding that property owners
Green
of due
Oak,
process.”
Fed.Appx.
406 [City]
See Dubuc
in claiming a viola
[his]
Twp.
inac
The Notices that Donahue
who
mailed to Shoe-
failed to
advantage
take
zoning
maker omit all but the final two items on board’s postdeprivation appeals proce
the above list.
dures could not claim
proce
those
dures violated
process)
due
(citing Santa
Although
fully
failed to
Tulsa,
na v.
comply
Ordinance,
with its own
such a
(10th Cir.2004)).
failure “does not ... automatically trans
late
deprivation
into a
of procedural
Although
the notices in question were
*8
process under the United
perfect,
States Constitu
the Constitution does not
tion.”
Macedonia,
See
require
DePiero v.
strict adherence to the City’s
of
(6th Cir.1999)
770,
180 F.3d
(holding Ordinances. What the Constitution does
that, although
parking
citation
demand —that
failed to
the notice
given
as
comply
law,
with state
a deprivation
reasonably
of
calculated to alert Shoemaker
procedural
due
did not occur be
charges against
him
any
ave-
cause
City provided
constitutionally
nues
available for
challenging those
vegetation
question
If the
on the land in
is
by the no-
accomplished
charges —was
City.
tall,
by the
grow beyond eight
distributed
allowed to
inches
tices
land,
occupier
of that
has
then the owner
indicate that
The Mathews factors
objec
violated the Ordinance. Due to this
here
process was satisfied
standard,
tive, readily ascertainable
there
City’s procedures
next turn
We
wrongful application
little chance of a
is
of the Ordinance.
challenging violations
Campbell Cnty.,
v.
the law. See Sickles
so,
if the
we must determine
doing
In
(6th Cir.2007)
726,
(finding
501 F.3d
constitutionally sufficient
are
procedures
deprivation
that the risk of erroneous
Mathews test.
under the
withholding
“minor” where
of funds
“[t]he
elementary accounting that has
involve[d]
property interest
a. Shoemaker’s
Silvernail,
error”);
risk of
385 F.3d
little
relatively minor
(citing
approval
with
the district
at 605
First,
at
issue
property interest
finding that the risk of erroneous
court’s
in fines and fees over
$600
here —
proof
“the
of a
deprivation was low where
relatively minor. See Silver
months —is
bad check violation is the returned check
Kent,
601,
Cnty.
nail v.
itself’).
Cir.2004)
(finding that a
assess
$25
property
a “minimal”
ment fee constituted
process would add little value
c.More
interest).
hungry
go
did not
an al-
ample
challenging
means of
of the
add
or lose his house because
$600
leged violation under the laws of the
in
and fines.
property
to his
taxes
fees
ed
Michigan
and the state of
further counsel
254,
Goldberg Kelly,
397 U.S.
Compare
procedures.
against the need for additional
Ordinance City Code against them. the assessments addition, 12 details Chapter § 829.09. Moreover, presents the Ordinance those instances related to procedures deprivation. minimal of an erroneous risk *9 where the fines and fees are entered as what happening here. Rather than rais- property. Chapter liens on the Like ing arguments, new issues or the amici Chapter provides for both notice to simply augmented City’s position impacted those and a forum—the Board of it did not violate procedural may Review—where the homeowner raise process rights because pro- sufficient any objections charges in place. cedures were City § or her property. Code 12.10. it, however, As Shoemaker would have Michigan provides opportu- law also an amici’s role would be limited to parroting nity beyond for predepri- review the briefs of parties. But if that were VI, procedures. § vation Article 28 of the true, amici would essentially serve no pur- Michigan provides Constitution pose whatsoever. “The traditional func- decisions, findings, final rulings [a]ll and tion of an amicus curiae is to assist in orders of administrative officer or general public cases of by supple- interest agency existing under the constitution or menting the of private efforts counsel and by law, judicial which quasi-judi-. are or by drawing the court’s attention to law cial private rights licenses, and affect that might escape otherwise eonsider- subject shall by to direct review See ation[.]” 3-28 Moore’s Manual —Fed- provided by courts as law. This review eral § Practice and Procedure 28.84 include, minimum, shall as a the deter- (2014). exactly This is what the amici here decisions, mination whether such final accomplished. findings, rulings and orders are author- law; and, by ized in cases in which a d. require Additional would hearing required, whether the same City additional costs for the supported by are competent, material Finally, argues that the burden and substantial evidence on the whole added here would be significant, record. and that the potential burden “militates The fees charged and fines to Shoemaker against yet process.” Shoemaker, more by were therefore reviewable in part, argues that “if the simply state circuit court. Sports- See Carleton printed civil infraction tickets and allowed man’s Club v. Twp., Exeter 217 Mich.App. the local district court to handle the mat- 550 N.W.2d (holding ter as it infraction[s], does all other civil that the township zoning board’s decision would not incur much additional subject to appellate by review cost.” Although offers little evi- 28). circuit pursuant VI, court § to Article dence of the burden that pro- additional argues ignore we should might pose, cess the fees and fines associ- procedures, however, these because the ated with the grass-cutting Ordinance are City failed to raise them in either its brief- sufficiently small that procedural added ing below or before this court. These safeguards quickly would outpace the mo- procedures were instead by raised nies collected as a result of enforcing the Michigan Municipal others, League and City Code. who filed an amici curiae brief support Requiring City. procedures additional Although may we not consider —such as an evidentiary issues or arguments hearing for each by raised amici un “[t]o yard extent that kempt prior [those issues or arguments] having it exceed properly those raised mowed—would par- impose thus substantial ties,” Commc’ns, FCC, Cellnet Inc. v. 149 costs with little corresponding benefit. Cir.1998), F.3d is not See Cnty. Kent, Silvernail v.
563 him Cir.2004); not have allowed to better (6th would de see also McKesson 601, 605 Tobacco, claim); Keough Cnty. Bevs. v. Tate Alcoholic & fend his Bd. v. Div. Corp. 18, 87, (5th 110 Educ., 110 S.Ct. 748 F.2d 1083 Cir. U.S. (“[A] need not 1984) State L.Ed.2d (“Keough charges admitted the for the ex- process predeprivation provide suspension his did not result therefore liti- Allowing taxpayers to taxes. action of process depriva due procedural from payment to prior tax liabilities gate their tion.”); Black v. Portland Coalition Sch. financial government’s threaten a might (9th F.2d Dist. No. Cir. unpredictable by creating security, both 1973) (declining hearing a new order by mak- ... and shortfalls interim revenue “admitted all because the student had im- validly ultimate collection of ing the it purpose the essential facts which is the difficult.”). taxes more posed establish”). process hearing of a due dissenting colleague’s protestations Our the four Mathews together, Taken inadequate given that notice allegedly the conclusion about the point factors under the process sufficient particularly Shoemaker thus strike us as provided not Shoe and did violate circumstances unpersuasive present the context of the in rights. process due procedural maker’s case. in of this the soundness
Our confidence
stronger
because
is all
conclusion
C. The
did not violate Shoemak-
beginning
clear from the
made
process rights
er’s
due
substantive
contesting
in
no interest
that he had
had a shared
because Shoemaker
grass
on his
height
whether
ownership interest
in and the de
with the ordinance.
strip complied
curb
strip
of the curb
facto use
that
contrary,
readily
he
conceded
To the
claims that the
Shoemaker also
vio-
disobedi
goal
of his civil
it did not.
rights by
process
due
lated his substantive
to test
the ordinance’s
ence was instead
strip
the curb
forcing him
maintain
his non
constitutionality,
dispute
not to
lawn,
is
adjacent to
which he contends
with its terms.
compliance
City-owned property. The district court
disputing
charges
But
in favor
summary judgment
granted
him,
from
precluded
against
(a)
basis, finding that
on this
claim
mounting
procedural-due-process
it owned the
City had conceded that
City,
due-process
even if a
house,
of Shoemaker’s
strip
curb
front
See
in fact occurred.
Gra
violation had
(b)
by a
not to be forced
munici-
“the
546, 549-50
Mukasey,
519 F.3d
ham
municipal
to maintain
pal government
(“[T]o
(6th Cir.2008)
requisite
establish the
(c)
one, and
is a fundamental
property”
procedural-due-
support
prejudice [to
“unconstitutionally infringes” on
Ordinance
claim],
the due
he must show that
the district court’s
right. Contrary
substantially
led to a
violations
however,
City never
findings,
conceded
would
from
which
different outcome
of the land in
the sole owner
of those vio
occurred
the absence
A
accurate reflection
dispute. more
lations.”);
v. Beck
ex rel. Watson
Watson
found in its motion for
City’s position is
Cir.2001)
el,
1237, it discusses the
summary
where
judgment,
military student
that where a
(concluding
in maintain-
expense
“incremental effort
admitting
he as
expelled after
strip]
conjunction
ing
curb
[the
roommate,
claim
student’s
saulted
(emphasis
[Shoemaker’s]property.”
rest
to lack of
process due
procedural
added).
notice
because additional
failed
notice
*11
fact,
law,
Michigan
under
Shoemaker
The district
acknowledged
court
technically
owned the
at all rele-
“the [Supreme]
always
Court has
been re
City simply possessed
vant times and the
luctant
expand
concept
of substan
right way
public
for
use. See
v.
Loud
process
tive due
guideposts
because
for
Brooks,
452,
34,
241 Mich.
217
34-35
N.W.
responsible decisionmaking in this un-
conveyance
that “a
(holding
of land
chartered area are scarce
open-end
street,
highway,
alley
bounded on a
ed,” citing
City
Collins v.
Harker
carries with it the fee to the center there- Heights,
115, 125,
1061,
503 U.S.
112 S.Ct.
of, subject
public
to the easement of
way”).
(1992).
1.
interest in the curb
standard
strip adjacent to his residence
This court has referred to sub
stantive due
“[t]he
as
doctrine that
According
court,
to the district
“the
life,
governmental deprivations
liberty
... does not contest that it owns the prop-
subject
or property are
to limitations re
erty at issue.” But the court did not cite
gardless
adequacy
procedures
of the
of the
any evidence to support
finding.
this
To
employed.”
v.
Pearson
Grand
the contrary,
consistently
has
(6th
Blanc,
Cir.1992)
1211,
961 F.2d
1216
that,
maintained
although it has an ease-
(internal
omitted)
quotation marks
(quot
ment over the
strip,
possesses
curb
only
Comment,
ing
Developments in the Law—
a shared
interest
that land. Because
Family,
Constitution and the
93
the district court
failed to cite
factual
1156,
(1980));
Harv. L.Rev.
1166
see also
support for its finding, we have examined
Burch,
113, 125,
Zinermon v.
494 U.S.
110
the evidence that Shoemaker
marshals
975,
(1990).
S.Ct.
L.Ed.2d
What
support of his
argument
similar
that “[t]he
type of “limitations” the
im
Constitution
repeatedly
has
admitted that it owns
poses
governmental
on such
deprivations
the land
fee.”
depends on the
right being
nature of the
deprived. Specifically, “[government -ac
Our examination reveals that Shoemaker
tions that do not affect
rights
fundamental
has substantially overstated the evidence
...
upheld
they
will be
if
rationally
are
[ ]
in his favor.
examples
Two
are illustrative
related
a legitimate
state interest.”
First,
point.
of this
Shoemaker notes the
Morgan,
Seal v.
following response by
to his mo-
Cir.2000)
Quill,
(citing Vacco v.
521 U.S.
tion to compel discovery:
793, 799,
117 S.Ct.
3. The does Ordinance surprise to the of both citizens nations. right fundamental hand, On the one North Korea is a totali- In light of Shoemaker’s ownership tarian regime that notoriously tortures interest in the strip, curb no fundamental defendants, criminal executes non-violent impacted by the Ordinance’s re offenders, and sends those accused of po- quirement he mow and otherwise litical offenses to “brutal forced labor *13 maintain that above, land. As discussed camps.” Watch, Human Rights World Re- the Supreme has very Court identified few port Korea, 2015: North http://www.hrw. (none rights fundamental of which are at org/world-report/2015/country-chapters/ here), issue and this court has acknowl (last 2015). 27, north-korea July visited edged the stricture expanding that Ordinances like the challenged here, one brief list. Morgan, See Seal v. 229 F.3d hand, on the other ubiquitous are from 567, (6th Cir.2000) that, 574-75 (holding fact, coast to coast. In a cursory internet although no right fundamental was im query reveals similar ordinances in count- paired by plaintiffs expulsion under his municipalities less across the country. high school’s “Zero Tolerance Policy,” the See, e.g., Marino, Cal., San City Code Policy applied as could not sustain even § 18.03.05,available at http://www.sterling review). rational-basis This court has eodifiers.com/codebook/getBookData.php? summarized existing fundamental chapter_id=57670# 740049; Memphis, rights as protected “those by specific con Tenn., City 48-89, § Code available at guarantees, stitutional such as Equal http://www.memphistn.gov/Government/ Clause, Protection freedom govern from PublicWorksCodeEnforcement/CityCode ment actions conscience,’ that ‘shock the List/Sec4889.aspx; Neighbor’s Tall Grass and certain interests that Supreme Do, Got You Down? Here’s What to Fair- Court has found so rooted in the traditions Va., fax Cnty., http://www.fairfaxcounty. of people conscience our as be gov/braddock/newsletter/june2010/grass. fundamental.” Univ., Bell v. Ohio State htm (discussing County Fairfax Code 240, (6th Cir.2003) (internal 351 F.3d 250 119-3). § suggests This that the Ordi- omitted). citation nance in question nearly is not as con- score,
On science-shocking this draconian as Shoemak- suggests the Ordinance er sum, would make it out somehow to be. un-American. But argument, Ordinance does not impair a like the dis- fundamental and, trict opinion, therefore, court’s relies on the rational-basis errone- review ous assumption is the proper standard. City is the sole owner of the strip. curb spe- 4. The Ordinance survives rational- cifically compares requirement that he basis review it because is related maintain the strip curb associated legitimate government interests to draconian mandatory pub- lic-labor measures adopted by regimes Where, here, as an ordinance troubled nations such as the Republic of proscribe “does not liberties,” fundamental
567
beautiful”);
H.D.V.—
munity should
Due Pro
violate[ ]
may “nonetheless
it
Greektown,
Detroit,
burdens
v.
568
imposes
LLC
where
cess Clause
of
Cir.2009)
doing
(6th
so.”
609,
(holding
basis for
any
623
rational
F.3d
without
Thomas,
F.3d
620
Fort
legitimate gov
v.
and aesthetics are
safety
of
Sheffield
Cir.2010)
(6th
United
(quoting
596,
interests)
Metromedia,
613
(citing
ernmental
150,
126,
Comstock,
U.S.
v.
States
Diego, 453 U.S.
Inc. v.
San
(Kenne
1949, 176
L.Ed.2d
S.Ct.
509-510,
For all the above, reasons set forth we process afforded to Shoemaker throughout REVERSE the judgment of the district saga of Howell. Viewing court and REMAND the case with instruc- things differently than majority, I tions dismiss Shoemaker’s complaint. respectfully therefore dissent.
CLAY, Judge, Circuit dissenting. BACKGROUND Shoemaker purchased his home at the
DISSENT *15 corner of S. Elm Sibley and E. Streets in Fundamentally, due is about Howell, the of Michigan, in At fairness with respect to how govern- the time, that the that berm ran along Elm ment authority exercises its per- when a Street was narrow. Planted on that berm property son’s rights are at issue. The large was a tree. The berm that ran along Due Process Clause requires, among other Sibley Street in front of Shoemaker’s things, government that the afford individ- home was also narrow. Believing the uals with notice and opportunity an to be berms part were of his property, Shoe- prior heard to the deprivation of a protect- maker regularly mowed those areas along ed interest; also re- with the lawn that surrounded his home. quires government refrain from en- Because the berms were narrow and unen- gaging in arbitrary capricious and exercise cumbered, only Shoemaker needed to authority that impacts an individual’s passes make two with his rights. to The lawnmower City of Howell in this instance complete the of keeping task failed to those areas comply with either of these consti- well-maintained. tutional The additional requirements. effort was minimal. By way of summary, the informed
David Shoemaker that Beyond it owned simply berms, the berm maintaining the in front of his sought home—when it to Shoemaker undertook efforts to improve relandscape that berm without seeking the property surrounding his home. reconfig- maintaining the stop to of S. mined the corner moving to Shortly after land that relandscaped strip of Streets, and and ured Shoemaker Sibley E. and Elm Shelby on selected, the sidewalk purchased, adjacent ran to daughter minor his maple red his home. five-foot tall in front of planted then Street and Sibley. along running in the berm tree Enforce- the Code Subsequently, daughter Thereafter, and his aware Shoemak- ment Officer became grow tree as this year after year watched grass on the berm. mowing not er was mowing continued taller, and Shoemaker on the was Finding growth that the berm until a surrounding property, his grass 622.02(a), § Ordinance in violation his with in 2009 interfered of events series (by way of the Officer warned the berms. maintaining in interest either sent written communications several project City undertook mail or affixed to Shoemaker’s through the “improve” gutters and to certain replace door) required City’s ordinances roads. running alongside the berms property. to maintain City was time that the the same Around as follows: question reads provision that were existing gutters tearing up owner, a) Removal. No Cutting and Street, a edge of Elm along buried having ... control of occupant or lessee tree that the old from large branch broke lot or land unoccupied any occupied or on land crashed on that situated City, shall thereof in the any part or $9,000 van, causing of Shoemakers top lot or any such or maintain permit contacted damage. Shoemaker worth sidewalk, land, street along on or or had the incident City, believing the same between alley adjacent to or nearby construction. the result of been ... and the line curb might that he also worried He weeds, rank grass or other growth sent But the workers the tree. remove eight height greater than vegetation told Shoe- damage inspect person average.... No inches on say hap- what had no maker that he weeds, or grass ... cut neglect shall plant- it was to the because pened tree in this sec- as directed vegetation other the berm inasmuch as his property, ed on tion, fail, comply refuse to neglect or that inci- City. Following belonged section, or in this provisions with the berm working on the dent, City began Manager or or obstruct resist Street, Shelby where running alongside the cut- agent his or her authorized maple tree the red planted Shoemaker had weeds, grass ting removal City uprooted daughter. vegetation. other objec- tree over maple *16 e) City. the Remedy Noncompliance; of property tions, him that the telling again subsec- foregoing provisions If the street sidewalk and the between with, complied tion are then in- City. by the owned repre- duly authorized or his Manager by narrow- of the berm creased the width upon notice shall serve sentative new of a placement the street with ing comply lessee, ... owner, occupant or home. from Shoemaker’s curb further Such this section. provisions with grass, larger block And on this any verbally given notice shall be by a supported each saplings; nine planted in writ- writing. If persons such or this only at It was guidewires. web mail first class be sent ing, it shall from ripped tree had been point—after land lot or of record owner had berm the once narrow ground whom person upon If question.... and more wider become simultaneously fails, or neglects is served the notice deter- to mow—that difficult cut, remove or ... destroy ing refuses how he could challenge.1 initiate such weeds, grass, such or vegeta- trees other See id. days tion within five business form the with Displeased how the Enforcement date of such notice.... Manag- spoken had daughter, Officer to his Shoe- weeds, er shall such grass, cause trees maker contacted the City, prompt- which vegetation and other to be removed phone ed a return call from the Officer destroyed and the actual cost of such August on 2011. The Enforcement cutting, destruction, removal or plus an apologized Officer for the misunderstand- seventy-five administrative fee of dollars ing, but reaffirmed position that Shoe- ... shall by be certified to maker was responsible for mowing the Manager duly or his or her authorized berm. When protested, re- representative and shall become and be laying the message conveyed by to him upon a lien on such which namely, that the land was workers —
weeds, grass, trees and other vegetation
not Shoemaker’s property. The Officer
were located. A statement for such ac-
assessment,
“concurred” with that
but
tual costs plus administrative fee shall
his position
maintained
that maintenance
thereupon
by
be sent
first class mail to
of the land was nonetheless Shoemaker’s
the property owner....
(R.
responsibility
26-12,
alone.
Officer’s
Notes,
651).
§
Ordinance
PGID
622.02.
Shoemaker asked to
be ticketed so that he could challenge the
The standoff between the Enforcement
applied
ordinance as
him under
these
Officer and Shoemaker reached its climax
Notably,
circumstances.
the letters that
in August
18, 2011,
August
On
after
the .Enforcement
previously
Officer had
having left several violation notices on
sent to Shoemaker
that a
indicated
ticket
door,
Shoemaker’s
spoke
Officer
di-
would be issued upon the failure to mow
rectly with
daughter
and left
disputed
Yet,
property.
instead of is-
a “final
demanding
notice”
that Shoemaker
ticket,
suing a
the Officer sent Shoemak-
bring the berm into compliance with the
(inclusive
er an invoice for
of admin-
$150
by cutting
ordinance
the overgrown vege-
fees)
istrative
after having directed the
tation.
The notice left
the Officer was
City’s contractor to mow the berm.
scant;
only
included
the fact that the
City was charging Shoemaker
having
This
repeated itself in October
§
violated “Ord.
622.02” for
grass
“tall
+ 2011. The vegetation growing on the dis-
weeds,” the anticipated date of reinspec-
puted strip of property became unkempt,
tion (August
2011),
phone
and a
num-
the Enforcement Officer sent another let-
ber for
“Code Official” number
pre-
Shoemaker,
ter to
again
and he
directed
sumably the Enforcement Officer who
contractor to
mow the
scrawled the notice. See Appendix I. But
price
the exorbitant
En-
$75.
most significantly, the letter was absolute-
forcement Officer thereafter
sent Shoe-
ly
any
devoid of
indication that Shoemaker
$450,
maker an invoice for
price
had
to challenge the purported
included
civil fine
top
of a
$250
$75
violation,
let alone
regard-
information
administrative fee.2 The invoices sent to
*17
1. The Code Officer had twice
a
sent more
applied
as
to Shoemaker
challenged
could be
detailed
explaining
letter
the
of
City.
substance
before the
§
May
622.02 in both
August
and
and
explained
potential consequences
around,
the
any
of
2.
time
This
the
only
contractor not
comply.
letter,
failure to
But
area,
this
if it was
disputed
the
trimmed
he also entered
received,
provide
also failed to
any informa-
into
gated
Shoemaker's
and fenced-in back-
tion about
a
how violation or
yard
the statute itself
indiscriminately
to
prop-
the
mow
entire
Co.,
& Trust
339 U.S.
Hanover Bank
the
Cent.
Shoemaker,
of the letters
like each
(1950)).
them,
306, 313,
ful
to be
heard.
position is that because this notice is so
respect
failed with
to both
those
obli-
opportunity
disconnected from the
to be
gations.
heard,- such
receiving party
is left
for basic
searching
respect
answers with
A.
Insufficient Notice
right
to challenge
government
ac
panel’s inquiry
into this case should
tion, it
longer
no
serves the vital purpose
insufficiency
ended with the
of the
of the
required by
notice
due process. See
provided by
City,
notice
before even
Mem.
Gas &
Light,
Craft,
Water Div. v.
considering
process
what
was
un-
required
1, 15,
436 U.S.
98 S.Ct.
573 pretends that the amici and turns the its to argument in only one City made The by the amici’s argument raised the strictures why primary it satisfied to briefing as City’s In the on account of the process. not due was waived brief procedural of only did [Shoemaker] “Not argument that itself. own words: to make City’s failure violations, but notice of the amici, receive actual how by the supported position The was he process all of the also he received ever, the Court. properly not before be to opportunity had “an due,” he because 609, F.3d 615 KeyCorp, v. 680 Taylor See “Enforce- City’s heard,” as the inasmuch Cir.2012) (6th (“[The amicus] asserts n. 6 his concerns ... addressed Officer ment her standing pursue to Taylor has City’s position],” explained [the sim claims, injury, in the absence of even berm, the mow who should respect to duties breached because defendants ply City Hall to com- called when This to ERISA. pursuant her owed to This so- at 35-36. Br. Appellant’s plain. however, by the not raised argument, was hear- shy of a formal far “process,” called appellate their briefs. Accord in parties simple the for obviously deficient ing, was (cit not this issue.” ingly, we will consider is not satisfied process that due reason FCC, Commc’ns, Inc. v. ing Cellnet hearing or re- adjudicative an use of the Cir.1998))). (6th majori The F.3d gov- same by the is conducted view contrary “the ty’s contention —that responsible who was official ernment City’s position the augmented simply amici depriva- to the law led enforcing proce that it not violate Shoemaker’s did See, Goldberg e.g., place. in first tion rights because sufficient dural due 254, 271, 90 S.Ct. Kelly, 397 U.S. v. un patently in place” were procedures —is (“[P]rior involve- 25 L.Ed.2d Framing the Maj. Op. at true. See not of a case will aspect ment some broadly that it would so City’s position acting from ... necessarily bar official [an] of support any argument encompass not, should how- maker. He a decision as pro sufficient finding that the offered the de- making ever, participated binding precedents, cess, contrary to review.”). phone under termination rule, and the waiver purpose defeats Enforce- and the between Shoemaker call beyond curiae role of expands the amicus the sort not constitute does ment Officer v. Michi States recognition. See United by the Fourteenth required 1991) (6th 143, 165 Cir. F.2d gan, 940 Amendment.4 create, extend, ,(“[A]micus or en cannot proce the law of reshape Determined issue[s].”); J. Fan also Barbara see large Yang see process, dural (last (online ed.) Arsdale, § 7 4 Am.Jur.2d Mich., 14-1846, 2015 WL No. Wyoming, 2015) (“In an amicus general, May updated (6th July Cir. F.3d 599 case before accept must curiae 2015) majority side-steps (slip op.), appeal, as it stands reviewing court constitutionally City’s defi fatal flaw in par by the as issues framed with the considering argument. Instead cient an adopt not party does .... where case, majority ties theory of the City’s why “any challenging ... reason County purpose Silvernail v. reliance on 4. The Cir.2004), Gov Kent, required pay is mis they not F.3d 601 should case, individual was at 605. placed. Assessment Fee.” ernment government action review of forced to seek phone providing purpose of apparent en determined that who had with the officer explain simply this case was number in place. first necessary in the was forcement going why was individual the affected Moreover, provid was the affected individual taking. action that it take explic call for phone number to ed with a *20 brief, amicus curiae in its argument any the clearer. The augmented bill that (cid:127)argument appeal”). is on waived property Shoemaker’s taxes was automati- cally forwarded to bank the that held his the
Notwithstanding impropriety of con- mortgage. The bank presumably increased sidering argument, the amici-raised the monthly his payment to insure that his provisions City the highlighted of Code by escrow account associated with the proper- provide the amici no more bases to find ty taxes had a sufficient Regard- balance. City adequate process afforded to less of whether any there was monthly depriving Shoemaker before him of $600. increase, the bank ultimately paid Shoe- fact, rely In the need to on the amici’s maker’s from taxes the escrow arguments lays in this case bare the falla- $600). account (including the additional cy majority’s proposition of the that “Shoe- Shoemaker was any never afforded oppor- maker could have proce- learned about the tunity by City the to charges. contest the objecting dures for to allegations the Shoemaker was unaware of precise the against him” by contacting City Maj. Hall. bill, amount of the final but he Op. Hall, at was ulti- 560. He contact did mately required ratify to City’s apparently itself was extor- unaware of tion when he any purchasers tendered to the procedures other of available to Shoe- his home required through maker documentation prov- which he could challenge violations; ing that there were no City certainly outstanding failed taxes to on the property. any procedures, process advise him of The so-called such and it by offered dispute system also tax apprise any failed to the Court of such blatantly procedures in insufficient in this appeal. this context.5 Pursuant to identify, Eldridge, What the amici Mathews majori- and the U.S. ty on, relies is a S.Ct. provi- maze of Code L.Ed.2d 18 (1976), the sufficiency that of ultimately process sions allow a taxpayer deter- to (1) (The by mined weighing challenge private his or tax bill. “the majori- her interest (2) affected,” that will ty be right also discusses “the risk challenge to of an a special assessment, deprivation erroneous through entirely proce- which is irrele- used,” (3) case, dures probable value, vant to “the any this as the did if not utilize of additional that substitute procedure deprive procedural to Shoemaker safe- guards,” and property.) any [government's his regard, an “the inter- individu- est, including al’s right challenge a tax fiscal and placed lien administrative home, her burdens” that process his or or their right might additional en- challenge assessment, tail. The special decision does not to be made in in this case (and practice in was theory) whether the City cannot be substi- could force Shoe- tute initially for the maker to challenge disputed mow the property, purported ultimately violation has re- whether the an issued accurate bill sulted in deprivation at issue. With Although taxes. consider- case, respect to this inadequacy ation this Mathews factors is unneces- alleged process (whereby sary to resolve could this case because of the bill) challenged tax could not be manifest deficiency of the notice offered to majority view, 5. The suggests also majority’s remedy this would all but post-deprivation afforded pro- sufficient preclude finding any court from admin- eventually cess because any quasi-judicial State, istrative action taken state rights action that affects individual can political its and the subdivisions bodies there- courts, challenged be in Michigan pursu- in, constituted a due violation. Michigan ant to the Constitution. Under the for chal- the infrastructure when overhead any opportunity lack violations of the tickets lenging those factors based actuality, a review heal’d necessity already place. ordinances is municipal both illustrates further these under affording sufficient process, which City’s purported ease with relative and the circumstances as a viable recognize failed apparently offered could have which an individual option for process. circumstances, plainly insufficient *21 is view, being majority’s Contrary to process. The of due meet the strictures (not having one’s to mention charged $600 any- apprise notice did not demolished6) is garden well-maintained City’s belief thing, other than for the “relatively expense minor” a not grass cut the should the risk Nor is American.7 average charged or risk disputed property being it is simply because “minimal” deprivation so; and the so-called failing to do or not whether objectively ascertainable far too discon- heard was opportunity be height eight grown has vegetation in to be alleged violation nected from Zilba, at 880- F.Supp.2d See inches. if meaningful, even any way in prox- parking citation for (involving a taxes direct- paying been had objec- which hydrant, imity to fire Div., & Water ly. Light, Mem. Gas See statute). Moreover, the by tively defined judg- 1554. The at 98 S.Ct. 436 U.S. particular- is wrongful deprivation risk of a af- court should be ment of the district where case such as this ly great provide failed because the firmed an have might never individual affected depriving Shoe- before sufficient bill, contest it or to see the opportunity rightful property. maker of his forwarded because was payment, before mortgaging bank. or her directly to his majority’s insistence despite
And Process Due II. Substantive a financial would be additional also in this case was The second issue allow- City because somehow on the drain majority. Sub- by the wrongly decided issued challenge tickets people ing that cer- process guarantees stantive due monies outpace the quickly them “would life, liberty proper- “deprivations tain issuing the tickets of’ a result collected as regardless subject to limitations ty are absolutely no is place, there in the first employed.” procedures of the adequacy support in the record to evidence Blanc, 961 F.2d City Grand Pearson v. Maj. Op. at illogical position. strained and Cir.1992) (internal (6th quota- 1211, 1216 issuing park- stopped 562. Cities omitted). core, this con- At its marks tion of other (or for a host tickets ing tickets against govern- right protects stitutional infractions) peo- some simply because civil rights, on fundamental ment incursions There those tickets. actually challenge ple an individual affecting actions government believe that reason to no absolutely is conscience,” govern- in that “shock increase any meaningful be there would (last Apr. updated release/wkyeng.tOl.htm supra 2.n. 6. See 2015). of touch Demonstrating just how out weekly income for median respect to economic majority with United States fully-employed individual Americans, majority many reality faced Labor, Dep’t of $800. U.S. See was less than are finan- $25 $600 similar implied that Earning Weekly of Full-Time Median Usual stakes, though $600 24-times even cial Workers, Salary Bureau of Labor Wage and greater $25. than tbl.l, Statistics, http://www.bls.gov/news. arbitrary ment actions that are and capri- City had determined that Shoemaker had Range Douglas, cious nature. 763 no real interest in the berm in. whatsoever. Cir.2014). F.3d City’s Although I agree ordinance, as arbitrary in this case were actions and generally applied to the berms running capricious they because lacked rational along the side of streets throughout the basis, therefore, judgment of the City, does not inevitably run afoul of sub- district court should affirmed on this stantive process, City’s actions as well. issue under these circumstances were violative majority expends considerable ef- respect to Shoemaker because of the attempting disprove fort own- way in which the exploited its pre- ership disputed prove berm and sumed ownership interest the berm. partial ownership. That ef- Mainly, the City violated Shoemaker’s due seemingly fort is made in vain. This dis- process rights by maintaining, on one pute cannot be determined solely based on hand, that Shoemaker had no to de- *22 dogma law, the formalistic termine the landscaping of that property, suggests which that Shoemaker had some while hand, on the other demanding that undetermined number of sticks a much solely Shoemaker was responsible its for (which larger City bundle treated as de upkeep. It is not the prerogative Court’s minimis). The determination of this is- to answer questions constitutional in the sue, view, my turns on the reality of abstract. majority The has been led as- ownership Shoemaker’s interest and the tray by its that concern the ordinance at question beneficial use of the berm in issue in this case “ubiquitous is from coast based on the facts panel. before this Maj. to coast.” atOp. 566. But a decision I agree majority with the that under with respect to Shoemaker does not neces- Michigan law had no unique Shoemaker sarily implicate application of every respect with to rights disputed proper- ordinance that requires homeowners (once ty, other than right of reversion mow the adjacent berms run that to then- has that it longer determined no property. It enough is say on public has use for public sidewalks and these facts—-where the excavated streets) and the right ingress and tree, Shoemaker’s replaced that tree with egress in and out of own driveway. his I (each a number of saplings requiring a disagree, however, majority’s with the par- tangle of wires to maintain upwards its adoxical conclusion that Shoemaker had a growth), demanded that Shoemaker main- “special interest” the berm and that he tain the relandscaped property, and then had “de facto Maj. use of land.” Op. at extracted from his mortgage $600 holder 565-66. proposition That could not fur- pursuant City’s property tax lien for ther reality. divorced from Shoemaker his failure to maintain the land over which may initially special had a interest in apparently he had zero City’s control—the the berm when he purchased his home and actions arbitrary were capricious, and and treated berm as an extension of his therefore, in violation of Shoemaker’s sub- property by planting a tree on it. But that stantive rights. relationship ended uprooted when tree, made There is no its improvements support own rational basis to City’s alterations to application the property, and told him of the ordinance in the was the true owner of manner that it enforced against Shoe- n land.The reality of in light Shoemaker’s owner- maker past dealings with the ship that, interest events, after those respecting particular this strip of property. value to his aesthetic naked contributes majority’s Contrary to land. However, for appreciation the de fac- “had assertion plant him to a red motivated aesthetics 567, the land,” Maj. Op. at to use on that berm. daughter tree with his maple (as as demon- well stated City repeatedly replaced City removed that tree actions) that Shoemak- through its strated choosing. Why of its own vegetation berm whatsoev- over no control er had newly should maintain Shoemaker . requiring justifications for er. The not of his’ vegetation berm with configured pro- include: mow the berm mystery, which choosing remains own control, values, traffic tection of majority pro- nor the has neither aesthetics, control, public rodent satisfactory answer. vided rationales of these Although some health. reasonable, speak to none them sound CONCLUSION (as opposed why the issue above, I would reasons stated For the if he the berm maintain City) should district court judgment of the affirm it and control absolutely no has panel. before the both issues planted there. are to be which trees choose a natural that the berm City argues Appendix I that it lawn and of Shoemaker’s extension *23 Appendix II VELEZ; Kimberly
Waleska A. Hatcher,
M. Plaintiffs-
Appellants,
CUYAHOGA METROPOLITAN AUTHORITY,
HOUSING
Defendant-Appellee.
No. 14-3978.
United Appeals, States Court of
Sixth Circuit.
Argued: April 2015. July 30,
Decided and Filed: 2015. En
Rehearing Banc Sept. Denied