404 F.3d 950 (6th Cir. 2005), 03-4252, Golden v. City of Columbus

Docket Nº:03-4252.
Citation:404 F.3d 950
Party Name:Hazel GOLDEN, Plaintiff-Appellant, v. CITY OF COLUMBUS; Cheryl Roberto, Director of Public Utilities for the City Of Columbus, Defendants-Appellees.
Case Date:April 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 950

404 F.3d 950 (6th Cir. 2005)

Hazel GOLDEN, Plaintiff-Appellant,


CITY OF COLUMBUS; Cheryl Roberto, Director of Public Utilities for the City Of Columbus, Defendants-Appellees.

No. 03-4252.

United States Court of Appeals, Sixth Circuit.

April 18, 2005.

Argued: Oct. 27, 2004

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Kimberly M. Skaggs, Equal Justice Foundation, Columbus, Ohio, for Appellant.

Susan E. Ashbrook, Columbus City Attorney's Office, Columbus, Ohio, for Appellees.


Kimberly M. Skaggs, Equal Justice Foundation, Columbus, Ohio, for Appellant.

Susan E. Ashbrook, Columbus City Attorney's Office, Columbus, Ohio, for Appellees.

Before: KEITH, CLAY, and BRIGHT, [*] Circuit Judges.


CLAY, Circuit Judge.

Plaintiff Hazel Golden appeals the judgment below, in which the district court: (1) granted summary judgment to Defendants the City of Columbus, Ohio, and the City's Director of Public Utilities, Cheryl Roberto 1 (collectively the "City") on Golden's claims that the City's denial of water service to tenants whose predecessors left delinquent water accounts at the premises violates the Due Process Clause of the Fourteenth Amendment and the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq. (the "ECOA"); (2) dismissed Golden's claim that the same constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment; and (3) dismissed Golden's motion for class certification. For the following reasons, we REVERSE the district court as to Golden's equal protection claim and AFFIRM as to her due process, ECOA, and class certification claims.


Prior to 1991, the City of Columbus, Ohio, permitted both tenants and landlords to contract for water service. Although the landlord would be ultimately liable for unpaid water bills, a tenant could establish a water account in her own name by directly contracting with the City. In 1990, officials at the City's Department of Public Utilities became concerned that permitting tenants to directly contract for water service had the effect of impeding the collection of unpaid water bills. The City code at the time did not require either the City or the contracting tenant to notify the landlord when an account was created, or when an account became delinquent. Landlords complained when they were left to settle accounts they never knew were delinquent after the nonpaying tenants had vacated. These complaints caused further delays in payment. City utilities officials concluded that the City could better insure efficient payment of water bills if it alerted landlords to delinquencies as they occurred.

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Utilities officials also lamented the fact that the City code did not authorize the City to deny service at premises encumbered by delinquent accounts. If a tenant vacated an apartment, leaving a delinquent account, the code nevertheless permitted a new tenant to move in and establish a new water account, even if the landlord had not yet satisfied the delinquency. Officials concluded that this frustrated bill collection by depriving the City of its most effective bill collection tool. With these problems in mind, the Columbus City Council amended the code in 1991. As amended, the pertinent sections now read:

The [City] will directly bill a tenant for water and sewer service if the property owner, or authorized agent of the property owner, along with the tenant, sign a written agreement authorizing direct billing of the tenant. Once a written agreement is signed, the [City] will simultaneously mail, to both the owner and the tenant, copies of any bills and notices concerning delinquent water and sewer charges....

Direct billing of a tenant shall be in no way construed as to relieve the owner of the real estate premises of liability for water and sewer service charges. No direct billing of a tenant will be allowed where all delinquent water and sewer charges are not paid in full up until the date the direct billing agreement is accepted by the [C]ity, or where water or sewer service has been terminated for real estate premises.

Columbus City Code §§ 1105.045(D), (E) (the "policy" or "City's policy").

Plaintiff Hazel Golden moved into a single-family residence at 2209 Hamilton Avenue in Columbus in either October or December of 2000. 2 The lease between Golden and her landlord, David Matthews, states that the tenant is responsible for the payment of all utilities. However, according to Golden, her rent included water service while she was to pay separately for gas and electricity. At the time Golden began renting from Matthews, he was party to a direct billing agreement with the prior tenant, Sarah Dean, which Dean and Matthews had entered into pursuant to the City's policy.

Starting in late December 2000, the City began sending bills and notices to 2209 Hamilton Avenue addressed to "Sarah E Dean." On December 28, 2000, the City sent a Notice of Delinquency for service provided to Sarah Dean between August 10, 1999 and November 7, 2000. This was followed on February 12, 2001, by a Water Turn-Off Notice; on February 16, 2001, by a bill; on February 22, 2001, by another bill; and on March 8, 2001, by termination of water service to the residence. Service recommenced on March 9, 2001, at the request of the City's Code Enforcement department. Golden alleges that she contacted Code Enforcement after first contacting the City, which explained to her that under the policy, water service would not be restored until the account was paid. This pattern repeated itself during March and early April, with the City again terminating water service on April 9, 2001, and recommencing it the next day at the request of Code Enforcement. The City

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terminated service for a third time on April 23, 2001. Golden maintains that the termination permanently deprived her of water service while the City maintains that it recommenced service on May 9, 2001 without interruption until October 2001 when Golden moved out.

Each of the mailings sent to Golden's residence during the period December 2000 through May 2001 arrived in an enveloped marked "THIS IS YOUR WATER BILL." See J.A. at 157, 161. Each notice of delinquency and turn-off notice explains that customers have a right to request a hearing to contest the termination of service but this information is printed on the notice itself, not on the envelopes. The City's Water Customer Service Coordinator, Susan Young, stated in an affidavit that on February 2, 2001, the City sent a bill or a notice addressed to "Water Customer." J.A. at 158. The City does not dispute that all other bills and notices were addressed to "Sarah E Dean."

Matthews and Golden signed a direct billing agreement on March 16, 2001. Golden maintains that she sent the agreement to the City but received no response. J.A. at 737-38 (Golden Depo.). In any event, Matthews apparently did not pay the balance Dean owed--which would have been necessary to make Golden eligible for direct billing under the policy--and the record reflects that bills and notices sent after March 16, 2001 were still addressed to Dean. See J.A. at 158-75. Finally, Golden admits that the City left a notice of shut-off on her door contemporaneous with terminating service but alleges that the notice did not inform her of a right to contest the termination of service.


On July 25, 2001, Golden and an earlier plaintiff, Nikki Mara, filed a class-action complaint in district court. The complaint, brought under 42 U.S.C. § 1983, alleged that the City's practice of terminating tenants' water service without notice and the possibility of a hearing amounted to a denial of tenants' Fourteenth Amendment right to procedural due process. The complaint further alleged that the City's policy, which denies water service to premises encumbered by delinquent accounts, violated tenants' rights under the Equal Protection Clause of the Fourteenth Amendment and under the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq. The complaint also alleged that the City's termination of plaintiffs' water service constituted a breach of the City's common law duty to serve; Golden does not appeal the district court's dismissal of this claim. The relief sought in plaintiffs' complaint included a declaratory judgment and damages. The original plaintiffs filed a motion for class certification, the denial of which Golden appeals. Additionally, Golden appeals the grant of summary judgment to the City on her procedural due process and ECOA claims and the dismissal of her equal protection claim.


I. Due Process

A. Standard of Review

This Court reviews a district court's decision to grant summary judgment de novo. E.g., Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The district court, and this Court in its review of the district court, must view the facts and any inferences reasonably drawn from them in the

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light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, we view the facts in the light most favorable to Golden.

B. Merits of the Due Process Claim

The text of the Fourteenth Amendment's Due Process Clause makes clear that the state need not afford due process every time it takes an action that impacts negatively on citizens' lives. The amendment makes a narrower guarantee: "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. Golden contends...

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