Adair v. Bell, Civil Action No. 3:93cv132-D-D (N.D. Miss. 1995), Civil Action No. 3:93cv132-D-D.
| Decision Date | 01 January 1995 |
| Docket Number | Civil Action No. 3:93cv132-D-D. |
| Parties | JOHN ADAIR d/b/a A & B AUTOMOTIVE PLAINTIFF, v. HAROLD BELL, individually and in his official capacity as Chief of Police, and the TOWN OF BYHALIA, MISSISSIPPI DEFENDANTS. |
| Court | U.S. District Court — Northern District of Mississippi |
Presently before the court is the motion of the defendant Harold Bell for an entry of summary judgement in his favor.1 Finding that there exist genuine issues of material fact with regard to the plaintiff's claims, the motion of the defendants will be denied.
The plaintiff John Adair operates an automotive repair shop within the town limits of Byhalia, Mississippi, and has done so for several years. Adair had several automobiles located on his property which he states were used for the purposes of repair in the course of his auto repair business. On July 20, 1992, the attorney for the Town of Byhalia, Rook Moore, sent a letter to John Adair which read in part:
The Mayor and Board of Aldermen have instructed me to write you concerning the abandoned vehicles, litter, junk and debris situated upon the premises owned and occupied by you on the south side of Old U.S. highway 78 in the Town of Byhalia.
The occupancy and use of the subject premises by you constitutes a violation of the Town of Byhalia Zoning Ordinance and also constitutes a public nuisance.
The town officials would like this matter handled amicably, to the end that the aforementioned junk be cleared from your lot forthwith.
The Mayor and Board of Aldermen meet on August 4, 1992 at 7:00 o'clock p.m. and if this request has not been honored by you or some agreement reached as to when the junk will be removed, then the town has instructed me to remedy the situation through court action.
After receipt of this letter, Adair removed various car parts which had been located in front of his business but did not remove any vehicles from his property. There was no further communication between Mr. Adair and the town officials regarding this matter for the next several months. On December 15, 1992, Defendant Police Chief Harold Bell and Town Superintendent Trent Johnson arrived at Adair's property and conducted an inspection. Neither Bell nor Johnson possessed a search warrant for the inspection. Adair contends that Bell and Johnson informed him that by keeping the vehicles on his property, Adair was in violation of a new town ordinance3, and that Adair should remove the cars from his property within ten days. Later that evening, the Byhalia Board of Aldermen passed the "Junk Car Ordinance," which in effect prohibited the possession or placement of "junked motor vehicles"4 on any property located within the town limits of Byhalia.5 The Junk Car Ordinance was not to take effect, however, until January 15, 1993.
Adair removed or had removed several of the vehicles on his property. On the day that the ordinance did take effect, January 15, 1993, both Bell and Johnson returned to Adair's place of business. Adair states that bad weather and a leg injury had prevented him from removing all of the vehicles, and urges that he informed Bell and Johnson of this fact. Bell and Johnson again told Adair that he was in violation of the town zoning ordinance and that he had to remove all the vehicles from his property.
On Friday, January 29, 1993, there were several vehicles still present on the Adair property, numbering somewhere between ten (10) and sixteen (16). Defendant Bell obtained an affidavit of arrest from the Byhalia Municipal Court and subsequently arrested Adair for violation of the Junk Car Ordinance. Adair was released on his own recognizance, and appeared in Municipal Court on Wednesday, February 3, 1993. Adair has argued that there was no prosecutor at this appearance, and that the judge conducted the entire proceeding by taking on the role of prosecutor as well6. During this first court appearance, Byhalia Municipal Court Judge Ralph Doxey found Adair guilty of violating the Junk Car Ordinance, and gave Adair a fine of $175.00 per day per violation.7 However, the fine was to be suspended if Adair had his lot clear of vehicles by March 3, 1993. Adair did remove the remaining vehicles from his lot, and after appearing in court again on March 3, 1993 paid a fine consisting of court costs totalling $37.50. While persons have been issued warnings that they were in violation, to this date no person other than the plaintiff has ever been arrested or convicted for a violation of the Junk Car Ordinance.
Summary judgment is appropriate "if 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. F.R.C.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327, 106 S.Ct. at 2554. "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986); Federal Sav. and Loan Ins. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992).
After a reading of the matters submitted to this court, it is apparent that the plaintiff is asserting the following claims:
1) violation of his right to equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution; and
2) violation of his right to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution;
3) violation of his right to be protected from illegal search and seizure as guaranteed under the Fourth Amendment to the United States Constitution.
The plaintiff has requested as damages: 1) monetary relief, 2) declaratory relief proclaiming that the Byhalia Junk Car Ordinance is unconstitutional as applied to him, and 3) injunctive relief ordering that his conviction for violation of the ordinance be expunged from his record. The proper mechanism for the enforcement of these rights is 28 U.S.C. § 1983, and the law surrounding this statute is the proper course under which to proceed.8
The defendants challenge the plaintiff's standing to seek declaratory and injunctive relief, and cite as authority a relatively recent Fifth Circuit decision. Johnson v. Moore, 958 F.2d 92 (5th Cir. 1992) (). The plaintiff responds by stating that the defendants misunderstand his request for relief. The plaintiff notes that he is not seeking relief to protect him from future prosecution, as did the plaintiff in Johnson, but that he seeks to have all records of his conviction expunged. "Past exposure to illegal conduct does not in itself show a present case or controversy [supporting standing for injunctive relief] . . . if unaccompanied by any continuing, present adverse effects." Johnson, 958 F.2d at 94 (quoting O'Shea v. Littlejohn, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974)). In the case at bar, Adair seeks relief from past alleged illegal activity, and if obtained illegally, his criminal record will be sufficient to stand as a present adverse effect of the past illegality. This court agrees that if the plaintiff prevails on his claims, he indeed has standing to request such relief.9
The plaintiff alleges that the defendants did not sufficiently afford him with notice and a hearing prior to the enforcement of the Byhalia Junk Car Ordinance. The first inquiry in any due process claim is whether the claimant has suffered a deprivation of a protected interest: life, liberty or property. U.S. CONST. Amend xiv, § 1. The parties are in agreement that Mr. Adair had both liberty and property interests at stake in this case, and the court need not dwell on the matter. The parties are also in agreement that "deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-67, 94 L.Ed. 865 (1950).
In support of his claim that the notice requirement of due process was not met, the plaintiff argues that the notice requirements contained in the Junk Car Ordinance itself were not complied with. Further, the defendants concede that these requirements were not followed, but contend that they were inapplicable to the plaintiff's case.10 The defendants also correctly note that even if the notice requirements were applicable to Mr. Adair under the ordinance, the failure to follow those requirements does not constitute a per se violation of due process. Smith v. Picayune, 795 F.2d 482, 488 (5th Cir. 1986); Stern v. Tarrant County Hospital Dist., 778 F.2d 1052, 1056 (5th Cir. 1985); Jackson Court Condominiums, Inc. v. New Orleans, 665 F.Supp. 1235, 1241 (E.D. La. 1987). "The right...
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