Ellis v. City of Montgomery

• Decision Date: 07 November 2006
• Docket Number: Civil Action No. 2:05cv791-MHT (WO).
• Citation: 460 F.Supp.2d 1301
• Parties: Wilbert ELLIS, Plaintiff, v. CITY OF MONTGOMERY, Defendant.
• Court: U.S. District Court — Middle District of Alabama

460 F.Supp.2d 1301

Wilbert ELLIS, Plaintiff, v. CITY OF MONTGOMERY, Defendant.

Civil Action No. 2:05cv791-MHT (WO).

United States District Court, M.D. Alabama, Northern Division.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

Jay Lewis, Keith Anderson Nelms, Law Offices of Jay Lewis, LLC, Montgomery, AL, for Plaintiff.

Kimberly Owen Fehl, City of Montgomery Legal Division, Montgomery, AL, for Defendant.

OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Wilbert Ellis has filed this 42 U.S.C. § 1983 action against defendant City of Montgomery, Alabama, claiming that his right to `procedural due process' under the Fourteenth Amendment was violated when the city failed to provide him with notice before demolishing his house.¹ Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343. After denying the parties' cross-motions for summary judgment, the court heard this matter in a non-jury trial conducted on November 3, 2006. Based on the evidence presented at a bench trial, the court finds in favor of Ellis.²

I. FACTUAL SUMMARY

On May 18, 2004, a city inspector was dispatched to 29 Wade Street in Montgomery, Alabama, to investigate a complaint of an unsafe structure. The inspector observed that the house at that address had been partially destroyed by fire and was in unsafe condition.

Following standard procedure as established by municipal ordinance, see Montgomery, Ala., Ordinance No. 10-2001, the city accessed county tax records to identify the owner of the property and then sent the owner notice that the house was declared to be unsafe and a public nuisance. Receiving no response from the owner of the property within ten days, the city sent another notice on June 2, 2004, advising the owner that, if the nuisance was not abated within 30 days, or if the owner did not request a hearing within that period of time, then the city council would authorize demolition of the structure at a hearing on July 6.

Although the property owner never responded to the June 2 notice, the July 6 city council hearing was pulled from the agenda because the city lacked funds to carry out the demolition. It was not until November 17 that the city mailed a new letter in an attempt to provide notice that the house was a public nuisance and that demolition would be authorized by the city council at a hearing on December 21, 2004.

Unbeknownst to the city, ownership of the property had changed hands between the mailings of the two notices. The city correctly identified the owner of the house as Dorothy Walters before sending the May and June notices, but probate records reflect that Walters's property was foreclosed upon by its mortgagee and sold to a finance corporation on September 3, and sold again to Ellis on October 6, 2004. These transactions were duly recorded in the county probate office, but the county's public tax records at the revenue commissioner's office did not reflect the change. The city assumed the property was still owned by Walters when it mailed the new, November notice to her, not Ellis. Consequently, when Ellis visited his property at 29 Wade Street on March 18, 2005, he discovered that the house had been demolished.

II. DISCUSSION

Ellis has sued the City of Montgomery for violating his procedural due process rights under the Fourteenth Amendment, as enforceable through 42 U.S.C. § 1983. The court will first analyze the due process claim and then address municipal liability under § 1983.

A. Procedural Due Process

Any procedural due process analysis must begin with a three-step inquiry. First, did the plaintiff have a constitutionally protected property interest? Second, did the government deprive the plaintiff of that interest? Third, did the government employ constitutionally adequate procedures prior to the deprivation — that is, did the plaintiff receive the process he was due? Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir.1995); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (describing an analytically similar two-step inquiry).

In this case, the first two questions are easily answered in the affirmative. It is indisputable that real property is protected by the due process clause and that for the government to demolish one's property is to deprive him of it. Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("Any significant taking of property by the State is within the purview of the Due Process Clause."). It is also uncontested that Ellis was the owner of the property the city demolished at the time demolition took place. The only question of consequence is whether the procedures employed by the city before demolishing Ellis's house were fair and adequate under the Constitution. See United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("[G]overnment action depriving a person of life, liberty, or property ... must ... be implemented in a fair manner."); see also McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir.1994) (en banc).

More specifically, this is a case about notice. It has been more than half a century since the Supreme Court declared, in the landmark case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950): "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." 339 U.S. at 314, 70 S.Ct. 652. In cases where the constitutional adequacy of notice is challenged under the due process clause of the Fifth or Fourteenth Amendments, Mullane remains controlling. Dusenbery v. United States, 534 U.S. 161, 167-68, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002); Arrington v. Helms, 438 F.3d 1336, 1349 (11th Cir.2006); Grayden v. Rhodes, 345 F.3d 1225, 1242-44 (11th Cir.2003).

Upon due consideration of all the evidence in this case, the court does not believe that the city employed constitutionally adequate notice procedures before demolishing Ellis's house. Unlike in Mullane, there is nothing wrong with the means of notice employed. See Dusenbery, 534 U.S. at 169 (observing that notice by certified mail is generally adequate for known addressees). Rather, the constitutional deficiency in the city's notice lies in its procedure for identifying the proper recipient of the notice. Several considerations guide the court to its conclusion.

1.

First, by using the public records of the county revenue commissioner to identify the property owner, the City of Montgomery did not employ notice procedures "reasonably certain to inform those affected" by its action. Mullane, 339 U.S. at 315, 70 S.Ct. 652. According to unopposed testimony at the bench trial of this case, the revenue commissioner's public records could lag behind in reflecting a change in property ownership by as much as two years. Residential property changes hands often enough such that it was not reasonable for the city to believe that the public records of the county revenue commissioner accurately reflected the current ownership of any given property. By sending notice to the property owner in the revenue commissioner's public records, the city could not have been reasonably confident it was sending notice to the person whose interests were affected by the demolition.

During the bench trial of this case, the court heard testimony from Dorian Brunson, the city's chief building official, and Sarah Spear, the county's revenue commissioner. Brunson, the city official responsible for demolition of unsafe structures, stated his belief that the revenue commissioner's records were approximately nine months behind in reflecting the actual owner of the property as recorded in the county probate office. Although Brunson evidently believed the time lag in recordkeeping at the revenue commissioner's office was less than a year, his testimony demonstrates that the city was aware that it consulted out-of-date property records to identify the property owner.

Revenue Commissioner Spear testified that, in fact, the property records available to the city at the time Ellis's house was declared unsafe could be as much as two years out of date. When a new deed was recorded, the office of the probate judge would notify the office of the revenue commissioner within one to two weeks. Frequently, the new owner would also notify the revenue commissioner in order to obtain a receipt for tax purposes. However, the change of ownership would not become relevant for tax and revenue purposes until the next first day of October, when the property would be assessed for taxes for the following year. And even then the public records would not reflect a change of ownership until the collection date of the following first day of October. This means that, if a piece of property changed hands on October 2, 2004, the new owner would not be identified in the public records of the revenue commissioner until October 1, 2006, nearly two years later.

In this case, a finance corporation purchased the Wade Street property from Walters's mortgagee in September 2004, and sold it to Ellis in October 2004. The revenue commissioner received actual notice of Ellis's purchase on October 14, 2004, when it received a copy of the deed from the probate office. However, as late as September 30, 2005, Walters was still listed by the revenue commissioner as the owner of record. And, because Ellis did not purchase the property until after October 1, 2004, he would not have been identifiable through the revenue commissioner's records until October 1, 2006 — nearly two full years after he purchased the property. Such a system may be perfectly well-suited to tax assessment and collection in Montgomery County, but it is plainly inadequate as a means of identifying the present owner of an unsafe structure in order to notify...