Academic journal article Harvard Law Review

Constitutional Law - Due Process Clause - Sixth Circuit Endorses Statutory Notice of Procedures to Challenge Municipal Ordinance Violations

Academic journal article Harvard Law Review

Constitutional Law - Due Process Clause - Sixth Circuit Endorses Statutory Notice of Procedures to Challenge Municipal Ordinance Violations

Article excerpt

CONSTITUTIONAL LAW--DUE PROCESS CLAUSE--SIXTH CIRCUIT ENDORSES STATUTORY NOTICE OF PROCEDURES TO CHALLENGE MUNICIPAL ORDINANCE VIOLATIONS.--Shoemaker v. City of Howell, 795 F.3d 553 (6th Cir. 2015), reh'g en banc denied, No. 13-2535, 2015 U.S. App. LEXIS 16363 (6th Cir. Sept. 8, 2015).

The Fourteenth Amendment's Due Process Clause constrains the government's ability to deprive any person of "life, liberty, or property" (1) without adequate procedural safeguards, essentially "some kind of hearing" (2) coupled with "reasonably calculated" notice. (3) However, what makes notice "reasonably calculated" has long puzzled lower courts. in Mullane v. Central Hanover Bank & Trust Co., (4) the Supreme Court declared that, at bottom, notice must be more than "a mere gesture." (5) instead, efforts to notify an individual of a pending action and opportunities to challenge it must be "such as one desirous of actually informing the [individual] might reasonably adopt." (6)

Last July, in Shoemaker v. City of Howell, (7) the Sixth Circuit held that a municipality's failure to notify a homeowner of his ability to challenge a city-ordinance violation did not violate the Due Process Clause. The court found that repeated notices to the homeowner, which cited the relevant city ordinance and gave the phone number for City Hall, provided enough information for him to investigate his procedural remedies. (8) This reasoning distanced procedural due process law from its foundations as a protection of "the deepest notions of what is fair and right and just" (9) in favor of a model that more highly prizes bureaucratic efficiency. As a result, municipalities may find themselves empowered to impose fines with one less procedural constraint.

For over fifty years, the City of Howell, Michigan (the City) has had an ordinance (the Ordinance) requiring any "owner, lessee or occupant" of land to maintain the grassy area between the sidewalk and the curb so as to prevent the "growth of weeds, grass or other rank vegetation to a greater height than eight inches." (10) The Ordinance authorizes the City to notify noncompliant homeowners of their violation, and then to issue fines if the violation persists. (11)

In 2009, the City initiated a road refurbishment program that expanded the width of the grassy curb strip between the City's sidewalks and residential streets. (12) Although Shoemaker had maintained the strip abutting his property as if it were his own since purchasing his home in 2003, city workers told him the curb strip was "not ... on his property," and that "[Shoemaker] had no say in what happened" there. (13) Consequently, Shoemaker stopped mowing the area and refused to maintain the City's improvements. (14)

In August 2010, the City received a complaint about Shoemaker's grass from a neighbor concerned about the potential for the unmanaged vegetation to attract rodents." After visiting the property, a city officer left a door-hanger notice informing Shoemaker that he was in violation of the Ordinance. (16) The notice listed the phone number for City Hall but did not advise that there was any right to contest the violation. (17) Shoemaker apparently mowed the curb strip shortly thereafter. (18) But the City again found Shoemaker in violation in May 2011, and once more in August 2011. (19) This time, Shoemaker took a stand: when a city official returned to inspect the property a few days after leaving the August notice, he observed that although Shoemaker's lawn was mowed, the curb strip remained uncut. (20)

Following the August 2011 violation, Shoemaker phoned the City to object to mowing the curb strip and to request to be ticketed so he could challenge the Ordinance in court. (21) The City refused. Instead, it hired a contractor to mow the area and sent Shoemaker an invoice. (22) The City enforced the Ordinance against Shoemaker three more times, each time using the same procedure. (23) When Shoemaker refused to pay the $600 in accumulated fees and charges, the City placed a tax lien for the amount on Shoemaker's home. …

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