Tenants Rights in Eviction Proceedings Brought Under Local Housing Codes

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2 Copyright 1996 by National Clearinghouse for Legal Services, Inc. All rights reserved. Tenants Rights in Eviction Proceedings Brought Under Local Housing Codes By Elizabeth Lutton Elizabeth Lutton, is a private attorney recently retired from a criminal appellate practice in Ann Arbor, Michigan. I. Introduction Flatford v. City of Monroe, decided by the Sixth Circuit Court of Appeals on February 22, l994, is a strong statement of tenants rights to due process in evictions initiated by governmental actions. /1/ The ruling provides constitutionally based protection for tenants who are evicted under local building or housing codes. The case gives advocates a basis for demanding policy changes from municipal authorities that have ordinances or policies permitting such procedures. II. Factual Background The Flatford litigation arose from the discovery of deteriorating and dangerous conditions in an 80- year-old, six-unit apartment house in Monroe, Michigan. /2/ Police officers discovered these conditions when they happened to enter the building on May 25, 1990, while investigating a criminal matter. The police reported numerous unsafe conditions to the director of the city building department. The director and the assistant city attorney obtained a warrant and inspected the building the following day, a Saturday, at about 3:30 p.m. As a result of the inspection, all tenants, including the six members of the Flatford family, were ordered to vacate by 6:00 p.m. /3/ During the weekend, police escorted tenants into the building to collect more of their belongings. The large Flatford family (two adults and four minor children) was without a home of its own for 13 days. The Flatfords were obliged to sleep in their car some of the time or on floors at relatives and friends homes. /4/ The building department notified the owner of the building about the dangerous conditions and repairs required and of the owner s right to an administrative hearing if an appeal was filed within 30 days. These notices were required by the City of Monroe Building Code. /5/ No similar notice was sent to the Flatfords. The district court stated that, despite the Flatfords attorneys having been repeatedly been in touch with the building department director, "[i]t is undisputed that there was no prior notice to the occupants [of the condemned house], no preeviction hearing, no judicial order to vacate, and no post-eviction hearing." /6/ Because of repeated

3 contacts made by the Flatfords attorneys, the Flatford family was permitted to return to their apartment on June 8, /7/ III. Governmental Immunities Issues Although the Flatfords made their claims under 42 U.S.C. Sec. 1983, and the principal significance of the courts decisions lies in their holdings on the constitutional issues, both the district and the circuit courts found it necessary to analyze the issue of whether the public employees who ordered and carried out the Flatfords eviction were subject to qualified immunity. The two courts reached different judgments on the immunity issue. The district court held that neither the chief building inspector nor the police officers who assisted in the eviction were immune under the qualified immunity standard set forth in Harlow v. Fitzgerald. /8/ The court found that the Flatfords constitutional rights were violated by the city s failure to give them either a preeviction or a posteviction hearing. Finding that both the chief building inspector and the individual police officers violated the Flatfords rights under the Fourth and Fifth Amendments, the court granted summary judgment in favor of the Flatfords as to liability and scheduled the case for trial on the amount of damages. /9/ The case came to the court of appeals on the city s interlocutory appeal of the qualified immunity issue under Mitchell v. Forsyth. /10/ The Sixth Circuit disagreed with the district court on a factual issue -- the existence of an emergency situation in the apartment building. In its view, the deteriorating and unsafe conditions throughout the building (not just the conditions in the Flatford s unit) had to be taken into account in determining whether an emergency existed that affected all tenants. /11/ Thus, the Sixth Circuit found that the building inspector did not act in bad faith in ordering an emergency evacuation of the building. The Sixth Circuit held that qualified good-faith immunity insulated both the building inspector and the individual police officers from liability for their failure to offer a preeviction hearing to the Flatfords. /12/ IV. The Constitutional Holding Because the Sixth Circuit s discussion primarily addresses the qualified immunity issue, and because the court of appeals reversed the district court in part on the immunities issue, it is easy to overlook that the two opinions, taken together, constitute a powerful statement of tenants rights to notice and an opportunity to be heard before any eviction triggered by governmental code enforcement. A. District Court Analysis

4 The district court, in granting summary judgment in plaintiffs favor, held that when the city "evicted plaintiffs from their home without prior notice and an opportunity to be heard [it violated] their due process rights." /13/ The court initially observed that there is no question that plaintiffs, as tenants, were "deprived of a significant interest in property: indeed, of the right to continued residence in their homes." Greene v. Lindsey, 456 U.S. 444, (1982). In the landmark United States Supreme Court case involving due process rights guaranteed by the fourteenth amendment, the Court held that no intentional state termination or seizure of a property or liberty interest can take place unless the state affords notice and an opportunity to be heard before the deprivation. Fuentes v. Shevin, 407 U.S. 67, (1972). /14/ The court then went on to discuss whether the city s deprivation of the Flatfords leasehold interest met the "exigent circumstances" test for exceptions to predeprivation notice set out in Fuentes. /15/ After a detailed discussion of the facts of the case, the district court held that in a factual construction most favorable to defendants the city could not meet its burden of showing "exigent circumstances." /16/ B. Sixth Circuit Analysis The court of appeals applied the district court s due process analysis to a qualified immunity appeal under Mitchell v. Forsyth /17/ and Russo v. City of Cincinnati. /18/ Mitchell permits individual civil rights defendants to obtain an interlocutory review of a decision denying a motion to dismiss based on qualified immunity. /19/ In a Mitchell-Russo appeal, the plaintiff must show (1) that the alleged constitutional violation involves a "violation of clearly established law"; and (2) that sufficient facts, if true, have been pleaded to show that the alleged violation actually occurred. /20/ In addressing the first Mitchell-Russo question, the court held that a tenant s right to due process in an eviction carried out by a governmental actor was clearly established and that the city of Monroe violated that right in evicting the Flatfords. The court s holding on the "clearly established right" issue is premised on its holding that a tenant s due process right to the continued occupancy of her home is as constitutionally significant as the landlord s interest in the property: "It is too plain for argument that the Flatfords, who were barred from entering their home, have at least a clearly established right to process of the sort that [the City] afforded to their landlord." /21/ The court then separately analyzed the city s violation in light of the second Mitchell-Russo question in three different circumstances: the lack of preeviction process by the chief building inspector; the lack of posteviction process by the chief building inspector; and the role of the individual police officers in the seizure of the building. As to preeviction process, the court reevaluated the district court s factual findings on the "exigent circumstances" issue and concluded that "even if in hindsight we conclude that [the chief building inspector s] decision to evacuate was erroneous... the record clearly contains facts from which a

5 reasonable building inspector might conclude that the occupants, and particularly the children, might be imminently endangered." /22/ The court therefore held that the building inspector was acting in "good faith" in erroneously ordering the eviction and was entitled to qualified immunity under Harlow v. Fitzgerald. /23/ However, the court noted that its analysis of the preeviction due process issue "does not resolve the case finally in [the building official s] favor" because it did not address the city s "complete failure" to have the Flatfords undergo any posteviction process. In discussing the posteviction process issue, the court initially rejected the suggestion, based on Parratt v. Taylor, /24/ that state tort remedies might give evicted tenants sufficient process: "[P]ost-deprivation state tort remedies are neither timely nor sufficiently remedial for emergency evacuees. Fundamental fairness expects more of a state than mere tort remedies where government dispossesses its citizens from their homes." /25/ The court recognized that its earlier holding on the qualified immunity issue as to preeviction process made prompt, meaningful postdeprivation process even more important: "[W]ithout the assurance of immediate review, qualified immunity may be wrongly perceived as an open invitation for public officials to ignore fundamental rights without any fear of censure. This is most certainly not our intended message." /26/ The court then turned to the issue of the entitlement to qualified immunity of the individual police officers who assisted the building official in the eviction. Citing Soldal v. Cook County, /27/ the court first observed that the Fifth Amendment due process analysis under Fuentes v. Shevin /28/ and a Fourth Amendment wrongful seizure analysis were legally identical. The court then held that the police officers were entitled to the same presumption of good faith applicable to the building official in the context of the preeviction process. /29/ Based on this discussion, the court left undisturbed the district court s finding of liability as to the City of Monroe, it vacated the finding of individual liability as to the police officers, it vacated the finding of individual liability as to the chief building inspector with respect to predeprivation process, and it affirmed the finding of individual liability of the chief building inspector as to posteviction process. /30/ V. The Importance of the Flatford Decisions The Flatford decisions contain several statements that should be very helpful to tenant lawyers advocating on behalf of individual tenants facing eviction under state and local housing codes. The case may also be useful to tenant advocates working with governmental units that are developing or revising residential building codes. First, the case s holdings are constitutionally based -- they established constitutional minimums for notice and the opportunity to be heard that are applicable to every housing condemnation under any housing code. As the Sixth Circuit succinctly stated, "[D]ue process requires notice and a hearing prior to eviction." /31/

6 Second, the core constitutional holding of the case is a restatement of Fuentes v. Shevin. That case is one of the broadest statements of general due process rights ever made by the Supreme Court. Third, the general approach to defining tenants due process rights in Flatford is to presume that tenants have "at least a clearly-established right to process of the sort... afforded to their landlord." /32/ This approach promises to be very useful to tenants. Many housing codes provide due process rights to "owners" and provide either no rights or significantly fewer rights to tenants. The Flatford case properly recognizes "that condemnation actions most significantly impact on tenants -- for in those actions the government seeks to 'dispossess its citizens from their homes. " /33/ Because so much of the court of appeals decision focuses on the qualified immunity issue (and the discussion of the facts of the case that an interlocutory review of immunity requires), it is possible to lose sight of these constitutional holdings. However, a careful reading of Flatford discloses that it is a very strong statement of tenants rights to notice and an opportunity to be heard before any significant governmental interference with continued occupancy of their rental housing. Footnotes /1/ Flatford v. City of Monroe, 17 F.3d 162 (6th Cir. 1994) (Clearinghouse No. 46,381). /2/ The Flatfords were represented by John D. Erdevig and Robert F. Gillett, Legal Services of Southeastern Michigan, 420 Fourth Ave., Ann Arbor, MI ((313) ), and Douglas R. Mullkoff, Kessler & Mullkoff. /3/ Flatford v. City of Monroe, 794 F. Supp. 227, 229 (E.D. Mich. 1992) (Clearinghouse No. 46,381). /4/ Id. at 229; Flatford, 17 F.3d at 166; and Detroit Legal News, Feb. 25, 1994, at 3. /5/ Flatford, 17 F.3d at 166 and n.1. /6/ Flatford, 794 F. Supp. at 227, 229. /7/ Id. at 229; Flatford, 17 F.3d at 162, 167. /8/ Harlow v. Fitzgerald, 457 U.S. 800 (1982). /9/ Flatford, 794 F. Supp. at 234. /10/ Mitchell v. Forsyth, 472 U.S. 511 (1985). /11/ Flatford, 17 F.3d at 167.

7 /12/ Id. at 168, 171. /13/ Flatford, 794 F. Supp. at 233. /14/ Id. at 230. /15/ Fuentes v. Shevin, 407 U.S. 67, at (1972) (Clearinghouse No. 4463). /16/ Flatford, 794 F. Supp. at /17/ Mitchell, 472 U.S /18/ Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992). /19/ Mitchell, 472 U.S. at 530. /20/ Id. at 526; Russo, 953 F.2d at /21/ Flatford, 17 F.3d at 169. /22/ Id. at 168. /23/ Harlow, 457 U.S Qualified good-faith immunity under Harlow and Mitchell is a defense that is available to individual defendants only, i.e., the defense is not available to municipal defendants. Owen v. City of Independence, 445 U.S. 622 (1980). The policy behind these cases is that busy governmental officials should not be held liable for discretionary decisions that they made while acting in good faith, Harlow, 457 U.S. at 818, and should not be burdened by the distractions of defending a suit against them personally, see Mitchell, 472 U.S. at 526. If an action is primarily injunctive in nature and/or if the individual defendant was acting in an official capacity or carrying out governmental policy when the constitutional violation occurred, the governmental entity remains liable. Id. at 520 n.5; Bever v. Gilbertson, 724 F.2d 1083 (4th Cir.), cert denied, 469 U.S. 948 (1984); Prisco v. Department of Justice, 851 F.2d 93 (3d Cir. 1988). The Sixth Circuit s rulings on the qualified immunity issues did not disturb the district court s grant of summary judgment to plaintiffs against the city as to their right to preeviction process. /24/ Parratt v. Taylor, 451 U.S. 527 (1981). /25/ Flatford, 17 F.3d at 169. /26/ Id. /27/ Soldal v. Cook County, 506 U.S. 56 (1992). /28/ Fuentes, 407 U.S. 67. /29/ Flatford, 17 F.3d at 170.

8 /30/ On remand, the court entered a consent judgment providing for money damages to the Flatfords. After the judgment was entered, plaintiffs requested and received attorney fees under 42 U.S.C. Sec /31/ Flatford, 17 F.3d at 167. /32/ Id. at 169. /33/ Id.