What Process Is Due Before Property Is Destroyed?

The Sixth Circuit finds a city failed to provide adequate process before demolishing a condemned mobile home.

The McIntoshes own a mobile home park in Madisonville, Kentucky. After a tenant complained, the city found mold and mildew in one of the homes, condemned it, and ordered it demolished. The McIntoshes challenged the city's action (albeit after the home was destroyed) on several legal grounds, but the trial court was unmoved. The U.S. Court of Appeals for the Sixth Circuit, however, found the trial court was too quick to dismiss the procedural due process claim.

Chief Judge Sutton summarized the case.

The City of Madisonville condemned one of several mobile homes that Michael and Rebecca McIntosh own in their Kentucky town. The City demolished the property a month later. The McIntoshes filed this § 1983 action in response, alleging that the City deprived them of their due process rights to notice and the opportunity to be heard before tearing down the mobile home, among other claims. The district court granted the City's motion for summary judgment. Because triable issues remain over whether the City provided the McIntoshes an adequate opportunity to be heard, we reverse its disposition of this claim and affirm its handling of the other claims.

On the McIntoshes' procedural due process claim, the city may have provided them with adequate notice, but they do not appear to have given them an adequate opportunity to be heard to contest the condemnation and prevent the property's destruction. In particular, the city had no process n place to provide the hearing called for by the city's own municipal code. (Apparently city officials preferred to "sit down and have a conversation with" affected property owners.)

Judge Murphy offered an additional concurrence that is worth a read. It explores how the expansion of Due Process protections to a broader category of claims created countervailing pressure to lessen the degree of protection provided. I've posted the text after the break.

This case shows that an evolving-standards approach to constitutional interpretation can destroy rights just as much as it can create them. The Fourteenth Amendment's Due Process Clause makes it illegal for a State to "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. This constitutional text raises two basic questions: Has a State threatened to deprive a person of "life, liberty, or property"? If so, what is the "process" that is "due" for this threatened deprivation?

Historically, the Due Process Clause provided capacious protections ("due process of law") to a modest set of interests ("life, liberty, or property"). To start, the words "life, liberty, or property" traditionally reached only a "a small collection of rights." Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85, 97–98. They referred to what William Blackstone called "the 'absolute' rights" of individuals in the state of nature and what we would call "private rights" today. Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 566–67 (2007); see 2 St. George Tucker, Blackstone's Commentaries 123–24, 128–29 (1803). According to Blackstone, a person's specific right to "property" "consist[ed] in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." 2 Tucker, supra, at 138. So the word "property" referred to both the "bundle of rights" that a person obtained when becoming the owner of lands or goods as well as those lands and goods themselves. Cedar Point Nursery v. Hassid, 594 U.S. 139, 150(2021); 2 Samuel Johnson, Dictionary of the English Language 418 (4th ed. 1773); see Restatement (First) of Property ch. 1, intro. note (Am. L. Inst. 1936).

Next, the phrase "due process of law" provided robust protections to these narrow interests. As the Supreme Court explained before the Fourteenth Amendment's adoption, the phrase referred to the "settled usages and modes of proceeding existing in the common and statute law of England" that the colonists adopted on this side of the Atlantic. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1856). Or, as Justice Story put it, the phrase referred to the "process and proceedings of the common law." 3 Joseph Story, Commentaries on the Constitution of the United States § 1783, at 661 (1833). Of most relevance here, this incorporation of common-law protections set a "constitutional baseline" of "judicial process," presumptively requiring a neutral court to stand in between the government and its people's private rights. SEC v. Jarkesy, 144 S. Ct. 2117, 2145 (2024) (Gorsuch, J., concurring); see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1807 (2012); Nelson, supra, at 569–70. The people thus had the right "to 'judicial' determination of the facts that bore on" the government's claim that it could deprive them of private rights. Nelson, supra, at 591.

At first blush, this historical approach to the Due Process Clause makes this case look easy. Frank Wallace, the building inspector for the City of Madisonville, Kentucky, condemned a mobile home owned by Michael and Rebecca McIntosh after finding that this home violated various municipal building codes. Thirty days later, Wallace and other officials tore the home down over Mr. McIntosh's continued objections. Before destroying this home, the city officials never initiated a court proceeding to decide whether the home's dilapidated state did, in fact, render it subject to condemnation under the ordinance. And, as Chief Judge Sutton's opinion explains, the officials also identify no viable state-law path by which the McIntoshes could have obtained a judicial finding about the home's condition. The officials instead argue that they provided the McIntoshes with the required process simply by giving them the option to negotiate with Wallace over the home's problems and to "appeal" his finding to the city attorney. See McIntosh v. City of Madisonville, 2024 WL 1288233, at *6 (W.D. Ky. Mar. 26, 2024).

I find little support in the Due Process Clause's original meaning for this (somewhat astonishing) claim. There can be no doubt that the McIntoshes' ownership interest in their mobile home fell with the traditional definition of "property." And there can be no doubt that the city officials "deprived" the McIntoshes of this property when they destroyed it. The officials' conduct thus seemingly gave the McIntoshes the right to the judicial "proceedings" that the "common law" would have provided. Story, supra, § 1783, at 661. This right presumptively included the need for a court finding at some point that the home qualified as a nuisance under the local ordinance. As one state court suggested shortly after the Fourteenth Amendment's adoption, "[t]he authority to decide when a nuisance exists, is an authority to find facts, to estimate their force, and to apply rules of law to the case thus made. This is a judicial function[.]" Hutton v. City of Camden, 39 N.J.L. 122, 129–30 (N.J. 1876) (emphasis added). Many more cases support this "fundamental" point "that the declaration of a nuisance is a proceeding of a judicial nature" and that municipalities cannot simply "declare that to be a nuisance which is not such" under the governing law. John B. Uhle, Summary Condemnation of Nuisances, 39 Am. L. Reg. 157, 160, 164 (Mar. 1891).

To be sure, the Due Process Clause contains exceptions to this "constitutional baseline" requiring executive officials to initiate court proceedings before depriving individuals of property. Jarkesy, 144 S. Ct. at 2145 (Gorsuch, J., concurring). In Murray's Lessee itself, the Court recognized one such exception for proceedings against federal tax collectors. 59 U.S. at 277. It explained that the common law had long allowed "a summary method for the recovery of debts due the crown," particularly "those due from receivers of the revenues." Id. And although the parties have not briefed the question, I suspect that another exception might allow executive officials "to summarily destroy or remove nuisances" in emergency situations when the nuisances threaten public health or safety. Uhle, supra, at 159 (quoting Lawton v. Steele, 119 N.Y. 226, 235 (1890)). As the majority opinion notes, however, the city officials here have not suggested that any emergency existed when they destroyed the mobile home. Nor have the city officials pointed to any other historically based exception to the constitutional baseline.

So how can the officials argue that their proposals (allowing the McIntoshes to negotiate with the building inspector or appeal to a city attorney) gave the couple "due process of law"? According to these officials, their actions comported with the Due Process Clause under the modern "balancing" approach to due process from cases like Mathews v. Eldridge, 424 U.S. 319 (1976), and Goldberg v. Kelly, 397 U.S. 254 (1970). In Goldberg, the Supreme Court expanded the reach of the Due Process Clause beyond the "traditional common-law concepts of property" to cover new "property" interests—such as the interest in welfare payments. 397 U.S. at 261–62 & n.8; see Bd. of Regents v. Roth, 408 U.S. 564, 571–72 (1972). But this expansion would have created massive burdens if the Court had kept to the traditional meaning of "due process of law" by requiring judicial proceedings before depriving individuals of these new forms of "property." So the Court also watered down the right's traditional protections by holding that the guaranteed process "need not take the form of a judicial or quasi-judicial trial." Goldberg, 397 U.S. at 266. Rather, the Court suggested that the government need only provide a "meaningful" hearing—with the judiciary deciding as a policy matter what process satisfied this "meaningful" benchmark. Id. at 267 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); see Easterbrook, supra, at 125. In Mathews, the Court distilled this policy-rooted inquiry into its modern balancing test that decides the proper procedures based on the private and public interests at stake and the risk of "an erroneous deprivation" from the process that the government provided. 424 U.S. at 335.

Applying this balancing test here, the district court held that the city officials provided "constitutionally adequate" process because, among other reasons, they had "determined" that the home qualified as a nuisance. McIntosh, 2024 WL 1288233, at *6. So the court read the balancing test to sanction the destruction of traditional property based on nothing more than an executive official's say-so. This case thus shows how a court-created expansion of a right can lead to its contraction. The "minimal version" of the Due Process Clause that the Supreme Court adopted for new interests that would not normally trigger its protections becomes "legitimized," and lower courts then gradually apply this minimal version to interests that do fall within the clause's core. Philip Hamburger, Purchasing Submission: Conditions, Power, and Freedom 186 (2021).

We should exercise caution before taking this course. At the least, we should apply this modern balancing test in a way that allows for the "preservation of past rights," as the Court has done in other contexts. United States v. Jones, 565 U.S. 400, 407–08 (2012). When the "private interest" at stake qualifies as a traditional private right, perhaps the traditional process due should become the default process due under the modern balancing approach. Mathews, 424 U.S. at 335. And the government must show that the process it provided at least matches the protections provided by this traditional process. Cf. Pacific Mut. Life Ins. v. Haslip, 499 U.S. 1, 31 (1991) (Scalia, J., concurring in the judgment) (discussing Hurtado v. California, 110 U.S. 516 (1884)). Because Chief Judge Sutton persuasively explains why the processes that the city officials provided here did not meet this test, I am pleased to concur in the majority opinion.