Presented to the Kansas Association of
Code Enforcement Conference
November 15, 2002
Brenden J. Long
John J. Knoll
Assistant City Attorney
City of Topeka, Kansas
Although the Fifth Amendment to the United States Constitution generally applies to criminal actions, it also prohibits the government from denying any citizen of "life, liberty or property without due process of law." U.S. Const. Amend. V. Code enforcement cases rarely involve depriving someone of their liberty, and even more rarely, depriving someone of their life. However, most code enforcement cases can and do affect someone's property interests.
B. Fourteenth Amendment
The Fourteenth Amendment to the United States Constitution provides, in relevant part:
"....nor shall any state deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. Local units of government generally obtain their power from the state, so the Fourteenth Amendment's applicability to states also applies to local government code inspectors.
C. Kansas Constitution
All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay. Kansas Bill of Rights § 18.
The basic elements of procedural due process are notice and an opportunity
to be heard at a meaningful time and in a meaningful manner. Kennedy
v. Board of Shawnee County Comm'rs, 264 Kan. 776, 797-98, 958 P.2d
The purpose of the due process requirement in the code enforcement context
is clear - to let the landowner or occupant know of a pending action and
make an informed decision about whether to agree with, or contest the proposed
In Mullane v. Central Hanover Bank Tr. Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court discussed
the constitutionality of service by publication and the implications that
service by publication has on due process rights. The Court stated:
Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.The notion of due process originated in criminal law, but it now permeates every type of judicial or administrative decision seeking to deprive someone of life, liberty or property. Examples include termination of government employment, Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980); attorney disciplinary proceedings, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968); termination of parental rights, In re H.C., 23 Kan.App.2d 955, 958, 939 P.2d 937 (1997); revocation of probation or parole, Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), denial of workers compensation benefits, Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.2d 747 (1999); prison disciplinary hearings, In re Pierpoint, 271 Kan. 620, 24 P.3d 128 (2001); hearings to prosecute juveniles as an adult, State v. Jones, ___ Kan. ___, 2002 WL 1075057 (2002), and many, many others.
Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that 'The fundamental requisite of due process of law is the opportunity to be heard.' [Citation omitted.] This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.
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. [Citations omitted.] The notice must be of such nature as reasonably to convey the required information, [citation omitted] and it must afford a reasonable time for those interested to make their appearance....
But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected. Mullane, 339 U.S. at 313-16, 70 S.Ct. 652.
B. WHAT PROCESS IS DUE?
The question of what process is due in a given factual situation under the Due Process Clause of the United States Constitution is a legal one. See Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).
C. Neutral & Detached Decision Maker
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)(in order to obtain the greatest objectivity an uninvolved person should make the determination that a reasonable ground exists for revocation of parole)
Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). The district court found a medical examining board could not suspend the doctor's license at its own contested hearing on charges evolving from its own investigation, basing its decision on the absence of an independent, neutral and detached decision maker. The United States Supreme Court reversed, holding that combining the investigatory and adjudicatory functions of an administrative hearing were not a denial of due process in that case.
1. K.S.A. 12-1617e Notice required to abate nuisance conditions.
2. K.S.A. 12-1617f Notice to cut or destroy weeds
3. K.S.A. 12-602 Publication notice when city intends to grade, regrade, pave, repave, etc.
4. K.S.A. 8-1102 Posting notice on vehicles before towing them from public roadways or property; and notification prior to selling vehicle at public auction
B. County Resolutions/City Codes
If state law is not uniformly applicable, city or county can "opt out" of state law by passing a charter ordinance or resolution and establish its own provisions by regular ordinance or resolution under its home rule powers. Kansas Constitution, Article 12, § 5; K.S.A. 19-101a.
1. Oral (almost never a good idea - lack of evidence about what was said)
2. Written (better - more defensible in court).
Boyles v. City of Topeka, 271 Kan. 69, 21 P.3d 974 (2001)
On September 3, 1998, the City notified Boyles in writing that an inspection of his property showed a violation of Section 66-27(2). The notice informed Boyles that the following specific items found outside on his parking lot constituted a nuisance:
"vehicle seats, plastic floor runners, baby jump seat, baby safety gate, carpet, fold away bed, cabinet doors, mattress, bed frames, bicycle tires, inner tubes, baby car seats, baby high chairs, baby stroller, fan, school desks, tarps, deflated raft, wheel chair, sinks, wicker table, cardboard boxes, stuffed furniture, baby bed frames, section of hand rail, wood tables, wood desks, bumper pool table, vacuum, doors, vanity, counter top, wood bed frames, disassembled metal displays, metal hand rail sections, electric stove tops, formica display cabinets, gas stove, unattached storm windows and doors, disassembled bicycles in pickups, stove, refrigerators, toilet, disassembled and broken lawn mowers, sewing machine, grass bags in pickup, mattresses in pickup, loose trash and debris." 271 Kan. at 71.A specific, written notice delivered to the defendant can help overcome arguments that your ordinance or resolution is too vague to be enforced.
Here, Boyles was informed with specificity of the approximately 50 types of items creating the unsightly appearance which he permitted to remain outside on his parking lot.
The enumeration of Section 66-27(2) categories, when linked to the detailed notice Boyles received, focuses on and identifies the conduct deemed by the City as constituting a nuisance." 271 Kan. at 473.
B. Method of Service
RULE NUMBER ONE IS TO FOLLOW THE RELEVANT STATUTE, ORDINANCE OR RESOLUTION!
a. Personal service is the best method of service. When you can testify that you personally handed notice to a person, it overcomes any argument the person to be served never received it.
b. Residence service is suspect if not left with someone of suitable age and discretion at the residence of the person to be served. Follow up with posting, mail service, etc.
2. Certified Mail
a. Preferred method of service process. K.S.A. 60-303.
b. Service complete upon mailing. K.S.A. 60-303(c)(3).
3. Regular Mail
a. If allowed by code or resolution, is usually reasonably calculated to inform.
b. If person to be served claims they did not receive it, actions may be void for a denial of due process.
4. Posting or Tacking
a. Usually ineffective if only method used. Must also send mail notice that party was served by posting.
b. Owner can always claim they did not receive notice because they did not go to the property.
a. Fraught with peril, but may be necessary if all other methods have failed.
b. Use only as a last resort.
It would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed.
... The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessor or proprietary rights.... When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification.... 'It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.' " (Emphasis added.). Mullane, 339 U.S. at 313-16, 70 S.Ct. 652.
c. If you know where they live, send them notice! Stockman v. Unified Government of Wyandotte County/Kansas City, Kansas, 27 Kan.App.2d 453, 6 P.3d 900, (2000)(redevelopment notice sufficient where the UG provided publication notice as well as mailed notice before the redevelopment district was created and before the redevelopment plan was adopted, and the UG held a hearing where property owners were given an opportunity to be heard.)
d. Due Diligence - Exhaust Reasonable Sources of Information Available
Mullane does not stand for the proposition that service by publication
deprives a party of their due process rights. Service by publication, without
more, however, is unconstitutionally invalid. The Court in Mullane
admitted that service by publication is nothing more than an exercise in
futility a majority of the time. Service by publication will, more often
than not, fail to provide notice to affected parties. Failure to provide
actual notice, however, will not prevent a judicial foreclosure sale of
real estate. A party's due process rights are protected by what occurs
prior to and in addition to the attempted publication service. In Mullane,
nothing was done prior to service by publication. The Court in Mullane
approved of service by publication where addresses were not known, but
disapproved of service by publication where addresses of parties could
be reasonably ascertained. [Citations omitted]. Board of County Comr's
of Reno County v. Akins, 271 Kan. 192, 21 P.3d 535 (2001).
In Pierce v. Board of County Commissioners, 200 Kan. 74, 82-86, 434 P.2d 858 (1967), the court said:
"Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution." 200 Kan. 74, Syl. ¶ ¶ 5, 6, 434 P.2d 858.You must engage in a "reasonable effort" to find addresses. Board of County Commissioners v. Knight, 2 Kan.App.2d 74, 574 P.2d 575 (1978)(10 to 12 unsuccessful efforts to contact owner at home prior to publication service was not sufficient).
Board of County Comr's of Reno County v. Akins, 271 Kan. 192,
21 P.3d 535 (2001)( in tax foreclosure of piece of land, worth more than
$150,000, checking local & regional telephone directories, as well
as county court records was insufficient where no effort was made to see
who farmed the land)