The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
MICHAEL MCINTOSH; REBECCA MCINTOSH,
│
Plaintiffs-Appellants, │
> No. 24-5383
│
v. │
│
CITY OF MADISONVILLE, KENTUCKY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 4:21-cv-00126—David J. Hale, District Judge.
Argued: December 11, 2024
Decided and Filed: January 21, 2025
Before: SUTTON, Chief Judge; BUSH and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Thomas E. Springer, III, SPRINGER LAW FIRM, PLLC, Madisonville, Kentucky,
for Appellants. James P. Landry, KEULER, KELLY, HUTCHINS, BLANKENSHIP &
SIGLER, LLP, Paducah, Kentucky, for Appellee. ON BRIEF: Thomas E. Springer, III,
SPRINGER LAW FIRM, PLLC, Madisonville, Kentucky, for Appellants. James A. Sigler,
KEULER, KELLY, HUTCHINS, BLANKENSHIP & SIGLER, LLP, Paducah, Kentucky, for
Appellee.
SUTTON, C.J., delivered the opinion of the court in which BUSH and MURPHY, JJ.,
concurred. MURPHY, J. (pp. 11–15), delivered a separate concurring opinion.
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 2
_________________
OPINION
_________________
SUTTON, Chief Judge. 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.
I.
In 1994, the McIntoshes bought a nine-lot mobile home park in Madisonville, Kentucky,
located about 150 miles southwest of Louisville. After a few years, they began renting out the
mobile homes. In the fall of 2020, a tenant told the City that her mobile home contained mold
and mildew and that the McIntoshes failed to fix it.
The City responded to the complaint. In November 2020, Michael Phillips, the City’s
code enforcement officer, inspected the home. He discovered “organic growth” and “moisture
droplets” on the ceiling, doors and windows that would not open, and a floor “soft” in some
areas. R.24-7 at 7. The City’s building inspector, Frank Wallace, reported similar findings after
his own inspection. He recalled seeing “vegetative growth” on the walls and unstable two-by-
fours supporting the ceiling. R.24-6 at 11. Wallace found that the structure could collapse and
deemed the property an unsalvageable danger.
On November 19, 2020, Wallace mailed the McIntoshes a letter on behalf of the City. It
said, among other things:
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 3
The property listed above is in violation of the 2012 International Property
Maintenance Code. The structure is unsafe for occupancy and Condemned at this
time. Be advised that you have thirty (30) days to submit your plans for the
renovation and repairs needed to bring this property up to code.
R.23-3. The City placed a notice on the property that said in relevant part:
WARNING
CONDEMNED
DO NOT ENTER
Under the jurisdiction of the Building Official of the City of Madisonville the
building is unsafe for OCCUPANCY
Restricted entry by permission of the Building Officials office only
Please Contact Frank Wallace
Building Official
City of Madisonville
270-824-2196
R.23-2.
Mr. McIntosh saw the notice posted on his home and received the condemnation letter.
On December 1, he wrote a letter to Wallace and Phillips disputing the City’s authority to
condemn the home and “respectfully request[ing]” they withdraw their notice. R.23-4 at 1. Mr.
McIntosh called Wallace to request a copy of the City’s maintenance code, and Wallace gave it
to him.
The parties’ accounts of what happened next diverge at this point.
The homeowners’ account: Mr. McIntosh claims that he tried to contact City officials
multiple times to dispute the violations. He called Phillips a few times asking for repair
recommendations, but Phillips did not answer and insisted that only Wallace could provide the
information. Mr. McIntosh called Wallace’s office and, when no one answered, he left a
message about the letter and notice. In response, an employee called back and advised him: “If
[you] didn’t like Frank Wallace’s decision, sue them.” R.24-5 at 10. Mr. McIntosh asked her
how to get a hearing at the “[B]oard of [A]djustment,” and she responded that no such board
existed. R.24-5 at 10. The City turned off the mobile unit’s power. Mr. McIntosh sent a second
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 4
letter to Wallace and Phillips. He explained that he had “inspected and cured the cause of the
complaint,” a leaking valve on the water heater. R.24-3. He added that he would replace
damaged plywood panels before another tenant moved in and disagreed that the unit had
structural problems. When Mr. McIntosh again called Wallace’s office about his letter, Phillips
told him: “We do not care what your letter said . . . I’m going to tear that house down.” R.24-5
at 18. Wallace and Phillips never reentered the property to see his repairs.
The City’s account: Wallace claims that Mr. McIntosh did not try to contact him after
obtaining a copy of the maintenance code. Wallace told Mr. McIntosh that he could work with
Madisonville to remedy his property’s issues, but Mr. McIntosh rejected the offer. Wallace does
not remember seeing a second letter from Mr. McIntosh detailing his repair attempts and asking
the City to turn on the electrical power to the unit. Both Wallace and Phillips say that they
reinspected the property before tearing it down but found only cosmetic repairs that did not
satisfy the Code.
A month after the initial condemnation, the time for demolition arrived. That day, Mr.
McIntosh called the City Attorney, the Mayor’s office, and the County Sheriff to delay the
demolition. His efforts went nowhere. Mr. McIntosh claimed that Phillips “understood [his]
situation and he wasn’t going to tear the house down.” R.24-5 at 9. But when Mr. McIntosh
started calling state officials, Phillips changed his mind because “he didn’t like that [McIntosh]
was talking to somebody from the State.” R.24-5 at 9. Once more, Mr. McIntosh told Wallace
that he had made the necessary repairs and asked him what parts of the Code the home still
violated. Wallace responded that he would not discuss the matter and that the City planned to
proceed. The City removed the mobile home that day.
The McIntoshes sued the City in state court, alleging procedural and substantive
due process violations under § 1983 and a trespass violation under state law. The City removed
the case to federal court and sought summary judgment. The district court granted its motion.
The McIntoshes appeal.
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 5
II.
In reviewing the district court’s summary judgment decision, we ask the same question
that the district court considered: Have the McIntoshes introduced sufficient facts that a jury
could reasonably grant relief on their legal claims? Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). In applying this standard, we construe the evidence in the
light most favorable to the nonmoving party (the McIntoshes). See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
A.
Procedural due process. The Fourteenth Amendment says that the States may not
“deprive any person of life, liberty, or property, without due process of law.” When it comes to
property that a State or city wishes to condemn, the relevant government unit must give the
owner “notice” and the “opportunity to be heard” before tearing down the property. Warren v.
City of Athens, 411 F.3d 697, 708 (6th Cir. 2005). A few words are in order about each
component of this standard.
As to notice, due process requires a statement “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.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S.
306, 314 (1950). The idea is to give property owners a meaningful chance to object to the
proposed destruction of their property. See Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153,
166 (6th Cir. 1973). The notice thus must “inform” the homeowners “of the availability of an
opportunity to present [their] objections.” Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1, 14 (1978) (quotation omitted). If “generally available state statutes” detail procedures for
obtaining a hearing before the destruction of the property, a municipality typically “need not take
other steps to inform” the property owner of their “options.” City of West Covina v. Perkins, 525
U.S. 234, 241 (1999).
As to the opportunity to be heard, due process requires “some kind of a hearing before
the State” destroys the property, absent an emergency. Zinermon v. Burch, 494 U.S. 113, 127
(1990). No emergency existed in this instance, as a month passed between the condemnation
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 6
notice and the actual demolition of the vacant home, precluding the City from claiming a
“necessity of quick action” or other “impracticability” that might permit only post-deprivation
remedies. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (quotation omitted). That
means the City needed to provide the McIntoshes with a hearing before the demolition. While
the hearing requirement remains flexible to account for different situations—hence the reference
to “some kind of a hearing”—it remains an imperative.
Measured by these principles, the City met its obligation to provide notice to the property
owners but did not meet its obligation to provide a pre-demolition hearing to them.
Start with notice. Mr. McIntosh received and read the condemnation notice and letter
informing him that he had thirty days to submit his plans for “renovation” and “repairs.” His
subsequent efforts to repair the property and his serial efforts to contact city officials show that
the notice worked.
True, the condemnation letter did not list each of the property’s specific defects. But we
do not demand a “level of specificity required of a criminal indictment.” Yashon v. Hunt, 825
F.2d 1016, 1025 (6th Cir. 1987). All that was needed was sufficient notice for the McIntoshes to
“quickly and intelligently take available steps to prevent the threatened” action. Palmer, 479
F.2d at 166. That happened.
True also, the letter and posted notice did not explain the couple’s right to a hearing
before the proposed demolition. But the generally applicable municipal laws sufficed. City of
West Covina, 525 U.S. at 241. “Any party aggrieved by any decision of [a] Building Inspector,”
the City’s Code says, “may appeal that decision to the Local Appeals Board,” which must
convene within fifteen days of receiving an appeal and render a decision five days after that.
R.23-6 at 3; Madisonville, Ky., Code of Ordinances § 150.13(C)–(E) (1994). Property owners
may then appeal an adverse decision to the Department of Housing, Buildings and Construction.
Id. § 150.13(E); Ky. Rev. Stat. Ann. § 198B.070(4). While a city would do well to consider
providing homeowners direct notice of their right to a hearing before it destroys their property,
these generally applicable laws supply the notice required by due process, see City of West
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 7
Covina, 525 U.S. at 241, given the background principle that citizens “are presumptively charged
with knowledge of the law,” Atkins v. Parker, 472 U.S. 115, 130 (1985).
A different conclusion applies to the City’s duty to give the McIntoshes an opportunity
for a hearing before the City destroyed their property. The key problem is that the City Code
says that property owners have a right to a hearing before a Local Appeals Board over a
grievance against “any decision of the Building Inspector”—in this instance, Wallace.
Madisonville, Ky., Code of Ordinances § 150.13(C)–(D) (1994). But the City never delivered on
that promise. In his deposition, Wallace confirmed that “there’s not an appeal board in
Madisonville” to hear this type of claim. R.24-6 at 10. While Wallace agreed that § 150.13
“does call for an appeals council or appeals board for appealing any” of his decisions, he insisted
that the City did not have one. R.24-6 at 10. When pressed about this deviation from the
municipal code, Wallace explained that city officials have considered setting one up but
concluded it “didn’t feel . . . necessary” given other, more informal means of disputing a
condemnation. R.24-6 at 10. This could be why, when Mr. McIntosh asked an employee of
Wallace’s office how to appeal (albeit, to what he called the “Board of Adjustment”), she told
Mr. McIntosh that no such board existed. R.24-5 at 10. Wallace’s certainty that no board
existed and his employee’s response to the McIntoshes’ inquiry along the same lines would
permit a reasonable juror to characterize the City’s statutory promise of a hearing as illusory.
The City pushes back, arguing that the McIntoshes had other, less formal opportunities
for a pre-deprivation hearing and failed to pursue them. The City claims that, if property owners
disagree with a condemnation recommendation, officials “sit down and have a conversation
with” the homeowners about the violation and “the scope of work” needed for repairs. R.24-6 at
11–12. If property owners remain dissatisfied, they may appeal the Building Official’s decision
to the Madisonville City Attorney, who acts as “an arbiter.” R.24-6 at 10.
Let us assume for the sake of argument that this option—not mentioned in the City’s
generally applicable laws—constitutes an adequate chance to be heard. Problems remain even
still. The only evidence of such a policy arises from Wallace’s testimony, not a provision in the
City’s Code. Unlike appeals processes engrained in statutes, this “procedure, if it existed at all,
depended on the vagaries of word of mouth referral,” creating the imperative that the City tell the
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 8
McIntoshes about this opportunity. Memphis Light, 436 U.S. at 14 n.14 (quotation omitted); see
Palmer, 479 F.2d at 168 (rejecting the claim that “the mere theoretical possibility of informal
resolution” with company figures—a possibility unknown to customers—meets due process
standards). Yet neither the condemnation flyer nor its related letter nor the statements of any
official conveyed to the McIntoshes the opportunity to speak with Wallace and the City Attorney
about the proposed demolition. Making matters worse, none of those sources ever informed the
McIntoshes precisely what provisions of the municipal code their unit violated—and had to be
repaired. A reasonable juror could find that no such policy existed or that, even if it did, the City
never told the property owners about it.
Even the possibility of inquiry notice does not help the City. Recall that Mr. McIntosh
tried to contact City officials to discuss the state of the property through various calls, two letters,
and in-person questions on demolition day. Each time, officials rebuffed him, and each time
they failed to mention the possibility of a meeting with Wallace or an appeal to the City
Attorney. The property owners asked the very questions inquiry notice might demand, and the
City officials never told them about any other route to a hearing or procedure to protect their
rights.
The City adds that a “property owner may challenge the Building Official’s decision in
Hopkins District Court.” Appellee’s Br. 11. Kentucky law, it is true, permits some challenges
along these lines in state court. Ky. Rev. Stat. Ann. § 65.8831. But that law applies only to
appeals of final orders from a local administrative body or a local hearing officer (who cannot
work for the City). Id. §§ 65.8828, 65.8829(2)(b), 65.8829(7)(c), 65.8831; see Short v. City of
Olive Hill, 414 S.W.3d 433, 445 (Ky. Ct. App. 2013) (discussing an appeal from a local code
enforcement board’s final order). Because no local bodies issued final orders (and indeed no
such local bodies even existed, according to Wallace), the McIntoshes could not protect
themselves under that provision.
The City maintains that the McIntoshes forfeited portions of their procedural due process
claim in the district court. It objects that the McIntoshes on appeal have identified new statutory
and case citations. But raising a new “particular authority” on appeal does not risk forfeiture “as
long as the issue itself was properly raised” below. Mills v. Barnard, 869 F.3d 473, 483 (6th Cir.
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 9
2017). The McIntoshes did just that. They raised claims about the opportunity to be heard in
both their amended complaint and in response to Madisonville’s motion for summary judgment.
The district court addressed the claims on the merits. Nothing prohibited the McIntoshes from
reinforcing those arguments with more citations on appeal—a run-of-the-mine feature of nearly
every appellate brief and of some appellate court decisions themselves.
B.
Substantive due process. While the language of the Due Process Clause focuses on
procedural safeguards, “the Supreme Court has added discrete substantive protections” for
fundamental rights unmentioned in the Constitution. Gore v. Lee, 107 F.4th 548, 562 (6th Cir.
2024). One such right—the one the McIntoshes claim that Madisonville violated—is “the right
to be free from conscience-shocking actions.” Range v. Douglas, 763 F.3d 573, 588 (6th Cir.
2014). Meeting this test is no mean feat. “Only the most egregious official conduct can be said
to be arbitrary in the constitutional,” as opposed to conversational, “sense.” County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1988) (quotation omitted).
The City’s actions did not rise to this level. The City condemned the home due to its
mold, moisture, and structural weaknesses, all in violation of the International Property
Maintenance Code. This routine exercise of the police power, even if a challenged exercise of
the police power, does not implicate the kind of conscience-shocking government acts that
substantive due process prevents. Wallace possessed the relevant decision-making authority, and
the City had the relevant power. Because we know of no court that “has held that it shocks the
conscience for municipal authorities, acting pursuant to an unchallenged ordinance, to order the
destruction of a building found by responsible officers to be a nuisance or threat to public health
or safety,” the district court correctly granted summary judgment to the City on this claim.
Harris v. City of Akron, 20 F.3d 1396, 1405 (6th Cir. 1994).
In challenging this conclusion, the McIntoshes point to evidence that city officials turned
off the unit’s power to prevent Mr. McIntosh from making further repairs, employed police to
intimidate him by supervising demolition day, and never provided a hearing along the way. But
even if a jury credited that evidence, Wallace’s police power authority remained legitimate.
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 10
A mere dispute over the exercise of an accepted police power does not create a substantive due
process problem, as opposed to the possibility of a procedural due process defect.
C.
Trespass. The district court declined to exercise its supplemental jurisdiction over this
state law claim after granting summary judgment on all of the federal claims. On remand, we
leave it to the district court to decide in the first instance whether to exercise jurisdiction over
this claim in light of future proceedings about the procedural due process claim.
For these reasons, we reverse in part and affirm in part.
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 11
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CONCURRENCE
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MURPHY, Circuit Judge, concurring. 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
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 12
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
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 13
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”
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 14
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)).
No. 24-5383 McIntosh et al. v. City of Madisonville, Ky. Page 15
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.