# Frederika Blankner v. The City of Chicago > Court of Appeals for the Seventh Circuit · November 21, 1974 · 504 F.2d 1037 URL: https://www.frixlaw.com/law-library/cases/9461137 ## Case - **Full name:** Frederika BLANKNER, Plaintiff-Appellant, v. the CITY OF CHICAGO Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** November 21, 1974 - **Citations:** 504 F.2d 1037 - **Precedential status:** Published - **Opinion:** Concurring in part by Swygert - **Judges:** Swygert, Fairchild, Cummings - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461137 ## How later opinions describe it (automated extraction) - holding that res judicata and collateral estoppel prevented a plaintiff from litigating issues in federal court that she could have raised in the state condemnation proceeding ## Opinion text SWYGERT, Chief Judge, concurring in part and dissenting in part. The key point in the majority opinion is that there was a determination by the state court that the urban renewal area was slum and blighted; that the plaintiff had an opportunity to litigate this issue but deliberately bypassed it. It cannot be denied that if the area was not slum and blighted, the taking of plaintiff’s property was for a private and not a public use. “The taking by a state of the private property of one person or corporation, without the owner’s consent, for the private use of another, is not due process of law, and is a violation of the fourteenth article of amendment of the constitution of the United States.” Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417 , 17 S.Ct. 130, 135 , 41 L.Ed. 489 (1896). At the condemnation trial, the only evidence offered to show that the land was slum and blighted were the resolution of the Department of Urban Renewal and the ordinance of the City Council. Both referred to the condition of the land and buildings in late 1964. Miss Blankner never received notice that her property was being taken for urban renewal until she received a letter in October 1967 from the city offering to purchase her property. It was another year before she had an opportunity to challenge the taking. By that time over four years had elapsed. She contends that the Department of Urban Renewal’s designation of the land and buildings in *1044 the area as slum and blighted was a self-fulfilling prophecy. She makes the argument that as the city purchases property pursuant to the urban renewal plan, buildings become vacant and fall into a state of disrepair. The owners do not improve or even maintain their property in the face of imminent condemnation. No new construction is begun. Although an area may not have been slum and blighted at the time of the original designation, it becomes slum and blighted by the time of the condemnation proceedings. The federal defendants concede this point in their brief when they state that “once a renewal plan is announced for an area, improvement and maintenance of property within the area usually cease almost completely and the area deteriorates.” “The usual rule has been ‘[w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597 , 51 S.Ct. 608, 611 , 75 L.Ed. 1289 (1931).” Mitchell v. Grant, 416 U.S. 600 , 94 S.Ct. 1895, 1902 , 40 L.Ed.2d 406 (1974). But here the postponement of that opportunity made the determination of liability inadequate. This was not the usual condemnation case where it can be determined after a public project is formulated whether the taking was proper. In the instant case the public purpose for which the land was taken — the elimination of a slum and blighted area — could never be tested in the condemnation action as the Due Process Clause requires since the adoption of the resolution and the ordinance foreclosed any later meaningful challenge. Even if a challenge to the taking were permissible in the state condemnation proceeding, Miss Blankner could not have presented evidence of the condition of the area at the time it was determined to be slum and blighted since she alleges that the area had deteriorated by the time of the trial. Moreover, it would be unfair to place the burden on her to show the condition of two hundred sixty-six buildings over four years prior to the trial and three years prior to notice from the city that the area had been designated as slum and blighted and was to be condemned under urban renewal. The Fourteenth Amendment guarantees that a person shall not be deprived of property without due process of law. “[T]he Constitution does require ‘an opportunity granted at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965) (emphasis added), ‘for [a] hearing appropriate to the nature of the case,’ Mullane v. Central Hanover Tr. Co., supra, 339 U.S. 306, at 313 , 70 S.Ct. 652 at 657 , 94 L.Ed. 865 . The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. In short, ‘within the limits of practicability,’ Id,., 339 U.S. at 318 , 70 S.Ct. 652, at 659 , a State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause.” Boddie v. Connecticut, 401 U.S. 371, 378-379 , 91 S.Ct. 780, 786 , 28 L.Ed.2d 113 (1970). The purported opportunity afforded Miss Blankner to litigate the propriety of the taking of her land in the state *1045 court was merely a mirage; the opportunity disappeared before she was ever required to respond in the condemnation proceeding. Since she was not afforded a meaningful opportunity to contest the designation and taking, she has a right of action under 42 U.S.C. § 1983 for deprivation of her property without due process of law. The plaintiff alleges that beginning in 1959 and continuing to the present the defendants conspired under color of law to deprive her and others of their property without due process. She asserts that the area in question was characterized by the defendants fraudulently and falsely as slum and blighted and that their concerted conspiratorial action denied her and the other owners of their constitutional right to due process. These allegations constitute a classic section 1983 cause of action. In my judgment there was no way that her asserted claim could have been incorporated in the condemnation proceeding. I would reverse the dismissal of Count I except as to the federal defendants. For the reasons stated, I would also reverse Count II and remand with directions that a three-judge court be convened to decide whether the judicial review provided by the Illinois Consolidated Urban Renewal Act violates the Due Process Clause in that it fails to provide notice and a meaningful hearing in which to challenge the determination that the land is slum and blighted. Since I would reverse the dismissal of Count II as not being barred by res ju-dicata, I would allow that part of the case to proceed as a class action except as to the federal defendants who I agree should be dismissed. I concur in the affirmance of the dismissal of Count III since there was no suspect class alleged (see Goldstein v. City of Chicago, 504 F.2d 989 (7th Cir. 1974)). I also concur in the affirmance of Count IV. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461137. Public record. Not legal advice.