# County of Adams v. Hibbard > Supreme Court of Colorado · June 17, 1996 · 20 Brief Times Rptr. 952 URL: https://www.frixlaw.com/law-library/cases/9557475 ## Case - **Full name:** COUNTY OF ADAMS, State of Colorado; Robert J. Loew and Darrel L. Matteson, Petitioners, v. Dean HIBBARD and H.D. Garrison, Respondents - **Court:** Supreme Court of Colorado - **Decided:** June 17, 1996 - **Citations:** 20 Brief Times Rptr. 952; 918 P.2d 212; 1996 Colo. LEXIS 196; 1996 WL 328638 - **Precedential status:** Published - **Opinion:** Concurring in part by Mullarkey - **Judges:** Scott, Mullarkey, Kourlis - **Cited by:** 14 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/9557475 ## Opinion text Justice MULLARKEY concurring in part and dissenting in part: I concur in the majority’s partial reversal of the court of appeals’ judgment. I respectfully dissent, however, from the majority’s holding that the individual defendants, Robert J. Loew and Darrel L. Matteson, violated the procedural and substantive due process rights of the plaintiffs, Dean Hibbard and H.D. Garrison. The plaintiffs brought this action in the district court alleging an unlawful taking of their property and the deprivation of their due process rights. The takings claim has been abandoned in this court and the majority rightly does not address that claim. The due process claim, as pled in the complaint, did not specify whether the plaintiffs were asserting a procedural due process claim or a *222 substantive due process claim or both. The trial court, relying on the plaintiffs’ written final argument, interpreted the due process claim as procedural. My review of the plaintiffs’ final argument shows the plaintiffs argued only that they had not had proper notice and an opportunity to be heard. Thus, I agree with the trial court that only a procedural due process claim was asserted. 1 On the merits, the trial court found that the plaintiffs had waived any procedural due process claim by failing to timely perfect their appeal of the Administrative Law Judge’s (ALJ’s) decision. The plaintiffs’ attempt to appeal pursuant to C.R.C.P. 106(a)(4) was dismissed as untimely and that decision was not appealed. Despite the trial court’s ruling, the majority concludes that the individual defendants “deliberately deprived plaintiffs of their procedural and substantive due process rights.” Maj. op. at 221. I disagree. In my view, the trial court properly disposed of the procedural due process claim when it found that there was no violation. Having failed to present a substantive due process claim at trial, the plaintiffs are foreclosed from asserting such claim on appeal. Assuming, arguendo, that the substantive due process claim is properly before us, the trial court’s factual findings do not support the majority’s conclusion that the individual defendants violated the plaintiffs’ substantive due process rights. Turning first to the procedural due process claim, the law is clear that a procedural due process claim may not be brought pursuant to 42 U.S.C. section 1983 (1988) if there is an adequate state remedy. Zinermon v. Burch, 494 U.S. 113 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990). Here the trial court correctly concluded that the plaintiffs had no procedural due process claim because they failed to pursue their remedies under C.R.C.P. 106(a)(4). Second, a substantive due process claim cannot be raised for the first time on appeal. “It is axiomatic that in any appellate proceeding this court may consider only issues that have actually been determined by another court or agency and have been properly presented for our consideration.” Committee for Better Health Care for All Colo. Citizens v. Meyer, 830 P.2d 884, 888 (Colo.1992) (citing Dempsey v. Romer, 825 P.2d 44 , 57 n. 13 (Colo.1992); Colgan v. State, Dept. of Revenue, Motor Vehicle Div., 623 P.2d 871, 874 (Colo.1981)). Third, assuming the claim is properly before us, the plaintiff cannot prevail on substantive due process because the trial court’s factual findings do not support that claim. “If appellant’s § 1983 claim is construed to be based on an alleged violation of substantive due process, then the claim must be based either on a violation of an explicit constitutional guarantee (e.g., a fourth amendment illegal seizure violation) or on behavior by a state actor that shocks the conscience.” Braley v. City of Pontiac, 906 F.2d 220, 225 (6th Cir.1990)(emphasis supplied). 2 See also Haag v. Cuyahoga County, 619 F.Supp. 262, 278 (N.D.Ohio 1985) (a substantive due process claim may be pursued under section 1983 only if the conduct rises to the level of a constitutional tort, i.e., it shocks the conscience), aff'd without op., 798 F.2d 1414 (6th Cir.1986). The trial court’s findings do not support the conclusion that the individual defendants’ conduct shocks the conscience. It found that the individual defendants’ conduct was willful but not egregious. Such findings do not equate to a showing that their conduct shocks the conscience. *223 The pivotal issue at trial was whether the ALJ’s order authorized the destruction of a garage shop owned by Hibbard and used as a residence by Garrison. In addition to the fire-damaged building, the ALJ order identified the following as blight or blight factors: junk, loose trash, a semi-trailer, fence posts, barricades, tires, wood, bricks, cones, metal junk, piles of asphalt, acetylene' tank, rusted containers, cinder blocks, trash, rusted trailers, an inoperable and unsightly van, an inoperable pickup truck, old and unsightly out-buildings, an old and rusted motor cart, and parts of machinery and appliances. In its oral ruling, the trial court found the phrase “old and unsightly outbuildings” to be ambiguous and its meaning could not be determined from the four corners of the ALJ’s order. To determine whether the garage shop was covered by that phrase, the court resorted to extrinsic evidence, including the transcript of the administrative hearing. In its written order, the trial court reached the following conclusion: The question of whether the administrative law judge’s order authorized the destruction of this garage shop building was debatable, because of the ambiguities in the order; however, since the Court finds and concludes that Defendant Matteson knew the garage shop building was not covered and so advised Defendant Loew, Defendants’ conduct was willful. Although it found the individual defendants’ conduct willful, the trial court also found that their conduct was not so egregious as to support an award of punitive damages. In reaching its conclusions, the trial court found a number of extenuating circumstances. It initially found that the ALJ, not the county, had drafted the order and that the order was ambiguous. The court emphasized that the individual defendants’ conduct should be evaluated in light of the fact that the overall property was in very bad condition and described the property as: “cluttered, messy, unattractive, ill-kempt [sic], [and] deteriorated.” Testimony at trial indicated that the garage shop, where plaintiff Garrison was living, had no running water or sewer, and raw sewage had been dumped behind the building. Some of the windows had been boarded up. Photographs used as exhibits at trial show that the garage shop was similar in appearance to the fire-damaged building and other out-buildings. According to the court, the garage shop was not easily distinguishable from other property slated for destruction. In the court’s words, it was not a question of “one eyesore in the midst of a manicured garden [that] can be easily singled out for surgical excision.” After the blight clearance process had begun, it was halted by a temporary restraining order obtained by the plaintiffs. The county and individual defendants complied with the court order and the garage shop was not demolished until after the order had been dissolved due to the failure of plaintiffs to file a complaint. The trial court also noted that the plaintiffs were not present when the razing occurred. It found: [T]his lack of guidance, assistance and objection makes it much less apparent in the Court’s mind that Defendants acted in an overly egregious manner. Apparently Defendant [sic] Garrison did arrive prior to the time the ‘garage shop’ budding which he occupied as an ad hoc residence was razed, but refused to remove his belongings, expressing his preference to force the county (presumably via a lawsuit) to pay him for his belongings. Thus, the trial court’s finding that the individual defendants’ conduct was not egregious was based on its assessment of the ALJ’s order, the general disrepair of the property including the garage shop, and plaintiffs’ actions. The trial court’s conclusion that the individual defendants’ conduct was willful was based on its review of the administrative hearing transcript. It cites to pages of the transcript as showing that “it is uncontrover-tible” that removal of the garage shop was not authorized by the ALJ’s order. Since that transcript is not in the record before this court, we cannot review it. Whatever occurred at that hearing cannot be a basis for this court to evaluate the actions of the individual defendants. *224 To support its finding of a section 1983 violation, however, the majority states that the “individual defendants improperly razed buildings [sic] under the belief that a lawsuit would be ‘cheaper’ than according plaintiffs the benefit of the process contemplated under Ordinance No. 3.” Maj. op. at 221. This statement is based on the testimony at trial of Lieutenant Ronald Blasko of the Adams County Sheriff’s Department. Blasko testified that he had overheard the following conversation between the two individual defendants regarding the garage shop building: Well, I overheard Mr. Loew — in fact he pointed at a budding and asked Mr. Matte-son if that building was on the order; and Mr. Matteson replied that it wasn’t. Mr. Loew had instructed him to tear it down, stating “It would be cheaper if he sued me.” Both Matteson and Loew testified at trial and denied that Loew had made the lawsuit statement attributed to him by Blasko. Matteson testified, “That statement was never made.” Loew gave similar testimony. Both Matteson and Loew acknowledged that they had discussed being sued over this matter and that the discussion was within Blasko’s hearing. Matteson, who had had several previous encounters with Hibbard in regard to this and other properties, testified that he told Loew that Hibbard frequently threatened to sue Matteson “and have everything I owned.” Loew testified that Blasko asked him if he, Blasko, would be sued. Loew said he explained to Blasko that the matter already had been in litigation with respect to the temporary restraining order. Loew also stated: and I tried to allay his [Blasko’s] fears about being personally sued. I said, “We are more likely to be sued than you will be.” The trial court did not resolve the factual dispute about Loew’s alleged lawsuit statement. As noted above, although the trial court found that Matteson told Loew that the garage shop was not within the scope of the ALJ’s order, it also found that the individual defendants’ conduct was not sufficiently egregious to support an award of punitive damages against them. The latter conclusion appears to be an implicit rejection by the trial court of Blasko’s testimony on the lawsuit statement. Despite the lack of trial court findings on this contested issue of fact, the majority credits Blasko’s allegation and makes it the key to its finding of section 1983 liability. In my view, it is improper for this court to resolve a disputed issue of fact by crediting the testimony of one witness over that of another. Making a credibility determination in a trial is not the function of an appellate court. “The credibility of witnesses, the sufficiency, probative effect, and weight of evidence, and the inferences and conclusions to be drawn therefrom, are all matters within the province of the trial court and will not be disturbed on review unless clearly erroneous.” O’Connor v. Rolfes, 899 P.2d 227, 230 (Colo.App.1994). Based on the trial court’s findings of fact, the individual defendants’ conduct cannot fairly be said to shock the conscience. As the trial court stated in finding that the conduct was willful but not egregious, “all of the proceedings here had been contested, tempers had flared, and the decision to proceed was made while the demolition crew was on-site and acting.” The individual defendants acted under the heat of the moment, and while their conduct was wrongful, it does not shock the conscience. I am aware that section 1983 violations sometimes have been found when local officials have defied a court order. See, e.g., Robinson v. City of Seattle, 119 Wash.2d 34 , 830 P.2d 318 cert. denied, 506 U.S. 1028 , 113 S.Ct. 676 , 121 L.Ed.2d 598 (1992). But as the Robinson case indicates, a finding of liability under section 1983 in such circumstances occurs only in the most extreme cases. For example, in the Robinson case, Seattle city officials continued to enforce a housing demolition license fee even though that requirement had been held unlawful in two lengthy series of cases in which Seattle was a party. I have found no case in which city officials have been held liable under section 1983 for violation of an administrative order. *225 Thus, I would conclude that the plaintiffs have not proven a constitutional tort. It may be that the plaintiffs can pursue common law torts such as trespass or conversion against the individual defendants, but, in my view, they have no claim against these defendants under 42 U.S.C. section 1983 . For these reasons, I concur in part and dissent in part from the majority’s opinion. KOURLIS, J., joins in the partial concurrence and dissent. . The court of appeals did not address the nature of the due process claim and stated only in conclusory terms that the action of the individual defendants was "a taking of property without compensation and without due process of law.” Hibbard v. County of Adams, 900 P.2d 1254, 1264 (Colo.App.1994). . In Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir.1995), the First Circuit Court of Appeals explained that a plaintiff may bring a substantive due process claim under two theories. The first requires the demonstration of deprivation of an identified liberty or property interest protected by the Fourteenth Amendment. Id. at 531 . The second does not require proof of the deprivation of a specific property or liberty interest; rather the plaintiff must prove that the state’s conduct “shocks the conscience.” Id. (quoting Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205, 209-10 , 96 L.Ed. 183 (1952)). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9557475. Public record. Not legal advice.