Petition for Writ of Certiorari — Starzenski v. City of Elkhart

ae

Supreme Court of the United States

+

October Term, 1995

SOPHIE STARZENSKI, KAZMER STARZENSKI and

GENNIE STARZENSKI,

Petitioners,

vs.

CITY OF ELKHART, RICHARD L. MOORE, STREET

COMMISSIONER, RAYMOND H. MINEGAR, CODE

ENFORCEMENT OFFICER AND PRESIDENT, LEROY

BERRY, JR., CITY OF ELKHART HEARING OFFICER and

HEALTH AND SANITATION COMMISSION,

Respondents.

Petition for Writ of Certiorari to the

Indiana Court of Appeals

PETITION FOR WRIT OF CERTIORARI

, WILLIAM J. COHEN

Counsel of Record

Attorney for Petitioners

221 West Lexington Avenue

Elkhart, Indiana 46516

(219) 293-4511

(800) 3 APPEAL * (800) 5 APPEAL * (800) BRIEF 21

ee

—

QUESTIONS PRESENTED:

l. Whether the minimum constitutional require-

ments for a search and seizure of personal property in a private

home were met when the Respondent, City of Elkhart, entered

the Petitioner's home to abate a nuisance without a judicial

warrant but pursuant to an administrative order.

2. Whether the Respondent’s actions in entering

the Petitioner’s home and seizing personal property violated due

process and was an unconstitutional taking under the Fifth

Amendment.

ii

TABLE OFCONTENTS

Page

Questions Presented ..........cccceceecsecccneees i |

Table of Contents 2... cc ccccccccccccenancsncccnse ii

Table OF CUIAIORS onan ssc ceanats sesuccasctesauben ii

Jurisdiction and Opinions Below ..............-+++- |

United States Constitution ............-. eee eeeeee l

Applicable State Statutes .............0e ee eee ee -" 3

Statementof the Case ............cceceeescececees 3

Constitutional Issue First Raised .............+.-+-: 6

FourthAmendment Violation .............++-e+e055 6

Due Process Violation ...........cccccccceessevces 13

Comelesiom ...oss's ccvcas bicens vabeneeceuatnast eo 15

TABLE OF CITATIONS

Cases Cited:

Camara v. Municipal Court of the City and County of San

Francisco, 387 U.S. S23 CI9GT) cca cecccccesccere 8,9,14

Carson v. State, 144S.E.2d384(1965) ............. 12

iil

Contents

Page

City of Cedar Falls v. Flett, 330 N.W.2d 251 (Iowa 1983)

LNRENSRKAROND DAS On Wen babs nbius 20a bee'ensen 400 12

Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990)

PUSESSOEOUS SUA Rhwe 60-0040 6006 eb ceeded cnnseewd 11,12

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..... 10

Hroch v. Omaha, 4 F.3d 693 (8th Cir. 1993) .......... 11,12

Mennonite Board of Missions v. Adams, 462 U.S. 791

SSSA CUES e SAGO A Pawn oes 60086686 0000s 00 15

Payton v. New York, 445 U.S.573 (1980) ............ 7

Sinermon v. Burch, 494 U.S. 113(1990) ............. 15

Soldal v. Cook County, 11, 506 U.S.56(1992) ......... 6,7, 11

State Ex. Rel. Miller v. Anthony, 647 N.E. 2d 1368 (Ohio

ERAEE NES RENAL GD OSseRNG RCSA LCC CDeORA8 12

Statutes Cited:

Indiana Statute I.C. § 35-7-9-1 etseg. ...........6.5. 3

Indiana Statute I.C. § 36-7-9-16 ................... 3

I Ti wGi cada ta caaeseits eed baecnsas 1

EEE sud WeWsSccnsnsc6eacdesucceces l

iv

Contents

Page

PREBLE ODIGE odin 4k scent aden venste cvasgascaks ]

United States Constitution Cited:

Fourth Amendment ...............++- 1,3,4,6,8, 11, 13,15

Fifth AMmenGMent ........ccsccccecceves i, 1,2,3,7, 13,14

FourteenthAmendment ...........---0+00055 ey ee

APPENDIX

Appendix A — Denial of Petition to Transfer Dated May

ei Peery errr TT: rey etre ery er ry la

Appendix B — Opinion of the Court of Appeals of Indiana

Dated January 10,1996 ..........cccceeeecenees 2a

Appendix C— Judgment of the Elkhart Superior Court II,

State of Indiana Filed November 10,1994 ......... 24a

Appendix D — Indiana Code 36-7-9-16 ...........-. 34a

JURISDICTION AND OPINIONS BELOW

Petitioners, Sophie Starzenski, Kazmer Starzenski and

Genie Starzenski (hereinafter referred to as the “homeowners”),

appeal the decision of the Indiana Court of Appeals dated

January 10, 1996. The decision by the Indiana Court of

Appeals is reported at 659 N.E.2d 1132 (hereinafter referred to

as the “Indiana decision”). The homeowners filed a Petition to

Transfer to the Indiana Supreme Court on February 7, 1996.

The Petition to Transfer was denied on May 31, 1996.

This appeal is being docketed in this Court within ninety

(90) days of the denial of transfer by the Indiana Supreme

Court. The jurisdiction of this Court is invoked under 28

U.S.C. 1257, 28 U.S.C. 2101(c) and 28 U.S.C. 2104.

UNITED STATES CONSTITUTION

This case involves the Fourth, Fifth and Fourteenth

Amendments of the United States Constitution.

The Fourth Amendment provides that:

The right of the people to be secure in

their persons, houses, papers, and effects,

2

against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

The Fifth Amendment Provides that:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.

The Fourteenth Amendment Provides that:

Section J. All persons born or natural-

ized in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive

any person of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

APPLICABLE STATE STATUTES

The Indiana statutes applicable to this case are found in

Indiana Statutes I.C. §§ 35-7-9-1 et seq. and 36-7-9-16.

STATEMENT OF THE CASE

This was an action for injunctive and declaratory relief.

Sophie Starzenski, Kazmer Starzenski and Gennie Starzenski

are the owners as tenants in common of 1015 West Garfield,

Elkhart, Indiana (hereinafter referred to as “the property”). On

February 8, 1993, the Respondent-Defendant, City of Elkhart,

entered the property and began to clean out the inside of the

home. The same day, Petitioners filed a Petition for Temporary

Restraining Order alleging that the Fourth Amendment required

a judicial warrant before the City could enter the property. The

homeowners contend the warrantless entry and seizure of their

personal effects violated the Fourth and Fifth Amendments.

The trial court found that a warrant was not required

under the Fourth Amendment before the City entered Petition-

ers’ house. The trial court further found no violation of Due

Process. The Court of Appeals of Indiana affirmed the trial

court and the Indiana Supreme Court denied transfer.

On October 29, 1992 an administrative hearing was held

in connection with the clean up of the property. The home-

owner appeared in person for the October 29th hearing and

protested, on Fourth Amendment grounds, the City’s right to

enter her house.

The hearing authority declared the home a nuisance and

gave Petitioners fifteen (15) days to bring the property into

compliance with the order or the City would enter her home to

abate the nuisance. In response to the order, in December,

1992, the homeowners cleaned up the outside of the home.

The City failed to notify the homeowners of a further

administrative hearing on February 3, 1993, before the Health

and Sanitation Commission. At this meeting, the Health and

Sanitation Commission voted to go ahead with a clean up of the

inside of property. The City hand-delivered notice of its intent

to enter and clean up the inside of the property to the

Petitioner-homeowner, at 1015 West Garfield. Sophie

; Starzenski got this notice on Friday, February Sth, after the City

Offices were closed.

On February 8, 1993, without a judicial warrant or

writing of any kind, the City broke into the home and began

removing all of the personal effects. When Petitioner, Sophie

Starzenski arrived, she was arrested. The charges were

subsequently dismissed.

The homeowners maintain that the Administrative

Enforcement Authority’s October, 1992 administrative order

could not have served as a valid warrant for the search and

seizure of Petitioners’ property in February, 1993. Petitioners

further contend that the City’s seizure of their personal effects

violated due process and was an unconstitutional taking by the

government.

CONSTITUTIONAL ISSUE FIRST RAISED

At the October 29, 1992 administrative hearing, the

homeowners raised the Fourth Amendment issue. In the trial

court, Petitioner first presented the 4th Amendment, Due

Process and Takings Clause issues.

FOURTH AMENDMENT VIOLATION

The Indiana decision ignores several cases from this

Court which, when read together, clearly mandate that a judicial

warrant is required before the City could enter a private

residence.

Soldal v. Cook County, IL, 506 U.S. 56 (1992), stands

for the proposition that the Fourth Amendment covers seizures

of property by the government.

As this Court articulated in Sol/da/:

A “seizure” of property, we have explained,

occurs when “there is some meaningful inter-

ference with an individual’s possessory interests

in that property.” In addition, we have empha-

sized that “at the very core” of the Fourth

Amendment “stands the nght of a man to retreat

into his own home.” ...As a result of the state

action in this case, the Soldal’s domicile was not

only seized, it literally was carried away, giving

new meaning to the term “mobile home”. We

fail to see how being unceremoniously dispos-

sessed of one’s home in the manner alleged to

have occurred here can be viewed as anything

but a seizure invoking the protection of the

Fourth Amendment.

(Citations omitted) 506 U.S. 56 at 61.

The Indiana decision in this case is in direct conflict with

this Court’s decision in So/da/ Based upon Soldal, the City

violated the Fifth and Fourteenth Amendments of the United

States Constitution when it removed from Petitioners’ home

personal effects like money, family photographs, books,

personal papers, a certificate of deposit and Sophie Starzenski’s

Army discharge papers, all without compensation.

In Payton v. New York, 445 U.S. 573 (1980), this Court

made it clear that a judicial warrant must be obtained before

entering a private residence.

This Court held in Payton that “[tJhe basic principle of

Fourth Amendment law that searches and seizures inside a

8

home without a warrant are presumptively unreasonable... the

Fourth Amendment has drawn a firm line at the entrance to the

house. Absent exigent circumstances, that threshold may not

reasonably be crossed without a warrant”. Id. at 590.

In Camara v. Municipal Court of the City and County

of San Francisco, 387 U.S. 523 (1967), this Court held that the

Fourth Amendment applies to administrative search and

seizures by Health and Safety code inspectors.

In Camara, this Court held that administrative searches

by municipal health and safety officers constituted significant

intrusions upon interests proiected by the Fourth Amendment,

and therefore a judicial warrant would be required before

entering a private home.

One governing principal, justified by history and

current experience, has consistently been fol-

lowed: except in certain carefully defined classes

of cases, a search of private property without

proper consent is ‘unreasonable’ unless it has

been authorized by a valid search warrant.

(citations omitted) ....The right of officers to

thrust themselves into a home is also a grave

concern, not only to the individual but to a

society which chooses to dwell in reasonable

security and freedom from surveillance. When

the nght of privacy must reasonably yield to the

right of search is, as a rule, to be decided by a

judicial officer, not by a policeman or govern-

ment enforcement agent.’

Id. at 529.

This Court stated in Camara the right to be secure in

one’s home is paramount.

...[e]ven the most law-abiding citizen has a very

tangible interest in limiting the circumstances

under which the sanctity of his home may be

broken by official authority, for the possibility of

criminal entry under the guise of official sanc-

tion is a serious threat to personal and family

security.

Id. at 531.

This Court in Camara clearly concluded that, before

health and safety officers can be admitted into one’s home, a

warrant must be obtained. The Indiana decision in this case

conflicts with this Court’s decision in Camara.

In this case, the City entered the homeowners’ property

based upon an order by an administrative “hearing authority”

10

issued months earlier. However, this authority was not a

“neutral and detached magistrate” as defined by this Court in

Coolidge _v. New Hampshire, 403 U.S. 443 (1971). In

Coolidge, this Court invalidated a warrant issued by the State

Attorney General because as an executive officer he lacked the

impartial judgment required to decide whether a search warrant

should be issued. In the case at bar, the “enforcement author-

ity’ and the “hearing authority” were both appointed

administrative officials of the Health and Sanitation Com-

mission. Therefore, an order issued by the former and later

affirmed by the latter could not substitute for a judicial warrant

because it was not issued or reviewed by a “neutral and

detached magistrate” as required by Coolidge.

This Court should grant certiorari in this case not only

to correct this error, but also to resolve the conflict among the

states relative to the proper application of the Constitutional

principals in these type of cases. Homeowners across America,

and especially in Elkhart, Indiana, are at risk for the same kind

1]

of government intrusion suffered by the Petitioners in this case

Public nuisance law is embodied in the common law and is

highly regulated among the states. However, the states are in

conflict as to how government authorities may proceed to abate

public nuisances

While the Indiana Court of Appeals found no constitu-

tional violations in this case, the outcome would have been

different in California. A divided Ninth Circuit held in Conner

v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990), that the

Fourth Amendment was violated by a warrantless entry to seize

junk cars to abate a public nuisance under the authority of a city

council order.

Reaching the opposite result of the Ninth Circuit, the

Eighth Circuit held that So/da/ permitted the destruction of a

private building to abate a nuisance without a warrant as long

as the owner had “fair notice” that the City intended to con-

demn the building. Hroch v. Omaha, 4 F.3d 693 (8th Cir.

1993).

12

In contrast to Indiana and the Eighth Circuit Court in

Hroch, the lowa Supreme Court held that a search warrant was

required to enter private property before seizing personal

property to abate a nuisance. City of Cedar Falls v. Flett, 330

N.W.2d 251 (Iowa 1983).

And unlike Indiana in this case, the Ohio Supreme Court

held that Ohio law “expressly requires that the existence of a

nuisance be admitted or established in a judicial proceeding

prior to the confiscation and sale of personal property”. State

Ex. Rel. Miller v. Anthony, 647 N.E.2d 1368 (Ohio 1995).

Georgia law is in opposition to the Indiana decision in

this case, but is in conformity to the Ninth Circuit in Conner vy.

City of Sania Ana, supra, The Georgia Supreme Court has

held that a warrant issued by a neutral and detached magistrate

based upon probable cause be applied to actions to abate public

nuisances. Carson v. State, 144 S.E.2d 384 (1965).

Often authority to take action against homeowners like

Sophie is taken from ambiguous state statutes originally

13

intended to control the use of property in criminal cases. It is

imperative that this Court act to preserve the Fourth Amend-

ment and clarify its recent rulings on this subject by granting

certiorari in this case to resolve the conflicts among the states

and federal circuits.

DUE PROCESS VIOLATION

In this case, the seizure of the homeowners’ property

implicates both the Fourth Amendment and the Fifth Amend-

ment, as well as the Fourteenth Amendment. The Indiana Court

of Appeals has found that the City’s actions in this case did not

violate the Due Process clause of the United States Constitu-

tion. 659 N.E.2d 1132. That decision violates this Court’s

precedent.

Once the City entered the residence, its actions in

arbitrarily seizing the homeowners’ personal property violated

the Due Process clause of the Fifth and Fourteenth Amend-

ments. The City allowed workers to rake much of the property

Out of the residence without ever examining the contents.

14

There was no training whatsoever for any City employees to

determine what should be saved and what should be thrown

out. This decision was left to the unfettered discretion of these

untrained City employees, a scenario which was condemned by

this Court in Camara. Several items of value, such as Sophie

Starzenski’s military discharge papers and currency were later

recovered by the homeowner among the items thrown out by

City workers. At the time of clean up, Sophie Starzenski

requested that the City workers produce a search warrant and

to stop for a moment to allow her to enter her home to save

family pictures. Both requests were denied. As the trial court

determined, the City’s actions were “calculated to deprive the

Plaintiff [homeowner] of notice and the opportunity to be

present during the clean up”. These actions violate the Fourth

Amendment and the Due Process clause of the Fifth and

Fourteenth Amendments of the United States Constitution.

The homeowners were entitled to a predeprivation

hearing concerning what items should be seized. However,

ee

15

when the Health and Sanitation Department met on February 3,

1993 to discuss this matter, no notice was sent to any of the

homeowners. Sinermon v. Burch, 494 U.S. 113 (1990).

Meaningful notice under Due Process requires that notice be

given which is reasonably calculated to inform someone that the

government is about to act. Mennonite Board of Missions v.

Adams, 462 U.S. 791 (1983). In this case, the City disregarded

these fundamental Due Process requirements of notice and a

predeprivation hearing. The City’s actions contravene this

Court’s decisions in Mennonite and Sinermon.

CONCLUSION

In light of the foregoing Due Process transgressions and

because of the violation of the Fourth Amendment, this Court

16

should grant certiorari and reverse the decision of the Indiana

Court of Appeals.

Respectfully submitted,

4 c — ) s)

al I Fa De, /—

“giitian J. COHEN (3291. 20)

ttorney for: Petitioners

221 West Lexington Avenue

Elkhart, IN 46516

219/293-4511

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APPENDIX A — DENIAL OF PETITION TO TRANSFER

DATED MAY 31, 1996

STATE of INDIANA 217 STATE HOUSE

INDIANAPOLIS, IND 46204

(317) 232-1930

FAX (317) 232-8365

Cause Number

20A05-9502-CV-00056

Lower Court Number:

20D029302CP107

H. JOHN OKESON

CLERK OF THE SUPREME COURT,

COURT OF APPEALS AND TAX COURT

WILLIAM COHEN

221 WEST LEXINGTON AVENUE

ELKHART, IN 46516

Fax Number: 219-522-628]

STARZENSKI, SOPHIE - V- ELKHART, CITY OF, ETAL

You are hereby notified that the SUPREME COURT has on

this 5/31/96 APPELLANT’ S PETITION FOR TRANSEER IS

HEREBY DENIED.

RANDALLT. SHEPARD, CHIEF JUSTICE

ALL JUSTICES CONCUR AA

WITNESS my name and the seal of said Court,

this__ ST day of MAY, 1996

s/ H. John Theson

Clerk Supreme Court, Court of Appeals and Tax Court

2a

APPENDIX B — OPINION OF THE COURT OFAPPEALS

OF INDIANA DATED JANUARY 10, 1996

Sophie STARZENSKI, Kazmer Siarzenski, and Gennie

Starzenski,

Appellants-Plaintiffs,

v.

CITY OF ELKHART, Richard L. Moore, Street

Commissioner, Raymond H. Minegar, Code Enforcement

Officer and President, Leroy Berry, Jr., City of Elkhart

Hearing Officer, and Health and Sanitation Commission,

Appellees-Defendants.

No. 20A05-9502-C V-56.

Court of Appeals of Indiana.

Jan. 10, 1996.

x * *

William J. Cohen, Elkhart, for Appellants.

Paul D. Eash, Elkhart City Attorney, Elkhart, for Appellees.

OPINION

BARTEAU, Judge.

Sophie Starzenski, Kazmer Starzenski and Gennie

3a

Appendix B

Starzenski appeal from the trial court’s order denying the

Starzenskis’s request for a preliminary injunction against the

City of Elkhart (hereinafter, “the City”), which removed trash

and debris from the Starzenskis’s property. We heard oral

argument on November 27, 1995, at the Valparaiso University

School of Law.

ISSUES

We consolidate and restate the issues raised on appeal as:

(1) Whether the Starzenskis may attack an

order issued under Ind.Code 36-7-9-5 and

affirmed under I.C. 36-7-9-7 in a collateral

proceeding.

(2) Whether the City’s action in entering the

Starzenskis’s property and removing trash

and debris violated the Starzenskis’s Due

Process rights under the Fourth and

Fourteenth Amendments to the United States

Constitution.

(3) Whether the City’s action in entering the

Starzenskis’s property and removing trash

and debris violated the Starzenskis’s rights

under the Fifth and Fourteenth Amendments

to the United States Constitution.

(4) Whether the order under which the City

entered the Starzenskis’s property and

removed trash and debris was unenforceable

because it was “too stale.”

4a

Appendix B

FACTS

Sophie, Kazmer and Gennie Starzenski own real estate

located at 1015 West Garfield in Elkhart, Indiana. Sophie

describes herself in her Brief as a “bag lady” who resides in

Elkhart.' Kazmer and Gennie do not live in Elkhart.’

In 1991, the Building Commissioner and Enforcement

Authority (hereinafter, “Enforcement Authority”) of the City of

Elkhart determined that the Starzenskis’s property was in

violation of 1.C. 36-7-9, et seg., and City of Elkhart Ordinance

No. 3897, due to a large accumulation of trash and debris on the

premises. The Enforcement Authority ordered that the property

be cleaned,‘ and a hearing on the matter was set for July 24,

1. There is a house on the property at 1015 West Garfield, although the

City and the Starzenskis dispute how the property is used. Sophie claims that

she lives in the house at that location as her primary residence. The City,

however, disputes this contention and points to the fact that there has been no

water or gas service to the house for many years. For the purpose of this

decision, we presume that the house is Sophie's home.

2. Throughout the proceedings before the Building Commissioner and

Enforcement Authority of the City of Elkhart, Sophie and the City could only

identify the last known address of Kazmer as being in Antarctica, and the

address of Gennie as being in New York. It was not until this matter was

brought before the Elkhart Superior Court that Kazmer and Gennie informed

the City that their current address is in Sequim, Washington.

3. Indiana Code 36-7-9-2 defines “enforcement authority” as the chief

administrative officer of the department authorized by ordinance to administer

1.C. 36-7-9, et seg., which governs the enforcement of building standards.

4. Indiana Code 36-7-9-5(a)(4) authorizes the Enforcement Authority

to issue an order requiring “ removal of trash, debris, or fire hazardous material

in and about the unsafe premises.”

Sa

Appendix B

1991.° In accordance with I.C. 36-7-9-25, notice of the hearing

was sent to, and received by, Sophie at the 1015 West Garfield

address. Notices also were sent to Kazmer and Gennie at their

Antarctica and New York addresses, but the notices were

returned undelivered. Notice was also published in the local

newspaper, The Elkhart Truth, Sophie appeared at the hearing.

Atthe July 24, 1991 hearing, the City offered photographs

and testimony concerning the condition of the property. At the

conclusion of the hearing, the Hearing Authority® determined

that the property was in substantial violation of the building

code, was unsafe, unclean and constituted a nuisance. Supp. R.

665-67. The Hearing Authority affirmed the Enforcement

Authority’s order, and sent a written “order” to Sophie

instructing the Starzenskis toremove “junk and debris” from the

property within 30 days, after which time the City was

authorized to enter the property and take the required action.

The 30-day time period came and went without the

Starzenskis taking any substantial action to ameliorate the

problem. By September, 1992, the Starzenskis had not complied

with the order, and in fact additional debris had collected on the

property. At that time, the exterior of the property was filled with

trash, debris and flammable materials. As visible through

windows and doors, the house was “jam packed” with debris and

garbage.

5. Indiana Code 36-7-9-7, with unrelated exceptions, requires a hearing

be held relative to each order of the Enforcement Authority.

6. Indiana Code 36-7-9-2 defines “hearing authority” as a person or

persons designated as such by the executive of a city or county, or by the

legislative body of atown.

6a

Appendix B

The Enforcement Authority again determined that the house

and premises were unsafe, and on September 23, 1992 executed

a “Notice — Order to Take Action.” Supp.R. 783-84. The Order

to Take Action was sent to Sophie, who signed a return receipt

upon receiving it. Notices of the Order to Take Action were also

sent to Kazmer and Gennie, but were returned undelivered. The

City also published the Order to Take Action required the

removal of trash from the entire premises within 10 days, and

Stated:

If you donot comply with this order, the City

of Elkhart, through its Building Department,

may enter the premises and carry out the

action required by the order and charge you

for the costs of said clean up.

Supp.R. 784. Notice of a hearing was sent to, and received by,

Sophie. Again, notices were sent to Kazmer and Gennie but were

returned undelivered. The second hearing was held on October

29, 1992.

Sophie appeared at the second hearing, offered evidence,

cross-examined witnesses and presented argument. Inspectors

testified and offered photographs of the property, describing the

premises, inside and out, as containing a large amount of debris

and trash.’ Also offered into evidence was a September 24, 1992,

police report, completed when Sophie reported that the house

had been burglarized, in which the investigating officer stated

7. There is no evidence that inspectors actually entered the residence on

the property. The Record shows that the inspectors determined that the house

on the property was packed with debris from seeing trash piled up in the

windows.

7a

Appendix B

that there was no way toenter the house due to piles of materials

stacked to the ceiling. The police officer reported that “[t)he

residence was jammed full, [including] the basement of

everything imaginable. . . .” Supp.R. at 705-06.°

The Hearing Authority again found that the residence was a

nuisance, and again affirmed the order of the Enforcement

Authority that “substantial stuff and things” ° be removed from

the premises. Supp.R. 721-24. The Hearing Authority

specifically instructed Sophie to bring the property into

compliance within 15 days, after which the City was authorized

to enter the property, inside and out, and take the necessary

action. Supp.R. 722-24. The Hearing Authority also expressly

notified Sophie of her right to appeal to the Circuit or Superior

Court, and told her that she must appeal his decision within 10

days. Supp.R. 703, 724. Sophie did not appeal.

Again, the Starzenskis did not comply with the order within

the time allotted. The City sent notice of its intent to enter and

clean the property to Sophie at the 1015 Garfield address on

February 4, 1993. Sophie received this notice on February 5. The

City entered the property on February 8, 1993, toremove debris

and clean. The City found the yard, house, shed and garage

packed with trash. The house was filled with debris, in some

places five feet deep, which completely covered the floor. The

8. The police officer did not enter the residence, as the door was blocked

by debris. The police report reflects that Sophie had to enter the house by

crawling through a window to see if anything had been stolen.

9. Evidently, the Hearing Authority chose to refer to the debris within

and about the house as “substantial stuff and things” because Sophie objected

to the characterization of the material in her house as being trash. Supp.R. 709-

710.

8a

Appendix B

basement also was packed with trash. at some points as high as

the ceiling.

The City’s workers separated and removed the trash, while

items that appeared to be of value were retained in areas of the

house that the workers had cleared away. These items remained

in Sophie's possession. The debris removed from the residence

filled eight dump trucks and was taken toa landfill.

While the City’s workers cleared the debris, the

Starzenskis’s attorney petitioned for, and was awarded, a

temporary restraining order that stopped the trash removal. The

temporary restraining order was presented to the City workers

and prevented the workers from clearing the refuse from the

Starzenskis’s basement. In later seeking a preliminary

injunction, the Starzenskis argued that the City violated their

Due Process rights by enterin g their property without a warrant,

and that the City had taken their possessions without just

compensation. After a hearing, the trial court denied their

request for a preliminary injunction, finding that the City’s

actions did not violate the Constitution.

COLLATERALATTACK

Indiana Code 36-7-9-8 states, in part:

(a) Anaction taken under section 7(d) of this

chapter is subject to review by the circuit or

superior court of the county in which the

unsafe premises are located, on request of:

(1) any person who has a substantial

property interest in the unsafe

premises; or

9a

Appendix B

(2) any person to whom that order

was issued.

(b) A person requesting judicial review

under this section must file a verified

complaint including the findings of fact and

the action taken by the hearing authority. The

complaint must be filed within ten (10) days

after the date when the action was taken.

(c) Anappeal under this section is an action

de novo....

The Starzenskis did not file an appeal under I.C. 36-7-9-8,

despite the fact that the Hearing Authority specifically advised

Sophie of her right to do so.

The law is clear in Indiana that, where a statute sets forth a

specific time period for filing an appeal from an administrative

decision, one must timely file the appeal in order to invoke the

jurisdiction of the court. See Claywell v. Review Bd. of the Ind.

Dep't of Employment & Training Serv. (1994), Ind., 643 N.E.2d

330; Charles A. Beard Classroom Teachers Assoc. v. Bd. of

School Trustees (1995), Ind. App., 646 N.E.2d 988. Here, the

Starzenskis filed no appeal from the order of the Hearing

Authority. Instead, they seek to circumvent the Statutory

requirements governing appeals from the Hearing Authority by

seeking an injunction against the City inacollateral proceeding

brought in the Elkhart Superior Court.

The Starzenskis argue that the time for filing an appeal

under I.C. 36-7-9-8 did not commence because they were never

served with written notice of the Hearing Authority's action

10a

Appendix B

under I.C. 36-7-9-25(a). However, we find that I.C. 36-7-9-25

applies only to notice of orders issued by an enforcement

authority, and does not apply to decisions of a hearing authority.

The statute establishing the procedure through which the

enforcement authority issues orders specifically requires notice

under I.C. 36-7-9-25. I.C. 36-7-9-5(a), (b). The Starzenskis do

not dispute the fact that the enforcement authority provided

notice as required by that statute. Instead, the Starzenskis argue

that, while the Hearing Authority orally notified Sophie of the

contents of his action affirming the order of the Enforcement

Authority at the conclusion of the October, 1992 hearing, the

Hearing Authority did not provide her with written notice of his

decision. The Starzenskis c ntend that the 10-day appeal period

established in I.C. 36-7-9-8 does not commence until they are

served with written notice of the Hearing Authority’s action.

Since they were not given written notice of the October, 1992

action, the Starzenskis conclude that the 10-day appeal period

never commenced.

We disagree, Indiana Code 36-7-9-7 governs notice of

actions of a hearing authority, and does not require written notice

of ahearing authority’s action be provided to the parties. To the

contrary, I.C. 36-7-9-7(g) specifically states:

The record of the findings made an action

taken by the hearing authority at the hearing

shall be available to the public upon request.

However, neither the enforcement authority

nor the hearing authority is required to give

any person notice of the findings and action.

(Emphasis added). Indiana Code 36-7-9 does not require the

lla

Appendix B

hearing authority to serve written notice of its decision on the

parties. The Hearing Authority informed Sophie of his findings

and action at the conclusion of the hearing, and specifically

informed her of the 10-day appeal procedure. This satisfies the

statutory requirements, and triggered the 10-day appeal period.

An appeal from the Hearing Authority’s decision “must be

filed within ten (10) days after the date when the action was

taken.” I.C. 36-7-9-8(b). Indiana Code 36-7-9-7(d) states:

At the conclusion of any hearing at which a

continuance is not granted, the hearing

authority may make findings and take action

to:

(1) affirm the order;

(2) rescind the order; or

(3) modify the order...

(Emphasis added). Thus, the Hearing Authority took action on

the Starzenskis’s case at the conclusion of the October 29, 1992

hearing when it affirmed the Enforcement Authority’s order. The

Starzenskis failed to appeal from that action within the requisite

time period. The Starzenskis have waived their challenge to the

Hearing Authority’s decision and the Enforcement Authority’s

order, and the opportunity to have the court conduct a de novo

review of the evidence under I.C. 36-7-9-8.'"°

10. We also note that, even if the 10-day period established in I.C. 36-7-

9-8 had not run when they filed for a preliminary injunction, the Starzenskis

could still not challenge the order in a collateral proceeding. Their avenue of

recourse would be to file a verified complaint in the Circuit or Superior Court

in accordance with I.C. 36-7-9-8(b).

12a

Appendix B

Nevertheless, even assuming that the Starzenskis may

prosecute their collateral attack, considering the merits of their

claim we find that the trial court did not err in denying their

request for a preliminary injunction. The grant or denial of a

preliminary injunction rests within the sound discretion of the

trial court. Appellate review is limited to a determination of

whether the trial court clearly abused that discretion. Fumo v.

Medica! Group of Michigan City (1992), Ind.App., 590 N.E.2d

1103, reh’g denied, trans. denied: Steenhoven v. College Life

Ins. Co. of America (1984), Ind.App., 458 N.E.2d 661 , reh’g

denied.

DUE PROCESS

The familiar language of the Fourth Amendment to the

United States Constitution establishes the right of persons to be

secure in their persons, houses, papers and effects, and guards

against unreasonable searches and seizures. Absent consent or

exigent circumstances, a private home may not be entered to

conduct a search or effect a seizure without a warrant. See

Steagald v. United States (1981), 451 U.S. 204, 101 S.Ct. 1642,

68 L.Ed.2d 38; Payton v. New York (1980), 445 U.S. 573, 100

S.Ct. 1371, 63 L.Ed.2d 639. The Supreme Court has extended

this protection against unreasonable seizures of property in the

civil context. See Soldal v. Cook County, Ill. (1992), 506 U.S. 56,

113 S. Ct. 538, 121 L.Ed.2d 450. To this end, the Starzenskis

argue that the City was required under the Fourth Amendment to

obtain a warrant issued by the court in order to enter their

property and remove, or “seize,” debris. We do not agree.

The purpose of the warrant requirement is to install due

process safeguards into the procedure through which the

government searches or seizes a person’s property by requiring

13a

Appendix B

that an objective party weigh the interests of the government and

the individual in order to determine that the entry is reasonable.

Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 315-1 6,98S.Ct.

1816, 1822,56L.Ed.2d 305. In this case, the Hearing Authority

considered the evidence presented by the City and the

Starzenskis at a hearing and determined that the City’s intrusion

into the Starzenskis’s property was reasonable and necessary.

The Starzenskis point to the decision of Camara vy.

Municipal Court (1967), 387 U.S. 523, 87 S.Ct. 1727, 18

L.Ed.2d 930, in which the Supreme Court found that a city could

not conduct a warrantless inspection of a residence for

compliance with its housing code. However, in the Marshall

decision, the Supreme Court recognized that a similar inspection

could be conducted upon obtaining a “warrant or its equivalent.”

436 U.S. at 325, 98 S.Ct. at 1827 (emphasis added). As the

Supreme Court reasoned in Camara:

The warrant procedure is designed to

guarantee that a decision to search private

property is justified by a reasonable

government interest. But reasonableness is

still the ultimate standard. If a valid public

interest justifies the intrusion contemplated,

then there is probable cause to issue a

suitably restricted search warrant.

387 U.S. at 539, 87 S.Ct. at 1736.

The Starzenskis are not challenging a warrantless, pre-

hearing inspection of their property. The Record shows that all of

the evidence that the City collected regarding the violation was

gathered by observing the property as it appeared in plain view

l4a

Appendix B

from the street. The contents and condition of the interior of the

house on the property was determined from viewing debris piled

up in windows, and from the report of a police officer who was

summoned to the house by Sophie. Thus, rather than challenging

an evidence-gathering intrusion on their property, the

Starzenskis contend that the City violate their Fourth

Amendment rights by entering their property under an order

affirmed by the Hearing Authority after an evidentiary hearing."

The United States Supreme Court discussed the

requirements of due process in Mathews v. Eldridge (1976), 424

U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Therein the Court

recognized that the requirements of due process may differ in

Various situations, and set forth a balancing test to determine

what is required under the circumstances.

[I]dentification of the specific dictates of due

process generally requires consideration of

three distinct factors: First, the private

interest that will be affected by the official

action: second, the risk of an erroneous

deprivation of such interest through the

procedures used, and the probable value, if

any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and

the fiscal and administrative burdens that the

additional or substitute procedural safeguard

would entail.

424 U.S. at 335, 96 S.Ct. at 903. We recognize that the

11. Indiana Code 36-7-9-16 permits an investigatory inspection of a

building under the authority of a warrant issued by the court.

15a

Appendix B

Starzenskis’s interest in keeping their property free from

government intrusion and seizure is highly significant, as well as

the fact that the City has an important interest in protecting the

health and property of its citizens from nuisances created by

those within the City. However, the procedure set forth in the

Indiana Code, to which the City adhered in proceeding against

the Starzenskis, afforded the Starzenskis considerable due

process protection.

The procedure through which it was determined that the

City’s contemplated intrusion onto the Starzenskis’s property

was reasonable afforded the Starzenskis the opportunity to

challenge the City’s evidence and present their own evidence and

arguments in rebuttal. The City provided the Starzenskis notice

of the alleged violation and of the hearings it held on the matter.

Further, while I.C. 36-7-9-7 only requires that the City hold one

hearing on the Enforcement Authority’s order, the City of

Elkhart held two hearings in this matter. !”

Upon considering the evidence, the Hearing Authority

twice agreed with the Enforcement Authority that the property

was in violation of the Indiana Code and City of Elkhart

ordinance, and affirmed the order requiring the Starzenskis to

clean up the property. The order also authorized the City to enter

the property and remove the debris should the Starzenskis fail to

comply, and the Starzenskis were notified of this fact. The City

entered the Starzenskis property only after the Hearing

Authority held a full hearing, considered the evidence and

12. Under I.C. 36-7-95(d), the Enforcement Authority's order expires

two years after notice of the order is given. Thus, at the time the second notice

of violation was given on September 28, 1992, the order that was issued and

affirmed in 1991 was still enforceable.

l6a

Appendix B

determined that the City’s contemplated intrusion onto the

property was justified by the reasonable government interest in

protecting the health and safety of the community.

Further, we fail to see how the additional due process

safeguard proposed by the Starzenskis — that the order

permitting the removal of the debris be approved by the court

rather than the hearing authority — would afford them any

additional protection. Under the procedure set forth in the

Statute, the Starzenskis could have appealed the Hearing

Authority's finding to the Elkhart County Circuit or Superior

Court, which could then review the matter de novo. The court

could have reviewed the evidence and determined whether the

contemplated intrusion was reasonable. I.C. 36-7-9-8. However,

the Starzenskis did not seek the review of the court under the

statute. That the Starzenskis now claim that only a judge, and not

the Enforcement Authority or the Hearing Authority, has the

constitutional power to authorize the City to enter their property

and remove the debris therefrom is to no avail. The Starzenskis

had the opportunity to bring this matter before the court and

opted not todo so.

Likewise, the Starzenskis cannot prevail on their claim that

the evidence does not support the Hearing Authority’s findin g

that their property was in violation of the law. Consideration of

such an argument would require the examination and weighing

of evidence. The law is clear that the court may only conduct de

novo review when the Hearing Authority’s decision is appealed

under I.C. 36-7-9-8. See I.C. 36-7-9-8(c). The Starzenskis did

not raise this contention on direct appeal, and we will not

consider it now under acollateral attack.

The City’s entry into the Starzenskis’s property and removal

17a

Appendix B

of debris therefrom was done pursuant to an order affirmed after

a full adjudicatory hearing. The City’s actions did not violate the

Starzenskis’s Due Process rights.

JUST COMPENSATION

The Starzenskis also argue that the City seized their

property without compensating them, in violation of the Fifth

and Fourteenth Amendments. Again, we do not agree.

The North Dakota Supreme Court addressed this issue

under very similar facts in City of Minor v. Freelander (1988),

N.D. 426 N.W.2d 556. Therein, the government demolished a

person’s house because it was a nuisance, due to:

[A]n accumulation of garbage, and the

presence of noxious odors caused by an

accumulation of cat excrement and urine

throughout the house.

Id. at557. Rejecting the claimant’s argument that the State had

taken his house without just compensation required under the

Fifth Amendment, the North Dakota Supreme Court reasoned:

[I]t is well settled that the government’s

exercise of its police power to abate a public

nuisance hazardous to the public health,

safety, or welfare does not entitle the

property owner to compensation.

Id. at560 (citing Mugler v. Kansas (1887), 123 U.S.623,8S.Ct.

273, 31 L.Ed. 205; Miller v. Schoene (1928), 276 U.S. 272, 48

S.Ct. 246, 72 L.Ed. 568).

18a

Appendix B

In arecentcase, the United States Supreme Court narrowed

the scope of State regulation of land use by holding that a taking

within the meaning of the Fifth Amendment may occur when the

government acts to abate a condition on property that would not

be actionable as a nuisance under the common law.

Any limitation so severe cannot be newly

legislated or decreed (without

compensation), but must inhere in the title

itself, in the restrictions that background

principles of the State’s law of property and

nuisance already place upon land ownership.

A law or decree with such an effect must, in

other words, do no more than duplicate the

result that could have been achieved in the

courts — by adjacent land owners (or other

uniquely affected persons) under the State's

law of private nuisance, or by the State under

its complementary power to abate nuisances

that affect the public generally, or otherwise.

Lucas v. South Carolina Coastal Council (1992), 505 U.S. 1003,

—, 112 S.Ct. 2886, 2900, 120 L.Ed.2d 798. It is well-settled in

Indiana that cities and towns have the authority to regulate the

use of property to protect the health and safety of their residents.

As we held in City of Gary v. Ruberto (1976), 171 Ind.App. 1,354

N.E.2d 786, 790: “Attempts by the Building Department to

enforce building and safety codes do not amount toa taking:

Cities and towns have power to establish

reasonable regulations for the protection of

lives, health and property of their citizens,

and to enforce compliance with such

19a

Appendix B

regulations by fixing penalties to be imposed

upon violators of the regulations. This

necessarily implies the power to require the

citizen to use his property as not to defeat

such regulations and render them ineffective.

Reasonable regulations are not

unconstitutional merely because they affect

the uses to which private property may be put.

This is not a taking of private property. Itis an

exercise of the police power.”

Id. 354 N.E.2d at 789 (citing Combs v. City of New Albany

(1966), 139 Ind.App. 641, 218 N.E.2d 349; Spitler v. Town of

Munster (1938), 214 Ind. 75, 14L.E.2d579). The city entered the

Starzenskis’s property and removed trash and debris to abate a

nuisance under its police power. Such does not constitute a

taking and the Starzenskis are not entitled to compensation for

the removed materials.

The Starzenskis also contend that the City acted

unreasonably in the manner in which itremoved the debris from

their property. They claim that, while in the process of removing

the debris from their property, the City also threw out items that

had real or sentimental value. They argue that “[mJany of

Sophie's personal effects were destroyed without ever giving her

an opportunity to save them.” Brief of Appellant at 35.

The Record does not support their assertion. The City of

Elkhart dealt with the unsanitary and hazardous condition of the

Starzenskis’s property since 1985. The City repeatedly asked

that the Starzenskis clean the property, and in prior years had

entered the property under its police power and removed debris

from Sophie's yard. There is no evidence in the Record that the

20a

Appendix B

Starzenskis ever acted to substantially remedy the situation

themselves.

Further, Sophie was told numerous times by the City to

remove the trash and debris from her property, inside and out, or

the City would enter and do it for her. The first of these specific

notices was given to her in 1991. Nearly two years later and faced

with no other recourse, the City finally made good on its threats

to enter the Starzenskis’s property and remove the hazard. Even

then, however, the City provided Sophie with three-days notice

before it entered her property. Now, after ignoring all of the

City’s notices and warnings and neglecting to act for the benefit

of themselves and their community, the Starzenskis complain

that the City acted unreasonably by taking items that the

Starzenskis wished to keep. However, we must balance the

Starzenskis’s interest in retaining these certain items against the

City’s interest in abating the nuisance the Starzenskis created.

As is true in other circumstances, the

reasonableness determination will reflect a

“careful balancing of governmental and

private interests. . . .” Assuming forexample

that the officers were acting pursuant to a

court order, and as often would be the case, a

showing of unreasonableness of these facts

would be a laborious task indeed.

Soldal, 506 U.S. at __, 113 S.Ct. at 549 (citations omitted)

(emphasis added).

The Starzenskis could have prevented the City from

removing the selected items that they wished to retain by not

allowing the property to decay into such a hazardous condition,

2la

Appendix B

cleaning up the property themselves, or at a minimum sorting

through the debris themselves and separating the items they

wanted to retain. The Starzenskis left the City with no option but

to abate the nuisance through the exercise of its constitutional

police power. The City acted completely with the confines ofan

order of which the Starzenskis had notice and an adequate

opportunity to comply. In the light of these circumstances, we

cannot say that the trial court’s erroneously determined that the

City did not act unreasonably."

Without citing to the Record, the Starzenskis claim that

there is testimony and evidence that the City’s workers threw

valuables and money out with the rubbish, and may have kept

some of Sophie’s property themselves. Also without citing the

Record or authority, they claim that the City failed to properly

train the workers who conducted the clean up. Under our

standard of review, we cannot reconsider or reweigh evidence

and substitute our judgment for that of the trial court. City

workers testified that they sorted through the debris in the house

and separated out money and items that appeared to be of value.

An inventory reflects the property the City did not discard. R.

676-77. The trial court did not abuse its discretion in denying the

Starzenskis’s petition for a preliminary injunction.

DELAY IN EXECUTION

The Starzenskis also argue that the City could not enforce

13. We note, however, that in its denial of the Starzenskis's request for

a preliminary injunction, the trial court provided the Starzenskis with a

measure of relief by granting them an additional 60 days to remove items they

wish to retain from the property before the City could complete the clean up of

the property.

22a

Appendix B

the Enforcement Authority's order because it was “too stale.” In

support of this, the Starzenskis cite I.C. 35-33-5-7(b), which

generally states that a search warrant issued by a court must be

executed not more than 10 days after the date of issuance.

However, I.C. 35-33-5-7 is not controlling in this matter.

As noted above, the City was not executing a search warrant,

but rather was executing an order to abate a nuisance issued by

the Enforcement Authority and affirmed by the Hearing

Authority. Indiana Code 36-7-9-5 governs the expiration of

orders issued by an enforcement authority and states:

The order expires two (2) years from the day

the notice of the order is given, unless one (1)

or more of the following events occurs within

that two (2) year period:

(1) Acomplaint requesting judicial review

is filed under section 9 of this chapter.

(2) A contract for action required by the

order is let at public bid under section 11 of

this chapter.

(3) Acivil action is filed under section 17 of

this chapter.

The Enforcement Authority provided notice of its order to the

Starzenskis on September 28, 1992.'* The City executed its

14. Sophie signed a certified receipt for the Order to Take Action on that

date.

ile ed ath ts a

23a

Appendix B

action in this matter on February 8, 1993, well within the two-

year period. The order was not “stale” and was enforceable.

AFFIRMED.

SHARPNACK, C.J., concurs.

RUCKER, J., concurs in result.

24a

APPENDIX C — JUDGMENT OF THE ELKHART

SUPERIOR COURT II, STATE OF INDIANA FILED

NOVEMBER 10, 1994

IN THE ELKHART SUPERIOR COURT II

CAUSE 20D029302CP107

STATE OF INDIANA

SS:

COUNTY OF ELKHART

SOPHIE STARZENSKI, KAZMER STARZENSKI & GENNIE

STARZENSKI

VS.

CITY OF ELKHART, HEALTH & SANITATION

COMMISSION, RICHARD MOORE, RAYMOND MINEGAR

& LEROY BERRY

JUDGMENT

This action was filed by the Plaintiffs against the

Defendants, requesting that the Court enjoin the Defendants

from cleaning two (2) parcels of real estate owned by the

Plaintiffs, pursuant to an order issued from an administrative

hearing officer of the City of Elkhart. Anumber of issues have

been raised by the parties during the trial of this litigation and

much evidence, a great deal of which was unnecessary, was

presented to the Court. The parties have filed extensive briefs

and citations of authority supporting their respective positions.

There are two initial points from which the Court’s analysis

Set hae cota lic AN i ay) hp ian Ce A hE Male Ne i aan

ee ee ee

25a

Appendix C

of this action must commence. The initial question is whether or

not Indiana Code annotated section 36-7-9-1, et. Seq., is

constitutional. The Court finds that as a matter of law the statute

in question is, in fact, constitutional. The Court finds that this

particular statute was a proper enactment of the police power of

a municipality as permitted by the Constitution and laws of both

the State of Indiana and the United States of America. Proper

exercise of the police power by a municipality under this statute

is, in fact, constitutional. Gary ex. rel. Department of

Redevelopment v. Roberto (1976) 354 NE2d 786.

Indiana law is replete with administrative actions

established by municipalities which enforce the police power

granted to municipal corporations to provide for the general

public health, safety and welfare. The Court in its review of the

statute in question finds no reason to believe that the Indiana

Unsafe Building Act in any way violates the general grant of

police powers to a municipality if the municipality in question

properly follows the legislative scheme.

The Court would further find that the Indiana Unsafe

Building Act was properly adopted, as indicated by Defendants’

Exhibit AA, by the City of Elkhart, as Ordinance Numbers 3446,

3648, 3787 and 3897. The Court, therefore, concludes that as a

matter of law the Indiana Unsafe Building Act, as evidenced by

the City of Elkhart Ordinances, is, in fact, constitutional and

controls the underlying dispute in this action.

The second portion of the analysis is whether or not the City

properly followed the requirements of both the Code and the

Ordinance. Numerous exhibits have been presented by both

parties, and a careful examination of those exhibits leads to the

inescapable conclusion that the City properly followed the

26a

Appendix C

statutory scheme as required. Appropriate notice was sent to the

Plaintiffs in this cause, including but not limited tocertified mail

to last known addresses and proper publication. The Court finds

that the City properly complied with the requirements of section

36-7-9-5 and later modified that order by permitting an attempt

to clean up by the Plaintiff herein, as allowed by 36-7-9-6.

The Court would further find that, pursuant to the

requirements of 36-7-7, a hearing was held by both

administrative agencies in the City of Elkhart and by Mr. Leroy

Berry, the duly appointed and confirmed hearing officer for the

City. At the hearing conducted by Mr. Berry, one of the Plaintiffs

in this cause appeared, presented evidence, cross-examined

witnesses and argued extensively her position.

Pursuant to an agreement by the parties, the Court has

reviewed the tape recordings of the hearing in question, and finds

that the hearing officer made clear, concise and specific finding

of facts, and, further, clearly advised the Plaintiff of her right to

areview and appeal, pursuant to the requirements of section 36-

7-9-8. Pursuant to that section, had the appropriate action been

timely taken, this Court or any Circuit or Superior Court within

the County would have had the ability to conducta de novo action

and affirm, modify or reverse the action taken by the hearing

authority.

The Plaintiff, however, despite clear advisement of her

appeal rights, chose not to timely contest the hearing officer’s

findings. Despite the final and effective order issued by the

hearing officer on July 24, 1991, the City delayed taking action

to enforce that order, and, in fact, despite there being no

requirement for a further hearing, conducted an additional

hearing on October 21, 1992. Once again, at this hearing, one of

27a

Appendix C

the Plaintiffs appeared, presented evidence, cross-examined

various witnesses and received an adverse decision. At this

hearing, the hearing officer once again properly advised the

Plaintiff of the contents of the order and of her appeal rights.

Once again, as before, the Plaintiff chose not to proceed

under the law. Approximately three (3) months after the issuance

of Mr. Berry’s order, orally stated to all parties, a written copy

was delivered to one of the Plaintiffs and the Defendants.

Subsequent thereto, the City commenced acleanup of one of the

parcels of real estate in question.

The cleanup in question was conducted without the issuance

of a search warrant by a magistrate. As the Court has previously

indicated herein, neither the Indiana Unsafe Building Act nor

case law requires the issuance of a warrant before a municipality

can enforce an administrative order properly issued. Various

portions of the parties’ briefs have addressed the requirement for

an inspection warrant as found in both case law and portions of

the statute. While the arguments make for interesting reading,

they entirely miss the point. The action conducted by the City of

Elkhart was not an inspection, and, for the reasons previously

this cause, the Court finds that no warrant was required.

During the course of cleanup, one of the Plaintiffs appeared

on the scene, became somewhat abusive to City employees and

generally disrupted the progress of the City’s attempt to enforce

the administrative order. Subsequent thereto, the Plaintiff

obtained a temporary restraining order, and the cleanup was

halted pending hearing in this cause.

Initially, the City argues the Plaintiffs had an adequate

remedy at law, which was waived by their seeking of injunctive

28a

Appendix C

relief. Plaintiffs must prove that no adequate legal remedy exists

before they’re entitled to injunctive relief. Lafayette Beverage

Distributors, Inc. v. Anheiser Busch, Inc., (1982) 545 F.Sup.

1137. Further, the Plaintiffs should be required to show that they

will suffer significant injury unless an injunction issues. Porter

Memorial Hospital v. Malak (1985) 484 NE2d 54. The Court has

no question that the second requirement has been met, based

upon the evidence.

If the City of Elkhart continues with its cleanup ofthe real

estate in question, enormous amounts of personal property

owned by the Plaintiffs will be removed and/or destroyed. Some

of the items testified to by the Plaintiff in this cause are unique

and irreplaceable, and no adequate amount of monetary damages

can recompense the Plaintiffs for their destruction. The Court

would further find, based upon that analysis, that no adequate

remedy at law exists which would protect the Plaintiffs from the

needless and/or wanton destruction of irreplaceable

memorabilia. The Court would, therefore, conclude that as a

matter of law that filing of a request for injunctive relief was

proper, and that the Plaintiffs did not effectuate a waiver by the

filing of this action.

The Plaintiffs then logically contend that Court should

conduct ade novo hearing and reverse the finding of the hearing

officer. The Court finds that in this contention the Plaintiffs are

clearly in error. The Plaintiffs have clearly waived their right to

a de novo hearing as aresult of their failure to timely appeal the

decision of the hearing officer. The filing of an appeal through

the Circuit or Superior Court is procedural and specific time

limits apply.

The Plaintiffs in this cause did not timely appeal Mr. Berry’s

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Appendix C

decision, no matter which particular date one chooses to consider

the final order. At the bare minimum, an excess of 90 days

elapsed after the issuance of the order and communication of

appeal rights to the Plaintiffs. The statute mandates an appeal in

this cause take place and be filed within ten therefore, clearly

waive theirright to appeal Mr. Berry’s decision.

The Court, therefore, finds it is without authority to modify,

repeal or remand the administrative officer’s decision, which

must stand unchallenged in this cause. Whether or not Mr.

Berry’s decision was subject to repeal or reversal may only be

determined on a consideration of whether or not that particular

decision was clearly illegal or violated a constitutional right. For

the reasons cited above, the Court finds that all of the provisions

of the Unsafe Building Act having been met, that the decision

must stand unaltered.

The Court could, having found the order issued by the

hearing officer to have not been properly appealed and to be

valid, make no further comment on this cause. However, in light

of the volatile nature of these proceedings, the Court feels

compelled to comment on the procedure exercised by the

Defendants in this cause, and to make certain requirements prior

to the cleanup, which the Court finds to be authorized by Mr.

Berry’s order.

This case is replete with a litany of efforts by the City of

Elkhart, over a period of approximately thirteen (13) years to

force the Plaintiffs in this cause to clean up property determined

to be substandard. The Court both congratulates and criticizes

the City for its patience in this matter. While the City is to be

commended for extending to the property owner every

reasonable delay toclean the parcel in question, it would appear

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Appendix C

that the City in delaying enforcement of cleanup orders issued

with respect to this property over the years, contributed greatly

to the present controversy.

It is not unreasonable that the Plaintiff’s believed that the

City, based upon past practice, would take no affirmative action

to enforce valid orders in its possession. The Court can only

empathize with the Plaintiffs, when at least one of them

discovered that the City, contrary to past practice, suddenly

chose to act without clear notice of the intention to do so. The

Court finds it not unreasonable to believe that Plaintiffs expected

notice and a reasonable time to clean or remove items from the

property prior to the City’s action.

It is inconceivable to this Court that the City would not be

able to locate at least one of the Plaintiffs personally to provide

her with advance notice of the cleanup. It is clear from the

evidence presented that the method in which the City chose to

initiate the cleanup was calculated to deprive the Plaintiff of

notice and the opportunity to be present during the cleanup; and,

as aresult of this direct effort, a confrontational situation was

created.

The Court further has reviewed carefully the videotape

presented by the City, with respect to the method in which the

cleanup was conducted. The Court finds the actions of the City

employees during the cleanup to be reprehensible. The City’s

own exhibit discloses crude and unnecessary comments being

made for the camera by various City employees. The Court

cannot help but comment on the testimony presented by various

cleanup personnel, which the City, by its own exhibit, shows to

be false. At least two (2), and possibly more, of the City

employees testified that they carefully examined each item of

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Appendix C

perscnal property before disposing of the same. The videotape

presented by the City clearly shows this testimony to be false.

Specifically, on the videotape two (2) of the witnesses in the front

room appear to shovel items of property into a dumpster without

examining the same. The Court can only believe that the same

type of activity took place throughout the house.

In the same manner also, the Court is astounded to find that

a number of City employees when asked the amount of time

needed to clean the entire property, gave precisely and exactly

the same answer. It is incomprehensible to the Court how these

witnesses, without being coached, could testify to a precise

estimate of time tocleanup the property. This is particularly true

when various of those witnesses testified that they did not see all

areas of the home. This Court is offended by the carefully

calculated and contrived testimony of these witnesses,

obviously given in an attempt to support their position.

Additionally, the Court notes from the testimony presented

in this cause that one City employee, who ‘estified to the alleged

theft of various items of currency and personal property, was

suspended subsequentto his testimony. The testimony presented

was that the suspension of that employee was not related to his

testimony, but was imposed because of his failure to wear an

appropriate City uniform, which is required at all times. Once

again, the City is hoisted by its own petard, when the videotape

was examined. If all of the employees in the videotape are

wearing City uniforms, the Court must comment that the City

dress is eclectic at best.

Throughout the course of this litigation, it has become

apparent that testimony presented by various employees of the

City of Elkhart was contrived and programmed. While the

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Appendix C

administrative order is effective, based upon the analysis

presented, the Court finds that, in light of the mannerin which the

evidence was presented, it would be required to set certain

specific and strict guidelines on the future cleanup of the real

estate in question, in order to prevent activity as viewed on the

videotape.

The Court, therefore, denies Plaintiffs’ request for a

permanent injunction for the cleanup of the two parcels of real

estate in question. The Court, however, orders that prior to

commencing the cleanup of the properties in question, the

Defendants provide to Plaintiffs specific notice of the date of the

commencement of cleanup. The Court further orders that the

cleanup not be commenced until at least sixty (60) days after

delivery of actual notice to the Plaintiffs in this cause.

The Plaintiffs are permitted to move those items of personal

property from the parcels of real estate in question prior to the

cleanup. The Court reserves the right to extend the delay of the

cleanup to permit the Plaintiffs to remove those items, upon a

reasonable showing that the removal could not be effectuate

within the sixty (60) day period. The Court, however, indicates

a delay of the cleanup will not be granted without a showing of a

reasonable effort to comply with this order by the Plaintiffs.

The Court further finds that there exists no other justiciable

issue before this Court and, therefore, finds this order to be a final

and appealable judgment in all respects. Should the Plaintiffs

choose to appeal the entry of this order, the Court would indicate

to the parties that a bond would be required and that a hearing

would be held on the amount of bond necessary. Judgment.

Notice ordered.

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Appendix C

DATED NOVEMBER 10, 1994.

s/ Stephen Platt

STEPHEN E. PLATT, JUDGE

ELKHART SUPERIOR COURT II

COPYTO: WILLIAM COHEN

PAULEASH

34a

APPENDIX D — INDIANA CODE 36-7-9-16

Indiana Code 36-7-9-16 Inspection warrants

Sec. 16. (a) If the owners or those in possession of a

building refuse inspection, an inspection officer of the

enforcement authority may obtain an inspection warrant from

any court of record in the county in which the building is located

in order to determine if the building is an unsafe building. The

court shall issue the warrant subject to the following conditions:

(1) The person seeking the warrant must

establish that the building to be searched or

inspected is to be searched or inspected as

part of a legally authorized program of

inspection that naturally includes the

building, or that there is probable cause for

believing that acondition, object, activity, or

circumstance legally justifies a search or

inspection of that building.

(2) An affidavit establishing one (1) of the

grounds described in subdivision (1) must be

signed under oath or affirmation by the

affiant.

(3) The court must examine the affiant under

oath or affirmation to verify the accuracy of

the affidavit.

(b) The warrant is valid only if it:

(1) is signed by the judge of the court and

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Appendix D

bears the date and hour of its issuance above

that signature, with a notation that the

warrant is valid for only forty-eight (48)

hours after its issuance,

(2) Describes (either directly or by reference

to the affidavit) the building where the search

or inspection is to occur so that the executor

of the warrant and owner or the possessor of

the building can reasonably determine what

property the warrant authorizes an inspection

of;

(3) indicates the conditions, objects,

activities, or circumstances that the

inspection is intended to check or reveal; and

(4) is attached to the affidavit required to be

made in order to obtain the warrant.

(c) A warrant issued under this section is valid for only

forty-eight (48) hours after its issuance, must be personally

served upon the owner or possessor of the building, and must be

returned within seventy-two (72) hours. As added by Acts 198],

P.L. 309, SEC. 28.