Appendix — Loew v. Hibbard

Supreme Court brief1996

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IN THE

Supreme Court Of The United States

OCTOBER 1996 TERM

ROBERT J. LOEW AND DARREL L. MATTESON,

Petitioners,

DEAN HIBBARD AND H.D. GARRISON,

Respondents.

PETITIONERS’ APPENDIX

Alan Epstein

David R. Brougham

of HALL & EVANS, L.L.C.

1200 - 17th Street, Suite 1700

Denver, Colorado 80202

(303) 628-3300

Attorneys For Petitioners

Robert J. Loew and

Darrel L. Matteson

TABLE OF CONTENTS

PAGE

Trial Court’s Written Order and Judgment......... la

Colorado Court of Appeal’s Opinion ............ 8a

Colorado Supreme Court’s Opinion ............. 28a

—— as CS Sei OE SOND EI IE LN, GIOTTO TIE POE

DISTRICT COURT, ADAMS COUNTY, COLORADO

CIVIL ACTION NUMBER 89 CV 2876, DIVISION A

ORDER AND JUDGMENT

DEAN HIBBARD AND H. D. GARRISON,

Plaintiff,

vs.

COUNTY OF ADAMS, STATE OF COLORADO, et. al,

Defendants.

This matter came for trial on December 3, 1991. The Court

heard testimony and has received written closing arguments. For

reasons set forth in a separate order dated April 14, 1992, the

Court has recused itself as to the constitutionality issue raised

herein and has asked the Chief Judge to assign another judge to

decide that issue. The Court finds no impediment to retaining

this matter for decision on the merits exclusive of the constitu-

tionality issue.

The issues remaining for decision then, are as follows:

1. Whether the actions of Defendants in abating various

items of equipment, property and improvements upon Plaintiffs’

property constitute an impermissible deprivation of civil rights

under 42 USC 1983.

2. Whether Defendants actions constitute a taking without

compensation, in the nature of an inverse condemnation.

3. As a subset or variant of the above, the Court must first

determine whether Defendants’ actions are justified by reliance

or administrative law Judge Ciancio’s order of October 20, 1989.

In the Court’s view, this issue must be decided first, as the ruling

on this issue will inform the rulings on the first two issues.

The administrative law judge conducted a full-fledged hear-

ing on the blight abatement proceeding on October 20, 1991, and

heard testimony and admitted evidence. By inference, the Court

finds that he departed from his past practice and drafted his own

findings, conclusions and order, rather than signing off on one

submitted by the County, which ultimately prevailed. The

County’s case was presented by Defendant Matteson. The proce-

dure is an important consideration in the Court’s analysis. In the

Court’s view the actions of Defendants, especially Matteson and

Loew, might be viewed as substantially more culpable if they, or

one of them, drafted the order and then oversaw a substantial

departure from the authority they had requested and received.

Under that state of affairs Issue 3, supra, might be restated as

“Did the Defendants ask for and receive authority to do specific

acts and then wilfully depart from what they asked for in the

abatement process?” While the distinction may appear subtle, in

the Court’s view it is likely to be much easier to know and

understand what a self-drafted order allows, as compared to

discerning the scope and intent of a judge-drafted order.

Several contextual comments seem important. First, the

wisdom or desirability of the blight ordinance is not at issue; nor

is the County’s zoning code open for scrutiny on these issues. It is

unquestionable that county governments have the power to

enact land use controls. Many citizens complain that unfettered

use of one’s property is the American way. Such has not been the

case since Euclid v. Ambler Realty, Co. ,272 U.S. 365, 71 L.ed. 303,

47 Sup. Ct. Rep. 114 (1926). While the Court may not be entirely

in sympathy with Draconian cleanup efforts in locations which

have a long history of so-called “blight,” unless a constitutional

challenge to the ordinance (to be dealt with separately) is suc-

cessful the County may reasonably regulate uses such as the

plaintiffs’.

Second, the testimony and exhibits have made it clear to the

Court that the overall state of the subject property was cluttered,

messy, unattractive, ill-kempt, deteriorated, and devoid of any

charm, appeal or utility to any potential observer except the

Plaintiffs. This overall state of affairs provides a background

against which to judge the acts of the defendants. It seems obvi-

ous that one eyesore in the midst of a manicured garden can be

easily singled out for surgical excision; that same eyesore placed

in the middle of a dump would not cry out for nicety of selection

in terms of remedies.

Third, it is important to note that no representative of

Plaintiffs was present to identify items which were not subject to

the order, to remove mobile property items or to remove person-

alty from the buildings which were razed. Setting aside the due

process (lack of notice) concerns raised by plaintiffs, the Court

finds that this 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 Garrison did

arrive prior to the time the “garage shop” building 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.

Fourth, it is important to note that Plaintiffs had obtained a

temporary restraining order to prevent the demolition, but that

the TRO had been dissolved when Plaintiffs failed to timely file a

complaint. Defendants did not proceed with demolition until the

temporary restraining order was lifted. In this same context,

Plaintiffs failed to perfect an appeal as to the administrative law

judge’s order. Plaintiffs had likewise previously failed to obtain

an appropriate building permit to repair the partially destroyed

former service station building.

Plaintiffs complain (Plaintiffs Final Argument, P. 6) that

the blight proceeding deprived them of procedural due process

rights. In the Court’s conclusion, plaintiffs have waived their

right to pursue those issues here by their failure to timely perfect

their appeal. The only issues which are cognizable here relate to

Defendant’s conduct at Plaintiffs’ property when the abatement

procedures took place.

The Court finds and concludes from a review of the evi-

dence and the administrative law judge’s order that the “garage

shop” building razed by the County was not covered by the

order. The County has objected to the admission and considera-

tion of the transcript of the administrative law hearing, but has

presented no plausible reason for its exclusion. In a context such

as the one here, where an order is susceptible of more than one

interpretation, the Court can think of no item which can be of

greater utility than the transcript, so that the Court can deter-

mine what was covered in testimony and what was requested by

the County. Since Defendant Matteson was present, the tran-

script would best show what information was available to him

and (through him) to Defendant County in interpreting the

judge’s order. The Transcript (Plaintiff’s Exhibit R) is accord-

ingly admitted and considered by the Court for all purposes.

Without the transcript, a preponderance of the evidence tends to

show that the garage shop located building toward the rear of the

property and destroyed by the Defendants was not contemplated

in the County’s request or the Court’s order: with the transcript

added to the evidence, it is incontrovertible. See 10-20-89 hear-

ing transcript. p. 19, ]. 1-14; p. 23, 1. 20-26; p. 49, 1. 7-12; p. 33, 1.9

to p. 56, 1. 16; p. 56, 1. 23 to p. 57, 1. 3.

There is obviously one point of ambiguity in the transcript,

noted at p. 57, |. 13 & 14. The fact that the Court’s language

attempted to be selective, rather than all-inclusive, supports the

above conclusion. The Court finds that the vague statement

about “other buildings not in compliance with C-4 zoning,” when

viewed in the context of the detailed testimony about specific

items and the Court’s obvious intent to clean up confusions

(p. 57, 1. 15-18) means that this ambiguity lends little support to

the County’s position. The Court therefore finds and concludes

that the destruction of this building was not authorized by the

administrative law judge’s order and that the County’s actions

constituted a taking for which Plaintiff Hibbard is legally entitled

to be compensated.

The Court rejects Defendants’ contention that Plaintiffs

are foreclosed from compensation because they did not pursue

an inverse condemnation claim. The actions in question do not

fall within the ambit of the County’s limited condemnation pow-

ers, and the property was not, and could not, have been taken for

actual use by the County; nor was its use and ownership by

Plaintiffs pre-empted for some public good. The property was

simply out-and-out destroyed. Plaintiffs cannot be constrained,

under these peculiar circumstances, to pursue inverse condem-

nation. See also, Judge Bookman’s Order of 12-28-90.

Plaintiff Hibbard’s other property at this location falls

within the ambit of the order, with the exception of the below

ground tank and pump facilities. Given the massive and perva-

sive nature of the blight, the Court finds and concludes that these

items were damaged as an inevitable result of the permissible

cleanup activities and methods, which the Court finds to have been

reasonable in method and scope except as otherwise noted

herein. The Court’s further finding and conclusion is that the

County cannot be held to an unreasonably high standard of care

and that Defendants’ acts as to the underground tank and pump

equipment constituted neither a taking nor a deprivation of

Plaintiffs’ civil rights. The means employed by the County were

reasonable, and the incidental damage to this equipment seems

to the Court to have been unavoidable. The Court found Plain-

tiffs’ testimony regarding the utility and value of the items (as

with much of the Plaintiffs’ testimony) to have been totally

devoid of creditability. The Court concludes that Plaintiffs are

not entitled to compensation for damage to this property.

As to Plaintiff Garrison, since his property was in the build-

ing improperly razed by the County, the Court finds and con-

cludes that there was also a taking of his property and that he is

entitled to compensation therefor. The Court finds Plaintiff Gar-

rison’s testimony as to the value of this property to be largely

incredible and finds that the fair market value of this property

was approximately $3,500.

Plaintiff Hibbard is entitled to be compensated for the

taking of his garage building, which the Court finds to have a fair

market value of $10,000.

As to Plaintiffs’ claims under 42 USC 1983, it is the Court’s

finding that, as to Plaintiffs’ garage shop building and contents,

the actions of Defendants were a willful deprivation of Plaintiffs’

civil rights in contravention of 42 USC 1983. 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 Loewe,

Defendants’ conduct was willful. It must be noted that all of the

proceedings here had been contested, tempers had flared, and

that the decision to proceed was made while the demolition crew

was on-site and acting. For these reasons, and the others previ-

ously set forth, the Court finds and concludes that Defendants’

acts have not been proven beyond a reasonable doubt to be of

the egregious nature necessary to support a finding in favor of

Plaintiffs as to exemplary damages; only that Plaintiffs have

proved by a preponderance of the evidence that they were

deprived of their civil rights without due process of law by

Defendants who were acting willfully and under color of their

official authority to the limited extent set forth above. Judgment

will therefore enter in favor of Plaintiff Hibbard for $10,000, and

for Plaintiff Garrison for $3,500, jointly and severally against

Defendants Adams County, Loewe and Matteson. Plaintiffs

have shown no different damages under 42 USC 1983 than those

proven under a condemnation theory, and damages will be

cumulated.

Attorneys fees issues are reserved for further ruling.

DATED at Brighton, Colorado on April 14, 1992.

BY THE COURT:

/s/ MICHAEL A. OBERMEYER

Michael A. Obermeyer

District Court Judge

CERTIFICATE OF MAILING

I certify that on April 14, 1992, copies of the foregoing

Order were deposited in the United States Mails at Brighton,

Colorado, postage prepaid, addressed to:

Darrell L. Campbell

1120 Lincoln Street, Ste. 1000

Denver, CO 80203

Gilbert Goldstein

1 DTC, Suite 1150

3251 DTC Parkway

Englewood, CO 80111

Thomas Merrigan

6755 East 72nd Averue

Commerce City, CO 80022

/s/ MARY C. DELGADO

Mary C. Delgado

Clerk—Division A

No. 93CA0593

COLORADO COURT OF APPEALS

November 3, 1994

DEAN HIBBARD AND H.D. GARRISON,

Plaintiffs-Appellees and Cross-Appellants,

COUNTY OF ADAMS, STATE OF COLORADO;

ROBERT J. LOEW; AND DARREL L. MATTESON,

Defendants-Appellants and Cross-Appellees.

APPEAL FROM THE DISTRICT COURT OF ADAMS COUNTY

HONORABLE MICHAEL A. OBERMEYER, JUDGE

HONORABLE CINDY H. BRUNER, JUDGE

No. 89CV2876

Division I

Opinion by JUDGE CRISWELL

Metzger and Kapelke, JJ., concur

JUDGMENT AFFIRMED IN PART, REVERSED

IN PART, VACATED IN PART, AND

CAUSE REMANDED WITH DIRECTIONS

Gilbert Goldstein, Denver, Colorado; Darrel L. Campbell, Den-

ver, Colorado, for Plaintiffs-Appellees and Cross-Appellants

Gehler & Merrigan, Thomas E. Merrigan, Paula B. Gerlach,

Commerce City, Colorado, for Defendants-Appellants and

Cross-Appellees

Defendants, County of Adams; Robert J. Loew, the county

attorney; and his assistant, Darrel L. Matteson, appeal from the

judgment of the trial court awarding damages and attorney fees

under 42 U.S.C. §§ 1983 and 1988 (1982) to plaintiffs, Dean

Hibbard and H.D. Garrison, for violation of their civil rights.

Plaintiffs cross-appeal from the trial court’s rejection of their

claim that an ordinance of the County was invalid and from that

court’s award of damages and attorney fees. We affirm in part,

reverse in part, vacate the award of fees, and remand the cause

for further proceedings.

In 1988, the County adopted an ordinance (Ordinance

No. 3) designed to eliminate “blighted areas” in the county. It

contains two substantive provisions that are pertinent here.

First, Section III of Ordinance No. 3 provides, in part, that:

The exteriors of all commercial establishments or mul-

tifamily buildings . . . shall be maintained so as to

present a neat and orderly appearance. (emphasis

supplied)

In addition, Section V provides that a commercial estab-

lishment or a multifamily building must be “kept free of junk,

trash, rubbish, debris or refuse of any kind.”

Failure of the owner of any property to comply with these

requirements is declared to be a “cause of blight” and is subject

to enforcement proceedings under the ordinance.

In the case of a violation of the ordinance, a notice is given

to the owner of the property, and the property must be brought

into compliance. If the offending materials are not removed, a

hearing is held, and an Administrative Law Judge (ALJ) must

make findings as to whether causes of blight exist; if the ALJ

finds that such exist and should be removed, an administrative

order is issued commanding the owner to remove the causes of

the blight.

Plaintiff Hibbard owned real property within the county

upon which were located two commercial buildings, one of which

had been damaged by fire in 1983 and had not been repaired.

10a

Plaintiff Garrison was living in the other building in which he

maintained various items of personal property.

In 1989, the County, alleging that the property was being

maintained in violation of Ordinance No. 3, gave notice to plain-

tiffs and a hearing was held before an ALJ, who issued a written

decision finding that certain “blight factors” existed on the prop-

erty, as follows:

A. a building which is vacant and was the subject of a

fire in 1983 which pursuant to Section III of Ordinance

No. 3, County of Adams, is not a building that is being

maintained so as to present a neat and orderly

appearance ...

B. Pursuant to Section V, this Court finds that junk,

louse trash, a semi-trailer, fence posts, barricades, tires,

wood, bricks, cones, metal junk, piles of asphalt, acety-

lene 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 are all blighting factors on

this particular property. (emphasis supplied)

The order also required all materials, “except the building

referred to above,” removed by a specified date and the “forego-

ing blighted building which was burned in the fire in 1983” to be

removed a few days later. If plaintiffs did not comply with this

order as directed, the County was authorized to enter upon the

premises, to remove the items described, and to charge the costs

of such removal as a lien against the property.

Plaintiffs failed to comply with the ALJ’s order, and the

County proceeded to “clean-up” the property. In doing so, it

destroyed both the fire damaged building and the other building

on the property. In addition, it removed and destroyed plaintiff

Garrison’s personal property inside the second building and

damaged an underground tank, pump, and well that were on the

property.

lla

Plaintiffs then instituted this action, asserting several claims

against the defendants. They sought a declaratory judgment that,

to the extent that Ordinance No. 3 authorized the destruction of

a building because it did not present a “neat and orderly”

appearance, the same was invalid because not authorized by any

Colorado statute and because it was unconstitutionally vague. In

addition, they sought a joint and several judgment for damages

against all defendants based upon the destruction of the second

building and of the items of personalty within that building and

for the damage to the underground tank, pump, and well.

The trial court upheld the validity of Ordinance No. 3.

However, it determined that the ALJ’s order did not authorize

the destruction of the second building nor the removal of the

personalty within it. It also found that the individual defendants

knew that the ALJ’s order did not apply to such items, but

willfully ordered their destruction in violation of plaintiffs’ con-

stitutional rights. It entered a judgment for damages against all

three defendants.

However, the court refused to grant any award for the

damages caused to the tank, pump, and well because it deter-

mined that such damage was a necessary incident to the destruc-

tion and removal of the fire damaged building and the other

items described in the ALJ’s order, which were properly autho-

rized to be destroyed or removed.

I. THE VALIDITY OF ORDINANCE NO. 3.

Plaintiffs argue that, to the extent that Ordinance No. 3

purports to authorize the destruction of any building through

administrative proceedings, it is invalid because the County has

not been authorized to adopt any such regulation. They also

argue that, in any case, because the only standard for destruction

is whether the building presents a “neat and orderly” appear-

ance, the ordinance is unconstitutionally vague. Because we

agree with-plaintiffs’ first assertion, we need not reach their

second.

12a

In Colorado, a county possesses no inherent powers.

Rather, it has only that “regulatory authority ‘expressly con-

ferred upon [it] by the constitution and statutes, and such inci-

dental implied powers as are reasonably necessary to carry out

such express powers.’” Board of County Commissioners v.

Bowen/Edwards Associates, Inc., 830 P.2d 1045, 1055 (Colo. 1992)

(alteration in original) (quoting Board of County Commission-

ers v. Love, 172 Colo. 121, 470 P.2d 861 (1970)). It necessarily

follows, therefore, that “a county ordinance or regulation

exceeding the authority granted by the state is invalid.” Cimarron

Corp. v. Board of County Commissioners, 193 Colo. 164, 168, 563

P.2d 946, 949 (1977).

The question, therefore, is whether, at the time of the

events giving rise to this litigation, any statute authorized a

county to require the removal of a building because it is not

“neat and orderly.” We conclude that there existed no such

statute.

Ordinance No. 3 itself recites that it was adopted pursuant

to the authority granted to the County by § 30-15-401, et seq.,

C.R.S. (1994 Cum. Supp.). In addition, in oral argument before

us, the County argued that the statute authorizing it to adopt a

zoning resolution provided it with the requisite authority. We

disagree.

At the time of the ordinance’s adoption, what is now

§ 30-15-401(1)(a), C.R.S. (1994 Cum. Supp.), granted authority

for a county to:

compel the removal of rubbish, including trash, junk,

and garbage, from lots and tracts of land within the

county . . . (emphasis supplied)

It also authorized the County, upon notice and failure of

the property owner to remove such items, to accomplish the

removal and to assess the costs therefor against the property, to

be coliected as ad valorem taxes are collected.

l3a

This statute also authorizes a county to compel the removal

of weeds and brush, but it requires application to a county or

district court for the issuance of an administrative entry and

seizure warrant in order for the county to remove the same.

Section 30-15-401(1)(a)(I.5), C.R.S. (1994 Cum. Supp.).

This statute does not define the terms “rubbish,” “trash,”

“junk,” or “garbage,” but nothing within the statute evidences an

intent to have these items carry other than their ordinary mean-

ings. And, such terms generally refer to worn or used items,

waste having relatively little or no value, or refuse from food

preparation. See Webster's Third New International Dictionary

935, 1227, 1983, and 2421 (1976).

In 1990, after the occurrence of the events relevant here,

the General Assembly added § 30-15-401(I)(q), C.R.S. (1994

Cum. Supp.), which authorizes the removal of “any building or

structure” presenting a substantial danger to the public health,

safet , or welfare, or which is dilapidated and unused by the

owner, or which is uninhabited because of deterioration or

decay, if its condition constitutes a fire hazard or subjects the

adjoining property to danger of damage by storm, soil erosion, or

rodent infestation, or any building which becomes a place fre-

quented by trespassers and transients seeking a temporary hide-

out or shelter.

That amendment is not applicable here. Nevertheless, the

General Assembly’s use of the term “building or structure” in

the same statutory section under consideration is evidence that it

did not intend for the general terms rubbish, trash, junk, or

garbage to include buildings or structures.

We conclude, then, that, to the extent that Ordinance No. 3

contemplates the removal of junk, trash, garbage, and rubbish, as

those terms are generally understood, the ordinance was autho-

rized by the then existing provisions of § 30-15-401(1). However,

to the extent that the ordinance purported to allow an ALJ to

issue an order compelling the removal of any building or struc-

ture, it was not so authorized.

l4a

Further, we hold that “old or unsightly outbuildings” can-

not, by those facts alone, be considered to be junk, trash, debris,

or rubbish of any kind. Here, the ALJ made no determination

that either building had become so deteriorated that it no longer

constituted a “building” and had become merely junk, debris, or

rubbish. The ALJ’s order was based solely upon his finding that

the fire-damaged building did not present a “neat and orderly”

appearance.

Likewise, we conclude that none of the statutes authorizing

a county to adopt zoning regulations, see § 30-28-111, et seq.,

C.R.S. (1986 Repl. Vol. 12A), provided support for this aspect of

Ordinance No. 3.

Even if we assume that a county may, in the exercise of its

zoning power, require the removal of buildings that are not

maintained in a “neat and orderly” manner, the violation of a

zoning regulation is to be enforced by the withholding of build-

ing permits, § 30-28-114, C.R.S. (1986 Repl. Vol. 12A), by crimi-

nal prosecution, § 30-28-124(1), or by an appropriate civil action

in the district court, § 30-28-124(2), C.R.S. (1986 Repl.

Vol. 12A). As defendants conceded during oral argument before

us, the statutes authorizing the County to zone do not authorize

it to destroy buildings not in conformance with a zoning require-

ment by means of a local administrative order.

We conclude, therefore, that, to the extent that Ordinance

No. 3 purports to authorize the County to destroy and remove

buildings that do not present a “neat and orderly” appearance,

the same was unauthorized and invalid. That ordinance, there-

fore, could not provide any justification for the County’s destruc-

tion of either of the buildings destroyed by its agents.

Il. THE COUNTY’S LIABILITY UNDER § 1983.

42 U.S.C. §1983 authorizes the award of damages to any

person who is deprived of any right, privilege, or immunity

secured by the Constitution or laws by any “person” acting

“under color of any statute, ordinance, regulation, custom, or

lSa

usage” of any state or local government. And, under this statute,

a local government, such as the County, is a “person” subject to

suit. Monell v. Department of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Wigger v. McKee, 809 P.2d

999 (Colo. App. 1990).

However, such an entity is not liable under the doctrine of

respondeat superior. Monell v. Department of Social Services,

supra. It is liable only to the extent that the deprivation of rights

results from the implementation of a policy, whether formal or

informal, adopted by the entity. See Pembaur v. Cincinnati, 475

U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

Ordinance No. 3 is an express, formal “policy” adopted by

the County to require the removal or destruction of buildings not

“neat and orderly.” Hence, to the extent that the actions of the

County’s agents in destroying the two buildings were authorized

by Ordinance No. 3, the County is liable for any damages result-

ing from that destruction. Such destruction, under the circum-

stances, would constitute a “taking” of plaintiffs’ property

without compensation and without due process of law. See Srb v.

Board of County Commissioners, 43 Colo. App. 14, 601 P.2d 1082

(1979).

The ALJ’s order, issued pursuant to Ordinance No. 3,

authorized the destruction of the fire damaged building. And,

plaintiffs seek no damages because of the County’s destruction

of this building itself. However, because Ordinance No. 3 pro-

vided no proper authority for such action, the County is liable for

any damage to plaintiff's other property, such as the under-

ground tank, pump, and well, if such damage resulted from the

County’s unauthorized action.

The trial court determined that destruction of the other

building was not authorized by the ALJ’s order. Yet, before us

the County argues that it was so authorized. If so, that second

building was also destroyed pursuant to Ordinance No. 3, and its

16a

destruction was wrongful. In such circumstances, the County

would be liable for the destruction of this building to the same

extent that it is liable for damages to plaintiff’s other property,

such as the underground tank, pump, and well, if such damage

resulted from the County’s unauthorized action.

We need not decide this issue, however. Rather, we con-

clude that, even if the ALJ’s order did not authorize the destruc-

tion of the other building, the County is still liable for any

resulting damages.

An action of a local government’s officer may be under-

taken pursuant to a “policy” of a local government even though

that policy is not reduced to a formal statement. Indeed, a local

official may establish policy by his or her decision in a single

instance, if he or she is, in fact, a “policy maker,” i.e., if he or she

has the final word upon the subject. Pembaur v. Cincinnati, supra.

See also St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99

L.Ed.2d 107 (1988); Givan v. Colorado Springs, 876 P.2d 27 (Colo.

App. 1993) (cert. granted).

Thus, in Pembaur, a county was held liable for the unlawful

search of a physician’s office when the sheriff requested the legal

advice of the county attorney, and the county attorney advised

the sheriff to proceed with the search. There, the county attor-

ney’s determination of the right of the county to search consti-

tuted the establishment of a “policy” of the county with respect

to that particular transaction.

The county attorney in Colorado is a constitutional officer,

appointed by the county commissioners. Colo. Const. art. XIV,

§ 8; §30-11-118, C.R.S. (1986 Repl. Vol. 12A). The duties and

responsibilities of the office were described by our supreme

court in Medberry v. People, 107 Colo. 15, 19, 108 P.2d 243, 245

(1940), as follows:

17a

Under the statutes of Colorado a county attorney is

employed primarily as the legal advisor of the county

commissioners in whose discretion reposes the power

of appointment . . . Jn certain matters he advises other

county administrative officers, appears for the county in

cases involving dependent, neglected and delinquent

children, in lunacy inquests and, when directed by the

county commissioners, in civil litigation to which the

county is a party or in which it is interested. (emphasis

supplied)

Further, if, as defendants argue here, the adoption of Ordi-

nance No. 3 was an exercise of the County’s zoning authority, the

county attorney is specifically invested, by statute, with the

responsibility of enforcing its provisions. See § 30-28-124(2),

C.R.S. (1986 Repl. Vol. 12A). Indeed, in asserting that their

actions here were subject to an absolute immunity, the individual

defendants affirmatively allege that one of the responsibilities of

their offices is to enforce the provisions of Ordinance No. 3.

The two individual defendants were present on plaintiffs’

property during the clean-up activities; they were, as the trial

court found, the highest ranking county officials present. While

there, the two individuals, one of whom was present representing

the County throughout the previous administrative hearing,

interpreted the ALJ’s order as authorizing the destruction of the

second building and so advised the county officials who were in

charge of the clean-up operation.

With respect to the meaning and breadth of the ALJ’s

order, we are convinced that the interpretation placed upon it by

the county attorney and his assistant constituted the adoption of

an official county policy. Indeed, the County has specifically

adopted that interpretation in these proceedings and has urged

its correctness both in the trial court and before us. See

St. Louis v. Praprotnik, supra (entity is liable for civil rights viola-

tion if it adopts policy of subordinate).

18a

Given these circumstances, therefore, we conclude that the

County is liable-for any damages resulting to plaintiffs from the

destruction of either building.

Il. THE INDIVIDUALS’ LIABILITY

Whether an individual public employee is a “policy-

maker,” while important in determining the liability of a govern-

mental unit under § 1983, is irrelevant in determining his or her

own liability under that statute. This is so because, irrespective of

the level of responsibility, a government official is personally

liable under §1983 for an abuse of the power of office which

results in the deprivation of a constitutional right. This does not

mean, of course, that an act of simple negligence by an official

will give rise to such liability. Daniels v. Williams, 474 U.S. 327,

106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

Here, the trial court determined, with record support, that,

in light of the events at the hearing before the ALJ, it was

“uncontrovertible” that the ALJ’s order did not authorize the

destruction of the second building and that the two individual

defendants knew that its destruction was unauthorized. Never-

theless, the court found, the two individuals “willfully” inter-

preted the order as allowing destruction of the second building

and so advised the other county employees at the scene. Hence,

the court entered a judgment against the two individual defend-

ants for the damages sustained as a result of the destruction of

the second building and its contents.

The individual defendants assert that the trial court erred in

several ways in entering this judgment against them. We disagree

with each of their assertions.

The two attorneys first assert that they were sued only in

their “official” capacities.

However, in no place in any of the pleadings do plaintiffs

describe the two defendants as being sued only in their official

19a

capacities. Rather, from the beginning, plaintiffs sought to

recover damages against all defendants, personally, and on a

joint and several basis. Such a claim can be asserted against these

two defendants only in their personal capacities. See Kentucky v.

Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

The allegation in plaintiffs’ complaint that the two individu-

als were acting, “not as individuals, but under the color and

pretense of the ordinances of the County,” was an allegation that

the defendants were acting under color of law and not simply as

individuals—a necessary condition to impose personal liability

under § 1983. See Screws v. United States, 325 U.S. 91, 65 S.Ct.

1031, 89 L.Ed. 1495 (1945) (an individual pursuing purely private

ends without use of governmental authority does not act “under

color of law’’).

Finally, because the County itself was subject to suit here,

nothing was to be accomplished by suing the individuals only in

their official capacities. See Brandon v. Holt, 469 U.S. 464,

105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Oten v. Colorado Board of

Social Services, 738 P.2d 37 (Colo. App. 1987) (official Capacity

suit is used when entity, such as the state, is itself not subject to

suit under § 1983).

The individual defendants also assert that the doctrine of

prosecutorial immunity provides them an absolute immunity for

their actions here.

In actions under § 1983, there exists an absolute immunity

for persons exercising the prosecutorial function, i.e., for those

performing acts that are “intimately associated with the judicial

phase of the criminal process.” Jmbler v. Pachtman, 424 U.S. 409,

430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128, 143 (1976). However, in

determining the existence of such immunity, a “functional” test

is employed—the court must look “to the nature of the function

performed, not the identity of the actor who performed it.”

Buckley v. Fitzsimmons, 509 U.S. ‘ , 113 S.Ct. 2606,

20a

2613, 125 L.Ed.2d 209, 223 (1993) (neither preindictment inves-

tigation activities nor post-indictment public statements are part

of the prosecutorial function).

The giving of legal advice to law enforcement agents is not a

part of the prosecutorial function because it is not intimately

associated with the judicial process. Burns v. Reed, 500 U.S. 478,

111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); Higgs v. District Court,

713 P.2d 840 (Colo. 1985). See also Awai v. Kotin, 872 P.2d 1332

(Colo. App. 1993).

Here, the acts charged against the individuals consist of

interpreting the ALJ’s order and of providing legal advice to

other county officials based upon that interpretation. Hence,

they are not entitled to absolute immunity with respect to such

acts.

Every public official is entitled to assert a qualified immu-

nity in a damage action under § 1983. Such an official is, there-

fore, not liable for his or her actions unless those actions violate

“clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

US. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982).

And, to be “clearly established” for this purpose, the nature of

the right must be sufficiently clear that a reasonable official

would know that what he or she is doing violates that right.

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d

523 (1987); Abouzan v. Foster, 795 P.2d 1386 (Colo. App. 1990).

The existence of a qualified immunity, therefore, will depend

upon objective factors. See Higgs v. District Court, supra.

Here, then, the questions presented are whether the indi-

viduals’ interpretation of the order as authorizing the destruc-

tion of the second building and its contents was objectively

reasonable and, if not, whether they reasonably should have

known that a county’s destruction of private property under the

circumstances would constitute a “taking” of plaintiffs’ property

without compensation or due process of law.

2la

While the trial court did not specifically refer to this issue in

passing upon the individual defendants’ liability, that court spe-

cifically found that one of them knew that the order did not cover

the second building and that he so informed the other individual.

Consequently, the trial court, on supporting evidence, found that

these two defendants acted “willfully” in destroying the second

building.

Further, as attorneys for the County, the individual defend-

ants were charged with the knowledge that a county’s deliberate

destruction of private property, if not lawfully authorized, consti-

tutes a taking of property without compensation and without due

process of law. See Srb v. Board of County Commissioners, supra.

Hence, the record supports the judgment entered against

the individual defendants for the damages sustained by plaintiffs

as a result of the destruction of the second building and its

contents.

However, because the trial court considered the destruction

of the fire damaged building to be proper, it did not consider the

individuals’ liability for any damage that might have resulted

from its destruction. We conclude that they cannot be liable for

any such damage because it was, at the time the ALJ issued his

order and the individuals interpreted it, by no means “clearly

established” that Ordinance No. 3 was partially invalid. On the

contrary, the district court concluded that the County was autho-

rized to adopt such an ordinance. Accordingly, the individuals

enjoy a qualified immunity from liability for damages flowing

from the ordinance’s partial invalidity. See Rappa v. New Castle

County, 18 F.3d 1043 (3rd Cir. 1994).

The individuals finally assert that the trial court’s consider-

ation of the transcript of the hearing before the ALJ was error.

However, if an order is subject to some ambiguity, the

record of the proceedings in which it was entered may be

22a

reviewed so as to interpret it. See Hinderlider v. Canon Heights

Irrigation & Reservoir Co., 117 Colo. 183, 189, 185 P.2d 325, 327

(1947) (when construction of a court decree is necessary, it must

be construed “in light of the facts which gave it birth’’); Security

Mutual Casualty Co. v. Century Casualty Co., 621 F.2d 1062

(10th Cir. 1980) (in construing ambiguous decree, court may

examine entire record).

Moreover, the assistant county attorney here was present

throughout the hearing before the ALJ, and his knowledge of

those proceedings was relevant upon the question of the objec-

tive reasonableness of his actions.

Further, this transcript was not hearsay, as defendants con-

tend. It was offered to demonstrate the nature of the evidence

upon which the ALJ relied in entering his order, not for the truth

of any testimony. Even if it was hearsay, it was admissible as a

business record of a public agency. See CRE 803(6) and (8);

Kriegel v. Industrial Commission, 702 P.2d 290 (Colo. App. 1985).

The trial court, therefore, committed no error in consider-

ing the transcript of the hearing before the ALJ.

IV. Damages

Plaintiffs assert that the court erred in determining the

amount of actual damages sustained by them. While we disagree

that the court’s award was erroneous, we do agree that, in light of

our conclusion that Ordinance No. 3 is partially invalid, the

cause must be remanded to the trial court for its further

consideration.

Generally, the measure of damages to be applied in a §1983

action is to be determined from the principles developed from

the common law of torts. Memphis Community School District v.

Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986).

Because defendants’ actions here resulted in the depriva-

tion of plaintiffs’ real and personal property, these actions were

23a

similar to a conversion of the property or to its “taking” through

the exercise of the power of eminent domain. In either case, the

measure of damages would be the same, ie., the fair market

value of the property at the time. of the taking, any damage

caused to the remaining property, and pre-trial interest from the

date of the taking to the date of judgment. See Culpepper v. Pearl

Street Building, Inc., 877 P.2d 877 (Colo. 1994) (conversion);

Herring v. Platte River Power Authority, 728 P.2d 709 (Colo. 1986)

(inverse condemnation).

This was the measure of damages applied by the trial court.

And, although the amount of damages awarded by that court was

not supported by any specific testimony, that amount was within

the range of values established by the evidence and was, there-

fore, properly supported. See Town of Red Cliff v. Reider, 851 P.2d

282 (Colo. App. 1993).

However, the trial court refused to enter any award for the

damage to the underground tank, pump, and well, finding that

the damages to these items occurred during the clean-up and

removal of the items that were authorized to be removed by the

ALJ’s order. It is not possible to determine from the trial court’s

findings whether the damage to these items occurred during the

destruction and removal of the fire-damaged building or during

the course of the removal of the various items of personal

property.

If the damage occurred as a result of destruction and

removal of the fire damaged building, that damage would be

compensable because it would have occurred during the course

of an illegal action. Likewise, the same might be true if the

damage occurred as a result of the County’s removal of weeds

and brush. See § 30-15-401(1)(a)(I.5). Hence, we must remand

the cause to the trial court for it to determine the amount of

damages, if any, sustained by plaintiffs in the course of the

destruction and removal of the fire damaged building. If such

damage occurred, only the County and not the individual

defendants would be liable therefor.

24a

The parties agree that punitive damages cannot be assessed

against the County. City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). They may be

awarded against the individuals, however, if their actions demon-

strate reckless or callous disregard of, or indifference to, the

rights or safety of others. Smith v. Wade, 461 U.S. 30, 103 S.Ct.

1625, 75 L.Ed.2d 632 (1983). Nevertheless, an award of punitive

damages lies within the discretion of the fact finder; they “are

never awarded as of right, no matter how egregious the defen-

dant’s conduct.” Smith v. Wade, 461 U.S. at 52, 103 S.Ct. at 1638,

75 L.Ed.2d at 648-49 (emphasis supplied).

Here, the trial court determined that, because plaintiffs

refused to cooperate with the County in attempting to remove

items of personal property and assumed an adversarial position

that resulted in a flaring of tempers, the defendants’ conduct was

not so egregious, given the circumstances, as to merit an award

of exemplary damages. We cannot say that the trial court abused

its discretion in reaching this determination.

V. Attorney fees.

42 U.S.C. § 1988 (1982) authorizes an award of attorney

fees to the “prevailing party” in an action under § 1983. In order

to be considered a prevailing party under this statute, all that is

required is that the plaintiff succeed upon a significant issue

presented by the litigation and achieve some of the benefits

sought in the lawsuit (whether the same is achieved through

adjudication or settlement). Hensley v. Eckerhart, 461 U.S. 424,

103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). See International Society for

Krishna Consciousness, Inc. v. Colorado State Fair & Industrial

Exposition Commission, 673 P.2d 368 (Colo. 1983) (recognizing

rule); Overland Development Co. v. Marston Slopes Development

Co., 773 P.2d 1112 (Colo. App. 1989) (applying same rule to

award of fees under private contract).

25a

If a plaintiff “prevails” under the Hensley standard, that

plaintiff is entitled to an award of fees, absent some special

circumstances which would render such an award unjust. Smith v.

Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).

Under the Hensley standard, plaintiffs were the prevailing

parties. Hence, they are entitled to an award of fees under § 1988

for the prosecution of their claims.

Defendants assert, however, that plaintiffs cannot be

awarded fees here because an award of fees can only be made if

the client is legally obligated to pay fees. They conclude, then,

that, because counsel represented plaintiffs under an oral con-

tingency fee arrangement, which was not reduced to writing as

required by C.R.C.P. ch. 23.3, Rule 4, fees cannot be awarded.

We reject this assertion.

Under C.R.C.P. ch. 23.3, Rule 7, a contingency fee agree-

ment is one under which the fee payable is based upon a “certain

agreed percentage or amount that is payable only upon attaining a

recovery, regardless of the time and effort involved.” (emphasis

supplied)

Here, it was stipulated that plaintiffs and their counsel

initially agreed that counsel would be paid at an hourly rate. As

the litigation continued, however, it became apparent that plain-

tiffs would be unable to pay those fees. Counsel nevertheless

continued their representation in anticipation that an award of

fees would be made under § 1988, and if not, counsel was to treat

the cause as a pro bono effort.

Such an agreement is, by definition, not a contingent fee

agreement under the rule and, therefore, need not be in writing.

Further, we reject defendants’ argument that an award of

attorney fees cannot be made under § 1988 unless there is an

obligation on behalf of the plaintiff to pay fees.

Section 1988 calls for the award of “reasonable” fees. Their

reasonableness is to be determined, based upon a consideration

of the market value in the community of the services rendered.

26a

Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891

(1984) (award of fees mandated even though plaintiff repre-

sented by charitable organization); Oten v. Colorado Board of

Social Services, supra (fee award of nearly $43,000 approved

although plaintiffs were represented by Legal Aid Society).

Hence, in determining a reasonable fee to be awarded to plain-

tiff, “[t]he trial judge should not be limited by the contractual fee

agreement between plaintiff and counsel.” Blanchard v. Ber-

geron, 489 U.S. 87, 96, 109 S.Ct. 939, 946, 103 L.Ed.2d 67, 77

(1989).

The fact that plaintiff here did not incur a specific obliga-

tion for the payment of fees to their counsel, therefore, does not

prevent an award under § 1988.

We agree with plaintiffs, however, that the trial court here

did not properly calculate the amount of fees to be awarded.

As was explained in Oten v. Colorado Board of Social Ser-

vices, supra, there exists a required method for calculating attor-

ney fees under § 1988. The court must first consider the number

of hours that reasonably should have been expended by counsel

and the reasonable hourly rates for the services rendered that

would be charged by private lawyers in the community. Once a

basic amount is calculated by considering these two factors (the

“lodestar” amount), that basic amount may be adjusted, either

upwards or downwards, by considering the nature of the services

rendered, the degree of success achieved, and other pertinent

factors. See Spensieri v. Farmers Alliance Mutual Insurance Co.,

804 P.2d 268 (Colo. App. 1990). However, the “lodestar” amount

is presumptively the reasonable fee to be awarded. See Blanchard

v. Bergeron, supra.

Here, counsel for plaintiffs presented an affidavit listing the

actual hours expended by them, the hourly rates deemed appro-

priate, and a description of the services rendered. Such affidavit

supported a requested fee of some $86,000.

In addition, both plaintiffs and defendants presented expert

opinions with respect to the question of a reasonable fee. While

27a

these opinions varied widely, all the experts nevertheless

expressed their views by using a “lodestar” approach.

The court, however, did not engage in any lodestar calcula-

tion and, indeed, seems to have expressly rejected that approach.

Rather, after hearing the expert testimony, it simply awarded a

gross sum of $30,000 without specifying how it arrived at that

figure except to refer to several factors which it took into consid-

eration and to adopt a figure which it characterized as being

about in the “middle” of the amounts suggested by the expert

testimony.

This failure to use the lodestar method of ascertaining fees

was error. Further, by failing to use the lodestar method and by

failing otherwise to detail its analysis of the basis for its award,

the trial court failed to provide this court with the means for

reviewing the award’s propriety.

We express no opinion whether the amount awarded by the

court was proper. We must, however, remand the attorney fee

issue to the trial court for its reconsideration under the proper

standard.

The present judgments against defendants for actual dam-

ages are affirmed, but the decree determining that Ordinance

No. 3 is valid is reversed. The trial court’s judgment awarding

attorney fees is vacated, and the cause is remanded to the trial

court for its determination, based on the present record, whether

plaintiffs are entitled to an additional award of damages that

may have occurred during the destruction of the fire damaged

building and for its entry of an award of attorney fees for services

rendered to plaintiffs, all in accordance with the views expressed

in this opinion.

JUDGE METZGER and JUDGE KAPELKE concur.

28a

SUPREME COURT, STATE OF COLORADO

No. 94SC757 June 17, 1996

COUNTY OF ADAMS, STATE OF COLORADO;

ROBERT J. LOEW and DARREL L. MATTESON, Petitioners,

Vv.

DEAN HIBBARD and H.D. GARRISON, Respondents.

Certiorari to the Colorado Court of Appeals

EN BANC JUDGMENT AFFIRMED IN PART AND

REVERSED IN PART, AND CASE

REMANDED WITH DIRECTIONS

Hall & Evans, L.L.C.

Alan Epstein

David R. Brougham

Josh A. Marks

Denver, Colorado

Attorneys for Petitioners

Gilbert Goldstein

Denver, Colorado

Darrel L. Campbell

Englewood, Colorado

Attorneys for Respondents

JUSTICE SCOTT delivered the Opinion of the Court.

JUSTICE MULLARKEY concurs in part and dissents in

part, and

JUSTICE KOURLIS joins in the partial concurrence and

dissent.

29a

The Supreme Court in Monroe v. Pape, 365 U.S. 167, 187

(1961), held that 42 U.S.C. § 1983 (1988) must be “read against

the background . .. that makes a [person] responsible for the

natural consequences of his (or her] actions.” Today, thirty years

hence, we must decide whether a county or county officials may

be held accountable under § 1983 for conduct that is designed to

cause the outright destruction of a citizen’s property. On the

record before us. we conclude that the intentional misconduct of

county officials causing the destruction of private property is a

species of tort within the reach of § 1983 and we hold that

government officials may be held personally accountable for

their unauthorized and deliberate misbehavior under that Con-

gressional enactment.

We granted certiorari to review Hibbard v. County of

Adams, 900 P.2d 1254 (Colo. App. 1994).! Petitioners County of

Adams (County), Robert J. Loew, and Darrel L. Matteson (indi-

vidual defendants)? seek reversal of the court of appeals’ judg-

ment affirming the trial court’s entry of judgment imposing

liability under 42 U.S.C. § 1983 (1988) for damage to respon-

dents Hibbard’s and Garrison’s (plaintiffs) real and personal

property. We affirm in part, reverse in part, and remand to the

court of appeals with directions that it return this case to the trial

court for further proceedings consistent with this opinion.

Facts

In 1988, the County adopted Ordinance No. 3 to eliminate

“blighted areas” in the County. Section III of Ordinance No. 3

provides that “[t}he exteriors of all commercial establishments or

1 Our order granting certiorari set forth only two issues on review:

I. Whether the court of appeals erred in holding the County liable

for destruction of property under 42 U.S.C. § 1983.

Il. Whether the court of appeals erred in holding the County attor-

neys liable for destruction of property under 42 U.S.C. § 1983.

? Petitioners are collectively referred to as “defendants.”

BES EEE Ta TR

30a

multifamily buildings. shall be maintained so as to present a

neat and orderly appearance.” Section V states that a commer-

cial establishment or multifamily building must be “kept free of

junk, trash, rubbish, debris or refuse of any kind.” If the owner of

any property fails to comply with these requirements, the prop-

erty is declared a “cause of blight,” and the owner is subject to

enforcement proceedings under the ordinance.

If the ordinance is violated, notice is given to the owner that

the subject property must be brought into compliance. If the

offending property is not brought into compliance, a hearing is

held, and an Administrative Law Judge (ALJ) must make find-

ings as to whether causes of blight exist. If the ALJ finds that

causes of blight exist and should be corrected, an administrative

order is issued commanding the owner to remove the causes of

blight.

Plaintiff Hibbard owned real property within the County.

Two buildings were located on the property, one of which was a

commercial building damaged by fire in 1983 and had not been

repaired (fire damaged building). Plaintiff Garrison worked and

lived in the other building (Garrison’s residence), which con-

tained various items of personal property belonging to Garrison.

In 1989, the County, alleging that the property violated ordi-

nance No. 3, gave notice to plaintiffs and a hearing was held

before an ALJ. In a written decision, the ALJ found that the

following “blight factors” existed on the property:

A. (A] building which is vacant and was the subject

of a fire in 1983 which pursuant to Section III of Ordi-

nance No. 3, County of Adams, is not a building that is

being maintained so as to present a neat and orderly

appearance .

B. Pursuant to Section V, this Court finds that junk,

loose trash, a semi-trailer, fence posts, barricades, tires,

wood, bricks, cones, metal junk, piles of asphalt, acety-

lene tank, rusted containers, cinder blocks, trash,

rusted trailers, an inoperable and unsightly van, an

3la

inoperable pickup truck, old and unsightly out-build-

ings, an old and rusted motor cart are all blighting

factors on this particular property.

The ALJ’s order required plaintiffs to correct the “blight

factors” by a specified date and directed that the fire damaged

building was to be disposed of a few days later. If plaintiffs did

not comply with the order, the County was authorized to enter

the premises, remove the items described, and charge the costs

as a lien against the property.

Plaintiffs failed to comply with the ALJ’s order, and the

County proceeded against plaintiffs’ property. While clearing

the property, the County razed the fire damaged building set

forth in the order and, although they knew Garrison’s residence

was not covered by the ALJ’s order, defendants Loew and Mat-

teson intentionally and deliberately directed the destruction of

Garrison’s residence and the property Garrison stored in that

building.

Plaintiffs filed this action, asserting several claims against

defendants. They sought a declaratory judgment that Ordinance

No. 3 was not authorized by any Colorado statute and was

unconstitutionally vague. Plaintiffs also sought a joint and sev-

eral judgment for damages against all defendants based on the

destruction of Garrison’s residence, the items of personalty

stored within that building, and the damage to an underground

tank, pump, and well.

The trial court upheld the validity of Ordinance No. 3, but

determined that the ALJ’s order did not authorize the destruc-

tion of Garrison’s residence and the personalty stored within it.

The trial court also found that the individual defendants knew

3 As recognized by the court of appeals, zoning violations are more

properly enforced by the withholding of building permits, criminal prose-

cution, or an appropriate civil action in district court. See § 30-28-114, 12A

C.R.S. (1986); § 30-28-124(1), 12A C.R.S. (1986); § 30-28-124(2), 12A

C.R.S. (1986); Hibbard, 900 P.2d at 1260.

RE De ee MOM Teme eee LON RC ET SRR gy

32a

the ALJ’s order did not apply to Garrison’s residence but will-

fully ordered its destruction in violation of plaintiffs’ constitu-

tional rights.

The trial court entered a judgment for damages in favor of

plaintiff Hibbard for $10,000, for plaintiff Garrison for $3,500,

and jointly and severally against all defendants. However, it

refused to award any damages for razing of the fire damaged

building and the harm caused to the tank, pump, and well. The

trial court determined that the damage to these objects was a

necessary incident to the destruction of the fire damaged build-

ing described in the ALJ’s order, which the court concluded was

properly authorized to be removed.

The court of appeals affirmed in part, reversed in part, and

remanded the case for further proceedings. Hibbard, 900 P.2d at

1258. The court of appeals stated “that, to the extent that Ordi-

nance No. 3 purports to authorize the County to destroy and

remove buildings that do not present a ‘neat and orderly’ appear-

ance, the same was unauthorized and invalid.” Jd. at 1260.4

Therefore, the court of appeals reasoned that the County could

not rely upon the ordinance as authority for destruction of either

building. Jd.

The court of appeals found that Ordinance No. 3 was an

express “policy” of the County and thus, the County was liable

for destruction of the two buildings. Jd. at 1261. Although the

plaintiffs sought no damages for the fire damaged building, the

court of appeals held the County liable for harm done to other

property, such as the underground tank, pump, and well “if such

damage resulted from the County’s unauthorized action.” Jd.

Regarding Garrison’s residence, the court of appeals held that

the county was liable for damages resulting to it because the

unauthorized acts of defendants Loew and Matteson, the county

attorney and his assistant, arose out of their interpretation of the

* Because the court of appeals found the ordinance invalid, it did not

address plaintiff’s contention that the ordinance was unconstitutionally

vague.

33a

ALJ’s order which, in effect, “constituted the adoption of an

official county policy.” Jd. at 1262.

The individual defendants maintained that the trial court

erred by entering judgment against them for damages sustained

due to the destruction of Garrison’s residence and its contents.

The court of appeals disagreed. Jd. It rejected the individual

defendants’ contentions that they were sued only in their official

capacities and were entitled to qualified immunity. Jd. at

1262-64. However, the court of appeals held that the individual

defendants could not be liable for damage done to the fire

damaged building “because it was, at the time the ALJ issued his

order and the individuals interpreted it, by no means ‘clearly

established’ that Ordinance No. 3 was partially invalid.” Jd. at

1264. Therefore, the individual defendants were entitled to qual-

ified immunity for damages stemming from the ordinance’s par-

tial invalidity. Jd. Finally, because it concluded that Ordinance

No. 3 was partially invalid, the court of appeals remanded the

case to the trial court for further consideration of damages.

Threshold Matters

Before addressing liability under 42 U.S.C. § 1983, we first

examine two threshold matters: 1) whether the two individual

defendants were sued only in their “official” capacities; and 2)

whether the trial court lacked subject matter jurisdiction to

address plaintiffs’ § 1983 claim because of ripeness considera-

tions. The individual defendants maintain that they were not

sued in their individual capacities. We do not agree. Defendants

also contend that the § 1983 claim was premature because plain-

tiffs failed to seek compensation from the county through state

remedies, such as inverse condemnation, a direct taking claim

under the Colorado Constitution, or a trespass action. This we

address briefly below.

ii a u

34a

The individual defendants rely on paragraph five of plain-

tiffs’ second amended complaint for their allegations that they

were sued only in their official capacities:

Defendant Robert J. Lowe [sic] is the County Attorney

for the County of Adams, State of Colorado. Defen-

dant Darrel L. Matteson is an Assistant County Attor-

ney employed by the Adams County Attorney. Each

and all acts of Defendants Lowe and Matteson set forth

herein were done by them, not as individuals, but under

the color and pretense of the ordinances of the County of

Adams, State of Colorado.

(Emphasis added.) The individual defendants also note they

were not personally served.

However, in their second amended complaint, plaintiffs

specifically sought damages against all defendants on a joint and

several basis. Also, the emphasized portion of the complaint

serves only to make the required allegation for a § 1983 claim

that the defendants were acting under color of law. See Screws v.

United States, 325 U.S. 91, 108 (1945).

When a complaint does not clearly specify whether officials

are sued personally, in their official capacity, or both, “ ‘[t]he

course of proceedings’ ” usually establishes the liability sought to

be imposed. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)

(quoting Brandon v. Holt, 469 U.S. 464, 469 (1985)). Throughout

the proceedings, the individual defendants acknowledged the

suit by affirmatively denying personal liability. See, e.g., Answer

to Second Am. Compl. Sixth Affirmative Defense (“Defendants

Loew and Matteson in their individual capacities are entitled to

official immunity and qualified good faith immunity.”); Brief In

Support of Mot. for Summ. J. and J. On the Pleadings, Vol. 1, at

237 (“Loew and Matteson are public officials, the County Attor-

ney and Assistant County Attorney who are named as individual

35a

defendants in this case.”). Significantly, the individual defend-

ants did not seek dismissal because of plaintiffs’ failure to allege

individual liability. Rather, they sought dismissal based on per-

sonal immunity from suit. Also, by attacking the substantive

claims raised by the plaintiffs, the individual defendants waived

their objection to personal service and subjected themselves to

the court’s jurisdiction. See Brown v. Amen, 147 Colo. 468, 472,

364 P.2d 735, 737 (1961).5

Defendants maintain that the piaintiffs’ § 1983 claim was

not ripe. However, we denied certiorari on the ripeness issue.

Then, after plaintiffs filed a motion for clarification of issues

presented for certiorari review, we specifically stated that “[t]he

court did not grant certiorari review on whether the § 1983 claim

was ripe.” Therefore, we decline a third invitation to address

defendants’ contention that plaintiffs’ § 1983 claims are not ripe.

County Liability

In relevant part, 42 U.S.C. § 1983 (1988) provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be sub-

jected, any citizen of The United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

> In Kentucky, the Court stated that “[t}here is no longer a need to bring

official-capacity actions against local government officials, for under

Monell [v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978)}, ...

local government units can be sued directly for damages and injunctive or

declaratory relief.” Kentucky, 473 U.S. at 167 n.14.

36a

We begin with the proposition that “Congress did intend munici-

palities and other local government units to be included among

those persons to whom § 1983 applies.” Monell v. New York City

Dep't of Social Servs., 436 U.S. 658, 690 (1978). Under § 1983, a

municipality can be sued directly where “the action that is

alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers.” Jd.; see also City of St.

Louis v. Praprotnik, 485 U.S. 112, 128 (1988) (plurality opinion)

(“The city cannot be held liable under § 1983 unless respondent

proved the existence of an unconstitutional municipal policy.”).

As acknowledged by the defendants, “[i]n this case, the

Board of County Commissioners is the policy maker and, as

such, it created a policy through the enactment of Ordinance

No. 3.” Petitioner’s Opening Brief at 13; see also Petitioner's

Reply Brief at 4 (“[T]he (Colorado}] Court of Appeals properly

concluded that Ordinance No. 3 was a ‘policy’ for purposes of

municipal liability under 42 U.S.C. § 1983 . . . .”).

The court of appeals concluded that Ordinance No. 3 was

invalid because the County was not authorized to adopt such a

regulation.® Hibbard, 900 P.2d at 1259. Because the ordinance

was unauthorized under state law,’ the court of appeals did not

address plaintiffs’ contention that the ordinance was unconstitu-

tionally vague. Jd. However, it still held the County liable “to the

extent that the actions of the County’s agents in destroying the

® We did not grant certiorari to review the validity of Ordinance No. 3,

so the court of appeals conclusion is not before us. The court of appeals

noted that the statute it relied upon was amended in 1990. See Hibbard, 900

P.2d at 1260,

7 We note that the ordinance’s invalidity pursuant to state law does not

by itself establish municipal liability under § 1983. See Chesterfield Dev.

Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992).

37a

two buildings were authorized by Ordinance No.3. . . . ” Jd. at

1261.

Under § 1983, a plaintiff must prove that “(1) a person

(2) acting under color of state law (3) subjected the plaintiff or

caused the plaintiff to be subjected (4) to the deprivation of a

right secured by the Constitution or the laws of the United

States.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 829 (1985)

(Brennan, J., concurring). Under Monell, the County is a “per-

son” for purposes of § 1983. Also, by adopting Ordinance No. 3,

the County was acting “under color of law.” See id. At the

destruction site, the two individual defendants also acted “under

color of law” by taking action pursuant to Ordinance No. 3, even

though the individual defendants’ actions were unauthorized.*

Plaintiffs satisfy the first part of the causation element by estab-

lishing the existence of a municipal policy, embodied in Ordi-

nance No. 3. See id. But plaintiffs must also establish that the

County’s actions caused “the deprivation of a right secured by

the Constitution or laws of the United States.” Jd.

In the present case, there is no evidence that plaintiffs

incurred any harm as a direct result of County policy. Plaintiffs

sought no damages for the destruction of the fire damaged build-

ing itself. Hibbard, 900 P.2d at 1261. Regarding the utility and

value of the underground tank, pump, and well, the trial court

found plaintiffs’ testimony (like much of plaintiffs’ testimony)

“to have been totally devoid of credibility.” Based upon the

* Acting “under color of law” alone, however, does not create municipal

liability under § 1983 . . The plaintiffs must show that the illegal action

was caused by the County, not a nonpolicymaking municipal employee. See

Tuttle, 471 U.S. at, 829 (Brennan, J., concurring). A plaintiff meets this

burden by establishing the existence of a municipal policy. Jd In the

present case, County liability does not attach based upon the actions of the

individual defendants because they were not policymakers. See infra part

ITIB.

® The trial court also found any damage to the underground pump, tank,

and well to have been “incidental.” See, e.g., City of Northglenn v. Grynberg,

846 P.2d 175, 179 (Colo. 1993) (“In no case has mere depreciation in value

been grounds to award just compensation for a damaging of property.”).

38a

record before us, the County did not cause any damage giving

rise to the deprivation of a federal right.

Ordinance No. 3 did not articulate a building destruction

policy subject to the discretion of the county attorney and his

assistant. Therefore, the County is not liable for damage done to

Garrison’s residence and its contents. Damage to Garrison’s

residence resulted from the unilateral acts taken by the individ-

ual defendants, not a particular action taken by the County. See

id. County policy or custom did not cause any damage in the

present case.

While Ordinance No. 3 represents County policy, the court

of appeals.also premised County liability on the two individual

defendants’ behavior at the destruction site. Concluding the two

individual defendants were policymakers, the court of appeals

stated that “[w]ith respect to the meaning and breadth of the

ALJ’s order, we are convinced that the interpretation placed

upon it by the county attorney and his assistant [the two individ-

ual defendants) constituted the adoption of an official county

policy.” Hibbard, 900 P.2d at 1262. We disagree. The two individ-

ual defendants were not policymakers for purposes of municipal

liability under § 1983.

Congress intended municipal liability only when actions

taken “pursuant to official municipal policy of some nature

caused a constitutional tort.” Monell, 436 U.S. at 691. In particu-

lar, a local government cannot be liable under § 1983 “solely

because it employs a tortfeasor. . . . Jd. Under § 1983, munici-

pal liability cannot attach on a respondeat superior theory. Jd.

The Court stated:

We conclude, therefore, that a local government may

not be sued under § 1983 for an injury inflicted solely

by its employees or agents. Instead, it is when execution

of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may

39a

fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible

under § 1983.

Id. at 694.

Under Monell, municipalities may only be held liable for

actions taken pursuant to a “custom” or “policy.” Tuttle, 471 U.S.

at 818 (plurality opinion) (“[T]he Monell Court held that only

deprivations visited pursuant to municipal ‘custom’ or ‘policy’

could lead to municipal liability.”). The “policy” requirement

was “intended to distinguish acts of the municipality from acts of

employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality

is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S.

469, 479-80 (1986). To recover from a municipality, a plaintiff

must establish that the municipality has “officially sanctioned or

ordered” an act. Jd. at 480. Under this rationale, municipal liabil-

ity may attach for a single decision by policy makers under cer-

tain circumstances. Jd. 1°

However, a municipality is liable “only where the deci-

sionmaker possesses final authority to establish municipal policy

with respect to the action ordered.” Jd. at 481 (plurality opinion).

The mere existence of an official’s discretion does not “give rise

to municipal liability based on an exercise of that discretion.” Jd.

'0 Policy acts or edicts may not necessarily involve written rules intended

to be applied consistently over time. See id. at 480-81. A local government

“frequently chooses a course of action tailored to a particular situation and

not intended to control decisions in later situations.” Jd. at 481. In

Pembaur, the Court explained:

If the decision to adopt that particular course of action is properly

made by that government’s authorized decisionmakers, it surely rep-

resents an act of official government “policy” as that term is com-

monly understood. More importantly, where action is directed by

those who establish governmental policy, the municipality is equally

responsible whether that action is to be taken only once or to be taken

repeatedly. To deny compensation to the victim would therefore be

contrary to the fundamental purpose of § 1983.

40a

at 482 (plurality opinion); see also Praprotnik, 485 U.S. at 126

(plurality opinion) (“If the mere exercise of discretion by an

employee could give rise to a constitutional violation, the result

would be indistinguishable from respondeat superior liability.”).

Before municipal liability attaches, a state official “must also be

responsible for establishing final government policy. ... ”

Pembaur, 475 at 483 (plurality opinion)."

A determination of whether an official constitutes a

policymaker is a matter of state law. Praprotnik, 485 U.S. at 124

(plurality opinion); Pembaur, 475 U.S. at 483 (plurality opinion).

In Pembaur, the plurality noted “that municipal liability under

§ 1983 attaches where—and only where—a deliberate choice to

follow a course of action is made from among various alterna-

tives by the official or officials responsible for establishing

final policy with respect to the subject matter in question.”

Pembaur, 475 U.S. at 483-84 (plurality opinion); see also Tuttle,

471 U.S. at 823 (plurality opinion) (“‘[P]olicy”) generally

implies a course of action consciously chosen among various

alternatives .... ”).

'! The plurality offered the following illustrative hypothetical:

Thus, for example, the County Sheriff may have discretion to hire and

fire employees without also being the county official responsible for

establishing county employment policy. If this were the case, the

Sheriff’s decisions respecting employment would not give rise to

municipal liability, although similar decisions with respect to law

enforcement practices, over which the Sheriff is the official poli-

cymaker, would give rise to municipal liability. Instead, if county

employment policy was set by the Board of County Commissioners,

only that body’s decisions would provide a basis for county liability.

This would be true even if the Board left the Sheriff discretion to hire

and fire employees and the Sheriff exercised that discretion in an

unconstitutional manner; the decision to act unlawfully would not be

a decision of the Board. However, if the Board delegated its power to

establish final employment policy to the Sheriff, the Sheriff’s deci-

sions would represent county policy and could give rise to municipal

liability.

Pembaur, 475 U.S. at 483 n.12 (plurality opinion).

4la

The Board of County Commissioners articulates zoning

policy for each county. See, eg. § 30-28-113(1), 12A C.RS.

(1986) (“[Bloard of county commissioners . . . may regu-

late . . . the location, height, bulk, and size of buildings and

other structures, the percentage of lot which may be occupied,

the size of yards, courts, and other open spaces, the uses of

buildings . . . . ”). The county attorney only enforces that pol-

icy. The county attorney’s exercise of discretion in interpreting

the ALJ’s order reflects, without more, only a departure from

policy. See Praprotnik, 485 U.S. at 127 (plurality opinion)

(“When an official’s discretionary decisions are constrained by

policies not of that official’s making, those policies, rather than

the subordinate’s departures from them, are the act of the

municipality.”). Because the Board possesses the authority to

make final policy regarding zoning matters, it retains the author-

ity to make municipal policy in that area. See id.

The court of appeals relied on Medberry v. People, 107 Colo.

15, 108 P.2d 243 (1940), for its conclusion that the county attor-

ney and his assistant were policymakers. In Medberry, we

described the duties and responsibilities of a county attorney in

Colorado:

Under the statutes of Colorado a county attorney is

employed primarily as the legal advisor of the county

commissioners in whose discretion reposes the power

of appointment. In certain matters he advises other

county administrative officers, appears for the county

in cases involving dependent, neglected and delinquent

children, in lunacy inquests and, when directed by the

county commissioners, in civil litigation to which the

county is a party or in which it is interested.

Id. at 19, 108 P.2d at 245 (citation omitted). However, a county

attorney’s duty to generally “advise other county administrative

officers” does not by itself create policymaking authority in the

specific area of zoning. To be a policymaker, the governmental

official or officials must be “responsible for establishing final

42a

policy with respect to the subject matter in question.” Pembaur, 475

U.S. at 483-84 (plurality opinion).

Unlike Pembaur, the county attorney and his assistant do

not make final policy “with respect to the subject matter in

question.” In Pembaur, a physician refused entry to his clinic by

Hamilton County Deputy Sheriffs and Cincinnati police, who

were attempting to issue capiases for the arrest and detention of

two of his employees. Jd. at 472-73. After access was denied, the

Deputy Sheriffs called their supervisor for further instructions.

Id. The supervisor told the Deputy Sheriffs to contact the Assis-

tant Prosecutor. Jd. at 473. They did, and the Assistant Prosecu-

tor conferred with the County Prosecutor, who gave instructions

to “go in and get [the witnesses].” Jd. The Court concluded that

“{ijn ordering the Deputy Sheriffs to enter petitioner’s clinic the

County Prosecutor was acting as the final decisionmaker for the

county, and the county may therefore be held liable under

§ 1983.” Id. at 485. In Pembaur, the Court found under Ohio law

that the Prosecutor “could establish county policy under appro-

priate circumstances . . . . ” Jd. at 484. The County Prosecutor

did not merely render “legal advice.” Jd. The County Prosecutor

possessed final authority to instruct the officers to enter the

premises. In the present case, the county attorney was not

imbued with any authority under the ordinance, rather, his

authorized acts were limited to implementing the policy of Ordi-

nance No. 3 as set by the Board of County Commissioners. As a

matter of state law, the Board possessed final policymaking

authority in the area of zoning.’

Because the two individual defendants were not policymak-

ers, County liability does not attach for destruction of the con-

tents of Garrison’s residence due to the county attorney’s and his

assistant’s actions at the destruction site.

2 The two individual defendants’ subjective views are irrelevant. Poli-

cymaker status must be determined objectively by reference to state law.

43a

Individual Liability

As public officials, the two individual defendants claim they

are entitled to qualified immunity. We agree in part and disagree

in part. Two kinds of immunity defenses exist. Harlow v. Fitzger-

ald, 457 U.S. 800, 807 (1982). Absolute immunity is available

only “[flor officials whose special functions or constitutional

status requires complete protection from suit . . . ” Jd.; see also

Higgs v. District Court, 713 P.2d 840, 852 (Colo. 1985). Qualified

immunity, on the other hand, represents the norm for executive

officials. Harlow, 457 U.S. at 807; Higgs, 713 P.2d at 852. “Quali-

fied or ‘good faith’ immunity is an affirmative defense that must

be pleaded by a defendant official.” Harlow, 457 U.S. at 815. In

Harlow, the Court stated “that government officials performing

discretionary functions, generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reason-

able person would have known.” Jd. at 818; see also Higgs, 713

P.2d at 852. The qualified immunity defense should fail if the law

was clearly established because “a reasonably competent public

official should know the law governing his [or her] conduct.”

Harlow, 457 U.S. at 819. An objective test for qualified immunity

balances the competing interests of citizen rights and indepen-

dent exercise of official authority. Higgs, 713 P.2d at 852. In

Harlow, the Court observed:

By defining the limits of qualified immunity essentially

in objective terms, we provide no license to lawless

conduct. The public interest in deterrence of unlawful

conduct and in compensation of victims remains pro-

tected by a test that focuses on the objective legal rea-

sonableness of an official’s acts. Where an official

could be expected to know that certain conduct would

violate statutory or constitutional rights, he [or she]

should be made to hesitate; and a person who suffers

injury caused by such conduct may have a cause of

44a

action. But where an oOfficial’s duties legitimately

require action in which clearly established rights are

not implicated, the public interest may be better served

by action taken “with independence and without fear

of consequences.” Pierson v. Ray, 386 U.S. 547, 554

(1967).

Harlow, 457 U.S. at 819 (footnotes omitted); Higgs, 713 P.2d at

852 (quoting Harlow, 457 U.S. at 819).

The individual defendants are not entitled to qualified

immunity for the destruction of Garrison’s residence or his per-

sonal property. Regarding that building and its contents, the trial

court found that “the actions of the Defendants were a willful

deprivation of Plaintiffs’ civil rights in contravention of 42 U.S.C.

[§] 1983.” See also Crouse v. City of Colo. Springs, 766 P.2d 655,

660 (Colo. 1988) (“The due process clause of the fourteenth

amendment protects individuals from deprivation of liberty by

deliberate abusive or harsh conduct by state officials.”).

In its Order and Judgment dated April 14, 1992, the trial

court found that “Defendant Matteson knew the garage/shop

building [Garrison’s residence] was not covered and so advised

Defendant Loewe [sic] . . . .” (Emphasis added.) A reasonable

public official would be expected to know that razing a private

building and its contents out of personal convenience violated

constitutional protections. See id. (“(O]utrageous abuse of gov-

ernment authority directed against citizens is precisely the type

of misconduct which the remedies created by Congress in § 1983

were designed to deter.”). Clearly established law should have

made the individual defendants hesitate before destroying prop-

erty not covered by the ALJ’s order. A reasonable public official

would have hesitated before destroying private property. The

individual defendants improperly razed a building under the

belief that a lawsuit would be “cheaper” than according plaintiffs

the benefit of the process contemplated under Ordinance No. 3.

The trial court stated:

4Sa

(I]t is the Court’s finding that, as to Plaintiffs’ garage/

shop building (Garrison’s residence] and contents, the

actions of Defendant were a willful deprivation of

Plaintiffs’ civil rights in contravention of 42 U.S.C.

[$]1983 . . . . Plaintiffs have proved by a preponder-

ance of the evidence that they were deprived of their

civil rights without due process of law by Defendants

who were acting willfully and under color of their offi-

cial authority to the limited extent set forth above.

We agree. Conduct of public officials that results in the inten-

tional and knowing destruction of private property should be

repudiated and subjected to the same reproach we would apply

to similar conduct by any other person. A public official who

knowingly and capriciously acts outside the authority of govern-

ment to deprive a citizen of property rightfully that of the citizen

should not be able to escape liability by donning the cloak of

government action as an aid to his or her defense. Because the

individual defendants knowingly and intentionally acted outside

their authority under the ALJ order and deliberately deprived

plaintiffs of their procedural and substantive due process rights

by causing the arbitrary destruction of their private property, we

hold them individually liable for their unwarranted conduct.

In sum, the County is not liable for damages done to Garri-

son’s residence as a consequence of the unilateral acts of the

individual defendants, who were not policymakers of the County.

The individual defendants, who are not entitled to qualified

immunity, must stand accountable for their deliberate and willful

acts when, although they knew Garrison’s residence was not

covered by the ALJ’s order, they intentionally called for the

destruction of Garrison’s residence because, in their view, avoid-

ing clearly established procedures would be cheaper. However,

we reverse the judgment of the court of appeals as to the fire

damaged building. Plaintiffs did not seek damages for its

46a

destruction, and on the record before us, we express no opinion

as to Claims for damages related to the fire damaged building.

Accordingly, we affirm the court of appeals in part, reverse

in part, and remand to that court with directions that it return

this case to the trial court for further proceedings consistent with

this opinion.

JUSTICE MULLARKEY concurs in part and dissents in

part, and JUSTICE KOURLIS joins in the partial concurrence

and dissent.

County of Adams v. Hibbard, No. 94SC757

JUSTICE MULLARKEY concurring in part and dissent-

ing 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 sub-

stantive due process rights of the plaintiffs, Dean Hibbard and

H.D. Garrison.

The plaintiffs brought this action in the district court alleg-

ing 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 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

47a

the trial court that only a procedural due process claim was

asserted.! ;

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(1)(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

22. 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 find-

ings 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. § 1983 (1988) if there is an adequate state

remedy. Zinermon v. Burch, 494 U.S. 113 (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

' 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).

48a

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).? See also Haag

v. Cuyahoga County, 619 F. Supp. 262, 278 (N.D. Ohio 1985) (a

substantive due process claim may be pursued under § 1983 only

if the conduct rises to the level of a constitutional tort, ie., it

shocks the conscience), affd 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.

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:

2 In Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (Ist 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 inter-

est protected by the Fourteenth Amendment. Jd. at 531. The second does

not require proof of the deprivation of a specific property or liberty inter-

est; rather the plaintiff must prove that the state’s conduct “shocks the

conscience.” Jd. (quoting Rochin v. California, 342 U.S. 165, 172 (1952)).

49a

junk, loose trash, a semi-trailer, fence posts, barri-

cades, 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 build-

ing was debatable, because of the ambiguities in the order;

however, since the Court finds and concludes that Defen-

dant Matteson knew the garage shop building was not cov-

ered and so advised Defendant Loew, Defendants’ conduct

was willful.

Although it found the individual defendants’ conduct will-

ful, the trial court also found that their conduct was not so

egregious as to support an award of punitive damages. In reach-

ing 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

50a

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 pre-

sent 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 Defend-

ants acted in an overly egregious manner. Apparently

Defendant [sic] Garrison did arrive prior to the time

the ‘garage shop’ building 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 defend-

ants’ 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 uncontrovertible” 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.

Sla

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 22. This

Statement is based on the testimony at trial of Lieutenant Ronald

Blasko of the Adams County Sheriff’s Department. Blasko testi-

fied 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

building and asked Mr. Matteson 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 dis-

cussed 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.”

52a

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 con-

science. 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, 830 P.2d 318 (Wash.) cert. denied,

113 S. Ct. 676 (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 Robin-

son case, Seattle city officials continued to enforce a housing

53a

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.

Thus, I would conclude that the plaintiffs have not proven a

constitutional tort. It may be that the plaintiffs can pursue com-

mon law torts such as trespass or conversion against the individ-

ual 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.

JUSTICE KOURLIS joins in the partial concurrence and

dissent.

54a

CERTIFICATE OF MAILING

I hereby certify that on this (3™tay of September 1996, a

true and correct copy of the foregoing PETITIONERS’ APPEN-

DIX was mailed by placing the same in the United States Mail,

postage prepaid, addressed as follows:

Gilbert Goldstein, Esq.

3600 S. Yosemite, Suite 870

Denver, CO 80237

303-220-8200

Attorney for Dean Hibbard & H.D. Garrison

Darrell L. Campbell, Esq.

7730 E. Belleview Ave.

Suite 204

Englewood, CO 80111-2618

303-740-7200

Attorney for Dean Hibbard & H.D. on. &s BS

te Z

ee Po

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.