Opposition Brief — Herwins v. City of Revere

NINE TLE TT

Supreme Courk, WA

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No. 98-1339

In The

Supreme Court of the United States

October Term, 1998

M. JOE HERWINS,

THE CITY OF REVERE AND JAMES J. MAROTTA

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

—_______—_____—_-— @

RESPONDENTS’ BRIEF IN OPPOSITION

rO PETITION FOR WRIT OF CERTIORARI

Counsel of Kecora

¥ AW SON Wr W EITZEN

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425 Summer Street

Boston, MA 02210

(617) 439-4990

7 ‘

Counsel for Respondent

QUESTIONS PRESENTED

1. Whether An Emergency Closure of a Building

Effected Contrary to Established State Procedures Consti-

tutes a Violation of the Procedural Due Process Rights of

the Property Owner Where the State Provides an Ade-

quate Post-Deprivation Remedy To Correct the Error?

2. Whether the Failure to Give Notice of a Right to

Appeal As Required Under Published State Regulations

After an Emergency Closure of a Building Rises to the

Level of a Procedural Due Process Violation?

TABLE OF CONTENTS

Page

ZUBSTIONS PRESEM IRE 0 0i5 fe ee

JIALEMENT -OF THE CASE: eo eee l

REASONS FOR DENYING THE PETITION......... 4

|. A Violation of Established State Procedures Does

Not Violate Procedural Due Process if the State

Provides an Adequate Remedy to Redress the

DEPTTVAUON 3. Fisk: ee ee ee

Il. Marotta’s Failure to Notify Herwins of his Right

to a Hearing In Violation of State Law Require-

ments Raises No Due Process Issue............

CONCLUSION ... $9. 'e te 6 bee i anew wean eee elas

ili

TABLE OF AUTHORITIES

Page

CAsEs

Andrews v. Arkwright Mutual Insurance Company,

423 Mass. 1021, 673 N.E.2d 40 (1996)............. 10

Armendariz v. Penman, 31 F.3d 860 (9th Cir. 1994)..... 8

City of West Covina v. Perkins, 525 U.S. mul Se

Pat, co 182 L.Ed.2d 656 (1999)................- 1]

Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) ..... 8

Harris v. City of Akron, 20 F.3d 1396 (6th Cir. 1994)... 2... 8

Hellenic American Neighborhood Action Committee v.

City of New York, 101 F.3d 877 (2d Cir. 1996)....... 7

Hodel v. Virginia Surface Min. & Reclam. Ass’n, 452

Te RASA RS DG as le 7

Hudson v. Palmer, 468 U.S. 517 BRUNE ocd wkiuiss oa cs 6,7

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ...6, 7

McKinney v. Pate, 20 F.3d 1550 (11th Cir. en ) 8

Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998)........ 8

Parratt v. Taylor, 451 U.S. 527 CAPER ke nkcaccacd, 6 7, 8

Powell v. Georgia Dept. Of Human Resources, 114

Og Se Ae a ae 8

Wilson v. The Health and Hospital Corporation of

Marion County, 620 F.2d 1201 (7th Cir. 1980) ....9, 10

Zinermon v. Burch, 494 U.S. 113 a: |) Se 7,8

REGULATIONS

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LADLE OF AUTHORITIES Continued

Page

U5 CMR 4] )

CMR 410.831(D) ey

STATEMENT OF THE CASE

The Court of Appeals, and not Petitioner, properly

summarized the facts of this case. As set forth in the

Court of Appeals’ decision, this case arises from the

action of a health inspector for the Respondent City of

Revere (“Revere”) in declaring a building unfit for

human habitation. (Appendix to Petition (“App.”) A2).

Respondent James J. Marotta (“Marotta”), a health

inspector for Revere, took this action because Petitioner

M. Joe Herwins’ (“Herwins”) building was not properly

heated, and lodgers were using gas stoves to provide heat

in the middle of a New England winter. App. A2.

Herwins’ property, located at 53A Walnut Avenue in

Revere, Massachusetts, was a three story building, with

rooms rented to members of the public. App. A2. On the

morning of February 24, 1993, a complaint was lodged

with the Revere Board of Health and the Boston Gas

Company, regarding the smell of gas at the property.

App. A2.

After the call, a Boston Gas representative and Mar-

otta went to 53A Walnut Avenue to investigate. Marotta

was the housing code inspector in Revere at the time, and

was responsible for investigating complaints pertaining

to the condition of housing units in the City. After inspec-

tion, they found that a resident had been using a gas

stove to provide heat for his unit and this use had gener-

ated the strong odor of gas. Marotta concluded that there

was no heat in the building after his inspection, and he

reported his findings to his superior, the health agent.

App. A2. Based upon the instructions from the health

agent, Marotta returned to 53A Walnut Avenue later in

the day, along with other City officials from the Building

Department, the Fire Department, as well as the Board of

Health, to conduct a full scale inspection of the property

App. A2

Based upon these inspections, Marotta and another

inspector drafted a letter to Herwins which included a

listing of violations of the State Sanitary Code. In the

ultimate finding of the letter, Marotta and the other

health inspector concluded that “Pursuant to 105 CMR

410.750, the above conditions are deemed to endanger

and impair the health, safety and well-being of persons

occupying the premises. In accordance with 105 CMR

410.831(D), the Revere Health Department has deter-

mined that due to the nature and severity of the viola-

tions found, danger to the premise’s occupants is

immediate and thus issues a finding that the occupied

dwelling is unfit for human habitation and must be

vacated forthwith.” App. A2. Although the letter called

for the building to be vacated. it did not notify Herwins

that he had a right to appeal this determination to the

Board of Health, as set forth in 105 CMR 400.832. App.

A4.

Marotta served this letter upon Herwins and the

occupants of 53A Walnut Avenue, and the tenants

vacated the building shortly thereafter App. A3. Herwins

then drained the heating system for the building, but did

nothing further with respect to the letter, either by way of

an appeal to the Board of Health or to the Courts of the

Commonwealth of Massachusetts App. A10.

In October of 1993, Herwins, along with his counsel,

met with Revere officials regarding his use of 53A Walnut

Avenue. App. A3. Herwins sought the meeting to deter-

mine what he had to do in order to reopen the property.

At the meeting, the plumbing inspector for Revere told

Herwins that, if he wanted to rent the units as apart-

ments, that he had to have sanitary facilities for each unit.

Previously, the second floor units, along with a unit on

the third floor, shared a common bathroom on the second

floor. Herwins, upon hearing this requirement, abruptly

terminated the meeting, and took an appeal from the

plumbing inspector’s determination to the Board of State

Examiners of Plumbers and Gas Fitters. App. A3.

After hearing, the State Board upheld the decision of

the Revere plumbing inspector, and voted to deny Her-

wins’ appeal on May 4, 1994. App. A3. Herwins sought

no judicial review of the decision of the State Board, and

took no further action with regard to 53A Walnut Avenue.

Instead, the building remained unoccupied up to and

including the time of trial. On November 2, 1995, Her-

wins commenced this action in the United States District

Court for the District of Massachusetts to seek a deter-

mination that his constitutional rights to procedural due

process had been violated in the course of the closing of

his building. App. A3.

Herwins’ complaint contained two counts, both lim-

ited to procedural due process claims. Count One alleged

that the closure of his building without prior notice or

hearing violated his procedural due process rights. Count

[wo claimed that the failure to notify Herwins of his right

to appeal after the closure of the building constituted a

separate procedural due process violation. App. A4. Rev-

ere and Marotta sought summary judgment on both

claims, but the Trial Judge denied the motions. App. A4.

After trial, and a jury verdict in favor of Herwins

against both Marotta and Revere, the Trial Judge set aside

the verdict against Revere on Count One, and directed a

verdict for both Revere and Marotta on Count Two. App.

A5. On appeal, the Court of Appeals agreed with the Trial '

Judge’s disposition as to Revere, but vacated the judg-

ment as to Marotta. The Court of Appeals concluded that

Herwins had failed to establish any violation of a consti-

tutional dimension and directed the entry of judgment for

both Revere and Marotta. Herwins’ petition for a writ of

certiorari now attempts to bring this matter to this Court.

$$$ $_$$$_$$__—— & —_————___———_

REASONS FOR DENYING THE PETITION

[his case raises pedestrian issues of procedural due

process rights that this Court settled long ago. To deal

with these issues, this Court has developed clear princi-

ples that have been faithfully applied in the circuits.

Accordingly, to grant certiorari in this case would result

in a restatement of settled law, of little benefit beyond the

parties to this suit. The scarce resources of this Court

should not be devoted to matters of such limited utility.

Herwins raises two issues in this Court. His first

issue is whether there is a violation of procedural due

process if an official abuses emergency procedures not-

withstanding the availability or efficacy of post-depriva-

tion remedies. His second issue is whether the failure of

an official to provide notification of a right to appeal

similarly violates procedural due process protections,

even though state law may mandate such notice. The

prior decisions of this Court have clearly held that there

i a a al ac

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is no violation of constitutional dimension in these cir-

cumstances, and there is no conflict among the circuits

with regard to either issue.

I. A Violation of Established State Procedures Does

Not Violate Procedural Due Process if the State Pro-

vides an Adequate Remedy to Redress the Depriva-

tion.

As the Court of Appeals noted, this Court has clearly

articulated the standards that must be met in order to

establish a procedural due process violation. First, it is

clear that a deprivation, standing alone, does not result in

a due process violation. As this Court explained in Parratt

v. Taylor, 451 U.S. 527, 536-537 (1981):

Unquestionably, respondent's claim satisfies

three prerequisites of a valid due process claim:

the petitioners acted under color of state law;

the hobby kit falls within the definition of prop-

erty; and the alleged loss, even though negli-

gently caused, amounted to a deprivation.

Standing alone, however, these three elements

do not establish a violation of the Fourteenth

Amendment. Nothing in that Amendment pro-

tects against all deprivations of life, liberty, or

property by the State. The Fourteenth Amend-

ment protects only against deprivations “with-

out due process of Law.” Our inquiry therefore

must focus on whether the respondent has suf-

fered a deprivation of property without due

process of law. In particular, we must decide

whether the tort remedies which the State of

Nebraska provides as a means of redress for

property deprivations satisfy the requirements

of procedural due process.

a ero ee

The Parratt Court concluded that the State could not

practicably provide pre-deprivation process in the cir-

cumstances of the case. Accordingly, if the State provided

adequate post-deprivation remedies, there could be no

violation of procedural due process rights.

—

The rule in Parratt was extended to encompass inten-

tional deprivations in Hudson v, Palmer, 468 U.S. 517, 533

(1984). In Hudson, 468 U.S. at 533, the Court explained the

principle as follows:

If negligent deprivations of property do not

violate the Due Process Clause because prede-

privation process is impracticable, it follows

that intentional deprivations do not violate that

Clause provided, of course, that adequate state

post-deprivation remedies are available.

Accordingly, we hold that an unauthorized

intentional deprivation of property by a state

employee does not constitute a violation of the

procedural requirements of the Due Process

Clause of the Fourteenth Amendment if a mean-

ingful post-deprivation remedy for the loss is

available. For intentional, as for negligent depri-

vations of property by state employees, the

state’s action is not complete until and unless it

provides or refuses to provide a suitable post-

deprivation remedy.

The principles articulated in Parratt and Hudson were

not applicable to the cases in which the deprivations were

the result of the application of “established state pro-

cedures” as opposed to “random” or “unauthorized” con-

duct of public officials. See, e.g., Logan v. Zimmerman Brush

Co., 455 U.S. 422, 435-436 (1982). If the use of an “estab-

lished state procedure” destroys an entitlement without

the safeguards required by the Due Process Clause, then

the official may be held liable for a due process violation.

See also Zinermon v. Burch, 494 U.S. 113, 135-139 (1990).

As the Court of Appeals noted, these principles con-

trolled the outcome of this case. In an emergency, the

Massachusetts regulations properly allowed for action

without a hearing. See Hodel v. Virginia Surface Min. &

Reclam. Ass'n, 452 U.S. 264, 299-300 (1981). If the condi-

tions at Herwins’ property did not constitute a true emer-

gency — a “danger to the life or health of the occupant(s)

. . $0 immediate that no delay may be permitted” — the

regulations provided no authority to Marotta to declare

an emergency. 105 CMR 410.831(D). App. A17. Accord-

ingly, if Marotta deliberately or recklessly declared an

emergency where none existed, his actions were

unauthorized, and the only feasible remedy was a post-

deprivation hearing, which Massachusetts provided

under the State Sanitary Code. See 105 CMR 400.200(B)(1).

App. A15. Since the post-deprivation procedure provided

an adequate remedy, there was no deprivation of prop-

erty without due process.

Notwithstanding Herwins’ assertion to the contrary,

there is no split among the circuits as to the meaning or

applicability of Parratt, Hudson, Logan and Zinermon.

Rather, the circuits have consistently and uniformly

applied these principles in a variety of contexts. For

example, the Second Circuit Court of Appeals dismissed

an action by a contractor who had been debarred from

bidding upon City contracts, allegedly in violation of the

contractor’s rights to procedural due process. Hellenic

American Neighborhood Action Committee v. City of New

York, 101 F.3d 877, 880-881 (2d Cir. 1996). The Second

Circuit held that no constitutional claim was available

where there were state law remedies that could have

corrected the claimed deprivation. The Sixth, Seventh and

Eleventh Circuits are also in agreement with this analy sis.

See Harris v. City of Akron, 20 F.3d 1396 (6th Cir. 1994);

Easter House v. Felder, 910 F.2d 1387, 1404 (7th Cir. 1990);

Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998); McKin-

ney v. Pate, 20 F.3d 1550, 1562-1563 (11th Cir. 1994); Powell

v. Georgia Dept. Of Human Resources, 114 F.3d 1074,

1080-1082 (11th Cir. 1997).

The sole case that Herwins cites, Armendariz v. Pen-

man, 31 F.3d 860 (9th Cir. 1994), is not to the contrary. In

Armendariz, the Court noted that the State could provide

no pre-deprivation process if the deprivation was the

result of a random and unauthorized act. The Court con-

cluded, however, that the actions taken or directed by the

Mayor, City Attorney and other supervisory officials

were taken under the apparent authority of state pro-

cedures, statutes and regulations and so Parratt did not

apply. Armendariz, supra, 31 F.3d at 866. As with Zinermon

v. Burch, 494 U.S. 113 (1990), Armendariz involved no

official action contrary to established state procedures.

Accordingly, when the officials utilized flawed pro-

cedures, they could be held liable for a due process

violation.

This brief review of the applicable authorities dem-

onstrates that this Court has generated a well-developed

and carefully articulated body of law pertaining to pro-

cedural due process. The Court of Appeals in this case

correctly applied these clear precedents. There is simply

no need for this Court to revisit principles that have been

clearly established for almost twenty years. This Court

should deny Herwins’ petition on this ground.

II. Marotta’s Failure to Notify Herwins of his Right to

a Hearing In Violation of State Law Require ments

Raises No Due Process Issue

The same principles of due process outlined above

; , : ,

dispose of Herwins’ second claim regarding the lack of

notice of his right to appeal. According to Herwins, Mar-

otta’s failure to notify him that he had a right of appeal to

the Board of Health violated his rights to procedural due

process. As the Court of Appeals noted, Herwins’ argu-

ment confuses a state law violation with a constitutional

claim.

There was no flaw in the Massachusetts regulatory

scheme. As Herwins notes, the State Sanitary Code

required the code inspector (Marotta) to notify Herwins of

his hearing rights, including the procedure for requesting

a hearing, the deadline for such a request, the right to

inspect the documents in the possession of the Board of

Health, and the right to appear personally at the hearing

and be represented by counsel. See 105 CMR 410.832(b)(2).

App. Al8. Any deviation from these procedures was

unauthorized, and therefore, for due process purposes,

any violation was not complete unless and until the State

failed to afford appropriate post-deprivation remedies.

This essential distinction differentiates this case from

Wilson v. The Health and Hospital Corporation of Marion

County, 620 F.2d 1201 (7th Cir. 1980) on which Herwins

relies. In Wilson, the statutory scheme provided for no

notice at all, with the officials relying solely on the public

10

nature of the ordinance as their notice to the affected

individuals. Accordingly, the flaw in Wilson was with the

established state procedures, not with any unauthorized

deviation from these procedures.

Where an official deviates from established state pro-

cedures, the inquiry then shifts to whether the state pro-

vides adequate post-deprivation remedies. As the Court

of Appeals held, Massachusetts adequately provides for

post-deprivation remedies where the local official fails to

provide proper notice of the right to appeal. If Herwins

could not have filed his appeal within the seven-day time

limit because of lack of notice, he could have pursued a

late filed appeal based upon the equitable principles

adopted in Massachusetts. Under Massachusetts law,

equitable tolling is available to preserve rights lost if the

claimant is excusably ignorant regarding the deadline or

is affirmatively misled by his adversaries. See Andrews v.

Arkwright Mutual Insurance Company, 423 Mass. 1021,

1022, 673 N.E.2d 40 (1996) and cases cited. If the fact

pattern in this case fit one of the exceptions, Herwins

could have pursued his administrative appeal, notwith-

standing the short deadline contained in the State Sani-

tary Code. If Herwins was not entitled to invoke the

doctrine of equitable tolling, then it cannot be said that

the State failed to provide him with an appropriate rem-

edy, but only that Herwins failed to avail himself of the

existing remedies to correct the errors. The Court of

Appeals so held in this case, and their holding on a

matter of state law is binding on Herwins.

Even if Massachusetts state law had not provided for

notice, this Court has already determined that such notice

oe NL Oe ee

11

is not constitutionally required where notice of state man-

dated remedies is available in published, commonly dis-

tributed sources. City of West Covina v. Perkins, 525 U.S.

—_. 119 S.Ct. __, 142 L.Ed.2d 636 (1999). Herwins’

attempts to distinguish West Covina are unpersuasive.

Where, as here, notice of post-deprivation remedies were

generally available to the public in the Code of Massa-

chusetts Regulations, further notice was not mandated by

the Due Process Clause.

In the final analysis, the Court of Appeals aptly sum-

marized this case in its concluding remarks. As the Court

of Appeals stated,

When one steps back, Herwins plainly

could have taken an immediate appeal on the

emergency shutdown and shown that the heat

had been turned back on and that the other

violations were not threatening to health. This

would have meant a brief inconvenience to Her-

wins and the tenants but it would likely have

led to a prompt cancellation of the emergency

closure. The idea that Herwins could ignore this

state provided procedural remedy, and then cre-

ate a federal case and collect $55,000 damages

for a denial of procedural due process, just

makes no sense.

Marotta’s failure to follow state mandated require-

ments for notifying Herwins of his right to a hearing

raises no substantial constitutional questions. This Court

should decline to grant the writ on this issue.

—

12

CONCLUSION

The only constitutional questions raised in his peti-

tion set forth procedural due process issues that have

long been settled by this Court. There is no conflict

among the circuits concerning these principles, and the

Court of Appeals in this case properly applied these

principles. Accordingly, there is no basis upon which this

Court should grant certiorari and this Court should deny

Herwins’ petition.

Respectfully submitted,

IRA H. ZALeZNIK

Counsel of Record

Lawson & Weitzen

425 Summer Street

Boston, MA 02210

Tel. (617) 439-4990

Counsel for Respondents

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